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Home My WebLink AboutAGENDA REPORT 2004 0721 CC REG ITEM 09BMOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council ITEM °I • !3. CITY OF MOORPARK, CALIFORNIA City Council Meeting Of 7-,Q LA 004 ACTION: A24 . 061 a BY. L,-),7"2, t e�•— FROM: Hugh R. Riley, Assistant City Mager - -� DATE: July 9, 2004 (City Council Meeting of July 21, 2004) SUBJECT: Consider an Ordinance Amending Chapter 5.06 of the Moorpark Municipal Code Regulating Cable Television Systems BACKGROUND On June 6, 1984, the City Council of the City of Moorpark adopted Resolution No. 84 -99 granting a 15 -year, Non - exclusive Franchise for the operation of a cable television system to serve the Urban West Communities' Mountain Meadows Housing Development to Mountain Meadows Cable Television, L.P. On November 21, 1990, the City Council adopted Ordinance No. 133, adding Chapter 6 to Title 5 of the Moorpark Municipal Code relative to the granting of cable television franchises and Ordinance No. 134 granting a ten -year renewal of a non - exclusive franchise to operate a cable television system in Moorpark to The Chronicle Publishing Co. doing business as Ventura County Cable Vision (`the Moorpark System "). This franchise was in operation when the City incorporated in 1983. A series of actions were taken to approve the transfer of control for these franchise agreements to various entities as the telecommunications companies were purchased or as mergers were completed. The final transfer of control of both franchises to Adelphia Communications was approved by the City of Moorpark on August 18, 1999. These Franchises are due to expire on June 30, 2004. DISCUSSION The City is now considering the renewal of the Franchise Agreements with Adelphia. Staff has prepared a draft Cable TV Regulatory Ordinance to update and amend the City Code regarding the granting of cable television franchises and the regulation of services provided under such franchises. Significant changes added to the 000035 Honorable City Council July 9, 2004 Page 2 Moorpark Municipal Code by the new ordinance are summarized as follows: • Declarations of intent and findings by the City as to compliance with applicable State and Federal laws governing the regulation of cable systems • Definitions of terms currently used by the cable industry • Regulations and procedures concerning the transfer of control of cable systems in compliance with current Federal Law • Application fee representing reasonable costs for the filing of an application for a cable TV franchise • Provides minimum consumer protection and service standards in far greater detail than the previous ordinance including: - Operational Standards: Toll -free telephone line for service requests; maximum waiting time of 30 seconds; Conveniently located local business and service and /or payment office. - Service Standards: Efficiency standards and minimum disruption requirements; standards for refunds to subscribers due to service disruptions; Requirements for time to determine causes for service disruptions; prohibition against charging for certain repairs to equipment - Billing and Information Standards: Requirements for bills to be clear, concise, understandable and fully itemized; Billing dispute procedures; Pro rata credits or refunds for service interruption • More specific criteria and procedures for service verification and subscriber complaints and disputes • Sets construction standards for cable franchises to ensure minimum impact of their construction in public rights -of -way • Biannual review of system performance and Customer Opinion Survey upon request • Specific and detailed procedures for remedies for franchise violations including a "Security Fund" (established by the 000036 Honorable City Council July 9, 2004 Page 3 Franchise Agreement) from which the City may draw funds to cure violations after reasonable notice and operator's opportunity to cure The City Attorney has approved the draft ordinance. The ordinance in its final form will be included as an Exhibit to the new Franchise Agreement. STAFF RECD MMATION Introduce Ordinance No. for first reading. Attachment: Ordinance No. 000037 ORDINANCE NO. AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, AMENDING CHAPTER 5.06 "MOORPARK CABLE TELEVISION ORDINANCE." WHEREAS, the City of Moorpark has certain powers to regulate the provision of cable television services in the City under State and Federal law, as well as its powers over the public rights -of -way in the City, and. WHEREAS, the Council recognizes that cable television services are increasingly important in this age of information; and WHEREAS, the Council desires to enable the provision of cable television services to the residents of the City in a sound and timely fashion while protecting the interests of the City and its residents. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 5.06 of Title 5, Business Taxes, Licenses, and Regulations, of the Moorpark Municipal Code is hereby amended in its entirety to read as follows: Chapter 5.06 CABLE COMMUNICATIONS Sec. 5.06.100 Existing Franchises Sec. 5.06.200 New Franchises Sec. 5.06.300 Intent Sec. 5.06.400 Short Title Sec. 5.06.500 Definitions Sec. 5.06.600 Franchise Terms and Conditions ATTACHMENT 000038 Ordinance No. Page 2 Sec. 5.06.700 Franchise Applications and Renewal Sec. 5.06.800 Minimum Consumer Protection and Service Standards Sec. 5.06.900 Franchise Fee and Financial Requirements Sec. 5.06.1000 Construction Requirements Sec. 5.06.1100 Standards Sec. 5.06.1200 Indemnification and Insurance Requirements Sec. 5.06.1300 Records and Reports Sec. 5.06.1400 Review of System Performance Sec. 5.06.1500 Franchise Violations Sec. 5.06.1600 Force Majeure; Grantee's Inability to Perform Sec. 5.06.1700 Abandonment or Removal of Franchise Property Sec. 5.06.1800 Grantor and Subscriber Rights Sec. 5.06.1900 Separability 5.06.100 Existing Franchise Existing Ordinance No. 133 shall apply to any Cable System Franchise in force prior to the effective date of this Chapter. 5.06.200 New Franchises This Chapter 5.06 is hereby enacted to apply to any Cable System Franchise granted or renewed subsequent to the effective date of this Chapter. 5.06.300 Intent 5.06.310 Authority The City of Moorpark pursuant to applicable Federal and State law, is authorized to grant one or more non - exclusive franchises to construct, operate, maintain and reconstruct Cable Systems within the City limits. 000039 2 Ordinance No. Page 3 5.06.320 Findings The City Council finds that the development of Cable Systems has the potential of having great benefit and impact upon the residents of the City. Because of the complex and rapidly changing technology associated with Cable Systems, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such Persons as the City may designate. It is the intent of this Chapter and subsequent amendments to provide for and specify the means to attain the best possible Cable Service to the public and any Franchises issued pursuant to this Chapter shall be deemed to include this as an integral finding thereof. It is the further intent of this Chapter to establish regulatory provisions that permit the City to regulate Cable System Franchises to the extent permitted by Federal and State law, including but not limited to the Federal Cable Communications Policy Act of 1984, the Federal Cable Television Consumer Protection and Competition Act of 1992, the Federal Telecommunications Act of 1996 as amended or hereafter amended, applicable Federal Communications Commission regulations and applicable California law. 5.06.400 Short Title This Chapter shall constitute the "Cable System Regulatory Ordinance" of the City of Moorpark and may be referred to as such. 5.06.500 Definitions For the purposes of this Chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning. 5.06.502 Basic Cable Service. "Basic Cable Service" means any service tier which includes the retransmission of local network and independent television broadcast signals. 5.06.504 Cable Operator. "Cable Operator" means any Person or group of Persons who: (a) provides Cable Service over a Cable System and directly or through one (1) or more affiliates owns a significant interest in such Cable System; or 3 x®0040 Ordinance No. Page 4 (b) otherwise controls or is responsible for, through any arrangement, the management and operation of such Cable System. 5.06.506 Cable Service. "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 or use of such video programming or other programming service. 5.06.508 Cable System or System. "Cable System" or "System," means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include: (a) a facility that serves only to retransmit television signals of one (1) or more television broadcast stations; (b) a facility that serves Subscribers without using any Public Rights -of -Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a Cable System (other than for the purposes of 47 U.S.C. 541) to the extent such facility is used in the transmission of video programming directly to Subscribers; unless the extent of such use is solely to provide interactive on- demand services; (d) an open video system that complies with Title VI of the Communications Act of 1934 (47 U.S.C. 573) as amended; or (e) any facilities of any electric utility used solely for operating its electric utility system. 5.06.510 Channel or Cable Channel. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum, or any other means of transmission used by the System (including, without limitation, optical fibers or any other means 4 000041 Ordinance No. Page 5 now available or that may become available), which is capable of carrying one (1) video signal and its accompanying audio signal, or carrying an equivalent amount of packet -based data. 5.06.512 Council. "Council" means the City Council of the City of Moorpark. 5.06.514 Franchise. "Franchise" means an initial authorization, or renewal thereof, issued by the Council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System. Any such authorization, in whatever form granted, shall not supersede the requirement to obtain any license or permit required for the privilege of transacting business within the City as required by the other ordinances and laws of the City. 5.06.516 Franchise Agreement. "Franchise Agreement" means a franchise grant ordinance or a contractual agreement, containing the specific provisions of the Franchise granted, including references, specifications, requirements and other related matters. 