HomeMy WebLinkAboutOrdinances - No. 1370ORDINANCE NO. 1370
AN OmINANCE OF THE IQDI CITY C0t.JK.U;
WlXLITSIG IDDI MUNICIPAL CODE CHAPTEX 5.16
CC”ITY ANTENNA TELEVISION SYSTEM FRANCHISES
AND ENACTING A TSJEM CHAPTER 5.16 -
=TY CABLE TEXEVISION SYSTEN F”CXISES
BE IT Ol3DAINED BY THE IQDI CITY COUNCIL.
SECTION 1. Chapter 5.16 - Cormunity Antenna Television System Franchises, of
Title 5 of the Municipal Code is hereby repealed in its entirety, and a new
Chapter 5.16 - Codty Cable Television System Franchises is hereby enacted, as
follows :
Chapter 5.16
COMMUNITY CABLE T33LEWISION SYSm E”(XISEs
SECTIONS:
5.16.010
5.16.020
5.16.030
5.16.040
5.16.050
Definitions.
Franchise required.
Grant of Authority.
Application.
Grant or refusal.
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5.16.060
5.16.070
5.16.080
5.16.090
5.16.100
5.16.110
5.16.120
5.16.130
5.16.140
5.16.150
5.16.160
5.16.170
5.16.180
5.16.190
5.16.200
5.16.210
5.16.220
5.16.230
5.16.240
5.16.250
5.16.260
5.16.270
5.16.280
5.16.290
5.16.300
5.16.310
5.16.320
Acceptance.
Conditions.
Duration/Renewal of franchise.
Payment.
Financial statmt--Audit-Minirrnrm pa-t .
Rates for service.
Limitations.
Rights reserved by city.
Complaint procedure.
Refunds.
Liquidated damages.
Ccmt-encenent of construction and service.
Forfeiture and termination.
Security fund.
Construction bond.
Construction practices.
Remval or abandonment of facilities.
Changes required by public kproverraents.
Failure to complete work.
Insurance.
Right of inspection--Plans and records.
Service standards.
Continuity of service mandatory.
Performance evaluation sessions.
New developwnts .
Filings with city.
Fiscal report.
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5.16.330
5.16.340
5.16.350
5.16.360
5.16.370
5.16.380
5.16.390
5.16.400
5.16.410
5.16.420
5.16.430
Refusal of service.
Service contract.
Television sale or repair.
Free service.
Moving of buildings.
Unauthorized connections-Tamperhg.
Transfers and assigrments.
Access channels.
Waivers
Required services and facilities.
Construction and technical standards
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5.16.010 Definitions.
For the purposes of this chapter, the following words and phrases shall have
the meanings respectively ascribed to than by this section:
a. "Access channel" shall mean a single channel dedicated in whole or in
part for local programning which is not originated by a cable company.
b. "Basic Service" shall mean any service tier which include the
retransnission of local television broadcast signals and Public, Educational and
Goverment Access Channels.
"Cable Services" are defined as the one-way transmission to subscribers
of video prograimhg and other programnhg services together with subscriber
c.
interaction, if any, which is required for the selection of such prograrmhg and
programing services that the cable operator makes available to all subscribers
generally. Ekamples of cable services include: video programing, pay-per-
view, voter preference polls in the context of a video program, teletexts, one-
way transmission of any computer software, and one-way videotex services such as
news services, stock market information, etc. Non-cable services would
include: shop-at-hone, bank-at-hme services, electronic mail, one-way and
two-way transmission of non-video data and information not offered to all
subscrikers, data processing, video conferencing and voice camnication.
d. "Cablecasting" is prOgramning carried on a cable system, exclusive of
broadcast signals, whether originated by the cable operator or any other party.
e. "Cable System" shall mean a facility consisting of a set of closed
transmission paths and associated signal generation, reception, and control
eqdpnent that is designed to provide cable service which includes video
programing and which is provided to multiple subscribers within a cxmnunity, but
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such term does not include (A) a facility that serves only to retransnit the
television signals of one or mre television broadcast stations; (B) a facility
that serves only subscribers in one or mre multiple unit dwellings under ccmmn
ownership, control, or mnagem?nt, unless such facility or facilities uses any
public right-of-way; (C) a facility of a cannon carrier which is subject in whole
or in part, to the provisions of Title I1 of the cannurn 'cations Act of 1984,
except that such facility shall be considered a cable system to the extent such
facility is used in the transmission of video prqramning directly to subscrikrs;
or (D) any facilities of any electric utility used solely for operating its
electric utility systems.
f.
by the Company.
g.
"Wal Origination Prograrruning" shall mean programing locally prcduced
"Franchise" means any nonexclusive authority granted pursuant to this
chapter in terms of franchise or franchise renewal or otherwise to construct,
operate and maintain a cable system in the incorporated area of the city. The
term "franchise" shall include the term "franchise renewal" herein.
h. Franchise area" mans all or any portions of the incorporated area of
the city for which a franchise has been granted under this chapter.
i. "Grantee" mans the person to whom a franchise under this chapter is
granted by the council and any lawful successor or assignee of such a person.
j. "Gross annual receipts" mans any and all ccanpensation or receipts
obtained from and as a result of the operation of a cable system by a grantee
within the franchised area; except that such term shall not include receipts or
canpensation for :
1.
2.
Installation, reconnection or any other nonrecurring charges;
The munt of any refunds, credits or other paymnts made to subscribers
or users ;
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3. Any taxes on services furnished by the grantee imposed directly or
indirectly on any subscriber or user by any municipal corporation, political
subdivision, state or other gov-tal unit and collected by the grantee for the
governmntal unit; and
4.
5.
6. The issuance, sale or transfer of corporation stocks, bonds or other
The sale or transfer of tangible property;
The sale or transfer of the franchise;
securities; and
7. Loans or gifts to the grantee.
k. "Person" means any person, firm, association, organization, partnership,
business trust, joint venture, corporation or cc~npany.
1. 'Property of grantee" mans any property constructed, installed,
operated or maintained by a grantee under the authority of a nonexclusive
franchise issued pursuant to this chapter.
m. "Street" means the surface of, and the space above and below, any public
street, road, highway, freeway, lane, alley, court, sidewalk, parkway, drive,
public utility easemnt or other public place as may be authorized by the council,
existing as such as of or after the effective date of the ordinance codified in
this chapter within the incorporated area of the city.
n. "Subscriber" means any person or entity receiving for any purpose the
cable service of a grantee.
5.16.020 Franchise required.
No person shall extend, operate or carry on the business of distributing to
any persons in this city any television signals or radio signals by mans of a
cable system unless a franchise or renewal of franchise therefor has first been
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obtained pursuant to the provisions of this chapter, and unless such franchise or
renewal of franchise is in full force and effect. No person shall construct,
install or maintain within any street in the city or within any other public
property of the city or within any privately owned area within the city which has
not yet beccane a public street but is designated or delineated as a proposed
public street on any tentative subdivision map approved by the city, any equipnent
or facilities for distributing any television signals or radio signals through a
cable system, unless a franchise authorizing such use of such street or property
or area has first been obtained pursuant to the provisions of this chapter, and
unless such franchise is in full force and effect.
