Chapter 5.02: BUSINESS LICENSES
- 5.02.010 Definitions
- 5.02.020 Purpose
- 5.02.024 License Required
- 5.02.030 Enforcement
- 5.02.040 Exceptions
- 5.02.050 Applications
- 5.02.060 Nuisances
- 5.02.070 Accounts Payable
- 5.02.080 Non-Transferable
- 5.02.090 Non-Refundable
- 5.02.100 Conforming to Zoning
- 5.02.110 License Does Not Permit Prohibited Business; Compliance
- 5.02.114 Payment of Other Licenses Not Excused
- 5.02.116 Effect of Chapter on Past Actions and Obligations Previously
- 5.02.120 Confidential Disclosure
- 5.02.130 Statements and Records
- 5.02.140 Contents of License
- 5.02.150 Penalties
- 5.02.160 Duration and Dates Payable
- 5.02.170 Annual Change of Fee
- 5.02.190 Renewal
- 5.02.200 Posting and Keeping License
- 5.02.210 Change of Place of Business
- 5.02.220 Two or More Businesses
- 5.02.222 Separate Computation of License Fee; Branch Establishments
- 5.02.230 Revocation
- 5.02.240 Violation
- 5.02.244 License Fee a Debt; Civil Action
- 5.02.250 Determination of Fees
- 5.02.260 Solicitors
- 5.02.270 Garage-Yard Sales
- 5.02.280 Filming
- 5.02.290 Massage
- 5.02.300 Real Estate Rentals
- 5.02.310 Temporary Events
- 5.02.320 Vehicles for hire
- 5.02.330 Investigation
5.02.340 Inspection of Junk Dealers
5.02.360 Daily Reports and Purchase Forms
5.02.370 Tobacco Retailer’s Permit Required
5.02.380 Application Procedure
5.02.390 Issuance of Permit
5.02.400 Display of Permit
5.02.410 Permits Not Transferable
5.02.420 Administrative Violations
5.02.440 Right to Administrative Hearing
5.02.010 Definitions. Unless otherwise in greater detail defined, the following are hereby defined:
(a) "Business" includes all trades, professions, vocations, occupations, callings, operations, rendering of service, conduct of affairs, trade or commerce, of whatever kind or nature, engaged for profit, directly or indirectly. Evidence of doing business includes maintaining, operating, managing, or being in control of any office, store, warehouse, establishment, location, station or place; having one or more telephones or electronic devices listed publicly for any business activity; distributing any business related announcement or offer; having business stationery, invoice, financial statements, business cards, and/or holding an active license or permit from another agency.
(b) "Employees" include any and all persons engaged in the operation or conduct of business activities for or on behalf of a business, whether as an owner, officer, director, agent, manager, partner, solicitor, or otherwise employed by or working for or on behalf of said business. In addition to owners, any person receiving an IRS form W-2 from the business will be considered an employee of the business. Persons working for the business who are not issued a W-2 by the business or by another business of which they are employed to do the same type of work, will be considered independent business entities and will be required to obtain their own Town of Apple Valley business license.
(c) "License Holder" refers to any person, firm or corporation to whom a business license shall be issued hereunder.
(d) "Year, Annual" refers to the fiscal year of the Town of Apple Valley.
(e) "Collector" includes the Town Manager of the Town of Apple Valley or any person or persons designated by the Town Manager to act in that capacity.
(f) “Business location” must be a street address. The business location shall be where the business is conducted, carried on, administered, and/or where the business phone is located, where incoming mail is processed, where records are kept, where the owner(s), employee(s), or independent worker(s) are located for the purpose of the operation.
(g) “Solicitor” means hawker, or other person who, without appointment, goes from house to house, place to place, or in or along the streets of the Town selling and making immediate delivery, or offering for sale and immediate delivery, any goods, wares, merchandise, or anything of value excluding Mobile Food Facility (MFFs). (Section 5.02.010 amended per Ordinance 270 dated 8-12-2003; amended per Ordinance 444 dated 1-08-13));
(h) “Junk Dealer” means any person having a fixed place of business and conducting, managing or maintaining any place where secondhand and used machinery and scrap metals, including automobiles, tools, implements, or parts or portions thereof, are gathered together, stored, purchased or kept for shipment, sale or transfer.
(i) "Salvage collector" means a person not having a fixed place of business who goes from house to house or place to place gathering, collecting, buying, selling, or otherwise dealing in secondhand and used machinery and scrap metals including automobiles, tools, implements, or parts or portions thereof, or other articles commonly known as salvage.
(j) “Pawnbroker” means any person engaged in any one or more of the following businesses:
(2) Lending money for himself or any other person on personal property, pawns, or pledges in the possession of the lender;
(3) Purchasing articles of personal property and reselling or agreeing to resell such articles to the vendors or assignees at prices agreed upon at or before the time of such purchase.
(k)"Secondhand dealer" means any person, co-partnership, firm or corporation whose principal business is that of engaging in buying, selling, trading, accepting for sale or consignment, accepting for auctioning, or auctioning secondhand personal property.
(l) “Proprietor” shall mean a person with ownership or managerial interest in the business. An ownership interest shall be deemed to exist when a person has ten percent or greater interest in the stock, assets, or income of a business. A managerial interest shall be deemed to exist when a person can or does, have or share ultimate control over the day-to-day operations of the business.
(m) “Tobacco paraphernalia” shall mean cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
(n) “Tobacco product” shall mean any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis or beedies, hookah tobacco or any other preparation of tobacco.
(o) “Tobacco retailer” shall mean any person or proprietor who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; “tobacco retailing” shall mean engaging in any of the above.
(p) “Arm’s length transaction” shall mean a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is to avoid the effect of the violations of this article is not an arm’s length transaction.
(Section 5.02.010 amended per Ordinance 270 – August 12, 2003; Ord. 408 dated 5-11-10)
5.02.020 Purpose. This municipal license ordinance is enacted to raise revenue for the general operation of the Town by assessing a license fee on all businesses and business transactions or activities carried on within the Town. This enactment is not intended to regulate regular commerce in accordance with California State law prohibiting such regulation and is not intended for other regulatory purposes.
5.02.024 Licenses Required.
(a) There is hereby imposed upon any business conducted within the Town, a business license fee in the amount hereinafter prescribed. It shall be unlawful for any person, whether as principal or agent, clerk or employee, either for himself or for any other person, or for body corporate, or as an officer of any corporation to transact and carry on or to conduct any business within the Town without first having procured a license from the Town to do so, and paid the license fee therefor, or without complying with all applicable provisions of this Chapter.
(b) This section shall not be construed to require any person to obtain a license prior to doing business within the Town if such requirement is in conflict with applicable statutes of the United States, the State of California or local ordinances.
(c) Persons not required to obtain a license prior to doing business within the Town because of conflict with applicable statutes of the United States or of the State shall be liable for payment of the fee imposed by this Chapter (unless such payment is barred by the effective application thereof) but shall not be subject to any penal provisions of this Code for such nonpayment. Said fee may be collected in a civil action.
(d) None of the license fees provided for in this Chapter shall be so applied as to occasion an undue burden upon interstate commerce or be violative of the equal protection or due process clauses of the Constitution of the United States or of the State of California. In any case where a license fee is believed by a licensee or applicant for a license to place an undue burden upon interstate commerce or be violative of such constitutional clauses, such person may apply to the Collector for an adjustment of the fee. Such application may be made before, at the time of, or within six months after, payment of the prescribed license fee. The applicant or licensee shall, by sworn statement and supporting testimony, show his method of business, and such other information as the Collector may deem necessary in order to determine the extent, if any, of undue burden or violation. The Collector may then conduct an investigation, and fix as the license fee for the applicant or licensee an amount that is reasonable and nondiscriminatory. If the license fee has already been paid, the Collector shall order a refund of the amount over and above the license fee so fixed. In fixing the license fee to be charged, the Collector shall have the power to base the license fee upon any measure which will assure that the license fee assessed shall be uniform with that assessed upon businesses of like nature. Any adjusted fee fixed pursuant to this Section shall not exceed the license fee prescribed for similar business as to which no adjustment has been made pursuant to this Section. If any license fee imposed by this Chapter is for any reason held to be discriminatory or invalid in amount, by the decision of any court of competent jurisdiction, such decision shall not affect the validity of a lesser amount imposed by the Collector; the Town Council hereby declares that it would have imposed a license fee on the business, occupation, calling, trade, vocation or other enterprise in question, irrespective of the fact that any one or more of the license fees imposed herein may be declared discriminatory or invalid in amount, if payment is otherwise permitted by law.
5.02.030 Enforcement. It is the duty of the collector to enforce the provisions of this Chapter and the Chief of Police shall give assistance as the necessity may arise.
(a) The provisions of this paragraph (a) shall not be construed to exempt the applicant from the application process. Business licenses permitting the operation of any business, occupation or activity by any institution, organization or person who falls under the following classification and is otherwise permitted to operate within the Town is exempt from a business license fee: where the business is conducted, managed or carried on wholly for the benefit of charitable purposes and from which profit is not derived, either directly or indirectly, by an individual; nor shall any business license fees be required for the conduct of any entertainment which is performed for the purpose of raising revenue for said charitable purposes.
(b) Any business activity operating in the Town which is required to make payments under a franchise agreement with the Town is exempt from the business license fees imposed by this Chapter.
(c) Town of Apple Valley Recreation Department instructors who have a contract with the Town, and who have no other customers except those students they teach through the Town’s Recreation Program shall complete the business license application process, but are exempt from paying the business license fee.
(d) Individuals who sell merchandise at a Town sponsored event when those individuals report gross sales of $500 or less a year to the state. (Section 5.02.040 amended per Ordinance 270 dated 8-12-03)
5.02.050 Applications. An application for a license under this Chapter must include the business name, business location, mailing address, business start date, description of the business, ownership type, owner name(s), and the number of owners and employees for the purpose of calculating the business license fee, necessary state license and permit data when applicable, and any other information required by the Collector to assist in the issuance of the business license, and must be signed by the applicant. In the event that such a business shall not be conducted at a permanent address, then the applicant shall state the residence of the owner or owners of such a business. Where an application is made for a business within town boundaries, the collector may require approval from the Police, Fire, Health, Building, Planning, and any other department he deems to be applicable. In the event where such a business is required to be licensed by the State of California, then such application shall include proof of current state license. (Section 5.02.050 amended per Ordinance 270 dated 8-12-03)
5.02.060 Nuisances. No license issued under this Chapter shall be interpreted as permission to conduct a business otherwise prohibited by law or in such a manner as to create a nuisance.
5.02.070 Accounts Payable. All licenses shall be payable in advance in lawful United States tender to the Town Treasurer's office.
5.02.080 Non-Transferable. No license issued prior to the passage of this Chapter shall be transferable to the present. Licenses issued for locations inside the Town limits cannot be transferred to another location inside the Town limits. Licenses cannot be transferred to another owner, business name or type of business. (Section 5.02.080 amended per Ordinance 270 dated 8-12-03)
5.02.090 Non-Refundable. No license fee paid in conforming to this Chapter shall be refundable for any reason at any later date.
5.02.100 Conforming to Zoning. No license issued under this Chapter shall be interpreted as permission to conduct a business which is prohibited by Town zoning rules and regulations.
5.02.110 License Does Not Permit Prohibited Business; Compliance Required. The business license issued pursuant to the provisions of this Chapter constitutes a receipt for the license fee paid and is a requirement, but not a formal permit, to transact and carry on any business activity within this Town. Neither the payment of the fee nor the possession of the business license authorizes, permits or allows the doing of any act which the person paying or holding the same would not otherwise be entitled to do; and any permit, license, variance or other instrument of approval or evidence that any conditions exist as required by any other Section of this Code or Ordinance or by any State statute or other law must first be obtained or complied with before the doing of any act or thing for which it is required.
5.02.114 Payment of Other Licenses Not excused. Any person required to pay a license fee for conducting a business under this Chapter shall not be relieved from the payment of any license or other fee for the privilege of conducting such business or similar or related activity required under any other provision of this Code or any other ordinance or regulation of the Town or other agency, and such person shall remain subject to all regulatory provisions of other ordinances and laws.
