HomeMy WebLinkAbout220 - Ordinances ORDINANCE NO. 220
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO
CUCAMONGA, CALIFORNIA, ADDING TITLE 7 TO THE RANCHO
CUCAMONGA MUNICIPAL CODE TO PROVIDE FOR THE ESTABLISHMENT
AND GRANTING OF FRANCHISES OR PRIVILEGES FOR THE CON-
STRUCTION, MAINTENANCE AND OPERATION OF CABLE COMMUNI-
CATION, OR CABLE TELEVISION SYSTEMS AND FURTHER PROVIDING
FOR THE CONTINUING REGULATION AND ADMINISTRATION OF THESE
FRANCHISES AND THE ACTIVITIES RELATIVE TO THEM
SECTION 1: The Rancho Cueamonga Municipal Code is hereby amended by
adding Title 7 thereto to read as follows:
Title 7
Cable Television Systems
and Franchises
Chapters:
7.01 General Provisions
7.02 Grant of Franchise
7.03 Regulation of Franchise
7.04 General Financial and Insurance Provisions
7.05 Design and Construction Provisions
7.06 Service Provisions
7.07 Operation and Maintenance
7.08 Rights Reserved To The Grantor
7.09 Rights Reserve To The Grantee
7.10 Franchise Violations
7.11 Reports
7.12 Miscellaneous Provisions
Chapter 7.01
GENERAL PROVISIONS
Sections:
7.01.010 Intent
7.01.020 Short Title
7.01.030 Definitions
7.01.040 Notice of Public Hearings
7.01.010 Intent: The City of Rancho Cueamonga finds that the
development of cable television and communications systems has the potential
of having great benefit and impact upon the residents of Rancho Cueamonga.
Because of the complex and rapidly changing technology associated with cable
television, the City further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which
should be vested in the City or such persons as the City shall designate. It
is the intent of this title 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 title shall
be deemed to include this finding as an integral part thereof.
7.01.020 Short Title: This title shall be known and may be cited
as the "City of Rancho Cucamonga Cable Television Franchise Ordinance."
7.01.030 Definitions: For the purpose of this title the following
terms, phrases, words and their derivations shall have the meaning given
herein. When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
Ordinance No. 220
Page 2
number, and words in the singular number inciude the plural number. Words not
defined shall be given their common and ordinary meaning.
A. "Additional Subscriber Service" means any service not included
in "Basic Subscriber Television Service," or "Basic Subscriber Radio Service"
or "Institutional Service," including, but not limited to, pay-cable.
B. "Agency Subscriber" means a subscriber who receives a service in
a government or public agency, school, or non-profit corporation.
C. "Basic Subscriber Radio Service" means the provision to all
subscribers of such audio programs as the retransmission of broadcast FM radio
signals, the retransmission of shortwave, weather, news, time and other
similar audio information and the transmission of cablecast audio signals, all
provided to subscribers at a monthly rate.
D. "Basic Subscriber Television Service" means the total of all of
the following:
~. The transmission to all subscribers of all broadcast
television channel signals authorized or permitted by the FCC and provided for
in a franchise agreement.
2. The provision to all subscribers of non-broadcast open
channel signals, originating from sources outside the Cable Communications
System.
3. The cablecasting to all subscribers of Local Origination
programming and Public, Educational and Government Access programming.
4. The transmission to all subscribers of all other cablecasting
open-channel signals.
Basic Subscriber Television Service may be offered to subscribers in
one or more tiers or combination of programs.
E. "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.
F. "Cable Communications System" or "System," also referred to as
"Cable Television System," "CATV System," or "Broadband Communications
Network," means a system of antennas, cables, amplifiers, towers, microwave
links, cablecasting studios, and other conductors, converters, equipment or
facilities, designed and constructed for the primary purpose of distributing
video programming to home subscribers, and the secondary purpose of producing,
receiving, amplifying, storing, processing, or distributing audio, video,
digital, or other forms of electronic or electrical signals.
G. "Cablecast Signal" means a nonbroadcast signal that originates
within the facilities of the Cable Communications System.
H. "Cable-mile" means a linear mile of strand-bearing cable as
measured on the street or easement from pole to pole or pedestal to pedestal.
I. "Channel" means a six (6) Megahertz (MHz) frequency band, which
is capable of carrying either one (1) standard television or video signal, a
number of audio, digital or other non-video signals, or some combination of
such signals.
J. "Class IV Channel" means a signaling path provided by a Cable
Communications System to transmit signals of any type from a subscriber
terminal to another point in the cable television system.
K. "Closed-Circuit" or "Institutional Service" means such video,
audio, data and other services provided to i~stitutional users on an
individual requirement, private channel basis. Th~ e may include, but not be
limited to, two-way video, audio or digital signals among institutions, or
from institutions to residential subscribers.
Ordinance No. 220
Page 3
L. "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 (strand mapping) and after all necessary permits and
authorizations have been obtained.
M. "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 service to at least ten percent (10%) of the dwelling
units located within the service area.
N. "Commercial Subscriber" means a subscriber who receives a
service in a place of business, where the service may be utilized in
connection with a business, trade, or profession.
O. "Converter" means an electronic device which converts signal
carriers from one form to another.
P. "Council" means the governing body of the City of Rancho
Cucamonga.
Q. "Educational Channel," or "Educational Access Channel" means any
channel where educational institutions are the primary designated programmers.
R. "FCC" means the Federal Communications Commission and any
legally appointed or elected successor.
S. "Franchise" means the nonexclusive rights granted pursuant to
this title to construct and operate a Cable Communications System along the
public way within all or a specified area in the City. Any such
authorization, in whatever form granted, shall not mean and include any
license or permit required for the privilege of transacting and carrying on a
business within the City as required by other titles and laws of this City.
T. "Franchise Asreement" means a franchise award title, or a
contractual agreement, containing the specific provisions of the franchise
granted, including referenced specifications, franchise applications,
franchise requirements, titles and other related materials.
U. "Franchise Fee" means the fee paid by the Grantee to the Grantor
in consideration of the use of the public streets and rights-of-way.
V. "Government Channel" or "Government Access Channel" means any
channel where local government agencies are the primary designated
programmers.
W. "Grantee" means any "person" receiving a franchise pursuant to
this title and under the granting franchise ordinance, and its lawful
successor, transferee or assignee.
X. "Grantor" or "City" means the City of Rancho Cucamonga as
represented by the City Council or any delegate acting within the scope of its
jurisdiction.
Y. "Gross Annual Revenues" means the annual gross revenues received
by the Grantee from all sources of operations of the Cable Communications
System, except that any sales, excise or other taxes collected for direct
pass-through to local, state or federal government shall not be included.
Z. "Initial Service Area" means the area of the City which will
receive service initially, as set forth in the franchise agreement.
Ordinance No. 220
Page 4
AA. "Installation" means the connection of the system from feeder
cable to subscribers' terminals, and the provision of service.
BB. "Leased Channel" or "Leased Access Channel" means any channel or
portion of a channel available for lease and programming by persons or
entities other than the Grantee.
CC. "Local Origination Channel" means any channel where the Grantee
is the primary designated programmer, and provides video programs to
subscribers.
DD. "Monitoring" means observing a communication signal, or the
absence of a signal, where the observer is neither the subscriber nor the
programmer, whether the signal is observed by visual or electronic means, for
any purpose whatsoever. Monitoring shall not include systemwide, non-
individually addressed sweeps of the system for purposes of verifying system
integrity, controlling return paths transmissions, or billing for pay-cable.
EE. "Nonbroadcast Signal" means a signal that is transmitted by a
Cable Communications System and that is not involved in an over-the-air
broadcast transmission path.
FF. "Open Channel" means any channel that can be received by all
subscribers, without the necessity for special equipment.
GG. "Pay-Cable" or "Pay-Television" 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 Subscriber
Service, or a per program, per channel, or other subscription basis.
HH. "Penetration" means the result expressed in the percentage
obtained by dividing the total number of potential subscribers in the
franchise area into the number of subscribers receiving service.
II. "Person" means an individual, partnership, association,
organization, corporation or any lawful successor, transferee or assignee of
said individual, partnership, association, organization or corporation.
JJ. "Private Channel" or "Closed-Circuit Channel" means any channel
which is available only to subscribers who are provided with special converter
or terminal equipment to receive signals on that channel.
KK. "Prosrammer" 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.
LL. "Public Access Channel" or "Community Access Channel" means any
channel where any member of the general public or any noncommercial
organization may be a programmer, without charge, on a first-come, first-
served, nondiscriminatory basis, in accordance with the terms of the franchise
agreement.
