HomeMy WebLinkAbout1238di t.
05/11/93
ORDINANCE NO. 1238
AN ORDINANCE OF THE CITY OF SAN
LUIS OBISPO GOVERNING CABLE
TELEVISION FRANCHISES HEREINAFTER
GRANTED BY THE CITY OF SAN LUIS
OBISPO.
OSLO01A.DOC
0 -1238
TABLE OF CONTENTS
Section 1.1 Intent .. ............................... 1
Section 1.2 Definitions ............................ 3
Section 1.3 Franchise to Install and Operate....... 9
Section 1.4 Franchise Required ..................... 10
Section 1.5 Term of the Franchise...... .......... 11
Section 1.6 Franchise Territory .................... 12
Section 1.7 Federal or State Jurisdiction.......... 13
Section 1.8 Franchise Non - Transferable ............. 14
Section 1.9 Geographical Coverage .................. 18
Section 1.10 Nonexclusive Franchise ................ 19
Section 1.11 Multiple Franchises ................... 20
Section 1.12 Franchise Applications ................ 22
Section 1.13 Applications - Contents ............... 23
Section 1.14 Consideration of Initial Applications. 25
Section 1.15 Franchise Renewal ..................... 26
Section 1.16 Minimum Consumer Protection and
ServiceStandards ..................... 27
Section 1.17 Additional Service Standards.......... 33
Section 1.18 Franchise Fee ......................... 34
Section 1.19 Security Fund ......................... 36
Section 1.20 Design and Construction Requirements.. 37
Section 1.21 Technical Standards ...................45
Section 1.22 Hold Harmless ......................... 46
Section1.23 Insurance .............................47
Section 1.24 Records Required and Grantor's
Right to Inspect ...................... 50
Section 1.25 Annual Reports ........................ 52
Section
1.26
Copies of Federal and
67
Section
1.36
State Communications ..................
54
Section
1.27
Public Reports ........................
55
Section
1.28
Opinion Survey ........................
56
Section
1.29
Reports - General .....................
57
Section
1.30
Annual Review of System Performance...
59
Section
1.31
Special Review of System Performance..
61
Section
1.32
Special State -of- the -Art Evaluation
Sessions..............................
62
Section
1.33
Remedies for Franchise Violations.....
63
Section
1.34
Procedure for Remedying
77
Section
1.42
Franchise Violations ..................
65
Section
1.35
Grantor's Power to Revoke .............
67
Section
1.36
Force Majeure;
Grantee's Inability to Perform........
69
Section
1.37
Abandonment or Removal of
Franchise Property ....................70
Section
1.38
Restoration by Grantor:
Reimbursement of Costs ................
73
Section
1.39
Extended Operation and
Continuity of Services ................
74
Section
1.40
Receivership and Foreclosure..........
75
Section
1.41
Rights Reserved to Grantor............
77
Section
1.42
Rights of Individuals .................
78
Section 1.43 Separability .......................... 81
ORDINANCE NO. 1238
THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO DOES
ORDAIN AS FOLLOWS:
The following Chapter is added to the City of San Luis
Obispo Municipal Code:
CHAPTER CABLE TELEVISION FRANCHISES
Section 1.1 Intent
A. The City of San Luis Obispo, pursuant to
applicable Federal and State law, is authorized to grant one
or more non - exclusive franchises to construct, operate,
maintain and reconstruct cable television systems within the
City limits.
B. The City Council finds that the development of
cable television and communications systems has the
potential of having great benefit and impact upon the
residents of San Luis Obispo. Because of the complex and
rapidly changing technology associated with cable
television, the City Council 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 may designate. It is
the intent of this Chapter and subsequent amendments to
1
provide for and specify the means to attain the best
possible cable television service to the public and any
franchises issued pursuant to this Chapter shall be deemed
to include this as an integral finding thereof.
2
Section 1.2 Definitions
For the purposes of this Chapter, the following terms,
phrases, words and their derivations shall have the meaning
given herein. Words used in the present tense include the
future, words in the plural number include the singular
number, and words in the singular number include the plural
number. Words not defined shall be given their common and
ordinary meaning.
A. "Basic Cable Service" means any service tier which
includes the retransmission of local television broadcast
signals.
B. "Cable Television System" or "System ", also
referred to as "Cable Communications System" or "Cable
System", means a facility consisting of a set of closed
transmission paths and associated signal generation,
reception, and control equipment, that is designed to
provide cable service which includes video programming and
which is provided to multiple subscribers within a
community, but such term does not include:
(1) A facility that serves only to transmit
television signals of one (1) or more television broadcast
stations;
(2) A facility that serves only subscribers in
one (1) or more multiple unit dwellings under common
3
ownership, control, or management, unless such facility uses
any public rights -of -way;
(3) A facility of a common carrier, except that
such facility shall be considered a cable system to the
extent'such facility is used in the transmission of video
programming directly to subscribers; or
(4) Any facilities of any electric utility used
solely for operating its electric utility system.
C. "Cable Service" means the total of the following:
(1) The one -way transmission to subscribers of
video programming or other programming service; and
(2) Subscriber interaction, if any, which is
required for the selection of such video programming or
other programming service.
D. "Channel" or "Cable Channel" means a portion of
the electromagnetic frequency spectrum which is used in a
cable system which is capable of delivering a television
channel as defined by the Federal Communications Commission.
E. "Council" means the City Council of the City of
San Luis Obispo.
F. "Franchise" means an initial authorization, or
renewal thereof, issued by the Council, whether such
authorization is designated as a franchise, permit, license,
al
resolution, contract, certificate, agreement, or otherwise,
which authorizes the construction or operation of a cable
system.
G. "Franchise Agreement" means a franchise grant
ordinance or a contractual agreement, containing the
specific provisions of the franchise granted, including
references, specifications, requirements and other related
matters.
H. "Franchise Fee" means any tax, fee or assessment
of any kind imposed by the City on a Grantee as compensation
for the Grantee's use of the public rights -of -way. The term
"franchise fee" does not include:
(1) Any tax, fee or assessment of general
applicability (including any such tax, fee, or assessment
imposed on both utilities and cable operators or their
services, but not including a tax, fee or assessment which
is unduly discriminatory against cable operators or cable
subscribers);
(2) Capital costs which are required by the
franchise to be incurred by Grantee for public, educational,
or governmental access facilities;
(3) Requirements or charges incidental to the
awarding or enforcing of the franchise, including payments
5
for bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(4) Any fee imposed under Title 17, United States
Code.
I. "Grantee" means any "person" receiving a franchise
pursuant to this Chapter and under the granting franchise
ordinance or agreement, and its lawful successor, transferee
or assignee.
J. "Grantor" or "City" means the City of San Luis
Obispo as represented by the Council or any delegate acting
within the scope of its jurisdiction.
K. "Gross Annual Receipts" means the annual gross
receipts received by a Grantee from all sources of
operations of the Cable Television System within the City
utilizing the public streets and rights -of -way for which a
franchise is required in order to deliver such cable
service, excluding refundable deposits, rebates or credits,
except that any sales, excise or other taxes or charges
collected for direct payment or pass- through to local, State
or Federal government, other than the franchise fee, shall
not be included.
L. "Initial Service Area" means the area of the City
which will receive service initially, as set forth in any
Franchise Agreement.
6
M. "Installation" means the connection of the system
to subscribers' terminals, and the initiation of service.
N. "Person" means an individual, partnership,
association, joint stock company, trust, corporation or
governmental entity.
O. "Public, Educational or Government Access
Facilities" or "PEG Access Facilities" means the total of
the following:
(1) Channel capacity designated for noncommercial
public, educational, or government use; and
(2) Facilities and equipment for the use of such
channel capacity.
P. "Section" means any section, subsection or
provision of this Chapter.
Q. "Service Area" or "Franchise Area" means the
entire geographic area within the City as it is now
constituted or may in the future be constituted, unless
otherwise specified in the franchise granting ordinance or
agreement.
R. "Service Tier" means a category of cable service
or other services provided by a Grantee and for which a
separate rate is charged by the Grantee.
S. "State" means the State of California.
7
T. "Street" means each of the following which have
been dedicated to the public or are 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.
U. "Subscriber" means any person 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 system,
and who pays the charges therefor.
Section 1.3 Franchise to Install and Operate
A franchise granted by the City under the provisions of
this Chapter shall encompass the following purposes:
A. To authorize Grantee to engage in the business of
providing cable television service, and such other services
as may be permitted by law, which Grantee chooses to
provide, to subscribers within the designated service area.
B. To authorize Grantee to erect, install, construct,
repair, rebuild, reconstruct, replace, maintain, and retain,
cable lines, related electronic equipment, supporting
structures, appurtenances, and other property in connection
with the operation of the cable system in, on, over, under,
upon, along and across streets or other public places within
the designated service area.
C. To authorize Grantee to maintain and operate its
properties for the origination, reception, transmission,
amplification, and distribution of television and radio
signals and for the delivery of cable services, and such
other services as may be permitted by law.
D. To set forth the respective obligations of a
Grantee and the City under the franchise.
9
Section 1.4 Franchise Required
It shall be unlawful for any person to construct,
install or operate a cable television system in the City
within any public street without a properly granted
franchise awarded pursuant to the provisions of this
Chapter.
10
Section 1.5 Term of the Franchise
A. A franchise granted hereunder shall be for a term
established in the franchise agreement, commencing on the
date established in the franchise agreement.
B. A franchise granted hereunder may be renewed upon
application by the Grantee pursuant to the provisions of
applicable State and Federal law and of this Chapter.
11
Section 1.6 Franchise Territory
Any franchise shall be valid within all the territorial
limits of the City, and within any area added to the City
during the term of the franchise, unless otherwise specified
in this Chapter or the franchise agreement.
12
Section 1.7 Federal or State Jurisdiction
This Chapter shall be construed in a manner consistent
with all applicable Federal and State laws, and shall apply
to all franchises granted or renewed after the effective
date of this Chapter to the extent permitted by applicable
law.
13
Section 1.8 Franchise Non - Transferable
A. Grantee shall not sell, transfer, lease, assign,
sublet or dispose of, in whole or in part, either by forced
or involuntary sale, or by ordinary sale, contract,
consolidation or otherwise, the franchise or any of the
rights or privileges therein granted, without the prior
consent of the Council and then only upon such terms and
conditions as may be reasonably prescribed by the Council,
which consent shall not be unreasonably denied or delayed.
Any attempt to sell, transfer, lease, assign or otherwise
dispose of the franchise without the consent of the Council
shall be null and void. The granting of a security interest
in any Grantee assets, or any mortgage or other
hypothecation, shall not be considered a transfer for the
purposes of this section.
B. The requirements of Subsection A. shall apply to
any change in control of Grantee. The word "control" as
used herein is not limited to major stockholders or
partnership interests, but includes actual working control
in whatever manner exercised. In the event that Grantee is
a corporation, prior authorization of the Council shall be
required where ownership or control of more than ten percent
(10 %) of the voting stock of Grantee is acquired by a person
or group of persons acting in concert, none of whom own or
14
control the voting stock of the Grantee as of the effective
date of the franchise, singularly or collectively.
C. Grantee shall notify Grantor in writing of any
foreclosure or any other judicial sale of all or a
substantial part of the franchise property of the Grantee or
upon the termination of any lease or interest covering all
or a substantial part of said franchise property. Such
notification shall be considered by Grantor as notice that a
change in control of ownership of the franchise has taken
place and the provisions under this section governing the
consent of Grantor to such change in control of ownership
shall apply.
D. For the purpose of determining whether it shall
consent to such change, transfer, or acquisition of control,
Grantor may inquire into the qualifications of the
prospective transferee or controlling party, and Grantee
shall assist Grantor in such inquiry. In seeking Grantor's
consent to any change of ownership or control, Grantee shall
have the responsibility of insuring that the transferee
completes an application in form and substance reasonably
satisfactory to Grantor, which application shall include the
information required under Subsections A. through G. of
Section 1.13 of this Chapter. An application shall be
submitted to Grantor not less than sixty (60) days prior to
the date of transfer. In addition to the information
included in the application, Grantor also may require from
15
the proposed transferee such additional information as
Grantor may reasonably deem to be applicable. The
transferee shall be required to establish that it possesses
the qualifications and financial and technical capability to
operate and maintain the system and comply with all
franchise requirements for the remainder of the term of the
franchise. If the legal, financial, character, and
technical qualifications of the applicant are satisfactory,
the Grantor shall consent to the transfer of the franchise.
The consent of the Grantor to such transfer shall not be
unreasonably denied or delayed.
E. Any financial institution having a pledge of the
Grantee or its assets for the advancement of money for the
construction and /or operation of the franchise shall have
the right to notify the Grantor that it or its designee
satisfactory to the Grantor shall take control of and
operate the cable television system, in the event of a
Grantee default of its financial obligations. Further, said
financial institution shall also submit a plan for such
operation within thirty (30) days of assuming such control
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
16
time it shall have the right to petition the Grantor to
transfer the franchise to another Grantee.
F. Upon transfer, Grantee shall reimburse Grantor for
Grantor's reasonable processing and review expenses in
connection with a transfer of the franchise or of control of
the franchise, including without limitation, costs of
administrative review, financial, legal and technical
evaluation of the proposed transferee, consultants
(including technical and legal experts and all costs
incurred by such experts), notice and publication costs and
document preparation expenses, not to exceed any maximum
that may be specified in the franchise agreement. Any such
reimbursement shall not be charged against any franchise fee
due to Grantor during the term of the franchise.
17
Section 1.9 Geographical Coverage
A. Grantee shall design, construct and maintain the
cable television system to have the capability to pass every
dwelling unit in the City, subject to any service area line
extension requirements of the franchise agreement.
B. After service has been established by activating
trunk and /or distribution cables for any service area,
Grantee shall provide service to any requesting subscriber
within that service area within thirty (30) days from the
date of request, provided that the Grantee is able to secure
any additional rights -of -way necessary to extend service to
such subscriber within such thirty (30) day period on
reasonable terms and conditions.
18
Section 1.10 Nonexclusive Franchise
Any franchise granted shall be nonexclusive. The
Grantor specifically reserves the right to grant, at any
time, such additional franchises for a cable television
system or any component thereof, as it deems appropriate,
subject to applicable State and Federal law, provided that
no such additional franchise shall be granted on terms
materially more favorable or less burdensome than any other
franchise granted hereunder.
19
Section 1.11 Multiple Franchises .
A. Grantor may grant any number of franchises subject
to applicable State or Federal law. Grantor may limit the
number of franchises granted, based upon, but not
necessarily limited to, the requirements of applicable law
and specific local consideration, such as:
(1) The capacity of the public rights -of -way to
accommodate multiple cables in addition to the cables,
conduits and pipes of the utility systems, such as
electrical power, telephone, gas and sewerage.
(2) The benefits that may accrue to cable
subscribers as a result of cable system competition, such as
lower rates and improved service.
(3) The disadvantages that may result from cable
system competition, such as the requirement for multiple
pedestals on residents' property, and the disruption arising
from numerous excavations of the rights -of -way.
B. Each Grantee awarded a franchise to serve the
entire City shall offer service to all residences in the
City, in accordance with construction and service schedules
mutually agreed upon between Grantor and Grantee, and
consistent with applicable law.
20
C. Developers of new residential housing with
underground utilities shall provide conduit to accommodate
cables for at least two (2) cable systems in accordance with
the provisions of Section 1.20.E.
D: Grantor may require that any new Grantee be
responsible for its own underground trenching and the costs
associated therewith, if, in Grantor's opinion, the rights-
of-way in any particular area cannot feasibly and reasonably
accommodate additional cables.
21
Section 1.12 Franchise Applications
Any person desiring an initial franchise for a cable
television system shall file an application with the City.
A reasonable nonrefundable application fee established by
the City shall accompany the application to cover all costs
associated with processing and reviewing the application,
including without limitation costs of administrative.review,
financial, legal and technical evaluation of the applicant,
consultants (including technical and legal experts and all
costs incurred by such experts), notice and publication
requirements with respect to the consideration of the
application and document preparation expenses. In the event
such costs exceed the application fee, the selected
applicant(s) shall pay the difference to the City within
thirty (30) days following receipt of an itemized statement_
of such costs.
22
Section 1.13 Applications - Contents
An application for an initial franchise for a cable
television system shall contain, where applicable:
A: A statement as to the proposed franchise and
service area;
B. Resume of prior history of applicant, including
the expertise of applicant in the cable television field;
C. List of the partners, general and limited, of the
applicant, if a partnership, or the percentage of stock
owned or controlled by each stockholder, if a corporation
which is not publicly traded;
D. List of officers, directors and managing employees
of applicant, together with a description of the background
of each such person;
E. The names and addresses of any parent or
subsidiary of applicant or any other business entity owning
or controlling applicant in whole or in part, or owned or
controlled in whole or in part by applicant;
F. A current financial statement of applicant
verified by a Certified Public Accountant audit or otherwise
certified to be true, complete and correct to the reasonable
satisfaction of the City;
23
G. Proposed construction and service schedule; and
H. Any additional information that the City deems
reasonably necessary.
24
Section 1.14 Consideration of Initial Applications
A. Upon receipt of any application for an initial
franchise, the City Manager shall prepare a report and make
recommendations respecting such application to the City
Council.
B. A public hearing shall be set prior to any initial
franchise grant, at a time and date approved by the Council.
Within thirty (30) days after the close of the hearing, the
Council shall make a decision based upon the evidence
received at the hearing as to whether or not the
franchise(s) should be granted, and, if granted, subject to
what conditions. The Council may grant one (1) or more
franchises, or may decline to grant any franchise.
25
Section 1.15 Franchise Renewal
Franchise renewals shall be in accordance with
applicable law. Grantor and Grantee, by mutual consent, may
enter into renewal negotiations at any time during the term
of the franchise. Upon mutual execution of a franchise
renewal agreement, Grantee shall reimburse Grantor for costs
incidental to the franchise renewal award, not to exceed any
maximum specified in the franchise agreement. Any such
reimbursement shall not be charged against any franchise fee
due to the Grantor during the term of the franchise.
26
Section 1.16 Minimum Consumer Protection and Service
Standards
A. Except as otherwise provided in the Franchise
Agreement, Grantee shall maintain a local office or offices
to provide the necessary facilities, equipment and personnel
to comply with the following consumer protection and service
standards under normal conditions of operation:
(1) Sufficient toll -free telephone line capacity
during normal business hours, and excepting unusual events
such as system outages, to assure that a minimum of ninety -
five percent (95 %) of all calls will be answered before the
fourth (4th) ring and ninety percent (900) of all callers
for service will not be required to wait more than thirty
(30) seconds, after the call pickup and the conclusion of
any automated telephone response procedures before being
connected to a service representative.
(2) Emergency telephone line capacity on a
twenty -four (24) hour basis, including weekends and
holidays.
(3) A local business and service office open
during normal business hours and at least some period weekly
on evenings and /or weekends, and adequately staffed to
accept subscriber payments and respond to service requests
and complaints.
27
(4) An emergency system maintenance and repair
staff, capable of responding to and repairing major system
malfunction on a twenty -four (24) hour per day basis.
(5) An installation staff, capable of installing
service to any subscriber within seven (7) working days
after receipt of a request, in all areas where trunk and
feeder cable have been activated.
(6) At the subscriber's request, Grantee shall
schedule, within a specified four (4) hour time period, all
appointments with subscribers for installation of service.
B. Grantee shall render efficient service, make
repairs promptly, and interrupt service only for good cause
and for the shortest time possible. Scheduled
interruptions, insofar as possible, shall be preceded by
notice and shall occur during a period of minimum use of the
cable system, preferably between midnight and six A.M.
(6:00 A.M.).
C. The Grantee shall maintain a repair force of
technicians normally capable of responding to subscriber
requests for service within the following time frames:
(1) For a system outage: Within two (2) hours,
including weekends, of receiving subscriber calls or
requests for service which by number identify a system
outage of sound or picture of one (1) or more channels,
Fes.'
affecting at least ten percent (10 %) of the subscribers of
the system.
(2) For an isolated outage: Within twenty -four
(24) hours, including weekends, of receiving requests for
service identifying an isolated outage of sound or picture
for one (1) or more channels that affects three (3) or more
subscribers. On weekends, an outage affecting fewer than
three (3) subscribers shall result in a service call no
later than the following Monday morning.
(3) For inferior signal quality: Within forty -
eight (48) hours, including weekends, of receiving a request
for service identifying a problem concerning picture or
sound quality.
Grantee shall be deemed to have responded to a request
for service under the provisions of this Section when a
technician arrives at the service location and begins work
on the problem. In the case of a subscriber not being home
when the technician arrives, the technician shall leave
written notification of arrival. Three (3) successive
subscriber failures to be present at an appointed time shall
excuse Grantee of the duty to respond.
Grantee shall not charge for the repair or replacement
of defective equipment provided by Grantee to subscribers,
except when the damage resulted from the subscriber's
willful or deliberate act.
29
D. Unless excused, Grantee shall determine the nature
of the problem within forty -eight (48) hours of beginning
work and resolve all cable system related problems within
five (5) business days unless technically infeasible.
E: Upon request, Grantee shall provide appropriate
credits to subscribers whose service has been materially
interrupted due to' cable system problems.
F. Upon five (5) days notice, Grantee shall establish
its compliance, on an average monthly basis, with any or all
of the standards required above. Grantee shall provide
sufficient documentation to permit Grantor to verify the
compliance.
G. A repeated and verifiable pattern of non-
compliance with the consumer protection standards of A -E
above, after Grantee's receipt of due notice and an
opportunity to cure, may be deemed a material breach of the
franchise agreement.
H. Grantee shall establish written procedures for
receiving, acting upon and resolving subscriber complaints
without intervention by the Grantor. The written procedures
shall prescribe the manner in which a subscriber may submit
a complaint either orally or in writing specifying the
subscriber's grounds for dissatisfaction. Grantee shall
file a copy of these procedures with Grantor.
30
Section 1.32 Special State -of- the -Art and Services
Evaluation.Sessions
The Grantor may hold special state -of- the -art and
services evaluation sessions at any time during the term of
a franchise, provided such sessions are held no more often
than once every four (4) years. The intent of this review
shall be to review the quantity of services offered to the
public, compared to the services available in comparable
communities. The Grantee shall be notified of the place,
time and date thereof and the topics to be discussed. Such
sessions may be open to the public and advertised in a
newspaper of general circulation at least thirty (30) days
before each session. The sessions may include an evaluation
of any items considered relevant to the stated intent of
this evaluation. Either the Grantor or the Grantee may
propose items for discussion or evaluation. By agreement
between the Grantor and the Grantee, this evaluation may be
combined with the performance review provided in Section
1.30.
62
Section 1.31 Special Review of System Performance
When there have been complaints made or where there
exists other evidence which, in the.judgment of the Grantor,
casts reasonable doubt on the reliability or quality of
cable service to the effect that the Grantee is not in
compliance with the requirements of this Chapter or its
franchise, the Grantor shall have the right to compel the
Grantee to test, analyze and report on the performance of
the system in order to determine whether the Grantee is in
compliance with the terms of this Chapter and the franchise
agreement. Grantor may not compel Grantee to provide such
tests or reports unless and until Grantor has provided
Grantee with at least thirty (30) days' notice of its
intention to exercise its rights under this Section and has
provided Grantee with an opportunity to be heard prior to
its exercise of such rights. Such test or tests shall be
made and the report shall be delivered to the Grantor no
later than thirty (30) days after the Grantor notifies the
Grantee that it is exercising such right, and shall be made
at Grantee's sole cost. Such report shall include the
following information: The perceived problem areas that
initiated the special review, the tests performed, what
system components were tested, the equipment used and
procedures employed in said testing and the results of such
tests. Any other information pertinent to the special tests
shall be recorded.
61
I-•.
material breach of the franchise, and Grantor may exercise
any remedy within the scope of this Chapter and the
franchise agreement considered appropriate.
.�
Section 1.30 Annual Review of System Performance
Each year throughout the term of the franchise, if
requested by the City Council, Grantor and Grantee shall
meet publicly to review system performance and quality of
service.
The various reports required pursuant to this Chapter,
results of technical performance tests, the record of
subscriber complaints and Grantee's response to complaints,
and the information acquired in any subscriber surveys,
shall be utilized as the basis for review. In addition, any
subscriber may submit comments or complaints during the
review meetings, either orally or in writing, and these
shall be considered. Within thirty (30) days after the
conclusion of a system performance review meeting, Grantor
may issue findings with respect to the cable system's
franchise compliance and quality of service.
If Grantor determines that Grantee is not in compliance
with the requirements of this Chapter or the Grantee's
franchise, Grantor may direct Grantee to correct the areas
of noncompliance within a reasonable period of time.
Failure of Grantee, after due notice, to correct the areas
of noncompliance within the period specified therefor or to
commence compliance within such period and diligently
achieve compliance thereafter, shall be considered a
59
equitable, which are available to Grantor under the
franchise or otherwise.
E. Notwithstanding the provisions of Sections 1.24,
1.25 and 1.26, Grantee shall have no obligation to provide
copies of documents or information to Grantor which contain
trade secrets of Grantee or which are otherwise of a
confidential or proprietary nature to Grantee unless it
receives satisfactory assurances from Grantor that such
documents or information can and will be held in strictest
confidence by the Grantor and not made available for public
inspection. To the extent possible, Grantee will provide
Grantor with summaries of any required documents or
information or copies thereof with trade secrets and
proprietary matters deleted therefrom. The burden of proof
shall be on Grantee to establish the confidential nature of
any information submitted, to the reasonable satisfaction of
the Grantor.
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Section 1.29 Reports - General
A. All reports required under this Chapter, except
those required to be kept confidential, as provided in
Subsection E. below, shall be available for public
inspection in the Grantor's offices during normal business
hours.
B. All reports and records required under this
Chapter shall be furnished at the sole expense of Grantee,
except as otherwise provided in this Chapter or the
franchise agreement.
C. The willful refusal, failure, or neglect of
Grantee to file any of the reports required as and when due
under this Chapter, may be deemed a material breach of the
franchise agreement if such reports are not provided to
Grantor within thirty (30) days after written request
therefor, and may subject the Grantee to all remedies, legal
or equitable, which are available to Grantor under the
franchise or otherwise.
D. Any materially false or misleading statement or
representation made knowingly and willfully by the Grantee
in any report required under this Chapter or under the
franchise agreement may be deemed a material breach of the
franchise and may subject Grantee to all remedies, legal or
57
Section 1.28 Opinion Survey
Upon request of the Grantor, but not more than once
annually, the Grantee shall conduct a subscriber
satisfaction survey pertaining to quality of service, which
may be in a postcard format that can be transmitted to
subscribers in Grantee's invoice for cable services. The
results of such survey shall be provided to the Grantor on a
timely basis. The cost of such survey shall be borne by the
Grantee.
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Section 1.27 Public Reports
If Grantee is publicly held, a copy of each Grantee's
annual and other periodic reports and those of its parent,
shall be submitted to Grantor within forty -five (45) days of
its issuance.
55
Section 1.26 Copies of Federal and State
Communications
Upon request, Grantee shall submit to Grantor copies of
all pleadings, applications and reports
to, as well as copies of all decisions,
actions by, any Federal, State or local
agency, or other governmental body whic:
nature and which will materially affect
operations within the franchise area.
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submitted by Grantee
correspondence and
court, regulatory
a are non - routine in
its cable television
F. Information as to the degree of compliance with
the provisions contained in Section 1.43 herein and all
steps required by this Chapter and applicable law have been
taken to assure that the privacy rights of individuals have
been protected; and
G. Any other information relevant to franchise
regulation which the Grantor shall reasonably request, and
which is relevant to its regulatory responsibilities.
53
Section 1.25 Annual Reports
Within ninety (90) days after the end of the calendar
year, if requested by Grantor, Grantee shall submit a
written annual report to Grantor with respect to the
preceding calendar year in a form approved by Grantor,
including, but not limited to, the following information:
A. A summary of the previous year's (or in the case
of the initial reporting 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;
B. A list of Grantee's officers, members of its board
of directors, and other principals of Grantee;
C. A list of stockholders or other equity investors
holding five percent (5 %) or more of the voting interest in
Grantee;
D. An indication of any residences in Grantee's
service area where service is not available, and a schedule
for providing service;
E. Information as to the number of homes passed,
subscribers, additional television outlets, and the number
of basic and pay subscribers.
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C. Upon reasonable notice, and during normal business
hours, Grantee shall permit examination by any duly
authorized representative of the Grantor of all franchise
property and facilities, together with any appurtenant
a
property and facilities of Grantee situated within or
without the City, and all records relating to the franchise,
provided they are necessary to enable the Grantor to carry
out its regulatory responsibilities under this Chapter or
the franchise agreement. Grantee shall have the right to be
present at any such examination.
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Section 1.24 Records Required and Grantor's Right to
Inspect
A. Grantee shall at all times maintain:
(1) A record of all service calls and
interruptions or degradation of service experienced for the
preceding two (2) years, provided that such complaints
result in or require a service call, subject to the
subscriber's right of privacy.
(2) A full and complete set of plans, records and
"as- built" maps showing the locations of the cable
television system installed or in use in the City, exclusive
of subscriber service drops and equipment provided in
subscriber's homes.
(3) If requested by Grantor, a summary of service
calls, identifying the number, general nature and
disposition of such calls, on a monthly basis. A summary of
such service calls shall be submitted to the Grantor within
thirty (30) days following any Grantor request, in a form
reasonably acceptable to the Grantor.
B. The Grantor may impose reasonable requests for
additional information, records and documents from time to
time, provided they reasonably relate to the scope of the
City's rights under this Chapter or the Grantee's franchise
agreement.
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(4) The subject of the insurance;
(5) The type of coverage provided by the
insurance; and
(6) The amount or limit of coverage provided by
the insurance.
If the certificate of insurance does not provide all of
the above information, Grantor reserves the right to inspect
the relevant insurance policies.
F. In the event Grantee fails to maintain any of the
above - described policies in full force and effect, Grantor
shall, upon forty -eight (48) hours' notice to Grantee, have
the right to procure the required insurance and recover the
cost thereof from Grantee. Grantor shall also have the
right to suspend the franchise during any period that
Grantee fails to maintain said policies in full force and
effect.
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(4) Be noncancellable without thirty (30) days'
prior written notice thereof directed to Grantor.
C. The policy of Workers' Compensation Insurance
shall comply with the laws of the State of California.
D. The policy of property insurance shall provide
fire insurance with extended coverage on the franchise
property used by Grantee in the conduct of franchise
operations in an amount adequate to enable Grantee to resume
franchise operations following the occurrence of any risk
covered by this insurance.
E. Grantee shall file with Grantor, by the deadline
provided in the franchise agreement, a certificate of
insurance for each of the required policies executed by the
company issuing the policy or by a broker authorized to
issue such a certificate, certifying that the policy is in
force and providing the following information with respect
to said policy:
(1) The policy number;
(2) The date upon which the policy will become
effective and the date upon which it will expire;
(3) The names of the named insureds and any
additional insured required by the Franchise Agreement;
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Section 1.23 Insurance
A. On or before commencement of franchise operations,
the Grantee shall obtain policies of liability, Workers'
Compensation and property insurance from appropriately
qualified insurance companies.
B. The policy of liability insurance shall:
(1) Be issued to Grantee and name Grantor, its
officers, agents and employees as additional insureds;
(2) Indemnify for all liability for personal and
bodily injury, death and damage to property arising from
activities conducted and premises used pursuant to this
Chapter by providing coverage therefor, including but not
limited to:
- Negligent acts or omissions of
Grantee, and its agents, servants and
employees, committed in the conduct
of franchise operations, and /or
- Use of motor vehicles;
(3) Provide a combined single limit for
comprehensive general liability and comprehensive automobile
liability insurance in the amount provided for in the
franchise agreement. Such insurance policy shall be subject
to review by Grantor's legal counsel; and
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Section 1.22 Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its
officers, agents and employees harmless from any liability,
claims, damages, costs or expenses, to the extent provided
in the Franchise Agreement.
46
Section 1.21 Technical Standards
A. The Grantee shall construct, install, operate and
maintain its system in a manner consistent with all
applicable laws, ordinances, construction standards,
governmental requirements, FCC technical standards, and any
detailed standards set forth in its franchise agreement. In
addition, the Grantee shall provide to the Grantor, upon
request, a written report of the results of the Grantee's
periodic proof of performance tests conducted pursuant to
FCC and franchise standards and guidelines.
B. Repeated and verified failure to maintain
specified technical standards shall constitute a material
breach of the franchise.
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developer, the affected utilities and the cable operators,
alternative installation procedures, such as the use of
deeper trenches, may be utilized, subject to applicable law.
(6) Any cable operator wishing to serve an area
where the trenches have been closed shall be responsible for
its own trenching and associated costs.
(7) In the event that more than one (1) franchise
is awarded, the City reserves the right to limit the number
of drop cables per residence, or to require that the drop
cable(s) be utilized only by the cable operator selected by
the resident to provide service.
(8) The City reserves the right to grant an
encroachment permit to a cable franchisee applicant to
install conduit and /or cable in anticipation of the granting
of a franchise. Such installations shall be at the
applicant's risk, with no recourse against the City in the
event the pending franchise application is not granted. The
City may require an applicant to provide a separate trench
for its conduit and /or cable, at the applicant.'s cost. The
construction of such separate trench, if provided, shall be
coordinated with, and subject to, the developer's overall
construction schedule.
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their cables, and five (5) working days after beginning
installation to complete installation.
(4) The final development map shall not be
approved until the developer submits evidence that:
(a) It has notified each Grantee that
underground utility trenches are to be open as of an
estimated date, and that each Grantee will be allowed access
to such trenches, including trenches from proposed streets
to individual homes or home sites, on specified
nondiscriminatory terms and conditions; and
(b) It has received a written notification
from each Grantee that the Grantee intends to install its
facilities during the open trench period on the specified
terms and conditions, or such other terms and conditions as
are mutually agreeable to the developer and the Grantee, or
has received no reply from a Grantee within ten (10) days
after its notification to such Grantee, in which case the
Grantee will be deemed to have waived its opportunity to
install its facilities during the open trench period.
(5) Sharing the joint utilities trench shall be
subject to compliance with State regulatory agency and
utility standards. If such compliance is not possible, the
developer shall provide a separate trench for the cable
television cables, with the entire cost shared among the
participating operators. With the concurrence of the
43
procedure shall apply with respect to access to and
utilization of underground easements.
(1) The developer shall be responsible for
contacting and surveying all franchised cable operators to
ascertain which operators desire to provide cable television
service to that development. The developer may establish a
reasonable deadline to receive cable operator responses.
The final development map shall indicate the cable operators
that have agreed to serve the development.
(2) If one (1) or two (2) cable operators wish to
provide service, they shall be accommodated in the joint
utilities trench on a nondiscriminatory shared cost basis.
If fewer than two (2) operators indicate interest, the
developer shall provide conduit to accommodate two (2) sets
of cable television cables and dedicate to the City any
initially unoccupied conduit. The developer shall be
entitled to recover the costs of such initially unoccupied
conduit in the event that Grantor subsequently leases or
sells occupancy or use rights to any Grantee.
(3) The developer shall provide at least ten (10)
working days' notice of the date that utility trenches will
be open to the cable operators that have agreed to serve the
development. When the trenches are open, cable operators
shall have two (2) working days to begin the installation of
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reasonably practicable and upon payment of
therefore; provided that in the absence of
regarding such joint use, the City Council
arbitration of the terms and conditions of
and the compensation to be paid therefrom,
be final.
reasonable rental
agreement
shall provide for
such joint use
which award shall
(8) The Grantee shall, on request of any person
holding a moving permit issued by the Grantor, temporarily
move its wires or fixtures to permit the moving of
buildings, the expense of such temporary removal to be paid
by the person requesting the same, and the Grantee shall be
given not less than forty -eight (48) hours' advance notice
to arrange for such temporary changes.
(9) The Grantee shall have the authority, except
when in conflict with existing Grantor ordinances, to trim
any trees upon and overhanging the streets, alleys,
sidewalks and public places so as to prevent the branches of
such trees from coming in contact with the wires and cables
of the Grantee, except that at the option of the Grantor,
such trimming may be done by it, or under its supervision
and direction, at the expense of the Grantee.
E. In the event of multiple franchisees desiring to
serve new residential developments in which the electric
power and telephone utilities are underground, the following
41
public rights -of -way or adjacent thereto as may be necessary
to reasonably avoid injury or damage to life and property.
(5) If at any time during the period of this
franchise the Grantor shall lawfully elect to alter or
change the grade or location of any street, alley or other
public rights -of -way, the Grantee shall, upon reasonable
notice by the Grantor, remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other
fixtures at it own expense, and in each instance comply with
the requirements of the Grantor; provided, that Grantee
shall have no such obligation if other public utilities
occupying the same public rights -of -way are not also
required to remove, relay or relocate their poles, wires,
cables, underground conduits, manholes and other fixtures at
their own expense.
(6) The Grantee shall not place poles, conduits
or other fixtures above or below ground where the same will
interfere with any gas, electric, telephone fixtures, water
hydrants or other utility, and all such poles, conduits or
other fixtures placed in any street shall be so placed as to
comply with all ordinances of the Grantor.
(7) The Grantee may be required by the Grantor to
permit joint use of its utility poles and appurtenances
located in the streets, alleys or other public rights -of-
way, by utilities insofar as such joint use may be
40
sole cost and expense, restore as nearly as practicable to
their former condition said property or improvement which
was so disturbed or damaged, and in the event that any such
property or improvement shall at any later time become
uneven, unsettled or otherwise require restoration, repair
or replacement because of such disturbance or damage by the
Grantee, then the Grantee, as soon as reasonably possible,
shall, promptly upon receipt of notice from the Grantor and
at the Grantee's sole cost and expense, restore as nearly as
practicable to their former condition said property or
improvement which was disturbed or damaged. Any such
restoration by the Grantee shall be made in accordance with
such.materials and specifications as may, from time to time,
be then provided for by Grantor ordinance.
(3) Prior to commencing any work in the public
rights -of -way, the Grantee shall obtain any and all permits
lawfully required by such Grantor codes and ordinances of
general application for such work. In the event that
emergency work may be required by the Grantee, however, the
Grantee shall obtain any and all such permits within three
(3) working days after the beginning of such emergency work.
(4) There shall be no unreasonable or unnecessary
obstruction of the public rights -of -way by the Grantee in
connection with any of the work herein provided for, and the
Grantee shall maintain such barriers, signs and warning
signals during any such work performed on or about the
M
D. Any changes in or extensions of any poles,
anchors, wires, cables, conduits, vaults, laterals or other
fixtures and equipment (herein referred to as "structures "),
or the construction of any additional structures, in, upon,
along, across, under or over the streets, alleys and public
ways shall be made under the direction of Grantor's City
Engineer or a designee, who shall, if the proposed change,
extension or construction conforms to the provisions hereof,
issue written permits therefor. The height above public
thoroughfares of all aerial wires shall conform to the
requirements of the California Public Utilities Commission
or other regulatory body having jurisdiction thereof.
(1) All transmission and distribution structures,
lines and equipment erected by the Grantee shall be located
so as not to interfere with the proper use of streets,
alleys and other public ways and places, and to cause
minimum interference with the rights or reasonable
convenience of property owners who adjoin any of the said
streets, alleys or other public ways and places, and not to
interfere with existing public utility installations.
(2) In the event that any property or improvement
of the Grantor in the public rights -of -way is disturbed or
damaged by the Grantee or any of its contractors, agents or
employees in connection with undertaking any and all work
pursuant to the right granted to the Grantee pursuant to
this Chapter, the Grantee shall promptly, at the Grantee's
38
Section 1.20 Design and Construction Requirements
A. Grantee shall not construct any cable system
facilities until Grantee has secured the necessary permits
from Grantor, or other cognizant public agencies.
B. In those areas of the City where transmission
lines or distribution facilities of the public utilities
providing telephone and electric power service are
underground, the Grantee likewise shall construct, operate
and maintain its transmission and distribution facilities
therein underground.
C. In those areas of the City where the Grantee's
cables are located on the above - ground transmission or
distribution facilities of the public utility providing
telephone or electric power service, and in the event that
the facilities of both such public utilities subsequently
are placed underground at full cost to such public
utilities, then the Grantee likewise shall reconstruct,
operate and maintain its transmission and distribution
facilities underground, at Grantee's cost. Certain of
Grantee's equipment, such as pedestals, amplifiers and power
supplies, which normally are placed above ground, may
continue to remain in above - ground enclosures, unless
otherwise provided in the Franchise Agreement.
37
Section 1.19 Security Fund
A. Grantor may require Grantee to provide a security
fund, in an amount and form established in the Franchise
Agreement. The amount of the security fund shall be
established based on the extent of the Grantee's obligations
under the terms of the franchise.
B. The security fund shall be available to Grantor as
provided in Section 1.34 to satisfy all claims, liens and /or
taxes due Grantor from Grantee which arise by reason of
construction, operation, or maintenance of the system, and
to satisfy any actual or liquidated damages arising out of a
franchise breach, subject to the procedures and amounts
designated in the Franchise Agreement.
C. If the security fund is drawn upon by Grantor in
accordance with the procedures established in this ordinance
and the Franchise Agreement, Grantee shall cause the
security fund to be replenished to the original amount no
later than thirty (30) days after each withdrawal by
Grantor. Failure to replenish the security fund shall be
deemed a material breach of the franchise.
36
D. In the event that any franchise payment or
recomputed amount is not made on or before the dates
specified in the franchise agreement, Grantee shall pay as
additional compensation:
(1) An interest charge, computed from such due
date, at an annual rate equal to the prime lending rate
published in the Wall Street Journal on the due date plus
one percent (1 %) during the period for which payment was
due; and
(2) If the payment is late by forty -five (45)
days or more, a sum of money equal to five percent (5 %) of
the amount due in order to defray those additional expenses
and costs incurred by the Grantor by reason of delinquent
payment.
E. Franchise fee payments shall be made in accordance
with the schedule indicated in the franchise agreement.
35
Section 1.18 Franchise Fee
A. Following the issuance and acceptance of the
franchise, the Grantee shall pay to the Grantor a franchise
fee in the amount set forth in the franchise agreement.
B. The Grantor, on an annual basis, shall be
furnished a statement within sixty (60) days of the close of
the calendar year, either audited and certified by an
independent Certified Public Accountant or certified by an
officer of the Grantee, reflecting the total amounts of
gross receipts and all franchise fee payments, deductions
and computations for the period covered by the payment.
Upon thirty (30) days prior written notice, Grantor shall
have the right to conduct an independent audit of Grantee's
records for the preceding three (3) calendar years, in
accordance with Generally Accepted Auditing Standards, 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 and the audit may be
extended to include the preceding five (5) year period.
C. Except as otherwise provided by law, no acceptance
of any payment by the Grantor shall be construed as a
release or as an accord and satisfaction of any claim the
Grantor may have for further or additional sums payable as a
franchise fee under this ordinance or for the performance of
any other obligation of the Grantee.
34
Section 1.17 Additional Service Standards
Additional service standards and standards governing
consumer protection and response by Grantee to subscriber
complaints not otherwise provided for in this Chapter may be
established in the franchise agreement, and Grantee shall
comply with such standards in the operations of the cable
television system. A verified and continuing pattern of
noncompliance may be deemed a material breach of the
franchise, provided that Grantee shall receive due process,
including written notification, an opportunity to be heard
and an opportunity to cure, prior to any sanction being
imposed.
33
acceptable to the Grantor or a permanent operator is
selected. If the Grantor should 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
indemnify the Grantor against any damages Grantor may suffer
as a result of such failure.
L. All officers, agents or employees of Grantee who,
in the normal course of work require entry onto subscribers'
premises shall carry a photo - identification card in a form
approved by Grantor. Grantee shall account for all
identification cards at all times. Every vehicle of the
Grantee utilized for field maintenance shall be clearly
identified.
32
I. Following prior written notice to Grantee, Grantor
shall have the right to review Grantee's response to
subscriber complaints in order to determine.Grantee's
compliance with the franchise requirements, subject to the
subscriber's right to privacy.
J. 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 rebuild, modify, or sell the
system, or the Grantor gives notice of intent to terminate
or not to renew the franchise, the Grantee shall act so as
to ensure that all subscribers receive service so long as
the franchise remains in force.
In the event of a change of control of Grantee, or in
the event a new operator acquires the system, the original
Grantee shall cooperate in all reasonable respects with the
Grantor, new Grantee or operator in maintaining continuity
of service to all subscribers. During such period, Grantee
shall be entitled to the revenues for any period during
which it operates the system.
K. In the event Grantee fails to operate the system
for seven (7) consecutive days without prior approval or
subsequent excuse of the Grantor, the Grantor may, at its
sole option, operate the system or designate an operator
until such time as Grantee restores service under conditions
31
Section 1.33 Remedies for Franchise Violations
If Grantee fails to perform in a timely manner any
material obligation required by this Chapter or a franchise
granted hereunder, following notice from the Grantor, an
opportunity for Grantee to be heard, and an opportunity to
cure such nonperformance in accordance with the provisions
of Section 1.34 of this Chapter and the franchise, Grantor,
by resolution of the City Council, may at its option and in
its sole discretion:
A. Cure the violation and recover the actual cost
thereof from the security fund established herein if such
violation is not cured within thirty (30) days after written
notice to the Grantee of Grantor's intention to cure and
draw upon the security fund;
B. Assess against Grantee liquidated damages in an
amount set forth in the Franchise Agreement for any such
violations(s) if such violation is not cured, or if Grantee
has not commenced a cure, on a schedule acceptable to
Grantor, within thirty (30) days after written notice to the
Grantee of Grantor's intention to assess liquidated damages.
Such assessment may be withdrawn from the security fund, and
shall not constitute a waiver by Grantor of any other right
or remedy it may have under the franchise or applicable law,
including without limitation, its right to recover from
Grantee such additional damages, losses, costs and expenses,
63
including actual attorney's fees, as may have been suffered
or incurred by Grantor by reason of or arising our of such
breach of the franchise; and
C. Exercise its right to revoke the franchise as
provided in Section 1.35 of this Chapter.
64
Section 1.34 Procedure for Remedying Franchise
violations
Prior to imposing any remedy or other sanction against
Grantee specified in this Chapter, Grantor shall give
Grantee notice and opportunity to be heard on the matter, in
accordance with the following procedures:
A. Grantor shall first notify Grantee of the
violation in writing by personal delivery or registered or
certified mail, and demand correction within a reasonable
time, which shall not be less than five (5) days in the case
of the failure of the Grantee to pay any sum or other amount
due the Grantor under this Chapter or the Grantee's
franchise and thirty (30) days in all other cases. If
Grantee fails to correct the violation within the time
prescribed or if Grantee fails to commence correction of the
violation within the time prescribed and diligently remedy
such violation thereafter, the Grantor shall then give
written notice of not less than twenty (20) days of a public
hearing to be held before the Council. Said notice shall
specify the violations alleged to have occurred.
B. At the public hearing, the Council shall hear and
consider all relevant evidence, and thereafter render
findings and its decision.
65
C. In the event the Council finds that the Grantee
has corrected the violation or has diligently commenced
correction of such violation after notice thereof from
Grantor and is diligently proceeding to fully remedy such
violation, or that no material violation has occurred, the
proceedings shall terminate and no penalty or other sanction
shall be imposed.
D. In the event the Council finds that the material
violations alleged in the notice to Grantee exist and that
Grantee has not corrected the same in a satisfactory manner
or has not diligently commenced correction of such violation
after notice thereof from Grantor and is not diligently
proceeding to fully remedy such violation, the Council may
impose one (1) or more of the remedies provided in.this
ordinance and the Franchise Agreement as it, in its
discretion, deems appropriate under the circumstances.
M.
Section 1.35 Grantor's Power to Revoke
Subject to limitations imposed by applicable Federal or
State law, Grantor reserves the right to revoke any
franchise granted pursuant to this Chapter and rescind all
rights and privileges associated with it in the following
circumstances, each of which shall represent a default by
Grantee and a material breach under the franchise grant:
A. If Grantee shall default in the performance of its
material obligations under this Chapter or the franchise
agreement and shall continue such - default after receipt of
due notice and reasonable opportunity to cure the default;
B. If Grantee shall fail to provide or maintain in
full force and effect the insurance coverage or security
fund as required in the Franchise Agreement;
C. If Grantee shall violate any order or ruling of
any regulatory body having jurisdiction over the Grantee
relative to the Grantee's franchise, unless such order or
ruling is being contested by Grantee by appropriate
proceedings conducted in good faith;
D. If Grantee practices any material fraud or deceit
upon Grantor;
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E. Except as provided in Section 1.40 herein, if
Grantee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged a bankrupt.
The termination and forfeiture of the Grantee's
franchise shall in no way affect any right of Grantor to
pursue any remedy under the franchise or any provision of
law.
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Section 1.36 Force Majeure; Grantee's Inability to
Perform
In the event Grantee's performance of any of the terms,
conditions or obligations required by this Chapter or a
franchise granted hereunder is prevented by a cause or event
not within Grantee's control, such inability to perform
shall be deemed excused and no penalties or sanctions shall
be imposed as a result thereof. For the purpose of this
Section, causes or events not within the control of Grantee
shall include without limitation acts of God, strikes,
sabotage, riots or civil disturbances, weather conditions,
restraints imposed by order of a governmental agency or
court, explosions, safety incidents involving nuclear
facilities, acts of public enemies, and natural disasters
such as floods, earthquakes, landslides, and fires, but
shall not include financial inability of the Grantee to
perform or failure of the Grantee to obtain any necessary
permits or licenses from other governmental agencies or the
right to use the facilities of any public utility where such
failure is due solely to the acts or omissions of Grantee,
or the failure of the Grantee to secure supplies, services
or equipment necessary for the installation, operation,
maintenance or repair of the cable communications system
where the Grantee has failed to exercise reasonable
diligence to secure such supplies, services or equipment.
MW
Section 1.37 Abandonment or Removal of Franchise
Property
A. In the event that the use of any property.of
Grantee within the public rights -of -way is discontinued for
a continuous period of twelve (12) months, Grantee shall be
deemed to have abandoned that franchise property. Any part
of the cable system that is intended for use only when
needed because it is parallel or redundant to other parts of
the system, or otherwise, shall not be deemed to have been
abandoned because of its lack of use.
B. Grantor, upon such terms as Grantor may impose,
may give Grantee permission to abandon, without removing,
any system facility or equipment laid, directly constructed,
operated or maintained under the franchise. Unless such
permission is granted or unless otherwise provided in this
Chapter, the Grantee shall remove all abandoned above - ground
facilities and equipment upon receipt of written notice from
Grantor and shall restore any affected street to its former
state at the time such facilities and equipment were
installed, so as not to impair its usefulness. In removing
its plant, structures and equipment, Grantee shall refill,
at its own expense, any excavation that shall be made by it
and shall leave all public ways and places in as good
condition as that prevailing prior to such removal without
materially interfering with any electrical or telephone
70
cable or other utility wires, poles, or attachments. .
Grantor shall have the right to inspect and approve the
condition of the pubic ways, public places, cables, wires,
attachments and poles prior to and after removal. The
liability, indemnity and insurance provisions of this
Chapter and the security fund as provided herein shall
continue in full force and effect during the period of
removal and until full compliance by Grantee with the terms
and conditions of this Section.
C. Upon abandonment of any franchise property in
place, the Grantee, if required by the Grantor, shall submit
to the Grantor an instrument, satisfactory in form to the
Grantor, transferring to the Grantor the ownership of the
franchise property abandoned.
D. At the expiration of the term for which the
franchise is granted, or upon its revocation or earlier
expiration, as provided herein, in any such case without
renewal, extension or transfer, the Grantor shall have the
right to require Grantee to remove, at its own expense, all
above - ground portions of the cable television system from
all streets and public ways within the City within a
reasonable period of time, which shall not be less than one
hundred eighty (180) days.
E. Notwithstanding anything to the contrary set forth
in this Chapter, the Grantee may abandon any underground
71
franchise property in place so long as it does not
materially interfere with the use of the street or public
rights -of -way in which such property is located or with the
use thereof by any public utility or other cable Grantee.
72
Costs
Section 1.38 Restoration by Grantor: Reimbursement of
In the event of a failure by Grantee to complete any
restoration work required herein or by any other law or
ordinance, and if such work is not completed within thirty
(30) days after receipt of written notice thereof from
Grantor or, if more than thirty (30) days are reasonably
required therefor, if Grantee does not commence such work
within such thirty (30) days period and diligently complete
the work thereafter (except in cases of emergency
constituting a threat to public health, safety or welfare),
Grantor may cause such work to be done and Grantee shall
reimburse Grantor the costs thereof within thirty (30) days
after receipt of an itemized list of such costs, or Grantor
may recover such costs through the security fund provided by
Grantee.
73
Section 1.39 Extended Operation and Continuity of
Services.
Upon expiration or revocation of the franchise, the
Grantor shall have the discretion to permit Grantee to
continue to operate the cable television system for an
extended period of time. Grantee shall continue to operate
the system for a reasonable period of time under the terms
and conditions of this Chapter and the franchise and to
provide the regular subscriber service and any and all of
the services that may be provided at that time. It shall be
the right of all subscribers to continue to receive all
available services provided that financial and other
obligations to Grantee are honored. The Grantee shall use
reasonable efforts to provide continuous, uninterrupted
service to its subscribers, including operation of the
system during transition periods for a reasonable period of
time following franchise expiration or termination.
74
Section 1.40 Receivership and Foreclosure
A. A franchise granted hereunder shall, at the option
of Grantor, cease and terminate one hundred twenty (120)
days after appointment of a receiver or receivers, or
trustee or trustees, to take over and conduct the business
of 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 Chapter and the franchise granted
pursuant hereto, and the receivership or trustees within
said one hundred twenty (120) days shall have remedied all
defaults under the franchise or provided a plan for the
remedy of such defaults which is satisfactory to the
Grantor; and (2) such receivers or trustees shall, within
said one hundred twenty (120) days, execute an agreement
duly approved by the court having jurisdiction in the
premises whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation
of the franchise granted.
B. Except as provided in Section 1.8 E. herein, in
the case of a foreclosure or other judicial sale of the
75
franchise property, or any material part thereof, Grantor
may serve notice of termination upon Grantee and the
successful bidder at such sale, in which event the franchise
granted and all rights and privileges of the Grantee
hereunder shall cease and terminate thirty (30) days after
service of such notice, unless: (1) Grantor shall have
approved the transfer of the franchise, as and in the manner
that this Chapter provides; and (2) such successful bidder
shall have covenanted and agreed with Grantor to assume and
be bound by all terms and conditions of the franchise.
76
Section 1.41 Rights Reserved to Grantor
A. In addition to any rights specifically reserved to
the Grantor by this Chapter, the Grantor reserves to itself
every right and power which is required to be reserved by a
provision of any ordinance or under the franchise.
B.. The Grantor shall have the right to waive any
provision of the franchise, except those required by Federal
or State regulation, if the Grantor determines (1) that it
is in the public interest to do so, and (2) that the
enforcement of such provision will impose an undue hardship
on the Grantee or the subscribers. To be effective, such
waiver shall be evidenced by a statement in writing signed
by a duly authorized representative of the Grantor. Waiver
of any provision in one (1) instance shall not be deemed a
waiver of such provision subsequent to such instance nor be
deemed a waiver of any other provision of the franchise
unless the statement so recites.
77
Section 1.42 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 relating to nondiscrimination.
B. Grantee shall adhere to the applicable equal
employment opportunity requirements of Federal, State and
local regulations, as now written or as amended from time to
time.
C. Neither Grantee, nor any person, agency, or entity
shall, without the subscriber's consent, tap, or arrange for
the tapping, of any cable, line, signal input device, or
subscriber outlet or receiver for any purpose except routine
maintenance of the system, detection of unauthorized
service, polling with audience participation, or audience
viewing surveys to support advertising research regarding
viewers where individual viewing behavior cannot be
identified.
D. In the conduct of providing its services or in
pursuit of any collateral commercial enterprise resulting
therefrom, Grantee shall take reasonable steps to prevent
the invasion of a subscriber's or general citizen's right of
m
privacy or other personal rights through the use of the
system as such rights are delineated or defined by
applicable law. Grantee shall not without lawful court
order or other applicable valid legal authority utilize the
system's interactive two -way equipment or capability for
unauthorized personal surveillance of any subscriber or
general citizen for any purpose unrelated to the operation
of the cable system.
E. No cable line, wire amplifier, converter, or other
piece of equipment owned by Grantee shall be installed by
Grantee in the subscriber's premises, other than in
appropriate easements, without first securing any required
consent. If a subscriber requests service, permission to
install upon subscriber's property shall be presumed.
F. The Grantee, or any of its agents or employees,
shall not sell, or otherwise make available to any party for
any purpose other than the operation or transfer of the
cable system without consent of the subscriber pursuant to
State and Federal privacy laws:
(1) Any list of the names and addresses of
subscribers containing the names and addresses of
subscribers who request in writing to be removed from such
list; and
(2) Any list which identifies the viewing habits
of individual subscribers. This does not prohibit the
79
Grantee from providing composite ratings of subscriber
viewing to any party.
L-M
Section 1.43 Separability
If any provision of this Ordinance is held by any court
or by any Federal or State agency of competent jurisdiction,
to be invalid as conflicting with any Federal or State 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, such provision shall be considered a separate,
distinct, and independent part of this Chapter, and such
holding shall not affect the validity and enforceability of
all other provisions hereof. In the event that such law,
rule or regulation is subsequently repealed, rescinded,
amended or otherwise changed, so that the provision thereof
which had been held invalid or modified is no longer in
conflict with such law, rule or regulation, said provision
shall thereupon return to full force and effect and shall
thereafter be binding on Grantor and Grantee, provided that
Grantor shall give Grantee thirty (30) days' written notice
of such change before requiring compliance with said
provision or such longer period of time as may be reasonably
required for Grantee to comply with such provision. .
,1
A summary of this ordinance, together with the names of councilmembers voting for
and against, shall be published at least (5) days prior to its final passage, in the Telegram -
Tribune, a newspaper published and circulated in this city. This ordinance shall go into
effect at the expiration of thirty (30) days after its final passage.
INTRODUCED AND PASSED TO PRINT by the Council of the City of San Luis
Obispo at its meeting held on the 25th day of May , 1993, on motion of
Council Member Settle and seconded by Council Member Romeroand on the following
roll call vote:
AYES: Council Members Settle, Romero, Roalman, and Mayor Pinard
NOES: None
ABSENT: Council Member Rappa
Mayor PegPjpard-
ATTEST:
jyK'
lerk
im i
AP PROVED:
Gladwell
Assistant City Clerk
John Punn, City Administrative Officer
Jg.en,Aqfi, (�i'ty Attorney
\cable - 82
Ordinance No. 1238 (1993 Series)
'W'
FINALLY PASSED this 1st day of June , 1993
on motion of Mayor Pinard , seconded by
Council Member Settle , and on the following roll call vote:
AYES: Council Members Settle, Rappa, Roalman, Romero and Mayor Pinard
NOES: None
ABSENT: None
ATTEST:
�i
MR
V
Mayor Peg6knard
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