5.02.116 Effect of Chapter on Past Actions and Obligations Previously Accrued. Unless otherwise specifically or by necessary implication provided herein, neither the adoption of this Chapter nor its superseding of any portion of any other ordinance of the Town shall in any manner be construed to affect prosecution for the violation of any other ordinance committed prior to the adoption hereof, nor be construed to affect the validity of any bond or cash deposit required by any ordinance to be posted, filed or deposited, and all rights and obligations thereunto pertaining shall continue in full force and effect for the term prescribed therein.
5.02.120 Confidential Disclosure. The information given or secured on the active business license shall be public information. In addition, the business phone number, as provided by the applicant on the business license application, shall also be considered public information. Information on other portions of the business license application may be considered public information if it is found necessary by the Collector to enforce the provisions of this Chapter, or for the enforcement of other Ordinances or laws intended to preserve the public health, safety and welfare; otherwise said other information shall be confidential, unless disclosure is required by law or by order of a court with competent jurisdiction. (Section 5.02.120 amended per Ordinance 270 dated 8-12-03)
5.02.130 Statements and Records. All statements and records submitted in order to ascertain the amount of license fees may be substantiated through audit proceedings relating to employee-related records and any applicant's prior employee-related records are subject to audit at the collector's discretion. All persons subject to the conditions of this Chapter shall be required to keep complete and accurate records.
5.02.140 Contents of License. The Town Treasurer shall issue to any person having met the standards of this Chapter a license which shall contain the following: the business name, business location, business owner(s), business type, description of the business, business license number, effective date, expiration date, business mailing address, and the electronic signature of the Town employee authorized to issue business license. The license issued by the Town Treasurer for the purpose of posting in places of business shall not contain reference to the amount of the license fee. (Section 5.02.140 amended per Ordinance 270 dated 8-12-03)
5.02.150 Penalties. The Town Treasurer shall keep a list of all delinquent renewal licenses that are payable under this Chapter and shall add a penalty of twenty-five percent of the license fee on the first day of each month after the due date of the renewal or initial application, for failure to pay an annual license fee when due. The Town Treasurer shall add a penalty of twenty-five percent of the license fee on the day following the due date and all such penalties may be calculated retroactively to the passage of this Chapter but shall not exceed a sum greater than that sum as calculated over a three year period (the total fee shall not exceed three times the annual license fee).
5.02.160 Duration and Dates Payable. All licenses shall be annual licenses and shall be due and payable on or before the date the business commences, and shall be renewed annually on the anniversary of the effective date of the initial or prior license; the "effective date" shall be the day the business license is issued. (Section 5.02.160 amended per Ordinance 270 dated 8-12-03)
5.02.170 Annual Change of Fee. The amount of all business license fees in this Chapter shall be revised on January 1 of each year, commencing January 1, 1992, by an amount equal to the increase in the average gross national product deflation factor as published by the United States Department of Commerce.
5.02.190 Renewal. In all cases, the applicant for the renewal of a license shall submit to the collector for his guidance in ascertaining the amount of the license fee to be paid by the applicant, a sworn statement, upon a form to be provided by the collector, setting forth the information concerning the applicant's business during the preceding year as may be required by the collector to enable him to ascertain the amount of the license fee to be paid by the applicant pursuant to the provisions of this Chapter.
5.02.200 Posting and Keeping License. All businesses shall display business licenses in the following manners: any license holder conducting business at a fixed place in the Town of Apple Valley shall keep the license posted in a conspicuous place on the business premises; any license holder conducting business but not operating at a fixed place in the Town of Apple Valley shall keep the original license on his person at all times while conducting business; and any license holder operating one or more vehicles in the Town shall keep a copy of the original license in each such vehicle.
5.02.210 Change of Place of Business. Where a license holder is authorized to conduct business at a specific location, such a license holder may move his place of business following the submission of a revised application with the appropriate change of address. The appropriate departments of the Town must approve the new location prior to the issuance of the revised license. There will be an administrative fee of $20 for departmental review. The Change of Place of Business Fee will be waived if the change is made during the annual renewal process, or any time during the year when the business is located outside of the town limits and does not require the departmental review. (Section 5.02.210 amended per Ordinance 270 dated 8-12-03)
5.02.220 Two or More Businesses. In the event that any person is conducting two or more businesses required to be licensed in the same location, separate fees shall be charged and licenses issued at a full fee rate.
5.02.222 Separate Computation of License Fee; Branch Establishments. Where a license fee is imposed upon any business pursuant to this Chapter, and such business is conducted with branch establishments or at separate fixed places, the fee shall be computed as if each such branch or place were a separate and independent business. A separate license shall be obtained for each branch establishment or location at the same location. Each license shall authorize the licensee to transact and carry on only the business licensed thereby, at the location specified in the license, and in the manner designated in such license. Warehouses and distributing plants used in connection with and incidental to a business shall not be deemed to be separate places of business or branch establishments.
(a) All licenses issued under the provisions of this Chapter shall be in compliance with all applicable laws of the State of California and the United States of America. Any license granted through the provisions of this Chapter may be revoked by the Town Manager if he determines either (1) that it was fraudulently or wrongfully issued or obtained, or (2) that the information provided in the application was misleading or false in any material respect, or (3) that the business is operating in violation of any statute, ordinance or law, or (4) that the revocation is necessary to health, safety or welfare of the community, subject to the provisions of Subsection (b) below.
(b) Prior to any revocation of license, the Town Manager shall give the license holder fifteen days notice of intent to revoke such license. Within fifteen days of such notice, the license holder may file a written request with the Town Clerk to appear before the Town Council, and when a hearing is thereafter scheduled by the Town Clerk, the license holder may appear and show cause before the Town Council why such license should not be revoked. Upon the failure of the license holder to file a written request to appear within fifteen days, or if after the hearing of the Council, the Council finds good and sufficient cause of revocation, the license shall be revoked. No refund of any license shall be made following revocation.
5.02.240 Violation. Any person who violates any provision or prohibition contained in this Chapter, or is found to have misrepresented to the Collector the nature, character, description or extent of his business or number of equivalent full time employees or other employees of his business is guilty of an infraction and, upon conviction thereof, shall be punished in accordance with the provisions of Section 1.01.200 through 1.01.230 of Chapter 1.01 of Title 1 of this Code. (Amended Ord. 156, adopted 11-14-95)
5.02.244 License Fee in Debt; Civil Action. The Amount of any business license fee and penalty imposed by the provisions of this Chapter shall be deemed a debt to the Town. An action may be commenced in the name of the Town in any court of competent jurisdiction for the amount of any delinquent license fee, penalties, and administrative costs incurred in connection therewith, including attorneys fees.
5.02.250 Determination of Fees. The amount of the license fees to be paid to the Town by each and all persons conducting any and all businesses to which this Ordinance applies shall be based on the number of employees employed by each of said businesses. The fee is calculated as follows:
For Each Business With 0-5 Employees, the Fee is $50. per year;
For Each Business With 6-10 Employees, the Fee is $75 per year.
For Each Business with 11-15 Employees, the Fee is $100 per year.
For Each Business with 16-20 Employees, the Fee is $150 per year.
For Each Business with 21 or More Employees, the Fee is $200 per year.
The business of peddling, or hawking, is prohibited, and a business license shall not be issued therefore. Businesses that have a valid Town business license may solicit orders for later delivery. (Section 5.02.260 amended per Ordinance 270 dated 8-12-03).
(Section 5.02.260 amended per Ordinance 270 dated 8-12-03; amended per Ordinance 444 dated 1-08-13).
5.02.270 Garage Sales.
(a) Any resident wishing to operate a Garage-Yard Sale shall prior to the Garage-Yard Sale register with the Finance Department of the town of Apple Valley the date and time on which the Garage-Yard Sale is to take place. (Chapter 5.02.270 amended Ordinance #210 adopted July 13, 1999; amended Ordinance #270 adopted 8-12-03).
(b) The maximum number of Garage-Yard Sales permitted under this ordinance for any single-family residence is three per calendar year, with each sale not to exceed three consecutive days.
(c) The maximum number of Garage-Yard Sales permitted under this ordinance for any multi-family residence is one per calendar year per occupied unit. The tenant of the multi-family residence shall receive written permission from the owner of the property prior to obtaining the Garage-Yard Sale permit and shall submit this written authorization at the time of registration with the Finance Department. Only the occupant of the multi-family residential unit shall be permitted to apply for and obtain the Garage-Yard Sale permit.
(d) Any signs advertising a Garage-Yard Sale on any public street, alley or right-of-way or on any publicly-owned property are prohibited.
5.02.280 Filming. The business of operation of a filming company is not subject to the provisions in this Chapter, but, instead, is subject to other applicable ordinances and fees relating to such operations. (Adding Chapter 5.02 Ord. #57 adopted 8-14-90)
5.02.290 Massage. Each therapeutic massage and/or bodywork practitioner, whether operating on their own or in conjunction with a beauty salon, chiropractic or medical office, or any other business, must show proof of certification by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) or the Associated Body Work and Massage Professionals (ABMP). Individuals holding a current business license for this type of business at the time of the revision of this section shall be allowed three years to obtain this certification. (Added per Ordinance 270 dated 8-12-03; Amended per Ordinance 311 dated 4-25-06).
5.02.300 Residential and commercial real estate rentals. Only those property owners who have for rent and/or lease ten (10) or more residential, commercial, industrial and/or office units shall be required to obtain a business license. (Added per Ordinance 270 dated 8-12-03)
5.02.310 Temporary Events. Temporary events are identified as events requiring a Special Events Permit from the Planning Division. Operators of and vendors at temporary events shall be required to obtain a business license and must certify that the sales tax collected on sales made in Apple Valley will be reported to the State of California as such. (Added per Ordinance 270 dated 8-12-03)
5.02.320 Vehicles for hire. Business licenses are required for any for-hire motor carrier of property or passengers not specifically exempted by state or federal law. Business license fees may be adjusted so as not to cause an undue burden upon interstate commerce as explained in section 5.02.024(d) of this municipal code. Drivers of passenger carriers would be required to pass a background check and provide adequate proof of insurance. (Added per Ordinance 270 dated 8-12-03)
Upon receipt of a complete application with all required documentation and fees, the collector shall refer copies of the application to the building, planning, fire and police departments for investigation concerning the applicant’s business and character. These investigating departments shall report their findings, together with their approval of or objection to the issuance of a license to the collector within ten business days of the referral. The collector shall, upon receipt of these reports and any recommendations either issue or deny the issuance of the license. (Added per Ordinance 408 dated 5-11-10)
5.02.340 Inspection of Junk Dealers
Every junk dealer, pawnbroker, secondhand dealer and salvage collector shall hold and keep exposed any property acquired by them in the course of their business for inspection on their business premises during business hours. (Added per Ordinance 408 dated 5-11-10)
Junk dealers shall hold all personal property received as received except automobile bodies until the expiration of three days after the submission of the daily report required by this chapter. (Added per Ordinance 408 dated 5-11-10)
5.02.360 Daily Reports and Purchase Forms.
(a) Junk dealers, pawnbrokers and secondhand dealers licensed under this chapter shall report in writing to the police department, in a manner as approved by the police department, all personal property requiring reporting by this chapter. The daily reports shall be accompanied by a purchase form for each individual transaction. The specific information required on the purchase form is as follows;
1. Dealer’s name, business, address and telephone number;
2. Date of purchase;
3. Seller’s name, description, residence address, vehicle license number, driver’s license or county business license number;
4. Material category descriptions;
5. Weight of material, amount paid and time of payment;
6. Description and identification number of automobile and automobile bodies. Such information may be provided by submission of a vehicle report completed by the seller of any automobile or automobile body. The vehicle report forms will be made available by the police department.
(b) The purchase forms and daily reports shall include a general description as to the composition of scrap or junk. Products such as castings, wire, tubing, pipe, or similar items may be commonly described. Nonferrous materials shall be reported and ferrous materials including fence material, pipe, chain, machinery parts, foundry castings, cable, automobiles, and automobile bodies shall be reported.
(c) Transactions totaling five dollars ($5.00) or less need not be reported except for automobiles or automobile bodies, which may be reported in accordance with subsection (a)(6) of this section.
(d) Pawnbrokers and secondhand dealers shall make their reports in compliance with the provisions of Business and Professions Code, Section 21628 and Financial Code Section 21208, of the state of California.
(e) Salvage collectors shall maintain purchase records.
(f) The daily reports and purchase forms shall be written in the English language in a clear and legible manner. The records required by this section shall be retained by the applicant for a period of three years and shall be available for inspection upon demand by any law enforcement officer. The failure to complete, file and retain the records required pursuant to Section 5.02.360 is a violation of this chapter and is unlawful.