~t. "Reasonable Notice" shall be written notice addressed to the
Grantee at its principal office or such other office as the Grantee has
designated to the Grantor as the address to which notice should be transmitted
to it, which notice shall be certified and postmarked not less than four (4)
days prior to that day in which the party giving such notice shall commence
any action which requires the giving of notice. In computing said four (4)
days, Saturdays, Sundays and holidays recognized by the Grantor shall be
excluded.
NN. "Reasonable Order" shall be written orders not excessive or
extreme as to costs or time to comply, governed by sound thinking.
Ordinance No. 220
Page 5
OO. "Resident" means any person residing in the City as otherwise
defined by applicable law.
PP. "Residential Suseriber" means a subscriber who receives a
service in an individual dwelling unit, where the service is not to be
utilized in connection with a business, trade, or profession.
QQ. "Sale" shall include any sale, exchange, barter or offer for
sale.
RR. "School" means any nonprofit educational institution including
primary and secondary schools, colleges and universities, both public and
private.
SS. "Section" means any section, subsection, or provision of this
franchise ordinance.
TT. "Service Area" means the entire geographic area within the City.
UU. "State" means the State of California.
W. "Street" shall include each of the following which have been
dedicated to the public or hereafter dedicated to the public and maintained
under public authority or by others and located within the City 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.
WW. "Subscriber" means any persons, 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.
XX. "Substantially Completed" means that sufficient distribution
facilities have been installed by the Grantee so as to permit the offering of
full network service to at least ninety percent (90%) of the potential
subscribers in the service area.
YY. "Tapping" means observing a two-way communications signal
exchange, where the observer is neither of the communicating parties, whether
the exchange is observed by visual or electronic means, for any purpose
whatsoever.
7.01.040 Notice of Public Hearings. nenever a public hearing is
required by a provision of this Title, notice o~ the time and place of said
hearing, including a general explanation of the matter to be considered, shall
be given at least ten (10) calendar days before the hearing by publication at
least once in a newspaper of general circulation, published in the City or in
an adjacent city, and circulated in the City, or if there is none, by posting
in at least three public places in the City.
Chapter 7.02
GRANT OF FRANCHISE
Sections:
7.02.010 Grant
7.02.020 Franchise Required
7.02.030 Establishment of Franchise Requirements
7.02.040 Franchise Territory
7.02.050 Use of Public Streets and Ways
7.02.060 Duration
7.02.070 Franchise Nonexclusive
Ordinance No. 220
Page 6
7.02.080 Franchise Applications
7.02.090 Grant Procedure
7.02 100 Transfer of Ownership or Control
7.02 110 Franchise Renewal
7.02 120 Police Powers
7.02 130 Franchise Fee
7,02 140 Forfeiture or Revocation
7.02 150 Procedures in the Event of Termination or Expiration
7.02 160 Receivership and Foreclosure
7.02 170 Franchise Processing Costs
7.02.010 Grant. In the event that Grantor shall grant to a
Grantee a nonexclusive, revocable franchise to construct, operate, maintain,
and reconstruct, a Cable Communications System within the franchise area, 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 title and the franchise agreement. The franchise agreement shall include
those provisions of the Grantee's "Application for Franchise" that are finally
negotiated and accepted by the Grantor and Grantee.
Any franchise granted under the terms and conditions contained herein
shall be consistent with federal laws and regulations and state general laws
and regulations. In the event of conflict between the terms and conditions of
the franchise and 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 title
provisions now in effect or hereafter made effective. Nothing in the
franchise shall be deemed to waive the requirements of the other codes and
ordinances of the Grantor regarding permits, fees to be paid or manner of
construction.
7.02.020 Franchise Required. No Cable Communications System
shall be allowed to occupy or use the streets in the franchise territory or be
allowed to operate without a franchise in accordance with the provisions of
this title.
7.02.050 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 television industry. Such require-
ments shall not be retroactive to franchise then in effect.
7.02.040 Franchise Territory. The Grantor may grant a franchise
for all or any defined portion of the City. The service area shall be the
entire territory defined in the franchise agreement. The initial service area
shall be that portion of the franchise territory scheduled to receive initial
service, as stated in the franchise agreement.
7.02.050 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 7.05.100 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 territory 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.
Grantor shall in any event comply with all applicable City construction codes
and procedures.
Ordinance No. 220
Page 7
7.02.060 Duration. The term of any franchise and all rights,
privileges, obligations and restrictions pertaining thereto shall be fifteen
(15) years from the effective date of the franchise unless terminated sooner
as hereinafter provided. The effective date of the franchise shall be the
date of execution of the franchise agreement by the Grantor, subject to prior
execution by the Grantee.
7.02.070 Franchise Nonexclusive. Any franchise granted shall be
nonexclusive. The Grantor specifically reserves the right to grant, at any
time, such additional franchies for a Cable Communications System as it deems
appropriate.
7.02.080 Franchise Applications. Applicants for a franchise shall
submit to the Grantor written applications utilizing the standardized format
provided by the Grantor, at the time and place designated by the Grantor for
accepting applications, and including the designated application fee.
7.02.090 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 filing, a public hearing shall
be held on the application. A decision shall be made by the Grantor not later
than ninety (90) days after such hearing based upon an evaluation of the
application(s), the hearing, and other information that the Grantor may deem
relevant. Grantor may grant on or more franchises, or may decline to grant
any franchise, as it determines to be in the best public interest.
7.02.100 Transfer of Ownership or Control.
A. 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 consent of the Grantor, and
then only under such conditions as the Grantor may establish. Such consent as
required by the Grantor shall, however, not be unreasonably withheld.
B. Ownership or Control. The Grantee shall promptly notify 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 thereto, which consent will 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 injury.
In seeking the Grantor's consent to any change in ownership or
control, the Grantee shall have the responsibility:
1. 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 officers, directors, employees
and all persons having a legal or equitable interest in five percent (5%) or
more of its voting stock, or any of the proposed transferee's principals:
a. 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;
b. 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
Ordinance No. 220
Page 8
c. H~s pending any legal claim, lawsuit or administrative
proceeding arising out of or involving a cable system.
2. To establish, to the satisfaction of the Grantor, the
financial solvency of the proposed transferee by submitting all current
financial data for the proposed transferee which the Grantee was required to
submit in its franchise application, and such other data as the Grantor may
request. Financial statements shall be audited, certified and qualified by an
independent Certified Public Accountant.
3. 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.
C. The Grantor agrees that 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 will take
control and operate the Cable Communications System, in the event of a Grantee
default in its financial obligations. 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 will transfer and assign the
rights and obligations of such franchise as in the public interest. The
consent of the Grantor to such transfer shall not be unreasonably withheld.
D. The consent or approval of the Grantor to any transfer of 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
subordinate to the terms and conditions of any franchise.
E. In the absence of extraordinary circumstances, the Grantor will
not approve any transfer or assignment of the franchise prior to substantial
completion of construction of the proposed system.
F. In no event shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to the franchise
agreement.
7.02.110 Franchise Renewal. Nothing in any franchise agreement
shall require renewal by the Grantor after the term of the franchise has
expired, nor shall renewal be presumed as a matter of vested interest.
A. Term. The renewal term of any franchise shall not be greater
than the initial term.
B. Renewal Procedure.
1. Not later than eighteen (18) nor earlier than twenty-four
(24) months prior to the expiration of any franchise, a Grantee may submit an
application for renewal of such franchise, on forms approved by the Grantor,
with a nonrefundable application fee established by the Grantor in an amount
not to exceed the reasonable cost of processing the application. The
application shall set forth in detail the franchisee's legal, character,
financial and other pertinent qualifications sufficient to make a determin-
ation to renew or not to renew such franchise.
2. The application when filed shall be available for public
inspection at places designated by the Grantor. No later than ninety (90)
days after filing, a public hearing shall be held on the application. A
decision shall be made by the Grantor not later than ninety (90) days after
Ordinance No. 220
Page 9
such hearing based upon the application, the hearing, the Grantee's record of
compliance with the franchise requirements, its record of satisfactory
service, and the terms and conditions proposed for the franchise renewal
period.
3. Based on the above criteria, Grantor may decide to renew the
franchise under appropriate terms and conditions, or not to renew the
franchise.
4. If Grantor's decision is not to renew the franchise, Grantor
may initiate public solicitations for applications for a new franchise. The
original Grantee shall not be precluded from submitting such an application.
5. In any renewal or public solicitation, the Grantor may
require additional services, system upgrade or any other conditions it deems
feasible and appropriate in the light of the state of art of the cable
communications industry at that time.
7.02.120 Police Powers. In accepting a franchise, the Grantee
acknowledges that its rights hereunder are subject to the police power 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.
