HomeMy WebLinkAboutORD 303 2004 0901ORDINANCE NO. 303
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 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
Sec. 5.06.700 Franchise Applications and Renewal
Sec. 5.06.800 Minimum Consumer Protection and Service
Standards
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Page 2
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.
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
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Page 3
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
(b) otherwise controls or is responsible for, through
any arrangement, the management and operation of such Cable
System.
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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
now available or that may become available), which is capable of
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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
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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
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(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,
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over, under, upon, along and across streets or other public
places within the designated Service Area.
(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.
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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
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 (250) 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.
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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:
(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.
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(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
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.
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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.
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
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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.
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 (5 %) 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
Ordinance No. 303
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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
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,
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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
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,
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Page 16
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.
(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 (90 %) 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 (95 %) 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.
Ordinance No. 303
Page 17
(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,
affecting at least ten percent (10 %) of the Subscribers
of the System.
(2) For an isolated outage: Within twenty -four
(24) hours, including weekends, of receiving requests
for service identifying an isolated outage of sound or
picture for one (1) or more channels that affects 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
Ordinance No. 303
Page 18
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
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
Ordinance No. 303
Page 19
(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.
(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.
Ordinance No. 303
Page 20
(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.
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
Ordinance No. 303
Page 21
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
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
Ordinance No. 303
Page 22
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
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 (8 %); and
(2) if the payment is late by thirty (30) days or
more, a sum of money equal to five percent (5 %) of the
Ordinance No. 303
Page 23
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.
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.
Ordinance No. 303
Page 24
(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
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
Ordinance No. 303
Page 25
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
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
Ordinance No. 303
Page 26
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
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
Ordinance No. 303
Page 27
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
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.
Ordinance No. 303
Page 28
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
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
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.
Ordinance No. 303
Page 29
(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;
(3) The names of the primary insureds and any
additional insured required by the Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the
insurance; and
(6) The amount or limit of coverage provided by
the insurance.
If the 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,
Ordinance No. 303
Page 30
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
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
Ordinance No. 303
Page 31
(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,
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
Ordinance No. 303
Page 32
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
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
Ordinance No. 303
Page 33
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
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
Ordinance No. 303
Page 34
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
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
noncompliance are incorrect;
shall be considered a material
and Grantor may exercise any remedy
Chapter and the Franchise Agreement
under the circumstances.
5.06.1500 Franchise Violations
5.06.1510 Remedies for Violations.
the allegations of
breach of the Franchise,
within the scope of this
considered appropriate
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
Ordinance No. 303
Page 35
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
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
Ordinance No. 303
Page 36
(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
(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:
Ordinance No. 303
Page 37
(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.
(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
Ordinance No. 303
Page 38
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
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.
Ordinance No. 303
Page 39
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.
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
Ordinance No. 303
Page 40
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
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
Ordinance No. 303
Page 41
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
(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.
Ordinance No. 303
Page 42
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
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
Ordinance No. 303
Page 43
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
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
Ordinance No. 303
Page 44
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 th
ATTEST:
S. J
Deborah S. Traffenstedt, City Clerk
Ordinance No. 303
Page 45
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
I, Deborah S. Traffenstedt, City Clerk of the City of
Moorpark, California, do hereby certify under penalty of perjury
that the foregoing Ordinance No. 303 was adopted by the City
Council of the City of Moorpark at a regular meeting held on the
1st day of September, 2004, and that the same was adopted by the
following vote:
AYES: Councilmembers Harper, Mikos, Millhouse, Parvin,
and Mayor Hunter
NOES: None
ABSENT: None
ABSTAIN: None
WITNESS my hand and the official seal of said City this 3rd
day of September, 2004.
Deborah S. Traffenstedt, City Clerk
(seal)