5.16.030 Grant of authority.
a. A nonexclusive franchise to construct, operate and maintain a cable
system within any franchise area may be granted by the council to any person,
whether operating under an existing franchise or not, offering to furnish and
provide a system pursuant to the terms and provisions of this chapter. No
provision of this chapter shall be construed as to require the granting of a
franchise when in the opinion of the council it is in the public interest to
restrict the number of grantees to one or mre. Neither the granting of any
nonexclusive franchise under this chapter nor any of the provisions contained in
this chapter shall be construed to prevent the city frm granting any identical,
or similar, nonexclusive franchise to any person within the city.
b. Successful applicants chosen by the City Council will be granted the
right and privilege to construct, erect, operate and maintain, in, upon, along,
across, above, over and under the streets, alleys, public ways and public places
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now laid out or dedicated and all extensions thereof and additions thereto in the
City poles, Wires, cables, underground conduits, manholes, and other cable
conductors and fixtures necessary for the maintenance and operation in the City of
Lcdi of a cable system to be used for the sale and distribution of cable services
to the residents of the City.
c. Any privilege claimd under any such franchise by the Grantee in any
street or other public property shall be subordinate to any prior lawful occupcy
of the streets or other public property.
d. Insofar as it is not inconsistent with or otherwise preempted by Federal
or State regulations, the City Council also grants the right and privilege to
successful Grantees to provide non-cable comnunications services. The City
Council retains all authority, not otherwise preempted, to regulate non-cable
ccararmnications services to the extent necessary to assure the delivery of proposed
non-cable services, if any, and that they are in compliance with all regulatory
provisions of this ordinance.
e. The construction, maintenance, and operation of Grantee's cable system
and all property of Grantee subject to the provisions of this ordinance shall be
subject to all lawful police powers, rules, and regulations of the City. The City
shall have the power at any time to order and require Grantee to remve or abate
any pole, line, tower, wire, cable, guy, conduit, electric conductor, or any other
structure or facility that is dangerous to life or property. In the event
Grantee, after written notice, fails or refuses to act, the City shall have the
power to remove or abate the sane at the expense of the Grantee, all without
compensation or liability for damages to Grantee.
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5.16.040 App lication.
A. An application for a franchise or franchise renewal under this chapter
shall be in writing and accompanied by a paymnt to the city in an aroount to be
established and mded from time to tine by resolution of the City Council. An
application shall contain the following information:
1. The nam and address of the applicant. If the applicant is a
partnership, the name and address of each partner shall be set forth. If the
applicant is a corporation, the application shall state the ms and addresses
of its directors, main officers, major stockholders and associates, and the nares
and addresses of parent and subsidiary companies;
2. A description of the mer in which the applicant proposes to
construct, install, maintain and operate the cable system and the extent and
manner in which existing or future poles or other public utilities will be used
for the system;
3. A detailed description of the proposed plan of operation of the
applicant which shall include, but not be limited to the following:
a) A detailed map indicating all areas to be served, how they are to be
served and a proposed tim schedule for the installation of all equiprent
necessary to becw 100 percent operational, throughout the entire area to
be served;
b) A detailed, informative, and referenced statemnt describing the
actual equipment and the operational and technical standards proposed by the
applicants.
4. A statement of the estimated costs of the installation of the proposed
system described in paragraphs 2 and 3 of this subsection.
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5. All applicants are required to clearly delineate the initial service
Said map area being proposed on a map of sufficient detail (see No. 3 above) .
shall also indicate any and all areas that will - not receive services.
6. All applicants shall agree to extend cable system upon requestof any
contiguous area not designated for initial service in the plan when potential
subscribers can be served by extension of the cable system past dwelling units
equivalent to a density of forty (40) hares per mile of street. Extension shall
be at Grantee's cost. If undergrounding is required by regulation, Grantee must
make installation at Grantee's expense. Where aerial extension is allowed by
regulation but underground installation is requested by benefitted subscribers,
the cost of undergrounding that exceeds the estimated aerial extension cost may
be charged to benefitted subscribers.
7. A statemnt or schedule in a form approved by the city manager of
proposed rates and charges to subscribers for installation and services, and a
copy of the proposed service agrewnt between the grantee and its subscribers
shall accompany the application:
8. A sta-t setting forth all agre-nts and understandings, whether
written, oral or implied existing between the applicant and any person who is a
party in interest with respect to the proposed franchise or the proposed cable
operation. If a franchise is granted to a person posing as a front or as the
representative of another person, and such information is not disclosed in the
original application, such franchise is void and of no force and effect;
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9. A financial staterrent prepared by a certified public accountant or
public accountant satisfactory to the council, dmnstrating applicant's financial
status and its financial ability to complete the construction or reconstruction,
installation, and operation of the proposed system.
10. An original application for a franchise shall include a detailed
financial plan (pro forma) describing €or each year of the franchise, projected
numkr of subscribers, rates, all revenues, operating expenses, capital
expenditures, depreciation schedule, inm statements and a sources and uses of
funds statemat. All information is to be presented in the format to be
prescribed by the City.
B. The council may at any tk demand, and applicant shall then provide,
such supplemntary, additional or other information as the council deems
reasonably necessary to determine whether the requested francfise should be
granted.
5.16.050 Grant or refusal.
Upon consideration of any application, the council my refuse to grant the
reested franchise or the council may by resolution grant a franchise for a cable
system to any applicant as may appear frm its application to be in the opinion of
the council best qualified to render good and efficient cable service to
subscribers in the proposed franchise area. The application suhitted, tqether
With any amndwnts, and this chapter shall constitute and form part of the
franchise if granted.
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5.16.060 Acceptance.
Within thirty days after the date of a resolution awarding a franchise, or
within such extended period of tine as the council may authorize, the grantee
shall file with the city mnager his written acceptance in fonns satisfactory to
the city attorney, of the franchise, together with the required bond and insurance
policies, and his agreerent to be bound by and to ccsmply with and to do all things
required of him by the provisions of this chapter and the franchise. Such
acceptance and agreertent shall be acknowledged by the grantee before a notary
public and shall be in form and content satisfactory to, and approved by, the city
attorney.
5.16.070 Conditions.
A. Any franchise granted pursuant to this chapter shall include, mng
other things, the following condition:
The cable system herein franchised shall be used and operated solely and
exclusively for the purpose expressly authorized by Ordinance of the City of
lbdi and no other purpose whatsoever.
B. Inclusion of the statement set out in subsection A of this section in
any such franchise does not limit the authority of the city to include any other
reasonable condition, limitation or restriction which it deems necessary to impose
in connection with a franchise granted pursuant to the authority conferred by this
chapter.
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5.16.080 Duration/Renewal of franchise.
A. The duration of the rights, privileges and authorizations granted in a
franchise agreement shall be not to exceed twenty years from the date a franchise
is awarded. A franchise may be renewed by the City upon application of the
Grantee pursuant to the procedure established in sub-section b of this section
and in accordance with the then applicable law.
B. Renewal.
(1)
before the Franchise expiration, the City may on its own initiative, and
shall at the request of the Grantee, camsnce proceedings which afford the
public appropriate notice and participation for the purpose of:
During the six-Ioonth period which begins with the 36th mnth
Identifying the future cable-related camunity needs and interests;
and
Reviewing the performance of the Grantee under the franchise during
the then current franchise term.
Upon completion of a proceeding under subsection (1) , the Grantee
seeking renewal of a franchise may, on its awn initiative or at the
request of the City, subit a proposal for renewal.
Any such proposal shall contain such material as the City may
reqyire, including proposals for an upgrade of the cable system.
The City may establish a date by which such proposal shall be
s*tted.
Upon sWttal by the Grantee of a proposal to the City for the
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renewal of the franchise, the City shall provide public notice of
such proposal and, during the 4-mnth period which begins on the
ccanpletion of any proceedrn * gs under subsection (1), renew the
franchise or, issue a preliminary assessnent that the franchise
should not be renewed and, at the request of the Grantee or on its
own initiative, cOmnence an administrative proceeding, after
providing prompt public notice of such proceeding, in accordance
with paragraph (3) (b) to consider whether--
(i)
of the existing franchise and with applicable law;
(ii)
quality, response to consumer ccanplaints, and billing
practices, but without regard to the mix, quality, or
level of cable services or other services provided over the
system, has been reasonable in light of community needs;
(iii) the Grantee has the financial, legal, and technical ability
to provide the services, facilities, and equip'mlt as set forth in
the Grantee's proposal; and
(iv)
cable-related comnunity needs and interests, taking into account
the cost of meeting such needs and interests.
