HomeMy WebLinkAbout7.1 Cable TV Franchise Ord and Agree CITY OF DUBLIN
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 12, 1985
SUBJECT Cable Television Franchise Ordinance & Agreement
EXHIBITS ATTACHED Ordinance
RECOMMENDATION 1) Open Public Hearing; 2 ) Hear Staff Presentation;
3 ) Hear Public Testimony; 4) Close Public Hearing; 5)
Waive Second reading and adopt Cable Television
Ordinance
FINANCIAL STATEMENT: City' s Franchise Fees Fiscal Year 1984-85 $25, 450;
Estimated Franchise Fees for Fiscal Year 1986-87
$72, 500
DESCRIPTION BACKGROUND
The City' s present Cable Television Franchise Agreement will expire on
February 1 , 1988. In anticipation of this renewal, the City Council
authorized participation with the Cities of Livermore, Pleasanton and San
Ramon in jointly negotiating a franchise agreement with Viacom Cablevision.
The City Council also authorized the City' s financial participation in the
hiring of a Cable Television Consultant, Mr. Carl Pilnik, to assist the
cities in providing technical advice in the negotiations with Viacom.
Approximately 3 year ago, the City Council also authorized the City' s
participation in a valleywide cable television committee and appointed
representatives from the City of Dublin to that committee. As the Council
may recall, the purpose of the committee was to provide additional input to
the cities regarding the needs of the valley as they relate to cable
television in the renewal of each cities ' respective franchise agreement.
Vice Mayor Hegarty and City Manager Ambrose were appointed as the City ' s
representatives to the negotiating team, which was responsible for
negotiating the Cable Television Ordinance and revised Cable Television
Franchise Agreement.
Last month, the negotiating team reached agreement with Viacom on the
language of both the proposed ordinance and franchise agreement. However,
the Cities of Dublin and San Ramon expressed some reservations with respect
to the provisions made for service to public buildings. Since that meeting,
representatives from Dublin and San Ramon have met with Viacom Cablevision
to arrive at a satisfactory agreement with respect to the provision of
service to public buildings.
At its meeting of October 28, 1985 the City Council introduced the Cable
Television Franchise Ordinance and adopted the Franchise Agreement
Lontingent the adoption of the Franchise on November 12, 1985.
PROPOSED ORDINANCE
The proposed Ordinance was developed with the assistance of the Cable
Television Committee, Cable Television Negotiating Team and the Cable
Television Consultant. The Ordinance incorporates the requirements of
recent federal legislation, as well as provisions that will require more
from the franchise operator during the term of the franchise agreement.
Some of the provisions which are of particular note in the Ordinance are as
follows:
1. The cable operator is required to have a franchise agreement in order to
operate in the City of Dublin streets.
2. The City has the right to approve a franchise agreement which would be
non-exclusive.
3. The City has the right to revoke the franchise given specific grounds.
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COPIES TO: Viacom Cablevision
ITEM NO. �•
4. The City at its option can annually review the performance, quality of
service, etc. , of the cable operator.
5. Provisions are made for remedies associated with franchise violations.
6. The cable operator is required to maintain a local office.
The Ordinance basically provides the City with the authority to issue a
franchise to an operator for cable television services within the City.
FRANCHISE AGREEMENT
As you are aware, recent changes in the federal law have made it more
difficult for cities to regulate cable television franchises. Some of the
major provisions of the federal law which impact the ability of a city to
negotiate a franchise include the loss of the ability to negotiate rates for
cable television service. This provision of federal law becomes effective
December 29, 1986. Under state law, the cable operator could deregulate if
they could not reach agreement over rates as they did last year with the
City of Livermore. Therefore, because of these limitations, the provision
regarding rate review is limited just to review in accordance with stae and
federal law.
Some of the major provisions of the franchise agreement negotiated by the
four cities include the following:
1. Viacom would be granted a 15 year non-exclusive franchise to operate a
cable television system within the City.
2. Viacom would be required to pay a 5% franchise fee of gross revenues on
all services to the City.
3. Viacom would be required to reimburse the City for the cost of
consultant services associated with renewing the franchise agreement.
4. Viacom would have to upgrade its existing system of 34 channels to 40
channels. This upgrade varies from community to community. In the case
of Dublin, Viacom would be required to upgrade the cable system to 40
channels after certain findings were made. This could be done no sooner
than one year after the effective date of the agreement, and Viacom
would have six years to complete the upgrade. The franchise agreement
also requires Viacom to upgrade to a maximum capacity of 54 channels
under certain criteria.
5. Viacom would be required to provide the capability for interactive cable
services.
6. Viacom is required to provide one free installation and basic service to
schools , Dublin San Ramon Services District buildings and City buildings
as indicated in Exhibit F. They are also required to provide the same
service to new buildings within a period not to exceed one year.
7. Viacom is required to give the City a $55, 000 grant for public access
facilities as well as $1, 000 per year for maintenance of the access
equipment and facilities. Viacom is also required to make a mobile van
available at least 5 hours per week for public access. The funds given
to the City can possibly be combined with the funds given to the other
cities in the valley to build a joint facility in the future.
8. Viacom is required to provide emergency alert capability allowing the
City to interrupt a broadcast to announce a message in the event of an
emergency or disaster.
9. The effective date of the agreement will be January 1 , 1986.
RECOMMENDATION
Considering the limitations of the federal and state laws, it is the
position of the negotiating committee that the proposed ordinance and
franchise agreement provide the cities with considerable benefits beyond the
existing franchise agreement.
In conjunction with the renewal of the cable television franchise agreement,
Viacom has indicated the desire to implement a rate increase for basic
service from $9. 00 to $9. 95 per month. They have also indicated that as
part of this rate increase, they would include ESPN ( Sports Network) as part
of the basic service. Viacom has also indicated their desire to implement
this rate increase as uniformly as possible throughout the cities and has
requested that, if at all possible, the cities have the same effective date
for the renewal of their respective franchise agreements. It is therefore
recommended that the City Council waive the second reading and adopt the
Ordinance.
ORDINANCE NO.
AN ORDINANCE TO PROVIDE FOR THE ESTABLISHMENT
AND GRANTING OF FRANCHISES OR PRIVILEGES FOR THE
CONSTRUCTION, MAINTENANCE AND OPEP.ATION OF CABLE
COMUNICATION, OR CABLE TELEVISION SYSTEMS AI\D
FURTHER PROVIDING FOR THE CONTINUING REGULATION
AND ADMINISTRATION OF THESE FRANCHISES AND THE
ACTIVITIES RELATIVE TO THEIM.
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TABLE OF CONTENTS
Page
SECTION 1: INTENT ?. . . . . . . . . . . . . . . 1
SECTION 2: SHORT TITLE . . . . . . . . . . . . . . . . 2
SECTION 3: DEFINITIONS . . . . . . . . . . . . . . . . 3
SECTION 4 : GRANT OF FRANCHISE 11
SECTION 5: REGULATION OF FRANCHISE . . . . . . . . . . 27
SECTION 6 : GENERAL FINANCIAL AND INSURANCE PROVISIONS , 36
SECTION 7: DESIGN AND CONSTRUCTION PROVISIONS , 43
SECTION 8 : SERVICE PROVISIONS. . . . . . . . . . . . . 56
SECTION 9 : OPERATION AND MAINTENANCE • • • . , • • . . 59
SECTION 10 : RIGHTS RESERVED TO THE GRANTOR • • , • • • . 65
SECTION 11: RIGHTS RESERVED TO THE GRANTEE • . . . . . • 67
SECTION 12 : FRANCHISE VIOLATIONS. - 68
SECTION 13: REPORTS . . . . . . . . . . . . . . . . . . 71
SECTION 14 : MISCELLANEOUS PROVISIONS . . . . . . . . . . 76
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SECTION 1. INTENT
The City of Dublin finds that the development of
cable television and communications systems has the
potential of having great benefit and impact upon the
residents of Dublin. Because of the complex and rapidly
changing technology associated with cable television, the
City further finds that the public convenience, safety and
general welfare can best be served by establishing
regulatory powers which should be vested in the City or
such persons as the City shall designate. It is the intent
of this 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.
It is further the intention of the City Council of
the City of Dublin that this ordinance shall supersede all
City ordinances which govern the grant of a cable
television franchise.
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SECTION 2. SHORT TITLE
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This Ordinance shall be known and may be cited as
the "City of Dublin Cable Television Franchise Ordinance" .
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SECTION 3. 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. Words not defined
shall be given their common and ordinary meaning.
3 .1 "Additional Service" means any service not
included in "Basic Cable Service" , or "Basic Radio Service"
or "Institutional Service" , incluclina, but not limited to,
nav-cable services .
3 . 2 "Agency Subscriber" means a subscriber who receives
. a service in a government or public agency, school, or non-
profit corporation.
3 . 3 "Basic Radio Service" means the provision and
the transmission of other audio signals, provided to subscribers
at a monthly rate .
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3. 4 "Basic. Cable Service" means the provision of any
service tier which includes the retransmission of local television
broadcast signals, and the equipment necessary for the reception of
those signals at a subscriber' s first cable outlet.
3 .5 "Broadcast Signal" means a television or radio signal
that is licensed by the FCC and is transmitted over the air to a wide
geographic audience and is received by a Cable Communications System.
3 .6 "Cable Communications System" or "System" , also
referred to as "Cable Television System" , or "CATV System" ,
means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control
equipment that is designed to provide cable service which
includes video programming and which is provided to multiple
subscribers within a community.
3. 7 "Cable Service" means (a) the one-way transmission to
subscribers of (1) video programming, or (2) other programming service,
and (b) subscriber interaction, if any, which is required for the
selection of such video programming or other programming service .
3 . 8 "Cablecast Signal" means a nonbroadcast signal that
originates within the facilities of the Cable Communications System.
3. 9 "Channel" means a six (6) Megahertz (MHz) frequency
band, which is capable of carrying either one (1) standard
television or video signal, a number of audio, digital or other
non-video signals, or some combination of such signals .
