HomeMy WebLinkAboutORD 133 1990 1121sff/ORD9426zp(11079.0 -2)
ORDINANCE SUMMARY OF
ORDINANCE NO. 90-
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF MOORPARK AMENDING THE MOORPARK
MUNICIPAL CODE BY ADDING CHAPTER 6 TO
TITLE 5 RELATIVE TO THE GRANTING OF CABLE
TELEVISION FRANCHISES
On November 7, 1990, the Moorpark City Council
voted to introduce an Ordinance which establishes standards
for granting, renewing, operating and terminating a cable
television franchise within the City of Moorpark.
The primary provisions of the Ordinance are as
follows:
1.
Establishes
the maximum term of a franchise;
2.
Establishes
procedures for the sale, renewal and
termination
of a franchise;
3.
Sets the minimum channel capacity for a cable
system at 54
channels;
4.
Requires the
provision of at least one local
origination
and public access channel in each cable
system;
5.
Establishes
consumer service standards in areas of
telephone response,
and maintenance and repair
staff;
6.
Establishes
a subscriber complaint procedure;
7. Establishes extension of service standards,
including that all residential areas of a density
of at least 40 residents per cable mile be
served; and
8. Requires that the operator maintain records
indicating the number of service calls and
subscriber complaints received, and the time it
takes to respond to such complaints and requests
for service.
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The City Council must vote again to approve the
Ordinance before it can take e -fe t. That action is
tentatively scheduled for /// A , 1990, at a regular
City Council meeting to begin at 7:00 P.M., or shortly
thereafter, in the Council Chambers, 799 Moorpark Avenue,
Moorpark, California.
Copies of the complete Ordinance are available in
the City Clerk's Office at the City Hall, 799 Moorpark
Avenue, Moorpark, California. For more information, contact
Richard Hare at (805) 529 -6864.
City Clerk of the City of Moorpark
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ORDINANCE NO. 133
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF MOORPARK AMENDING THE MOORPARK
MUNICIPAL CODE BY ADDING CHAPTER 6 TO
TITLE 5 RELATIVE TO THE GRANTING OF CABLE
TELEVISION FRANCHISES
THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
ORDAIN AS FOLLOWS:
SECTION 1. The Moorpark Municipal Code is hereby amended by
adding, Chapter 6 to Title 5 to read as follows:
FI f1TTT 1-kMT -% G
MOORPARK CABLE TELEVISION ORDINANCE
Section 5.06.100 - Short Title.
This Chapter shall be known as the "Moorpark Cable
Television Ordinance."
Section 5.06.200 - Definitions.
For the purposes of this Chapter, the following
terms, phrases, words and abbreviations shall have the
following meaning:
(1) "Applicant" Any person submitting an
application for grant or transfer of a franchise.
(2) "Basic Cable Service" Any service tier
which includes the retransmission of local television
broadcast signals.
(3)
"Broadcast
Signal" A television
or radio
signal that is
transmitted
over - the -air to a wide
geographic
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audience and is received by a cable television system and
retransmitted its subscribers.
(4) "Cable Communications System" or "System ",
also referred to as "Cable Television System ", or "Cable
System ". A facility, consisting of a set of closed
transmission paths and associated signal generation,
reception, and control equipment, that is designed to
provide cable service which includes video programming and
which is provided to multiple subscribers within a
community, but such term does not include:
(a) A facility that serves only to retransmit
the television signals of one or more
television broadcast stations;
(b) A facility that serves only subscribers in
one or more multiple unit dwellings under
common ownership, control, or management,
unless such facility uses any public right-
of-way;
(c) A facility of a common carrier, except that
such facility shall be considered a cable
system to the extent such facility is used
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in the transmission of video programming
directly to subscribers; or
(d) Any facilities of any electric utility used
solely for operating its electric utility
system.
(5) "Cablecast Signal" A non - broadcast signal
that originates within the facilities of the cable
television system.
(6) "Cable- Mile" A linear mile of strand or
conduit bearing cable as measured on the street or public or
private easement from pole to pole or pedestal to pedestal.
(7) "Cable Service" The one -way transmission to
subscribers of video programming or other programming
service and any subscriber interaction, if any, which is
required for the selection of such video programming or
other programming service.
(8) "Channel" or "Cable Channel" A portion of
the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a television
channel as defined by the Federal Communications Commission.
(9) "City" The City of Moorpark, a municipal
corporation of the State of California, in its present
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incorporated form or in any later reorganized, consolidated,
enlarged or reincorporated form.
(10) "Commence Construction" The point in time
when the first connection is physically made to a utility
pole, or undergrounding of cables is initiated, after
preliminary engineering (strand mapping) and after all
necessary permits and authorizations have been obtained.
(11) "Commence Operation" The point in time when
sufficient distribution facilities have been installed so as
to permit the offering of cable service to a dwelling unit
located within the franchise area and such services are
actually subscribed to by a resident of the franchise area.
(12) "Commercial Use Channel" The channel
capacity, if any, designated for commercial use as defined
and required by federal law.
(13) "Completion of Construction" The point in
time when all distribution facilities have been installed by
the Grantee so as to permit the offering of cable service to
all of the potential subscribers in the franchise area
subject to the limitations of Section 5.06.804.
(14) "Community Access Channel or Access
Channel" Any channel or portion of a channel utilized for
programming on a non - profit basis.
(15) "Consent ", "approval" or "agree". Such
words or derivations of said words or words of similar
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import mean, unless otherwise expressly provided in this
Chapter or Grantee's Franchise Ordinance, the prior
approval, consent or agreement of the person holding the
right to approve, consent or agree with respect to the
matter in question, and "require" or "judgment" or "satisfy"
or derivations of said words or words of similar import mean
the requirement, judgment or satisfaction of the person who
may make a requirement or exercise judgment or who must be
satisfied, which approval, consent, agreement, requirement,
judgment or satisfaction shall, unless otherwise expressly
provided in this Chapter or the Grantee's Franchise
Ordinance, not be unreasonably withheld or delayed by the
person holding the right to approve, consent or agree or
make a requirement or judgment or who must be satisfied.