5.02.370 Tobacco Retailer’s Permit Required.
A. (1) It shall be a misdemeanor for any person or proprietor, within the Town of Apple Valley, to act as a tobacco retailer at a location for which a valid Tobacco Retailer’s Permit has not been issued pursuant to this article. A separate Tobacco Retailer’s Permit is required for each location at which tobacco retailing is to occur. No permit shall be issued to authorize tobacco retailing at any place other than a fixed location. Tobacco retailing from any non- permanent location, including from vehicles, is prohibited. No permit shall be issued for residences, newsstands, or locations where engaging in tobacco retailing is prohibited by federal, state or local law.
(2) A person or proprietor without a valid Tobacco Retailer’s Permit, including a person or proprietor whose permit has been suspended, shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a permit.
(3) Each day that a person or proprietor sells or offers for sale tobacco, tobacco products or tobacco paraphernalia without a valid Tobacco Retailer’s Permit shall constitute a separate violation.
5.02.380 Application Procedure.
A. (1) Application for a Tobacco Retailer’s Permit shall be submitted to the Town Finance Department by any proprietor of a business seeking the permit, with at least one proprietor personally identifying himself or herself with valid government-issued identification at the time the application is submitted. An authorized agent of a business or corporation may submit an application for a Tobacco Retailer’s Permit if the application has been completed, signed and notarized by at least one proprietor or corporate officer. Each applicant shall be responsible for reviewing the conditions of conducting retail tobacco sales within the Town of Apple Valley and shall agree to abide by these conditions by signing the application under penalty of perjury. All applications shall be submitted on a form supplied by the Town and shall contain the following information:
(2) The business name, address and telephone number of the location for which the Tobacco Retailer’s Permit is sought;
(3) The name, mailing address and telephone number of the proprietor or person authorized to receive communications and notices required by or authorized by this article. If this information is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address of the location for which the Tobacco Retailer’s Permit is sought;
(4) The type and identifying number of the government-issued identification presented with the application; and
(5) Other information the Town Attorney deems necessary for enforcement of this ordinance.
(6) A Tobacco Retailer’s Permit must be obtained prior to the sale of any tobacco product or tobacco paraphernalia. A new Tobacco Retailer’s Permit must be obtained upon change of ownership or upon change of form of ownership prior to the sale of any tobacco product, including but not limited to a sole proprietor becoming a corporation.
5.02.390 Issuance of Permit.
A. (1) The permit shall state the following on its face:
(a) Legal owner,
(b) Doing Business As (D.B.A.),
(c) Town of Apple Valley Municipal Code section regulating Tobacco Retailer’s Permits,
(d) Business and mailing addresses,
(e) Date permit was issued and permit expiration date,
(f) Account number.
(g) Upon the receipt of an application for a Tobacco Retailer’s the Finance Department shall issue a permit, unless the Assistant Town Manager of Finance and Administration demonstrates one of the following bases for denial:
(1) The application is incomplete or inaccurate; or
(2) The application seeks authorization for tobacco retailing at a location for which a suspension is in effect.
(3) The application seeks authorization for tobacco retailing that is unlawful pursuant to any section of this article or any federal, state or local law.
B. It shall be the responsibility of the Town Manager or his/her designee to enforce all provisions set forth in this article, which includes but is not limited to the following:
(1) Investigate and prosecute tobacco retailers who fail to obtain and/or maintain a Tobacco Retailer’s Permit.
(2) Conduct any and all audits that may be necessary in the investigation of tobacco retailers.
C. Finance Department Responsibilities. It shall be the duty of the Finance Department to administer and process the Tobacco Retailer’s Permit application and mail renewal notices.
5.02.400 Display of Permit.
A.. Any Tobacco Retailer’s Permit issued pursuant to this article shall be prominently displayed in public view at the location for which it is issued.
B. A Tobacco Retailer’s Permit is non-transferable. If a new person or proprietor acquires a business engaged in tobacco retailing, that person or proprietor must apply for a new permit before engaging in the sale of tobacco products or tobacco paraphernalia.
5.02.420 Administrative Violations.
A. (1) Cumulative to Other Violations. The violations set forth in this section are cumulative to, and in addition to, any other violations of federal, state or local law and shall be punished as specified in Section 5.02.430
(2) Failure to Comply With Federal, State or Local Law. Any tobacco retailer for whom a duly certified abstract of the record of any court or administrative adjudicative proceeding has been received by the Town Manager or designee showing that the tobacco retailer has violated any federal, state or local law regarding the sale, advertisement or display of tobacco products shall be guilty of an administrative violation. An administrative penalty will be imposed under Section 5.02.430 when the person or proprietor has either been:
(3) determined to be in violation of any federal, state or local law by an appropriate governmental administrative agency, or
(4) determined to be in violation of any federal, state or local law by a court of competent jurisdiction including but not limited to the entry of a plea of guilty or “no contest” in a criminal case.
A. (1) Any tobacco retailer determined by the Town Manager or his/her designee to have violated a section of this chapter shall be subject to the penalties of this section. The Town Manager or his/her designee shall notify the tobacco retailer that there has been an initial determination of violation under the provisions of this ordinance, and shall specify the violation and the penalty imposed, including the effective date of the suspension, if any. The notice shall further state that the tobacco retailer may, within 15 calendar days of receipt of the notice, submit to the Town Manager or designee any written or documentary evidence to contest the initial determination of violation. After receiving and considering the evidence that is provided, the Town Manager or his/her designee shall prepare a final written decision with findings, and shall serve this final determination upon the tobacco retailer.
(2) Administrative penalties shall be imposed as follows:
(a) For the first violation in any five-year period, the tobacco retailer shall receive a letter of reprimand from the Town and in accordance with Business and Professions Code Section 22958 (a) a $400 penalty.
(b) For the second violation in any five-year period, the Tobacco Retailer’s Permit shall be suspended for 30 calendar days and in accordance with Business and Professions Code Section 22958 (a) a $950 penalty.
(c) For a third violation in any five-year period, the Tobacco Retailer’s Permit shall be suspended for 90 calendar days and in accordance with Business and Professions Code Section 22958 (a) a $1500 penalty.
(d) For a fourth or subsequent violation in any five-year period, the Tobacco Retailer’s Permit shall be suspended for 12 months and in accordance with Business and Professions Code Section 22958 (a) a $3500 penalty.
(3) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and permit suspension periods shall continue to apply to a location unless:
(a) the location has been fully transferred to a new proprietor or proprietors; and
(b) the new proprietor(s) provide the Assistant Town Manager of Finance and Administration or his/her designee with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.
B. In addition to the administrative penalties, any person who violates a section of the chapter shall be guilty of a misdemeanor subject to section 1.01.200.
5.02.440 Right to Administrative Hearing
A. (1) The tobacco retailer shall have the right to an administrative review of the final determination of the Town Manager. The administrative review shall be conducted by the Town Manager or designee to obtain an administrative review of the Town Manager’s final determination, the tobacco retailer must complete the request for administrative hearing form available at the Town Clerk’s Office, within 15 calendar days of its receipt of the Town Manager’s final determination. The amount of the fine must be deposited with the Town. The timely filing of a request for an administrative review shall hold in abeyance any permit suspension until the administrative review is heard and decided.
(2) Notice of Review. If a review is requested pursuant to Section 5.02.440 (A)1 The hearing shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the "request for hearing" is filed in accordance with the provisions of AVMC section 1.01.205. The person requesting the hearing shall be notified of the time and place set for the hearing at least seven (7) days prior to the date of the hearing.
(3) Review Procedure. The hearing officer shall only consider evidence that is relevant to whether the violation occurred and whether the responsible person has caused or maintained the violation of the municipal Code on the date(s) specified in the violation notice. The responsible person contesting the administrative citation shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation. After considering all of the testimony and evidence submitted at the hearing, the hearing officer may immediately issue a verbal decision or may issue a written decision within ten (10) days of the hearing. The decision shall include the reasons for the decision and such decision shall be final. If the hearing officer determines that the violation should be upheld, then the fine amount on deposit with the town shall be retained by the town. If the hearing officer determines that the violation should be cancelled and the fine was deposited with the town, then the town shall promptly refund the amount of the deposited fine.
(4) Finality of The Town Manager or designee’s decision. The decision of the Hearing Officer shall be the final decision by the Town.
A. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance or the rules adopted hereby. The Town Council of the Town of Apple Valley hereby declares that it would have adopted independently each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.
(Added per Ordinance 408 dated 5-11-10)
Chapter 5.04: COMMERCIAL FILMING
- 5.04.010 Definitions
- 5.04.020 Scope
- 5.04.030 Application for Permit
- 5.04.040 Insurance Requirements
- 5.04.050 Regulations
- 5.04.060 Violation and Penalty
Unless the context in which used requires otherwise, the following words when used with initial capitalization shall have the meaning set forth in this section. Variants of defined terms, when used with initial capitalization shall be construed in the same manner set forth herein for the defined terms themselves:
(a) "Motion Picture, Television, Still Photography" includes all activities attendant to staging or shooting commercial motion pictures, television shows or programs, and commercials.
(b) "Charitable Films" includes commercials, motion pictures, television, video tapes, or still photography produced by a nonprofit organization, which qualifies under Internal Revenue Code Section 501(c) (3) of the Internal Revenue Code as a charitable organization. No person directly or indirectly involved shall receive a profit from the marketing and production of the films or from showing the films, tapes or photos.
(c) "News Media" includes filming or video taping for the purpose of spontaneous, unplanned television news broadcasts by reporters, photographers or cameramen.
(a) Except as exempted, no person, corporation or business shall use any public or private property, facility or residence for the purpose of taking commercial motion pictures or television pictures or commercial still photography without first applying for and receiving a permit to do so from the Planning Division.
(b) The provisions of this Chapter shall not apply to the following:
- News Media. Reporters, photographers or cameramen in the employ of a newspaper, news service, or similar entity engaged in on-the spot broadcasting of news events concerning those persons, scenes, or occurrences which are on the news and of general public interest.
- Private Use. The non-commercial filming or video taping of motion pictures solely for private use on private property.
- Charitable Films. Projects which have qualified for a charitable exemption under Section 501(c)(3) of the Internal Revenue Code. (Section 5.04.020 amended Ordinance 197 adopted June 23, 1998)
5.04.030 Application for Permit
(a) Permit Applications - Filing. A commercial filming permit application shall be filed with the Planning Division, and shall be completed with the following information:
- The name, address and telephone number of the applicant or duly authorized representative, and if available, of the director, first assistant director, unit production manager, or location manager.
- The name and address of the individual or production company to whom the permit is to be issued.
- The type of production or project.
- The date(s), time(s), and exact location(s) (including preparation and striking days) where the filming shall occur.
- A brief description of the proposed filming activity, including any other activity which would affect the use of public facilities in the area.
- The number of individuals in cast and crew.
- A description of the types and number of vehicles to be utilized.
- If an applicant intends to use either wild animals, chemicals, explosives or fire, or intends to engage in any other hazardous activity, a statement to that effect.
(b) Fees and Expenses. The charge for the permit shall be that charge set from time to time by resolution of the Town Council. In addition, each applicant shall reimburse the Town for the actual costs of providing any necessary personnel, including but not limited to, police and fire personnel to the applicant for the purpose of assisting the production.
- All applications for a permit shall be submitted at least one (1) working day prior to the date desired, provided, however, that if the project will interfere with traffic or present a potential public safety hazard, such application shall be submitted at least five (5) working days prior to the desired date.
- If the project shall take place in whole or in part on private property, the application for a permit shall be accompanied by written permission from the vested owners of the property.
- If the project will interfere in any way with the normal flow of traffic in the Town, the applicant shall provide a traffic control plan for review and approval.
- (a) The plan must utilize the services of local law enforcement personnel and/or California Highway Patrol.
- (b) The plan must require the applicant to furnish and install advance warning signs and any other traffic control devices in conformance with Town regulations.
- (c) The Town, based on traffic safety consideration, may agree to the restriction of traffic to one twelve-foot lane of traffic or to the stopping of such traffic intermittently.
- (d) Without prior written approval by the Town, the traffic shall not be detoured across a double yellow line.
- (e) Unless otherwise approved, camera cars shall observe all traffic laws, and shall be driven in the direction of traffic.