In any proceeding under paragraph (3) (a), the Grantee shall be
afforded notice and the Grantee and the City, or its designee, shall
be afforded fair opprtunity for full participation, including the
right to introduce evidence (including evidence related to issues
raised in the proceeding under subsection (1)) to require the
production of evidence and to question witnesses. A transcript
the Grantee has substantially complied with the material terms
the quality of the Grantee's service, including signal
the Grantee's proposal is reasonable to met the future
(b)
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shall be mde of any such proceeding.
At the carpletion of a proceeding under this subsection, the City
shall issue'a written decision granting or denying the proposal for
renewal based upon the record of such proceeding, and transmit a copy
of such decision to the Grantee.
reasons therefor.
Any denial of a proposal for renewal shall be based on one or mre
Such decision shall state the
adverse findings made with respect to the factors described in
subparagraphs (i) through (iv) of subsection (3) (a) , pursuant to the
record of the proceeding under subsection (3).
(5) If the Grantee's proposal for renewal has been denied by a final
decision of the City made pursuant to this section, or has been adversely
affected by a failure of the City to act in accordance with the procedural
rcquirarents of tkis section, the Grantee may appeal such final decision
or failure pursuant to the provisions of section 635 of the Federal Cable
Ccmndcations Policy Act of 1984.
(6)
section, the Grantee may suhnit a proposal for the renewal of the
franchise pursuant to this subsection at any tk, and the City may, after
affording the public adqate notice and opportunity for cement, grant or
Notwithstanding the provisions of subsections (1) through (5) of this
deny such proposal at any time (including after proceedings pursuant to
this section have ccarpnenced). The provisions of subsections (1) through
(5) of this section shall not apply to a decision to grant or deny a
proposal under this subsection. The denial of a renewal pursuant to this
subsection shall not affect action on a renewal proposal that is sul-anitted
in accordance with subsections (1) through (5) .
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5.16.090 Paymnt.
Any grantee granted a franchise under this chapter shall pay to the city,
during the life of such franchise, a sum equal to three percent of the annual
gross receipts of the grantee, payable quarterly.
5.16.100 Financial statemnt--Audit-Minirnum payrru3n t.
A. The grantee shall file with the council within ninety days after the
expiration of any fiscal year or portion thereof during which a franchise is in
force, a financial statement prepared by a certified public accountant or public
accountant showing in detail gross annual receipts, as defined in this chapter, of
the grantee during the preceding calendar year or portion thereof. It shall be
the duty of the grantee to pay to the city within fifteen days after the tb for
filing such staterrents the sum prescribed by the franchise, or any unpaid balance
thereof, for the calendar year or the portion thereof covered by the statment.
B. The right is reserved to the city of audit and recomputation of any and
all munts paid under this chapter and acceptance until expiration of a period of
five years following payrent shall not be construed as a release or as an accord
and satisfaction of any claim the city my have for further or additional sums
payable under this chapter or for the prfomce of any other obligations under
this chapter.
C. In any year, comnencing with the first full calendar year of service
during which the franchise paymats munt to less than twelve hundred dollars,
the grantee shall pay to the city for such a year a minimum total amount of twelve
hundred dollars.
D. In the event of any holding over after expiration or any other
termination of a franchise issued under this chapter, whether with or without the
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consent of the city, the grantee shall pay to city a canpensation twice the
percent of its gross annual receipts during such period as it would be required to
pay under its franchise if there were no holding over.
5.16.110 Rates for service.
The grantee shall file with the city council a true and correct schedule of
rates to be charged for installation and connection to its cable system and a
mnUy charge for cable service. Such rates shall not be changed or rnodified in
any manner without first filing the changed or rrsdified rates with the city
council thirty days prior to the effective date of such change or modification.
The City Council shall have the authority to regulate the rates to the
extent the Council is permitted to by Federal, State or local law.
5.16.120 Limitations.
A.
B. No privilege or exemption shall be authorized or conferred by any
franchise granted under this chapter except those specifically prescribed in this
Any franchise granted under this chapter shall be nonexclusive.
chapter.
C. Any privilege clhd under a franchise by the grantee in any street, or
other public property, shall be subordinate to any prior occupancy thereof for
public purposes.
D. A franchise granted under this chapter shall be a privilege to be held
in personal trust by the original grantee. It cannot be sold, transferred,
leased, assigned or disposed of, in whole or in part, either by forced or
involuntary sale, sale, mrger, consolidation or otherwise, without prior consent
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of the council expressed in writing. The grantee shall file with the council
within thirty days prior to sale, transfer, assiyt or lease of the franchise
or any part thereof or any rights or privileges granted thereby, written evidence
of the proposed transaction certified to by the grantee or its duly authorized
officers. Any proposed assignee must show financial responsibility to carry out
the terms of the franchise and mst agree to comply with all of the provisions of
this chapter; and provided further, that no consent or approval shall be required
for a transfer in trust, by mrtgage, by security agreamnt, or by other
hypothecation as a whole, to secure an indebtedness, or for a transfer required by
operation of law.
E. Any right or power in, or duty impressed upon any officer, employee,
department or board of the city shall be subject to transfer by the council or by
law to any other officer, employee, department or board of the city.
F. The grantee shall have no recourse whatsoever against the city for any
loss, cost, expense or damage, arising out of any provisions or requir-ts of
this chapter or its enforcemnt.
G. Any franchise granted under this chapter shall not relieve the grantee
of any obligation involved in obtaining pole space from any departrnent or division
of the city, other agency of government, utility canpany, or from others
maintaining poles in streets; provided, that the latter shall cooprate with the
grantee to the end that only one set of poles shall be required by all.
H. Any franchise granted under this chapter is in lieu of any and all other
rights, privileges, powers, imunities and authorities owned, possessed,
controlled or exercisable by the grantee, or any successor to any interest of the
grmtee, of or pertaining to the construction, operation or maintenance of any
cable system in the incoxprated limits of the city, and the acceptance of a
franchise under this chapter shall operate as between grantee and the city, as an
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abandomt of any and all of such rights, privileges, pwers, hnunities and
authorities within the city, to the effect that, as between the grantee and the
city, any and all construction, operation and maintenance by any grantee of any
cable system in the city shall be, and shall be deer& and construed in all
instances and respects to be, under and pursuant to such franchise, and not under
or pursuant to any other right, privilege, pwer, imnunity or authority
whatsoever.
5.16.130 Rights reserved by city.
A. Nothing in this chapter shall in any way or to any extent impair or
affect the right of the city to acquire the grantee's property either by purchase
or through exercise of the right of went damah, and nothing in this chapter
shall be construed to contract away or to rrdify or abridge the city's right of
eminent dcgnain in respect to any grantee.
B. No franchke granted under this chapter shall be given any value before
any court or other public authority in any action or proceeding brought by the
city in excess of the munt of the required filing fee and any other sum paid by
the grantee to city for a franchise at the time of granting.
C. There is reserved to the city every right and power which is required to
be reserved or provided in this chapter by any ordinance or resolution of the
city, and the grantee, by its acceptance of any franchise, agrees to be bound
thereby and to ccanply with any action or requiremnts of the city in its exercise
of such rights or power, enacted or established before or after the effective date
of the ordinance codified in this chapter.
D. The council may do all things which are necessary and convenient in the
exercise of its jurisdiction under this chapter.
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E. Neither the granting of any franchise under this chapter nor any of the
provisions contained in this chapter shall be construed to prevent the city from
granting any identical, or similar, franchise to any other person within all or
any portion of the city.
F. There is reserved to city the right to amnd any section or part of this
chapter so as to require reasonable additional or greater standards of
construction, operation, maintenance or otherwise, on the part of the grantee for
purposes of protecting the public health, safety and welfare. This provision
shall not apply to cdtments of a contractual nature made in a franchise
agreement or franchise renewal agreements.