(16) "Council" The present governing body of the
City or any future board constituting the legislative body
of the City.
(17) "Federal Communications Commission or FCC"
The present Federal agency of that name as constituted by
the Communications Act of 1934, or any successor agency
created by the United States Congress.
(18) "Franchise" The right to construct, operate
and maintain a cable television system using the City
streets pursuant to the terms and condition of this Chapter,
the franchise ordinance and the acceptance of the franchise
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ordinance. Any reference to the "Franchise" incorporates by
reference this Chapter, the franchise ordinance and the
acceptance of the franchise ordinance.
(19) "Franchise Area" The geographic area within
the City designated in a franchise where the Grantee may
operate a cable television system.
(20) "Franchise Fee" The tax, fee or assessment
of any kind imposed by the City on a Grantee or cable
subscriber, or both, solely because of its status as such.
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
grantee(s) or their services but not
including a tax, fee, or assessment which is
unduly discriminatory against Grantee or
cable subscribers);
(b) Capital costs which are required by the
franchise to be incurred by Grantee for PEG
access facilities;
(c) Requirements or charges incidental to the
awarding, enforcing, transfer or renewal of
the franchise, including payments of bonds,
consultants, administrative expenses,
security funds, letters of credit,
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insurance, indemnification, penalties, or
liquidated damages; or
(d) Any fee imposed under Title 17, United
States Code.
(21) "Franchise Ordinance" The ordinance
granting a franchise to a person to operate a cable
television system pursuant to the terms of this Chapter.
Any conflict between the terms of this Chapter and the
Franchise Ordinance shall be resolved in favor of the
Franchise Ordinance.
(22) "Grantee" Any person granted a franchise.
(23) "Gross Revenues" Any and all revenue or
compensation in any form derived directly or indirectly by
the Grantee, its affiliates, subsidiaries, parents and any
person in which the Grantee has a financial interest, from
the operation of the cable television system utilizing the
public streets and right -of -ways in the City for which a
franchise is required under this Chapter, including, but not
limited to, monthly subscriber fees for basic cable service,
pay- television fees, pay - per -view fees and related per -event
revenues, installation and reconnection fees, leased channel
fees, fees paid for data transmission, converter rentals,
advertising revenues, copyright fees, Franchise Fees or any
other costs of doing business which are separately assessed
to subscribers as a separate line item appearing on periodic
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statements for services rendered (except as provided below),
provided, however, that the amount of gross revenues may be
reduced by the amount of any bad debts written off by the
Grantee or refunds returned to persons, provided that the
revenue with respect thereto had been included in the
computation of gross revenues. Gross revenues excludes
taxes, fees or assessments imposed upon any person by a
city, county, state or other governmental agency collected
by the Grantee for pass- through to such governmental agency,
excluding franchise fees and fees imposed pursuant to Title
17 of the United States Code. Gross revenues shall also
exclude payments of any nature by the Grantee to any
affiliate or other person in which the Grantee has a
financial interest, provided that the amount thereof has
been included in the computation of gross revenues when
received by the Grantee if otherwise deemed to be gross
revenues in accordance with this definition.
In computing gross revenues from sources
other than the Grantee's subscribers, including without
limitation receipts derived from the sale of advertising or
the lease of channel capacity by the Grantee on its cable
system, the aggregate of the gross revenues received by the
Grantee from such other sources during the period in
question shall be multiplied by a fraction, the numerator
which shall be the arithmetic average of the number of
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subscribers in the City as of the first and last day of such
period and the denominator of which shall be the arithmetic
average of the number of subscribers within all areas served
by the Grantee as of the first and last day of such
period. The results obtained thereby shall be included in
the determination of the Grantee's gross revenues for the
purposes of computing the franchise fee due the City for
such period.
(24) "Installation" The connection of the cable
television system from feeder cable to subscribers'
terminals, and the provision of service.
(25) "Interactive Service Two -way communica-
tions between system subscribers and the system headend or
hub.
(26) "Local Origination Channel" Any channel
where the Grantee is the primary designated programmer, and
provides video programs to subscribers.
(27) "Other Programming Service" Information
that the Grantee makes available to all subscribers
generally.
(28) "Pay- Television or Pay -Per- View" The
delivery to subscribers over the cable television system of
video programming for a fee or charge to subscribers over
and above the charge for basic cable service, on a per
program, per channel, or other subscription basis.
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(29) "Person" Any natural person, partnership of
every kind, association, joint stock company, trust,
domestic and foreign corporation, or organizational entity.
(30) "Public, Educational or Government Access or
"PEG" Access" Programming, channel capacity, facilities and
equipment designated for public, educational, or
governmental use.
(31) "Resident" Any person residing in the City
as otherwise defined by applicable law.
(32) "School" Any accredited nonprofit
educational institution including primary and secondary
schools, colleges and universities, both public and private.
(33) "Streets" Those public streets, alleys,
easements, rights -of -way and other publicly -owned property,
within the franchise area within which a Grantee may place
its facilities for operating its cable television system.
(34) "Subscriber" Any person who or which elects
to subscribe to, for any purpose, a service provided by the
Grantee by means of or in connection with the cable
television system.
(35) "Video Programming" Programming provided
by, or generally considered comparable to programming
provided by, a television broadcast station.
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Section 5.06.300 - Grant of Franchise.