- (f) The applicant shall agree to comply with all traffic control requirements set by the Town.
- (d) Issuance. The permit shall be issued by the Town Planner and shall be prominently displayed on site at all times. (Section 5.04.030 amended Ordinance #197 adopted 7-23-98)
5.04.040 Insurance Requirements
(a) Before any permit is issued the applicant shall provide the Town with evidence of a policy of liability insurance issued by a solvent corporation holding a certificate of authority to engage in the insurance business in the State of California in an amount not less than $1,000,000. The policy shall name the applicant and the Town of Apple Valley, its officers, agents, servants, and employees, as co-insured and the Flood Control District if applicable, for protection against any loss, claims, liability, injury and damage of any nature arising out of, or in any way connected to the filming conducted by applicant, and the insurance coverage shall be primary and not contributing with any other insurance of the Town.
(b) No cancellation or reduction in coverage or modification of this policy, for any reason, shall become effective until the expiration of thirty (30) days written notice of such cancellation, reduction or modification of coverage shall have been given to the Town Treasurer.
(c) The applicant shall enter into a hold harmless and indemnification agreement provided by the Town prior to the issuance of any permit.
(a) Rules and Regulations. The Town Planner or his/her designee shall issue from time to time as deemed necessary, rules and regulations as approved from time to time by resolution of the Town Council to implement the provisions of this Chapter. Such rules and regulations shall have the force of law, and the failure to obey same shall be considered a violation of the provisions of this Chapter. The rules and regulations shall be promulgated with the intent of:
- Maintaining the health and safety of all persons and property within the Town.
- Avoidance of undue disruption of persons and traffic within the affected areas of the Town.
(b) Clean Up. The permittee shall conduct operations in an orderly fashion with continuous attention to storage of equipment not in use and clean up of trash and debris. All areas of use shall be cleaned of trash and debris and restored to its original condition upon completion of the filming. The permittee may be required to post a deposit in an amount set by resolution of the Town Council to ensure clean up and restoration. Said deposit shall be utilized to offset any clean up or restoration expenses caused. Any unused portions of the deposit shall be reimbursed.
(c) Disruption. Any emergency road work shall have priority over any commercial filming.
(d) The Town Planner may accommodate, at the applicant's request, minor changes to the permit to include time and date changes if reasonable.
(e) All permittees filming in a flood control channel must vacate the channel upon water release and shall name the flood control district as an additional insured when filming in or adjacent to flood control property.
(f) Unless the site is equipped with fire rings, gas jets shall be used in lieu of fires to simulate a campfire, subject to the application of existing fire protection regulations. (Section 5.04.050 amended Ordinance #197 adopted 7-23-98).
5.04.060 Violation and Penalty
(a) Penalty for Violation. Any person who holds a permit either by himself or through his direction, consent, assent, permission, or acquiescence who shall violate any of the provisions of this Chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished in accordance with the provisions of Sections 1.01.200 through 1.01.230 of Chapter 1.01 of Title 1 of this Code. (Amended Ord. 156, adopted 11-14-95) (Chapter 5.04 added per Ord. 46, adopted 04-27-90)
Chapter 5.06: Cable Communications Franchise
- 5.06.010 Intent
- 5.06.020 Short Title
- 5.06.030 Definitions
- 5.06.040 Grant of Franchise
- 5.06.050 Regulation of Franchise
- 5.06.060 General Financial and Insurance Provisions
- 5.06.070 Design and Construction Provisions
- 5.06.080 Service Provision
- 5.06.090 Consumer Protection
- 5.06.100 Operation and Maintenance
- 5.06.110 Rights Reserved to the Grantor
- 5.06.120 Rights Reserved to the Grantee
- 5.06.130 Franchise Violations
- 5.06.140 Reports
- 5.06.150 Miscellaneous Provisions
- 5.06.160 Applicability of chapter to State video services franchisees.
5.06.170 Regulation of State video services franchisees.
5.06.180 State video franchise fee.
5.06.190 Audit authority.
5.06.200 Customer service penalties under State video franchises.
5.06.210 Town response to State video franchise applications.
The Town of Apple Valley finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of the Town of Apple Valley. Because of the complex and rapidly changing technology associated with cable television, the Town further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Town or such persons as the Town shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.
5.06.020 Short Title
This chapter shall be known and may be cited as the "Cable Communications Franchise".
For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.
(a) "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals.
(b) "Broadcast Signal" means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a Cable Communications System off-the-air or by microwave.
(c) "Cable Communications System" or "System", also referred to as "Cable Television System", "Cable System", "CATV System", or "Community Antenna TV System", means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
- A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public right-of-way;
- A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
- Any facilities of any electric utility used solely for operating its electric utility system.
(d) "Cablecasting" means distributing programming that originates within the facilities of the Cable Communications System.
(e) "Cable Service" means the total of the following:
- The one-way transmission to subscribers of video programming or other programming service; and
- Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
(f) "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.
(g) "Commence Construction" means that time and date when construction of the Cable Communications System is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (strandmapping) and after all necessary permits and authorizations have been obtained.
(h) "Commence Operation" means that time and date when operation of the Cable Communications System is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to a dwelling unit located within the franchise area and such services are actually subscribed to by a resident of the franchise area.
(i) "Commercial Use Channels(s)" means the channel capacity designated for commercial use as defined and required by federal law.
(j) "Completion of Construction" means that point in time when all cable system equipment specified in the Franchise Agreement has been installed by the Grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, of any facilities required by the Franchise Agreement.
(k) "Council" means the Town Council, the governing body of the Town of Apple Valley.
(l) "FCC" means the Federal Communications Commission and any legally appointed or elected successor.
(m) "Franchise" means an initial authorization or renewal thereof, issued by the Town, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
(n) "Franchise Agreement" means a franchise award ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise regulatory ordinances and other related materials.
(o) "Franchise Fee" means any tax, fee or assessment of any kind imposed by the Town on a Grantee for Grantee's use of the public rights-of-way. The term 'franchise fee' does not include:
- Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against Grantee or cable subscribers);
- Capital costs which are required by the franchise to be incurred by Grantee for public, educational, or governmental access facilities;
- Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or
- Any fee imposed under Title 17, United States Code.
(p) "Grantee" means any "person' receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.
(q) "Grantor" or "Town" means the Town of Apple Valley as represented by the Town Council or any delegate acting within the scope of its jurisdiction.
(r) "Gross Annual Receipts" means the annual gross receipts received by the Grantee from all sources of operations within the Town of the franchised Cable Communications System, excluding refundable deposits, except that any sales, excise or other taxes collected for direct pass-through to local, State or Federal government shall not be included.
(s) "Initial Service Area" means the portion of the franchise area which will receive service initially, as set forth in the Franchise Agreement.
(t) "Installation" means the connection of the system from feeder cable to subscribers' terminals, and the provision of service.
(u) "Pay-Cable", "Pay-Television" or "Pay-per-View" means the delivery to subscribers, over the Cable Communications System, of television signals for a fee or charge to subscribers over and above the charge for Basic Cable Service, on a per program, per channel, or other subscription basis.
(v) "Person" means an individual, partnership, association, joint stock company, trust, corporation, or organizational entity.
(w) "Programmer" means a person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the Cable Communications System.
(x) "Public, Educational or Government Access Facilities" or "PEG Access Facilities" means the total of the following:
- Channel capacity designated for public, educational, or governmental use; and
- Facilities and equipment for the use of such channel capacity.
(y) "Resident" means any person residing in the Town as otherwise defined by applicable law.
(z) "School" means any accredited nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private.
(aa) "Section means any section, subsection, or provision of this chapter.
(bb) "Service Area" or "Franchise Area" means the entire geographic area within the Town designated in a Franchise Agreement to receive cable service.
(cc) "State" means the State of California.
(dd) "Street" or "Public Right-of-Way" means each of the following which have been dedicated to the public or hereafter may be dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the Grantor shall permit to be included within the definition of street from time to time.
(ee) "Subscriber" means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with the Cable Communications System.
5.06.040 Grant of Franchise
(a) Grant. In the event that the Grantor shall grant to a Grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a Cable Communications System within the franchise area, or a renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as required by the provisions of this chapter and the Franchise Agreement or franchise grant ordinance.
Any franchise granted under the terms and conditions contained herein shall be consistent with Federal laws and regulations and State general laws regulations. In the event of conflict between the terms and conditions on which the Grantor can grant a franchise, the general law and/or statutory requirements shall, without exception, control.
Any franchise granted is hereby made subject to the general provisions now in effect or hereafter made effective pursuant to Section 5.06.040(1) of this chapter. Nothing in the franchise shall be deemed to waive the requirements of any other codes and ordinances of the Grantor regarding permits, fees to be paid or manner of construction.
(b) Franchise Required. No Cable Communications System shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise in accordance with the provisions of this chapter.
(c) Establishment of Franchise Requirements. The Grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, except as set forth in Section 5.06.040(1), but shall become applicable when the franchise is renewed.
(d) Authority to Grant Franchise. The Grantor may grant a franchise for all or any defined portion of the Town. The service area shall be the entire area defined in the Franchise Agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the Franchise Agreement.
(e) Use of Public Streets and Ways. For the purpose of operating and maintaining a Cable Communications System in the franchise area, and subject to the provisions of Section 5.06.070(j) herein, the Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the Cable Communications System. Prior to construction or alteration, however, the Grantee shall in each case file plans with the appropriate Grantor agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable Grantor construction codes and procedures.
(f) Term. The term of any new franchise or renewal and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the Franchise Agreement, unless terminated sooner as hereinafter provided.
(g) Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional franchises for a Cable Communications System as it deems appropriate, provided however, that such additional grants shall not operate directly to materially modify, revoke, reduce or terminate any rights previously granted to any Grantee.
(h) Franchise Applications. Applicants for a franchise shall submit to the Grantor written applications providing all information reasonably requested by the Grantor and including any application fees designated by the Grantor.
(i) Grant Procedure. All franchise applications when filed shall be available for public inspection at places designated by the Grantor. No later than ninety (90) days after any application has been received but no earlier than ninety (90) days after the effective date of this ordinance, one or more public hearings shall be held on the applications. A decision shall be made by the Grantor not later than ninety (90) days after the conclusion of all such public hearings based upon an evaluation of the application(s), the hearings, and other information that the Grantor may deem relevant. Grantor may grant a franchise to any applicant, or may decline to grant any franchise, based upon findings related to the public interest.
(j) Transfer of Ownership or Control.
- Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior written consent of the Grantor, and then only under such reasonable conditions as the Grantor may establish. Such consent as required by the Grantor shall be given or denied no later than ninety (90) days following any request, and shall not be unreasonably withheld.
- Ownership or Control. The Grantee shall promptly notify in writing the Grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of ten percent (10%) or more of the beneficial ownership interest of the Grantee. Every change, transfer, or acquisition of control of the Grantee shall make the franchise subject to cancellation unless and until the Grantor shall have consented in writing thereto, which consent shall be given or denied no later than ninety (90) days following any request, and shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Grantor may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the Grantor in any such inquiry.
The Grantor agrees that, in the event of a Grantee default in its financial obligations, any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one (1) year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the franchise to another Grantee. If the Grantor finds that such transfer after considering the legal, financial, character, technical and other public interest qualities of the applicant are satisfactory, the Grantor shall transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the Grantor to such transfer shall be given or denied no less than ninety (90) days after any request, and shall not be unreasonably withheld.
In seeking the Grantor's consent to any change in ownership or control, the Grantee shall have the responsibility:
a) To show to the satisfaction of the Grantor whether the proposed purchaser, transferee, or assignee (the "proposed transferee"), which in the case of a corporation, shall include all directors and all persons having a legal or equitable interest in five percent (5%) or more of its voting stock:
- Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to any violation of Federal, State or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts:
- Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or
- Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system.
(b) To establish, to the satisfaction of the Grantor, the financial solvency of the proposed transferee by submitting relevant current financial data for the proposed transferee. Financial statements shall be audited, certified and qualified by a Certified Public Accountant.
(c) To establish to the satisfaction of the Grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms.
- Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to any violation of Federal, State or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts:
The consent or approval of the Grantor to any transfer by the Grantee shall not constitute a waiver or release of the rights of the Grantor in and to the streets, and any transfer shall by its terms, be expressly subject to the terms and conditions of any franchise.