G. Neither the granting of any franchise nor any provision in this chapter
shall constitute a bar to the exercise of any govermental right or power of city.
H. All facilities of any grantee licensed under this chapter within the
city shall be available for civil defense purposes at such tbs as the city
director of civil defense shall require.
5.16.140 Ccanp laint procedure.
A. The city manager or the city manager's designee is specified by the
City as having primary responsibility for the continuing administration of a
franchise and implementation of camplaint procedures.
B. A Grantee shall maintain a central office within or in close proximity
to the City, which shall be open during all usual business hours, have a publicly-
listed telephone with a toll-free number and sufficient lines; and be so
operated that canplaints and requests for repairs, billing or adjustmnts shall be
received on a twenty-four (24) hour basis.
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C. A Grantee shall maintain a repair and maintenance crew which shall
respond to subscriber ccanplaints or requests for service within twenty-four (24)
hours after receipt of the canplaint or request. No charge shall be mde to the
subscriber for this service unless such maintenance or repair is required as a
result of damage caused by subscriber.
D. A Grantee shall establish procedures for receiving, acting upon, and
resolving subscriber camplaints to the satisfaction of the city manager's office.
A Grantee shall furnish a notice of such procedures to each subscriber at the tire
of initial subscription to the system and annually thereafter.
Grantee's service call procedures shall contain provisions to protect the
interests of subscribers. In the event that the Grantee or its employee
detehes that Grantee's cable system is not responsible for any given problem
which has resulted in a service call (i.e., subscriber equipment is at fault) , the
subscriber shall have the right to have this contention demonstrated through the
use of an additional television receiver comparison. A standard television
receiver will be used in the subscriber's hcnne to allow a direct A/B ccenrparison of
performance.
E. A Grantee shall keep a maintenance service log which will indicate the
nature of each service camplaint, the date and tk it was received, the
disposition of said complaint and the time and date thereof. Tkis log shall k
made available for periodic inspection by representatives of the city manager.
All service canplaint entries shall be retained on file for a period consisting of
the mst recent three (3) years.
F. When there have been similar complaints made or when there exists other
evidence, which, in the judgmnt of the city manager casts doubt on the
reliability or quality of cable service, the city manager shall have the right and
authority to compel a Grantee to test, analyze, and report on the perfonnance of
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the system. Such report shall be delivered to the city manager no later than
fourteen (14) days after the city mager formally notifies the Grantee and shall
include the following information: the nature of the ccanplaints which
precipitated the special tests; what system cmponents were tested, the equipent
used, and procedures employed in said testing; the results of such tests; and the
mthod in which said canplaints were resolved.
G. The city manager may require that tests and analyses shall be supervised
by a professional engineer not on the permanent staff of a Grantee. The aforesaid
engineer should sign all records of the special tests and forward to the city
manager such records with a report interpreting the results of the tests and
reconmen&g actions to be taken by a Grantee and the City.
H. The City's right under this section shall be limited to requiring tests,
analyses, and reports covering specific subjects and characteristics based on said
complaints or other evidence when and under such circumstances as the City has
reasonable grounds to believe that the canplaints or other evidence requires that
tests be perfomd to protect the public against substandard cable service.
I. The city manager is authorized and empowered to adjust, settle or
comprmise any controversy or charge arising fram the operations of any grantee
under this chapter, either on behalf of the city, the grantee or any subscriber in
the best interest of the public.
J. Either the grantee or any member of the public who may be dissatisfied
with the decision of the city manager may appeal the matter to the council for
hearing and determination.
K. The council may accept, reject or rr\odify the decision of the city
manager and the council my adjust, settle or canprdse any controversy or cancel
any charge arising from the operations of any grantee or from any provision of
this chapter.
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5.16.150 Refunds.
a. Subscribers not satisfied that services have been provided as outlined
in this ordinance and the Franchise Agreemat shall be encouraged to notify the
System Manager. The Grantee shall mrk with the subscriber to resolve the problem
within 48 hours, and upn request by a subscriber, the Grantee shall credit the
subscriber's account on a pro rata basis for loss of service comnencing 48 hours
after notification of the Grantee.
b. A grantee shall at the tim of initial subscription to the system and
annually thereafter furnish a notice to subscribers of their right to a refund
for any loss or interruption of service for 48 hours or mre.
5.16.160 Liquidated damages.
By acceptance of the franchise granted by the City, a Grantee understands
and shall agree that failure to comply with any tim and performance requiremnts
as stipulated in this ordinance and franchise agreemnt will result in age to
the City, and that it is and will be impracticable to determine the actual munt
of such damage in the event of delay or non-performance; the franchise agreemnt
shall include provisions for liquidated damges to be paid by the Grantee in
arnounts set forth in the franchise agreement and chargeable to the security fund
for the following concerns:
a. Failure to cqlete system construction or reconstruction in accordance
with Section 5.16.170 and Section 5.16.430 unless the Council specifically
approves the delay by mtion or resolution, due to the Occurrence of conditions
beyond Grantee's control, a Grantee shall pay five hundred dollars ($500.00) per
day for each day or part thereof, the deficiency continues.
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b. Failure to provide upon written request, data, d-ts, reports,
information or to cooperate with City during an application process or cable
system review, a Grantee shall pay fifty dollars ($50.00) per day for each day or
part thereof, the violation occurs or continues.
c. Failure to test, analyze and report on the performance of the system
following a written request pursuant to this ordinance, a Grantee shall pay to
City one hundred dollars ($100.00) per day for each day or part thereof, that such
noncompliance continues.
\</
J d. For failure to provide in a continuing manner the broad categories of
* services proposed in the accepted application unless the Council specifically
approves Grantee a delay or change, or the Grantee has obtained dification of
/,
its obligation under Section 625 of the Cable Comications policy Act of 1984;
Grantee shall pay to the City five hundred dollars ($500.00) per day for each day
or part thereof that each noncompliance continues.
e. Forty-five (45) days following adoption of a resolution by the City
Council in accordance with Section 5.16.270 determining a failure of Grantee to
comply with operational, maintenance or technical standards, Grantee shall pay to
the City five hundred dollars ($500.00) for each day or part thereof, that such
non-compliance continues.
f. Any other action or non-action by the Grantee as agreed upon between
the City and Grantee and set forth in the franchise agreemat. Nothing in this
section shall preclude further liquidated damages as agreed upon by the parties in
the franchise agreawnt.
5.16.170 ccntmen-t of construction and service.
A. Construction Plan and Schedule
(1) Map and Plan
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Grantee shall sat a construction plan or reconstruction plan which shall
be incorporated by reference and made a park of the franchise agrmt. The plan
sha3.l consist of a map of the entire franchise area and shall clearly delineate
the following:
(a) The areas within the franchise area where the cable system will be
initially available to subscriber including a schedule of construction for
each year that construction or reconstruction is proposed.
(b) Areas within the franchise area where extension of the cable system
cannot reasonably be done due to lack of present or planned developnmt or
other similar reasons, with the areas and the reasons for not serving them
clearly identified on the map.
B. Upon acceptance of any franchise, the grantee shall irmaedtiately hitiate
action to obtain all permits, licenses, easments, variances and any other
authorizations which are required or necessary in the conduct of its business,
including but not limited to any utility joint use attachment agreemnts,
microwave carrier licenses, any authorizations required to import distant signals,
and any other permits, licenses and authorizations to be granted by duly
constituted regulatory agencies having or asserting jurisdiction over the
operation of the cable system, any associated microwave transmission facilities,
or any other associated facility, and the grantee shall prcceed with due diligence
until all such matters are obtained.
Copies of all petitions, applications and cammunications sulcanitted by the
grantee to the Federal Conmum ‘cations Comnission or any other federal or state
regulatory cdssion or agency having jurisdiction in respect to any matters
affecting cable operations authorized pursuant to its franchise, shall also be
suhitted sinmltaneously to the city by the grantee.