Section 5.06.302 - Grant: The City may grant a
Franchise pursuant to a Franchise Ordinance. Each Franchise
shall be subject to the provisions of this Chapter, the
Franchise Ordinance, the Acceptance of the Franchise
Ordinance and all general ordinances or regulations now in
effect or subsequently enacted, including those concerning
encroachment permits, zoning and building.
Section 5.06.304 - Franchise Required: It shall be
unlawful for any person to construct, install or operate a
cable television system in the City within any street or
within any other right -of -way within the City which has not
yet been dedicated to the City but is designated or
delineated for public use on any tentative subdivision map
approved by the City and, in each such case, to construct or
install any equipment or facilities for a cable system,
whether or not operational, without a properly granted
Franchise awarded pursuant to the provisions of this
Chapter, which Franchise is in full force and effect.
Section 5.06.306 - Duration: The term of the
Franchise or any Franchise renewal shall be established in
the Franchise Ordinance.
Section 5.06.308 - Franchise Non - Exclusive: Any
Franchise granted shall be non- exclusive. The City may
grant additional Franchises as it deems appropriate.
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Section 5.06.310 - Franchise Non - Transferrable:
(1) Except as otherwise provided in the Franchise
Ordinance, the Franchise shall not be transferred, sold,
hypothecated, sublet or assigned, nor shall any of the
rights or privileges therein be hypothecated, leased,
assigned, sold or transferred, either in whole or in part,
nor shall title thereto, either legal or equitable, or any
right, interest or property therein, pass to or vest in any
person, except the Grantee, either by act of the Grantee or
by operation of law, without the prior consent of the City
expressed by resolution. Nothing set forth in this Chapter
shall prevent the Grantee from leasing or otherwise
allocating use of any channel or programming time to any
person, whether over a commercial use channel, local
origination channel or otherwise.
(2) If the Grantee transfers the Franchise prior
to obtaining City consent, twenty -five percent (25a) of the
gross revenues of the cable television system from the date
of Franchise transfer until the date of City consent shall
be returned to the system's subscribers, on a per- capita
basis.
(3) The City shall not unreasonably withhold its
consent to a Franchise transfer. For the purpose of
determining whether it shall consent to such change,
transfer, or change in control, City may inquire into the
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qualifications of the prospective transferee or controlling
party, and Grantee shall assist City in any such inquiry.
In seeking City's consent to any change of ownership or
control, Grantee shall have the responsibility of insuring
that transferee completes an application in form and
substance reasonably satisfactory to City, which application
shall be submitted pursuant to Section 5.06.320 of this
Chapter. An application shall be submitted to City not less
than ninety (90) days prior to the date of transfer. The
Grantee shall be required to establish that it is in
material compliance with its Franchise. The transferee
shall be required to establish that it possesses the
qualifications and financial and technical capability to
operate and maintain the system and comply with all
Franchise requirements for the remainder of the term of the
Franchise. If the City finds that the legal, financial,
character, technical and other public interest qualities of
the applicant are satisfactory, and that the proposed
transferee has the capability to operate and maintain the
system and comply with all Franchise requirements for the
then remaining term thereof, the City shall transfer and
assign the rights and obligations of such Franchise. The
City may condition the transfer to insure the transferee is
in material compliance, and remains in material compliance
with, the Franchise.
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Section 5.06.312 - Change in Control:
(1) City consent is further required for any
change in control of Grantee, pursuant to subsection
5.06.310 above. "Change of control" shall mean any sale,
transfer or acquisition of Grantee, Grantee's parent, the
parent of Grantee's parent, etc. If Grantee or its
parent(s) is a corporation, any acquisition of more than ten
percent (100) of Grantee's voting stock by a person or group
of persons acting in concert, whom already own less than 500
of the voting stock, shall be deemed a change in control."
(2) Any change of control of the Grantee occurring
without prior City approval shall constitute a material
breach of the franchise.
Section 5.06.314- Franchise Area; Annexations:
(1) The Franchise Ordinance shall establish the
Franchise area.
(2) Territory annexed to the City which is not
within the franchise area of an existing Franchise may be
added to an existing Franchise pursuant to Council
resolution adopted after conducting a noticed public
hearing, provided that such new territory shall be deemed a
part of the franchise area of any Grantee authorized to
serve the entire geographic area of the City without action
by the Council.
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(3) Territory annexed to the City that is
already covered by an existing franchise or license granted
by another public entity but where the Grantee of such
franchise or license has not commenced installation of a
cable television system in the area of such annexed
territory shall be deemed not to be served by a franchise or
license, and all rights acquired under said franchise or
license in the area of such annexed territory shall
terminate by operation of law as of the effective date of
the annexation.
(4) Territory annexed to the City that is
already served by a franchise or license issued by another
public entity, may continue to be served by the Grantee
under said franchise or license for the balance of the term
of said franchise or license, subject to the provisions of
said franchise or license and the provisions of this
Chapter, and provided the franchise fees, which the City may
establish by resolution up to the maximum permitted by law,
are paid.
Section 5.06.316 - Franchise Applications:
(1) Any person may apply for the grant of a new
franchise.
(2) The City may, by advertisement or any other
means, solicit applications for new franchises pursuant to a
request for proposals.
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(3) Upon receipt of an application, the City Manager
shall cause to be prepared a report, including his
recommendations respecting such application, which shall be filed
with the Council and each applicant. Upon receipt of said
report, a public hearing shall be noticed to consider the
approval of the application.
(4) The City may, at any time prior to the close of
the public hearing, require the applicant to provide
supplementary information reasonably necessary to determine
whether the application should be approved.
(5) Following the public hearing, the Council, at its
discretion, shall determine whether to approve the application.
In making its determination, the Council shall give due
consideration to the quality of the service proposed, income to
the City, experience, character, technical and financial
responsibility of the applicant, and any other considerations
deemed pertinent by the Council for safeguarding the interests of
the City and public.