Any conflict between the provisions of this title 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
the franchise shall prevail only if upon such exercise the Grantor finds any
emergency exists constituting a danger to health, safety, property or general
welfare or such exercise is mandated by law.
7.02.130 Franchise Fee.
A. 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, but in no event less than five percent (5%) of the annual
gross revenues. Such payment shall be in addition to any other and commence
as of the effective date of the franchise. The Grantor, if it so requests,
shall be furnished a statement, audited and certified by a Certified Public
Accountant, reflecting the total amounts of annual gross revenues and all
payments, deductions and computations for the period covered by the payment.
Grantor shall have the right to conduct an independent audit of Grantee's
records, 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.
B. 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 title or for the performance of any other obligation
or the Grantee.
C. 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:
1. An interest charge, computed from such due date, at an annual
rate equal to the maximum interest rate which could lawfully be charged by a
private lender in effect upon the due date.
2. 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.
D. Payment due the Grantor under this provision shall be computed
quarterly, for the preceding quarter, as of March 31, June 30, September 30,
and December 31. Each quarterly payment shall be due and payable no later
than thirty (BO) days after the dates listed in the previous sentence. Each
payment shall be accompanied by a brief report showing the basis for the
computation and such other relevant facts as may be required by the Grantor.
Ordinance No. 220
Page 10
E. Following the issuance and acceptance of the franchise, the
Grantee shall initiate franchise fee payments to the Grantor at the minimum
rate specified in the franchise agreement. These initial payments shall be
credited against payments due in later years of the franchise in as much as
they exceed the actual franchise payments due during any year.
7.02.140 Forfeiture or Revocation.
A. Grounds for Revocation. 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 title and a material branch of the
franchise:
1. If the Grantee should default in the performance of any of
its material obligations under this title or under such documents, agreements
and other terms and provisions entered into by and between the Grantor and the
Grantee, subject to the provisions of Section 7.10.030.
2. 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 as required herein.
3. 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 documents, including this title, is
invalid or unenforceable prior to the commencement of system construction.
4. If the Grantee should willfully violate any orders or rulings
of any regulatory body having Jurisdiction over the Grantee relative to the
franchise.
5. If the Grantee ceases to provide services for any reason
within the control of the Grantee over the Cable Communications System.
6. If the Grantee attempts to evade any of the provisions of
this title or the franchise agreement or practices any fraud or deceit upon
the Grantor.
7. If the Grantee's construction schedule is delayed for more
than eighteen (18) months later than the schedule contained in the franchise
agreement and Grantor finds that the delay was not excusable under the
provisions of Section 7.10.030.
8. If the Grantee becomes insolvent, unable or unwilling to pay
its debts, or upon the entry of an order for relief in favor of Grantee in a
bankruptcy proceeding.
B. Procedure Prior to Revocation.
1. The Grantor may make written demand that the Grantee do so
comply with any such requirement, limitation, term, condition, rule or
regulation or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the Grantee continues for a period of thirty (30) days
following such written demand, the Grantor may place its request for
termination of the franchise upon a regular Council meeting agenda. The
Grantor shall cause notice to be served upon such Grantee, at least ten (10)
days prior to the date of such meeting, a written notice of this intent to
request such termination, and the time and place of the meeting, notice of
which shall be published at least once, ten (10) days before such meeting in a
newspaper of general circulation within the franchise area.
2. The Grantor shall hear any persons interested therein, and
shall determine, based upon substantial evidence, whether the Grantee has
committed a material breach of this title or the franchise agreement, and, if
so, whether such breach was willful.
3. If the Grantor determines that the Grantee has committed a
material breach, which was not willful, the Grantor shall direct the Grantee
to take appropriate remedial action within such time and manner and upon such
terms and conditions as are reasonable under the circumstances, or, if grantor
finds that such breach is not curable, then Grantor may, by resolution,
declare that the franchise of such Grantee shall be terminated.
a. If the Grantor determines that the Grantee has committed a
material breach, which was willful, then the Grantor may, by resolution,
declare that the franchise of such Grantee shall be terminated and security
Ordinance No. 220
Page 11
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.
7.02.150 Procedures in the Event of Termination or Expiration.
A. Disposition of Facilities. In the event a franchise expires, is
revoked, or otherwise terminated, the Grantor may order the removal of the
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 network until a subsequent Grantee is selected and a subsequent or
modified cable system becomes operational.
B. 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 pisces in as good
condition as that prevailing prior to the Grantee's removal of its equipment
and appliances 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.
C. Restoration by Grantor; Reimbursement of Costs. In the event of
a failure by the Grantee to complete any work required by Subsection (A)
and/or Subsection (B), or any other work required by Grantor by law or
ordinance within the time as may be established and to the satisfaction of the
Grantor, the Grantor may cause such work to be done and the 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.
D. 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 title and the
franchise agreement and to provide the regular subscriber service and any and
all of the 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.
E. 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
the franchise or any provision of law.
7.02.160 Receivership and Foreclosure.
A. Any franchise herein 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:
1. 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 title 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,
Ordinance No. 220
Page 12
2. 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.
B. 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 all rights and privileges of the
Grantee hereunder shall cease and terminate thirty (30) days after service of
such notice, unless:
1. The Grantor shall have approved the transfer of the
franchise, as and in the manner in this title provided; and,
2. 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.
7.02.170 Franchise Processing Costs. For either a new franchise
award or a franchise renewal, costs to be borne by Grantee shall included, but
shall not be limited to, all costs of publications of notices prior to any
public meeting provided for pursuant to a franchise, development and
publication of relevant ordinances and franchise agreement, fees, and any cost
not covered by the applications fees, incurred by the Grantor in its study,
preparation of proposal solicitation documents, evaluation of all
applications, including, but not limited to consultant and attorney fees and
Grantor staff time.
These franchise processing costs are over and above the construction
inspection and permit fees specified in Section 7.05.110 A 1.
Chapter ?.03
REGULATION OF FRANCHISE
Sections:
7.03.010 Regulatory Authority
7.03.020 Regulatory Responsibility
7.03.030 Public Usage of the System
7.03.040 Reservation by Grantor
7.03.050 Initial Rates
7.03.060 Rate Change Procedure
7.03.070 Annual Review of Performance
7.03.080 System and Services Review
7.03.080 Access Channel Management
7.0~.010 Regulatory Authority. The Grantor shall exercise
appropriate regulatory authority under the provisions of this title 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.
7.03.020 Regulatory Responsibility. The Grantor, acting alone or
acting jointly with other Grantors, may exercise or delegate the following
regulatory responsibility:
A. Administering and enforcing the provisions of the Cable
Communications System franchise(s).
B. Coordination of the operation of government and educational
channels.
Ordinance No. 220
Page 13
C. Providing technical, programming and operational support to
public agency users, such as government departments, schools and health care
institutions.
D. Establishing procedures and standards for use of channels
dedicated to public use and sharing of public facilities, if provided for in
any franchise agreement.
E. Planning expansion and growth of public benefit cable services.
F. Analyzing the possibility of integrating cable communications
with other local, state or national telecommunications networks.
G. Formulating and recommending long-range telecommunications
policy.
7.05.030 Public Usage of the System. 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 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 Grantee, and/or others. Such an
entity, if established, may be delegated the following responsibilities:
A. Receive and utilize or reallocate for utilization, channel
capacity, facilities, funding and other support provided specifically for
public usage of the Cable Communications System.
B. Review the status and progress of each service developed for
public benefit.
C. Reallocate resources on a periodic basis to conform with
changing priorities and public needs.
D. Report to the Grantor annually on the utilization of resources,
the new public services developed and the benefits achieved for the City and
its residents.
7.03.040 Reservation by Grantor. The Grantor reserves the right,
at its discretion, from time to time, to determine if the entity described in
Section 7.03.030 is performing its purposes in a manner satisfactory to the
Grantor, and if it is not, the Grantor may receive and reallocate all or a
portion of the channel capacity, operations appropriation, 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
7.03.030.
7.03.050 Initial Rates.
A. The Grantee shall establish initial rates that must be applied
fairly and uniformly to all subscribers in the franchise area for its services
in accordance with the rates contained in the franchise agreement.
B. Initial basic subscriber rates shall be effective for a minimum
of two (2) years from the date cable service commences, or until Grantee has
completed all construction proposed in its application whichever is longer.
7.03.060 Rate Change Procedure.
A. Within ninety (90) days of the filing of a petition for rate
change for any rates subject to Grantor regulation, the Grantor shall hold an
appropriate public hearing to consider the proposed rate change, at which
hearing all persons desiring to be heard, includinE the Grantee, shall be
heard on any matter, including but not limited to, the performance of its
franchise, the Grantee's services, and the proposed new rates.