5.06.518 Franchise Fee. "Franchise Fee" means any fee or assessment of any kind imposed by the City on a Grantee as compensation for the Grantee's use of the Public Rights -of -Way. The term "Franchise Fee" does not include: (a) any tax, fee or asses applicability (including any such tax, imposed on both utilities and Cable services, but not including a tax, fee is unduly discriminatory against Cable Subscribers); sment of general fee, or assessment Operators or their or assessment which Operators or Cable (b) capital costs which are required by the Franchise to be incurred by Grantee for Public, Educational, or Governmental Access Facilities; (c) requirements or charges incidental to the awarding or enforcing of the Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or (d) any fee imposed under Title 17, United States Code or any subsequent applicable section enacted henceforth. 5.06.520 Grantee. "Grantee" means any "Person" receiving a Franchise pursuant to this Chapter and under the granting 5 0 0004ti Ordinance No. Page 6 Franchise ordinance or agreement, and its lawful successor, transferee or assignee. 5.06.522 Grantor or City. "Grantor" or "City" means the City of Moorpark as represented by the Council or any delegate, acting within the scope of its jurisdiction. 5.06.524 Gross Annual Cable Service Revenues. "Gross Annual Cable Service Revenues" means the annual gross revenues received directly or indirectly by a Grantee from the provision of Cable Service within the City utilizing the Public Rights -of- Way for which a Franchise is required. Gross Annual Cable Service Revenues shall include, but not be limited to, Subscriber revenue, equipment charges, late fees, advertising revenue, home shopping revenue, launch and promotional fee revenue and Franchise Fee revenue. Gross Annual Cable Service Revenues shall not include refundable deposits, rebates or credits, bad debt, or any sales, excise or other taxes or charges imposed externally to the Franchise, and collected for direct pass- through to local, State or Federal government. 5.06.526 Installation. "Installation" means the connection of the System to Subscribers' terminals, and the provision of service. 5.06.528 Normal Operating Conditions. "Normal Operating Conditions" means those service conditions which are within the control of Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay - per -view events, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the Cable System. 5.06.530 Person. "Person" means an individual, partnership, association, joint stock company, trust, corporation or governmental entity. 5.06.532 Public, Educational or Government Access Facilities or PEG Access Facilities. "Public, Educational or Government Access Facilities" or "PEG Access Facilities" means the total of the following: (a) Channel capacity designated for public, educational, or government use; and 000043 043 6 Ordinance No. Page 7 (b) facilities and equipment for the use of such Channel capacity. 5.06.534 Section. "Section" means any section, subsection or provision of this Chapter. 5.06.536 Service Area or Franchise Area. "Service Area" or "Franchise Area" means the entire geographic area within the municipal boundaries of the City as it is now constituted or may in the future be constituted, unless otherwise specified in the Franchise. 5.06.538 Service Tier. "Service Tier" means a category of Cable Service or other services provided by a Cable Operator and for which a separate rate is charged. 5.06.540 State. "State" means the State of California. 5.06.542 Street or Public Way or Public Rights -of -Way. "Street" or "Public Way" or "Public Rights -of -Way" means each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Service Area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights -of -way and similar public property. 5.06.544 Subscriber or Customer or Consumer. "Subscriber" or "Customer" or "Consumer" means any Person who or which elects to subscribe to, for any purpose, Cable Service provided by the Grantee by means of or in connection with the Cable System, and who pays the charges therefor. 5.06.600 Franchise Terms and Conditions 5.06.610 Franchise Purposes. A Franchise granted by the City under the provisions of this Chapter shall encompass the following purposes: (a) to permit the Grantee to engage in the business of providing Cable Service, to Subscribers within the designated Service Area. (b) to permit the Grantee to erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the Cable System in, on, over, under, upon, along and across streets or other public places within the designated Service Area. 7 000044 Ordinance No. Page 8 (c) to permit the Grantee to maintain and operate said Franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of Cable Services, and such other services as may be permitted by law. (d) To set forth the obligations of the Grantee under the Franchise. 5.06.620 Franchise Required. After the effective date of this Chapter, it shall be unlawful for any Person to construct, install or operate a Cable System in the City within any Public Way without a properly granted Franchise awarded pursuant to the provisions of this Chapter. 5.06.630 Term of the Franchise. (a) A Franchise granted hereunder shall be for a term established in the Franchise Agreement, commencing on the Grantor's adoption of an ordinance or resolution authorizing the Franchise. (b) A Franchise granted hereunder may be renewed upon application by the Grantee pursuant to the provisions of applicable State and Federal law. 5.06.640 Franchise Territory. Any Franchise shall be valid within all the municipal limits of the City, and within any area added to the City during the term of the Franchise, unless otherwise specified in the Franchise Agreement. 5.06.650 Federal or State Jurisdiction. This Chapter shall be construed in a manner consistent with all applicable Federal and State laws, and shall apply to all Franchises granted or renewed after the effective date of this Chapter to the extent permitted by applicable law. 5.06.660 Franchise Non - Transferable. (a) Grantee shall not sell, transfer, lease, assign or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise (collectively "Transfer ") , the 8 000045 Ordinance No. Page 9 Franchise or any of the rights or privileges therein granted, without the prior consent of the Council, provided, however, that the prior written consent of the Council shall not be required for an intracorporate or intracompany Transfer from one subsidiary of Grantee's ultimate parent to another subsidiary in which Grantee's ultimate parent retains at least a seventy -five percent (750) interest. The granting of a security interest in any Grantee assets, or any mortgage or other hypothecation or by assignment of any right, title or interest in the Cable System, or use of the Cable System as collateral in order to secure indebtedness, shall not be considered a Transfer for the purposes of this section. (b) The requirements of Subsection (a) shall apply to any change in control of Grantee. The word "control" as used herein includes majority ownership, and actual working control in whatever manner exercised. In the event that Grantee is a corporation, prior consent of the Council shall be required where ownership or control of more than twenty - five percent (25o) of the voting stock of the Grantee is acquired by a Person or group of Persons acting in concert, none of whom own or control the voting stock of the Grantee as of the effective date of the Franchise, singularly or collectively. (c) Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the Franchise property of the Grantee or upon the termination of any lease or interest covering all or a substantial part of said Franchise property. Such notification shall be considered by Grantor as notice that a change in control or ownership of the Franchise has taken place and the provisions under this Section governing the consent of Grantor to such change in control or ownership shall apply. (d) Grantor may require Grantee, or any prospective transferee, to provide additional information as it may deem necessary to determine whether the Transfer is in the public interest and should be approved, denied or conditioned. Grantee and any prospective transferees shall assist Grantor in any such inquiry and provide information requested. Failure to do so may result in the request for Transfer being denied. (e) In determining whether to grant, deny or grant subject to conditions an application for a Transfer of a Franchise, Grantor's consideration may include, but is not necessarily limited to: 9 000046 Ordinance No. Page 10 (1) The legal, financial and technical qualifications of the transferee to operate the Cable System; (2) Any potential impact of the Transfer on Subscriber rates or services; (3) Whether the incumbent Grantee is in compliance with its Franchise and applicable law and, if not, the proposed transferee's commitment to cure such non- compliance; (4) Whether the transferee owns or controls any other Cable System in the Service Area and whether operation by the transferee may eliminate or reduce competition in the delivery of the Cable Service in the Service Area; and (5) Whether operation by the transferee or approval of the Transfer would adversely affect Subscribers, the public or Grantor's interest in the Cable Franchise or applicable law. (f) Any Transfer without Grantor's prior written approval is ineffective, and shall make a Franchise subject to revocation and to any other remedies available under the Franchise or applicable law, except where a request for approval or sale is subject to a deadline for action under 47 U.S.C. 537 and Grantor fails to act by the time required under 47 U.S.C. 537. (g) Grantor shall not approve a Transfer request unless the transferee agrees in writing that it will abide by and accept all terms of the Cable Franchise Gant and applicable law and that the transferee will assume the obligations, liabilities and responsibility for all acts and omissions of the previous Grantee under the Franchise grant and applicable law for all purposes, including renewal, unless Grantor, in its sole discretion, expressly waives this requirement in whole or in part. (h) Any financial institution having a pledge of the Grantee or its assets for the advancement of money for the construction and /or operation of the Franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable System, in the event of a Grantee default of its financial obligations. Further, said financial institution shall also agree in writing to continue Cable 10 0®0®'47 Ordinance No. Page 11 Service and comply with all Franchise requirements during the term the financial institution exercises control over the System. (i) Any submission of an application for transfer of a Franchise shall be accompanied by a nonrefundable processing deposit in the amount of Three Thousand Dollars ($3,000). Prior to the City Council action on the transfer request, Grantee shall reimburse Grantor for Grantor's reasonable processing and review expenses in connection with the transfer of the Franchise including without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs and document preparation expenses, as specified in any Franchise Agreement. Any such reimbursement shall not be charged against any Franchise Fee due to Grantor during the term of the Franchise. (j) Approval by the Grantor of a transfer application does not constitute a waiver or release of any rights of the City under this Chapter or a Franchise Agreement, whether arising before or after the date of the transfer. 