Section 5.06.317 - Multiple Franchises.
(1) City may grant any number of Franchises, either
on a City -wide basis or for a limited service area. City may
limit the number of franchises granted, based upon, but not
necessarily limited to, the following considerations:
(a) The capacity of the public rights -of -way to
accommodate the facilities of two or more cable systems.
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(b) The benefits that may accrue to cable
subscribers as a result of cable system competition, such as
lower rates and improved service.
(c) 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 rights -of -way.
(2) City may require that any new Grantee be
responsible for its own underground trenching and the costs
associated therewith, if, in City's opinion, the rights -of -way in
any particular area cannot feasibly and reasonably accommodate
additional cables.
(3) In the event that, subsequent to the effective
date of this Chapter, City grants an additional Franchise for a
cable communications system on terms that, on a whole, are more
favorable or less burdensome than those contained in an existing
Grantee's Franchise granted pursuant to this Chapter, such more
favorable or less burdensome terms shall be automatically
extended to such existing Grantee to the effect that any
provision in such Grantee's Franchise which is inconsistent with
such more favorable or less burdensome terms shall be superseded
by such more favorable or less burdensome terms. Such more
favorable or less burdensome terms shall be effective with
respect to the Grantee's Franchise as of the effective date of
the Franchise granted to such other person. In order to invoke
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the benefit of this clause such
City in writing of the specific
that are more favorable or less
existing Franchise prior to the
Section 5.06.316, provided that
Grantee at least thirty (30) da,
public hearing, together with a
existing Grantee shall notify
terms in the proposed Franchise
burdensome than the terms of the
public hearing described at
City has given such existing
�s prior written notice of such
copy of the proposed Franchise.
Section 5.06.318 - Franchise Renewal:
The City may
establish Franchise renewal procedures by Resolution subject to
applicable federal law.
Section 5.06.320 - Franchise Processing Costs. Any
application for either a new Franchise grant, a Franchise renewal
or a Franchise transfer, shall be made in a manner prescribed by
the City Manager, and shall include an application fee, in an
amount to be set by City Resolution, to cover the cost of all
direct and indirect administrative expenses, including
consultants and attorneys, necessary to adequately analyze the
application. In addition, the Grantee shall reimburse the City
for all out -of- pocket processing costs, which shall include, but
not be limited to, costs of publications of notices, development
and publication of relevant Franchise ordinances and agreements,
and any other out -of- pocket not covered by the application fees,
incurred by the City in its study and evaluation of
applications. The City may periodically bill the applicant for
such additional amounts to reimburse the City for administrative
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expenses incurred in addition to the application fee. The bills
shall be supported with evidence of the expense or cost
incurred. The applicant shall pay such bills within thirty (30)
days of receipt.
These Franchise processing costs are over and above any
construction inspection and permit fees and the franchise fees
specified in this'Chapter or the Franchise Ordinance.
Section 5.06.322 - Franchise Fee:
(1) Every Grantee shall pay a franchise fee to the
City in the amount designated in the Franchise Ordinance. The
City, upon request, shall be furnished a statement, either
audited and certified by an independent Certified Public
Accountant or certified by a financial officer of the Grantee,
reflecting the total amounts of gross revenues and all
computations for the period covered by the payment. City shall
have the right to conduct an independent audit of those records
of Grantee reasonably necessary to determine gross revenues, and
if-such audit indicates a franchise fee underpayment of three
percent (30) or more, the Grantee shall assume all costs of such
an audit.
(2) Acceptance of a franchise fee payment for more
than four (4) years after its receipt shall amount to a release
and accord and satisfaction as to any claim the City may have for
additional sums payable. The Grantee shall maintain gross
revenue records for a minimum of four (4) years.
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(3) Any delinquent franchise fee payment shall be
subject to an interest charge of one and one -half percent (1-
1/2x) per month. In addition, failure to pay a franchise fee
payment which is due and payable within 15 days after receipt of
a notice from the City shall subject the quarterly payment to a
five percent (50) penalty.
(4) The franchise fee shall be received by City
within forty -five (45) days after the close of each quarter of
the Grantee's fiscal year.
Section 5.06.324 - Revocation of Franchise; Assessment
of Damages and Penalties:
(1) The City reserves the right to terminate any
franchise in the event of a breach of any of its material terms
or any material applicable federal, state or local statute or
regulation; such a breach shall include, but not be limited to:
(a) If the Grantee practices, or attempts to
practice, any fraud or deceit upon the City.
(b) If the Grantee becomes insolvent, unable or
unwilling to pay its debts, or upon listing of an order
for relief in favor of Grantee in a bankruptcy
proceeding.
(c) If the Grantee materially fails to meet the
consumer service standards established in the franchise
consistently over a three (3) month period of time.
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(d) If the Grantee fails to provide or maintain in
full force and effect, the liability and indemnification
coverages, letter of credit or bonds as required by the
franchise.
(e) If the Grantee willfully violates any orders or
rulings of any regulatory body having jurisdiction over
the Grantee relative to the franchise, provided that the
Grantee may contest any such orders or rulings by
appropriate proceedings conducted in good faith, in
which case no breach of the franchise shall be deemed to
have occurred.
(f) If the Grantee ceases to provide all cable
service over all or a substantial portion of its cable
system for a period of five (5) days or more, for any
reason within the control of the Grantee.
(g) If the Grantee willfully fails to make any
payments required under the franchise and /or refuses to
provide City with required information, reports and /or
test results in a timely manner as provided in the
franchise.
(h) If the Grantee fails to initiate scheduled system
construction or reconstruction more than one year after
construction is to begin for any reason within the
control of the Grantee.
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(i) If delays in completion of scheduled system
construction or reconstruction exceed six (6) months for
any reason within the control of the Grantee.