Ordinance No. 220
Page 14
B. Upon notice of any public hearing as provided above, the Grantee
shall notify its subscribers of the time, place and subject m~tter of the
public hearing by announcement on at least two (2) channels of its system
between the hours of 7:00 p.m. and 9:00 p.m., for at least five (5)
consecutive days prior to the hearing.
C. Within ninety (90) days after said hearing, the Grantor shall
render a written decision on the Grantee's petition, either accepting,
rejecting, modifying or deferring the same and reciting the basis for its
decision. The Grantor shall consider, but not be limited to the following
factors in approving or disapproving the petition:
1. Grantee's substantial fulfillment of all material
requirements of the franchise.
2. Quality of service, as indicated by the number and type of
service complaints, Grantee's response to complaints, and the result of
periodic system performance tests and the annual reviews specified in Section
7.03.070.
3. Prevailing rates for comparable services in other cabIe
systems of similar size and complexity.
4. Rate of return on Grantee's equity, as compared to businesses
of equivalent risk. For the purposes of this title, the rate of return on
equity shall be defined as the net, after-tax profit divided by the equity
portion of Grantee's investment in tangible assets. The investment shall be
defined as the cumulative cost of tangible assets such as plant, property and
equipment, less the cumulative depreciation charges, plus working capital,
which shall be defined as equivalent to three (3) months total operating
expenses.
The rate of return shall be calculated on a cumulative basis for all
system revenues and costs including services such as pay-cable that may be
exempt from local rate regulation. Upon request of Grantor, Grantee shall
promptly provide, from the Grantee, its parent company and any subsidiary
company, all information as shall be reasonably necessary to determine system
revenues and costs.
5. Performance of Grantee in introducing new services and
expanding the cable system's capability, as compared to other systems of
similar size and complexity, and as evaluated by the system and services
review specified in Section 7.03.080.
6. Tax benefits received by Grantee, its partners or
shareholders, as the result of their investment in the system.
7. Cash flow derived from system services. The Grantor shall
not consider any valuation based upon the franchise or the Grantee's goodwill
and these items of value shall neither be amortized as an expense nor shall a
return be paid on them.
D. If the Grantor fails to render a written decision either
accepting, rejecting, modifying, or deferring Grantee's petition within one
hundred eighty (180) days of the Grantee's petition pursuant to this Section
the Grantee shall thereafter be entitled to put its proposed new rates into
effect.
E. The Grantee's petition for a rate increase shall include, but
not be limited to, the following financial reports, which shall reflect the
operations of the system:
1. Balance Sheet
2. Income Statement
3. Statement of Sources and Applications of Funds
4. Detailed Supporting Schedules of Expenses, Income, Assets,
Depreciation and other items as may be required.
5. Statement of Current and Projected Subscribers and
Penetration.
The Grantee's accounting records applicable to the system shall be
available for inspection by the Grantor at all reasonable times. The Grantor
shall have access to records of financial transactions for the purpose of
Ordinance No. 220
Page 15
verifying burden rates or other indirect costs prorated to the operation. The
documents listed above shall include sufficient detail and/or footnotes as may
be necessary to provide the Grantor with the information needed to make
accurate determinations as to the financial condition of the system. All
financial statements shall be certified as accurate by a certified public
accountant or an officer of Grantee.
F. Schedule of Rates. The Grantee shall maintain and file with the
Grantor, a complete schedule of subscriber rates including all fees and
charges for services not subject to regulation or approval by the Grantor.
G. Disconnections. There shall be no charge for disconnection from
the system. However, if a subscriber has failed to pay properly due monthly
fees or if a subscriber disconnects for seasonal periods, the Grantee may
require, in addition to full payment of any delinquent fees, a reasonable fee
for reconnection.
H. No Consideration Beyond Schedule. The Grantee shall receive no
consideration whatsover for or in connection with its provision of service to
its subscribers other than as set forth in the Section or as filed with and/or
approved by the Grantor.
I. Submission of Rate Increase Requests. Grantee shall not submit
a request for rate increase earlier than twelve (12) months after a prior
request.
7.03.070 Annual Review of Performance. 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 and Grantee shall meet publicly to review the performance, quality of
service and rates of the cable communications system. The reports required in
Chapter 7 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 complaints during the review meetings,
either orally or in writing, and these shall be considered.
A. Within thirty (30) days after the conclusion of the system
performance review meetings, 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.
B. Failure of Grantee, after due notice, to correct the
inadequacies shall be considered a material breach of the franchise, and
Grantor may, at its sole discretion, exercise any remedy within the scope of
this title considered appropriate.
7.05.080 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 foilowing system and services review procedures
are hereby established:
A. At Grantor's sole option, the Grantor and Grantee shall hold a
System and Services Review Session on or about the third anniversary date of
the franchise agreement. Subsequent System Review Sessions shall be scheduled
by the Grantor each three (3) years thereafter.
B. Sixty (60) days prior to the scheduled System and Services
Review Session, Grantee shall submit a report to Grantor indicating the
following:
1. All cable system services that are being provided on an
operational basis, excluding tests and demonstrations, to cities in the United
Ordinance No. 220
Page 16
States with populations above ten thousand (10,000), that are not provided to
the Grantor.
2. A plan for provision of such services, or a Justification
indicating why such services are not feasible for the franchise area.
C. Topics for discussion and review at the System and Services
Review Sessions shall include but shall not be limited to, services provided,
rate structure, free or discounted services, application of new technologies,
system performance, programming, subscriber complaints, user complaints,
rights or privacy, amendments to the franchise, undergrounding processes,
developments in the law, and regulatory constraints.
D. Either the Grantor or the Grantee may select additional topics
for discussion at any Review Session.
E. Not later than sixty (60) days after the conclusion of each
System and Services Review Session, 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 direct Grantee to provide such services within a reasonable time, under
reasonable rates and conditions. Failure to provide such services without
reasonable Justification may be considered a breach of the franchise, subject
to remedies as provided in this title.
7.03.090 Access Channel Mans6ement.
A. Intent. It is the intent of the Grantor to insure that access
and community channels provided for in any franchise agreement, shall be
managed in the best public interest, so that programming on such channels will
be free of censorship, open to all residents, and available for all forms of
public expression, community information and debate of public issues.
Pursuant to these objectives, the Grantor may delegate the responsibility for
access channel management to a nonprofit entity which may include, but not be
limited to, any of the following:
1. A nonprofit public corporation.
2. An access management commission or committee, appointed by
Grantor, and representing a broad spectrum of the community.
3. An established nonprofit entity with special cablecasting
capability, such as a local or regional community college.
B. Functions. The entity designated to manage the access channels
shall have the following functions:
1. Responsibility for program production for management of the
Public Access Channel and all other channels as may in the franchise agreement
be designated for community-based programming. Community channels may include
Government and Educational Access channels, as designated in the franchise
agreement.
2. To assure that the Public Access and Community channels are
made available to all residents of the franchise area on a nondiscriminatory,
first-come, first-served basis.
3. To assure that no censorship or control over program content
of the Public Access and Community channels exist, except as necessary to
comply with FCC prohibition of material that is obscene, or contains
commercial advertising, or conducts a lottery.
4. To devise, establish, and administer all rules, regulations,
and procedures pertaining to the use and scheduling of the Public Access and
Community channels.
5. To prepare, in conjunction with the Grantee, such regular or
special reports as may be required or desirable. 6. To hire and supervise staff.
7. To make all purchases of materials and equipment that may be
required.
8. To develop additional sources of funding, such as foundation
or federal or state grants, to further community programming.
9. To perform such other functions relevant to the Public and
Community channels as may be appropriate.
Ordinance No.
Page ? 7
10. Establishment of budgets on an annual basis, and utilization
of funds and resources received from the Grantor or the public usage entity
designated in Section 7.03.030 for the purpose of access programming.
C. Access Rules. The access management entity shall complete a set
of rules for the use of the Access and Community channels which shall be
promptly forwarded to the Grantor. The rules shall be prepared in cooperation
with the Grantee, and confirmed by agreement between the access management
entity and the Grantee. The rules shall, at a minimum, provide for:
1. Access on a first-come, first-served, nondiscriminatory basis
for all residents of the franchise area.
2. Prohibition of commercial or political use.
3. Prohibition of any presentation of lottery information, or
obscene or indecent material.
4. Public inspection of the log of producers, which shall be
retained by the Grantee for a period of four (4) years.
5. Procedures by which individuals or groups who violate any
rule may be prevented from further access to the channel.