In the absence of extraordinary circumstances, the Grantor shall not approve any transfer or assignment of the franchise prior to completion of initial construction of the cable system.
In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the Franchise Agreement.
(k) Franchise Renewal. Franchise renewal shall be as prescribed by applicable law.
(l) Police Powers. In accepting a franchise, the Grantee acknowledges that its rights hereunder are subject to the police powers of the Grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the Grantor pursuant to such power, including but not limited to this chapter any amendments hereto. Any conflict between the provisions of this chapter and any other present or future lawful exercise of the Grantor's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any Cable Communications System franchise which contains provisions inconsistent with this chapter shall prevail only if upon such exercise the Grantor finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.
(m) Franchise Fee.
- Annual Franchise Payment. A Grantee of a franchise hereunder shall pay to the Grantor an annual fee in an amount as designated in the Franchise Agreement. Such payment shall commence as of the effective date of the franchise or any renewal date. The Grantor, on an annual basis, shall be furnished a statement within sixty (60) days of the close of the calendar year, either audited and certified by an independent Certified Public Accountant or certified by a financial officer of the Grantee, reflecting the total amounts of gross receipts and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's records, in accordance with Generally Accepted Accounting Procedures, and if such audit indicates a franchise fee underpayment of two percent (2%) or more, the Grantee shall assume all reasonable costs of such an audit.
- Acceptance by Grantor. No acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the Grantee.
- Failure to Make Required Payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, Grantee shall pay as additional compensation:
a) An interest charge, computed from such due date, at an annual rate equal to the average rate of return on invested funds of the Town during the period for which payment was due.
b) If the payment is late by forty-five (45) days or more, a sum of money equal to five percent (5%) of the amount due in order to defray those additional expenses and costs incurred by the Grantor by reason of delinquent payment.
- Franchise fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement.
(n) Forfeiture or Revocation.
- Grounds for Revocation. If the Grantee has been given due notice and a reasonable opportunity to cure, the Grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default under this chapter and a material breach of the franchise:
a) If the Grantee shall default in the performance of any of its material obligations under this chapter, the Franchise Agreement or under such other relevant agreements and terms and provisions entered into by and between the Grantor and the Grantee, subject to the provisions of Section 5.06.130(c).
b) If the Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds that may be required by the Franchise Agreement.
c) If any court of competent jurisdiction, or any Federal or State regulatory body by rules, decisions or other action determines that any material provision of the franchise, including this chapter and the Franchise Agreement is invalid or unenforceable prior to the commencement of the initial system construction.
d) If the Grantee ceases to provide all services for any reason within the control of the Grantee over the Cable Communications System.
e) If the Grantee willfully violates any of the material provisions of this chapter or the Franchise Agreement or attempts to practice any fraud or deceit upon the Grantor.
f) If the Grantee becomes insolvent, or upon seeking of an order for relief in favor of Grantee in a bankruptcy proceeding.
- Procedure Prior to Revocation.
a) The Grantor may make written demand that the Grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. In the event the stated violation is not reasonable curable within ninety (90) days, the franchise shall not be terminated or revoked, or damages assessed, if the Grantee provides within the said ninety (90) days a plan, satisfactory to the Grantor, to remedy the violation. If the failure, refusal or neglect of the Grantee continues for a period exceeding ninety (90) days following receipt of such written demand by the Grantor, the Grantor may place its request for termination of the franchise upon a regular Council meeting agenda for hearing thereon. At least twenty (20) days prior to the date of such meeting, the Grantor shall cause notice to be served upon such Grantee, a written notice of the intent to request such termination which contains the time and place of the meeting. In addition, notice of the meeting shall be published at least once, ten (10) days before such meeting in a newspaper of general circulation within the franchise area.
b) The Grantor shall hear any persons interested therein, and shall determine, within ninety (90) days after completion of the hearing, based upon the preponderance of the evidence, whether the Grantee has committed a material breach of this chapter or the Franchise Agreement and, if so, whether such breach was willful.
c) If the Grantor determines that the Grantee has willfully committed a material breach, then the Grantor may, by resolution, declare that the franchise of such Grantee shall be terminated and security fund and bonds forfeited, or the Grantor may, at its option and if the material breach is capable of being cured by the Grantee, direct the Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the Grantor shall determine are reasonable under the circumstances and declare termination if Grantor determines that remedial action is not fully completed or Grantor may take such further action as it deems appropriate and which is not otherwise prohibited by law.
(o) Procedures in the Event of Termination or Expiration.
- Disposition of Facilities. In the event a franchise expires, is revoked, or otherwise terminated, the Grantor may order the removal of the above-ground system facilities from the franchise area within a reasonable period of time as determined by the Grantor or require the original Grantee to maintain and operate its cable system for a period not to exceed twenty-four (24) months as indicated in (4) below.
- Restoration of Property. In removing its plant, structures, and equipment, the Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee's removal of its equipment without affecting the electrical or telephone cable wires, or attachments. The liability, indemnity and insurance, and the security fund and bonds provided shall continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this Section.
- Restoration by Grantor, Reimbursement of Costs.
In the event of a failure by the Grantee to complete any work required by Subsection (1) above and/or Subsection (2) above, or any other work required by Grantor by law or ordinance, within ninety (90) days after receipt of written notice, and to the satisfaction of the Grantor, the Grantor may cause such work to be done and Grantee shall reimburse the Grantor the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the Grantor may recover such costs through the security fund or bonds provided by Grantee. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.
- Extended Operation. Upon either the expiration or revocation of a franchise, the Grantor may require the Grantee to continue to operate the Cable Communications System for a defined period of time not to exceed twenty-four (24) months from the date of such expiration or revocation. The Grantee shall, as trustee for its successor in interest, continue to operate the Cable Communications System under the terms and conditions of this chapter and the Franchise Agreement and to provide the regular cable service and any of the other services that may be provided at that time. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.
- Grantor's Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the Grantor under any provision of law.
(p) Receivership and Foreclosure.
- Any franchise granted shall, at the option of the Grantor, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
a) Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the franchise; and
b) Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the Court having jurisdiction on the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise Agreement.
- In the case of a foreclosure or other involuntary sale of the plant, property and equipment of the Grantee, or any part thereof, the Grantor may serve notice of termination upon the Grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless:
a) The Grantor shall have approved the transfer of the franchise, as and in the manner in this chapter provided; and
b) Such successful purchaser shall have covenanted and agreed with the Grantor to assume and be bound by all the terms and conditions of the Franchise Agreement.
(q) Franchise Processing Costs. For either a new franchise grant, a franchise renewal or a transfer, the Grantee shall reimburse the Grantor for all out-of-pocket processing costs, which shall include, but shall not be limited to, costs of publications of notices, development and publication of relevant franchise ordinances and agreements, and any cost not covered by the application fees, incurred by the Grantor in its study and evaluation of applications, including, but not limited to consultant and attorney fees.
These franchise processing costs are over and above the construction inspection and permit fees specified in Section 5.06.070(k) and the franchise fee specified in Section 5.06.070(k) herein.
5.06.050 Regulation of Franchise
(a) Regulatory Authority. The Grantor shall exercise regulatory authority under the provisions of this chapter and applicable law. If the franchise area served by the Cable Communications System also serves other contiguous or neighboring communities, Grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.
(b) Regulatory Responsibility. The Grantor, acting alone or acting jointly with other Public Agencies acting in the capacity of Grantor, may exercise or delegate the following regulatory responsibility:
- Administering and enforcing the provisions of the Cable Communications System franchise(s)
- Coordination of the operation of Public, Educational and Government (PEG) Access channel and facilities
- Providing technical, programming and operational support to public agency users, such as government departments, schools and health care institutions
- Establishing jointly with the Grantee, or as otherwise specified in the Franchise Agreement, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any Franchise Agreement
- Planning expansion and growth of public benefit cable services
- Analyzing the possibility of integrating cable communications with other local, State or national telecommunications networks
- Formulating and recommending long-range public telecommunications policy
(c) PEG Access. If so specified in the Franchise Agreement, the Grantor may utilize a portion of the Cable Communications System capacity, and associated facilities and resources, to develop and provide non-commercial public, educational and government (PEG) cable services that will be in the public interest. In furtherance of this purpose, the Grantor may establish a commission, public corporation, or other entity to receive and allocate facilities, support funds and other considerations provided by the Grantor, the Grantee, and/or others. Such an entity, if established, may be delegated the following responsibilities:
- Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and
other support provided specifically for public usage of the Cable Communications System.
- Review the status and progress of each service developed for public benefit.
- Reallocate resources jointly with the Grantee on a periodic basis to conform with changing priorities and public needs.
- Report to the Grantor and the Grantee annually on the utilization of resources, the new public services developed and the benefits achieved for the Grantor and its residents.
(d) Public Access Management.
- The Grantor may delegate the responsibility for public access management to a non-profit entity which may include, but not be limited to, any of the following:
a) A nonprofit public corporation.
b) A commission or committee, appointed by Grantor, and representing a broad spectrum of the community.
c) An established nonprofit entity with special cablecasting capability, such as a local or regional community college.
- Functions. The entity designated to manage public access may be delegated the following functions:
a) Responsibility for program production for and management of any public access facilities designated in the Franchise Agreement for community-based programming.
b) To assure that the public access facilities are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis.
c) To assure that no censorship or control over program content of the public access exists except as necessary to comply with federal prohibition of material that is illegal.
d) To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the public access facilities.
e) To prepare, in conjunction with the Grantee, such regular or special reports as may be required or desirable.
f) To hire and supervise staff.
g) To make all purchases of materials and equipment that may be required.
h) To develop sources of funding, such as foundation or Federal or State grants, to further community programming.
i) To establish budgets, on an annual basis, and utilize funds and resources received for the purpose of public access programming and cablecasting.
- Reports to Grantor. The public access management entity shall provide a report to the Grantor and the Grantee, at least annually, indicating achievements in community-based programming and services.
(e) Reservation by Grantor. The Grantor reserves the right, at its discretion, from time to time, to determine if the entity described in Section 5.06.050(d) above is performing its purposes in a manner satisfactory to the Grantor, and if it is not, the Grantor may receive and reallocate all of a portion of the channel capacity, operations appropriation or any other responsibilities or functions, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in Section 5.06.050(d).
(f) Rates. The Grantee shall establish rates for its services that must be applied fairly and uniformly to all subscribers in the franchise area. The Grantor retains the right to institute rate regulation to the extent permitted by applicable law, and to reinstitute such regulation in the event that currently preemptive deregulation ceases to exist.
(g) Annual Review of Performance and Quality of Service. At Grantor's sole option, within ninety (90) days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, the Grantor may hold a public hearing at which the Grantee shall be present and shall participate, to review the performance and quality of service of the Cable Communications System. The reports required in Section 5.06.140 regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered.
- Within thirty (30) days after the conclusion of the public hearing, Grantor shall issue a report with respect to the adequacy of system performance and quality of service. If inadequacies are found, Grantor may direct Grantee to correct the inadequacies within a reasonable period of time.
- Failure of Grantee, after due notice, to correct the inadequacies shall be considered a breach of the franchise, and Grantor may, at its sole discretion, exercise any remedy within the scope of this chapter considered appropriate.
(h) System and Services Review. To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established:
- At Grantor's sole option, the Grantor may hold a public hearing within ninety (90) days of the first anniversary of the effective date of each Franchise Agreement at which the Grantee shall be present and shall participate, to review the cable communications system and services. Subsequent system and services review hearings may be scheduled by the Grantor on an annual basis thereafter.
- Sixty (60) days prior to the scheduled system and services review hearing, Grantee shall submit a report to Grantor indicating the following:
a) All cable system services reported in cable industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstrations, to communities in the State of California with comparable populations, that are not provided to the Grantor.
b) Any specific plans for provision of such new services by the Grantee, or a justification indicating why Grantee believes that such services are not feasible for the franchise area.
- Topics for discussion and review at the system and services review hearing shall include but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in the law, and regulatory constraints.
- Either the Grantor or the Grantee may select additional topics for discussion at any review hearing.
- Not later than sixty (60) days after the conclusion of each system and service review hearing, Grantor shall issue a report, including specifically a listing of any cable services not then being provided to the Grantor that are considered technically and economically feasible. Grantor may request Grantee to provide such services within a reasonable time, under reasonable rates and conditions.
5.06.060 General Financial and Insurance Provisions
(a) Construction Bond.