(j) Any other act or omission by the Grantee which
materially violates the terms, conditions or
requirements of the franchise or any order, directive,
rule or regulation issued thereunder and which is not
corrected or remedied within the time set in the written
notice of the violation or, if the Grantee cannot
reasonably correct or remedy the breach within the time
set forth in such notice, if the Grantee should fail to
commence to correct or remedy such violation within the
time set forth in such notice and diligently effect such
correction or remedy thereafter.
(2) Prior to imposing any sanction or penalty upon
the Grantee, the City shall give the Grantee reasonable notice
and an opportunity to cure period to correct the material
breach. The notice to cure period shall be a minimum of fifteen
(15) days in the case of any,payments due under the franchise and
a minimum of thirty (30) days in all other cases (except in cases
of emergency where a shorter time may be prescribed consistent
with the nature of the emergency). If the breach is not cured
within the period specified in such notice, or, if the Grantee
cannot reasonably correct or remedy the breach within the period
set forth in such notice, and the Grantee should fail to commence
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to correct or remedy such breach within the period specified in
such notice and diligently effect such correction or remedy
thereafter, City shall notice a public hearing before the Council
regarding whether the Franchise should be terminated.
(3) Based on the evidence presented at the public
hearing, the Council shall determine by resolution whether the
Franchise should be revoked.
(4) Alternatively, if the Council finds that there
has been a material breach of the Franchise, but that revocation
is inappropriate, then the City may assess and levy against the
letter of credit of Grantee monetary damages up to the limits
established in the Franchise Ordinance for material Franchise
violations. This provision for assessment of damages is intended
by the parties to be separate and apart from City's right to
enforce the provisions of the construction and performance bonds
and the liquidated damages provision.
Section 5.06.326 - Administrative Ajudication of
Breaches of the Franchise:
(1) Whenever the City Manager believes there has been
a Franchise breach, he shall notify the Grantee in writing to
cure the breach. The breach may be material or otherwise. The
City Manager shall establish a reasonable time to cure the
breach. The period to cure shall be a minimum of fifteen (15)
days in the case of any payments due under the Franchise and a
minimum of thirty (30) days in all other cases (except in cases
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of emergency where a shorter time may be prescribed consistent
with the nature of the emergency).
(2) Upon receiving the City Manager's notice of a
Franchise breach, Grantee shall investigate the alleged breach,
and within the time period established in the notice, notify the
City Manager in writing of the results of the investigation and
its proposed action or resolution, if any. In the event the City
Manager does not refer the matter to the City Council or to
arbitration as provided under Section 5.06.328 of this Chapter
within thirty (30) days of the receipt of the Grantee's response,
the Grantee's proposed action or resolution shall be final.
(3) The Grantee shall not be deemed to be in default
in the performance of its obligations under this Chapter or the
Franchise Ordinance and no penalty or sanction shall be imposed
upon the Grantee where the Grantee has remedied the breach to the
reasonable satisfaction of the City Manager within the period
specified in the notice specifying the breach or, if the Grantee
cannot reasonably remedy the breach within the time set forth in
such notice, where the Grantee commenced to cure such breach
within the period set forth in such notice and diligently
completed such cure thereafter.
Section 5.06.328 - Arbitration Procedures:
(1) Either party may initiate hearing proceedings in
accordance with the provisions of this Section with respect to
any controversy or claim arising out of or relating to the
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Franchise or its existence, construction, interpretation,
performance, enforcement, operation, breach, continuance or
termination. Such hearing proceedings may be initiated by either
City or the Grantee by written notice to the other by certified
mail or other means providing for certification of receipt.
(2) City and Grantee shall mutually agree to an
hearing officer. If an agreement is not reached within thirty
(30) days after the notice of appeal has been delivered, then
Grantee shall select the hearing officer from a list of ten
potential hearing officers prepared by the City Manager. The
list of hearing officers shall be comprised of retired California
Superior Court judges or Appellate Court justices residing in
Ventura County. If fewer than ten judges or justices are
available from Ventura County, the list shall be supplemented
with judges or justices from other Counties.
(3) The hearing shall be conducted according to
California Code of Civil Procedure Section 1280, et seq. (the
"General Arbitration Act ").
(4) The party bringing the appeal shall deposit such
fees as the hearing officer shall determine with the City.
(5) The hearing officer shall commence the hearing
within ninety (90) days of his selection unless the parties and
the hearing officer otherwise agree. Any party to the hearing
may issue a request to compel reasonable document production from
the other party. Disputes concerning the scope of document
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production and enforcement of document requests shall be subject
to agreement by the parties, or if agreement is not reached
within twenty (20) days of that document request, then by
disposition by order of the hearing officer. Any such document
request shall be subject to the proprietary rights and rights of
privilege of the parties, and the hearing officer shall adopt
procedures to protect such rights. Except as may be otherwise
specifically agreed by the parties, no other form of pretrial
discovery shall be available to the parties; provided that if
either party notifies the hearing officer that a material
violation of the Franchise or rights in connection therewith is
claimed by either party, the provisions of Code of Civil
Procedure Section 1283.05 shall apply.
(6) Neither party may communicate separately with the
hearing officer after he has been selected. All subsequent
communications between a party and a hearing officer shall be
simultaneously delivered to the other party. This provision
shall not apply to communications made to schedule a hearing or
request a continuance.
(7) The hearing officer shall have the authority to
(i) order the Grantee to undertake remedial action to cure any
breach of its obligations under its Franchise, (ii) assess
liquidated damages and /or levy a penalty upon the Grantee in
accordance with the terms of this Chapter and the Franchise
Ordinance, (iii) find that the Grantee has not violated any of
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its obligations under its Franchise, or (iv) or order the City to
comply with Grantee's Franchise. Absent .a successful appeal
pursuant to Code of Civil Procedure § 1294 et se q., if the
hearing officer finds there has been no breach or violation of
the Grantee's obligations under its Franchise, the City shall be
precluded from conducting default proceedings.