5.06.670 Geographical Coverage. (a) Grantee shall design, construct and maintain the Cable System to have the capability to pass every residential dwelling unit in the Service Area, subject to any Service Area line extension requirements of the Franchise Agreement. (b) After service has been established by activating trunk and /or distribution cables for any Service Area, Grantee shall provide service to any requesting Subscriber within that Service Area within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights -of -way, permits and landlord agreements necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. 5.06.680 Nonexclusive Franchise. Any Franchise granted pursuant to this Chapter shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Franchises for a Cable System, as it deems appropriate, subject to applicable State and Federal law. 11 x®0048 Ordinance No. Page 12 5.06.690 Multiple Franchises. (a) Grantor may grant any number of Franchises subject to applicable State or Federal law. Grantor may limit the number of Franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as: (1) The capacity of the Public Rights -of -Way to accommodate multiple cables in addition to the cables, conduits and pipes of the utility Systems, such as electrical power, telephone, gas and sewerage. (2) The benefits that may accrue to Subscribers as a result of Cable System competition, such as lower rates and improved service. (3) The disadvantages that may result from Cable System competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations of the Public Rights -of -Way. (b) Grantor may require that any new entrant, non - incumbent Grantee be responsible for its own underground trenching and the costs associated therewith, if, in Grantor's opinion, the Public Rights -of -Way in any particular area cannot feasibly and reasonably accommodate additional cables. 5.06.695 Franchise Modification. The Grantee may be required to pay any reasonable costs incurred by the Grantor in processing a Grantee request for Franchise modification. Such costs may include the reasonable costs incurred for hiring consultants to assist in evaluating the request. Upon written request from the Grantee, the Grantor shall provide Grantee with an estimate of the total processing costs prior to entering into the review of the request. If Grantor and Grantee fail to agree on the amount of said costs to be incurred by Grantor and reimbursed by Grantee, Grantee shall withdraw its request for Franchise modification. Such costs shall be paid by the Grantee prior to final consideration of the request by the Grantor. 12 000049 Ordinance No. Page 13 5.06.700 Franchise Applications And Renewal 5.06.710 Filing of Applications. Any Person desiring an initial Franchise for a Cable System shall file an application with the City. A reasonable nonrefundable initial application fee established by the City shall accompany the initial Franchise application to cover all validly documented reasonable costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such validly documented reasonable costs exceed the application fee, the selected applicant(s) shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs. 5.06.720 Applications - Contents. An application for an initial Franchise for a Cable System shall contain, where applicable: (a) A statement as to the proposed Franchise and Service Area; (b) A resume of prior history of the applicant, including the expertise of applicant in the Cable System field; (c) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder having a five percent (50) or greater interest, if a corporation; (d) A list of officers, directors and managing employees of the applicant, together with a description of the background of each such Person; (e) The names and addresses of any parent or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant; (f) A current financial statement of the applicant verified by a Certified Public Accountant audit or otherwise 13 000050 Ordinance No. Page 14 certified to be true, complete and correct to the reasonable satisfaction of the City; (g) A proposed construction and service schedule; (h) Any reasonable relevant additional information that the City deems applicable. 5.06.730 Consideration of Initial Applications. (a) Upon receipt of any application for an initial Franchise, the City Manager or a delegate shall prepare a report and make recommendations respecting such application to the Council. (b) A public hearing shall be set prior to any initial Franchise grant, at a time and date approved by the Council. Within sixty (60) days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the initial Franchise(s) should be granted, and, if granted, subject to what conditions. The Council may grant one (1) or more Franchises, or may decline to grant any Franchise. 5.06.740 Franchise Renewal. Franchise renewals shall be in accordance with applicable law and regulation. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the Franchise. 5.06.800 Minimum Consumer Protection and Service Standards 5.06.810 Operational Standards. (a) Except as otherwise provided in the Franchise Agreement, Grantee shall meet or exceed the following Consumer protection and service standards under Normal Operating Conditions: (1) Sufficient toll -free telephone line capacity during normal business hours to assure that telephone answer time by a customer service representative, including wait time, shall not exceed thirty (30) seconds; and callers needing to be transferred shall not be required to wait more than thirty (30) seconds before being connected to a service representative. Under Normal Operating Conditions, a caller shall 14 000051 Ordinance No. Page 15 receive a busy signal less than three percent (30) of the time. (2) Emergency toll free telephone line capacity on a twenty -four (24) hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine and calls received after normal business hours by such service or automated response system must be responded to by a trained company representative by the next business day. During periods when an answering device, including, but not limited to voice -mail, is used, Grantee shall provide personnel who shall contact the answering device or machine, at a minimum, every five (5) hours to check on requests for service or complaints. (3) A conveniently located local business and service and /or payment office open during normal business hours where Grantee provides adequate staffing to accept Subscriber payments and the return or exchange of Subscriber equipment. Normal business hours shall include some evening hours, at least one (1) night per week, and /or some weekend hours. The Grantee may petition the Grantor to reduce its business hours if the extended hours are not justified by Subscriber demand, and Grantor may not unreasonably deny the petition. (4) An emergency System maintenance and repair staff, capable of responding to and repairing major System malfunction on a twenty -four (24) hour per day basis. (5) An installation staff, capable of installing service to any Subscriber requiring a Standard Installation within seven (7) days after receipt of a request, or such longer time as is requested by the Subscriber, in all areas where trunk and feeder cable have been activated. "Standard Installations" shall be those that are located up to one hundred fifty (150) feet from the existing distribution System, unless otherwise defined in any Franchise Agreement. However, should such an installation require trenching, said installation shall be completed within thirty (30) calendar days after receipt of a request, provided that Grantee is able to obtain all necessary easements and permits. 15 000052 Ordinance No. Page 16 (6) Grantee shall schedule, within a specified four (4) hour time period during normal business hours, all appointments with Subscribers for installation of service, service calls and other activities at the Subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the express convenience of the customer. Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a Grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer shall be contacted and the appointment rescheduled, as necessary, at a time which is mutually agreeable to the Grantee and the customer. (b) Under Normal Operating Conditions, the standards of paragraphs (a)(1)- (a)(2) above shall be met not less than ninety percent (900) of the time measured on a quarterly basis. For the purposes of this Section, "quarterly" shall mean any consecutive three (3) calendar month period, and is not necessarily coincident with a calendar quarter. The standards of paragraphs (a) (4) -(6) above shall be met not less than ninety -five percent (950) of the time measured on a quarterly basis. (c) Grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. 