6. Free use of such reasonable amounts of channel time,
cableeasting facilities, and technical support as are provided for in the
agreement between the access management entity and the Grantee.
D. Access Management Entity Reports to Grantor. The access
management entity shall provide a report to the Grantor, at least annually,
indicating achievements in community-based programming and services, and also
shall provide a special report each time Grantee requests an increase in
rates, that are subject to Grantor regulation, indicating the level and
quality of Grantee's support during the period elapsed since any previous rate
increase was implemented.
Chapter 7.04
GENERAL FINANCIAL AND INSURANCE PROVISIONS
Sections:
7.04.010 Construction Bond
7.04.020 Performance Bond
7.04.030 Security Fund
7.04.040 Indemnification
7.04.050 Insurance
7.04.010 Construction Bond.
A. Within thirty (30) days after the granting of a franchise and
prior to the commencement of any construction work by the Grantee, the Grantee
shall file with the Grantor a construction bond in the amount specified in the
franchise agreement in favor of the Grantor and any other person who may claim
damages as a result of the breach of any duty by the Grantee assured by such
bond.
B. 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.
C. In no event shall the amount of said bond be construed to limit
the liability of the Grantee for damages.
D. Grantor, at its sole option, may waive this requirement, or
permit consolidation of the construction bond with the performance bond and
security fund specified, respectively in Sections 7.04.020 and 7.04.030.
7.04.020 Performance Bond
A. In addition to the construction bond set forth above, the
Ordinance No. 220
Page 18
Grantee shall, at least thirty (30) days prior to the commencement of
operation, 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.
B. 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.
C. In no event shall the amount of said bond be construed to limit
the liability of the Grantee for damages.
7.04.030 Security Fund
A. 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 title, and the payment by the Grantee of any
claims, liens and taxes due to the Grantor which arise by reason of the
construction, operation or maintenance of the system.
The security fund may be assessed by the Grantor for purposes
including, but not limited to, the following:
1. Failure of Grantee to pay Grantor sums due under the terms of
the franchise.
2. Reimbursement of costs borne by the Grantor to correct
franchise violations not corrected by Grantee, after due notice.
3. Monetary remedies or damages assessed against Grantee due to
default or violation of franchise requirements.
B. At Grantor's sole option, some portion of the security fund may
be provided in the acceptable form of an irrevocable letter of credit, in lieu
of a cash deposit.
C. Within thirty (30) days after notice to it that any amount has
been withdrawn by the Grantor from the security fund pursuant to Subsection A
of this Section, the Grantee shall deposit a sum of money sufficient to
restore such security fund to the originai amount.
D. If the Grantee fails, after ten (10) days notice to pay to the
Grantor any franchise fee or taxes due and unpaid; or, fails to pay to the
Grantor within such ten (10) days, any damages, costs or expenses which the
Grantor shall be compelled to pay by reasons 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 provision of the
franchise which the Grantor reasonably determines can be remedied by an
expenditure of the security fund, the Grantor may immediately 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.
E. 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 7.02.140. 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.
Ordinance No. 220
Page 19
F. 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 title or authorized by law, and no action, proceeding or exercise of a
right with respect to such security fund shall affect any other right the
Grantor may have.
7.04.040 Indemnification
A. The Grantee shall by acceptance of any franchise granted
indemnify, defend 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:
1. The act of the Grantor in granting the franchise; and
2. 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 title or the franchise agreement.
3. The exercise of any right or privilege granted or permitted
by this title or the franchise agreement.
Such indemnification shall include, but not be limited to, all claims
arising in tort, contracts, infringement of copyright, violations of statutes,
ordinances or regulations or otherwise.
B. In the event any such claims shall arise, the Grantor 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
at its expense.
7.04.050 Insurance
A. The Grantee shall maintain throughout the term of the franchise
insurance in amounts at least as follows:
1. 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.
2. 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.
3. Comprehensive Automobile Liability.
Comprehensive automobile liability including, but not limited to, non-
ownership and hired ear 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.
B. The Grantee shall furnish the Grantor with copies of such
insurance policies and certificates of insurance.
C. Such insurance policies provided for herein shall name the
Grantor, its officers, boards, commissions, agents, and employees as
additional insureds and shall contain the following endorsement:
"It is hereby understood and agreed that this insurance policy may
not be cancelled by the surety or the intention no to renew be stated by the
surety until thirty (30) days after receipt by the City by registered mail of
written notice of such intention to cancel or not renew."
D. 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.
E. All insurance carriers providing coverage under Section 7.04.050
A shall be duly licensed to operate in the state of California, and shall be
subject to approval of Grantor.
Ordinance No. 220
Page 20
Chapter 7.05
DESIGN AND CONSTRUCTION PROVISIONS
Sections:
7.05.010 System Design
7.05.020 Geographical Coverage
7.05.030 Cablecasting Facilities
7.05.040 System Construction Schedule
7.05.050 Remedies for Delay in Construction
7.05.060 Provision of Service
7.05.070 Undergrounding of Cable
7.05.080 New Development Undergrounding
7.05.090 Underground at Multiple-Dwelling Units
7.05.100 Street Occupancy
7.05.110 Construction and Technical Standards
7.05.120 Areawide Interconneetion
7.05.010 System Design. The Cable Communications System shall be
constructed in accordance with the design requirements contained in the
franchise agreement.
7.05.020 Geographical Coverage. The Grantee shall design and
construct the Cable System in such a manner as to have the eventual capability
to pass by every single-family dwelling unit, multiple-family dwelling unit,
school and public agency within the area of the franchise. 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.
7.05.030 Cablecastin~ Facilities. The Grantee shall provide
cableeasting facilities in accordance with the requirements of the franchise
agreement.
7.05.040 System Construction Schedule
A. The Grantee shall comply with the requirements of the system
construction schedule contained in the franchise agreement.
B. 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, showing specifically whether schedules are
being met and the reasons for any delay.
7.05.050 Remedies for Delay in Construction. The Grantor may at
its sole option, apply any or all of the following remedies in connection with
delays in system construntion:
A. Reduction in the duration of the franchise on a month-for-month
basis for each month of delay exceeding six (6) months.
B. Forfeiture of construction bonds and/or assessment of monetary
damages up to the maximum per day and per incident limits specified in the
franchise agreement, levied against the security fund for delays exceeding one
(1) year.
C. Termination of the franchise within one (1) year after award of
the franchise if the Grantee has failed to initiate system construction.
D. Termination of the franchise for other delays exceeding eighteen
(18) months.
Ordinance No. 220
Page 21
Any remedies applied shall be in accordance with the procedures
contained in Chapter 10 herein.
7.05.060 Provision of Service. After service has been
established by activating trunk 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.
7.05.070 Under~roundin~ of Cable. The undergrounding of cable is
encouraged. In any event, cables shall be installed underground at Grantee's
cost where existing utilities are already underground. Previously installed
aerial cable shall be undergrounded and relocated in concert, and on a cost-
sharing basis, with other utilities, when such other utilities may convert
from aerial to underground construction.
7.05.080 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 reasonable notice of the particular date on which open
trenching will be available for Grantee's installation of conduit, pedestals
and/or vaults, and laterals 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, and laterals
within five (5) working days of the date 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.
7.05.090 Under~round at Multiple-Dwellin~ Units.
In oases of multiple dwelling units serviced by aerial utilities, Grantee
shall make every effort to minimize the number of individual aerial drop
cables between the pole and the dwelling unit. The burden of proof shall be
upon the Grantee to demonstrate why undergrounding of drop cables is
technically or economically unfeasible.
7.05.100 Street Occupancy
A. Grantee shall utilize existing poles, conduits, and other
facilities whenever possible, and shall not construct or install any new,
different, or additional poles, conduits, r other facilities whether on
public property or on privately-owned property until the written approval of
the Grantor is obtained. However, no location of any pole or wire holding
structure of the Grantee shall be a vested interest and such poles or
structures shall be removed or modified by the Grantee at its own expense
whenever the Grantor determines that the public convenience would be enhanced
thereby.
B. Grantee shall notify the Grantor at least ten (10) days prior to
the intention of the Grantee to commence any construction in any streets. The
Grantor shall 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 titles of the
Grantor.
C. All transmission lines, equipment and structures shall be so
installed and located as to cause minimum interference with the rights and
reasonable convenience of property owners and at 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
Ordinance No. 220
Page 22
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.
D. Grantee shall, at its own expense, and in a manner approved by
the Grantor, restore to Grantor standards and specifications any damage or
disturbance caused to the public way as a result of its operations or
construction on its behalf.