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C. Within ninety days after obtaining all the required or necessary
pennits, licenses, easemnts, variances and any other authorizations referred to
in subsection A of this section, the grantee shall ccBrmence construction and
installation of the cable system.
D. Within six mnths after building permits are granted for a particular
area, the grantee shall proceed to render initial services to subscribers, and the
campletion of construction and installation shall be pursued with reasonable
diligence, not to exceed fifteen months from the date of the granting of the
building permits for the particular area to be served.
E. Failure to do any of the requirements of subsections A, B, C and D of
this section within the th specified except as provided in subsection F of this
section shall be grounds for termination of the franchise.
F. The council may in its discretion extend the the for the grantee,
acting in good faith, to do any act required under this section. The time for
conmencemnt of construction and installation, or the rendering of service to
subscribers, initially or thereafter, shall be extended or excused, as the case
my be, for any period during which the grantee experiences delay or interruptions
due to any of the following circumstances if reasonably beyond its control:
necessary utility changes or rearrangmts, governmental or regulatory
restrictions or requiraents, labor strikes, lockouts, war (declared or
undeclared), national emergency, fire, earthquake, the elements and acts of God.
G. Grantee shall extend cable system upon request of any contiguous area not
designated for initial service in the plan when potential subscribers can be
served by extension of the cable system past &elling units equivalent to a
density of forty (40) hcms per mile of street. Extension shall be at Grantee's
cost. If undergrounding is required by regulation, Grantee must make
installation at Grantee's expense. Where aerial extension is allowed by
-26-
regulation but underground installation is requested by benefitted subscribers,
the cost of undergrounding that exceeds the estimated aerial extension cost may be
charged to benefitted subscribers.
5.16.180 Forfeiture and termination.
a. In addition to all other rights and pers retained by the City under
this ordinance or otherwise, the City reserves the right to forfeit and terminate
a franchise and all rights and privileges of a Grantee in the event of a material
breach of its terms and conditions. In interpreting this ordinance, material
provisions shall include all labeled as such and all others, which, under all the
facts and circumstances indicated, are a significant provision of the franchise
agreemnt. A material breach by Grantee shall include but shall not be limited to
the following:
(1) Failure to begin or complete system construction, reconstruction or
system extension, or system improvemnt as provided under the franchise;
(2) Failure to provide the broad categories of services pr&sed; assuming
Grantee has unsuccessfully pursued whatever recourse is available under Section
625 of the Cable Ccammications Policy Act of 1984;
(3) Failure to restore service after ninety-six (96) consecutive hours of
interrupted service, except when approval of such interruption is obtained frcan
the City; or
(4) Material misrepresentation of fact in the application for or
negotiation of the franchise.
b. The foregoing shall not constitute a material breach if the violation
ccws but it is without fault of a Grantee or occurs as a result of circumstances
beyond its control. Grantee shall not be excused by =re economic hardship nor
-27-
by misfeasance or malfeasance of its shareholders, directors, officers, or
employees.
c. The City my make a written demand that a Grantee ccanply with any such
provision, rules, order, or determination under or pursuant to this ordinance and
franchise agreement. If the violation by the Grantee continues for a period of
thirty (30) days following such written demand without written proof that the
corrective action has been taken or is being actively and expeditiously pursued,
the City my place the issue of termination of a franchise before the City
Council. The City shall cause to be served upn Grantee at least twenty (20) days
prior to the date of such a Council meting, a written notice of intent to request
such termination and the tine and place of the meeting. Public notice shall be
given of the meting and issue which the Council is to consider.
d. The City Council shall hear and consider the issue and shall hear any
person interested therein, and shall determine in its discretion, whether or not
any violation by the Grantee has occurred.
e. If the City Council shall determine the violation by a Grantee was the
fault of Grantee and within its control, the Council my by resolution declare
that the franchise of the Grantee shall be forfeited and terminated unless there
is compliance within such period as the City Council may fix, such period not to
be less than sixty (60) days, provided no opportunity for ccanpliance need be
granted for fraud or misrepresentation.
f. The issue of forfeiture and termination shall autamtically be placed
upon the Council agenda at the expiration of the tine set by it for campliance.
The Council then may terminate a franchise forthwith upon finding that Grantee
has failed to achieve compliance or may further extend the period in its
discretion.
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5.16.190 Security Fund.
a. Within thirty (30) days after the award or renewal of a franchise, a
Grantee shall deposit with the City a corporate surety bond in the amount of
$50,000. shall be used to insure the faithful performance by a Grantee
of all provisions of this ordinance and resulting franchise agreerent; and
cmpliance with all orders, pennits and directions of any agency, cdssion,
board, deparhnent, division or office of the City having jurisdiction over its
acts or defaults under a franchise and the payment by the Grantee of any penalties
liquidated damages, claims, liens and taxes due the City which arise by reason of
the construction, operation or maintenance of the system, including cost of
removal or abandonment of any property of Grantee.
The bond
b. "he corporate surety bond shall be maintained at $50,000 during the
entire term of a franchise, even if munts have
subdivision a. or c. of this section. The Grantee
and effect at all times throughout the existence of
until Grantee has liquidated all of its obligations
to be withdrawn pursuant to
shall keep the same in force
the franchise and thereafter
with the City that my have
arisen from the acceptance of the franchise ordinance by Grantee or frm the
exercise of any right or privilege granted hereunder, including the renaoval of all
poles, wires, cables, underground conduits, manholes, and other conductors and
fixtures incident to the maintenance and operation of its cablesystem, should
such renaoval be required by City Council or undertaken by Grantee upon the
termination of the franchise.
c. If a Grantee fails to pay to the City any compensation within the time
fixed herein; or fails after ten (10) days' notice to pay to the City any taxes
due and unpaid; or fails to repay the city withjn ten (10) days any damages, costs
or expenses which the City is canpelled to pay by reason of any act or default of
-29-
the Grantee in connection with a franchise; or fails after ten (10) days' notice
by the City of such failure to ccanply with any provision of a franchise which the
City reasonably determines can be remedied by demand on the corporate surety bond.
The City may inaneliiately require payrent of the ammt thereof with interest and
any penalties from the corporate surety bond.
d. The rights reserved to the City with respect to the corporate surety
bond are in addition to all other rights of the City whether reserved by a
franchise or authorized by law, and no action, proceeding or exercise of a right
with respect to such corporate surety bond shall affect any other right the City
may have.
5.16.200 Construction bond.
a. Within thirty (30) days after the award or renewal of a franchise, a
Grantee shall obtain and maintain at its cost and expense, and file with the City
Clerk, a corporate surety bond in a cc~cfpany authorized to do business in the State
of California and found acceptable by the City Attorney, in the amount of five
hundred thousand dollars ($500,000) to guarantee the tkly construction, rebuild
or reconstruction and full activation of the cable system and the safeguarding of
damage to private property and restoration of damages incurred with utilities.
The bond shall provide but not be limited to the following condition: There
shall be recoverable by the City, jointly and severally from the principal and
surety, any and all damages, loss or costs suffered by the City resulting frcnn the
failure of a Grantee to satisfactorily ccanplete construction, rebuild, or
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reconstruction and fully activate the cable system throughout the franchise area
pursuant to the terms and conditions of this ordinance and the franchise agreemnt.
b. Any extension to the prescribed construction time limit must be
authorized by the Council. Such extension shall be authorized only when the
Council finds that such extension is necessary and appropriate due to causes
beyond the control of a Grantee.
The construction bond shall be terminated only after the Council finds
that a Grantee has satisfactorily ccanpleted initial construction and activation or
reconstruction of the cable system pursuant to the terms and conditions of this
ordinance and the franchise agrmt.
c.
d. The rights reserved to the City with respect to the construction bond
are in addition to all other rights of the City, whether reserved by this
ordinance or authorized by law, and no action, proceeding or exercise of a right
with respect to such construction bond shall affect any other rights the City may
have.
e. The construction bond shall contain the following endorsmt:
"It is hereby understood and agreed that this bond may not be cancelled by
the surety nor the intention not to renew be stated by the surety until
sixty (60) days after receipt by the City, by registered mail, of written
notice of such intent to cancel or not to renew."