3. 10 "Class IV Channel" means a signaling path provided
by a Cable Communications System to transmit signals of any
type from a subscriber terminal to another point in the cable
television system.
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3 . 11 "Closed-Circuit" or "Institutional Service"
means such video, audio, data and other services provided to
institutional users on an individual requirement, 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 .
3 . 12 "Commence Construction" means that time and
date when construction of the Cable Communications System
is considered to have commenced, which shall be when the first
connection is physically made to a utilit:I pole, or
undergrounding of cables is initiated, after preliminary
engineering (strand mapping) and after all necessary permits
and authorizations have been obtained.
3. 13 "Commence Operation" means that time and date
when operation of the Cable Communications System is considered
to have commenced which shall be when sufficient distribution
facilities have been installed so as to permit the offering
of full service to at least ten percent (10%) of the dwelling
units located within the service area.
3. 14 "Commercial Subscriber" means a subscriber who
receives a service in a place of business, where the service
may be utilized in connection with a business, trade, or
profession.
3. 15 "Converter" means an electronic device which
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converts signal carriers from one form to another.
3 . 16 "Council" means the governing body of the City
of Dublin.
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3. 17 "Educational Channel" , or "Educational Access Channel"
means any locally originated non-broadcast channel where local accred-
ited educational institutions are the primary designated programmers .
3. 18 "FCC" means the Federal Communications Commission
and any legally appointed or elected successor.
3.19 "Franchise" means an initial authorization, or renewal
thereof, issued by a franchising authority, which authorizes the con-
struction or operation of a Cable System along the public way within
all or a specified area in the City. Any such authorization, in
whatever form granted, shall not mean and include any license
or permit required for the privilege of transacting and
carrying on a business within the City as required by other
ordinances and laws of this City.
3. 20 "Franchise Agreement" means a franchise award
ordinance, or a contractual agreement, containing the specific
provisions of the franchise granted .
3. 21 "Franchise Fee" means the fee paid by the Grantee
to the Grantor in consideration of the use of the public
streets and rights-of-way.
3. 22 "Government Channel" or "Government Access Channel"
means any locally originated non-broadcast channel where local
government agencies are the primary designated programmers .
3. 23 "Grantee", means any "person" receiving a franchise
pursuant to this ordinance and under the granting franchise
ordinance, and its lawful successor, transferee or assignee.
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3. 24 "Grantor" or "City" means the City of Dublin,
as -represented by the City Council or any delegate acting
within the scope of its jurisdiction.
3. 25 "Gross Annual .Receipts" means the annual gross
revenues received by the Grantee from all sources of operations of
the Cable Communications System in 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.
3. 26 "Initial Service Area" means the area of the
City which will receive service initially, as set forth in
the franchise agreement.
3. 27 "Installation" means the connection of the
system from feeder cable to subscribers ' terminals , and the
provision of service.
3. 28 "Leased" or "Commercial Use Channel" means any
channel or portion of a channel available for lease and programming
-by persons or entities other than the Grantee, as defined by
federal law.
3. 29 "Local Origination Channel" means any channel
where the Grantee is the primary designated programmer, and
provides video programs to subscribers .
3. 30 "Monitoring" means observing a communication
signal, or the absence of a signal, where the observer is neither
the subscriber, the Grantee nor the programmer, whether the signal
is observed by visual or electronic means , for any purpose
whatsoever. Monitoring shall not include systemwide,
nonindividually addressed sweeps of the system for purposes
of verifying system integrity, controlling return paths transmissions,
billing for pay-cable, or determining illegally received signals.
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3. 31 "Nonbroadcast Signal" means a signal that is
transmitted by a Cable Communications System and that is not
involved in an over-the-air broadcast transmission path.
3. 32 "Open Channel" means anv charnel that can be
received by all subscribers, without the necessity- for special
equipment.
3. 33 "Pav=Cable" or "Pay-Television" means the
delivery to subscribers , over the Cable Communications System,
of television signals for a fee or charge to subscribers over
and above the charge for Basic Subscriber Service, or a per
program, per channel, or other subscription basis .
3. 34 "Penetration" means the result expressed in the
percentage obtained by dividing the total number of potential
subscribers in the franchise area into the number of subscribers
receiving service.
3. 35 "Person" means an individual, partnership ,
association, organization, corporation or any lawful successor,
transferee or assignee of said individual, partnership , associa-
tion, organization or corporation.
3. 36 "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.
3. 37 "Programmer" means a person who produces or otherwise
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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.
3. 38 "Public Access Channel", or "Community Access
Channel" means any channel where any member of the general public
or any local noncommercial organization may be a programmer,
without charge, on a first=come, first-served, nondiscrim-
inatory basis, in accordance with the terms of the franchise
agreement.
3. 39 "Reasonable Notice" shall be written notice
addressed to the Grantee at its principal office or such
other office as the Grantee has designated to the Grantor
as the address to which notice should be transmitted to it,
which notice shall be certified and postmarked not less than
ten (10) days prior to that day in which the party giving
such notice shall commence any action which requires the
giving of notice. In computing said ten (10) days , Saturdays ,
Sundays and holidays recognized by the Grantor shall be
excluded.
3. 40 "Reasonable Order" shall be written orders not
excessive or extreme as to costs or time to comply, governed
by sound thinking.
3. 41 "Resident" means any person residing in the
City as otherwise defined by applicable law.
3. 42 "Residential Subscriber" means a subscriber
who receives a service in an individual dwelling unit, where
the service is not to 'be utilized in connection with a business ,
trade, or profession.
3. 43 "Sale" shall include any sale, exchange , or barter.
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3. 44. "School" means any nonprofit educational accredited
institution including primary and secondary schools, colleges and
universities , both public and private.
3. 45 "Service Area" means the entire geographic area
within the City.
3. 46 "Service Tier" means a category of cable service 'or
other services provided by a cable operator and for which a separate
rate is charged by the cable operator.
3. 47 "State" means the State of California.
3. 48 "Street" shall include but not be limited to each of the
following which have been dedicated to the public or hereafter dedi-
cated to the public and maintained under public authority or by
others and located within the City limits: streets , roadways,
highways, avenues , lanes , alleys, sidewalks , easements , rights-
of-way and similar public property and areas that the Grantor
shall permit to be included within the definition of street
from time to time.
3. 49 "Subscriber" means any person who subscribes to,
for any purpose, a service provided by the Grantee through the
operation of the Cable Communications System.
3. 50 "Substantially Completed" means that sufficient
distribution facilities have been installed by the Grantee
so as to permit the offering of full network service to at
least ninety percent (94%) of the potential subscribes in
the service area.
3. 51 "Tapping" means observing a two-way communica-
tions 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.
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SECTION 4 . GRANT OF FRANCHISE
4 .1 Grant. In the, event that Grantor shall grant to
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a Grantee a nonexclusive, revocable franchise to -construct,
operate, maintain, and reconstruct, a Cable Communications System
within the franchise area, said franchise shall constitute both
a right and an obligation to provide the services of a Cable
Communications System as required by the provisions of this
ordinance and the franchise agreement. The franchise agreement
shall include those provisions of the Grantee ' s "Application for
Franchise" that are finally negotiated and accepted by the
Grantor and Grantee.
Any franchise. granted under the terms and conditions
contained herein shall be consistent with federal laws and
regulations and _fate general laws and regulations . In the event
of conflict between the terms and conditions of the franchise and
the terms and conditions on which the Grantor can grant a franchise,
the applicable federal and state laws and regulations , shall,
without exception, control.
Any franchise granted is hereby made subject to the general
ordinance provisions now in effect or hereafter made effective.
Nothing in the franchise shall be deemed to waive the requirements
of the other codes and ordinances of the Grantor regarding
permits, fees to be paid or manner of construction.
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4 .2 Franchise Required. No Cable Communications
System shall be allowed to occupy or use the streets in the
franchise area or be allowed to operate without a franchise
in accordance with the provisions of this ordinance.
4 .3 Establishment of Franchise Requirements. The
Grantor may establish appropriate requirements for new franchises
or franchise renewals, and may modify these requirements from
time to time to reflect changing conditions and state of art in
the cable television industry. Such requirements shall not be
retroactive to franchises then in effect.
4 . 4 Franchise Area. 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.
4 .5 Use of Public Streets and Ways. For the purpose of
operating and maintaining a Cable Communications System in the
franchise area, and subject to the provisions of Sec_ion 7 .10
herein, the Grantee may erect, install , construct, r,_pair,
replace, reconstruct, and retain in, on, over, under, upon,
across, and along the public streets and ways within the franchise
territory such wires, `cables, conductors, ducts, conduits , vaults ,
manholes , amplifiers, appliances, pedestals , attachments , and
other property and equipment as are necessary and ap :lrtenant to
the operation of the Cable Communications System. Prior to
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construction or alteration, however, the Grantee shall in each
case file plans with the appropriate Grantor agencies and local
utility companies, and receive written approval before proceeding.
Grantor shall in any event comply with all applicable City
construction codes and procedures.
4 . 6 Duration. - The term of any franchise and all rights,
privileges, obligations and restrictions pertaining thereto
shall be as stated in the franchise agreement, unless
terminated sooner as hereinafter provided. The
effective date of the franchise shall be the date of execution
of the franchise agreement by the Grantor, subject to prior
execution by the Grantee.
4 .7 Franchise Nonexclusive. Any franchise granted shall
be nonexclusive. The Grantor specifically reserves the .sight
to grant, at any time, such additional franchises for a Cable
Communications System as it deems appropriate.
4 .8 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.
4 .9 Grant Procedure. All franchise applications when
filed shall be availab;e for public inspection at places
designated by the Grantor. No later than ninety (90) days after
filing, a public hearing shall be held on the application. A
decision shall be made by the Grantor not later than ninety (90)
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days after such hearing based upon an evaluation of the
application(s) , the hearing, and other information that the
Grantor may deem relevant. ;Grantor may grant one or more
franchises , or may decline to grant any franchise, as it
determines to be in the best public interest.
4 .10 Transfer of Ownership or Control.
(a) Transfer of Franchise. Any franchise
granted hereunder cannot in any event be .sold,
transferred, leased, assigned or disposed of, including but not
limited to, by forced or voluntary sale, merger, consolidation,
receivership, or other means without the prior consent of the
Grantor. Such consent as required by the Grantor, shall,
however, not be unreasonably withheld.
(b) Ownership or Control . The Grantee shall
promptly notify the Grantor of any proposed change in, or
transfer of, or acquisition by any other party of, control of
the Grantee. The word "control" as used herein is not limited
to major stockholders but includes actual working control in
whatever manner exercised. A rebuttable presumption that a
transfer of control has occurred shall arise upon the acquisition
or transfer by any person or group of persons of ten percent
(10%) or more of the bepeficial ownership interest of the
Grantee . . Every change, transfer, or acquisition of control of
the Grantee shall make the franchise subject to cancellation
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unless and until the Grantor shall have consented thereto,
which consent will not be unreasonably withheld. For the purpose
of determining whether it shall consent to such change, transfer,
or acquisition of control, the Grantor may inquire into the
qualifications of the prospective controlling party, and the
Grantee shall assist the Grantor in any such inquiry.
In seeking the Grantor' s consent to any change in ownership
or control, the Grantee shall have the responsibility:
(1) To show to the satisfaction of the Grantor
whether the proposed purchaser, transferee, or assignee (the
"proposed transferee") , which in the case of a corporation, shall
include all officers, directors , employees and all persons
having a legal or equitable interest in five percent (5%) or
more of its voting stock, or any of the proposed transferee ' s
principals :
a . Has ever been convicted or held liable for
acts involving moral turpitude including, but not limited to anv
violation of federal, state or local law or regulations , or is
presently under an indictment, investigation or complaint
charging such acts;
b. Has ever had a judgment in an action for
fraud, decit 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.
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(2) To establish, to the satisfaction of
the Grantor, the financial solvency of the proposed transferee
by submitting all current financial data for the proposed
transferee which the Grantee was required to submit in its
franchise application, and such other data as the Grantor
may request. Financial statements shall be audited, certified
and qualified by an independent Certified Public Accountant.
(3) To establish to the satisfaction of
the Grantor that the financial and technical capability of
the proposed transferee is such as shall enable it to maintain
and operate the cable system for the remaining term of the
franchise under the existing franchise terms .
(c) The Grantor agrees that anv financial insti-
tution having a pledge of the franchise or its assets for the
advancement of money for the construction and/or operation of
the franchise shall have the right to notify the Grantor that
it or its designee satisfactory to the Grantor will take control
and operate the Cable Communications System, in the event of a
Grantee default in its financial obligations . Further, said
financial institution shall also submit a plan for such opera-
tion that will insure continued service and compliance with
all franchise requirements during the term the financial insti-
tution exercises control over the system. The financial insti-
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tution shall not exercise control over the system for a period
exceeding one (1) year unless extended by the Grantor in its
discretion and during said period of time it shall have the
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right to petition the Grantor to transfer the franchise to another
Grantee. If the Grantor finds that such transfer after con-
sidering, the legal, financial, character, technical and other
public interest qualities of the applicant are satisfactory,
the Grantor will transfer and assign the rights and obligations
of such franchise . The consent of the Grantor to such transfer
shall not be unreasonably withheld.
(d) The consent or approval of the Grantor to
any transfer of the Grantee shall not constitute a waiver or
release of the rights of the Grantor in and to the streets ,
and any transfer shall by its terms, be expressly subordinate
to the terms and conditions of any franchise.
(e) In the absence of extraordinary circums' tances ,
the Grantor will not approve any transfer or assignment of the
franchise prior to substantial completion of construction of
the proposed system.
(f) In no event shall a transfer of ownership
or control be approved without the successor in interest
becoming a signatory to the franchise agreement.
4 .11 Franchise Renewal. Franchise renewal shall be in
accordance with federal law. Nothing in any franchise agreement
shall require renewal by the Grantor after the term of the
franchise has expired. nor shall renewal by presumed as a matter
of vested interest. 1#
(a) Term. The renewal term of any franchise renewal
shall not be greater than the initial term.
(b) Renewal Procedure.
(1) The franchise renewal procedure shall
be in accordance with applicable law. Based on the criteria and
procedures required by applicable law, Grantor may decide to
renew the franchise under appropriate terms and conditions , or
not to renew the franchise.
(2) If Grantor' s decision is not to renew
the franchise, Grantor may initiate public solicitations for
applications for a new franchise. The original Grantee shall
not be precluded from submitting such an application.
(3) In any renewal or public solicitation,
the Grantor may require facilities and equipment, including a
system upgrade or any other conditions appropriate in the
light of the needs of the conununity, and applicable law.
4 .12 Police Powers . In acceptinq a franchise, the
Grantee acknowledges that its rights hereunder are subject
to the police power of the Grantor to adopt and enforce
general ordinances necessary to the safety and welfare of
the public; and it agrees to comply with all applicable
general laws and ordinances enacted by the Grantor pursuant
to such power.
Any conflict between the provisions of this ordinance
and any other present or future lawful exercise of the Grantor 's
police powers shall be resolved in favor of the latter, except
that any such exercise that is not of general application in
the jurisdiction or applies exclusively to any Cable Communi-
cations System franchise which contains provisions inconsistent
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with this franchise shall prevail only if upon such exercise
the Grantor declares an emergency exists constituting a danger
to health, safety, property or general welfare or such exercise
is mandated by law.
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4 .13 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. Such payment
shall commence as of the effective date of the franchise. The
Grantor, if it so requests, annually shall be furnished, within
sixty (60) days of the close of the calendar year, a statement,
audited and certified by a Certified Public Accountant, reflecting
the total amounts of gross receipt and all payments , deductions
and computations for the period covered by the payment. Grantor
shall have the right to conduct an independent audit of Grantee ' s
records, and if such audit indicates a franchise fee underpayment
of two percent (2%) or more, the Grantee shall assume all reasonable
costs of such an audit.
(b) Acceptance by Grantor. No acceptance of any
payment by the Grantor shall be construed as a release or as an
accord and satisfaction of any claim the Grantor may have for
further or additional sums payable as a franchise fee under this
ordinance or for the performance of any other obligation of the
Grantee.
(c) Failure to Make Recuired Payment. In the event
that any franchise payment or recomputed amount is not made on or
before the dates specified herein, or paid immediately upon noti-
fication, Grantee may be required to pay as additional compensation:
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( 1) An interest charge , computed from such due
date, at an annual rate equal to the average prime interest rate
for the period in question. —
(2) A sum of money equal to five percent (So) of
the amount due in order to defray those additional expenses and costs
incurred by the Grantor by reason of delinquent payment.
(d) Payment due the Grantor under this provision
shall be computed annually, for the preceding calendar year.
Each annual payment shall be due and payable no later than
thirty ( 30) days after the close of the calendar year. 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) Any Grantee "pass through" or itemization
of franchise fee costs on subscribers ' bills shall be in
accordance with federal law.
4 .14 Forfeiture or Revocation.
(a) Grounds for Revocation. The Grantor
reserves the right to revoke any franchise granted hereunder
and rescind all rights-.'and privileges associated with the
franchise in the following circumstances , each of which shall
represent a default under this ordinance and a material breach
of the franchise:
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(1) If the Grantee should default in the per-
formance of any of its material obligations under this ordinance
or the franchise agreement, subject to the provisions of
Section 12. 3.
(2) If the Grantee should fail after receiving
thirty ('30) days written notice, to provide or maintain in full
force and effect, the liability and indemnification coverages or
the security fund or bonds as required herein.
(3) If any court of competent jurisdiction, or
any federal or state regulatory body by rules, decisions or
other action determines that any material provision of the
franchise documents, including this ordinance, is invalid or un-
enforceable prior to the commencement of system construction.
(4) If the Grantee ceases to provide all services
for any reason within the control of the Grantee over the Cable
Communications System.
(5) If the Grantee willfully violates any of the
material provisions of this ordinance or the franchise agreement,
or is proven to have practiced any fraud ordeceit upon the Grantor.
(6) If the Grantee ' s construction schedule is
delayed for more than eighteen (18) months later than the
schedule contained in the franchise agreement and Grantor finds
that the delay was not excusable under the provisions of Section
12 .3.
(7) If the Grantee becomes insolvent, unable or
unwilling to pay its debts, or upon listing of an order for
relief in favor of Grantee in a bankruptcy proceeding.
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(b) Procedure Prior to Revocation.
(1) The Grantor may make written demand
that the Grantee do so comply with any such requirement,
limitation, term, condition, rule or regulation or correct any
action deemed cause for revocation. If the failure, refusal
or neglect of the Grantee continues for a period of thirty (30)
days following such written demand, the Grantor may place its
request for termination of the franchise upon a regular Council
meeting agenda . The Grantor shall cause notice to be served
upon such Grantee, at least ten (10) days prior to the date of
such meeting, a written notice of this intent to request such
termination, and the time and place of the meeting, notice of
which shall be published at least once, ten (10) days before
such meeting in a newspaper of general circulation within the
franchise area.
(2) The Grantor shall hear any persons
interested therein, and shall determine, based upon substantial
evidence, whether the Grantee has committed a material breach of
this ordinance or the franchise agreement, and, if so , whether
such breach was willful.
(3) If the Grantor determines that the
Grantee has committed a material breach, which was not willful ,
the Grantor shall direct the Grantee to take appropriate remedial
action within such time and manner and upon such terms and
conditions as are reasdnable under the circumstances.
(4) If the Grantor determines that the Grantee
has committed a material breach, which was willful, then the Grantor
may, if the material breach is capable of being cured by the Grantee ,
direct the Grantee to take appropriate remedial action within such
23
time and manner and upon such terms and conditions as the Grantor
shall determine are reasonable under the circumstances .
(5) If the Grantee fails to begin appropriate
remedial action upon receiving notification of a material breach by
the Grantor then the Grantor may, by resolution, declare that the
franchise of such Grantee shall be terminated.
(6) In the event that the Grantor declares, by
resolution, that the franchise of a Grantee shall be terminated,
then such Grantee shall have the right to have such declaration of
termination reviewed in a court of appropriate jurisdiction. No
such termination shall be effective until a final decision is
reached by the court.
4 .15 Procedures in the Event of Termination or Expiration..
(a) Disposition of Facilities. In the event a
franchise expires, is revoked, or otherwise terminated, the Grantor
may order the removal of the above-ground system facilities from the
franchise area within a reasonable period of time as determined
by the Grantor or require the original Grantee to maintain and
operate its network until a subsequent Grantee is selected and
a subsequent or modified cable system becomes operational .
(b) Restoration of Procerty. 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. Any liability, indemnity and
insurance, and the security fund and bonds provided shall
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continue in full force and effect during the period of removal
and until full compliance by the Grantee with the terms and
conditions of this Section.
(c) Restoration by Grantor, Reimbursement of
Costs. In the event of a failure by the Grantee -to complete
any work required by Subsection (a) above and/or Subsection (b)
above, or any other work required by Grantor by law or ordinance
within. the time as may be established and to the satisfaction of
the Grantor, the Grantor may cause such work to be done and the
Grantee shall reimburse the Grantor the cost thereof within
thirty (30) days after receipt of an itemized list of such
costs or the Grantor may recover such costs through any security
fund or bonds provided by Grantee. The Grantor shall be permitted
to seek legal and equitable relief 'to enforce the provisions of
this Section.
(d) Extended Operation. Upon either the expiration
or revocation of a franchise, the Grantor may require the Grantee
to continue to operate the Cable Communications System for a
defindd period of time not to exceed twenty-four (24) months
from the date of such expiration or revocation. The Grantee
shall , as trustee for its successor in interest, continue to
operate the Cable Communications System under the terms and
r
conditions of this ordinance and the franchise agreement and to
0
provide the regular subscriber service and any and all of the
services that may be provided at that time. The Grantor shall
be permitted to seek legal and equitable relief to enforce the
provisions of this Section.
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(e) Grantor' s Right Not Affected. The termina-
tion and forfeiture of any franchise shall in no way affect
any of the rights of the Grantor and-er the franchise or any
provision of law.
4 .16 Receivership and Foreclosure.
(a) Any franchise herein granted shall, at the
option of the Grantor, cease and terminate one hundred twenty
(120) days after the appointment of a receiver or receivers or
trustee or trustees to take over and conduct the business of the
Grantee whether in a receivership, reorganization, bankruptcy
or other action or proceeding unless such receivership or
trusteeship shall have been vacated prior to the expiration of
.said one hundred twenty (120) days, or unless :
(1) Such receivers or trustees shall •have,
within one hundred twenty (120) days after their election or
appointment, fully complied with all the terms and provisions
of this ordinance and the franchise granted pursuant hereto,
and the receivers or trustees within said one hundred twenty
(120) days shall have remedied all defaults under the franchise;
and,
(2) Such receivers or trustees shall ,
within said one hundred twenty (120) days, execute an agree-
ment duly approved by the Court having jurisdiction on the
premises, whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation
of the franchise agreement.
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(b) In the case of a foreclosure or other
involuntary sale of the plant, property and equipment of the
Grantee, or any part thereof, the Grantor may serve notice
of termination upon the Grantee and to the purchaser at such
sale, in which event the franchise and all rights and privileges
of the Grantee hereunder shall cease and terminate thirty (30)
days after service of such notice, unless :
(1) The Grantor shall have approved the
transfer of the franchise, as and in the manner in this
ordinance provided; and,
(2) Such successful purchaser shall have
covenanted and agreed with the Grantor to assume and be bound
by all the terms and conditions of the franchise agreement.
4 . 17 Franchise Processing Costs . For either a new
franchise award or a franchise renewal, 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, development and publication of relevant
franchise ordinances and franchise agreement, fees , and any cost
not covered by the application fees , incurred by the Grantor
in its preparation of proposal solicitation documents,
evaluation of all applications, including, but not limited to
consultant and attorney fees .
These franchise processing costs are over and above the
construction inspection and permit fees specified in Section
7 . 11 (a) (1) .
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SECTION 5 . REGULATION OF FRANCHISE
5. 1 Regulatory Authority. The Grantor shall exercise
appropriate re ulato '
regulatory authority under the provisions of this
ordinance and applicable law. If the franchise area served -
by the Cable Communications System also serves other contiguous
or neighboring communities, Grantor may, at its sole option,
participate in a joint regulatory agency, with delegated
responsibility in the area of cable and related communications .
5 . 2 Regulatory Responsibility. The Grantor, acting
alone or acting jointly with other Grantors , may exercise or
delegate the following regulatory responsibility:
(a) Administering and enforcing the provisions
of the Cable Communications System franchise (s) .
(b) Coordination of the operation of government
and educational channels .
(c) Providing technical, programming and
operational support to public agency users , such as government
departments , schools and health care institutions .
(d) Establishing, jointly with the Grantee, procedures
and standards for use of channels dedicated to public use and sharing
of public facilities , if provided for in any franchise agreement.
• (e) Planning, jointly with the Grantee, expansion
and growth of public benefit cable services .
(f) Analyzing the possibility of integrating
cable communications with other local, state or national tele-
communications networks .
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(g) Formulating and recommending long-range
telecommunications policy.
5. 3 Public Usage of the System. If so specified
in the franchise agreement, the Grantor may utilize a portion
of the Cable Communications System capacity, and associated facilities
and resources , to develop and provide noncommercial cable services
that will be in the public interest. In furtherance of this
purpose, the Grantor may establish a commission, public corpora-
tion, or other entity to receive and allocate facilities ,
support funds and other considerations provided by the Grantee,
and/or others. Such an entity, if established, may
be delegated the following responsibilities :
(a) Receive and utilize or reallocate for
utilization, channel capacity, facilities , funding and other
support provided specifically for public usage of the Cable
Communications System.
(b) Review the status and progress of each service
developed for public benefit.
(c) Reallocate resources on a periodic basis to
conform with changing priorities and public needs .
(d) Report to the Grantor annually on the utili-
zation of resources, the new public services developed and the
benefits achieved for :the City and its residents .
i
5 . 4 Reservation by Grantor. The Grantor reserves the
right, at its discretion, from time to time , to determine if
the entity described in Section 5 . 3 above is performing its
purposes in a manner satisfactory to the Grantor, and if it
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is not, the Grantor may receive and reallocate all or a portion
of the channel capacity, operations appropriation, and capital
appropriation, including any facilities and equipment purchased
previously with -such appropriation, to another entity. A new
entity shall be required to comply in all respects with the
legal responsibilities described in Section 5 . 3.
5 .5 Rates .
(a) The Grantee shall establish rates for its
services that must be applied fairly within all classes of
subscribers in the franchise area.
(b) Grantor may regulate basic cable service
rates for the period permitted by applicable law.
(c) Schedule of Rates . The Grantee shall file
and maintain current with the Grantor, a complete schedule of
subscriber rates and charges .
(d) Disconnections . There shall be no charge for
disconnection from the system.
5 . 6 Annual Review of Performance. At Grantor's
sole -option, within ninety (90) days of the first anniversary-
of the effective date of each franchise , and each year there-
after throughout the term of the franchise, the Grantor and
Grantee shall meet publicly to review the performance, quality
of service and rates of the cable communications system. The
reports required in Section 9 regarding subscriber complaints , the
records of performance tests and any opinion survey report may be
utilized as the basis for .review. In addition, any subscriber
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may submit appropriate information or complaints during the review
meetings, either orally or in writing, and these shall be considered.
(a) Within thirty (30) days after the conclusion
of the system performance review meetings, Grantor shall issue
a report with respect to the adequacy of system performance
and quality of service. If substantial inadequacies are found,
Grantor may direct Grantee to correct the inadequacies within a
reasonable period of time.
(b) Failure of Grantee, after due notice, to
correct the inadequacies shall be considered a material breach
of the franchise; and Grantor may, at its sole discretion,
exercise any remedy within the scope of this ordinance con-
sidered appropriate.
5 . 7 Svstem and Capability Review. To provide for
technological, economic, and regulatory changes in the state
of the art of cable communications , to facilitate renewal
procedures , to promote the maximum degree of flexibility in
the cable system, and to achieve a continuing, advanced modern
system, the following system and services review procedures
are hereby established:
(a) At Grantor' s sole option, the Grantor and
Grantee shall hold a System and Capability Review Session within
sixty (60) days before or after the third anniversary date of the
franchise agreement. .S ubsequent System Review Sessions shall be
i
scheduled by the Grantor each three (3) years thereafter.
(b) Sixty (60) days prior to the scheduled
System and Capability Review Session, Grantee shall submit a
report to Grantor indicating the following:
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(1) All cable system services that are
being provided on an operational basis , excluding tests and
demonstrations, to cities in the. United States with popula-
tions above ten thousand (10 ,000) , that are not provided to
the Grantor.
(2) A plan for provision of such services ,
or a justification indicating why such services are not
feasible for the franchise area.
(c) Topics for discussion and review at the
System and. Capability Review Sessions shall include but shall
not be limited to, application of new technologies, system
performance, 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 Capability Review Session, Grantor
shall issue a report, including specifically a listing of any
cable services not then being provided to the Grantor that are
considered technically and economically feasible. Grantor may
request Grantee to provide the system capability for such services
within a reasonable time, under reasonable rates and conditions .
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5 . 8 Access Channel Management.
(a) Intent. It is the intent of the Grantor
to insure that access and community channels provided for in
any franchise agreement, shall be managed in the best public
interest, so that programming on such channels will be free
of censorship, open. to all residents, and available for all
forms of public expression, community information and debate
of public issues . Pursuant to these objectives, the Grantor
may delegate the responsibility for access channel management
to a nonprofit entity which may include, but not be limited to,
any of the following:
(1) A nonprofit public coraoration.
(2) An access management commission or
committee, appointed by Grantor, and representing a broad
spectrum of the community .
(3) An established nonprofit entity with
special cablecasting capability, such as a local or regional
community college.
(b) Functions . The entity designated to manage
the access channels shall have the following functions :
(1) Responsibility for program production
for 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 designated in
the franchise agreement.
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(2) To assure that the Public Access and
Community channels are made available to all residents of .
the franchise area on a nondiscriminatory, first-come, first-
served basis.
(3) To assure that no censorship or control
over program content of the Public Access and Community channels
exist, except as necessary to comply with all applicable laws , rules
and regulations , including the prohibition of material that is
obscene, or contains commercial advertising, or conducts a lottery.
(4) To devise, establish, and administer
all rules , regulations, and procedures pertaining to the use
and scheduling of the Public Access and Community channels .
(5) To prepare, in conjunction with the
Grantee, such regular or special reports as may be required
or desirable.
(6) To hire and supervise staff.
(7) To make all purchases of materials and
equipment that may be required.
(8) To develop additional sources of funding,
such as foundation or federal or state grants , to further
PEG access .
(9) To perform such other functions relevant
to the Public Access channels as may be appropriate.
(10) To establish budgets on an annual
basis, and to utilize funds and resources received from the
Grantor or the public usage entity designated in Section 5 . 3,
for the purpose of access programming.
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(c) Access Rules. The access management entity
shall complete a set of rules for the use of the Access and
Community channels which shall be promptly forwarded to the
Grantor. The rules shall be prepared in cooperation with the
Grantee, and confirmed by agreement between the access manage-
ment .entity and the Grantee. The rules shall, at a minimum,
provide for:
(1) Access on a first-come, first-served,
nondiscriminatory basis for all residents of the franchise area.
(2) Prohibition of commercial use.
(3) Prohibition of any presentation of
lottery information, or obscene or indecent material.
(4) Public inspection of the log of producers , which
shall be retained by the Grantor or its designee for a period of four (4) yea
(5) Procedures by which individuals or groups
who violate any rule may be prevented from further access to the
channel.
(6) Free use of such reasonable amounts of
channel time, cablecasting facilities , and technical support
as are provided for in the agreement between the access manage-
ment entity and the Grantee..
(d) Access Management Entitv Reoorts to Grantor.
The access management entity shall provide a report to the
Grantor, at least annually, indicating achievements in community-
based programming and services , and also shall provide a special
35 -
report each time Grantee requests an increase in rates that
are subject to Grantor regulation, indicating the level and
quality of Grantee' s support during the period elapsed since
any previous rate increase was implemented.
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SECTION 6. GENERAL FINANCIAL-AND INSURANCE PROVISIONS
6 .1 Construction Bond.
(a) Within thirty (30) days after the granting
of a franchise and prior to the commencement of any construction
work by the Grantee, the Grantee may be required to file
with the Grantor a construction bond in the amount specified
in the franchise agreement in favor of the Grantor and any
other person who may claim damages as a result of the
breach of any duty by the Grantee assured by such bond.
(b) Such bond as contemplated herein shall be
in the form approved by the Grantor and shall , among other
matters, cover the .cost of removal of any properties
installed by the Grantee in the event said Grantee shall
default in the performance of its franchise obligation. -
(c) In no event shall the amount of said
bond be construed to limit the liability of the Grantee for
damages.
(d) Grantor, at its sole option, may waive
this requirement, or permit consolidation of the construction
bond with the performance bond and security fund specified,
respectively in Section 6 . 2 and 6 . 3 .
j
37 -
6 .2 Performance Bond
(a) In addition to the construction bond set forth
above, the Grantee may be tequired to file, at least thirty (30)
days prior to the commencement of operation, with
the Grantor a performance bond in the amount specified
in the franchise agreement in favor of the Grantor and any
other person who may be entitled to damages as a result
of any occurrence in the operation or termination of the
Cable Communications System operated under the franchise
agreement, and including the payments required to be made
to the Grantor hereunder.
(b) Such bond as contemplated herein shall
be in the form approved by the Grantor and shall among
other matters cover the cost of removal of any properties
installed by the Grantee in the event said Grantee shall
default in the performance of its franchise obligation.
(c) In no event shall the amount of said
bond be construed to limit the liability of the Grantee
for damages.
6 . 3 Security Fund
(a) Within thirty (30) days after the effective date
of the franchise, the Grantee may be required to deposit into a
bank account, established by the Grantor and maintain on
deposit through the term of this franchise, the sum specified
38 -
in the franchise agreement, as security for the faithful
performance by it of all the provisions of the franchise,
and compliance with all orders, permits and directions of
any agency of the Grantor having jurisdiction over its
acts or defaults under this ordinance, 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 remedies or damages
assessed against Grantee due to default or violation of
franchise requirements.
(b) At Grantor ' s sole option, some portion
of the security fund. may be provided in the acceptable
form of an irrevocable letter of credit, in lieu of a
cash deposit.
i
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(c) Within thirty (30) days after notice
to it that any amount has been withdrawn by the Grantor
from the security fund pursuant to Subsection (a)- of
this Section, the Grantee shall deposit a sum of money -
sufficient to restore such security fund to the original
amount.
(d) If the Grantee fails, after ten (10)
days notice to pay to the Grantor any franchise fee or
taxes due and unpaid; or, fails to pay to the Grantor
within such ten (10) days, any damages, costs or expenses
which the Grantor shall be compelled to pay by reason of
any act or default of the Grantee in connection with the
franchise; or fails, after thirty (30) days notice of such
failure by the Grantor to comply with any provision of the
franchise which the Grantor reasonably determines can be
remedied by an expenditure of the security fund, the Grantor
may immediately withdraw the amount thereof, with
interest and any penalties, from the security fund.
Upon such withdrawal , the Grantor shall notify the Grantee
of the amount and date thereof.
(e) The Grantee shall be entitled to the return of
such security fund, or portion thereof, as remains on deposit no
later than ninety (90) -ldays after the expiration of the term of
the franchise, provided that there is then no outstanding default
on the part of the Grantee.
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(f) The rights reserved to the Grantor with respect
to the security fund are in addition to all other rights of the
Grantor whether reserved by this ordinance or authorized by law,
and no action, proceeding or -exercise of a right with respect to such
security fund shall affect any other right the Grantor may have
6 . 4 Indemnification
(a) The Grantee shall by acceptance of any franchise
granted indemnify, defend and hold harmless the Grantor, its officers ,
boards, commissions , agents , and employees from any and all third
party claims, suits, judgments for damages or other relief, costs and
attorneys ' fees in any way arising out of or through or alleged
to arise out of or through:
(1) The act of the Grantor in granting the
franchise; and
(2) The acts or omissions of Grantee , its
servants , employees , or agents including, but not limited to, any
failure or refusal by Grantee, its servants , employees or agents
to comply with any obligation or duty imposed on Grantee by this
Ordinance or the franchise agreement.
( 3) The exercise of any right or privilege granted
or permitted by this Ordinance or the franchise agreement.
Such indemnification shall include , but not be limited to,
all claims arising in tort, contracts , infringement of copyright,
violations of statutes; ordinances or regulations or otherwise.
(b) In the event any such claims shall arise,
the Grantor shall tender the defense thereof to the Grantee .
Provided, however, that the Grantor in its sole discretion
may participate in the defense of such claims at its
expense.
41 -
(c) The Grantee shall not be required to indemnify
the Grantor for negligence or willful misconduct on the part of
Grantor' s officials, boards ,- Commissions , agents or employees .
6 . 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) Comprehensive General Liability.
Comprehensive general liability insurance, including, but
not limited to, coverage for bodily injury and property
damage shall be maintained at the sum(s) specified in the
franchise agreement.
(3) Comprehensive Automobile Liability.
Comprehensive automobile liability including, but not
limited to, non-ownership and hired car coverage as well
as owned vehicles with coverage for bodily injury and
property damage shall be maintained at the sum(s) specified
in the franchise agreement.
1
42 -
(b) Upon request, the Grantee shall furnish the
Grantor with copies of such insurance policies or 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
an endorsement similar to the following:
"It is hereby understood and agreed that this insurance
policy may not be cancelled by the surety or the intention
not to renew be stated by the surety until thirty (30) days
after receipt by the City by registered mail of written notice
of such intention to cancel or not renew. "
(d) The minimum amounts set forth in the
franchise agreement for such insurance shall not be construed
to limit the liability of the Grantee to the Grantor under
. the franchise issued hereunder to the amounts of such insurance.
(e) All insurance carriers providing coverage
under (a) above shall be duly licensed to operate in the
state-of California, and shall be subject to approval of
Grantor.
i
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SECTION 7 . DESIGN AND CONSTRUCTION PROVISIONS
7 .1 System Design. The Cable Communications
System shall be constructed in accordance with the design
requirements contained in the franchise agreement.
7 . 2 Geographical Coverage. The Grantee shall
design and construct the Cable System in such a manner as
to have the eventual capability to pass by every single-
family dwelling unit, multiple-family dwelling unit, school
and public agency within the area of the franchise. Service
shall be provided to subscribers in accordance with the
schedules and line extension policies specified in the
franchise agreement. Cable system construction and
provision of service shall be non-discriminatory, and Grantee
shall not delay or defer service to any section of the
franchise area on the grounds of economic preference.
7 . 3 Cablecasting Facilities. The Grantee shall
provide cablecasting facilities in accordance with the
requirements of the franchise agreement.
7 . 4 System Construction Schedule
(a) The Grantee shall comply with the require-
ments of the system construction schedule contained in the
franchise agreement.
44 -
(b) The Grantee may be required to provide a
detailed construction plan indicating progress schedule, area
construction maps, test plan, and projected dates for
offering service. In addition, the Grantee may be required to
update this information on a monthly basis , showing specifically
whether schedules are being met and the reasons for any
delay.
7 . 5 Remedies for Delay in Construction. The
Grantor may at its sole option, apply any or all of the
following remedies in connection with delays in system
construction:
(a) Reduction in the duration of the franchise
on a month-for-month basis for each month of delay exceeding
six (6) months .
(b) Forfeiture of construction bonds and/or assess-
ment of monetary damages up to the maximum per day and per
incident limits specified in the franchise agreement, levied
against the security fund, for delays exceeding one (1) year.
(c) Termination of the franchise within one
(1) year after award of the franchise if the Grantee has
failed to initiate system construction.
(d) Termination of the franchise for other
delays exceeding eighteen (18) months.
Any remedies applied shall be in accordance with the
procedures contained in Section 12 herein.
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7 . 6 Provision of Service. After service has been
established by activating trunk and distribution cables for
any area, the Grantee shall provide service to any requesting
subscriber within that area within thirty (30) days from
the date of request.
7 . 7 Undergrounding of Cable. The undergrounding
of cable is encouraged.. In any event, cables shall be
installed underground at Grantee ' s cost where all existing
utilities are already underground. Previously installed
aerial cable shall be undergrounded and relocated in concert,
and on a cost-sharing basis, with other utilities, when
such other utilities may convert from aerial to underground
construction.
7 .8 New Development Undergrounding. In cases o-f
new construction or property development where utilities
are to be placed underground, upon request by the Grantee,
the developer or property owner shall give Grantee reasonable
notice of the particular date on which open trenching will
be available for Grantee ' s installation of conduit,
pedestals and/or vaults, and laterals to be provided at
Grantee' s expense. Grantee shall also provide specifications
as needed for trenching.
Costs of trenching and easements required to bring
service to the development shall be borne by the developer
or property owner; except that if Grantee fails to install
46 -
its conduit, pedestals and/or vaults, and laterals within
five (5) working days of the date the trenches are
available, as designated in the notice given by the
T '
developer or property owner, then should the trenches be
closed after the five (5) day period, the cost of new
trenching is to be borne by Grantee.
7 . 9 Underground at Multiple-Dwelling Units.
In cases of multiple dwelling units serviced by aerial
utilities, Grantee shall make every effort to minimize the
number of individual aerial drop cables giving preference
to undergrounding of multiple drop cables between the
pole and the dwelling unit. The burden of proof shall
be upon the Grantee to demonstrate why undergrounding of
drop cables is technically or economically unfeasible.
7 .10 Street Occuoancv
(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 above,
under or on streets until the written
approval of the Grantor is obtained . However, no
location of any pole or wire holding structure of the
Grantee shall be a vested interest and such poles or
47 -
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 Grantor.
(c) All transmission lines, equipment and
structures shall be so installed and located as to cause
minimum interference with the rights and reasonable
convenience of property owners and at all times, shall be
kept and maintained in a safe, adequate and substantial
condition, and in good order and repair. The Grantee shall ,
at all times, employ ordinary care and shall install
and maintain in use commonly accepted methods and devices
for preventing failures and accidents which are likely to
cause damage, injuries, or nuisances to the public.
Suitable barricades, flags, lights, flares or other devices
i
shall be used at such times and places as are reasonably
48 -
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 at least
its previous condition, any damage or disturbance
caused to the public way as a result of its operations or
construction on its behalf.
(e) Whenever, in case of fire or other
disaster, it becomes necessary in the judgment of the
Grantor to remove any of the Grantee' s facilities , no
charge shall be made by the Grantee against the Grantor
for restoration and repair .
(f) Grantee shall have the authority to trim
trees on public property at its own expense as may be
necessary to protect is 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 its expense shall protect,
support, temporarily disconnect, relocate, or remove any
property of Grantee when, in the opinion of the Grantor
the same is required by reason of traffic conditions ,
public safety, street vacation, freeway or street
- 49 -
grade, separation or realignment, installation of sewers, drains ,
waterpipes, power line, signal line, transportation facilities ,
tracks , or any other types 'of structure or improvements by govern-
mental agencies whether acting in a governmental or a
proprietary capacity, or any other structure or public
improvement, including but not limited to movement of
buildings , redevelopment, or any general program under
which the Grantor shall undertake to cause any such
properties to be located beneath the surface of the ground.
Nothing hereunder shall be deemed a taking of the property
of Grantee and Grantee shall be entitled to no surcharge
by reason of anything hereunder.
(h) Upon failure of Grantee to commence,
pursue or complete any work required by law or by the
provisions of, this 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 thirty (30) days after receipt
of such itemized report.
(i) The Grantee shall make no paving cuts or
curb cuts within the .-public rights-of-way unless absolutely
necessary, and only after written
permission has been given
by the Grantor.
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(j ) Grantor reserves the right to require conduit
for underground cabling,
7. 11 Construction and Technical Standards .
(a) Construction Standards .
(1) City Codes and Permits . Grantee shall .
comply with all applicable City construction codes and permit
procedures . Grantor shall be entitled to charge reasonable permit
and inspection fees to recover the special nonrecurring inspection
costs imposed by the construction of the cable system.
( 2) Compliance with Safetv Codes . All con-
struction practices shall be in accordance with all applicable
sections of federal and state Occupational Safety and Health Acts
and any amendments thereto as well as all state and local. codes
where applicable .
( 3) Compliance with Electrical Codes . 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, and all applicable
state and local codes .
(4) Antennas and Towers . Antenna supporting
structures (towers) shall be designed for the proper loading as
specified in Electronics Industry Association ' s R.S. 222-a
specifications .
(5Y , Comaliance with Aviation Reauirements .
Antennas. supporting structures (towers) shall be painted, lighted,
erected and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other
applicable state or local codes and regulations .
51 -
(6) Construction Standards and
Requirements. All of the Grantee' s plant and equipment,
including but not limited to the antenna site, head-end
and distribution system towers, house connections,
structures, poles, wire, cable, coaxial cable, fixtures
and appurtenances shall be installed,- located, erected,
constructed, reconstructed, replaced, removed, repaired,
maintained and operated in accordance with good engineering
practices, performed by experienced maintenance and
construction personnel so as not to endanger or interfere
with improvements the Grantor may deem proper to make,
or to interfere in any manner with the rights of any
property owner, or to hinder or obstruct pedestrian or
vehicular traffic.
(7) Safety, Nuisance, Requirements.
The Grantee shall at all times employ ordinary care and
shall install and maintain in use commonly accepted methods
and devices preventing failures and accidents which are
likely to cause damage, injury or nuisance to the public .
(b) Technical Standards. The Cable
Communications System shall meet all technical and
performance standards contained in the franchise agree-
ment.
i
(c) Test and Compliance Procedure . The
Grantee shall submit, within sixty (60) days after the
effective date of the franchise agreement, a detailed test
52 -
plan describing the methods and schedules for testing
the Cable Communications System on an ongoing basis to
determine compliance with the provisions of the franchise
agreement. The tests for Basic Subscriber Television
Services shall be performed at intervals no greater than
every twelve (12) months , on a minimum of twenty ' (20)
subscriber television receivers, located throughout the
service area. At least eight (8) of these locations
shall be at the far end of the distribution trunk cables . Upon
Grantor request, the tests may be witnessed by representatives
of the Grantor, and written test reports shall be submitted to
the Grantor. If more than ten percent (10%) of the locations
tested fail to meet the performance standards, the Grantee
shall be required to indicate what corrective measures
have been taken, and the entire test shall be repeated for
at least twenty (20) different locations . A second
failure of more than ten percent (10%) may be considered,
at the Grantor' s option, as a material breach of the
franchise.
(d) Special Tests. At any time after
commencement of service to subscribers the Grantor may
require additional tests , full or partial repeat tests,
i
different test procedures, or tests involving a specific
53 -
subscriber's terminal. Requests for such additional
tests will be made on the basis of complaints received
or other evidence indicating an. unresolved controversy or
significant noncompliance, and such tests shall be limited
to the particular matter in controversy. The Grantor shall
endeavor to so arrange its requests for such special tests
so as to minimize hardship or inconvenience to Grantee
or to the subscriber.
7 .12 Areawide Interconnection.
(a) Interconnection Required. The Grantor, based
upon demonstrable community need, may direct Grantee to inter-
connect public usage channels of the Cable Communications
System with any or all other cable systems in adjacent areas .
Interconnection of systems shall permit interactive
transmission and reception of program material , and may
be done by direct cable connection, microwave link,
satellite, or other appropriate method.
(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 .
54 _.
In the case of. regional or.-state-wide- inter-connection,
the same principle shall apply.
(c) Relief. - The Grantee may be granted
reasonable extensions of time to interconnect or the
- Grantor may rescind its •order to interconnect upon
petition by the Grantee to the Grantor. The Grantor
may grant said request if it finds that the Grantee has
negotiated in good faith and has failed to.- obtain an
approval from the system or systems of the proposed inter-
connection, or that the cost of the interconnection
would cause an unreasonable or unacceptable increase in
subscriber rates .
(d) Cooperation Required. The Grantee
shall cooperate with any interconnection cornoration,
regional interconnection authority or city, county, state
or federal regulatory agency which may be hereafter
established for the purpose of regulating, financing, or
otherwise providing for the interconnection of cable
systems beyond the boundaries of the franchise territory .
(e) Initial Technical Requirements to
Assure Future Interconnection Capability.
(1) Every Grantee receiving a franchise
to operate a Cable Commynications System within the franchise
territory shall use the same frequency allocations for
55 -
f
commonly provided television signals so far as is
technically and economically feasible.
(2) Grantee :shall provide local
origination and access equipment that is compatible
throughout the franchise area.
56 -
SECTION 8 . SERVICE PROVISIONS
8 .1 Service to be Provided. The Grantee- shall- provide,
initially, the services listed in the franchise agreement.
Services shall not be reduced without adequate prior notifica-
tion to Grantor.
8 .2 Basic Cable Service. The "Basic Cable Service"
shall be available to all subscribers at the established and
uniform monthly subscription rates .
8 . 3 Basic Radio Service . The "Basic Radio Service" may
be made available to all subscribers at the established and
uniform monthly subscription rates .
8 . 4 Institutional Service. If specified in the franchise
agreement, the "Institutional Service" shall include the provision
of transmission and/or reception services to institutional users,
on a commercial use channel basis at rates established by Grantee .
Services may include the distribution of video or non-video signals .
8 .5 Additional Subscriber Services . "Additional Sub-
scriber Services" , not included in the services specified above ,
may b-e provided, either within the basic cable service rates , or
on a premium basis , subject to applicable law.
8. 6 Local Origination Channel (s) . The Grantee may
operate cablecasting studios on a high-quality, professional
basis for the purpose 'of providing cablecast programming respon-
sive to local needs' and interests .
57 -
8. 7 Government Access Channel (s) . The Grantee shall
provide the number of channels and the facilities specified in
the franchise agreement for,the use of the Grantor at no charge to
the Grantor. The Grantee shall provide facilities to aid in the
utilization of these channels , as specified in the franchise
agreement.
8 . 8 Educational Access Channel (s) . The Grantee shall
provide the number of channels and the facilities specified in
the franchise agreement for the use of the .local educational
institutions at no charge . The Grantee shall provide facilities
to aid in the utilization of these channels, as specified in the
franchise agreement.
8 .9 Public Access Channel (s) . The Grantee shall provide
the number of channels and the facilities specified in the fran-
chise agreement to be available to the public at no charge. The
Public Access Channel (s) may be managed and operated by the access
management entity, as described in Section 5 . The Grantee shall
make available for programmers of the public access channel the
facilities specified in the franchise agreement.
8 .10 Public Access (Closed Circuit) . If the Cable
Communications System includes a closed-circuit institutional
network, the Grantee shall make a portion of the network capacity,
as specified in the franchise agreement, available for local
government, educational and public use at no charge. The Public
Access two-way channels shall be managed and operated by the
access management entity.
58 -
8.11 Commercial Use Channels . Grantee shall make
channels available for commercial use, on a nondiscriminatory
basis , as required by federal law. All commercial channel service
revenues shall be included in gross receipts subject to the
franchise fee.
8 . 12 Alternative Use of Access Channels . If Grantor
determines that a new service affecting the public safety, health
or welfare, would be in the public interest and receives a bona
fide offer from a third party to provide such a .service, Grantee
shall be offered the first right of refusal to provide the
service on the same terms . If Grantee declines to provide the
service, Grantor may utilize appropriate access channel capacity
to accommodate that service.
8 . 13 Universal Connection. The Grantor may require
that all dwelling units within the franchise area shall be
connected physically to the cable system by the Grantee by means
of drop cables terminating at each dwelling unit, whether or not
the dwelling unit' s occupants desire to subscribe to cable
service . The cost and charges for providing universal connection
shall be determined by the Grantee at the time such connection is
requested and furnished to the Grantor. If Grantor elects to
require universal connection, Grantee shall be entitled to recover
the incremental cost of providing a universal connection.
59 -
SECTION 9 . OPERATION AND MAINTENANCE
9 .1 Open Books and Records. The Grantor shall have the right
to inspect, upon reasonable notice, at any time during normal
business hours, all books , records, maps, plans , financial state-
ments, service complaint logs, performance test results
and other like materials of the Grantee which relate to the opera-
tion of the franchise and are maintained at the local office .
If any such books or records required by this ordinance or
the franchise agreement are not kept in the
local office, or upon reasonable request made available to
the Grantor, and if the Grantor shall determine that an
examination of such records is Necessary or appropriate to
the performance of any of Grantor ' s duties, then all travel
and maintenance expense necessarily incurred in making such
examination shall be paid by Grantee .
A . 2 Records Required.
(a) In any event the Grantee shall at all times
maintain:
(1) The complaint file required by
Section 13 . 5- herein.
60 -
(2) A full and complete set of plans ,
records and "as-built maps showing the -exact location of
all Cable Communications System equipment installed or in use
in the franchise territory, 'dxclusive of subscriber service drops .
9 . 3 Maintenance and Complaints.
(a) The Grantee shall maintain a local
office which shall be open during all usual
business hours, have a publicly listed toll-free telephone,
and be so operated to receive subscriber complaints and
requests for repairs or adjustments on a twenty-four (24)
hour a day basis. A written log shall be maintained listing
all complaints and their disposition as required by Section
9 . 2 (a) (1) above.
(b) The Grantee shall render efficient service,
make repairs promptly, and interrupt service only for good
cause and for the shortest time possible. Such interruptions ,
insofar as possible, shall be preceded by notice and shall
occur during period of minimum use of the system. A written
log shall be maintained for all service interruptions as
required by Section 9 . 2 (a) (1) above.
(c) The Grantee shall maintain a repair force of
technicians normally 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 he
made to the subscriber for normal repair service.
61 -
(d) The Grantee shall furnish each subscriber
at the time service is installed, written instructions that
clearly set forth procedures, furnish information concerning
the procedures for making inquiries or complaints, including
the address and local telephone number to whom such inquiries
or complaints are to be addressed, and furnish information
concerning the Grantor office responsible for administration
of the franchise with the address and telephone number of the
office.
9 . 4 Rights of Individuals
(a) Grantee shall not deny service, deny access ,
or otherwise discriminate against subscribers , channel users ,
or citizens on the basis of income, race, color, religion,
national origin, age or sex. Grantee shall comply at all
times with all other applicable federal , state and local
laws and regulations, and all executive and administrative
orders relating to non-discrimination which are hereby in-
corporated and made part of this ordinance by reference.
(b) Grantee shall strictly adhere to the equal emplov-
ment opportunity requirements of federal, state and local law and
regulations in effect on the date of the franchise grant, and as
amended from time to time.
(c) The Grantee' s policy with regard to personally
identifiable information shall comply with federal law.
62 -
(d) Fairness of Accessibility. The entire
system of the Grantee shall be operated in a manner consistent
with the principle of fairness and equal accessibility of
its facilities, equipment, channels studios and other services -to
all citizens , businesses , public agencies and other entities having
a legitimate use for the system, and no one shall be arbitrarily
excluded from its use . Allocation of use of said facilities shall
be made according to the rules or decisions of the Grantee , the
Grantor in its lawful exercise of regulatory authority, and any
state or federal regulatory agencies affecting the same.
9. 5 Continuity of Service Mandatory
(a) It shall be the right of all subscribers
to continue receiving service insofar as their financial and
other obligations to the Grantee are honored . In the event
, that the Grantee elects to overbuild, rebuild, mofify, or sell
the system, or the Grantor gives notice of intent to terminate
or fails to renew this franchise, the Grantee shall act so
as to ensure that all subscribers receive continuous , un-
interrupted service regardless of the circumstances .
In the event of a change of franchisee, or in the event
a new operator acquires the system, the Grantee shall
cooperate with the Grantor, new franchisee or operator in
maintaining continuity ,of service to all subscribers .
Y
63 -
During such period, Grantee shall be entitled to the revenues
for any period during which it operates the system, and shall
be entitled to reasonable costs for its services when it no
longer operates the system.
(b) In the event Grantee fails to operate the
system for seven ( 7) consecutive days without prior approval of
the Grantor or without- just cause, the Grantor may, at its option ,
operate the system or designate an operator until such time as
Grantee restores service under conditions acceptable to the
Grantor or a permanent operator is selected. If the Grantor is
required to fulfill this obligation for the Grantee , then during
such period as the Grantor fulfills such obligation, the Grantor
shall be entitled to collect all revenues from the system', and
the Grantee shall reimburse the Grantor for all reasonable costs
or damages in excess of the revenues collected by the Grantor
that are the result of the Grantee ' s failure to perform.
1 . 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 the franchise , and to assure an uninterrupted service
to each and all of its customers . Provided, however, that
such rules , regulations, terms and conditions shall not be
64 -
in conflict with the provisions hereof or applicable state
and federal laws, rules and regulations.
9 .7 Tenant Rights. .Grantee shall be required to
provide service to tenants in individual units of a multiple
housing facility with all services offered to other dwelling
units within the franchise area, so long as the owner of the
facility consents in writing, if requested by Grantee, to
the following :
(a) To Grantee ' s providing of the service to
units of the facility;
(b) To reasonable conditions and times for
installation, .maintenance, and inspection of the system on
the facility premises;
(c) To reasonable conditions promulgated by
Grantee to protect Grantee ' s equipment and to encourage
widespread. use of the system; and
(d) To not discriminate in rental charges , or
otherwise, between tenants who receive cable service and
those who do not.
i
65 -
SECTION 10 . RIGHTS RESERVED TO THE GRANTOR
10 .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 be at the fair
market value of the system as defined by federal law.
10 . 2 Right of Inspection of Records. There shall be
kept in the Grantee' s office a separate record for the cable
system, which record shall show the items hereafter set
forth. The Grantee shall provide such information as may
reasonably be required by the Grantor from said records .
(a) The true and entire cost of construction
equipment, of maintenance and of the administration and
operation thereof; the amount of sock issued, if anv; the
amount of cash paid in, the number of and par value of shares ,
the amount and character of indebtedness, if any; the
rate of taxes, the dividends declared; the character and
amount of all fixed charges; the allowance , if any, for
interest, for wear and +tear or depreciation; all amounts
and sources of income.
r
- 66 -
(b) Any amount collected annually from the
Grantor treasury and- the character and extent of the service
rendered therefor to the Grantor.
(c) The amotinE 'collected annually from other
users of service and the character and extent of the -
service rendered therefor to them.
The books and records kept by the Grantor shall be
open to Grantor examination upon reasonable notice at any
time during the business hours of the Grantor's office.
10 .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.
10 . 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.
10. 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 sh-all have the right to require the Grantee
i
to remove, at its own expense , all above-ground portions of the
Cable Communications System from all streets and public
ways within the franchise area.
r .
67 -
SECTION 11 . RIGHTS RESERVED TO THE GRANTEE
11 . 1 Right of Grantee. In the event of any
dispute between Grantee and Grantor over this Ordinance or
the franchise agreement, or with respect to any rights or
obligations arising therefrom, Grantee shall first pursue
and exhaust all available administrative remedies.
Thereafter, Grantee may pursue any appropriate legal action
which such action may be brought only in a Superior Court
situated in the County of Alameda.
- 68 -
SECTION 12. FRANCHISE VIOLATIONS ..
12.1 Remedies for Franchise Violations. If the Grantee
fails to perform any materidl. ob ligation under the franchise,
or fails to do so in a timely manner, the Grantor may at its
option, and in its sole discretion;
(a) Assess against the Grantee monetary damages
up to the limits established in the franchise agreement for
material franchise violations, said assessment to be levied
against the security fund, hereinabove provided, and collected
by Grantor immediately upon said assessment. The amount of
such assessment shall be deemed, without proof, to represent
liquidation of damages actually sustained by Grantor by reason
of Grantee ' s failure to perform. Such assessment shall not
constitute a waiver by the Grantor of any other right or
remedy it may have under the franchise or under applicable
law, including without . limitation, its right to recover from
Grantee such additional damages , losses , costs and expenses,
including actual attorney fees , as may have been suffered or
incurred by Grantor by 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 bonds provided for in Section 6 , and is intended to
provide compensation to Grantor for actual damages .
- 69 -
(b) Terminate the franchise, for any of the
causes stated in Section 4 , above.
(c) No remedy ."shall be imposed by Grantor
against Grantee for any violation of the franchise without
Grantee being afforded due process of law, as provided
for in 12. 2 below.
Any remedies imposed shall be in addition to any and all
other legal or equitable remedies available to Grantor under
the franchise or under any applicable law,
12 . 2 Procedure for Remedying Franchise Violations .
In the event that the Grantor determines that the Grantee has
violated any material provision of the franchise, the Grantor
may make a written demand on the Grantee that it remedy such
violation. If the violation is not remedied to the satisfaction
of the Grantor within thirty (30) days following such demand,
the Grantor shall determine whether or not such violation by the
Grantee was excusable or inexcusable, in accordance with the
following procedure:
(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 by the Grantee was excusable as provided -in
Section 12 .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.
7-0
(c) If, after notice is given and; at "the Grantee ' s
option, a full public proceeding is held, the Grantor determines
that such violation was inexcusable, then the Grantor may impose
a remedy in accordance with Section 12 .1 above.
12 . 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 therof ,
provided Grantee has notified Grantor in writing within.
thirty (30) days of its discovery of the occurence of such
an event. Such causes beyond Grantee ' s reasonable cor.`rol
or not reasonably foreseeable shall include, but shall not
be limited to, Acts of God, war or acts of war, and civil
emergencies .
71 -
SECTION 13 . REPORTS
13. 1 Annual Reports. At Grantor' s sole option, within
sixty (60) days after the close of Grantee ' s fiscal year, Grantor
may request Grantee to submit a written annual report, including,
but not limited to, the following information:
(a) A summary of the previous year' s (or, in the
case of the initial report year, the initial year' s) activities
in development of the cable system, including, but not limited
to, services begun or discontinued during the reporting year, and
the number of subscribers for each class of service;
(b) A statement of receipts , audited by an .independent
Certified Public Accountant, or certified by an officer of the
Grantee.
(c) A list of Grantee 's officers , members of its
board of directors , and other principals of Grantee;
(d) 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 .
13 . 2 Plant Survey Report. At Grantor ' s sole option,
Srantee shall. submit to the Grantor an annual plant
survey report which sha]tl be a complete survey of the
3 antee ' s plant and a full report thereon. Said report
shall include, but not be limited to, a description and
"as-built" maps of the portions of the franchise area
that have been cabled and have all services available,
72 -
an appropriate engineering evaluation including suitable
electronic measurement"s&onducted in conformity with such
requirements, including supervision, as the Grantor may
prescribe. Said report shall be in sufficient detail to
enable the Grantor to ascertain that the service require-
ments and technical standards of the FCC and/or the franchise
are achieved and maintained . If Grantor has reason to
believe that portions or all of the sstcm do not meet
either the FCC technical standards , or those incorporates:
into the franchise agreement, at Grantor' s request, but
no more often than once per three (3) years , the Grantee
and the Grantor shall agree upon the appointment of a
qualified independent engineer to evaluate and verify the
technical performance of the Cable System. The cost of
such evaluation shall be borne equally by the Grantee
and the Grantor.
13 . 3 Copies of Federal and State Reports . The Grantee shall
make available to the Grantor, upon reasonable request, copies of all
publicly available pleadings , applications, reports , communica-
tions 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 hereby waives
any right to claim confidential, privileged or proprietary
rights to such documents unless such confidential rights are
determined to be confidential by law or by the practices of
federal or state agencies .
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13 . 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 availability by the Grantee.
13 . 5 Complaint File and Reports . An accurate and
comprehensive file shall be kept by the Grantee of any and all
service related complaints regarding the cable system. A pro-
cedure shall be established by the Grantee by the time of
installation of the cable system to remedy complains
quickly and reasonably to the satisfaction of the Grantor .
Complete records of Grantee ' s actions in response to all
service related complaints shall be kept.
(a) A summary of service related complaints ,
identifying the number and nature of complaints and their
disposition shall be completed for each month and submitted
to the Grantor by the tenth day of the succeeding month .
(b) The results of an annual opinion survey
report which identifies satisfaction or dissatisfaction
among subscribers with. cable communications services
offered by the Grantee shall be submitted to the Grantor
no later than two (2) ,.months after the end of Grantee ' s
fiscal year. The surveys required to make said report may be
in a form that can be transmitted to subscribers with any
bill for service.
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13 . 6 Miscellaneous Repor.ts.. . _.Grantee . shall submit
to the Grantor such other information or reports in such
forms and at such times as the Grantor may reasonably
request or require.
13. 7 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 reasonable notice,
or, in case of a declared emergency, upon demand without
prior notice, to allow Grantor to verif;,* the accuracy of
any submitted report .
13 . 8 Business Office and Files . Grantee shall keep
complete and accurate books and records . The Grantor, upon reason-
able notice, 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 Cable System.
13 . 9 Public Inspection. All reports subject to
public disclosure, shall be available for public inspection
at a designated Grantor office during normal business
hours.
13. 10 Failure to Report. The refusal or willful
failure of the Grantee to file any of the reports required,
or such other reports as the Grantor reasonably may
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request, shall be deemed a material breach of the franchise,
and shall subject the Grantee to all remedies, legal or
equitable, which are available to the Grantor under the
franchise or otherwise .
13. 11 False Statements. Any materially false or
misleading statement or representation made knowingly by
the Grantee in any report required under the franchise
shall be deemed a material breach of the franchise and shall
subject the Grantee to all remedies , legal or equitable,
which are available to the Grantor under the franchise
or otherwise.
13.12 Cost of Reports . All reports and records
required under this or any. other Section shall be furnished
at the sole expense of the Grantee.
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SECTION 14 . MISCELLANEOUS .PROVISIONS
14 .1 Compliance with State and Federal Laws.
Notwithstanding any other provisions of the franchise
to the contrary, the Grantee shall at all times comply -
with all laws and regulations of the state and federal
government or any 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 the franchise or any law
or regulation of the Grantor, then as soon as possible
following knowledge thereof , the Grantee shall notify the
Grantor of the point of conflict believed to exist between
such regulation or law and the laws or regulations of the
Grantor or the franchise .
14 . 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 local
agency of competent jurisdiction to be invalid as
conflicting with any federal , state , or local law, rule
or regulation now or hereafter in effect, or is held by
such court or agency td be modified in any way in order
to conform to the requirements of any such law, rule or
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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 has been held
invalid or modified is no longer in conflict with the
law, rules and regulations then in effect, said provision
shall thereupon return to full force and effect and shall
thereafter be binding on the parties hereto, provided
that the Grantor shall give the Grantee thirty (30) days
written notice of such change before requiring compliance
with said provision.
14 . 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 ,
state or county regulations or laws, the Grantor shall
negotiate with Grantee appropriate modifications to the `rand se
to provide reasonable relief to the Grantor from such in-
validity or premption,_ including the payment of
damages. If the parties are unable to reach agreement
on such modifications, then the dispute shall be submitted
to a mutually acceptable arbitrator, in accordance with
♦ ` J
78
state law, who shall determine what modifications and/
or liquidated damages are appropriate. The arbitrator ' s
decision shall be binding on the parties, provided, that
no decision of the arbitrator shall require the Grantor
or Grantee to be in violation of any federal or state
law or regulation.
14 . 4 Notices. Grantee shall maintain throughout
the term of the franchise, a local address for service
of notices by mail .
14 .5 Captions . The captions to sections through-
out this ordinance are intended solely to facilitate reading
and. reference. Such captions shall not affect the meaning
or interpretation of this ordinance.
14 . 6 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 , except for negligence
or willful misconduct on the part of Grantor' s officials, boards ,
commissions, agents or employees .
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14. 7 Nonenforcement by the Grantor. The Grantee
shall not be relieved of its obligation to comply with any
of the provisions of this Ordinance by reason of any failure
of the Grantor to enforce prompt compliance.
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The City Clerk is directed to certify the adoption
of this ordinance and shall cause the same to be published
or posted in the manner prescribed by law.
PASSED AND ADOPTED this day of 1985
AYES :
NOES:
ABSENT:
Mayor of the City of Dublin
ATTEST:
City Clerk of the City of Dublin