E. 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.
F. Grantee shall have the authority to trim trees on public
property at its own expense as may be necessary to protect its wire and
facilities, subject to the supervision and direction of the Grantor. Trimming
of trees on private property shall require written consent of the property
owner.
G. The Grantee at its 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 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 by reason of anything hereunder.
H. Upon failure of Grantee to commence, pursue or complete any work
required by law or by the provisions of this title 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.
I. The Grantee shall make no paving cuts or curb cuts unless
absolutely necessary, and only after written permission has been given by the
Grantor.
J. Grantor reserves the right to require conduit for underground
cabling.
7.05.110 Construction and Technical Standards.
A. Construction Standards.
1. City Codes and Permits. Grantee shall comply with all
applicable City construction codes and permit procedures. Grantor shall be
entitled to charge reasonable permit and inpsection fees to recover the
special nonrecurring inspection costs imposed by the construction of the cable
system.
2. Compliance with Safety Codes. Ail 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.
3. Compliance with Electrical Codes. Ail installation of
electronic equipment shall be of a permanent nature, durable and installed in
accordance with the provisions of the Basic BOCA Electrical Code as amended,
and all applicable state and local codes.
Ordinance No. 220
Page 23
4. 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.
5. Compliance with Aviation Requirements. Antennas 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.
6. Construction Standards and Requirements. All of the
Grantee's plant and equipment, including but not limited to the antenna site,
head-end 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 with improvements the Grantor may deem proper to make,
or to interfere in any manner with the rights of any property owner, or to
hinder or obstruct pedestrian or vehicular traffic.
7. Safety~ Nuisance~ Requirements. The Grantee shall at all
times employ ordinary 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.
B. Technical Standards. The Cable Communications System shall meet
all technical and performance standards contained in the franchise agreement.
C. 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 Subscriber
Television Services shall be performed at intervals no greater than every
twelve (12) months, on a minimum of twenty (20) subscriber television
receivers, located throughout the service area. At least eight (8) of these
locations shall be at the far end of the distribution trunk cables. The tests
shall be witnessed by representatives of the Grantor, and written test reports
shall be submitted to the Grantor. If more than ten percent (10%) of the
locations tested fail to meet the performance standards, the Grantee shall be
required to indicate what corrective measures have been taken, and the entire
test shall be repeated for at least twenty (20) different locations. A second
failure of more than ten percent (10%) may result, at the Grantor's option, in
remedies, including but not limited to an order to reduce subscriber rates due
to degraded service.
D. Special Tests. At any time after commencement of service to
subscribers the Grantor may require additional tests, full or partial repeat
tests, different test procedures, or tests involving a specific subscribers
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.
7.05.120 Areawide Interconnection.
A. Interconnection Required. The Grantee shall interconnect public
usage channels of the Cable Communications System with any or all other cable
systems in adjacent areas, upon the directive of the Grantor. 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.
B. Interconnection Procedure. Upon receiving the directive of the
Grantor to interconnect, the Grantee shall immediately initiate negotiations
with the other affected system or systems. The cost shall be borne by both
Ordinance No. 220
Page 24
Grantees, in the proportion of number of channels received to total number of
channels transmitted and received, under the assumption that benefits accrue
primarily through receipt of additional channels.
In the case of regional or state-wide interconnection, the same
principle shall apply.
C. Relief. The Grantee may be granted reasonable extensions of
time to interconnect or the Grantor may rescind its order to interconnect upon
petition by the Grantee to the Grantor. The Grantor may grant said request if
it finds that the Grantee has negotiated in 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 or
unacceptable increase in subscriber rates.
D. Cooperation Required. The Grantee shall cooperate with any
interconnection corporation, regional interconnection authority or city,
county, state or federal regulatory agency which may be hereafter established
for the purpose of regulating, financing, or otherwise providing for the
interconnection of cable systems beyond the boundaries of the franchise
territory.
E. Initial Technical Requirements to Assure Future Interconnection
Capability.
1. Every Grantee receiving a franchise to operate a Cable
Communications System within the franchise territory shall use the same
frequency allocations for commonly provided television signals so far as is
technically and economically feasible.
2. Grantee shall provide local origination and access equipment
that is compatible throughout the area so that videocassettes or videotapes
can be shared by various systems.
Chapter 7.06
SERVICE PROVISIONS
Sections:
7.06.010 Services to be Provided
7.06.020 Basic Subscriber Television Service (BSTS)
7.06.030 Basic Subscriber Radio Service (BSRS)
7.06.040 Institutional Service (IS)
7.06.050 Additional Subscriber Services
7.06.060 Local Origination Channel(s)
7.06.070 Government Access Channel(s)
7.06.080 Educational Access Channel(s)
7.06.090 Public Access Channel(s)
7.06.100 Public Access(s) (Closed-Circuit)
7.06.110 Leased Access Channel
7.06.120 Leased Use of Access Channels
7.06.130 Universal Connection
7.06.010 Services to be Provided. The Grantee shall provide, as
a minimum, the services listed in the franchise agreement. Services shall not
be reduced without prior approval of Grantor.
7.06.020 Basic Subscriber Television Service (BSTS). The "Basic
Subscriber Television Service" shall include the FCC required services, the
distant television broadcast signals, the imported non-broadcast signals, and
the provision of all other cablecast open-channel signals. This service shall
be provided to all subscribers at the established BSTS monthly subscription
rates.
Ordinance No. 220
Page 25
7.06.050 Basic Subscriber Radio Service (BSRS). The "Basic
Subscriber Radio Service" shall include the provision of all audio services
designated in the franchise agreement, including retransmission of local
broadcast FM radio signals, and cablecast FM signals. This service shall be
provided to ail subscribers at the established BSRS monthly subscription
rates.
7.06.040 Institutional Service (IS). If specified in the
franchise agreement, the "Institutional Service" shall include the provision
of transmission and/or reception services to institutional users, on a leased
channel basis at established IS rates. Services may include the distribution
of video or non-video signals.
7.06.050 Additional Subscriber Services. "Additional Subscriber
Services," not included in the BSTS and BSRS services specified above, may be
provided, either within the basic subscription rates, or on a premium basis,
subject to applicable law.
7.06.060 Local Origination Channel(s). The Grantee shall operate
the cablecasting studios on a high-quality, professional basis for the purpose
of providing cablecast programming responsive to local needs and interests.
The primary emphasis for the Local Origination Channel(s) shall be on
providing community-focused programming that is unavailable to viewers on
broadcast television channels.
7.06.070 Government Access Channel(s). The Grantee shall provide
the number of channels specified in the franchise agreement, including all
necessary interface equipment and cabling to permit operation, for the use of
the Grantor at no charge to the Grantor. The Grantee shall provide facilities
and technical support to aid in the utilization of these channels, as
specified in the franchise agreement.
7.06.080 Educational Access Channel(s). The Grantee shall
provide the number of channels specified in the franchise agreement including
all necessary interface equipment and cabling to permit operation, for the use
of the local educational institutions at no charge. The Grantee shall provide
facilities and technical support to aid in the utilization of these channels,
as specified in the franchise agreement.
7.06.090 Public Access Channel(s). The Grantee shall provide the
number of channels specified in the franchise agreement including all
necessary interface equipment and cabling to permit operation, to be available
to the public at no charge. The Public Access Channel(s) may be managed and
operated by the access management entity, as described in Chapter 7.03. The
Grantee shall make available for programmers of the public access channel the
facilities and support specified in the franchise agreement.
7.06.100 Public Access(s) (Closed-Circuit). If the Cable
Communications System includes a closed-circuit institutional network, the
Grantee shall make a portion of the network capacity, as specified in the
franchise agreement, available for local government, educational and public
use at no charge. The Public Access two-way channels shall be managed and
operated by the access management entity.
7.06.110 Leased Access Channel. Grantee shall make available for
lease, on a nondiscriminatory basis, the number of channels specified in the
franchise agreement. All leased channel service revenues shall be included in
gross revenues subject to the franchise fee.
7.06.120 Leased Use of Access Channels. If Grantor determines
that a new service would be in the public interest and receives a bona fide
offer from a third party to provide such a service, Grantee shall be offered
the first right of refusal to provide the service on the same terms. If
Grantee declines to provide the service, Grantor may utilize appropriate
access channel capacity to accommodate that service.
Ordinance No. 220
Page 26
7.06.150 Universal Connection. The Grantor may require that all
dwelling units within the franchise area shall be connected physically to the
cable system by the Grantee by means 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.