5.06.820 Service Standards. (a) Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the Cable System, preferably between midnight and six A.M. (6:00 A.M.) local time. (b) The Grantee shall maintain a repair force of technicians normally capable of responding to Subscriber requests for service within the following time frames: (1) For a System outage: Within two (2) hours, including weekends, of receiving Subscriber calls or requests for service which by number identify a system outage of sound or picture of one (1) or more channels, 16 000053 Ordinance No. Page 17 affecting at least ten percent (loo) of the Subscribers of the System. (2) For an isolated outage: Within twenty -four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one (1) or more channels that affects five (5) or more Subscribers. On weekends, an outage affecting fewer than five (5) Subscribers shall result in a service call no later than the next business day. (3) For inferior signal quality: Within two (2) business days of receiving a request for service identifying a problem concerning picture or sound quality. (c) Grantee shall be deemed to have responded to a request for service under the provisions of this Section when a technician arrives at the service location and begins work on the problem. In the case of a Subscriber not being home when the technician arrives, the technician shall leave written notification of arrival. (d) Grantee shall not charge for the repair or replacement of defective or malfunctioning equipment provided by Grantee to Subscribers, unless the defect was caused by the Subscriber, or the equipment owned by the Subscriber requires repair or replacement. (e) Unless excused, Grantee shall determine the nature of the problem resulting in a request for service within two (2) business days of beginning work and resolve all Cable System related problems within five (5) business days unless technically infeasible. 5.06.830 Billing and Information Standards. (a) Subscriber bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (b) In case of a billing dispute, the Grantee shall respond to a written complaint from a Subscriber within thirty (30) days. (c) Grantee shall provide pro rata credits or refunds to requesting Subscribers whose service has been interrupted 17 000054 Ordinance No. Page 18 if the interruption was not caused by the Subscriber(s). The minimum credit shall equal the charge for one (1) day of Cable Service for each calendar day with outages. (d) Credits or refunds shall automatically be provided by Grantee on a pro rata basis to any Subscriber(s) affected by interruption(s) of service for more than three (3) hours due to actions or outages under the control of the Grantee, exclusive of scheduled repairs, maintenance or Franchise - required construction that Grantee has provided advance written notice of to Subscribers. In cases where advance written notice is provided to Subscribers, the time period detailed in said notice shall not exceed six (6) hours in any twenty -four (24) hour period. In cases where said notice has been given to Subscribers and the service interruption exceeds the period detailed in said notice, the provisions of this Section shall apply. (e) In the event Grantee has improperly or inadvertently disconnected Cable Services to a Subscriber, Grantee shall provide for restoration without charge to Subscriber as soon as possible, but no later than within two (2) days of discovery of disconnection. Grantee shall credit or provide refunds to any Subscriber improperly or inadvertently disconnected from receiving Cable Services for the period of time without Cable Service. (f) All credits or refunds for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted. For Subscribers terminating service, refunds shall be issued promptly, but no later than thirty (30) days after the return of any Grantee - supplied equipment. (g) Grantee shall provide written information on each of the following areas (i) at the time of the installation of service, and (ii) at any time upon request: (1) Products and services offered; and (2) Prices and options for programming services and conditions of subscription to programming and other services; and (3) Installation and service maintenance policies; and (4) Instructions on how to use the Cable Service; and (5) Channel positions of programming carried on the System; and (6) Billing and complaint procedures, including the address and telephone number of the Grantor office designated for dealing with cable - related issues. 18 000055 Ordinance No. Page 19 (h) Subscribers shall be notified of any changes in rates, programming services or channel positions as soon as possible in writing and in accordance with State and Federal Law. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the information required in paragraph 5.06.8- 030(g) above. 5.06.840 Verification of Compliance with Standards. (a) Upon ten (10) days prior written notice, Grantee shall respond to a request for information made by Grantor regarding Grantee's compliance with any or all of the standards required in Sections 5.06.810, 5.06.820 and 5.06.830 above. Grantee shall provide sufficient documentation to permit Grantor to verify Grantee's compliance. (b) A repeated and verifiable pattern of non- compliance with the consumer protection standards of Sections 5.06.810 through 5.06.830 above, after Grantee's receipt of due notice and not less than a thirty (30) day opportunity to cure, may be deemed a material breach of the Franchise Agreement. (c) The Grantor, pursuant to Section 5.06.810(c) of this Chapter, may require Grantee to acquire equipment to determine compliance with the telephone answering standards of this Section 5.06.800. Should Grantee have its own telephone equipment which can report on telephone line(s) usage, the Grantee, upon written request from the Grantor, shall submit such report from its own system in order to verify compliance with the telephone answering standards of this Section 5.06.800. (d) Grantee shall take necessary steps to ensure that adequate telephone lines and /or staffing are available to permit Grantee to satisfy its obligations under this Chapter and the Franchise. Consideration shall be given for periods of promotional activities or outages. The monthly billing period shall be considered as a normal, daily activity for purposes of determining the availability of adequate telephone lines and /or staffing. 19 000056 Ordinance No. Page 20 5.06.850 Subscriber Complaints and Disputes. (a) Grantee shall establish written procedures for receiving, acting upon and resolving Subscriber complaints without intervention by the Grantor. The written procedures shall prescribe the manner in which a Subscriber may submit a complaint either orally or in writing specifying the Subscriber's grounds for dissatisfaction. Grantee shall file a copy of these procedures with Grantor. The written procedures shall include a requirement that Grantee respond to any written complaint from a Subscriber within thirty (30) days of receipt. (b) Upon prior written request, Grantor shall have the right to review Grantee's response to any Subscriber complaints in order to determine Grantee's compliance with the Franchise requirements, subject to the Subscriber's right to privacy. (c) Subject to applicable law including, but not limited to, Section 5.06.1830(a) herein, it shall be the right of all Subscribers to continue receiving Cable Service insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to rebuild, modify, or sell the System, or the Grantor gives notice of intent to terminate or not to renew the Franchise, the Grantee shall act so as to ensure that all Subscribers receive Cable Service so long as the Franchise remains in force. (d) In the event of a change of control of Grantee, or in the event a new operator acquires the System, the original Grantee shall cooperate with the Grantor, new Grantee or operator in maintaining continuity of service to all Subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the System. (e) Grantee response to Subscriber complaints, as well as complaints made by Subscribers to Grantor and provided by Grantor to Grantee, shall be initiated within one (1) business day of receipt by Grantor. The resolution of Subscriber complaints shall be effected by Grantee not later than five (5) business days after receipt of the complaint, or a longer period if such complaint cannot reasonably be resolved within five (5) business days. Should a Grantee supervisor not be available when requested by a Subscriber, a supervisor shall respond to the Subscriber's complaint at the earliest possible time, and in no event later than the end of the next business day. For complaints received by 20 000057 Ordinance No. Page 21 Grantor and provided by Grantor to Grantee, Grantee shall notify Grantor of Grantee's progress in responding to, and resolving, said complaints. 5.06.860 Other Requirements. (a) In the event Grantee fails to operate the System for seven (7) consecutive days other than for reasons beyond the control of Grantee, without prior approval or subsequent excuse of the Grantor, the Grantor may, at its sole option, operate the System or designate an operator until such time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the Grantor should fulfill this obligation for the Grantee, then during such period as the Grantor fulfills such obligation, the Grantor shall be entitled to collect all revenues from the System. (b) All officers, agents or employees of Grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto Subscribers' premises shall carry a photo- identification card in a form approved by Grantor. Grantee shall account for all identification cards at all times. Every vehicle of the Grantee or its major subcontractors shall be clearly identified as working for Grantee. (c) Additional service standards and standards governing Consumer protection and response by Grantee to Subscriber complaints not otherwise provided for in this Chapter may be established in the Franchise Agreement or by separate ordinance as permitted by Federal law. If Grantor establishes such additional service standards which exceed any standards established by the Federal Communications Commission, Grantee may be permitted by Federal law or regulation to recover the incremental cost associated with meeting the more stringent standard (i.e., the incremental cost differential between meeting the existing standard and that of the newly established standard) . A verified and continuing pattern of repeated and substantial noncompliance may be deemed a material breach of the Franchise, provided that Grantee shall receive due process, including prior written notification and a reasonable opportunity to cure, prior to any sanction being imposed. 5.06.900 Franchise Fee and Financial Requirements 21 ()00058 Ordinance No. Page 22 5.06.910 Franchise Fee. (a) Following the issuance and acceptance of the Franchise, the Grantee shall pay to the Grantor a Franchise Fee on Gross Annual Cable Service Revenues in the amount and at the times set forth in the Franchise Agreement. (b) The Grantor, on an annual basis, shall be furnished a statement within one hundred twenty (120) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer or authorized financial representative of the Grantee, reflecting the total amounts of gross revenues and all payments, deductions and computations for the period covered by the payment. Upon thirty (30) days prior written notice, Grantor shall have the right to conduct an independent financial audit of Grantee's Gross Annual Cable Service Revenue and Franchise Fee records, in accordance with Generally Accepted Accounting Procedures (GAAP) , and if such audit indicates a Franchise Fee underpayment, the Grantee shall assume all reasonable documented costs of such audit. (c) Except as otherwise provided by law, no acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a Franchise Fee under this Chapter or for the performance of any other obligation of the Grantee. (d) In the event that any Franchise Fee payment or payment of any adjustment to any Franchise Fee is not made on or before the dates specified in the Franchise Agreement, unless otherwise excused, Grantee shall pay: (1) an interest charge, computed from such due date, at an annual rate of eight percent (80); and (2) if the payment is late by thirty (30) days or more, a sum of money equal to five percent (50) of the amount due in order to defray those additional expenses and costs incurred by the Grantor due to Grantee's delinquent payment. (e) Franchise fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement. 22 000059 Ordinance No. Page 23 5.06.920 Security. (a) Grantor may require Grantee to provide security, in an amount and form established in the Franchise Agreement. The amount of the security shall be established based on the extent of the Grantee's obligations under the terms of the Franchise. (b) The security shall be available to Grantor to satisfy all claims, liens and /or taxes due Grantor from Grantee which arise by reason of construction, operation, or maintenance of the System, and to satisfy any actual or liquidated damages arising out of a material breach of the Franchise Agreement, subject to the procedures and amounts designated in the Franchise Agreement. (c) If the security is drawn upon by Grantor in accordance with the procedures established in this Chapter and the Franchise Agreement, Grantee shall cause the security to be replenished to the original amount no later than thirty (30) days after receiving written confirmation from the issuer where such security is maintained that Grantor has made a draw against the security. Failure to replenish the security shall be deemed a material breach of the Franchise. 5.06.1000 Construction Requirements 5.06.1010 System Construction. (a) Grantee shall not construct any Cable System facilities until Grantee has secured the necessary permits from Grantor, or other responsible public agencies. The Grantee shall be subject to all permit and bonding requirements applicable to contractors working within the Public Rights -of -Way. No provision of this Chapter or the Franchise Agreement shall be deemed a waiver of the obligation of a Grantee to pay Grantor for the issuance of a permit. (b) In those areas of the City where transmission lines or distribution facilities of all public utilities providing telephone and electric power service are underground, the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground. (c) In those areas of the City where the Grantee's cables are located on the above - ground transmission or distribution facilities of the public and /or municipal 23 000060 Ordinance No. Page 24 utility providing telephone or electric power service, and in the event that the facilities of both the telephone and electric power utilities subsequently are placed underground, then the Grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above - ground enclosures, unless otherwise provided in the Franchise Agreement. (d) Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as "Structures "), or the construction of any additional Structures, in, upon, along, across, under or over the Streets, alleys and Public Ways shall be made under the direction of Public Works Director or a designee, who shall, if the proposed change, extension or construction conforms to the provisions hereof, issue written permits therefor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the California regulatory body having jurisdiction thereof. (1) All transmission and distribution structures, lines and equipment erected by the Grantee shall be located so as not to interfere with the proper use of the Public Rights -of -Way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said Public Rights -of -Way, and not to materially interfere with existing public and municipal utility installations. (2) In the event that any property or improvement of the Grantor in the Public Rights -of -Way is disturbed or damaged by the Grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the rights granted to the Grantee pursuant to this Chapter and the Franchise Agreement, the Grantee shall promptly, at the Grantee's sole cost and expense, restore to the Grantor's satisfaction said property or improvement which was so disturbed or damaged. If such property or improvement shall within two (2) years (or in the case of street improvement, until the street is resurfaced if resurfaced prior to the expiration of the two (2) years) of the date the restoration was completed, become uneven, unsettled or otherwise require additional restorative work, repair or replacement because of the initial disturbance or damage to the 24 000X361 Ordinance No. Page 25 property by the Grantee, then the Grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from the Grantor and at the Grantee's sole cost and expense, restore to the Grantor's satisfaction said property or improvement which was disturbed or damaged. Any such restoration by the Grantee shall be made in accordance with such materials and specifications as may, from time to time, be established by the Grantor. (3) Prior to commencing any work on the System in the Public Rights -of -Way, the Grantee shall obtain any and all permits, licenses and authorizations lawfully required for such work. If emergency work on the System in the Public Right -of -Way is required, the Grantee shall with all due diligence, seek to obtain any and all such required permits, licenses and authorizations within three (3) working days after commencing such emergency work. Prior to performing any work in the Public Right -of -Way, Grantee shall give appropriate notice to the "Underground Service Alert" ( "USA "), or any similar type service provider as designated by the Grantor. (4) There shall be no unreasonable or unnecessary obstruction of the Public Rights -of -Way by the Grantee in connection with any of the work provided for herein. The Grantee shall maintain any barriers, signs and warning signals during any work performed on or about the Public Rights -of -Way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and property. (5) If the Grantor lawfully elects to alter or change the grade or location of any Public Right -of- Way, the Grantee shall, upon reasonable notice by the Grantor, and in a timely manner, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at it own expense provided that Grantee shall be entitled to share in any Grantor - provided funds or reimbursements provided to utilities or other users of the Public Rights -of -Way for such location. (6) The Grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such poles, conduits or other fixtures placed in any street 25 000062 Ordinance No. Page 26 shall be so placed as to comply with all ordinances of the Grantor. (7) In accordance with applicable law, the Grantee or any utility user of the Public Rights -of -Way may be required by the Grantor to permit joint use of its poles and /or conduit located in the Public Rights - of -Way, insofar as such joint use may be reasonably practicable and upon payment of a reasonable rental fee for such usage. In the absence of agreement regarding such joint use, each party shall be entitled to exercise any rights and defenses provided by applicable law. (8) The Grantee, on request of any Person holding a moving permit issued by the Grantor, shall temporarily raise or lower its wires or fixtures to permit the moving of buildings. The expense of such temporary raising or lowering of wires or fixtures shall be paid by the Person requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than five (5) business days prior written notice to arrange for the temporary wire or equipment changes. (9) Subject to provisions of the Moorpark Municipal Code, the Grantee shall have the authority to trim any trees or other natural growth overhanging the Public Rights -of -Way so as to prevent the branches of such trees or other natural growth from coming in contact with the Grantee's wires, cables and other equipment. The Grantor may require all trimming of trees and natural growth to be done under its supervision and direction, at the expense of the Grantee. (10) Grantee shall be subject to any and all requirements established by the Grantor with regard to the placement and screening of Grantee's facilities and equipment located in the Public Rights -of -Way. Such requirements may include, but not be limited to, use of landscaping to screen pedestals and cabinets and requiring that construction be flush with the natural grade of the surrounding area. 5.06.1100 Standards 26 000063 Ordinance No. Page 27 5.06.1110 Applicable Standards. (a) The Grantee shall construct, install, operate and maintain its Cable System in a manner consistent with all applicable laws, regulations, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its Franchise Agreement. In addition, the Grantee shall provide to the Grantor, upon written request, a written report of the results of the Grantee's periodic proof of performance tests conducted pursuant to FCC standards and guidelines. (b) Should the FCC no longer require proof of performance tests, the Grantee shall make and submit such proof of performance tests and reports in response to a written request from the Grantor. Such report shall be submitted to the Grantor within thirty (30) days of issuance of the Grantor request. 5.06.1120 Non - Compliance with Standards. Repeated and verified failure to maintain specified technical standards shall constitute a material breach of the Franchise. 5.06.1130 Costs of Technical Assistance. If the Grantor determines through the use of an independent third party that Grantee's Cable System does not comply with any material Franchise - imposed technical requirements, the Grantee shall pay the reasonable costs incurred by the Grantor for obtaining any technical assistance deemed necessary by the Grantor to determine said compliance. Any such payment by Grantee shall not be credited against any Franchise Fees due to the Grantor. 5.06.1200 Indemnification and Insurance Requirements 5.06.1210 Hold Harmless. Grantee shall indemnify, defend and hold Grantor, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, to the extent provided in the Franchise Agreement. 5.06.1220 Insurance (a) On or before commencement of Franchise operations, the Grantee shall furnish to Grantor Certificates of 27 00 O64 Ordinance No. Page 28 Insurance for liability, Workers' Compensation and property insurance from appropriately qualified insurance companies, which shall be "admitted" in the State of California. The Certificates of Insurance shall provide that the insurance is in force and will not be cancelled or modified without thirty (30) days prior written notice to Grantor. The Certificates of Insurance shall be in a form satisfactory to Grantor. The Grantee shall maintain at its cost throughout the term of the Franchise, the insurance required herein and in any Franchise Agreement. (b) The policy of liability insurance shall: (1) Name Grantor, its officers, agents and employees as additional insured in a form satisfactory to the Grantor; (2) Indemnify all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this Chapter by providing coverage therefore, including but not limited to: (i) Negligent acts or omissions of Grantee, and its agents, servants and employees, committed in the conduct of Franchise operations, and /or (ii) Use of motor vehicles; (3) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the Franchise Agreement. (c) The policy of Workers' Compensation Insurance shall comply with the laws of the State of California. (d) The policy of property insurance shall provide fire insurance with extended coverage on the Franchise property used by Grantee in the conduct of Franchise operations in an amount adequate to enable Grantee to resume Franchise operations following the occurrence of any risk covered by this insurance. (e) The Certificates of Insurance shall indicate the following information: (1) The policy number; (2) The date upon which the policy will become effective and the date upon which it will expire; ©00065 28 Ordinance No. Page 29 (3) The names of additional insured requi (4) The subject of (5) The type of insurance; and (6) The amount or the insurance. the primary insureds and any red by the Franchise Agreement; the insurance; coverage provided by the limit of coverage provided by If the Certificates of Insurance do not provide all of the above information, Grantor reserves the right to inspect the relevant insurance policies. (f) The commencement of Franchise operations shall not begin until Grantee has complied with the aforementioned provisions of this Section. (g) In the event Grantee fails to maintain any of the above - described policies in full force and effect, Grantor shall, upon forty -eight (48) hours notice to Grantee, have the right to procure the required insurance and recover the cost thereof from Grantee. Grantor shall also have the right to suspend the Franchise during any period that Grantee fails to maintain said policies in full force and effect. 5.06.1300 Records and Reports 5.06.1310 Records Required. (a) Grantee shall at all times maintain: (1) A written or computer- stored record of all service calls and interruptions or degradation of service experienced for the preceding two (2) years, provided that such complaints result in or require a service call, subject to the Subscriber's right of privacy. (2) A full and complete set of plans and record drawings showing the locations of the Cable System installed or in use in the City, exclusive of Subscriber service drops and equipment provided in Subscriber's homes. (3) If requested by Grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the Grantor within thirty (30) days following any written 29 000066 Ordinance No. Page 30 request by Grantor, in a form reasonably acceptable to the Grantor. (4) If requested by Grantor, a complaint record which shall contain a semi - annual (through June 30th and December 31St) breakdown indicating the total number of complaints received for the preceding reporting period, and shall indicate the classifications of complaints as follows: construction, billing, customer relations /service and miscellaneous. (5) A full and complete record of rates for programming services, equipment, installations and other Subscriber charges. This information shall include, but not be limited to, rates for the Basic Service Tier, Tiers of service beyond the Basic Tier, premium service, pay - per -view services, late fees, additional outlets, converters, remote controls and any charges for installation or service at the Subscriber premises. (b) The Grantor may impose requests for additional information, records and documents from Grantee, provided they reasonably relate to the scope of the City's rights under this Chapter or the Grantee's Franchise Agreement. (c) Upon reasonable notice, and during normal business hours, Grantee shall permit examination by any duly authorized representative of the Grantor of all: (1) Franchise property and facilities, together with any appurtenant property and facilities of Grantee situated within the Service Area; and (2) all records relating to the Franchise, provided they are necessary to enable the Grantor to carry out its regulatory responsibilities under this Chapter or the Franchise Agreement. Grantee shall have the right to be present at any such examination. 5.06.1320 Reports. (a) Upon Written request from the Grantor, Grantee shall submit a written report to Grantor with respect to the preceding calendar year in a form approved by Grantor, including, but not limited to, the following information: (1) A summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in development of the Cable System, 30 00000T Ordinance No. Page 31 including but not limited to, services begun or discontinued during the reporting year; (2) A list of Grantee's officers and members of its board of directors; (3) A list of stockholders or other equity investors holding ten percent (100) or more of the voting interest in Grantee; (4) An indication of any residences in Grantee's Service Area where service is not available, and a schedule for providing service; (5) Information as to (i) the number of homes passed; (ii) total Subscribers; and (iii)the number of Basic Cable Service and subscribers to other service tiers. (6) A full and complete set of maps showing the underground locations of the Cable System installed or in use in the City, exclusive of Subscriber service drops and equipment provided in Subscriber's homes. It is the intent of this Section that the Grantor has a complete set of "conduit" maps for the underground construction areas, and access to reviewing "as- built" maps for all Cable System construction. After the initial submission of drawings for underground areas, the Grantee may satisfy the provisions of this Section by providing updated portions of those sections of the drawings that have changed. (7) Any other information relevant to Franchise regulation which the Grantor shall reasonably request, and which is relevant to its regulatory responsibilities. (b) The Grantor may impose requests for additional reports, information, records and documents from Grantee, provided they reasonably relate to the scope of the City's rights under this Chapter or the Grantee's Franchise Agreement. (c) Upon request, Grantee shall submit to Grantor copies of all pleadings, applications and reports submitted by Grantee to any Federal, State or local court, regulatory 31 000068 Ordinance No. Page 32 agency, or other governmental body as well as copies of all decisions issued in response to such pleadings, applications and reports, which are non - routine in nature and which will materially affect its Cable System within the Franchise Area. (d) Information otherwise confidential by law and so designated by Grantee, which is submitted to Grantor, shall be retained in confidence by Grantor and its authorized agents and shall not be made available for public inspection. Notwithstanding the foregoing, Grantee shall have no obligation to provide copies of documents to Grantor which contain trade secrets of Grantee or which are otherwise of a confidential or proprietary nature to Grantee unless it receives satisfactory assurances from Grantor, as expressed in a written confidentiality agreement, that such information can and will be held in strictest confidence and protected by the Grantor. To the extent possible, Grantee may provide Grantor with summaries of any required documents or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on Grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the Grantor. (e) If Grantee is publicly held, a copy of each Grantee's annual and other periodic reports and those of its parent, shall be submitted to Grantor within forty -five (45) days of the publication of such reports. (f) Upon Grantor's request, but no more than annually, Grantee shall submit to Grantor a privacy report indicating the degree of compliance with the provisions contained in Section 5.06.1830(c), (d) and (f) herein and all steps taken to assure that the privacy rights of individuals have been protected. (g) All reports required under this Chapter, except those required by law to be kept confidential, shall be available for public inspection in the Grantor's offices during normal business hours. (h) All reports and records required to be delivered to Grantor under this Chapter shall be furnished at the sole expense of Grantee, except as otherwise provided in the Franchise Agreement. (i) The willful refusal, failure, or willful negligence of Grantee to file any of the reports required as and when due under this Chapter, may be deemed a material breach of the Franchise Agreement if such reports are not 32 000069 Ordinance No. Page 33 provided to Grantor within thirty (30) days after written request therefore, and may subject the Grantee to all remedies, legal or equitable, which are available to Grantor under this Chapter or the Franchise Agreement. (j) Any materially false or misleading statement or representation made knowingly and willfully by the Grantee in any report required under this Chapter or under the Franchise Agreement may be deemed a material breach of the Franchise and may subject Grantee to all remedies, legal or equitable, which are available to Grantor. 5.06.1330 Opinion Survey. Upon written request of the Grantor, but not more than once every two (2) years, the Grantee shall conduct a Subscriber satisfaction survey pertaining to quality of service, which may be transmitted to Subscribers in Grantee's invoice for Cable Services. The survey shall be designed to be returned to the Grantor and shall be subject to Grantor's prior review and approval, said approval to be in writing. The cost of such survey shall be borne by the Grantee, said costs to be agreed to by Grantor and Grantee prior to transmittal to Subscribers. 5.06.1400 Review Of System Performance 5.06.1410 Biannual Review. (a) Every two (2) years throughout the term of the Franchise, if reasonably requested by prior written notice from the Grantor, Grantor and Grantee shall meet to review System performance and quality of service. The various reports required pursuant to this Chapter, results of technical performance tests, the record of Subscriber complaints and Grantee's response to those complaints, and the information acquired in any Subscriber surveys, shall be utilized as the basis for review. In addition, any Subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty (30) days after the conclusion of such a review meeting, Grantor may issue findings with respect to the Cable System's Franchise compliance. Within thirty (30) days of the issuance of such findings, the Grantee shall provide the Grantor with Grantee's written response to the findings. (b) If Grantor determines that Grantee is not in compliance with the requirements of this Chapter or the Grantee's Franchise Agreement, Grantor shall provide 33 000070 Ordinance No. Page 34 Grantee, in the form of written findings, the specific details of each alleged noncompliance. Grantor may then direct Grantee to correct the areas of noncompliance within a reasonable period of time not to exceed thirty days. Failure of the Grantee, after due notice, to: (1) correct the area(s) of noncompliance within the period specified therefore; or (2) commence compliance within such period and diligently achieve compliance thereafter; or (3) demonstrate that the allegations of noncompliance are incorrect; shall be considered a material breach of the Franchise, and Grantor may exercise any remedy within the scope of this Chapter and the Franchise Agreement considered appropriate under the circumstances. 5.06.1500 Franchise Violations 5.06.1510 Remedies for Violations. If Grantee fails to perform in a timely manner any material obligation required by this Chapter or a Franchise granted hereunder, following reasonable written notice from the Grantor and a not less than thirty (30) day opportunity to cure, or diligently commence a cure, such nonperformance in accordance with the provisions of Section 5.06.1520 of this Chapter and the Franchise, Grantor may at its option and in its sole discretion: (a) Cure the violation and recover the actual cost thereof from the security fund established in the Franchise Agreement if such violation is not cured within thirty (30) days after written notice to the Grantee of Grantor's intention to cure and draw upon the security fund, unless Grantor has provided Grantee with additional time to effectuate a cure, the granting of additional time not to be unreasonably withheld; (b) Assess against Grantee liquidated damages in an amount set forth in the Franchise Agreement for any such violations(s) if such violation is not cured, or if Grantee has not commenced a cure, on a schedule reasonably acceptable to Grantor, within thirty (30) days after written notice to the Grantee of Grantor's intention to assess 34 000071 Ordinance No. Page 35 liquidated damages. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by Grantor of any other right or remedy it may have under the Franchise or applicable law, including without limitation, its right to recover from Grantee such additional damages, losses, costs and expenses, including actual attorney's fees, as may have been suffered or incurred by Grantor by reason of or arising out of such material breach of the Franchise. 5.06.1520 Procedure for Remedying Franchise Violations. Prior to imposing any remedy or other sanction against Grantee specified in this Chapter, Grantor shall give Grantee notice and opportunity to be heard on the matter, in accordance with the following procedures: (a) Grantor shall first notify Grantee of the alleged violation in writing by personal delivery or registered or certified mail, and demand correction, or evidence of non - violation, within a reasonable time, which shall not be less than thirty (30) calendar days. If Grantee fails to: (1) correct the alleged violation within the time prescribed; or (2) commence correction of the alleged violation within the time prescribed and diligently remedy such alleged violation thereafter; or (3) provide evidence that there is no violation, the Grantor shall then give, by personal delivery or registered or certified mail written notice of not less than thirty (30) days of a hearing to be held before the Council. Said notice shall set forth in detail each of the violations alleged to have occurred. (b) Subsequent to the hearing, the Council shall hear and consider all other relevant evidence, and thereafter render findings and its decision. (c) If the Council finds that (1) the Grantee has corrected the alleged violation; or (2) the Grantee has diligently commenced correction of such alleged violation after notice thereof and is diligently proceeding to fully remedy such alleged violation; or 35 000072 Ordinance No. Page 36 (3) no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. (d) If the Council finds that material violations exist and that Grantee: (1) has not corrected the same in a satisfactory manner; or (2) has not diligently commenced correction of such violation after notice thereof and is not diligently proceeding to fully remedy such violation; then the Council may impose one (1) or more of the remedies provided in this Chapter and the Franchise Agreement as it, in its discretion, deems appropriate under the circumstances. 5.06.1530 Grantor's Power to Revoke. (a) Grantor may revoke any Franchise granted pursuant to this Chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by Grantee and a material breach under the Franchise: (1) If Grantee fails to perform any of its material obligations under this Chapter or the Franchise Agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure; (2) If Grantee fails to provide or maintain in full force and effect the insurance coverage or security fund as required in the Franchise Agreement; (3) If Grantee violates any order or ruling of any regulatory body having jurisdiction over the Grantee relative to the Grantee's Franchise, unless such order or ruling is being contested by Grantee in good faith in an appropriate proceeding; (4) If Grantee knowingly practices any material fraud or deceit upon Grantor; (5) If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt. 36 000073 Ordinance No. Page 37 (b) After completing the procedures set forth in Section 5.06.1520 above, the Grantor may make a formal request before the Council that the Grantee's Franchise be revoked. The Council shall cause to be served on the Grantee written notice of its intent to consider revoking Grantee's Franchise. Such notice shall be served on Grantee at least thirty (30) days prior to the date of the hearing on the issue. The notice shall contain the time and place of the hearing and shall be published at least once in a newspaper of general circulation within the Franchise area ten (10) days prior to the hearing date. (c) The Council shall hear any Person(s) interested in the revocation and within ninety (90) days after the date of the hearing shall make its determination whether the Grantee has committed a material breach of the Franchise. (d) If the Grantor determines that the Grantee has committed a material breach, then the Grantor may: (1) Declare the Franchise revoked and any security fund and bonds forfeited; or (2) If the material breach is curable by the Grantee, direct the Grantee to take appropriate remedial action within the time and manner and under the terms and conditions reasonably specified by the Grantor. The termination and forfeiture of the Grantee's Franchise shall in no way affect any right of Grantor to pursue any remedy under the Franchise or any provision of law. 5.06.1540 Appeal of Finding of Revocation. The Grantee may appeal a finding of revocation made pursuant to Section 5.06.1530 to an appropriate court of jurisdiction. Any such appeal must be taken by the Grantee within ninety (90) days of the issuance of the Grantor's decision to revoke the Franchise. 5.06.1600 Force Majeure; Grantee's Inability to Perform In the event Grantee's performance of any of the terms, conditions or obligations required by this Chapter or a Franchise granted hereunder is prevented by a cause or event not within Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform 37 0 ®0® jt Ordinance No. Page 38 shall not relieve a Grantee from the obligations imposed by Section 5.06.830(c) pertaining to refunds and credits for interruptions in service. For the purpose of this Section, causes or events not within the control of Grantee shall include without limitation acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the Grantee to perform or failure of the Grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of Grantee, or the failure of the Grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the Cable System where the Grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment. 5.06.1700 Abandonment or Removal of Franchise Property 5.06.1710 Abandonment or Removal. (a) If the Grantee discontinues the use of any of its property within the Public Rights -of -Way for a continuous period of twelve (12) months, such property shall be deemed to have been abandoned by Grantee. Any part of the Cable System that is parallel or redundant to other parts of the System and is intended for use only when needed as a backup for the System or a part thereof, shall not be deemed to have been abandoned because of its lack of use. (b) Grantor, upon such reasonable terms as Grantor may lawfully impose, may give Grantee permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this Chapter, the Grantee shall remove all abandoned above - ground facilities and equipment upon receipt of written notice from Grantor and shall restore to Grantor's satisfaction any affected Public Right -of -Way. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all Public Rights -of -Way in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the Public Rights -of -Way, cables, wires, attachments and poles prior to and after removal. 38 00001,75 Ordinance No. Page 39 The liability, indemnity and insurance provisions of this Chapter and the security fund as provided herein shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section 5.06.1710. (c) Upon the approved abandonment of any Franchise property, the Grantee, if required by the Grantor, shall submit to the Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor the ownership of the abandoned Franchise property. (d) At the expiration, without renewal or extension, of the term for which the Franchise is granted, or upon its revocation, as provided herein, the Grantor shall have the right to require Grantee to remove, at its own expense, all above - ground portions of the Cable System from all streets and public ways within the Service Area within a reasonable period of time, which shall not be less than one hundred eighty (180) days. (e) Notwithstanding anything to the contrary set forth in this Chapter, the Grantee may, with the approval of the City, abandon any underground Franchise property in place so long as it does not materially interfere with the use of the Public Rights -of -Way in which such property is located or with the use thereof by any public utility or other Franchise holder. 5.06.1720 Restoration by Grantor; Reimbursement of Costs Upon reasonable written notice and upon the failure of the Grantee to commence, pursue or complete any work to be done in any Public Right -of -Way required by law or by the provisions of this Chapter or the Franchise Agreement, within the time prescribed and to the reasonable satisfaction of the Grantor, the Grantor may cause the work to be commenced and /or completed. The Grantor shall provide to the Grantee an itemized work order setting forth in detail the exact nature of the work completed and the supplies used in such work. The Grantee shall pay to the Grantor the reasonable costs for such work no later than thirty (30) days after receipt of the itemized work order. 5.06.1730 Extended Operation and Continuity of Services. Upon expiration or revocation of the Franchise, the Grantor shall have the discretion to permit Grantee to continue to operate the Cable System for an extended period of time. Grantee shall continue to operate the System under the terms and 39 0000176 Ordinance No. Page 40 conditions of this Chapter as of the effective date of the Franchise and the Franchise, as existed immediately prior to said expiration or revocation, and to provide the regular Subscriber service and any and all of the services that may be provided at that time. It shall be the right of all Subscribers to continue to receive all available services provided that financial and other obligations to Grantee are honored. The Grantee shall use reasonable efforts to provide continuous, uninterrupted service to its Subscribers, including operation of the System during transition periods following Franchise expiration or termination. 5.06.1740 Receivership and Foreclosure. (a) At the option of the Grantor and subject to applicable law, a Franchise granted hereunder may be revoked one hundred twenty (120) days after appointment of a receiver(s) or trustee(s) to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: (1) the receivership or trusteeship shall have been vacated within said one hundred twenty (120) days; or (2) such receivers or trustees within said one hundred twenty (120) days shall have remedied all the defaults under the Franchise or provided a plan for the remedy of such defaults which is satisfactory to the Grantor; or (3) such receivers or trustees shall, within said one hundred twenty (120) days, have executed an agreement duly approved by the court having jurisdiction whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise. (b) In the case of a foreclosure or other judicial sale of the Cable System, in whole or in part, the Grantor may serve notice of revocation upon Grantee and the successful bidder at such sale, and all rights and privileges of the Grantee hereunder shall be revoked thirty (30) days after service of such notice, unless: (1) Grantor shall have approved the transfer of the Franchise, in the manner provided by law; and 40 000077 ordinance No. Page 41 (2) the successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the Franchise. 5.06.1800 Grantor and Subscriber Rights 5.06.1810 Reservation of Grantor Rights. In addition to any rights specifically reserved to the Grantor by this Chapter, the Grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the Franchise. 5.06.1820 Waiver. (a) The Grantor shall have the right to waive any provision of the Franchise imposing an obligation on Grantee, except those required by Federal or State regulation, if the Grantor determines (1) that it is in the public interest to do so, or (2) that the enforcement of such provision will impose an undue hardship on the Grantee or on the Subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one (1) instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the Franchise unless the statement so recites. (b) The Grantee shall not be excused from complying with any of the requirements of this Chapter or the Franchise Agreement by any failure of the Grantor on any one or more occasions to require or seek compliance with any such terms or conditions. 5.06.1830 Rights of Individuals. (a) Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age, sex or marital status. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations relating to nondiscrimination. However, nothing in this Chapter or the Franchise shall limit the right of the Grantee to deny service to any household or individual who has a negative credit or service 41 000078 Ordinance No. Page 42 history with the Grantee, which may include non - payment of bills or theft or damage to Grantee's equipment, or who has assaulted employees of the Grantee in the course of their employment. In cases of bad or negative credit, Grantee may require the payment of a deposit. (b) Grantee shall adhere to the applicable equal employment opportunity requirements of Federal, State and local regulations, as now written or as amended from time to time. (c) Without a lawful court order or applicable valid legal authority, neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified. (d) In the conduct of providing its Cable Services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber's or general citizen's right of privacy or other personal rights through the use of the System as such rights are delineated or defined by applicable law. The Grantee shall not without lawful court order or other applicable valid legal authority utilize the System's interactive two -way equipment or capability, if such equipment or capability exists, for unauthorized personal surveillance of any Subscriber or general citizen. (e) No cable line, wire amplifier, converter, or other piece of equipment owned by Grantee shall be installed by Grantee in the Subscriber's premises, other than in appropriate easements, without first securing any required consent. If a Subscriber requests service, permission to install upon Subscriber's property shall be deemed granted. (f) Grantee shall comply with all laws and regulations regarding subscriber privacy including, but not limited to, Section 631 of the Cable Act (47 U.S.C. 551). 5.06.1900 Separability If any provision of this Chapter is held by any court or by any Federal or State agency of competent jurisdiction, to be invalid as conflicting with any Federal or State law, rule or 42 0000129 Ordinance No. Page 43 regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provision shall be considered a separate, distinct, and independent part of this Chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision thereof which had previously been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantor and Grantee, provided that Grantor shall give Grantee thirty (30) days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for Grantee to comply with such provision. SECTION 2. If any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 3. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 4. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this day of Patrick Hunter, Mayor 2004. 43 000080 Ordinance No. Page 44 ATTEST: Deborah S. Traffenstedt, City Cierx 44 000081