HomeMy WebLinkAboutAGENDA REPORT 2005 0615 CC REG ITEM 11ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
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ORDINANCE NO. 316
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BY: AN— C113L1IhTANCE OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, AMENDING AND
REPLACING IN ITS ENTIRETY CHAPTER 5.06 CABLE
COMMUNICATIONS, OF TITLE 5 OF THE MUNICIPAL
CODE
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, on September 1, 2004, the City Council of the City
of Moorpark adopted Ordinance No. 303 amending Chapter 5.06 of
Title 5 of the Moorpark Municipal Code relative to the granting
of cable television franchises; and
WHEREAS, Ordinance No. 303 shall apply to any cable system
franchise (s) in force prior to the effective date of this newly
adopted Ordinance; and
WHEREAS, this new Ordinance is hereby enacted to apply to
any cable system franchise(s) granted or renewed subsequent to
the effective date of this Ordinance; and
WHEREAS, this amendment will add clarification of the
City's intent to regulate Multichannel Video Systems.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council hereby amends and replaces in
its entirety Chapter 5.06 of Title 5 of the Moorpark Municipal
Code, as shown in Exhibit "A" attached hereto.
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.
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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 15th day of June, 2005.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
Attachment: Exhibit "A" Chapter 5.06 of Title 5 of the Municipal
Code
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EXHIBIT "A"
Chapter 5.06
CABLE COMMUNICATIONS
Article I. Franchises Generally
Sections:
5.06.100 Existing franchise.
5.06.200 New franchises.
Article II. Intent
5.06.310 Authority.
5.06.320 Findings.
Article III. Short Title and Definitions
5.06.400 Short title.
5.06.500 Definitions.
Article IV. Franchise Terms and Conditions
5.06.610
Franchise purposes.
5.06.620
Franchise required.
5.06.630
Term of the franchise.
5.06.640
Franchise territory.
5.06.650
Federal or state jurisdiction.
5.06.660
Franchise nontransferable.
5.06.670
Geographical coverage.
5.06.680
Nonexclusive franchise.
5.06.690
Multiple franchises.
5.06.695
Franchise modification.
Article V. Franchise Applications and Renewal
5.06.710 Filing of applications.
5.06.720 Applications— Contents.
5.06.730 Consideration of initial applications.
5.06.740 Franchise renewal.
Article VI. Minimum Consumer Protection and Service Standards
5.06.810 Operational standards.
5.06.820 Service standards.
5.06.830 Billing and information standards.
5.06.840 Verification of compliance with standards.
5.06.850 Subscriber complaints and disputes.
5.06.860 Other requirements.
Article VII. Franchise Fee and Financial Requirements
5.06.910 Franchise fee.
5.06.920 Security.
Article VIII. Construction Requirements
5.06.1010 System construction.
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Article IX. Standards
5.06.1110 Applicable standards.
5.06.1120 Noncompliance with standards.
5.06.1130 Costs of technical assistance.
Article X. Indemnification and Insurance Requirements
5.06.1210 Hold harmless.
5.06.1220 Insurance.
Article XI. Records and Reports
5.06.1310 Records required.
5.06.1320 Reports.
5.06.1330 Opinion survey.
Article XII. Review of System Performance
5.06.1410 Biannual review.
Article XIII. Franchise Violations
5.06.1510 Remedies for violations.
5.06.1520 Procedure for remedying franchise violations.
5.06.1530 Grantor's power to revoke.
5.06.1540 Appeal of Finding of revocation.
Article XIV. Exceptions
5.06.1600 Force majeure— Grantee's inability to perform.
Article XV. Abandonment or Removal of Franchise Property
5.06.1710 Abandonment or removal.
5.06.1720 Restoration by grantor — Reimbursement of costs.
5.06.1730 Extended operation and continuity of services.
5.06.1740 Receivership and foreclosure.
Article XVI. Grantor and Subscriber Rights
5.06.1810 Reservation of grantor rights.
5.06.1820 Waiver.
5.06.1830 Rights of individuals.
Article XVII. Separability
5.06.1900 Validity.
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Article I. Franchises Generally
5.06.100 Existing franchise.
Existing Ordinance No. 303 shall not be codified, but shall
remain in effect and shall apply to any cable system franchise in
force prior to the effective date of Ordinance No. XXX.
5.06.200 New franchises.
This chapter is hereby enacted to apply to any cable system
franchise granted or renewed subsequent to the effective date of
Ordinance No. XXX.
Article II. Intent
5.06.310 Authority.
The city, 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
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.
Article 111. Short Title and Definitions
5.06.400 Short title.
This chapter shall constitute the "Cable System Regulator
Ordinance" of the city and may be referred to as such.
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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.
"Basic cable service" means any service tier which includes
the retransmission of local network and independent television
broadcast signals.
"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.
"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.
"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. Such
term shall include all landline multichannel video systems, 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;
E. Any facilities of any electric utility used solely for
operating its electric utility system; or
F. Any landline multichannel video system where at least one
(1) of the exceptions listed in Sections A. through E. of this
Section 5.06.500 applies.