- Within thirty (30) days after the granting of a new franchise, or a renewal which requires significant system construction, and prior to the commencement of any construction work by the Grantee, the Grantor may require the Grantee to file a construction bond in the amount specified in the Franchise Agreement in favor of the Grantor and any other person who may claim damage as a result of the breach of any duty by the Grantee assured by such bond.
- Such bond as contemplated herein shall be in the form approved by the Grantor and shall, among other matters, cover the cost of removal of any properties installed by the Grantee in the event said Grantee shall default in the performance of its franchise obligation.
- In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages.
- Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and/or the security fund specified, respectively in Sections 5.06.060(b) and 5.06.060(c).
- Upon completion of construction, any construction bonds then in force shall be released.
(b) Performance Bond.
- In addition to the construction bond set forth above, the Grantee may be required, at least thirty (30) days prior to the commencement of operation, to file with the Grantor a performance bond in the amount specified in the Franchise Agreement in favor of the Grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the Cable Communications System operated under the Franchise Agreement and including the payments required to be made to the Grantor hereunder.
- Such bond as contemplated herein shall be in the form approved by the Grantor and shall among other matters cover the cost of removal of any properties installed by the Grantee in the event said Grantee shall default in the performance of its franchise obligation.
- In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages.
- Grantor, at its sole option, may waive this requirement, or permit consolidation or the performance bond with the construction bond and/or the security fund specified, respectively in Sections 5.06.060(a) and 5.06.060(c).
(c) Security Fund.
- Within thirty (30) days after the effective date of the franchise, the Grantee shall deposit into a bank account, established by the Grantor and maintain on deposit through the term of this franchise, the sum specified in the Franchise Agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the Grantor having jurisdiction over its acts or defaults under this chapter, and the payment by the Grantee of any claims, liens and taxes due the Grantor which arise by reason of the construction, operation or maintenance of the system.
Subject to the provisions of (4) below, the security fund may be assessed by the Grantor for purposes including, but not limited to, the following:
a) Failure of Grantee to pay Grantor sums due under the terms of the franchise.
b) Reimbursement of costs borne by the Grantor to correct franchise violations not corrected by Grantee, after due notice.
c) Monetary remedies or damages assessed against Grantee due to default or violation of franchise requirements.
- At Grantor's sole option, some portion or all of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.
- Within thirty (30) days after notice to it that any amount has been withdrawn by the Grantor from the security fund pursuant to Subsection (1) of this Section, the Grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the Franchise Agreement.
- If the Grantee fails, after thirty (30) days written notice to pay to the Grantor any franchise fee or taxes due and unpaid; or, fails to pay to the Grantor within such thirty (30) days, any damages, costs or expenses which the Grantor shall be compelled to pay by reason of any act or default of the Grantee in connection with the franchise; or fails, after thirty (30) days notice of such failure by the Grantor to comply with any material provision of the franchise which the Grantor reasonably determines can be remedied by an expenditure of the security fund, the Grantor may thereafter withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the Grantor shall notify the Grantee of the amount and date thereof.
- The security fund deposited pursuant to this Section shall become the property of the Grantor in the event that the franchise is revoked for cause by reason of the default of the Grantee in accordance with the procedures of Section 5.06.040(n) above. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety (90) days after the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the Grantee. The Grantee shall be entitled to any interest earned on the cash portion of the security fund. Such interest shall be paid to Grantee as it is accrued.
- The rights reserved to the Grantor with respect to the security fund are in addition to all other rights of the Grantor whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right the Grantor may have.
- The Grantee shall by acceptance of any franchise granted indemnify, defend (with attorneys approved by the Town), and hold harmless the Grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages or other relief, costs and attorneys' fees in any way arising out of or through or alleged to arise out of or through:
a) The act of the Grantor in granting the franchise; and
b) The acts or omissions of Grantee, its servants, employees, or agents including, but not limited to, any failure or refusal by Grantee, its servants, employees or agents to comply with any obligation or duty imposed on Grantee by this chapter or the Franchise Agreement.
c) The exercise of any right or privilege granted or permitted by this chapter or the Franchise Agreement. Such idemnification shall include, by no be limited to, all claims arising in tort, contract, infringements of copyright, violations of statutes, ordinances or regulations or otherwise.
- In the event any such claims shall arise, the Grantor or any other indemnified party shall tender the defense thereof to the Grantee. provided, however, that the Grantor in its sole discretion may participate in the defense of such claims, and in such event, Grantee shall not agree to any settlement of claims without Grantor approval.
- The Grantee shall not be required to indemnify the Grantor for the negligent or willful misconduct which is attributed solely and exclusively to Grantor's officials, boards, commissions, agents, or employees.
- The Grantee shall maintain throughout the term of the franchise, insurance in amounts at least as follows:
a) Worker's Compensation Insurance. In such coverage as may be required by the worker's compensation insurance and safety laws of the State of California and amendments thereto.
b) Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the Franchise Agreement.
c) Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, nonownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the Franchise Agreement.
- The Grantee shall furnish the Grantor with copies of such insurance policies or certificates of insurance.
- Such insurance policies provided for herein shall name the Grantor, its officers, boards, commissions, agents, and employees as additional insured, and shall be primary to and not contributing with any insurance carried by Grantor, and shall contain the following endorsement:
"It is hereby understood and agreed that this insurance policy may not be canceled by the surety nor the intention not to renew be stated by the surety until thirty (30) days after receipt by the Town by registered mail or written notice of such intention to cancel or not renew."
- The minimum amounts set forth in the Franchise Agreement for such insurance shall not be construed to limit the liability of the Grantee to the Grantor under the franchise issued hereunder to the amounts of such insurance.
- All insurance carriers providing coverage under (1) above shall be satisfactory to Grantor and duly licensed to operate in the State of California.
5.06.070 Design and Construction Provisions
(a) System Design. The Cable Communications System shall be construed in accordance with the design requirements contained in the Franchise Agreement.
(b) Geographical Coverage. The Grantee shall design and construct the cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school and public agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the Franchise Agreement. Cable system construction and provision of service shall be non-discriminatory, and Grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference.
(c) Cablecasting Facilities. The Grantee shall provide cablecasting facilities in accordance with the requirements of the Franchise Agreement.
(d) System Construction Schedule.
- The Grantee shall comply with the requirements of the system construction schedule contained in the Franchise Agreement.
- The Grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the Grantee shall update this information on a monthly basis, by submitting a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reason for any delay.
(e) Remedies for Delay in Construction. The Grantor may at its sole option, apply any or all of the remedies in connection with delays in system construction as specified in Section 5.06.130 herein.
(f) Provision of Service. After service has been established by activating trunk and distribution cables for any area, the Grantee shall provide service to any requesting subscriber within that area within thirty (30) days from the date of request.
(g) Undergrounding of Cable. The undergrounding of cable is encouraged. In any event, cables shall be installed underground at Grantee's cost where utilities are already underground, or where required by law. Previously installed aerial cable shall be undergrounded and relocated in concert with other utilities, when such other utilities convert from aerial to underground construction.
(h) New Development Undergrounding. In cases of new construction or property development where utilities are to be placed underground, upon request by the Grantee, the developer or property owner shall give Grantee at least seventy-two (72) hours notice of the particular date on which open trenching will be available for Grantee's installation of conduit, pedestals and/or vaults to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or vaults within five (5) working days of the date of the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period, the cost of new trenching is to be borne by Grantee. Costs and expenses, in any event, are not to be borne by Grantor.
(i) Underground at Multiple-Dwelling Units. In cases of multiple dwelling units serviced by aerial utilities, Grantee shall make every effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit.
(j) Street Occupancy.
- Grantee shall utilize existing poles, conduits and other facilities wherever possible and economically feasible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately-owned property until the written approval of the Grantor is obtained.
- Except in situations requiring emergency repairs, Grantee shall notify the Grantor at least ten (10) days prior of the intention of the Grantee to commence any construction in any streets. The Grantor will cooperate with the Grantee in granting any permits required, providing such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances and codes of the Grantor.
- All transmission lines, equipment and structure shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and all times, shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The Grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the Grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.
- Grantee shall, at its own expense, and in a manner approved by the Grantor, restore to Grantor's standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf.
- Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the Grantee's facilities, no charge shall be made by the Grantee against the Grantor for restoration and repair.
- Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the Grantor.
- Upon receipt of thirty (30) days written notice, the Grantee at its own expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the Grantor the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, separation, improvement, widening, relocation or realignment, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement including but not limited to movement of buildings, redevelopment, or any general program under which the Grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing hereunder shall be deemed a taking of the property of Grantee; and Grantee shall be entitled to no surcharge or reimbursement by reason of anything hereunder unless any such action is provided solely for the benefit of a private party.
- After receipt of thirty (30) days written notice, upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed and to the satisfaction of the Grantor, the Grantor may, at its option, cause such work to be done and the Grantee shall pay to the Grantor the cost thereof in the itemized amounts reported by the Grantor to Grantee within thirty (30) days after receipt of such itemized report.
- The Grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the Grantor.
- Grantor reserves the right to require conduit for underground cabling in special areas.
(k) Construction and Technical Standard
- Construction Standards.
(a) Grantor Codes and Permits. Grantee shall comply with all applicable Grantor construction codes and permit procedures. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction of the cable system.
(b) Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of Federal and State Occupational Safety and Health Acts and any amendments thereto as well as all State and local codes where applicable.
(c) Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended, and all applicable State and local codes.
(d) Antennas and Towers. Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R.S.222-A specifications, provisions of the Uniform Building code, as adopted by the Town.
(e) Compliance with Aviation Requirements. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable State or local codes and regulations.
(f) Construction Standards and Requirements. All of the Grantee's plant and equipment, including but not limited to, the antenna site, headend and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.
(g) Safety, Nuisance, Requirements. The Grantee shall at all times employ professional care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.
- Technical Standards. The Cable Communications System shall meet all technical and performance standards contained in the Franchise Agreement.
- Test and Compliance Procedure. The Grantee shall submit, within sixty (60) days after the effective date of the Franchise Agreement, a detailed test plan describing the methods and schedules for testing the Cable Communications System on an ongoing Basis to determine compliance with the provisions of the Franchise Agreement. The tests for Basic Cable Services shall be performed at intervals no greater than twelve (12) months. The tests may be witnessed by representatives of the Grantor, and written test reports shall be submitted to the Grantor.
- Special Tests. At any time after commencement of service to subscribers the Grantor may require additional tests, full or partial repeat rests, different test procedures, or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The Grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber.
- Costs of Tests. The cost of all tests required by (3) and (4) above, and retesting as necessary, shall be borne by the Grantee.
(l) Area-wide Interconnection.
- Interconnection. The Grantor may request Grantee to interconnect public usage channels of the Cable Communications System with any or all other cable systems in adjacent areas. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link satellite, or other appropriate method.
- Interconnection Procedure. Upon receiving the request of the Grantor to interconnect, the Grantee shall immediately initiate negotiations with the other affected system or systems, and shall report to the Grantor the results of such negotiation no later than sixty (60) days after initiation.
- Relief. The Grantee may be granted reasonable extensions of time to interconnect or the Grantor may rescind its request to interconnect upon petition by the Grantee to the good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable financial burden upon the Grantee and/of its subscribers.
- Cooperation Required. The Grantee shall cooperate with any interconnection corporation, regional interconnection authority or Town, County, State or Federal regulatory agency which may be hereafter established for the purpose of regulation, financing, or otherwise providing for the Interconnection of cable systems beyond the boundaries of the franchise area.
- Initial Technical Requirements to Assure Future Interconnection Capability.
(a) Every Grantee receiving a franchise to operate a Cable communications System within the franchise area shall use the same frequency allocations for commonly provided television signals so far as is technically and economically feasible.
(b) Grantee shall make a reasonable effort to provide local origination and access equipment that is compatible throughout the area served by the cable system.
5.06.080 Service Provisions
(a) Reduction in Services. Services provided by Grantee shall not be reduced without at least thirty (30) days prior notification to Grantor and subscribers.
(b) Public, Educational and Government (PEG) Access Facilities. The Grantee shall provide the PEG access facilities, including channel capacity, necessary interface equipment and cabling, to permit operation as specified in the Franchise Agreement.
(c) Cable Channels for Commercial Use. The Grantee shall designate channel capacity for commercial use as required by applicable law.