(8) Except as may be apportioned by the hearing
officer in his discretion, each party shall bear one -half of the
fees and expenses of the hearing officer, together with any other
expenses of the hearing proceedings incurred or approved by the
hearing officer. Each party shall bear its own witness and
attorneys' fees or other expenses incurred by such party for its
own benefit. Notwithstanding the foregoing, if the Grantee
appeals a decision of the City Manager in favor of a subscriber,
and the subscriber loses the hearing, the subscriber shall only
be liable to the Grantee for the amount the City Manager awarded
him, and not the hearing officer's fee.
(9) Until final judgment is entered from the hearing
officer proceeding under the foregoing provisions and the time
for appeal or other post- judgment petition has expired, the
imposition or enforcement of any penalties or sanctions provided
in the Franchise and related to the subject matter of the hearing
shall be stayed. The hearing officer may modify or cancel any
proposed penalties, sanctions or orders upon a finding that the
party subject thereto acted with substantial justification, or if
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the interests of justice so require.
(10) Any party to an arbitration may petition the
Superior Court for Ventura County, California to confirm, correct
or vacate the award on the grounds stated in the General
Arbitration Act. Any proceedings on appeal shall be in
accordance with Code of Civil Procedures § 1294 and § 1294.2.
(11) Any failure of the Grantee to comply with the
final order of the City Manager or the hearing officer shall be
deemed a material breach of the Franchise, and may be grounds for
termination of the Franchise. An order shall not be final where
there is a pending appeal of the City Manager's decision, or the
Grantee is seeking review of the hearing officer's decision
pursuant to the General Arbitration Act.
(12) The arbitration procedure set forth in this
Section shall not apply to a violation of a constitutional
right. This exception shall only apply where the objection to
arbitration was made in writing no less than 20 days after the
written notice requesting arbitration was received.
Section 5.06.330 - Force Majeure; Grantee's Inabilitv to
Perform: In the event the Grantee's performance of any of the
terms, conditions or obligations required by this Chapter or its
Franchise is prevented by any cause beyond Grantee's reasonable
control, such inability to perform shall be deemed to be excused
and no penalties or sanctions shall be imposed as a result
thereof, provided Grantee has notified City in writing within
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thirty (30) days of its discovery of the occurrence of such an
event. For the purpose of this Section, causes or events not
within the control of the Grantee shall include without
limitation acts of God, strikes, sabotage, riots or civil
disturbances, action by a governmental agency or court,
explosion, natural disasters such as floods, earthquakes,
landslides and fires, rationing, inability to secure necessary
supplies, services or equipment, and power or communications
failures, 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 the Grantee.
System:
Section 5.06.332 - Removal and Abandonment; Purchase of
(1) In the event that the franchise is terminated, or
nonrenewed, then such Grantee shall, upon demand of the City, and
at the sole expense of the Grantee, promptly remove or, with the
prior approval of the City Engineer, abandon in place, all of its
cable television system. Upon abandonment of the cable
television system in place, Grantee shall cause to be executed,
acknowledged and delivered to the City, such instruments as the
City Attorney shall prescribe and approve, transferring and
conveying the ownership of the cable television system to the
City.
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(2) In removing its cable television system, the
Grantee shall refill, at its own expense, any excavation it made
and leave all streets in as good condition as that prevailing
prior to the Grantee's removal of its cable television system
without materially affecting the electrical or telephone cable,
wires, or attachments. The liability, indemnity, insurance,
security fund and bonds required under the franchise shall
continue in full force and effect until the removal is complete.
(3) In the event a Franchise is not renewed or is
terminated, the City and the Grantee may agree that Grantee will
maintain and operate its cable television system until a
subsequent Grantee is selected and a subsequent or modified cable
television system becomes operational. The City, or another
party approved by City pursuant to the franchise application
procedures, may acquire the cable television system at a price
established pursuant to the provisions of Section 627 of the
Federal Cable Communications Policy Act of 1984. Alternatively,
the City may order the removal of the cable television system
facilities within a reasonable period of time as determined by
the Council.
(4) Notwithstanding anything to the contrary set
forth in this Chapter, the Grantee may abandon any of its cable
television system in place so long as it does not materially
interfere with the use of the street or public rights -of -way in
which such property is located or with the use thereof of any
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public utility, which material interference shall be reasonably
determined by the City Engineer. The Grantee shall not be
required to remove any portion of its cable television system
which has been abandoned or deemed abandoned in accordance with
the provisions of this Chapter unless it constitutes a
substantial portion of the cable television system.
Section 506.334_ - Receivership and Foreclosure:
(1) Any franchise shall, at the option of the City,
cease and terminate one hundred twenty (120) days after the
appointment of a receiver or trustee to take over and conduct the
business of the Grantee whether in a receivership,
reorganization, bankruptcy or other action or proceeding unless
such receivership or trusteeship shall have been vacated prior to
the expiration of said one hundred twenty (120) days, or unless:
(a) Such receiver or trustee shall have, within one
hundred twenty (120) days after his election or
appointment, fully complied with all terms of the
franchise and remedied all breaches of the franchise or
provided a plan for the remedy of such breaches which is
satisfactory to the City; and,
(b) Such receiver or trustee shall, within said one
hundred twenty (120) days, execute an agreement duly
approved by the Court having jurisdiction, whereby such
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receiver or trustee assumes and agrees to be bound by
each and every term, provision and limitation of the
franchise.
(2) Upon the foreclosure or other judicial sale of
all or a substantial part of a cable television system, or upon
the termination of any lease covering all or a substantial part
of the system, the Grantee shall notify the City Clerk of such
fact, and such notification shall be treated as a notification
that a change in ownership of the Grantee has taken place and the
provisions of this Chapter governing such changes shall apply.