Chapter 7.07
OPERATION AND MAINTENANCE
Sections:
7.07.010 Open Books and Records
7.07.020 Records Required
7.07.030 Maintenance and Complaints
7.07.040 Rights of Individuals
7.07.050 Continuity of Service Mandatory
7.07.060 Grantee Rules and Regulations
7.07.070 Tenant Rights
7.09.010 Open Books and Records. The Grantee shall manage all of
its operations in accordance with a policy of totally open books and
records. The Grantor shall have the right to inspect at any time during
normal business hours, all books, records, maps, plans, financial statements,
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 office within the franchise territory.
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.
7.07.020 Records Required.
A. In any event the Grantee shall at all times maintain:
1. A record of all complaints received and interruptions of
degradation of service experienced for the preceding three (3) years.
2. 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 territory, exclusive of subscriber
service drops.
7.07.030 Maintenance and Complaints.
A. The Grantee shall maintain an office in the service area which
shall be open during all usual business hours, have a publicly listed toll-
free telephone, and be so operated to receive subscriber complaints and
requests for repairs or adjustments on a twenty-four (24) hour a day basis. A
written log shall be maintained listing all complaints and their disposition
as required by Section 7.07.020 A 1.
B. The Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded by
notice and shall occur during period of minimum use of the system. A written
log shall be maintained for all service interruptions as required by Section
7.07.020 A 1.
C. The Grantee shall maintain a repair force of technicians capable
of responding to subscriber complaints or requests for service within twenty-
four (24) hours after receipt of the complaint or request. No charge shall be
made to the subscriber for this service.
Ordinance No. 220
Page 27
D. The Grantee shall furnish each subscriber at the time service is
installed, written instructions that clearly set forth procedures, furnish
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 furnish information concerning the Grantor office responsible for
administration of the franchise with the address and telephone number of the
office.
7.07.040 Rights of Individuals
A. Grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of 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 title by
reference.
B. 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.
C. No signals of a Class IV cable communications channel shall be
transmitted from a subscriber terminal for purposes of monitoring individual
viewing patterns or practices without the express written permission of the
subscriber. The request for such permission shall be contained in a separate
document with a prominent statement that the subscriber is authorizing the
permission in full knowledge of its provision. Such written permission shall
be for a limited period of time not to exceed one (1) year, which shall be
renewsble at the option of the subscriber. No penalty shall be invoked for a
subscriber's failure to provide or renew such an authorization. The
authorization shall be revokable at any time by the subscriber without penalty
of any kind whatsoever. Such authorization is required for each type or
classification of Class IV cable television activity planned; provided
however, that the Grantee shall be entitled to conduct systemwide or
individually addressed "sweeps" for the purpose of verifying system integrity,
controlling return-path transmission, or billing for pay services.
D. The Grantee, or any of its agents or employees, shall not,
without the specific written authorization of the subscriber involved, sell,
or otherwise make available to any person:
1. Lists of the names and addresses of such subscribers, or
2. Any list which identifies the viewing habits of individual
subscribers.
E. 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. Allocation of use of said facilities shall be made
according to the rules or decisions of the Grantee, the Grantor in its lawful
exercise of regulatory authority, and any state or federal regulatory agencies
affecting the same.
7.07.050 Contlnuit~ of Service Mandator~
A. 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 regardless of the
circumstances.
Ordinance No. 220
Page 28
In the event of a change of franchisee, or in the event a new
operator acquires the system, the Grantee shall cooperate with the Grantor,
new franchisee 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.
B. 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.
7.07.060 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. Such rules, regulations, terms
and conditions shall be submitted to the Grantor for its review and Grantor
approval is required prior to their becoming effective.
7.07.070 Tenant Rights. 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:
A. To Grantee's providing of the service to units of the facility;
B. To reasonable conditions and times for installation,
maintenance, and inspection of the system on the facility premises;
C. To reasonable conditions promulgated by Grantee to protect
Grantee's equipment and to encourage widespread use of the system; and
D. To not discriminate in rental charges, or otherwise, between
tenants who receive cable service and those who do not.
Chapter 7.08
RIGHTS RESERVED TO THE GRANTOR
Sections:
7.08.010 Right to Purchase the System
7.08.020 Right of Inspection of Records
7.08.030 Right of Inspection of Construction
7.08.040 Right of Intervention
7.08.050 Right to Require Removal of Property
7.08.010 Right to Purchase the System. The Grantor may in any
lawful manner and upon the payment of a fair valuation lawfully ascertain,
purchase, condemn, acquire, take over and hold the property and plant of the
Grantee in whole or in part. If such purchase or taking over be upon
revocation of the franchise or at the expiration of the term of the franchise
such valuation shall not include any sum for the value of the franchise or
grant under which such plant and property is being operated.
Ordinance No. 220
Page 29
7.08.020 Right of Inspection of Records. There shall be kept in
the Grantor's office a separate record for the franchise, which record shall
show the items hereafter set forth. The Grantee shall provide such
information in such form as may be required by the Grantor for said records.
A. The true and entire cost of construction equipment, of
maintenance and of the administration and operation thereof; the amount of
stock issued, if any; the amount of cash paid in, the number of and par value
of shares, the amount and character of indebtedness, if any; the rate of
taxes, the dividends declared; the character and amount of all fixed charges;
the allowance, if any, for interest, for wear and tear or depreciation; all
amounts and sources of income.
B. Any amount collected annually from the Grantor treasury and the
character and extent of the service rendered therefor to the Grantor.
C. The amount collected annually from other users of service and
the character and extent of the service rendered therefor to them.
The books and records kept by the Grantor shall be open to
public examination at any time during the business hours of the Grantor's
office. The information, in addition to any further data which may be
required by the Grantor, shall be furnished by the Grantee to the Grantor upon
request, and at the Grantee's own cost and expense.
7.08.0~0 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.
7.08.040 Right of Intervention. The Grantor shall have the right
of intervention in any suit or proceeding to which the Grantee is party, and
the Grantee shall not oppose such intervention by the Grantor.
7.08.050 Right to Require Removal of Property. At the expiration
of the term for which the franchise is granted, or upon its revocation or
expiration, as provided for herein, the Grantor shall have the right to
require the Grantee to remove, at its own expense, all portions of the Cable
Communications System from all streets and public ways within the franchise
area.
Chapter 7.09
RIGHTS RESERVED TO THE GRANTEE
Sections:
7.09.010 Right of Grantee
7.09.010 Right of Grantee. In the event of any dispute between
Grantee and Grantor over this title or the franchise agreement, or with
respect to any rights or obligations arising therefrom, Grantee shall first
pursue and exhause all available administrative remedies. Thereafter Grantee
may pursue any appropriate legal action which such action may be brought only
in a Superior or Municipal Court of California situated in the County of San
Bernardino.
Chapter 7.10
FRANCHISE VIOLATIONS
Sections:
7.10.010 Remedies for Franchise Violations
7.10.020 Procedure for Remedying Franchise Violations
7.10.030 Force Majeure; Grantee's Inability to Perform
Ordinance No. 220
Page 30
7.10.010 Remedies for Franchise Violations. If the Grantee fails
to perform any obligation under the franchise, or fails to do so in a timely
manner, the Grantor may at its option, and in its sole discretion;
A. 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 immediately upon said assessment. The amount of such
assessment shall be deemed, without proof, to represent liquidation of 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 reasons 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 from Grantor's right to enforce the
provisions of the construction and performance bonds provided for in Chapter
4, and is intended to provide compensation to Grantor for actual damages.
B. For violations considered by Grantor to have materially degraded
the quality of service, order and direct Grantee to issue rebates or reduce
its rates and/or charges to subscribers, in an amount solely determined by
Grantor to provide monetary relief substantially equal to the reduced quality
of service resulting from Grantee's failure to perform.
C. Require Grantee to cure all defaults and breaches of its
obligations hereunder before Grantee is entitled to increase any rate or
charge to subscribers hereunder.
D. Terminate the franchise, for any of the causes stated in Chapter
2.
E. 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 7.10.020.
Grantor may, in its sole Judgment and discretion, 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.
7.10.020 Procedure for Remedying Franchise Violations. In the
event that the Grantor determines that the Grantee has violated any provision
of the franchise, any rule or regulation promulgated pursuant hereto or any
applicable federal, state, or local law, the Grantor may make a written demand
on the Grantee that it remedy such violation. If the violation, breach,
failure, refusal, or neglect is not remedied to the satisfaction of the
Grantor within thirty (30) days following such demand, the Grantor shall
determine whether or not such violation, breach, failure, refusal, or neglect
by the Grantee was excusable or inexcusable, in accordance with the following
procedure:
A. 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.
B. If, after notice is given and, at the Grantee's option, a full
public proceeding is held, the Grantor determines that such violation, breach,
failure, refusal, or neglect by the Grantee was excusable as provided in
Section 7.10.030, 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 direct.