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"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 carrying one (1) video
signal and its accompanying audio signal, or carrying an
equivalent amount of packet -based data.
"Council" means the city council of the city of Moorpark.
"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.
"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.
"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 assessment of general applicability
(including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services, but not
including a tax, fee or assessment which is unduly discriminatory
against cable operators or cable subscribers);
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.
"Grantee" means any "person" receiving a franchise pursuant to
this chapter and under the granting franchise ordinance or
agreement, and its lawful successor, transferee or assignee.
"Grantor" or "city" means the city of Moorpark as represented
by the council or any delegate, acting within the scope of its
jurisdiction.
"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,
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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.
"Installation" means the connection of the system to
subscribers' terminals, and the provision of service.
"Multichannel Video System" includes all of the following:
A. An "open video system ", as such term is defined in Title
VI of the Federal Communications Act of 1934 and implementing
regulations;
B. A system which provides multiple channels of video
programming where some or all of the video programming is
generally considered comparable to programming provided by a
television broadcast station; where such service is transmitted
in whole or in part via wires or lines that are in, or cross any
streets, highways, or public rights -of -way. The preceding
sentence shall apply whether the Grantee owns, leases, or
otherwise obtains the right to use such wires or lines, including
wires or lines of a telecommunications provider used pursuant to
tariff or otherwise for such purpose; and
C. Any other system providing multiple channels of video
programming where some or all of the video programming is
generally considered comparable to programming provided by a
television broadcast station where under applicable law a
franchise or similar permission or approval from the city is
required.
"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.
"Person" means an individual, partnership, association, joint
stock company, trust, corporation or governmental entity.
"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
B. Facilities and equipment for the use of such channel
capacity.
"Section" means any section, subsection or provision of this
chapter.
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"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.
"Service tier" means a category of cable service or other
services provided by a cable operator and for which a separate
rate is charged.
"State" means the state of California.
"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.
"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.
Article IV. 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;
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.
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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 nontransferable.
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) of this section shall
apply to any change in control of grantee. The word "control" as
used in this section 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
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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:
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 noncompliance;
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 grant 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
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shall take control of and operate the cable system, in the event
of a grantee default of its financial obligations. Further, the
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 ($3,000.00).
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.
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,
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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.
Article V. 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
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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 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.
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Article VI. 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 receive a busy signal less
than three percent (3 %) 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
voicemail, 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.
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
subsections (A)(1)— (A)(2) of this section 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
subsections (A)(4) —(6) of this section 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 (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, 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 5 '.-',
Ordinance No.
Page 17
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 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
00C 3520
Ordinance No.
Page 18
disconnection. Grantee shall
subscriber improperly or
receiving cable services for
service.
credit or provide refunds to any
inadvertently disconnected from
the period of time without cable
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;
2. Prices and options for programming services and
conditions of subscription to programming and other services;
3. Installation and service maintenance policies;
4. Instructions on how to use the cable service;
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 subsection (G) of this section.
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 of this chapter. Grantee
shall provide sufficient documentation to permit grantor to
verify grantee's compliance.
B. A repeated and verifiable pattern of noncompliance with
the consumer protection standards of Sections 5.06.810 through
5.06.830 of this chapter, 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
article. 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
00CTS;:33
Ordinance No.
Page 19
system in order to verify compliance with the telephone answering
standards of this article.
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) in this chapter, 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
Ordinance No.
Page 20
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 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.
Article VII. 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
Ordinance No.
Page 21
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 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.
pdr3S-F,
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Ordinance No.
Page 22
Article VIII. 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 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
oof "3s"
Ordinance No.
Page 23
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
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 its 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.
00( -313
Ordinance No.
Page 24
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.
Article IX. 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.
Ordinance No.
Page 25
5.06.1120 Noncompliance 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.
Article X. 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:
a. Negligent acts or omissions of grantee, and its agents,
servants and employees, committed in the conduct of franchise
operations, and /or
b. 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.
00( -?360
Ordinance No.
Page 26
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.
Article XI. 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
0�� 36
Ordinance No.
Page 27
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
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 (10 %) 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:
a. The number of homes passed;
b. Total subscribers, and
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c. 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 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
Ordinance No.
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5.06.1830 (C), (D) and (F) in this chapter 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.
1. 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.
Article XII. 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
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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 (30) days.
Failure of the grantee, after due notice, to:
1. Correct the area(s) of noncompliance within the period
specified therefore;
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.
Article XIII. 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 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,
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Ordinance No.
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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;
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;
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:
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Ordinance No.
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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 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.
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Article XIV. Exceptions
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.
Article XV. 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
000;36
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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.
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
conditions of this chapter as of the effective date of the
franchise and the franchise, as existed immediately prior to said
OWI.rou3
Ordinance No.
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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;
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.
Article XVI. 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
000'3 r
ordinance No.
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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 subscribers 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,
00C, ,,
Ordinance No.
Page 37
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).
Article XVII. Separability
5.06.1900 Validity.
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
requiring compliance with said provision or such longer period of
time as may be reasonably required for grantee to comply with
such provision.