Section 5.06.336 - Additional Remedies.
The remedies
provided for in this Section shall be in addition to and in
alternative to those contained elsewhere in this Chapter.
Section 5.06.400 - General Financial and Insurance
Provisions.
Section 5.06.402 - Construction Bond:
The Grantee shall
file with the City a construction bond in the amount specified in
the Franchise Ordinance within thirty (30) days prior to the
commencement of any construction work by the Grantee. The
construction bond shall be in the form approved by the City
Attorney.
Section 5.06.404 - Performance Bond:
If required under
the Franchise Ordinance, the Grantee shall, at least forty -five
(45) days after the effective date of the Franchise Ordinance,
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file with City a performance bond in the amount specified in the
Franchise Ordinance and in the form approved by the City
Attorney. City, in its sole discretion, may permit consolidation
of the performance bond with the construction bond and letter of
credit specified in this Chapter.
Section 5.06.406 - Letter of Credit:
(1) Within forty -five (45) days after the effective
date of the Franchise Ordinance, the Grantee shall establish a
letter of credit in favor of the City in the sum specified in the
Franchise Ordinance and in the form approved by the City
Attorney. The letter of credit shall serve as security for the
faithful performance by Grantee of all the provisions and
obligations of the Franchise.
(2) If thirty (30) days following receipt of written
notice from City of Grantee's failure to pay City an amount owing
under the Franchise, Grantee has not paid such amount as is due
and owing to City, the letter of credit may be assessed by the
City upon five (5) days prior written notice to the Grantee
indicating the intention of the City to draw upon the letter of
credit, the amount to be drawn and the reason therefor. The City
may assess the letter of credit for purposes including, but not
limited to:
(a) Failure of Grantee to pay City sums due under the
terms of the Franchise after due notice and opportunity
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to cure as provided under this Chapter.
(b) Reimbursement of costs borne by City to correct
Franchise violations not corrected by Grantee, after due
notice and opportunity to cure as provided under this
Chapter.
(c) Monetary remedies or damages assessed against
Grantee due to breach of the Franchise after due notice
and opportunity to cure as provided under this Chapter.
(3) The Grantee shall deposit a sum of money
sufficient to restore the letter of credit to the original amount
within thirty (30) days after notice from City that an amount has
been withdrawn from the letter of credit, specifying the date and
amount of the withdrawal.
Section 5.06.408 - Alternative Remedies:
In no event
shall the amount of any bond or letter of credit be construed to
limit Grantee's liability for damages. The rights reserved to
City with respect to the bonds and letter of credit are in
addition to all other rights of City, and no action with respect
to a bond or the letter of credit shall constitute an election of
remedies.
Section 5.06.410 - Liquidated Damages: Each Franchise
Ordinance shall contain a liquidated damages provision in
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connection with the construction, rebuild or reconstruction of
the cable television system. Liquidated damages due City shall
be a proper charge against the letter of credit to the extent
Grantee does not pay such damages when due following due notice
and opportunity to cure as provided under this Chapter.
Section 5.06.412 - Indemnification:
(1) The Grantee shall defend and hold harmless City
from all damages, penalties, attorneys' fees, consultant's and
expert's fees and costs arising directly or indirectly as a
result of the Grantee's exercise of the Franchise or operation of
the cable television system, regardless whether any act or
omission complained of is authorized, allowed, or prohibited by
the Franchise, to the extent such damages, penalties, fees or
costs arise out of or are caused by the act or omission of the
Grantee, its officers, employees or agents. Upon demand of City,
made by and through the City Attorney, the Grantee shall appear
in and defend City, its officers, employees and agents in any
legal action, whether judicial, administrative or otherwise, with
respect to which City is entitled to indemnification hereunder.
(2) The City shall indemnify, defend and hold the
Grantee, its affiliates and their respective officers, directors,
employees and shareholders harmless from and against any and all
liabilities, losses, damages, claims, actions, causes of action,
costs and expenses (including reasonable attorneys' fees) arising
from or in any manner related to the use of the Grantee's cable
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television system by the City, including the use of access
channels provided to the City for purposes of public, educational
or governmental programming or the programming carried on such
channels, or any public, educational or governmental programming
provided by the City for carriage on any other channel or
channels of the Grantee's cable system, including without
limitation with respect to the solicitation, production, content,
selection, scheduling, funding or presentation or such
programming and of commercial advertising or promotional material
for use in connection with such programming, as well as such
liability as may arise from claims of libel, slander, defamation,
invasion of privacy, infringement of copyright, musical
performing rights or any other right of any person. This
indemnity shall not apply with respect to any programming carried
on the access channels provided by the Grantee for its own
purposes.
Section 5.06.414 - Insurance:
(1) Within forty -five (45) days after the effective
date of the Franchise Ordinance, Grantee shall furnish proof that
the Grantee is insured under a broad form policy of liability
insurance issued by a company authorized to do business in
California. Such proof may be by one or more certificates of
insurance evidencing compliance with the provisions of this
Chapter and the Franchise Ordinance. The City shall approve the
form and provisions of the insurance. The insurance policy
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shall include, but not be limited to, coverage for premises
operations, explosion and collapse hazard, underground hazards,
contractual insurance, broad form property damage, independent
contractors and personal injury, and automobile liability. The
Grantee shall also maintain a policy of broadcaster's liability
coverage. The insurance shall be maintained at the sum specified
in the Franchise Ordinance.