C. If, after notice is given and, at the Grantee's option, a full
Ordinance No. 220
Page 31
public proceeding is held, the Grantor determines that such violation, breach,
failure, refusal or neglect was inexcusable, then the Grantor may impose a
remedy in accordance with Section 7.10.010.
7.10.O50 Force Majeurei 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 or 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 occurence of such an event.
Such causes beyond Grantee's reasonable control or not reasonably foreseeable
shall include, but shall not be limited to, Acts of God and civil emergencies.
Chapter 7.11
REPORTS
Sections:
7.11.010 Annual Reports
7.11.020 Plant Survey Report
7.11.030 Copies of Federal and State Reports
7.11.040 Public Reports
7.11.050 Complaint File and Reports
7.11.060 Privacy Report
7.11.070 Miscellaneous Reports
7.11.080 Inspection of Facilities
7.11.090 Business Office and Files
7.11.100 Public Inspection
7.11.110 Failure to Report
7.11.120 False Statements
7.11.130 Cost of Reports
7.11.010 Annual Reports. At Grantor's sole option, within sixty
(60) days after the close of Grantee's fiscal year, the Grantee shall submit a
written annual report, in a form approved by the Grantor, including, but not
limited to, the following information:
A. 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;
B. A financial statement, audited by, an independent Certified
Public Accountant, or certified by an officer of the Grantee, including a
statement of income, revenues, operating expenses, value of plant, annual
capital expenditures, depreciation with an attached depreciation schedule,
interest paid, taxes paid, balance sheets, and a statement of sources and
application of funds.
C. A current statement of costs of construction by component
categories;
D. A projected income statement and statement of projected
construction for the next two (2) years;
E. A list of Grantee's officers, members of its board of directors,
and other principals of Grantee;
F. 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;
G. To the extent that money, other than profits, is paid to a
Ordinance No. 220
Page 32
parent, subsidiary, or other person affiliated with the Grantee, the amounts
of such payments and the basis for computation of such amounts (e.g., the
basis for computing any management fees or share of "home office" overhead).
7.13.020 Plant Survey Report. At Grantor's sole option, Grantee
shall submit to the Grantor an annual plant survey report which shall be a
complete survey of the Grantee's plant 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 FCC and/or the franchise are achieved and
maintained. If Grantor has reason to believe that portions or all of the
system do not meet either the FCC technical standards, or those 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.
7.11.030 Copies of Federal and State Reports. The Grantee shall
submit to the Grantor copies of all pleadings, applications, reports,
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 simultaneously with their submission to
such courts, agencies and bodies; and within five (5) days after their receipt
from such courts, agencies and bodies. 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.
7.11.040 Public Reports. A copy of each of Grantee's annual and
other periodic public reports and those of its parent, subsidiary and
affiliated corporations and other entities, as the Grantor requests and is
reasonably appropriate, shall be submitted to the Grantor within five (5) days
of its issuance.
7.11.050 Complaint File and Reports. An accurate and
comprehensive file shall be kept by the Grantee of any and all complaints
regarding the cable system. 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 shll be kept. These files and
records shall remain open to the public during normal business hours:
A. A summary of complaints, identifying the number and nature of
complaints and their disposition, in a form approved by the Grantor, shall be
completed for each month and submitted to the Grantor by the tenth day of
succeeding month.
B. The results of an annual opinion survey report which identifies
satisfaction of 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 format approved by the Grantor and
may be in a form that can be transmitted to subscribers with one (1) or more
bills for service.
7.11.060 Privacy Report. At Grantor's option, Grantee shall
Ordinance No. 220
Page 33
submit to the Grantor an annual report indicating the degree of compliance
with the privacy provisions of Chapter 7 of this title, and all steps taken to
assure that the privacy rights of individuals have been protected.
7.11.070 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.
7.11.080 Inspeetlon of Facilities. The Grantee shall allow the
Grantor to make inspections of any of the Grantee's facilities and equipment
at any time upon reasonable notice, or, in case of emergency, upon demand
without prior notice, to allow Grantor to verify the accuracy of any submitted
report.
7.11.090 Business Office and Files. At the Grantee's local
office, as required by Section 7.07.030 herein, Grantee shall keep complete
and accurate books and records. The Grantor shall have the right to inspect
at any time during normal business hours ali books, records, maps, plans,
income tax returns, financial statements, service complaint logs, performance
test results and other like materials of the Grantee which relate to the
operation of the Cable System. Access to the aforementioned records shall not
be denied by the Grantee on the basis that said records contain confidential,
privileged, or proprietary information.
7.11.100 Public Inspection. All reports subject to public
disclosure, shall be available for public inspection at a designated Grantor
office during normal business hours.
7.11.110 Failure to Report. The refusal, failure, or neglect of
the Grantee to file any of the reports required, or such other reports as the
Grantor reasonably may request, shall be deemed a material breach of the
franchise, and shall subject the Grantee to all remedies, legal or equitable,
which are available to the Grantor under the franchise or otherwise.
7.11.120 False Statements. Any materially false or misleading
statement or representation made knowingly by the Grantee in any report
required under the franchise shall be deemed a material breach of the
franchise and shall subject the Grantee to all remedies, legal or equitable,
which are available to the Grantor under the franchise or otherwise.
7.11.130 Cost of Reports. All reports and records required under
this or any other Section shall be furnished at the sole expense of the
Grantee.
Chapter 7.12
MISCELLANEOUS PROVISIONS
Sections:
7.12.010 Compliance with State and Federal Laws
7.12.020 Separability Non-Material Provisions
7.12.030 Separability-Material Provisions
7.12.040 Notices
7.12.050 Captions
7.12.060 No Recourse Against the Grantor
7.12.070 Nonenforcement by the Grantor
7.12.010 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 laws and regulations of the state and federal
government or any admministrative agencies thereof. Provided, however, if any
such state or federal law or regulation shall require the Grantee to perform
any service, or shall permit the Grantee to perform any services, or shall
prohibit the Grantee to perform any service, or shall prohibit the Grantee
Ordinance No. 220
Page 34
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.
7.12.020 Separability Non-Material Provisions. If any provision
of this title or any related agreements is held by any court or by any
federal, state, or local agency of competent Jurisdiction to be invalid as
conflicting with any federal, state, or local law, rule or regulation now or
hereafter in effect, or is held by such court or agency to be modified in any
way in order to conform to the requirements of any such 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 title, and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event that such law,
rule or regulation is subsequently repealed, rescinded, amended or otherwise
changed, so that the provision hereof or thereof which has been held invalid
or modified is no longer in conflict with the 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.
7.12.050 Separability-Material Provisions. If any material
section of this title, as determined by the Grantor, is held to be invalid or
preempted by federal, state or county regulations or laws, the Grantor shall
negotiate with Grantee appropriate modifications to the franchise to provide
reasonable relief to the Grantor from such invalidity or premption, including
the payment of damages. If the parties are unable to reach agreement on such
modifications, then the dispute shall be submitted to a mutually agreeable
arbitrator, in accordance with state law, who shall determine what
modifications and/or liquidated damages 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
federal or state law or regulation.
7.12.040 Notices. Grantee shall maintain within the service area
throughout the term of the franchise, an address for service of notices by
mail.
7.12.050 Captions. The captions to sections throughout this
title are intended solely to facilitate reading and reference. Such captions
shall not affect the meaning or interpretation of this title.
7.12.060 No Recourse A~ainst the Grantor. The Grantee shall have
no recourse whatsoever against the Grantor or its officials, boards,
commissions, agents, or employees for any loss, costs, expense, or damage
arising out of any provision or requirement of the franchise or because of the
enforcement of the franchise.
7.12.070 Nonenforcement by the Grantor. The Grantee shall not be
relieved of its obligation to comply with any of the provisions of this title
by reason of any failure of the Grantor to enforce prompt compliance.
SECTION 2: The Mayor shall sign this Ordinance and the City Clerk
shall attest to the same, and the City Clerk shall notice of the adoption of
this Ordinance by publishing a display advertisement prepared in accordance
with Government Code 36933 (c) (2) within fifteen (15) days after the adoption
of this Ordinance at least once in The Daily Report, a newspaper of general
circulation, published in the City of Ontario, and circulated in the City of
Rancho Cucamonga.
PASSED, APPROVED, and ADOPTED this 21st day of March, 1984.
AYES: Dahl, Buquet, Mikels, Frost
Ordinance No. 220
Page 35
NOES: None
ABSENT: Schlosser
/~ D. Mtkels, Mayor
ATTEST: