HomeMy WebLinkAboutORD 318ORDINANCE NO. 318
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, PROVIDING FOR THE
ESTABLISHMENT AND GRANTING OF FRANCHISES OR
PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE AND
COOPERATION OF CABLE COMMUNICATION, OR CABLE
TELEVISION SYSTEMS AND FURTHER PROVIDING FOR THE
CONTINUING REGULATION AND ADMINISTRATION OF THESE
FRANCHISES AND THE ACTIVITIES RELATIVE TO THEM.
SECTION 14.01.010 INTENT
The City of Palm Desert finds that the development of
cable television and communications systems has the
potential of having great benefit and impact upon the people
of the City. Because of the complex and rapidly changing
technology associated with cable television, the City
further finds that the public convenience, safety and
general welfare can be best served by establishing
regulatory powers which should be vested in the City or such
persons as the City shall designate. It is the intent of
this ordinance and subsequent amendments to provide for and
specify the means to attain the best possible public
interest and public purpose in these matters and any
franchise issued pursuant to this ordinance shall be deemed
{ to include this finding as an integral part thereof.
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SECTION 14.01.020 SHORT TITLE
This ordinance shall be known and may be cited as the
• "City of Palm Desert -- Cable Television Franchise
Ordinance."
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SECTION 14.01.030 DEFINITIONS
For the purpose of this ordinance the following terms,
phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words
used in the present tense include the future, words in the
plural number include the singular number, and words in the
singular number include the plural number. The word "shall"
is mandatory and "may" is permissive. The Words not defined
shall be given their common and ordinary meaning.
14.01.030(1): "Access Channel" means any program or
signal channel available for non-profit use by government
agencies, educational institutions, community groups,
individual members of the public, under terms established by
the franchise agreement.
14.01.030(2) "Additional Subscriber Service" means
any service not included in "Basic Subscriber Television
Service", or "Basic Subscriber Radio Service" or
"Institutional Service", including, but not limited to,
pay-cable.
14.01.030(3) "Basic Subscriber Radio Service" means
the provision to all subscribers of such audio services as
the retransmission of broadcast AM and FM radio signals, the
retransmission of shortwave, weather, news, time and other
similar audio broadcast channels, and the transmission of
cablecast AM or FM radio signals, as permitted by the FCC.
14.01.030(4) "Basic Subscriber Television Service"
means the total of all of the following:
(a) The retransmission to all subscribers of all
broadcast television channel signals authorized by the FCC
and provided for herein;
(b) The provision to all subscribers of
non -broadcast open channel signals, originating from sources
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outside the Cable Communications System;
(c) The cablecasting to all subscribers of
programming on the Local Origination Channel, and all Public
Educational and Government Access channels;
(d) The transmission to all subscribers of all
other cablecast open -channel signals.
14.01.030(5) "Broadcast Signal" means a television or
radio signal that is transmitted over the air to a wide
geographic audience and is received by a Cable
Communications System off -the -air or by microwave or
satellite link.
14.01.030(6) "Cable Communications System" or
"System, also referred to as "Cable Television System" or
"CATV System", means a system of antennas, cables,
amplifiers, towers, microwave links, cablecasting studios,
and by other conductors, converters, equipment or
facilities, designed and constructed for the primary purpose
of distributing video programming to home subscribers, and
the secondary purpose of producing, receiving, amplifying,
storinq, processing, or distributing audio, video, digital,
or other forms of electronic or electrical signals.
14.01.030(7) "Cablecast Signal" means a nonbroadcast
signal that originates within the facilities of the Cable
Communications System.
14.01.030(8) "Channel" means a six megahertz (MHz)
frequency band, which is capable of carrying either one
standard video signal, a number of audio, digital or other
non -video signals, or some combination of such signals.
14.01.030(9) "City" or "Grantor" means the City of
Palm Desert, as it is presently, and may be in the future,
constituted.
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14.01.030(10) "Closed -Circuit" or "Institutional
Service" means such video, audio, data and other services
provided to institutional users on an individual
application, private channel basis. These may include, but
not be limited to, two-way video, audio or digital signals
among institutions, or from institutions to residential
subscribers.
14.01.030(11) "Council" means the City Council, the
governing body of the City of Palm Desert.
14.01.030(12) "FCC" means the Federal Communications
Commission and any legally appointed or elected successor.
14.01.030(13) "Franchise" means the non-exclusive
rights granted pursuant to this ordinance to construct and
operate a Cable Communications System along the public ways
within all or a specified area in the City. Any such
authorizations, in whatever form granted, shall not mean and
include any license or permit required for the privilege of
transacting and carrying on a business within the City as
required by other ordinances and laws of the City.
14.01.030(14) "Franchise Agreement" means a franchise
award ordinance accepted on the part of the Grantee, or a
written agreement between the Grantor and Grantee, con-
taining the specifications, franchise applications, and
other related material.
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14.01.030(15) "Franchise Fee" means the charges
imposed as consideration for the granting of a franchise and
the continuing use of the public streets and rights -of -way.
14.41.030(16) "Government Channel" or "Government
Access Channel" means any channel where local government
agencies are the only designated programmers.
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14.01.030(17) "Grantee" means any "person" corporation
or other business entity receiving a franchise pursuant to
this ordinance and its lawful successor, transferee or
assignee.
14.01.030(18) "Grantor" means the City of Palm Desert
as represented by the City Council or its delegate acting
within the scope of its jurisdiction.
14.01.030(19) "Gross Revenues" means the annual gross
revenues received by the Grantee from all sources of
operations of the Cable Communications System within the
franchise area, except that any sales, excise or other taxes
collected for direct pass -through to local, state or federal
government shall not be included.
14.01.030(20) "Initial Service Area" means the area of
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the City which will receive service initially, as set forth
in the franchise agreement.
14.01.030(21) "Leased Channel" or "Leased Access
Channel" means any channel available for lease and
programming by persons or entities other than the Grantee,
including those portions of the other access channels not in
use by their designated programmers.
14.01.030(22) "Local Origination Channel" means any
channel where the Grantee is the only designated programmer,
and provides local programs to subscribers.
14.01.030(23) "Non Broadcast Signal" means a signal
that is transmitted by a Cable Communications System and
that is not involved in an over -the -air broadcast
transmission path.
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14.01.030(24) "Open Channel" means any channel that
can be received by all subscribers, without the necessity
for special equipment.
14.01.030(25) "Pay -Cable" or "Pay -Television" means
the delivery to subscribers, over the Cable Communications
System, of television signals for a fee or charge to
subscribers over and above the charge for Basic Subscriber
service, on a per program, per channel, or other
subscription basis.
14.01.030(26) "Person" means an individual,
partnership, association, organization, corporation or any
lawful successor, transferee or assignee of said individual,
partnership, association, organization or corporation.
14.01.030(27) "Private Channel", or "Closed -Circuit
Channel" means any channel which is available only to
subscribers who are provided with special converter or
terminal equipment to receive signals on that channel.
14.01.030(28) "Programmer" means any person or entity
who or which produces or otherwise provides program material
or information for transmission by video, audio, digital, or
other signals, either live or from recorded tapes or other
storage media, to subscribers, by means of the Cable
Communications System.
14.01.030(29) "Public Access Channel", "Community
Access Channel", or "Community Channel" means any channel
where any member of the general public or any non-commercial
organization may be a programmer, without charge, on a
non-discriminary basis.
14.01.030(30) "Resident" means any person residing in
the City as otherwise defined by applicable law.
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14.01.030(31) "Section" means any section, subsection,
or provision of this franchise ordinance.
14.01.030(32) "Service Area" means the entire
geographic area within the franchise territory.
14.01.030(33) "State" means the State of California.
14.01.030(34) "Street" shall include each of the
following which have been dedicated to the public or
hereafter dedicated to the public and maintained under
public authority or by others and located within the City
limits: streets, roads, highways, avenues, lanes, alleys,
sidewalks, easements, right-of-way and similar public ways
and extensions and additions thereto, together with such
other public property and areas that the City shall permit
to be included within the definition of street from time to
' time.
14.01.030(35) "Subscriber" means any person, firm,
corporation, or other entity who or which elects to
subscribe to, for any purpose, a service provided by the
Grantee by means of or in connection with the cable
communications system.
14.01.030(36) "Tapping" means observing a
communications signal exchange, where the observer is
neither of the communicating parties, whether the exchange
is observed by visual or electronic means, for any purpose
whatsoever.
14.01.030(37) "Year" means the remaining portion of
1923. Thereafter, "year" means a full calendar year.
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SECTION 14.01.040 GRANT OF FRANCHISE
14.01.040(1) Grant. In the event that Grantor shall
grant to the Grantee a non-exclusive, revocable franchise to
construct, operate, maintain, and reconstruct a Cable
Communications System within the City, said franchise shall
constitute both a right and an obligation to provide the
services of a Cable Communications System as required by the
provisions of this ordinance and franchise agreement. The
franchise agreement shall include those provisions of the
Grantee's "Application for Franchise" that are finally
negotiated and accepted by the Grantor and Grantee.
This franchise is granted under the terms and condi-
tions contained herein, consistent with Grantor Charter
and/or statutory requirements, which are incorporated by
this reference as if fully set forth herein. In the event
of conflict between the terms and conditions of this
franchise and the terms and conditions on which the Grantor
can grant a franchise, the Charter and/or statutory require-
ments shall, without exception, control.
This franchise is hereby made subject to the general
ordinance provisions now in effect or hereafter made
effective. Nothing in this franchise shall be deemed to
waive the requirements of the various codes and ordinances
of the City regarding permits, fees to be paid or manner of
construction.
14.01.040(2) Franchise Territory. The Grantor may
grant a franchise for all or any defined portion of the
City. The service area shall be the entire territory defined
in the franchise agreement. The initial service area shall
be that portion of the franchise territory scheduled to
receive initial service, as stated in the franchise
agreement.
14.01.040(3) Use of Public Streets and Ways. For the
purpose of operating and maintaining a Cable Communications
System in the City, the Grantee may erect, install,
construct, repair, replace, reconstruct, and retain in, on,
over, under, upon, across, and along the public streets
and/or other ways within the City such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and other property and
equipment as are necessary and appurtenant to the operation
of the Cable Communications System. Prior to construction
or alteration, however, the Grantee shall in each case file
plans with the appropriate City agencies and utility
companies, and receive written approval before proceeding.
14.01.040(4) Duration. The term of this franchise
and all rights, privileges, obligations and restrictions
pertaining thereto shall be fifteen (15) years from the
effective date of the franchise unless terminated sooner as
hereinafter provded. The effective date of the franchise
ordinance shall be thirty (30) days after adoption by the
Council. The Grantee must file by the effective date in the
Office of the City Clerk a written acceptance of the
franchise, or the franchise shall be null and void.
14.01.040(5) Franchise Non -Exclusive. The franchise
granted herein is non-exclusive. The Grantor specifically
reserves the right to grant, at any time, such additional
franchises for a Cable Communications System as it deems
appropriate. The Grantor also reserves the right to grant
one or more franchises for the provision of specifically
defined services not being provided by any Grantee including
but not limited to institutional communications services and
interactive residential services.
14.01.040(6) Transfer of Ownership or Control
(a) Transfer of Franchise. Any Franchise
granted hereunder shall be a privilege to be held for the
benefit of the public. Said franchise cannot in any event
be sold, transferred, leased, assigned or disposed of,
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including but not limited to, by forced or voluntary sale,
merger, consolidation, receivership, or other means without
the prior consent of the Grantor and then only under such
conditions as the Grantor may establish. If any transfer of
the franchise occurs without the prior consent of the
Grantor, the franchise may, at Grantor's sole option, be
terminated immediately.
(b) Ownership or Control. The Grantee
shall promptly notify the Grantor 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. A
rebuttable presumption that a transfer of control has
occurred shall arise upon the acquisition or accumulation by
any person or group of persons of ten percent (10%) of the
voting shares of the Grantee. Every change, transfer, or
acquisition of control of the Grantee shall make the
franchise subject to cancellation unless and until the
Grantor shall have consented thereto, which consent shall
not be unreasonably withheld. For the purpose of
determining whether it shall consent to such change,
transfer, or acquisition of control, the Grantor may inquire
into the qualification of the prospective controlling party,
and the Grantee shall assist the Grantor in any such
inquiry.
In seeking the Grantor's consent to any change in
ownership or control, the Grantee shall have the responsi-
bility:
(1) To show to the satisfaction of the
Grantor whether the proposed purchaser, transferee, or
assignee (the "Proposed transferee"), which in the case of a
corporation, shall include all officers, directors,
employees and all persons having a legal or equitable
interest in five percent (5%) or more of its voting stock,
or any of the proposed transferee's principals:
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(a) Has ever been convicted or held
liable for acts involving moral turpitude (including, but
not limited to any federal or state agency, or violation of
any tax or securities law), or is presently under an
indictment, investigation or complaint charging such acts;
(b) Has ever had a judgment in an
action for fraud, deceit or misrepresentation entered
against it, her, him, or them by any court of competent
jurisdiction; or
(c) Has pending any legal claim,
lawsuit or administrative proceeding arising out of or
involving a cable system.
(2) To establish, to the satisfaction of the
Grantor, the financial solvency of the proposed transferee
by submitting all current financial data for the proposed
transferee which the Grantee was required to submit in its
franchise application, and such other data as the Grantor
may request.
(3) To establish to the satisfaction of the
Grantor that the financial standing of the proposed
transferee is such as shall enable it to maintain and
operate the cable system for the remaining term of the
franchise.
(c) The Grantor agrees that any financial institution
having a pledge of the franchise or its assets for the
advancement of money for the construction and/or operation
of the franchise shall have the right to notify the Grantor
that it or its designee satisfactory to the Grantor will
take control and operate the cable television system.
Further, said financial institution shall also submit a plan
for such operation that will insure continued service and
compliance with all franchise obligations 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 year unless extended
by the Grantor in its discretion and during said period of
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time it shall have the right to petition the Grantor to
transfer franchise to another Grantee. If the Grantor finds
that the legal, financial, character, technical and other
public interest qualities of the applicant are satisfactory,
the Grantor may transfer and assign the rights and
obligations of such franchise as in the public interest.
The consent of the Grantor to such transfer shall not be
unreasonably withheld.
(d) The consent or approval of the Grantor to any
transfer of the Grantee shall not constitute a waiver or
release of the rights of the Grantor in and to the streets,
and any transfer shall by its terms, be expressly
subordinate to the terms and conditions of this franchise.
(e) In the absence of extraordinary circumstances, the
Grantor shall not approve any transfer or assignment of the
franchise prior to substantial completion of construction of
the proposed system.
(f) In no event shall a transfer of ownership or
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control be approved without successor in interest becoming a
signatory to the franchise agreement.
14.01.040(7) Franchise Renewal
(a) Any franchise granted under this ordinance
may be renewed by the City upon application of the Grantee
pursuant to the procedure established in subsection (b.) of
this section, and in accordance with the then applicable
law.
(b) Procedures. Except by mutual agreement of
Grantor and Grantee, no earlier than two years and not less
than eighteen (18) months prior to the expiration date of
the franchise, the Grantee may submit an application for
renewal to the Grantor by registered or certified mail. At
that time, after giving due public notice, the Grantor shall
review the provisions of the franchise and shall evaluate
the performance of the Grantee, including but not limited to
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the results of System Performance and System and Services
Review sessions. In making this evaluation, the Grantor
shall consider relevant factors, including, but not limited
to, the following:
(1) Technical development and performance
• of the Grantee's cable system;
(2) Programming;
(3) Additional services offered by the
Grantee;
(4) Cost of service:
(5) All obligations of Grantee as prescribed
by the franchise;
(6) Cable industry performance nationwide;
and
(7) Comments from residents and represent-
atives of community organizations
submitted in a manner to be determined
' by the Grantor.
After holding a public hearing, the Grantor shall take
such actions as it deems appropriate, which may include any
of the following:
(1) If the Grantor finds the Grantee's
performance satisfactory, franchise
renewals may be granted pursuant to this
ordinance as amended, for additional
periods of up to ten (10) years.
(2) In the event the Grantee is determined
by the Grantor to have performed un-
satisfactorily, new applicants shall be
sought and evaluated and a franchise
awarded in accordance with franchising
procedures then in force.
(3) The Grantor may direct the Grantee to
remove and dismantle its cable system at
the Grantee's cost;
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(4) Absent a timely request from Grantee to
renew the franchise, the franchise shall
terminate at the end of its initial or
any renewal term.
(5) The Grantor may take such other action
as allowed by law which, in its sole
discretion, it shall deem appropriate.
14.01.040(8) Police Powers In accepting this
franchise, the Grantee acknowledges that its rights
hereunder are subject to the police power of the City to
adopt and enforce general ordinances necessary to the safety
and welfare of the public; and it agrees to comply with all
applicable general laws and ordinances enacted by the City
pursuant to such power.
Any conflict between he provisions of this franchise
and any other present or future lawful exercise of the
I Grantor's police powers shall be resolved in favor of the
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latter, except that any such exercise that is not of general
application in the jurisdiction or applies exclusively to
Grantee or Cable Communications Systems which contains
provisions inconsistent with this franchise shall prevail
only if upon such exercise, the Grantor finds an emergency
exists constituting a danger to health, safety, property or
general welfare or such exercise is mandated by law.
14.01.040(9) Franchise Fee.
(a) Annual Franchise Payment. A Grantee of a
franchise hereunder shall pay to the Grantor an annual fee
in an amount as designated in the franchise agreement, but
in no event less than five percent (5%) of the annual gross
revenues. Such payment shall be in addition to any other
fee, licenses and charges of the City, and shall commence as
of the effective date of the franchise. In the event of a
dispute, the Grantor, if it so requests shall be furnished a
statement of said payment by a Certified Public Accountant,
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reflecting the total amounts of annual gross revenues and
the above charges, deductions and computations for the
period covered by the payment.
(b) Acceptance by Grantor. No acceptance of any
payment by the Grantor shall be construed as a release or as
an accord and satisfaction of any claim the Grantor may have
for further or additional sums payable as a franchise fee
under this ordinance or for the performance of any other
obligation of the Grantee.
(c) Failure to Make Required Payment. In the event
that any franchise payment or recomputed amount is not made
on or before the dates specified herein, Grantee shall pay
as additional compensation:
(1) an interest charge, computed from such due
date, at the annual rate equal to the
commercial prime interest rate in effect upon
the due date.
`. (2) a sum of money equal to five percent (5%) of
the amount due in order to defray those
additional expenses and costs incurred by the
Grantor by reason of delinquent payment.
(d) Payments due the Grantor under this provision
shall be computed quarterly, for the preceding quarter, as
of March 31, June 30, September 30, and December 31. Each
quarterly payment shall be due and payable no later than
thirty (30) days after the dates listed in the previous
sentence. Each payment shall be accompanied by a brief
report showing the basis for the computation and such other
relevant facts as may be required by the Grantor.
(e) Grantor reserves the right to include in any
franchise agreement a requirement for Grantee to pay
specified franchise fees in advance, either in the form of
lump sum payments or minimum annual fees, to help defray
Grantor's regulatory costs during the initial years of the
franchise, before cable system revenues have stabilized.
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14.01.040(10) Forfeiture or Revocation. The Grantor
reserves the right to revoke any franchise granted hereunder
and rescind all rights and privileges associated with the
franchise in the following circumstances, each of which
shall represent a default and breach under this ordinance
and the franchise grant:
(1) If the Grantee should default in the
performance of any of its material
obligations under this ordinance or
under any franchise agreement, docu-
ments, contracts and other terms and
provisions entered into by and between
the Grantor and the Grantee.
(2) If the Grantee should fail to provide or
maintain in full force and effect, the
liability and indemnification coverages
or the performance bond as required
j1 herein.
(3) If any court of competent jurisdiction,
the FCC or any state regulatory body by
rules, decisions, or other action
determines that any material provision
of the franchise documents, including
this ordinance, is invalid or unen-
forceable prior to the commencement of
system construction.
(4) If the Grantee should frequently violate
any orders or rulings of any regulatory
body having jurisdiction over the
Grantee relative to this franchise
unless such orders or rulings are being
contested by the Grantee in a court of
competent jurisdiction.
( 5 ) If the Grantee attempts to evade any of
the provisions of this ordinance or the
franchise agreement or practices any
fraud or deceit upon the City.
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(6)
The Grantee's construction schedule is
delayed for more than 18 months later
than the schedule contained in the
franchise agreement.
• (7)
The Grantee becomes insolvent, unable or
unwilling to pay its debts, or is
adjudged a bankrupt.
(a) Procedure
Prior to Revocation.
(1)
The Grantor shall make written demand
that the Grantee comply with any such
requirement, limitation, term,
condition, rule or regulation or correct
any action deemed cause for revocation.
If the failure, refusal or neglect of
the Grantee continues for a period of
thirty (30) days following such written
demand, the Grantor may place its
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request for termination of the franchise
upon a regular Council meeting agenda.
The Grantor shall cause to be served
upon such Grantee, at least ten (10)
days before such meeting, a written
notice of such hearing and cause said
notice to be published once in a
newspaper of general circulation within
the City.
(2)
The Council shall hear any persons
interested therein, and shall determine,
in its discretion, whether or not any
failure, refusal or neglect by the
Grantee was with just cause.
` (3)
If such failure, refusal or neglect by
the Grantee was with just cause, or
otherwise excusable, the Council shall
direct the Grantee to comply within such
time and manner and upon such terms and
conditions as are reasonable.
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(4) If the Council shall determine such
failure, refusal or neglect by the
Grantee was without just cause, then the
Council may, by resolution, declare that
the franchise of such Grantee shall be
terminated and bond forfeited unless
there be compliance by the Grantee
within such period as the Council may
fix.
(b) Disposition of Facilities. In the event a
franchise expires, is revoked, or otherwise terminated, the
Grantor may order the removal of the system facilities from
the City within a reasonable period of time as determined by
the Grantor or require the original Grantee to maintain and
operate its system until a subsequent Grantee is selected.
(c) Restoration of Property. In removing its plant,
structures and equipment, the Grantee shall refill, at its
own expense, any excavation that shall be made by it and
` shall leave all public ways and places in as good condition
as that prevailing prior to the Grantee's removal of its
equipment and appliances without affecting the electrical or
telephone cable wires, or attachments. The Grantor shall
inspect and approve the condition of the public ways and
public places; and cables, wires, attachments and poles
after removal. The liability, indemnity and insurance as
provided herein and the performance bond provided therein
shall continue in full force and effect during the period of
removal and until full compliance by the Grantee with the
terms and conditions of this paragraph and this ordinance.
(d) Restoration by Grantor, Reimbursement of Costs. In
the event of a failure by the Grantee to complete any work
required by subsection (c) above or any other work required
by Grantor law or ordinance within the time as may be
established and to the satisfaction of the Grantor, the
Grantor may cause such work to be done and the Grantee shall
reimburse the Grantor the cost thereof within thirty (30)
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days after receipt of an itemized list of such costs or the
Grantor may recover such costs through any security fund
provided by Grantee.
(e) Extended Operation and Continuity of Service. Upon
either the expiration or revocation of a franchise, the
• Grantor may require the Grantee to continue to operate the
system for an extended period of time not to exceed six (6)
months from the date of such expiration or revocation unless
extended by Council resolution. The Grantee shall, as
trustee for its successor in interest, continue to operate
the Cable Communications System under the terms and
conditions of this ordinance and the franchise agreement and
to provide the regular subscriber service and any and all of
the other services that may be provided at that time.
It shall be the right of all subscribers to continue to
receive all available services insofar as their financial
and other obligations to the Grantee are honored. The
Grantee shall do everything in its power to ensure that all
subscribers receive continuous, uninterrupted service
regardless of the circumstances, including operation of the
system during transitional periods following franchise
expiration or termination.
(f) Grantor's Right Not Affected. The termination and
forfeiture of any franchise shall in no way affect any of
the rights of the Grantor under the franchise or any
provision of law.
14.01.040(11) Receivership and Foreclosure.
(a) The franchise herein granted shall, at the option
of the Grantor, cease and terminate one hundred twenty (120)
days after the appointment of a receiver or receivers or
trustee or trustees to take over and conduct the business of
the Grantee whether in a receivership, a 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:
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(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 ordinance and the
franchise granted pursuant hereto, and
the receivers or trustees within said
one hundred and twenty (120) days shall
have remedied all defaults under the
franchise; 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 herein
granted.
(b) In the case of a foreclosure or other judicial
sale of the plant, property and equipment of the Grantee, or
any part thereof, including or excluding this franchise, the
Grantor may serve notice of termination upon the Grantee and
the successful bidder at such sale, in which event the
franchise herein granted and all rights and privileges of
the Grantee hereunder shall cease and terminate thirty (30)
days after service of such notice, unless:
(1) The Grantor shall have approved the
transfer of this franchise, as and in
the manner in this ordinance provided,
and
(2) Such successful bidder shall have
covenanted and agreed with the Grantor
to assume and be bound by all the terms
and conditions of this franchise.
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14.01.040(12) Franchise Required. No Cable
Communications System shall be allowed to occupy or use the
streets or other ways of the City or be allowed to operate
without a franchise in accordance with the provisions of
this ordinance.
14.01.040(13) Franchise Processing Costs. Costs to be
borne by Grantee shall include, but shall not be limited to,
all costs of publications of notices prior to any public
meeting provided for pursuant to a franchise, publication of
relevant ordinances and franchise agreements and any cost
not covered by franchise application fees, incurred by the
Grantor in its study, preparation of proposal documents,
evaluation of all applications, and processing of the
franchise agreement.
1
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SECTION 14.01.050 REGULATION OF FRANCHISE
14.01.050(1) Regulatory Authority. The Grantor shall
exercise appropriate regulatory authority under the
provisions of this ordinance and applicable law. Grantor
may, at its sole option, participate in a joint regulatory
agency, with delegated responsibility in the area of cable
related communications.
14.01.050(2) Regulatory Responsibility. The Grantor
may exercise or delegate the following regulatory
responsibility:
(a) Administering and enforcing the provisions of the
Cable Communications System franchise.
(b) Coordination of the operation of facilities and
channels dedicated for public use, as provided for in any
franchise agreements.
(c) Providing for technical, programming and
operational support to public agency users, such as City
departments, schools and health care institutions.
(d) Establishing procedures and standards for
institutional operations and services, use of dedicated
channels, and sharing of public facilities.
(e) Planning expansion and growth of cable services.
(f) Analyzing the possibility of integrating cable
communications with other City, State or regional
telecommunications networks.
(g) Formulating and recommending long-range tele-
communications plans.
14.01.050(3) Public Useage of the System. If so
specified in a franchise agreement, the Grantor may utilize
a portion of the cable system capacity, and associated
facilities and resources, to develop and provide cable
services that will be in the public interest. In
furtherance of this purpose, the Grantor may establish a
public non-profit corporation, to receive and allocate
facilities, support funds and other considerations provided
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by the Grantee, and/or others. Such a public corporation,
if established, may be delegated the following
responsibilities:
(a) Receive, and utilize or reallocate for
utilization, channel capacity, facilities, funding and other
• support provided specifically for public useage of the cable
system.
(b) Review the status and progress of each service
developed for public benefit.
(c) Reallocate resources on a periodic basis to
conform with changing priorities and public needs.
(d) Report to the Grantor annually on the utilization
of resources, the new public services developed and the
benefits achieved for the City and its residents.
14.01.050(4) Reservation by Grantor. The Grantor
reserves the right, at its discretion, from time to time, to
determine if the Corporation described in 14.01.050(3) above
is performing its purposes in a manner satisfactory to the
Grantor, and if it is not, the Grantor may receive and
re -allocate all or a portion of the channel capacity,
operating appropriation, and capital appropriation,
including any facilities and equipment purchased previously
with such appropriations, to another entity. A new entity
shall be required to comply in all respects with the legal
responsibilities which the corporation has assumed under
Section 14.01.050(3).
14.01.050(5) Annual Review of System Performance.
Within sixty (60) days of the first anniversary of the
effective date of each franchise, and each year thereafter
throughout the term of the franchise, the Grantor and
Grantee shall meet publicly to review the performance and
quality of service of the cable television system. The
reports required in Section 14.01.070(5) regarding
subscriber complaints, the records of performance tests and
the opinion survey report may be utilized as the basis for
review. In addition, any subscriber may submit complaints
-24-
during the review meetings, either orally or in writing, and
these shall be considered.
(a) Within thirty (30) days after the conclusion of
the system performance review meetings, Grantor shall issue
findings with respect to the adequacy of system performance
and quality of service. If inadequacies are found, Grantor
may direct Grantee to correct the inadequacies within a
reasonable period of time.
(b) Failure of Grantee, after due notice, to correct
the inadequacies shall be considered a material breach of
the franchise, and Grantor may, at its sole discretion, levy
any penalty within the scope of this ordinance considered
appropriate.
14.01.050(6) System and Services Review. To provide
for technological, economic, and regulatory changes in the
state of the art of cable communications, to facilitate
renewal procedures, to promote the maximum degree of
1 flexibility in the cable system, and to achieve a
` continuing, advanced, modern system, the Grantor and the
Grantee shall comply with the following system and services
review provisions:
(a) The Grantor and Grantee shall hold a System and
services Review Session on or about the third anniversary
date of the Franchise agreement. Subsequent System Review
Sessions shall be scheduled by the Grantor each three (3)
years therafter. All such review sessions shall be open to
the public and notice shall be given.
(b) Sixty (60) days prior to the scheduled System and
Services Review Session, Grantee shall submit a report to
Grantor including, at the option of Grantor all or portions
of the following:
(1) All cable system services that are being
provided on an operational basis,
excluding tests and demonstrations, to
cities in the United States with
populations above ten thousand (10,000),
that are not provided to the City.
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(2) A plan for provision of such services,
or a justification indicating why such
services are not feasible for the City.
(c) Topics for discussion and review at the System and
Services Review Sessions may include but shall not be
• limited to, services provided, rate structure, free or
discounted services, application of new technologies, system
performance, programming, subscriber complaints, user
complaints, rights of privacy, amendments to the franchise,
undergrounding processes, developments in the law, and
regulatory constraints.
(d) Either the Grantor or the Grantee may select
additional topics for discussion at any Review Session.
(e) Not later than sixty (60) days after the
conclusion of each System and Services Review Session,
Grantor shall issue findings, including specifically a
listing of any cable services not then being provided to the
' City that are considered feasible. Grantor may direct
i Grantee to provide such services within a reasonable time,
under reasonable rates and conditions. Failure to provide
such directed services may be considered a breach of the
franchise, subject to penalties as provided in this
ordinance.
14.01.050(7) Rate Regulation. Grantor may regulate
cable system rates in accordance with this ordinance and
applicable law. If any rate regulation authority currently
preempted by state or federal government laws or regulations
should, in the future, no longer be preempted, Grantor shall
have the right to assume regulatory authority to the extent
then permitted.
14.01.050(8) Initial Rates.
(a) The Grantee shall establish initial rates that
shall be applied fairly and uniformly to all subscribers for
its services, in accordance with the rates contained in the
franchise agreement.
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(b) Initial basic subscriber rates shall be effective
for a minimum of two (2) years from the date cable service
commences, or until Grantee has completed all construction
proposed in its application for the first and second years,
whichever is longer, or, for franchise renewals, for the
term specified in the renewal agreement.
14.01.050(9) Rate Change Procedure.
(a) Within ninety (90) days of the filing of a
petition for rate change, the Grantor shall hold an
appropriate public hearing to consider the proposed rate
change, at which hearing all persons desiring to be heard,
including the Grantee, shall be heard on any matter,
including but not limited to, the performance of this
franchise, the Grantee's services, and the proposed new
rates.
(b) Upon notice of any public hearing, the Grantee
shall notify its subscribers of the time, place, and subject
matter of the public hearing by announcement on at least two
i (2) channels of its system between the hours of 7:00 p.m.
and 9:00 p.m., for at least five (5) consecutive days prior
to the hearing. In addition, notice of any public hearing
shall be published in a newspaper of general circulation at
least once.
(c) within ninety (90) days after said hearing, the
Grantor shall render a written decision on the Grantee's
petition, either accepting, rejecting, modifying or
deferring the same and reciting the basis of its decision.
The Grantor may consider, but not be limited to, the
following factors in approving or dissapproving the
petition:
(1) Grantee's substantial fulfillment of all
material requirements of the franchise.
(2) Quality of service, as indicated by the
number and type of service complaints,
Grantee's response to complaints, and
the result of periodic system
performance tests.
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(3) Prevailing rates for comparable services
in other cable systems of similar size
and complexity.
(4) Rate of return on Grantee's equity, as
compared to businesses of equivalent
risk. The rate of return shall be
calculated on a cumulative basis for all
system revenues and costs including
services such as pay -television that may
be exempt from local rate regulation.
Upon request of Grantor, Grantee shall
promptly provide, from the Grantee, its
parent company and any subsidiary
company, all information as shall be
reasonably necessary to determine
systems revenues and costs.
(5) Performance of Grantee in introducing
new services and expanding the cable
system's capability, as compared to
other systems of similar size and
complexity.
(6) The original cost of the system less
depreciation determined on a straight
line, actual life basis.
(7) Tax benefits received by Grantee, its
partners or shareholders, as the result
of their investment in the system.
(8) Cash flow derived from system services.
The Grantor shall not consider any valuation based upon
the franchise or the Grantee's goodwill and these items of
value shall neither be amortized as an expense nor shall a
return be paid on them.
(d) If the Grantor fails to render a written decision
either accepting, rejecting, modifying, or deferring
Grantee's petition within one hundred eighty (180) days of
the Grantee's petition pursuant to subsection (b.) above,
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the Grantee shall thereafter be entitled to put its proposed
new rates into effect.
(e) The Grantee's petition for a rate increase shall
include all or any part of the following as determined by
the Grantor, but not be limited to the following financial
reports, which shall reflect the operations of the system.
(1) Balance Sheet
(2) Income Statement
(3) Statement of Sources and Application of
Funds
(4) Detailed Supporting Schedules of
Expenses, Income, Assets and other items
as may be required.
(5) Statement of Current and Projected
Subscribers and Penetration.
The Grantee's accounting records applicable to the
system shall be available for inspection by the Grantor at
all reasonable times. The Grantor shall have access to
records of financial transactions for the purpose of
verifying burden rates or other indirect cost prorates to
the operation. The documents listed above shall include
sufficient detail and/or footnotes as may be necessary to
provide the Grantor with the information needed to make
accurate determinations as to the financial condition of the
system. All financial statements shall be certified as
accurate by an officer of Grantee.
(f) Schedule of Rates. Grantee shall maintain and
file with the Grantor, a complete schedule of subscriber
rates including all fees and charges for services not
subject to approval by the Grantor.
(g) Disconnections. There shall be no charge for
disconnection from the system. However, if a subscriber has
failed to pay properly due monthly fees or if a subscriber
disconnects for seasonal periods, the Grantee may require,
in addition to full payment of any delinquent fees, a
reasonable fee for reconnection.
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(h) No Consideration Beyond Schedule. The Grantee
shall receive no consideration whatsoever for or in
connection with its provision of service to its subscribers
other than as set forth in this section or as filed with
and/or approved by the Grantor.
14.01.050(10) Access Channel Management.
(a) Intent. It is the intent of the Grantor to
ensure that access and community channels provided for in
any franchise agreement, shall be managed in the best public
interest, so that programming on such channels will be free
of censorship, open to all residents, and available for all
forms of public expression, community information and debate
of public issues. Pursuant to these objectives, the Grantor
may delegate the responsibility for access channel
management to a nonprofit entity, termed the Access Channel
Manager, which may include, but not be limited to, any of
the following:
(1) A nonprofit public corporation
(2) An access management commission or
committee, appointed by Grantor, and
representing a broad spectrum of the
community
(3) An established nonprofit entity with
special cablecasting capability, such as
a local or regional community college
(b) Functions. The Access Channel Manager shall
have the following functions:
(1) Responsibility for program production
for and management of the Public Access
Channel and all other channels as may in
the franchise agreement be designated
for community -based programming.
Community channels may include
Government and Educational Access
channels as well as Public Access
channels.
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(2) Establishmeno of budgets on an annual
basis, and utilization of funds and
resources received from the Grantor or
the public usage corporation designated
in Section 14.01.050 (3) for the purpose of
access programming.
(3) To assure that no censorship or control
over program content of the Public
Access and Community channel(s) exist,
except as necessary to comply with FCC
prohibition of material that is obscene,
or contains commercial advertising, or
conducts a lottery, and to assure that
Public Access and Community channels are
made available to all residents of the
City on a non-discriminatory first -come,
first -served basis.
(4) To devise, establish and administer all
rules, regulations, and procedures
pertaining to the use and scheduling of
the Public Access and Community
channels.
(5) To prepare, in conjunction with the
Grantee, such regular or special reports
as may be required or desirable.
(6) To hire and supervise staff.
(7) To make all purchases of materials and
equipment that may be required.
(8) To develop additional sources of
funding, such as foundation or federal
or state grants, to further community
programming.
(9) To perform such other functions relevant
to the Public and Community channel(s)
as may be appropriate.
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0
(c) Access Channel Manager Reports to Grantor. The
access Channel Manager shall provide a report to the
Grantor, at least annually, indicating achievements in
community -based programming and services.
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SECTION 14.01.060 GENERAL FINANCIAL AND INSURANCE
14.01.060(1) Construction and Performance Bond.
(a) Within thirty (30) days after the granting of any
franchise and prior to the commencement of any construction
work by the Grantee, the Grantee shall file with the Grantor
a construction and performance bond in the amount specified
in the franchise agreement, in favor of the Grantor and any
other person who may claim damages as a result of the breach
of any duty by the Grantee assured by such bond.
(b) Such bond as contemplated herein shall be in the
form approved by the City Attorney and shall among other
matters cover the cost of removal of any properties
installed by the Grantee in the event said Grantee shall
default in the performance of its construction obligation.
(c) In no event shall the amount of said bond be
construed to limit the liability of the Grantee for damages.
14.01.060(2) Compliance Bond.
(a) In addition to the performance bond set forth
above, the Grantee shall, at least thirty (30) days prior to
the coamencment of operation, file with the Grantor a
compliance bond in the amount specified in the franchise
agreement, in favor of the Grantor and any other person who
may be entitled to damages as a result of any occurrence in
the operation or termination of the Cable Communications
System operated under this franchise, and including the
payments required to be made to the Grantor hereunder.
(b) Such bond as contemplated herein shall be in the
form approved by the City Attorney and shall among other
matters cover the cost of removal of any properties
installed by the Grantee in the event said Grantee shall
default in the performance of its franchise obligation.
(c) In no event shall the amount of said bond be
construed to limit the liability of the Grantee for damages.
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14.01.060(3) Security Fund.
(a) Within thirty (30) days after the effective date
of the franchise, the Grantee shall deposit into a bank
account, established by the Grantor, and maintain on deposit
through the term of this franchise, the sum specified in the
franchise agreement, as security for the faithful
performance by it of all the provisions of this franchise,
and compliance with all orders, permits and directions of
any agency of the Grantor having jurisdiction over its acts
or defaults under the franchise, and the payment by the
Grantee of any claims, liens and taxes due the Grantor which
arise by reason of the construction, operation or
maintenance of the system. The security fund may be
assessed by the Grantor for purposes including, but not
limited to, the following:
(1) Failure of Grantee to pay Grantor sums
due under the terms of the franchise
(2) Reimbursement of costs borne by the
Grantor to correct franchise violations
not corrected by Grantee, after due
notice.
(3) Monetary penalties assessed against
Grantee due to default or violation of
franchise requirements.
(b) Within thirty (30) days after notice to it that
any amount has been withdrawn by the Grantor from the
security fund pursuant to subdivision (a.) of this section,
the Grantee shall deposit a sum of money sufficient to
restore such security fund to the original amount.
(c) If the Grantee fails, after ten (10) days notice
to pay to the Grantor any taxes due and unpaid; or, fails to
repay to the Grantor, within such ten (10) days, any
damages, costs or expenses which the Grantor shall be
compelled to pay by reason of any act or default of the
company in connection with this franchise; or fails, after
thirty (30) days notice of such failure by the Grantor to
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comply with any provision of the franchise which the Grantor
reasonably determines can be remedied by an expenditure of
the security, the Grantor may immediately withdraw the
amount thereof, with interest and any penalties, from the
security fund. Upon such withdrawal, the Grantor shall
notify the Grantee of the amount and date thereof.
(d) The security fund deposited pursuant to this
section shall become the property of the Grantor in the
event that the franchise is cancelled by reason of the
default of the Grantee or revoked for cause. The Grantee,
however, shall be entitled to the return of such security
fund, or portion thereof, as remains on deposit at the
expiration of the term of the franchise, or upon termination
of the franchise at an earlier date, provided that there is
then no outstanding default on the part of the Grantee.
(e) The rights reserved to the Grantor with respect to
the security fund are in addition to all other rights of the
Grantor whether reserved by this contract or authorized by
i
law, and no action, proceeding or exercise of a right with
respect to such security fund shall affect any other right
the Grantor may have.
14.01.060(4) Indemnification.
(a) The Grantee shall by acceptance of the franchise
granted herein indemnify, defend and hold harmless the
Grantor, its officers, boards, communications, agents, and
employees from any and all claims, suits, judgments for
damages in any way arising out of or through or alleged to
arise out of or through (1) the act of the Grantor in
granting a franchise and (2) the acts or omissions of
Grantee, its servants, employees, or agents. Both such
indemnifications shall cover such claims arising in tort,
contracts, violations of statutes, ordinances or regulations
or otherwise.
(b) In the event any such claims shall arise, the
Grantor shall tender the defense thereof to the Grantee
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provided, however, that the Grantor in its sole discretion
may participate in the defense of such claims at its
expense.
14.01.060(5) Insurance.
(a) The Grantee shall maintain throughout the term of
the franchise insurance in amounts at least as follows:
(1) Worker's Compensation Insurance: in such
coverage as may be required by the
Worker's Compensation Insurance and
Safety Laws of the State of California
and amendments thereto.
(2) Grantee's Liability: in the amount
specified in the franchise agreement
(3) Comprehensive General Liability:
including non -ownership and hired car
coverage as well as owned vehicles with
' minimum limits bodily injury and
i property damage as specified in the
franchise agreement
(b) The Grantee shall furnish the Grantor with copies
of such insurance policies and certificates of insurance.
(c) Such insurance policies provided for herein shall
name the Grantor, its officers, boards, commissions, agents,
and employees as additional insureds and shall contain the
following endorsement:
"It is hereby understood and agreed that this insurance
policy may not be cancelled by the surety or the intention
not to renew be started by the surety until 30 days after
receipt by the Grantor by registered mail of written notice
of such intention to cancel or not renew."
(d) The minimum amounts set forth for such insurance
shall not be construed to limit the liability of the Grantee
to the Grantor under the franchise issued to the amounts of
such insurance.
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SECTION 14.01.070 REPORTS
14.01.070(1) Annual Reports. Within sixty (60) days
after the close of Grantee's fiscal year, for the franchise,
the Grantee shall submit a written annual report, in a form
approved by the Grantor, including all or any portion of the
following reports requested by Grantor, 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, and user participation.
(b) A financial statement including a statement of
income, revenues, operating expenses, value of plant, annual
capital expenditures, depreciation with an attached
depreciation schedule, interest paid, taxes paid, balance
sheets, and a statement of sources and application of funds,
covering all years since the beginning of the franchise;
(c) A current statement of costs of construction by
component categories;
(d) A projected income statement, balance sheet,
statement of sources and applications of funds, and
statement of projected construction for the next two years;
(e) A reconciliation between previously projected
construction and/or financial estimates, as the case may be,
and actual results;
(f) A list of Grantee's officers, members of its board
of directors, and other principals of Grantee;
(g) A list of stockholders or other equity investors
holding five percent (5%) or more of the voting interest in
the Grantee and its parent, subsidiary and affiliated
corporations and other entities, if any.
(h) To the extent that money, other than profits, is
paid to a parent, subsidiary, or other person affiliated
with the Grantee, the amounts of such payments and the basis
for computation of such amounts (e.g., the basis for
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computing management fees or share of "home office"
overhead).
14.01.070(2) Plant Survey Report. Simultaneously
with the annual report required by Subsection 14.01.070(1),
Grantee, if requested by the Grantor, shall submit to the
Grantor an annual plant survey report which shall be a
complete survey of the Grantee's plant and a full report
thereon. Said report shall include, but not be limited to,
an appropriate engineering evaluation including suitable
electronic measurements and shall be conducted in conformity
with such requirements, including supervision, as the
Grantor may prescribe. Said report shall include, but not
be limited to, an appropriate engineering evaluation
including suitable electronic measurements and shall be
conducted in conformity with such requirements, including
supervision, as the Grantor may prescribe. Said report
shall be in sufficient detail to enable the Grantor to
1
ascertain that the technical standards of the FCC and/or the
1 franchise are achieved and maintained. At Grantor's request,
but no more often than once per three years, the Grantee and
the Grantor shall agree upon the appointment of a qualified
independent engineer to evaluate the technical performance
of the Cable System. The cost of such evaluation shall be
borne by the Grantee.
14.01.070(3) Copies of Federal and State Reports.
The Grantee shall submit to the Grantor copies of all
pleadings, applications, reports, communications and
documents of any kind, submitted by the Grantee to, as well
as copies of all decisions, correspondence and actions by,
any federal, state and local courts, regulatory agencies and
other government bodies relating to its cable television
operations within the franchise area. Grantee shall submit
such documents to the Grantor simultaneously with their sub-
mission to such courts, agencies and bodies; and within five
(5) days after their receipt from such courts, agencies and
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bodies. The Grantee hereby waives any right to claim
confidential, privileged or proprietary rights to such
documents. However, information otherwise confidential by
law and so designated by the Grantee, which is submitted to
the Grantor shall be retained in confidence by the Grantor
and its authorized agents and shall not be made available
for public inspection.
14.01.070(4) Public Reports. A copy of each of
Grantee's annual and other periodic public reports and those
of its parent, subsidiary and affiliated corporations and
other entities, as the Grantor requests and is reasonably
appropriate, shall be submitted to the Grantor within five
(5) days of its issuance.
14.01.070(5) Complaint File and Reports. An accurate
and comprehensive file shall be kept by the Grantee of any
and all complaints regarding the cable system. A procedure
shall be established by the Grantee by the time of
installation of the cable system to remedy complaints
quickly and reasonably to the satisfaction of the Grantor.
Complete records of Grantee's actions in response to all
complaints shall be kept. These files and records shall
remain open to the public during normal business hours.
(a) A summary of complaints, identifying the number
and nature of complaints and their disposition, in a form
approved by the Grantor, shall be completed for each month
and submitted to the Grantor by the tenth (loth) day of the
succeeding month.
(b) An annual opinion survey report which identifies
satisfaction or dissatisfaction among subscribers with cable
communications services offered by the Grantee shall be
submitted to the Grantor, if requested by Grantor, on or
before March 31 of each year.
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The surveys required to make said report shall be conducted
in conformity with such requirements, including supervision,
as the Grantor may prescribe.
14.01.070(6) Privacy Report. Grantee shall submit
to the Grantor an annual report indicating the degree of
compliance with the privacy provisions of Section
14.01.090(4) of this ordinance, and all steps taken to
assure that the privacy rights of individuals have been
protected.
14.01.070(7) Miscellaneous Reports. Grantee shall
submit to the Grantor such other information or reports in
such forms and at such times as the Grantor may request or
require.
14.01.070(8) Income Tax Returns. The Grantee shall
submit to the Grantor, if requested by Grantor, copies of
all income tax returns and reports which are filed with the
local, state or federal governments pertaining to its Cable
System in the franchise area within five (S) days of the
date on which such reports are filed.
14.01.070(9) Inspection of Facilities. The Grantee
shall allow the Grantor to make inspections of any of the
Grantee's facilities and equipment at any time upon one (1)
day's prior notice, or, in case of emergency, upon demand
without prior notice, to allow Grantee to verify the
accuracy of any submitted report.
14.01.070(10) Business Office and Files. The
Grantee shall maintain an office within the franchise area
and shall keep complete and accurate books and records. The
Grantor shall have the right to inspect at any time during
normal business hours all books, records, maps, plans,
income tax returns, financial statements, service complaint
logs, performance test results and other like materials of
-40-
the Grantee which relate to the operation of the Cable
System. Access to the aforementioned records shall not be
denied by the Grantee on the basis that said records contain
confidential, privileged, or proprietary information.
14.01.070(11) Public Inspection. All reports required
under this Section, except as otherwise herein provided,
shall be available for public inspection in the City Clerk's
office during normal business hours.
14.01.070(12) Failure to Report. The refusal,
failure, or neglect of the Grantee to file any of the
reports required under this Section, or as the Grantor may
direct, shall be deemed a material breach of the franchise,
and shall subject the Grantee to all penalties and remedies,
legal or equitable, which are available to the Grantor under
the franchise or otherwise.
14.01.070(13) False Statements. any materially false
or misleading statement or representation made knowingly by
the Grantee in any report required under the franchise shall
be deemed a material breach of the franchise and shall
subject the Grantee to all penalties and remedies, legal or
equitable, which are available to the Grantor under the
franchise or otherwise.
14.01.070(14) Cost of Reports. All reports and
records required under this or any other Section shall be
furnished at the sole expenses of the Grantee.
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SECTION 14.01.080 FRANCHISE VIOLATIONS
14.01.080(1) Remedies for Franchise Violations. If
the Grantee fails to perform any obligation under the
franchise, or fails to do so in a timely manner, the Grantor
may at its option, and in its sole discretion;
(a) Assess against the Grantee penalties of up to
Five Hundred nollars ( son ) per day for construction
delays, and up to Five Hundred Dollars q.5oo ) per day for
all other violations, which the Grantee hereby agrees to
pay, said assessment to be levied against the security fund,
hereinabove provided, and collected by Grantor immediately
upon said assessment. Such assessment shall not constitute
a waiver by the Grantor of any other right or remedy it may
have under the franchise or under applicable law, including
without limitation, its right to recover from Grantee such
additional damages, losses, costs and expenses, including
actual attorney fees, as may have been suffered or incurred
by Grantor by reason of or arising out of such breach of the
franchise. This provision for assessment of damages is
intended by the parties to be separate and apart from
Grantor's right to enforce the provisions of the
Construction and Performance or Compliance bonds provided
for in Section 14.01.060, and is intended to provide
compensation to Grantor for actual damages.
(b) For violations considered by Grantor to have
materially degraded the quality of service, order and direct
Grantee to issue rebates or reduce its rates and/or charges
to subscribers, in an amount solely determined by Grantor to
provide monetary relief substantially equal to the reduced
quality of service resulting from Grantee's failure to
perform.
(c) Require Grantee to cure all defaults and breaches
of its obligations hereunder before Grantee is entitled to
increase any rate or charge to subscribers hereunder.
(d) Terminate the franchise, for any of the causes
stated in Section 14.01.040(10) and 14.01.040(11) above.
-42-
(e) No penalty shall be imposed by Grantor against
Grantee for any violation of this franchise without Grantee
being afforded due process of law.
Grantor may, in its sole judgment and discretion,
impose any or all of the above enumerated measures against
Grantee, which shall be in addition to any and all other
legal or equitable remedies it has under this franchise or
under any applicable law.
14.01.080(2) Procedure For Remedying Franchise
Violations. In the event that the Grantor determines that
the Grantee has violated any provision of the franchise, any
rule or regulation promulgated pursuant hereto or any
applicable federal, state or local law, the Grantor may make
a written demand on the Grantee that it remedy such
violation. If the violation, breach, failure, refusal, or
neglect is not remedied to the satisfaction of the Grantor
within thirty (30) days following such demand, the Grantor
shall determine whether or not such violation, breach,
failure, refusal, or neglect by the Grantee was excusable or
inexcusable, in accordance with the following procedure:
(a) A public hearing shall be held and the Grantee
shall be provided with an opportunity to be heard upon
thirty (30) days written notice to the Grantee of the time
and the place of the hearing provided and the allegations of
franchise violations.
(b) If, after notice is given and, at the Grantee's
option, a full public proceeding is held, the Grantor
determines that such violation, breach, failure, refusal, or
neglect by the Grantee was excusable as provided in Section
14.01.080(3)below, the Grantor shall direct the Grantee to
correct or remedy the same within such additional time, in
such manner and upon such terms and conditions as the
Grantor may direct.
(c) If, after notice is given and, at the Grantee's
option, a full public proceeding is held, the Grantor
determines that such violation, breach, failure, refusal or
-43-
neglect was inexcusable, then the Grantor may assess a
penalty or remedy in accordance with Section 14.01.080(l)
above.
(d) If, after notice is given and, at the Grantee's
option, a full public proceeding is held, the Grantor
declares the franchise or any renewal thereof breached, the
parties may pursue their remedies pursuant to the franchise
or any other remedy, legal or equitable.
14.01.080(3) Force Majeure; Grantee's Inability to
Perform. In the event Grantee's performance of any of the
terms, conditions, obligations, or requirements of the
franchise is prevented or impaired due to any cause beyond
its reasonable control or not reasonably foreseeable, such
inability to perform shall be deemed to be excused and no
penalties or sanctions shall be imposed as a result thereof,
provided Grantee has notified Grantor in writing within
thirty (30) days of its discovery of the occurrence of such
an event. Such causes beyond Grantee's reasonable control
or not reasonably foreseeable shall include, but shall not
be limited to, Acts of God, civil emergencies and labor
strikes.
-44-
SECTION 14.01.090 OPERATION AND MAINTENANCE
14.01.090(1) Open Books and Records. The Grantee
shall maintain an office within the franchise territory, and
manage all of its operations in accordance with a policy of
totally open books and records. The Grantor shall have the
right to inspect at any time during normal business hours,
all books, records, maps, plans, income tax returns,
financial statements, service complaint logs, performance
test results and other like materials of the Grantee which
relate to the operation of the franchise. Access to the
aforementioned records shall not be denied by the Grantee on
the basis that said records contain "proprietary"
information.
14.01.090(2) Records Required.
(a) The Grantee shall at all times maintain:
(1) A record of all complaints received and
'i interruptions or degradation of service
l experienced for the preceding three (3)
years.
(2) A full and complete set of plans,
records and "as -built" maps showing the
exact location of all Cable
Communication System equipment installed
or in use in the City, exclusive of
subscriber service drops.
(3) Filing. When not otherwise prescribed
herein, all matters required to be filed
with the City shall be filed with the
City Clerk.
(b) Other Records. The City may impose reasonable
requests for additional information, records and documents
from time to time.
(c) Inspection of Property and Records. At all
9
reasonable times, Grantee shall permit examination by any
duly authorized representative of the Grantor, all franchise
-45-
property, together with any appurtenant property of Grantee
situated within or without the City. Grantee shall also
permit any duly authorized representative of the Grantor to
examine and transcribe any and all maps and other records
kept or maintained by Grantee or under its control
concerning the operations, affairs, transactions or property
of Grantee. If any of such maps or records are not kept in
the City, or upon reasonable request made available in the
City, and if the Grantor shall determine that an examination
of such maps or records is necessary or appropriate to the
performance of any of their duties, then all travel and
maintenance expense necessarily incurred in making such
examination shall be paid by Grantee.
14.01.090(3) Maintenance and Complaints.
(a) The Grantee shall maintain an office in the
franchise territory which shall be open during all usual
+ business hours, have a publicly listed toll -free telephone,
i and be so operated to receive subscriber complaints and
requests for repairs or adjustments on a 24-hour basis. A
written log shall be maintained listing all complaints and
their disposition, including the time taken to respond to
the complaint and to repair the problem.
(b) The Grantee shall render efficient service, make
repairs promptly, and interrupt service only for good cause
and for the shortest time possible. Such interruptions,
insofar as possible, shall be preceded by notice and shall
occur during period of minimum use of the system. A written
log shall be maintained for all service interruptions.
(c) The Grantee shall maintain a repair force of
technicians capable of responding to subscriber complaints
or requests for service within twenty-four (24) hours after
receipt of the complaint or request. No charge shall be
made to the subscriber for this service.
(d) The Grantee shall furnish each subscriber at the
time service is installed, written instructions that clearly
-46-
set forth procedures, furnish information concerning the
procedures for making inquiries'or complaints, including the
name, address and local telephone number of the employee or
employees or agent to whom such inquiries or complaints are
to be addressed, and furnish information concerning the City
office responsible for administration of the franchise with
the address and telephone number of the office.
14.01.090(4) Rights of Individuals.
(a) Grantee shall not deny service, deny access, or
otherwise discriminate against subscribers, channel users,
or general citizens on the basis of race, color, religion,
national origin, age or sex. Grantee shall comply at all
times with all other applicable federal, state and local
laws and regulations, and all executive and administrative
orders relating to non-discrimination which are hereby
incorporated and made part of this ordinance by reference.
(b) Grantee shall strictly adhere to the equal
employment opportunity requirements of the FCC, state and
local regulations, and as amended from time to time.
(c) Neither the 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, polling with
audience participation, or audience viewing surveys to
support advertising research regarding viewers where
individual viewer behavior cannot be identified.
(d) In the conduct of providing its services or
pursuit of any collateral commercial enterprise resulting
therefrom, Grantee shall take any and all necessary action
to prevent an invasion of a subscriber's or general
citizen's right to privacy or other personal rights as such
rights are delimited and defined by applicable law. Grantee
shall not without lawful court order or other applicable
valid legal authority utilize the system's interactive
-47-
two-way equipment or capability for unauthorized personal
surveillance of any subscriber or general citizen.
(e) No cable line, wire, amplifier, converter, or
other piece of equipment owned by Grantee shall be installed
by Grantee without first securing the written permission of
the owner of any property involved; provided, however, that
where the property owner has granted an easement or a
servitude to another and the servitude by its terms
contemplates uses such as Grantee's intended use, Grantee
shall not be required to secure the written permission of
the owner for the installation of cable television equipment
or facilities unless Grantee elects to do so. If permission
is later revoked, whether by the original or a subsequent
owner, the Grantee shall remove forthwith any of its
equipment which is visible and movable and promptly restore
the property to its original condition.
(f) The Grantee shall not sell or otherwise make
available lists of the names and addresses of subscribers,
or any list which identifies, by name, subscriber viewing
habits, or personalized data pertaining to a subscriber's
use of any of Grantee's services without the consent,
express or implied, of the subscriber to which the
personalized data pertains. For purposes of this section,
"personalized data" shall mean the name and addresses of an
individual subscriber directly associated with or through
the Grantee. Nothing herein shall be construed to prevent,
as a normal incident of commercial enterprise, the sale or
availability of "non -personalized" or "aggregated data"
which is not personalized data as defined herein.
14.01.090(5) Tenant Rights. Grantee shall be required
to provide service to tenants in individual units of a
multiple housing facility with all services offered to other
dwelling units within the City, so long as the owner of the
facility consents in writing, if requested by Grantee, to
the following:
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(a) To Grantee's providing of the service to units of
the facility;
(b) To reasonable conditions and times for
installation, maintenance, and inspection of the system on
the facility premises;
(c) To reasonable conditions promulgated by Grantee to
protect Grantee's equipment and to encourage widespread use
of the system; and
(d) To not demand or accept payment from Grantee for
permitting Grantee to provide service to the facility and to
not discriminate in rental charges, or otherwise, between
tenants who receive cable service and those who do not.
14.01.090(6) Grantee Rules and Regulations. The
Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of
its business as shall be reasonably necessary to enable the
Grantee to exercise its rights and perform its obligations
under this franchise, and to assure an uninterrupted service
to each and all of its customers. Provided, however, that
such rules, regulations, terms and conditions shall not be
in conflict with the provisions hereof or applicable state
and federal laws, rules and regulations. Such rules,
regulations, terms and conditions shall be submitted to the
Grantor for its review and Grantor approval is required
prior to their becoming effective.
-49-
SECTION 14.01.100 DESIGN AND CONSTRUCTION PROVISIONS
14.01.100(1) System Design. The Cable Communications
System shall be constructed in accordance with the design
requirements contained in the franchise agreement.
14.01.100(2) Geographical Coverage. The Grantee
shall design and construct the System in such a manner as to
have the eventual capability to pass by every single-family
dwelling unit, multiple -family dwelling unit, agency, and
business establishment within the area of the franchise.
Service shall be provided to subscribers in accordance with
the schedules and line extension policies specified in the
franchise agreement.
14.01.100(3) Cablecasting Facilities. The Grantee
shall provide cablecasting facilities in accordance with the
requirements of the franchise agreement.
14.01.100(4) System Construction Schedule.
(a) The Grantee shall comply with the requirements of
the system construction schedule contained in the franchise
agreement.
(b) Service need not be provided where power and
telephone utilities are not available.
(c) The Grantee shall provide a detailed construction
plan indicating progress schedule, area construction maps,
test plan, and projected dates for offering service. In
addition, the Grantee shall update this information on a
monthly basis, showing specifically whether schedules are
being met and the reasons for any delay.
(d) Failure to begin construction within one (1) year
after award of the franchise will be grounds for franchise
revocation, at the option of the Grantor.
14.01.100(5) Penalties for Delay in Construction.
The Grantor may at its sole option, apply any of the
following in connection with delays in system construction:
(a) Reduction in the duration of the franchise on a
month -for -month basis for each month of delay exceeding six
(6) months.
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(b) Forfeiture of construction and performance bonds
and/or assessment of a penalty not to exceed Five Hundred Dollars
(�) per day, levied against the security fund for delays
exceeding one year.
(c) Termination of the franchise for delays exceeding
eighteen (18) months. Any penalties applied shall be in
accordance with the procedures contained in Section
14.01.080 (2)
14.01.100(6) Provision of Service. After service
has been established by activating trunk cables for any
area, the Grantee shall provide service to any requesting
subscriber within that area 90 days from the date of
request.
14.01.100(7) Undergrounding of Cable. The
undergrounding of cables is encouraged. In any event,
cables shall be installed underground at Grantee's cost
where existing utilities are already underground.
Previously installed aerial cable shall be undergrounded in
+ concert, and on a cost -sharing basis, with other utilities,
when such other utilities may convert from aerial to
underground construction.
14.01.100(8) New Development Undergrounding. In
cases of new construction or property development where
utilities are to be placed underground, the developer or
property owner shall give Grantee reasonable notice of such
construction or development, and of the particular date on
which open trenching will be available for Grantee's
installation of conduit, pedestals and/or vaults, and
laterals to be provided at Grantee's expense. Grantee shall
also provide specifications as needed for trenching.
14.01.100(9) Street Occupancy.
(a) Grantee shall utilize existing poles, conduits and
other facilities whenever possible, and shall not construct
or install any new, different, or additional poles,
conduits, or other facilities whether on public property or
on privately -owned property until the written approval of
the Grantor is obtained. However, no location of any pole
-51-
or wire holding structure of the Grantee shall be a vested
interest and such poles or structures shall be removed or
modified by the Grantee at its own expense whenever the
Grantor determines that the public convenience would be
enhanced thereby.
(b) Grantee shall notify the Grantor at least ten (10)
days prior to the intention of the Grantee to commence any
construction in any streets. The Grantor shall cooperate
with the Grantee in granting any permits required, providing
such grant and subsequent construction by the Grantee shall
not unduly interfere with the use of such streets and that
proposed construction shall be done in accordance with the
pertinent provisions of the ordinances of the City.
(c) All transmission lines, equipment and structures
shall be so installed and located as to cause minimum
interference with the rights and reasonable convenience of
property owners and at all times, shall be kept and
' maintained in a safe, adequate and substantial condition,
and in good order and repair. The Grantee shall, at all
times, employ ordinary care and shall install and maintain
in use coamonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage,
injuries, or nuisances to the public. Suitable barricades,
flags, lights, flares or other devices shall be used at such
times and places as are reasonably required for the safety
of all members of the public. Any poles or other fixtures
placed in any public way by the Grantee shall be placed in
such a manner as not to interfere with the usual travel on
such public way.
(d) Grantee shall, at its own expense, and in a manner
approved by the Grantor, restore to Grantor standards and
specifications any damage or disturbance caused to the
public way as a result of its operations or construction on
its behalf.
(e) Whenever, in case of fire or other disaster, it
becomes necessary in the judgment of the Grantor to remove
-52-
any of the Grantee's facilities, no charge shall be made by
the Grantee against the Grantor for restoration and repair,
unless such acts amount to gross negligence by the Grantor.
(f) Grantee shall have the authority to trim trees on
public property at its own expense as may be necessary to
• protect its wires and facilities, subject to the supervision
and direction of the Grantor. Trimming of trees on private
property shall require written consent of the property
owner.
(g) The Grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of
Grantee when, in the opinion of the Grantor the same is
required by reason of traffic conditions, public safety,
street vacation, freeway or street construction, change or
establishment of street grade, installation of sewers,
drains, waterpipes, power line, signal line, transportation
facilities, tracks, or any other types of structure or
improvements by governmental agencies whether acting in a
governmental or a proprietary capacity, or any other
structure or public improvement, including but not limited
to movemnt of buildings, urban renewal and redevelopment,
and any general program under which the Grantor shall
undertake to cause all such properties to be located beneath
the surface of the ground. The Grantee shall in all cases
have the privilege, subject to the corresponding
obligations, to abandon any property of Grantee in place.
Nothing hereunder shall be deemed a taking of the property
of Grantee and Grantee shall be entitled to no surcharge by
reason of anything hereunder.
(h) Upon failure of Grantee to commence, pursue or
complete any work required by law or by the provisions of
this ordinance to be done in any street, within the time
prescribed and to the satisfaction of the Grantor, the
Grantor may, at its option, cause such work to be done and
the Grantee shall pay to the Grantor the cost thereof in the
itemized amounts reported by the Grantor to Grantee within
-53-
thirty (30) days after receipt of such itemized report.
(i) The Grantee shall make no paving cuts or curb cuts
unless absolutely necessary, but only after written
permission has been given the the Grantor.
(j) The Grantee shall install in conduit all cable
• passing under any major roadway.
14.01.100(10) Construction and Technical Standards.
(a) Construction Standards.
(1) Compliance with Safety Codes. All
construction practices shall be in accordance with all
applicable sections of the Occupational Safety and Health
Act of 1970 and any amendments thereto as well as all state
and local codes where applicable.
(2) Compliance with Electrical Codes. All
installation of electronic equipment shall be of a permanent
nature, durable and installed in accordance with the
provisions of the Basic BOCA Electrical Code as amended.
(3) Antennas and Towers. Antenna
supporting structures (towers) shall be designed for the
proper loading as specified in Electronics Industry
Association's R.S.X -22A Specifications.
(4) Compliance with Aviation Requirements.
Antenna supporting structures (tower) shall be painted,
lighted, erected and maintained in accordance with all
applicable rules and regulations of the Federal Aviation
Administration and all other applicable state or local codes
and regulations.
(5) Construction Standards and Requirements.
All of the Grantee's plant and equipment, including but not
limited to the antenna site, head -end and distribution
system, towers, house connections, structures, poles, wire,
cable, coaxial cable, fixtures and appurtenances shall be
installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained and operated in
accordance with good engineering practices, performed by
experienced maintenance and construction personnel so as not
-54-
to endanger or interfere with improvements the municipality
may deem proper to make, or to interfere in any manner with
the rights of any property owner, or to unnecessarily hinder
or obstruct pedestrian or vehicular traffic on municipal
properties.
(6) Safety, Nuisance, Requirements. The
Grantee shall at all times employ ordinary care and shall
install and maintain in use commonly accepted methods and
devices preventing failures and accidents which are likely
to cause damage, injury or nuisance to the public.
(b) Technical Standards. The Cable Communications
System shall meet all technical and performance standards
contained in the franchise agreement.
(c) Test and Compliance Procedure. The Grantee
shall submit, within sixty (60) days after the effective
date of the franchise agreement, a detailed test plan
describing the methods and schedules for testing the Cable
Communications System on an ongoing basis to determine
compliance with the provisions of FCC technical standards
and the franchise agreement. The tests for Basic Subscriber
Television Services shall be performed periodically, at
intervals no greater than annually, on a minimum of 20
subscriber television receivers, located throughout the
service area. At least 8 of these locations shall be at the
far end of the distribution trunk cables. The tests shall
be witnessed by representatives of the Grantor, and written
test reports shall be submitted to the Grantor. If more
than 10% of the locations tested fail to meet the
performance standards, the Grantee shall be required to
indicate what corrective measures have been taken, and the
entire test shall be repeated for at least 20 different
locations. A second failure of more than 10% may result, at
the Grantor's option, in an order to reduce subscriber rates
due to degraded service in accordance with the provisions of
Section 14.01.080.
-55-
(d) Special Tests. At any time after commencement of
service to subscribers the Grantor may require additional
tests, full or partial repeat tests, different test
procedures, or tests involving a specific subscriber's
terminal. Requests for such additional tests will be made
• on the basis of complaints received or other evidence
indicating an unresolved controversy or significant
noncompliance, and such tests will be limited to the
particular matter in controversy. The Grantor shall
endeavor to so arrange its requests for such special tests
so as to minimize hardship or inconvenience to Grantee or to
the subscriber.
14.01.100(ll) Areawide Interconnection.
(a) Interconnection Required. The Grantee shall
interconnect access channels of the Cable Communications
System with any or all other cable systems in adjacent
areas, upon the directive of the Grantor. Interconnection
of systems shall permit interactive transmission and
i reception of program material, and may be done by direct
cable connection, microwave link, satellite, or other
appropriate method.
(b) Interconnection Procedure. Upon receiving the
directive of the Grantor to interconnect, the Grantee shall
immediately initiate negotiations with the other affected
system or systems. The cost shall be borne by both
Grantees, in the proportion of number of channels received
to total number of channels transmitted and received, under
the assumption that benefits accrue primarily through
receipt of additional channels.
In the case of regional or state-wide interconnection,
the same principle shall apply.
(c) Cooperation Required. The Grantee shall
cooperate with any interconnection corporation, regional
interconnection authority or city, county, state and federal
regulatory agency which may be hereafter established for the
purpose of regulating, financing, or otherwise providing for
-56-
the interconnection of cable systems beyond the boundaries
of the City.
(d) Initial Technical Requirements to Assure Future
Interconnection Capability.
(1) All Cable Communications Systems
receiving franchises to operate within the City shall use
the same frequency allocations for designated television
signals.
(2) All Cable Communications Systems are
required to use signal processors at the headend for each
television signal.
(3) Grantee(s) shall provide local
origination equipment that is compatible through the area so
that video -cassettes or video tapes can be shared by various
systems.
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SECTION 14.01.110 SERVICE PROVISIONS
14.01.110(1) Services to be Provided. The Grantee
shall provide, as a minimum, the services listed in the
franchise agreement. Services shall not be reduced without
prior approval of Grantor.
14.01.110(2) Basic Subscriber Television Service
(BSTS). The "Basic Subscriber Television Service" shall
include the FCC -required services, the distant television
broadcast signals, the imported non -broadcast signals, the
provision of all other cablecast open -channel signals. This
service shall be provided to all subscribers at the
established BSTS monthly subscription rates. BSTS may be
provided in various service tiers or configurations subject
to Grantor approval.
14.01.110(3) Basic Subscriber Radio Service (BSRS).
The "Basic Subscriber Radio Service" shall include the
provision of all audio services designated in the franchise
agreement, including broadcast FM and AM radio, and
cablecast FM signals. This service shall be provided to all
subscribers at the established BSRS monthly subscription
rates.
14.01.110(4) Institutional Service (IS). The
"Institutional Service" if provided by the franchise
agreement, shall include the provision of transmission
and/or reception services to institutional users, on a
leased channel basis at established IS rates. Services may
include the distribution of video or non -video signals.
14.01.110(5) Additional Subscriber Services.
"Additional Subscriber Services", not included in the BSTS
and BSRS services specified above, may be subject to
applicable FCC regulations and Grantor approval.
14.01.110(6) Local Origination Channel. The
Grantee shall operate the cablecasting studios on a
high -quality, professional basis for the purpose of
providing cablecast programming responsive to local needs
and interests. The emphasis for the Local Origination
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Channel if provided by the franchise agreement, shall be on
providing programming that is unavailable to viewers on
broadcast television channels and other national program
services.
14.01.110(7) Government Access Channel. The
Grantee shall provide the number of channels specified in
the franchise agreement for the use of the Grantor at no
charge to the Grantor. The Grantee shall make every effort
to provide advice and technical expertise to aid in the
utilization of these channels.
14.01.110(8) Educational Access Channel. The
Grantee shall provide the number of channels specified in
the franchise agreement for the use of the local educational
institutions at no charge. The Grantee shall make every
effort to provide advice and technical expertise to aid in
the utilization of these channels.
14.01.110(9) Public Access Channel. The Grantee
shall provide the number of channels specified in the
franchise agreement to be available to the public at no
charge. The Public Access channel(s) shall be managed and
operated by the Access Channel Manager, as described in
Section 14.01.050. The Grantee shall make available for
programmers of the public access channel the facilities and
support listed in the franchise agreement.
14.01.110(10) Public Access Channel (Closed -Circuit).
If the Cable Communications System includes a closed-circuit
institutional network, the Grantee shall make at least three
two-way channels available for local government, educational
and public use at no charge. The Public Access two-way
channel shall be managed and operated by the Access Channel
Manager.
14.01.110(11) Leased Access Channels. Grantee shall
make available for lease, on a nondiscriminatory basis, the
number of channels specified in the franchise agreement.
Grantee shall not use its franchise position to deny leased
access to others who may wish to offer a nonentertainment
-59-
n
service competitive to a service provided by Grantee. All
leased channel service revenues at the subscriber level
shall be included in gross revenues subject to the
franchisee fee. Such revenues shall include monthly or
per -use fees charged to users of services by lessees, but
shall not include direct revenues generated by the sale of
specific products offered by these services.
14.01.110(12) Universal Connection. The Grantor may
require that all dwelling units within the City shall be
connected physically to the cable system by the Grantee by
means of drop cables terminating at each dwelling unit,
whether or not the dwelling unit occupants desire to
subscribe to cable service. The cost and charges shall be
determined by the Grantor at the time such connection is
required. Grantee shall be entitled to recover the
incremental cost of providing a universal connection.
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SECTION 14.01.120 RIGHTS RESERVED TO THE GRANTOR.
14.01.120(1) Right to Purchase the System. The
Grantor may in any lawful manner and upon the payment of a
fair valuation lawfully ascertain, purchase, condemn,
acquire, take over and hold the property and plant of the
Grantee in whole or in part. If such purchase or taking
over be upon revocation of the franchise or at the
expiration of the term of the franchise, such valuation
shall not include any sum for the value of the franchise or
grant under which such plant and property is being operated.
14.01.120(2) Right of Inspection of Records. There
shall be kept in the Grantor's office a separate record for
the franchise, which record shall show the things hereafter
set forth. The Grantee shall provide such information in
such form as may be required by the Grantor for said
records.
(a) The true and entire cost of construction of
equipment, of maintenance and of the administration and
operation thereof; the amount of stock issued, if any; the
amount of cash paid in, the number of par value of shares,
the amount and character of indebtedness, if any; the rate
of taxes, the dividends declared; the character and amount
of all fixed charges; the allowance, if any, for interest,
for wear and tear or depreciation; all amounts and sources
of income.
(b) The amount collected annually from the City
treasury and the character and extent of the service
rendered therefor to the City.
(c) The amount collected annually from other users of
service and the character and extent of the service rendered
therefor to them.
The books of records kept by the Grantor shall be open
to public examination at any time during the business hours
of the Grantor's office. The information, in addition to
any further data which may be required by the Grantor, shall
be furnished by the Grantee to the Grantor upon request, and
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at the Grantee's own cost and expense.
The Grantor shall have the right to inspect all books,
records, maps, plans, income tax returns, financial
statements, and other like material of the Grantee at any
time during normal business hours.
14.01.120(3) Right of Inspection of Construction.
The Grantor shall have the right to inspect all construction
or installation work performed subject to the provisions of
the franchise and to make such tests as it shall find
necessary to ensure compliance with the terms of this
franchise and other pertinent provisions of law.
14.01.120(4) Right of Intervention. The Grantor
shall have the right of intervention in any suit or
proceeding to which the Grantee is party, and the Grantee
shall not oppose such intervention by the Grantor.
14.01.120(5) Right to Require Removal of Property.
At the expiration of the term for which the franchise is
granted, or upon its revocation or expiration, as provided
for herein, the Grantor shall have the right to require the
Grantee to remove, at its own expense, all portions of the
Cable Communications System from all streets and public ways
within the City.
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SECTION 14.01.130 RIGHTS RESERVED TO THE GRANTEE
Right of Grantee. Should the Grantee become
dissatisfied with any material decision or ruling of the
Grantor pertaining to cable communications matters, the
Grantee may pursue such other remedies as are available,
including the bringing of action in any court of competent
jurisdiction.
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SECTION 14.01.140 MISCELLANEOUS PROVISIONS.
14.01.140(1) Compliance with State and Federal Laws.
Notwithstanding any other provisions of this franchise to
the contrary, the Grantee shall at all times comply with all
laws and regulations of the state and federal government or
any administrative agencies thereof. Provided, however, if
any such state or federal law or regulation shall require
the Grantee to perform any service, or shall permit the
Grantee to perform any service, or shall prohibit the
Grantee from performing any service, in conflict with the
terms of this ordinance or of any law or regulation of the
Grantor, then as soon as possible following knowledge
thereof, the Grantee shall notify the Grantor of the point
of conflict believed to exist between such regulation or law
and the laws or regulations of the Grantor or this
ordinance, and the Grantee shall be excused from performance
hereunder, provided that it acts in good faith reliance
thereon, pending resolution of such conflict.
14.01.140(2) Separability - Non -Material Provisions.
If any provision of this ordinance or any related agreements
is held by any court or by any federal, state, or county
agency of competent jurisdiction to be invalid as
conflicting with any federal, state, or county law, rule or
regulation now or hereafter in effect, or is held by such
court or agency to be modified in any way in order to
conform to the requirements of any such law, rule or
regulation, and if said provision is considered non -material
by the Grantor, said provision shall be considered a
separate, distinct and independent part of this ordinance,
and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event
that such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed, so that the
provision hereof or thereof which had been held invalid or
modified is no longer in conflict with the law, rules and
regulations then in effect, said provision shall thereupon
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return to full force and effect and shall thereafter be
binding on the Parties hereto, provided that the Grantor
shall give the Grantee thirty (30) days written notice of
such change before requiring compliance with said
provisions.
14.01.140(3) Separability - Material Provisions.
If any material section of this ordinance, as determined by
the Grantor, is held to be invalid or preempted by federal
or state regulations or laws, the Grantor shall negotiate
with Grantee appropriate modifications to the franchise to
provide reasonable relief from such invalidity or
preemption, including the payment of liquidated damages. If
the parties are unable to reach agreement on such
modifications, then the dispute will be submitted to a
mutually agreeable arbitrator, in accordance with state law,
who will determine what modifications and/or liquidated
damages are appropriate. The arbitrator's decision shall be
f
binding on the parties, provided, that no decision of the
' arbitrator shall require the Grantor or Grantee to be in
violation of any federal or state law or regulation.
14.01.140(4) Notices. All notices from Grantee to
the Grantor pursuant to this franchise shall be to the City
Clerk. Grantee shall maintain with the Grantor, throughout
the term of the franchise, an address for service of notices
by mail. Grantee shall also maintain within the franchise
territory, a local office and telephone number for the
conduct of matters related to this franchise during normal
business hours.
14.01.140(5) Public Notice. Minimum public notice of
any public meeting relating to the franchise shall be by
publication at least once in a newspaper of general
circulation in the area at least ten (10) days prior to the
meeting, posting at City Hall, by announcement on at least
two (2) channels of the Grantee's Cable Communications
System between the hours of 7:00 P.M. and 9:00 P.M., for
five (5) consecutive days prior to the meeting.
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14.01.140(6) Captions. The captions to sections
throughout this proposal are intended solely to facilitate
reading and reference to the sections and provisions of this
proposal. Such captions shall not affect the meaning or
interpretation of this proposal.
14.01.140(7) No Recourse Against the Grantor. The
Grantee shall have no recourse whatsoever against the
Grantor or its officials, boards, commissions, agents, or
employees for any loss, costs, expense, or damage arising
out of any provision or requirement of the franchise or
because of the enforcement of the franchise.
14.01.140(8) Nonenforcement by the Grantor. The
Grantee shall not be relieved of its obligation to comply
with any of the provisions of this permit by reason of any
failure of the Grantor to enforce prompt compliance.
14.01.140(9) Theft of Services and Tampering.
(a) No person, whether or not a subscriber to the
cable system may intentionally or knowingly damage or cause
to be damaged any wire, cable, conduit, equipment or
apparatus of Grantee, or commit any act with intent to cause
such damage, or to tap, tamper with or otherwise connect any
wire or device to a wire, cable, conduit, equipment and
apparatus, or appurtenances of Grantee with the intent to
obtain a signal or impulse from the cable system without
authorization from or compensation to the Grantee, or to
obtain cable television or other communications service with
intent to cheat or defraud Grantee of any lawful charge to
which it is entitled.
(b) Any person convicted of violating any provision of
this section is subject to a fine of not more than Five
Hundred Dollars ($500.00) for each offense. Each day's
violation of this section shall be considered a separate
offense.
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SECTION 14.01.150 FRANCHISE APPLICATIONS.
14.01.150(1) Franchise Applications. Applicants for
a franchise shall submit to the Grantor written applications
utilizing the standardized format provided by the Grantor,
at the time and place designated by the Grantor for
accepting applications, and including the designated
application fee.
14.01.150(2) Franchise Processing Fee. The
Grantee shall be required to reimburse the Grantor for costs
expended in soliciting and evaluating applications, and
processing the franchise award, to the extent that such
costs are not recovered from application fees.
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SECTION 14.01.160 PASSAGE AND ADOPTION.
The City Clerk shall certify to the passage and adoption
of this ordinance and shall cause the same to be published once
in the Palm Desert Post, a newspaper of general circulation
printed, published and circulated within the City of Palm Desert
and the same shall be in full force and effect thirty (30) days
after its adoption.
PASSED, APPROVED and ADOPTED this 27th day of January
1983, by the following vote, to wit:
AYES: Jackson, Kelly, Snyder, Wilson $ Pulugi
NOES:
None
ABSENT:
None
ABSTAIN:
None
riwill• • .�
ATTEST:
—"o r�-Cl
SHEILA R LLI CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
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