5.16.210 Construction practices.
A. Any poles, cable lines, wires, conduits or other properties of the
grantee shall be constructed or installed in sweets in accordance with good
engineering practice at such locations and in such manner as is approved by the
director of public works and shall confonn to all applicable codes and laws.
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B. The grantee shall not install or erect any facilities or apparatus in or
on other public property, places or rights-of-way, or within any privately-wned
area witkin the city which has not yet becane a public street but is designated or
delineated as a proposed public street on any tentative subdivision map approved
by the city, except those installed or erected upon existing or future public
utility facilities, without obtaining the prior written approval of the director
of public works and the owner-subdivider.
C. In those areas and portions of the city where the transmission and
distribution facilities of both the public utility providing telephone service and
those of the utility providing electric service have been or are to be placed
underground, then the grantee, upon written request by the director of public
works so to do, shall likewise initially construct, install, operate and maintain
its transmission and distribution facilities underground. For the purposes of
this subsection, "underground" includes a partial underground system. Amplifiers
in the grantee's transmission and distribution lines my be in appropriate
housings as approved by the director of public works. The city shall not in any
manner be responsible for any costs incurred by any grantee in placing his
property underground.
5.16.220 Remval or abandomt of facilities.
A. In the event that the use of any part of the cable system is
discontinued for any reason for a continuous period of six mnths, or in the event
such system or property has been installed in any street or public place without
complying with the requir-ts of this chapter, or the franchise has been
terminated, cancelled or has expired, the grantee shall prqtly, upon being given
ten days' written notice, remve from the streets or public places all such
property and poles of such system other than any which the director of public
-32-
works may permit to be abandoned in place. In the event of such remval, the
grantee shall prcmptly restore the street or other area fran which such property
has been remved to a condition satisfactory to the director of public works.
B. Any property of the grantee remaining in place sixty days after the
temhation, forfeiture or expiration of the franchise shall be considered
permanently abandoned. The director of public works may extend such tk.
C. Any property of the grantee to be abandoned in place shall Jx abandoned
in such a manner as the director of public works prescribes. Subject to the
provisions of any joint use attacbt agreenent, upon permanent abandomt of
the property of the grantee in place, the property shall become that of the city
and the grantee shall suhit to the director of public works an instrumnt in
writing, to be approved by the city attorney, transferring to the city the
ownership of such property.
5.16.230 Changes requr *&bypub lic improvemmts.
The grantee shall, at its expense, protect, support, temporarily disconnect,
relocate in the same street or other public place, or remve from the street or
other public place, any property of the grantee when required by the director of
public works by reason of traffic conditions, public safety, street vacation,
freeway and street construction, change or establishrent of street grade,
installation of sewers, drains, water pipes, per lines, signal lines and tracks
or any other type of structures or improvements by public agencies; provided,
however, that the grantee shall in all such cases Jmve the privilege and be
subject to the obligations to abandon any property of the grantee in place, as
provided in this chapter.
5.16.240 Failure to cc~np lete work.
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Upon failure of the grantee to c-ce, pursue or ccanplete any work
required by law or by the provisions of this chapter or by its franchise to be
done in any street or other public place, within the time prescribed, and to the
satisfaction of the director of public works, the director of public works my, at
his option, cause such work to be done and the grantee shall pay to the city the
cost thereof in the itemized munts reported by the director of public works to
the grantee within thirty days after receipt of such itemized report.
5.16.250 Insurance.
A. The grantee shall indemnify the city, its officers and its employees
against all claims, demands, actions, suits and proceedhgs by others, against all
liability to others, and against any loss, cost and expense resulting therefrom,
including reasonable attorneys' fees, arising out of the exercise and enjoynaent of
its franchise irrespective of the munt of the cqrehensive liability insurance
policy required under this section.
B. The grantee shall at all ths during the existence of any franchise
issued under this chapter maintain in full force and effect, at its own cost and
expense, a general ccanprehensive liability insurance policy, in protection of the
city, its officers, boards, ccBIl[nissions, agents and employees, in a cc~npany
approved by the city attorney and in a form satisfactory to the city attorney,
protecting the city and all persons against liability for loss or damage for
personal injury, death and property damage, occasioned by the operations of the
grantee under such a franchise, and for property damage, provided that the maXirrarm
amount for which liability shall be ass-, and requiremnts for the City of Udi
being named an additional insured, and any other insurance requiremnts shall be
as set and required from tk to time by resolution of the City Council. A copy
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of such policy or policies, or certificates of insurance showing the existence of
such insurance coverage, shall be filed by the grantee with the City Clerk.
C. The policies mtioned in the subsection B of this section shall nam
the city, its officers, boards, cdssions, agents and employees, as additional
insureds, shall contain a contractual liability endorsement approved by the city
attorney and shall contain a provision that a written notice of any cancellation
or reduction in coverage of such policies shall be delivered to the city manager
thirty days in advance of the effective date of the cancellation or reduction.
5.16.260 Right of inspection--Plans and records. A. At all reasonable tks,
the grantee shall permit any duly authorized representative of the city to examine
all property of the grantee, together with any appurtenant property of the grantee
situated withh or without the city, and to examine and transcribe any and all
raps and 0th- records kept or maintained by the grantee or under its control
which deal with the operations, affairs, transactions or property of the grantee
in relation to its franchise. If any maps or records are not kept in the city,
and upon reasonable request they are not made available in the city, and if the
council determines that an examination of than is necessary or appropriate, then
all travel and maintenance expense necessarily incurred in making such examination
shall be paid by the grantee.
B. The grantee shall prepare and furnish to the director of public works
and the city mnager at the tks and in the form prescribed by either of such
officers, such reports with respect to its operations, affairs, transactions or
property, as my be reasonable, necessary or appropriate to the performance of any
of the rights, functions or duties of the city or any of its officers in
connection with the franchise.
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C. The grantee shall at all tirnes make and keep in the city full and
complete plans and records showing the exact location of all cable system
equiprent installed or in use in streets and other public places in the city.
D. When any portion of the cable system is to be installed on public
utility poles and facilities, certified copies of the agre-ts for such joint
use of poles and facilities shall be filed with the director of public works.
5.16.270 Service standards.
a. A Grantee shall put, keep, and maintain all parts of the system in good
condition throughout the entire franchise period.
b. Upon termination of service to any subscriber, a Grantee shall prqtly
remove all its facilities and equipent from the premises of such subscriber upon
subscriber's request, unless said service serves multiple users.
c. Grantee shall render efficient service, make repairs prqtly, and
interrupt service only for good cause and for the shortest tint? possible. Such
interruptions, insofar as possible, shall be preceded by notice and shall occur
during periods of minimum system use.
d. Grantee shall not allow its cable or other operations to interfere with
television reception of persons not served by Grantee, nor shall the system
interfere with, obstruct or hinder in any mer, the operation of the various
utilities servhg the residents of the City.
e. A Grantee shall continue through the term of the franchise to maintain
the technical, operational, and maintenance standards and quality of service set
forth in this ordinance and franchise agreemnt. Should the City find, by
resolution, that a Grantee has failed to maintain these standards and quality of
service, and should it, by resolution specifically amrate improvements to be
-36-
made, a Grantee shall make such bprovements. Failure to make such improvemats
within forty-five (45) days of such resolution will constitute a material breach
of condition for which the r-y of Section 5.16.160 is applicable. (Liquidated
Damages. 1
5.16.280 Continuity of service mandatory.
a. It shall be the right of all subscribers to continue receiving service
insofar as their financial and other obligations to a Grantee are honored.
In the event of a change of Grantee, or in the event a new operator acquires
the system, a Grantee shall cooperate with the City, new Grantee or operator in
maintaining continuity of service to all subscribers. During such period, Grantee
shall be entitled to the revenues for any period during which it operates the
system, and shall be entitled to reasonable costs for its services when it no
longer operates the system.
b. In the event Grantee fails to operate the system for ninety-six (96)
consecutive hours without prior approval of the City or without just cause, the
City may at its option, operate the system or designate an operator until such
time as Grantee restores service under conditions acceptable to the City or a
permanent oprator is selected. If the City is reguired to fulfill this
obligation for a Grantee, the Grantee shall reimburse the City for all reasonable
costs or damages in excess of revenues from the system received by the City that
are the result of the Grantee's failure to perfom.
5.16.290 Performance evaluation sessions.
a. The City and a Grantee shall hold scheduled performance evaluation
sessions within thirty (30) days of the fourth, eighth, twelfth, and sixteenth
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anniversary dates of a Grantee's award of the franchise and as may be required by
federal and state law.
b. Special evaluation sessions may be held at any th during the term of a
franchise at the request of the City or the Grantee.
c. All evaluation sessions shall be open to the public and mounced in a
newspaper of general circulation in accordance with legal notice. Grantee shall
notify its subscribers of all evaluation sessions by announcement on its system
between the hours of 7:OO p.m. and 9:00 p.m. for five (5) consecutive days
preceding each session.
d. Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, service rate structures; franchise
fee; liquidated damages; free or discounted services; application of new
technologies; system performance; services provided; programrhg offered; customer
complaints; privacy, amendmnts to this ordinance; judicial and FCC rulings;
line extension policies; and Grantee or City rules.
5.16.300 New develo-ts.
a. Subsequent to each Performance Evaluation Session as set forth in
Section 5.16.290, the City Council shall have the authority to order a public
hearing on the provision of additional channel capacity by Grantee or on the
inclusion in the Grantee's cable system of "state of the art" technology or
upgraded facilities. Notice of such hearing shall be provided to Grantee and the
Ehblic not later than thirty (30) days prior to such hearing.
b. If after such hearing the City Council determines that (1) there exists
a reasonable need and dmd for additional channel capacity and/or state of the
art technology or upgraded facilities, and (2) provision has been made or Will be
made for adequate rates which will allow Grantee a fair rate of return on its
-38-
investment (including the investment required to provide the additional channels
and/or the state-of-the-art technology or upgraded facilities), and (3) will not
result in econOmic loss for the Grantee, the City Council may order Grantee to
provide a specified number of additional channels and/or specified state-of-the-
art technology or upgraded facilities. Without implyhg any limitations as to
other provisions of this ordinance, this Section is dd a material provision
within the meaning of Section 5.16.180 of this ordinance.
5.16.310 Filings with city. All mtters provided in this chapter to be filed
with the city, unless provided otherwise in tkis chapter, shall be filed with the
city manager.
5.16.320 Fiscal Report.
The Grantee shall file annually with the city manager no later than one
hundred twenty (120) days after the end of the Grantee's fiscal year, a copy of a
financial report applicable to the cable system serving Mi, or its corporate
annual report, including an incaw statement applicable to its operations during
the preceding twelve (12) month period, a balance sheet, a statenat of its
properties devoted to the cable system operations, by categories, giving its
invesbmnt in such properties on the basis of original cost, less applicable
depreciation, a statement of sources and application of funds; and a statemnt of
current subscribers and penetration reached for each class of cable service.
These reports shall be certified as correct by an authorized officer of Grantee
and there shall be suhdtted along with them such other reasonable information as
the City shall request.
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5.16.330 Refusal of service.
Subject to Section 5.16.130, no person or entity in the existing service
area of the grantee shall be arbitrarily refused service; provided, however, that
the grantee shall not be required to provide service to any subscriber who does
not pay the applicable connection fee or monthly service charge or any other
charges as provided by this chapter or any resolution granting the franchise.
5.16.340 Service contract.
A. Before the grantee shall provide cable service to any subscriber, the
grantee shall obtain a signed contract from the subscriber containing a provision
substantially as follows:
Subscriber understands that in providing cable service (Grantee) is making
the use of public rights of way and that the continued use of these public
rights of way is in no way guaranteed. In the event the continued use of
such rights of way is denied to (Grantee) for any reason, (Grantee) will
make every reasonable effort to provide service over alternate routes.
Subscriber agrees he will make no claim nor undertake any action against the
City of Udi, its officers, its employees, or (Grantee) if the service to be
provided by (Grantee) hereunder is interrupted or discontinued because the
continued use of such rights of way is denied to (Grantee) for any reason.
B. The form of the grantee's contract with its subscribers, shall be
subject to approval of the city manager with respect to the installation of this
provision.
5.16.350 Television sale or repair.
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The grantee or any of its employees during their course of employrrrent shall
not engage in the business of selling or leasing television or other receivers
which make any use of signals transmitted by its system, nor shall the grantee or
any of its employees during the course of their qloymnt engage in the repair of
such receivers or the sale of parts for the same. This restriction shall not
apply to a converter that increases the capacity of the system that may be sold or
leased by the grantee to a subscriber.
-41-
5.16.360 Free service.
The grantee shall provide free of charge a service drop for cable service
for all public and nonprofit private schools, city police and fire stations, city
recreation centers, and any additional municipal buildings designated by the city
council, provided that such locations are passed by transmission cable maintained
for the service of paying subscribers. If the service drop exceeds one hundred
fifty feet, the grantee my charge for the excess footage on the basis of the and
materials.
5.16.370 Moving of buildinqs.
The grantee shall, on the request of any person holding a building mving
permit issued by the city, temporarily raise or lower its wires to permit the
moving of buildings. The actual expense of such temporary rernoval or raising or
lowering of wires shall be paid by the permittee. The grantee shall be given
not less than five working days advancenotice to arrange for such temporary wire
changes.
5.16.380 Unauthorized connections -- Tamper ing.
A. It is unlawful for any person, firm or corporation to make any
unauthorized connection, whether physically, acoustically, inductively,
electronically or otherwise, with any part of a franchised cable system within the
city for the purpose of taking or receiving television signals, radio signals,
pictures, programs, sound or electronic impulses of any kind for the purpose of
enabling himself or others to receive any such television signal, radio signal,
picture, program, sound or electronic impulses.
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B. It is unlawful for any person, without the consent of the grantee, to
willfully tamper with, rave, obstruct or injure any cables, wires, devices or
equiprent used for the distribution of television signals, radio signals,
pictures, programs, sound or electronic impulses of any kind.
5.16.390 Transfers and assiqmwn ts.
a. A franchise shall not be sold, assigned or transferred, either in whole
or in part, or leased, sublet, nor shall title thereto, either legal or equitable
or any right, interest or property therein, pass to or vest in any person without
the prior written consent of the City. Such consent shall not be withheld
unreasonably.
No such consent shall be required for a transfer in trust, mortgage, or
other hypothecation as a whole or in part to secure an indebtedness.
The proposed assignee must show technical ability, financial capability,
legal qualifications and general character qualifications as determined by the
City and must agree to ccanply with all provisions of the franchise and such
conditions as may be prescribed by Council expressed by resolution. City shall be
deemed to have consented to a proposed transfer or assignment in the event its
refusal to consent is not conarmnicated in writing to Grantee within one hundred
twenty (120) days following receipt of written notice of the proposed transfer or
assignment.
b. The Grantee shall promptly notify the City of any actual or 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. Every change,
transfer, or acquisition of control of the Grantee shall make the franchise
subject to cancellation unless and until the City shall have consented thereto,
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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
City may inquire into the qualifications of the prospective controlling party and
the Grantee shall assist the City in any such inquiry.
c. A rebuttable presqtion that a transfer of control has occurred shall
arise upon the acquisition or accumulation by any person or group of persons of
10 percent of the voting interest of the Grantee.
d. The consent or approval of the City Council to any transfer of the
franchise shall not constitute a waiver or release of the rights of the City in
and to the streets, and any transfer shall by its terms, be expressly subject to
the terms and conditions of a franchise.
e. In any absence of extraordinary circumstances, the City will not approve
any transfer or assignment of a franchise prior to substantial completion of
construction or reconstruction of proposed system.
f. In no event shall a transfer of ownership or control be approved without
successor in interest becoming a signatory to the franchise agreement.