(d) Universal Connection. In order to provide a service related to the public health, safety or welfare, the Grantor may require that Grantee allow for all dwelling units within the franchise area to be connected physically to the cable system by the Grantee by means of installation by Grantee of drop cables terminating at each dwelling unit, whether or not the dwelling unit's occupants desire to subscribe to cable service. The cost and charges shall be determined by the Grantor at the time such connection is required. Grantee shall be entitled to recover the incremental cost of providing a universal connection.
5.06.090 Consumer Protection
(a) Consumer Service Standards. The Grantee shall maintain a local office to provide the necessary facilities, equipment and personnel to comply with the following consumer standards under normal conditions of operation:
- Sufficient toll-free telephone line capacity during normal business hours to assure that a minimum of ninety percent (90)%) of all callers for service will not be required to wait more than three (3) minutes before being connected to a service representative.Z
- Emergency toll-free telephone line capacity on a twenty-four (24) hour basis, including weekends and holidays.
- A business and service office, within the Town, open during normal business hours and at least four (4) additional hours per week during evenings and weekends, and adequately staffed to accept subscriber payments and respond to service requests and complaints.
- An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunction of a twenty-four (24) hour basis.
- An installation staff, capable of installing service to any subscriber within seven (7) days after receipt of a request, in all areas where trunk and feeder cable have been activated.
- Grantee shall schedule, within a specified four (4) hour time period, all appointments with subscribers for installation or service.
(b) Requests for Cable Service and Repairs.
- The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during period of minimum use of the system, preferably between midnight and six A.M. (6:00 A.M.). A written log or an equivalent stored in computer memory and capable of access and reproduction, shall be maintained for all service interruptions and requests for cable service resulting in a service call as required by Section 5.06.140(e) herein.
- The Grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:
(a) System outage: Within two (2) hours, including weekends, of receiving subscriber calls which by number identify a system outage of sound or picture of one (1) or more channels, affecting at least ten percent (10%) of the system subscribers.
(b) Isolated outage: Within twenty-four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one (1) or more channels, for an individual subscriber.
(c) Inferior reception quality: Within forty-eight (48) hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality, for an individual subscriber.
Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival; provided Grantee makes three attempts to contact the subscriber to set a convenient time to respond to the service request.
No charge shall be made to the subscriber for any service call unless the service request can be demonstrated to be both repeated and non-cable system in origin, or to involve subscriber negligence.
(c) Verification of Compliance. Upon reasonable notice, the Grantee shall demonstrate compliance with any or all of the standards required in Sections (a) and (b) above. The Grantee shall provide sufficient detail to permit the Grantor to verify the extent of compliance.
(d) Non-compliance with Standards. A repeated and verifiable pattern of non-compliance with the consumer protection standards of Section (a) and (b), after Grantee receipt of due notice and an opportunity to cure, may be termed a breach of the franchise, subject to any and all remedies as prescribed in Section 5.06.130 herein and applicable law.
(e) Complaint Procedure.
- Complaints to Grantee. Grantee shall establish written procedures for receiving, and acting upon the resolving subscriber complaints without intervention by the Grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing that Grantee has violated any provision of this chapter, or the terms and conditions of the subscriber's contract with Grantee. At the conclusion of Grantee's investigation of a subscriber complaint, but in no event more than ten (10) days after receiving the complaint, Grantee shall notify the subscriber and its proposed action or resolution, if any. The Grantee shall also notify the subscriber of the subscriber's right to file a complaint with the Grantor in the event the subscriber is dissatisfied with the Grantee's decision. Grantee's procedures shall be filed with the Grantor. No other proceedings to resolve subscriber complaints shall be undertaken until the procedure established by this section has been exhausted.
- Complaints to Grantor. A subscriber who is sent dissatisfied with Grantee's proposed decision or who was not sent a written decision within the ten (10) day period shall be entitled to have the complaint reviewed by the Grantor. The subscriber shall initiate the review by filing a written complaint together with Grantee's written decision, if any, with the Grantor and by the Grantor notifying the Grantee of the filing. The subscriber shall make such filing and notification within twenty (20) days of receipt of Grantee's decision or, if no Grantee decision has been provided, within thirty (30) days after filing the original complaint with Grantee. The Grantor may extend these time limits for reasonable cause.
(f) Review by the Grantor. The Grantor shall determine, solely upon a review of a subscriber complaint and the Grantee's decision, if any, whether further action is warranted. In the event the Grantor does not initiate further proceedings within fifteen (15) days of the filing of the complaint, the Grantee's proposed action or resolution shall be final. If the Grantor decides to initiate further investigation, the Grantor shall require the Grantee and the subscriber to submit, within ten (10) days of notice thereof, a written statement of the facts and arguments in support of their respective positions. The Grantee or the subscriber may request in such statement that a hearing be conducted by the Grantor. A hearing if requested shall be conducted by the Grantor following notice in writing specifying the time and place for such hearing. The hearing shall be conducted informally, and the parties may offer any evidence pertinent to the dispute. The parties shall produce any additional evidence, including testing reports from the Grantee, which the Grantor may deem necessary to an understanding and determination of the dispute. The Grantor shall issue a written decision within fifteen (15) days of the receipt of the written statements or, if a hearing is requested, within fifteen (15) days of the conclusion of the hearing, setting forth the basis for the decision. The decision may be appealed to the Town Council.
(g) Escrow Account. The Grantor may establish an escrow account wherein a subscriber may deposit a disputed portion of the subscriber's monthly service charge. If a subscriber either continues to make full and timely payment of all monthly service charges to Grantee or deposits any disputed portion of such monthly service charges to said escrow account, Grantee shall not discontinue service during the pendency of a complaint submitted under the provisions of this chapter. Any amounts deposited in the escrow account shall be paid to the Grantee or subscriber in accordance with the final determination of a complaint.
(h) Remedies for Violations. The Grantor may, as a part of a subscriber complaint decision issued under the provisions of this chapter, impose damages on the Grantee as specified in the Franchise Agreement. Damages may be imposed only if the Grantor finds that the Grantee has arbitrarily refused or failed without justification to comply with the provisions of this Section.
- Operating Policies. As subscribers are connected or reconnected to the cable system, and at least once annually thereafter, the Grantee shall provide each subscriber with written information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and also furnish information concerning the Grantor office responsible for administration of the franchise with the name and telephone number of the office. The notice shall also indicate Grantee's business hours, legal holidays and procedures for responding to inquiries after normal business hours.
The Grantee shall provide all subscribers and the Grantor written notice no less than thirty (30) days prior to any proposed change in these policies.
- Rates and Services. The Grantee shall provide all subscribers and the Grantor with at least thirty (30) days written notice prior to the implementation of any change in rates or programming services.
- Copies to Grantor. Copies of all notices provided to subscriber shall be filed concurrently with the Grantor.
(j) Quality of Service. The overall quality of service provided by Grantee to subscribers may be subject to evaluation by Grantor, not less often than once annually , in conjunction with the annual review set forth in Section 5.06.050(g). In addition, Grantor may evaluate the quality of service at any time, based upon the number of subscriber complaints received by the Grantee and the Grantor, and Grantee's response to those complaints. Grantor's evaluation that service quality is inadequate may lead to direction to Grantee to cure the inadequacies. Grantee shall commence corrective action within thirty (30) days after receipt of written notice. Failure to do so shall be deemed to be a breach of the franchise and subject to the remedies prescribed in Section 5.06.130. Grantor, after following the procedures prescribed herein, may utilize the performance bond and/or security fund of Sections 5.06.130(b) and 5.06.060(c), respectively, to remedy any such franchise breach.
(k) Tenant Rights. It is Grantor's intent that tenants not be discriminated against in the ability to subscribe to cable services. Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by Grantee, to the following:
- To Grantee's providing the service to units of the facility;
- To reasonable conditions and time for installation, maintenance, and inspection of the system on the facility premises;
- To reasonable conditions promulgated by Grantee to protect Grantee's equipment and to encourage widespread use of the system; and
- To not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not.
(l) Grantee Rules and Regulations. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its obligations under the franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations terms and conditions shall not be in conflict with the provisions hereof or applicable State and Federal laws, rules and regulations.
(m) Rights of Individuals.
- Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, PEG access channel users, or general citizens on the basis of income, race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations, and all executive and administrative orders relating to non-discrimination which are hereby incorporated and made part of this chapter by reference.
- Grantee shall strictly adhere to the equal employment opportunity requirements of Federal, State and local law and regulations in effect on the date of the franchise grant, and as amended from time to time.
- The Grantee's policy with regard to personally identifiable information shall be consistent with Federal law.
- Fairness of Accessibility. The entire system of the Grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies and other entities having a legitimate use for the system, and no one shall be arbitrarily excluded from its use.
(n) Continuity of Service Mandatory.
- It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the system, or the Grantor gives notice of intent to terminate or fails to renew this franchise, the Grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service.
In the event of a change of Grantee, or in the event a new operator acquires the system, the original Grantee shall cooperate with the Grantor, new Grantee or operator in maintaining continuity of service to all subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system.
- In the event Grantee fails to operate the system for seven (7) consecutive days without prior approval of the Grantor or without just cause, the Grantor may, at its option, operate the system or designate an operator until such time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the Grantor is required to fulfill this obligation for the Grantee, then during such period as the Grantor fulfills such obligation, the Grantor shall be entitled to collect all revenues from the system, and the Grantee shall reimburse the Grantor for all reasonable costs or damages in excess of the revenues collected by the Grantor that are the result of the Grantee's failure to perform.
(o) Identification of Employees. Every employee of the Grantee or its contractors or subcontractors shall be clearly identified on sight to the public as a representative of the Grantee. Every vehicle of the Grantee or its contractors or subcontractors shall be similarly identified. The Grantee's telephone number shall also be clearly marked on all such vehicles.
(a) Books and Records. The Grantor, upon reasonable notice, shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, service complaint logs, performance test results and other like materials of the Grantee which relate to the operation of the franchise and are maintained at the local office required by Section 5.06.090(a), provided that the Grantor shall to the extent required and subject to the limitations provided by law, maintain the confidentiality of any trade secrets or other proprietary information in the possession of the Grantee and provided further, that records or applicable portions thereof shall be exempt from inspection pursuant to this section to the extent required by applicable law regarding subscriber privacy and to the extent such records are protected by law regarding subscriber privacy and to the extent such records are protected by law against discovery in civil litigation, subject to such requirements and limitations and rights in Grantor as provided by law.
5.06.100 Operation and Maintenance
If any of such books or records are not kept in the local office, or upon reasonable request made available to the Grantor, and if the Grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of Grantor's duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by Grantee.
(b) Records Required.
- In any event the Grantee shall at all times maintain:
a) The complaint file required by Section 5.06.140(e), herein.
b) A full and complete set of plans, records and "as-built" maps showing the exact location of all Cable Communications System equipment installed or in use in the franchise area, exclusive of subscriber service drops.
5.06.110 Rights Reserved to the Grantor
(a) Right of Inspection of Construction. The Grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law.
(b) Right of Intervention. The Grantor shall have the right of intervention in any suit or proceeding involving the cable system franchise to which the Grantee is party, and the Grantee shall not oppose such intervention by the Grantor.
5.06.120 Rights Reserved to the Grantee
(a) Right of Grantee. In the event of any dispute between Grantee and Grantor over this chapter or the Franchise Agreement, or with respect to any rights or obligations arising therefrom, Grantee shall first pursue and exhaust all available administrative remedies. Thereafter Grantee may pursue any appropriate legal action.
5.06.130 Franchise Violations
(a) Remedies for Franchise Violations. If the Grantee fails to perform any material obligation under the franchise, or fails to do so in a timely manner, the Grantor may at its option, and in its sole discretion;
- Assess against the Grantee monetary damages up to the limits established in the Franchise Agreement for material franchise violations, said assessment to be levied against the security fund, hereinabove provided, and collected by Grantor after completion of the procedures specified in Section 5.06.130(b). The amount of such assessment shall be deemed to represent liquidated damages actually sustained by Grantor by reason of Grantee's failure to perform. Such assessment shall not constitute a waiver by the Grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from Grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by Grantor by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart form Grantor's right to enforce the provisions of the construction and performance bonds provided for in Section 5.06.060, and is intended to provide compensation to Grantor for actual damages.
- Terminate the franchise, for any of the causes stated in Section 5.06.040, above.