5.16. 400 Access channels.
a. Each cable system franchised by the City of Idi shall provide at least
one (1) channel dedicated to access for use by the public as well as governmental
and educational agencies.
b. If the access channel is being utilized mre than eighty percent (80%) of
the time between 4:OO p.m. and 11:OO p.m. for twelve (12) consecutive weeks,
Grantee shall, upon written notice frm the City, make additional cormunity access
channel(s) available for the sm purposes(s) , with a maximum of three (3)
cdty access channels to be dedicated for these said purposes(s) .
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c. Nothing in this section shall require Grantee to construct additional
channel capacity to the system for the sole purpose of providing additional access
channels.
d. Whenever any access channel is utilized less than four (4) hours
day for six (6) days per week for twelve (12) consecutive weeks, the Grantee may
be permitted to utilize unused access channel capacity for different and
additional purpses, under rules and procedures established by the City.
e. Grantee shall record all requests for use ofaccess channel.
Whenever such records indicate in the opinion of the City Council that an
excessive number of people or programs are being turned away for lack of available
access channel capacity; or whenever the criteria in paragraph (b) are exceeded
for any one of the existing access channel uses, those access channels which have
been permitted by the City for "interim" use by a Grantee shall each be restored
to public, governmental or educational use as applicable.
5.16.410 Waivers.
a. Any provision of this Ordinance may be waived at the sole discretion of
the City by resolution of the City Council.
b. Grantee may s&t a request for waiver to the City Council at any time
during the franchise term. Such request for waiver my, at the sole discretion of
the City Council, be set for public hearing and a decision shall be made within
one hundred and twenty (120) days following the susHnission. Procedures for
dfication of franchise obligations shall be in ccarrpliance with Section 625 of
the Cable C-cations policy Act of 1984.
c. The City Council may authorize the econcgnic, technical or legal
evaluation of such waiver request and Grantee shall be reqyired to reimburse the
City for any expenditures incurred by City in connection with such evaluation.
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d. This section is enacted solely for the convenience and benefit of the
Grantor and shall not be construed in such a manner as to create any right or
entitlement for the Grantee.
5.16.420 Rqul.r ed services and facilities.
a. A franchise application shall include a description of the grantee's
system design and a description of the broad categories of programing and
services being offered, including optional premium services, a description of
facilities being proposed for local origination programing, and facilities being
offered to various ccarmunity institutions. The offer of the broad categories of
programning and services contained within a Grantee's application shall be de&
a binding offer of such Grantee for and to the benefit of the City and the
subscribers of Grantee. In the event a program originator ceases to provide a
Service, or in the event the Grantee determines that other cable services may be
of greater benefit to subscribers, the Grantee may, subject to subsections b and
c, substitute or drop such services.
b. The system, after the incorporation of such substitute services, shall
satisfy the warranty made by Grantee to subscribers and potential subscribers in
its application for a franchise. The City Council, on behalf of system
subscribers, shall have the right to review any substitution of service or change
in broad categories of programnhg that the Grantee has made and may order a
change therein if it determines, after due hearing on notice, that the warranty
has been violated or that certain broad categories of programnhg and services
that were cdtted by Grantee in its Proposal are not being delivered. Any such
order shall issue only after a public hearing has been scheduled and held; and
written notice of such hearing shall have been provided to the Grantee and to the
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public at least 30 days prior to such hearing. Any such order may be enforced by
an appropriate action in the Courts of California or of the United States. A
Grantee shall not, in relation to this section, be deemed to have waived any right
accorded to a franchised cable television operator arising under the First
Amm3m-k to the Constitution of the United States, or under the Cable
(htmunications Policy Act of 1984.
c. Notwithstanding subsections a and b, a Grantee may, in accordance with
the Cable conmum 'cations Policy Act of 1984, upon 30 days' advance notice to the
City, rearrange, replace or remove a particular cable service required by the
franchise if:
(1) such service is no longer available to the Grantee; or
(2) such service is available to the Grantee only upon the payrent of
a royalty required under section 801 (b) (2) of title 17, United States Code,
which the Grantee can document:
(a) is substantially in excess of the amunt of such pa-t
required on the date of the Grantee's offer to provide such service, and
(b) has not been specifically campensated for through a rate
increase or other adjustmnt.
Notwithstanding subsections a and b, a Grantee may take such actions to
rearrange a particular service from one service tier to another, or otherwise
offer the service, if the rates for all of the service tiers involved in such
actions are not subject to regulation.
Section 5.16.430 Construction and technical standards.
a.
Grantee shall construct, install, operate and maintain its system in a
Coqliance with construction and technical standards.
manner consistent with all laws, ordinances and construction standards of the City
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of Jkx3.i; The Standards of Good Engineering Practices for Measurements on Cable
Television Systems, published by the National Cable Television Association, 1983;
and detailed standards sukmitted by Grantee as part of its application, which
standards are incorporated by reference in the franchise agreement. In addition,
Grantee shall provide the City, upon request, with a written report of the results
of Grantee's annual proof of performance tests. In the event of the repeal of FCC
Rules and Regulations, Part 76, Grantee shall pay the costs incurred by the City
for any technical assistance deemed necessary by the City for obtaining
independent verification of technical cmpliance with all standards. This
includes the costs that may be incurred by the City for checking compliance during
the evaluations required in Section 5.16.290.
b. Additional specifications
Construction, installation and maintenance of the cable system shall be
perfom in an orderly and workmanlike manner. All cables and wires shall be
installed, where possible, parallel with and in the sanae manner as electric and
telephone lines. Multiple cable configurations shall be arranged in parallel and
bundled with due respect for engineering considerations. Underground
installations shall be in conformance with applicable codes.
Grantee shall at all ths ccanply with:
(1) National Electrical Safety Code (National Bureau of Standards) ;
(2) National Electrical Code (National Bureau of Fire Underwriters);
(3)
(4)
Bell System Code of Pole Line Construction; and
The Standards of Good Engineering Practices for Measurements on Cable
Television Systems (National Cable Television Association), 1983.
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Furthemre, the system shall not endanger or interfere with the safety of
persons or property in the franchise area or other areas where the Grantee may
have equipent located.
SIXTION 2. All ordinances and parts of ordinances in conflict herewith are
repealed insofar as such conflict may exist.
SIXTION 3. This ordinance shall be published one time in the "Wi News
Sentinel", a daily newspapr of general circulation printed and published in the
City of Lodi and shall be in force and take effect thirty days from and after its
passage and approval.
f December 1985
Attest :
MAYOR
City Clerk
State of California
County of San Joaquin, ss.
I, Alice M. Rehhe, City Clerk of the City of a, do hereby certify that
Ordinance No. 1370 was introduced at a regular meting of the City Council of the
City of lclodi held December 4, 1985 and was thereafter passed, adopted and ordered
to print at a regular naeeting of said Council held December 18, 1985 by the
following vote:
Ayes : Council Members - Olson, Pinkerton, Reid, Snider and HincW
Noes : Council Members - None
Absent : Council Members - None
Abstain: Council Members - None
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I further certify that Ordinance No. 1370 was approved and signed by the Mayor on
the date of its passage and the same has been published pursuant to law.
AI;ICEM. IiE
City Clerk
Approved as to Fom /1
RONALBM. STEIN
City Attorney
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