- No remedy shall be imposed by Grantor against Grantee for any violation of the franchise without Grantee being afforded due process of law, as provided for in Section 5.06.130(b), below.
Grantor may impose any or all of the above enumerated measures against Grantee, which shall be in addition to any and all other legal or equitable remedies it has under the franchise or under any applicable law.
(b) Procedure for Remedying Franchise Violations. In the event that the Grantor determines that the Grantee has violated any material provision of the franchise, the Grantor may make a written demand on the Grantee that it remedy such violation. If the violation is not remedied, or in the process of being remedied, to the satisfaction of the Grantor within thirty (30) days following such demand, the Grantor shall determine whether or not such violation by the Grantee was excusable or inexcusable, in accordance with the following procedure:
- An administrative hearing shall be held to review the alleged violation. If this hearing does not result in a satisfactory resolution, and/or the Grantee requests a public hearing, then a public hearing shall be held, and the Grantee shall be provided with an opportunity to be heard upon thirty (30) days written notice to the Grantee of the time and the place of the hearing provided and the allegations of franchise violations.
- If, after notice is given and, at the Grantee's option, a full public proceeding is held, the Grantor determines that such violation by the Grantee was excusable as provided in Section (c) below, the Grantor shall direct the Grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the Grantor may reasonably direct.
- If, after notice is given and, at the Grantee's option, a full public proceeding is held, the Grantor determines that such violation was inexcusable, then the Grantor may impose a remedy in accordance with Section (a), above.
(c) Force Majeure; Grantee's Inability to Perform. In the event Grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified Grantor in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond Grantee's reasonable control and not reasonably foreseeable shall include, but shall not be limited to, Acts of God and civil emergencies.
Grantor and Grantee, in the Franchise Agreement, may mutually define those conditions deemed subject to force majeure application.
(a) Annual Reports. Within one hundred twenty (120) days after the close of Grantee's fiscal year, the Grantee may be required to submit a written annual report, in a form requested by the Grantor, including, but not limited to, the following information:
- A summary of the previous year's (or, in the case of the initial report year, the initial year's) activities in development of the cable system, including, but not limited to, services begun or discontinued during the reporting year, and the number of subscribers for each class of service.
- A revenue statement, audited by an independent Certified Public Accountant, or certified by an officer of the Grantee.
- A statement of projected construction, if any, for the next two (2) years;
- A list of Grantee's officers, members of its board of directors, and other principals of Grantee;
- A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in the grantee and its parent, subsidiary and affiliated corporations and other entities, if any, unless the parent is a public corporation whose annual reports are publicly available.
(b) Plant Survey Report. At the Grantor's request, Grantee shall submit to the Grantor a plant survey report which shall be a complete survey of the Grantee's plans and a full report thereon. Said report shall include, but not be limited to, a description and "as-built" maps of the portions of the franchise area that have been cabled and have all services available, an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such requirements, including supervision, as the Grantor may prescribe. Said report shall be in sufficient detail to enable the Grantor to ascertain that the service requirements and technical standards of the franchise are achieved and maintained. If Grantor has reason to believe that portions or all of the system do not meet the technical standards incorporated into the Franchise Agreement, at Grantor's request, but no more often than once per three (3) years, the Grantee and the Grantor shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable system. The cost of such evaluation shall be borne equally by the Grantee and the Grantor.
(c) Copies of Federal and State Reports. The Grantee may be required to submit to the Grantor copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the Grantee to, as well as copies of all decisions, correspondence and actions by, any Federal, State and local courts, regulatory agencies and other government bodies relating to its cable television operations within the franchise area. Grantee shall submit such documents to the Grantor no later than thirty (30) days after receipt of a Grantor request. The Grantee hereby waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of Federal or State agencies. Such confidential data exempt from public disclosure shall be retained in confidence by the Grantor and its authorized agents and shall not be made available for public inspection subject to applicable requirements and limitations prescribed by law.
(d) Public Reports. If public reports are issued, a copy of each of Grantee's annual and other periodic public financial reports and those of its parent, subsidiary and affiliated corporation and other entities, as the Grantor requests, shall be submitted to the Grantor within thirty (30) days after receipt of a request.
(e) Complaint File and Reports. An accurate and comprehensive file shall be kept by the Grantee of any and all complaints regarding the cable system which result in a service call. A procedure shall be established by the Grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the Grantor. Complete records of Grantee's actions in response to all complaints shall be kept. These files and records shall remain open to the public during normal business hours, so that individuals are able to inspect their own files.
- A summary of service requests, identifying the number and nature of the requests and their disposition, upon Grantor request, shall be completed for each month and submitted to the Grantor by the tenth day of the succeeding month.
- A log and summary of all service interruptions.
- If requested by the Grantor, the results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with cable communications services offered by the Grantee shall be submitted to the Grantor no later than two (2) months after the end of Grantee's fiscal year. The surveys required to make said report shall be in a form that can be transmitted to subscribers with one (1) or more bills for service, such as postage-paid self-addressed post cards. At the Grantor's option, the Grantor may prepare the survey form and request its inclusion with a monthly bill to subscribers.
(f) Miscellaneous Reports. Grantee shall submit to the Grantor such other information or reports in such forms and at such times as the Grantor may reasonably request or require.
(g) Inspection of Facilities. The Grantee shall allow the Grantor make inspections of any of the Grantee's facilities and equipment at any time upon at least ten (10) days notice, or, in case of emergency, upon demand without prior notice.
(h) Public Inspection. All reports subject to public disclosure, shall be available for public inspection at a designated Grantor office during normal business hours.
(i) Failure to Report. The willful refusal, failure, or neglect of the Grantee to file any of the reports reasonably required, or such other reports as the Grantor reasonably may request, may be deemed a material breach of the franchise, and may subject the Grantee to all remedies, legal or equitable, which are available to the Grantor under the franchise or otherwise.
(j) False Statements. Any materially false or misleading statement or representation made knowingly and willfully by the Grantee in any report required under the franchise may be deemed a material breach of the franchise and may subject the Grantee to all remedies, legal or equitable, which are available to the Grantor under the franchise or otherwise.
(k) Cost of Reports. One (1) copy of all reports and records required under this or any other Section shall be furnished at the sole expense of the Grantee.
5.06.150. Miscellaneous Provisions
(a) Compliance with State and Federal Laws. Notwithstanding any other provisions of the franchise to the contrary, the Grantee shall at all times comply with all mandatory laws and regulations of the State and Federal government or any administrative agencies thereof. Provided, however, if any such State or Federal law or regulation shall require the Grantee to perform any service without the right of Grantor to approve or allow such service, or shall permit the Grantee to perform any service, or shall prohibit the Grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the Grantor, then as soon as possible following knowledge thereof, the Grantee shall notify the Grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the Grantor or the franchise.
(b) Separability - Non-Material Provisions. If any provision of this chapter or any related agreements is held by final judgment or final decree of any court or governmental agency of competent jurisdiction to be invalid as conflicting with any applicable constitutional provision, law, rule or regulation now or hereafter in effect, or is held by such final judgment or decree to be modified in any way in order to conform to the requirements of any such constitutional provision, law, rule or regulation, and if said provision is considered non-material by the Grantor, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such constitutional provision, law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which has been held invalid or modified is no longer in conflict with the constitutional provision, law, rules and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, provided that the Grantor shall give the Grantee thirty (30) days written notice of such change before requiring compliance with said provision.
(c) Separability - Material Provisions. If any material section of this chapter, as determined by the Grantor and the Grantee, is held to be invalid or preempted by Federal, State or other applicable laws, resulting in a material adverse consequence to either party, the Grantor and Grantee shall attempt to negotiate appropriate modifications to the franchise to provide reasonable relief to the Grantor or Grantee from such invalidity or preemption. If the parties are unable to reach agreement on such modifications, then the dispute may be submitted to a mutually agreeable arbitrator, in accordance with State law if concurred by both parties, who shall determine what modifications are appropriate. The arbitrator's decision shall be binding on the parties, provided, that no decision of the arbitrator shall require the Grantor or Grantee to be in violation of any constitutional provision, Federal or State law or regulation; the issue of such violation may be litigated in a court of competent jurisdiction.
(d) Notices. Grantee shall maintain throughout the term of the franchise, a local address for service of notices by mail.
(e) Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter.
(f) No Recourse Against the Grantor. The Grantee shall have no recourse whatsoever against the Grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise.
(g) Nonenforcement by the Grantor. The Grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the Grantor to enforce prompt compliance.
(Chapter 5.06 added per Ord. 82, June 25, 1991.)
5.06.160 Applicability of chapter to State video services franchisees.
Notwithstanding any provision of this chapter to the contrary, nothing in this chapter shall be deemed to require any person or entity to obtain a franchise issued by the Town, to the extent that such person or entity is authorized to provide cable service or video services under a cable franchise or video services franchise issued by another government entity under applicable law, including but not limited to Section 5800, et seq., of the California Public Utilities Code. The requirements and provisions of this chapter shall not apply or be enforced to the extent that they actually conflict with applicable State or Federal law. (Added per Ord. 429, February 28, 2012)
5.06.170 Regulation of State video services franchisees.
Sections 5.06.160 through 5.06.220 of this chapter are designed to regulate video service providers holding state video franchises and operating within the Town. As of January 1, 2007, the State has the sole authority to grant State video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 ("Act"). Pursuant to the Act, the Town shall receive a franchise fee from all State video franchise holders operating within the Town. Additionally, the Town has the responsibility to establish and enforce penalties, consistent with State law, against all State video franchise holders operating within the Town for violations of customer service standards, but the Act grants all authority to adopt customer service standards to the State. The Act leaves unchanged the Town's authority to regulate the Town's current cable franchise in accordance with this chapter and the cable franchise currently in effect, until such time as the cable franchisee no longer holds a Town franchise or is no longer operating under a current or expired Town franchise. (Added per Ord. 429, February 28, 2012)
5.06.180 State video franchise fee.
For any State video franchise holder operating within the boundaries of the Town, there shall be a fee paid to the Town equal to five percent (5%) of the gross revenue of that State video franchise holder. Gross revenue, for the purposes of this section, shall have the definition set forth in California Public Utilities Code 5860. (Added per Ord. 429, February 28, 2012)
5.06.190 Audit authority.
Not more than once annually, the Town Manager or his or her designee may examine and perform an audit of the business records of all holders of a State video franchise operating within the boundaries of the Town to ensure compliance with Section 5.06.180 of this Code. (Added per Ord. 429, February 28, 2012)
5.06.200 Customer service penalties under State video franchises.
(a) Any holder of a State video franchise operating within the boundaries of the Town shall comply with all applicable State and Federal customer service and protection standards pertaining to the provision of video service. The Town Manager, or his or her designee, shall provide any required notice in advance of enforcing such standards, including but not limited to the 90-day notice required by 47 CFR 76.309(a), 76.1602(a), 76.1603(a), and 76.1619(c).
(b) The Town Manager shall monitor the compliance of holders of a State video franchise operating within the boundaries of the Town with respect to State and Federal customer service and protection standards. The Town Manager, or his or her designee, shall provide the State video franchise holder written notice of any material breaches of applicable customer service standards, and shall allow the State video franchise holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the Town:
(1) For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.
(2) For a second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.
(3) For a third or further violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.
(c) A holder of a State video franchise operating within the boundaries of the Town may appeal a penalty assessed by the Town Manager to the Town Council within 60 days of the initial assessment. The Town Council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty.
The Town Council's decision on the imposition of a penalty shall be final.
(d) The Town shall comply with any statutory requirement to remit all or a portion of collected fine revenue to the State, including but not limited to the requirement in Public Utilities Code Section 5900(g). (Entire section Added per Ord. 429, February 28, 2012)
5.06.210 Town response to State video franchise applications.
(a) Applicants for State video franchises, or amendments to existing franchises, that will authorize the applicant to operate within the boundaries of the Town must concurrently provide complete copies to the Town of any application or amendments to applications filed with the Public Utilities Commission. At a minimum, one complete copy must be provided to the Town Manager.
(b) Within 30 days of receipt of notice of an application for a State video franchise that will authorize the applicant to operate within Apple Valley, the Town Manager shall provide any appropriate comments to the Public Utilities Commission regarding an application or an amendment to an application for a State video franchise. (Entire section Added per Ord. 429, February 28, 2012)