(2) The City and its officers and employees shall be
named as additional insureds on said policy at no cost to the
City. Grantee shall also provide workers' compensation coverage
consistent with California statutory requirements. The City
shall receive thirty (30) days advance written notice of any
proposed reduction in coverage of the insurance policies on which
it is carried as a named insured, as well as on coverage required
to maintained by this section. Such advance notice shall also be
required as to any proposed or actual cancellation of any such
policies of insurance. Insurance endorsements of such coverage
shall be filed with the City.
Section 5.06.500 - Design and Construction.
Section 5.06.502 - System Design and Construction
Schedule: The cable television system shall be constructed in
accordance with the design requirements and construction
schedules contained in the Franchise Ordinance.
Section 5.06.504 - Geographical Coverage: Subject to
the line extension standards set forth in this Chapter, the
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Grantee shall design and construct the cable television system so
as to pass by every residential dwelling unit within the
franchise area. Cable television system construction and
provision of service shall be non - discriminatory, and the Grantee
shall not delay or defer service to any section of the franchise
area on the grounds of economic preference.
Section 5.06.506 - Minimum Service Requirements: Any
cable television system shall provide, at a minimum:
(1) The operational capability of relaying to
subscriber terminals the number of channels of video programming
set out in its Franchise Ordinance;
(2) Reception and transmission of broad categories of
video programming, including local broadcast stations, children's
programming, foreign language programming, news and sports
channels, premium service programming, and local origination and
educational and governmental access channels.
(3) Access to local facilities and equipment so as to
allow for production of both live and edited videotaped
programming, as provided in the Franchise Ordinance.
(4) Such additional PEG facilities, equipment and
services as specified in the Franchise Ordinance.
Section 5.06.508 - Provision of Service: After cable
service has been established by activating trunk and /or
distribution cables for any area, the Grantee shall provide cable
service to any requesting subscriber within that area within
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thirty (30) days from the date of request, provided that (1) such
subscriber is located within one hundred fifty (150) feet of such
trunk and /or distribution cable, (2) the Grantee is able to
secure all rights -of -way necessary to extend service to such
subscriber within such 30 -day period on reasonable terms and
conditions, (3) the Grantee is not required to construct its
service drop in an indirect or circuitous manner, and (4) the
Grantee complies with the line extension policies of this Chapter
and the Franchise Ordinance.
Section 5.06.510 - Leased Channel Service: Grantee
shall offer leased channel service to unaffiliated third parties
in accordance with the provisions of the Cable Communications
Policy Act of 1984.
Section 5.06.512 - Educational- Governmental Access
Channels. The Grantee shall provide channel capacity for
educational and governmental programming and for local
origination programming, as specified in the Franchise
Ordinance. The Grantee shall not exercise any editorial control
over educational and governmental channels provided pursuant to
this Chapter.
Section 5.06.514 - Notice Of Programming Changes:
The Grantee shall provide at least thirty (30) days
advanced written notice to the City and subscribers prior to
dropping, retiering or adding any channel to the cable television
system.
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Section 5.06.516 - Undergrounding:
(1) The cable television system shall be placed
underground in those portions of the franchise area where both
telephone and power lines are underground. In addition, whenever
the poles on which the cable system is constructed are being
eliminated, the Grantee shall concurrently replace its aerial
facilities with underground facilities, provided that under
circumstances in which the Grantee's distribution plant is
located on the aerial facilities of the utility providing either
telephone or electric service, which facilities are to be placed
underground, the Grantee may relocate such distribution plant to
the aerial facilities of the other utility where such aerial
facilities are available. At no time shall the cable television
system be the only aerial facility. Where undergrounding is
required, the Grantee shall have the option of sharing or not
sharing utility trenches. At no time shall Grantee place cable
underground without appropriate conduit.
(2) Where the Grantee's cable television system is
installed underground, line extenders, amplifiers, taps, power
supplies, traps and related electronic equipment and components
may be placed in appropriate housings above the surface of the
ground where consistent with accepted construction practices for
the type of cable system constructed by the Grantee. The
Franchise Ordinance shall provide a procedure for undergrounding
taps and pedestals at the subscribers' expense and relocating the
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taps and pedestals within the technical constraints of the cable
system.
(3) Where the overhead facilities of the utility
providing electrical service are placed underground pursuant to
the provisions of Rule 20A of the California Public Utilities
Commission, or any successor to such Rule, the Grantee shall
concurrently relocate underground its aerial plant installed with
such overhead facilities, provided that if any portion of the
relocation of such overhead facilities is paid for from funds
other than those specifically allocated by the electrical utility
to the relocation pursuant to said Rule 20A, the entire expense
of such portion of said relocation of the Grantee's aerial plant
shall be borne by the City.
(4) Where the overhead facilities of the utility
providing electrical service are placed underground pursuant to
the provisions of Rule 20B or Rule 20C of the California Public
Utilities Commission or any successor to such Rules, the Grantee
shall concurrently relocate underground its aerial plant
installed with such overhead facilities, provided that the City
shall bear the cost and expense of (i) all necessary trenching,
backfilling and repaving required in connection with the
underground installation of the Grantee's aerial plant, (ii) the
installation of all conduit, vaults and /or pedestals required in
connection with the underground installation of such plant and
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(iii) all structures and substructures required in connection
therewith.
(5) In all circumstances other than those set forth
in clauses (3) and (4) above, the City shall reimburse or cause
affected property owners to reimburse the Grantee for the cost of
relocating its aerial plant underground together with the
overhead facilities of the utilities providing electric and /or
telephone service.
(6) In the event of multiple franchisees desiring to
serve new residential developments in which the electric power
and telephone utilities are underground, the following procedure
shall apply with respect to access to and utilization of
underground easements:
(a) The developer shall be responsible for
contracting and surveying all franchised cable operators to
ascertain which operators desire to provide cable television
service to that development. The developer may establish a
reasonable deadline to receive cable operator responses. The
final development map shall indicate the cable operators that
have agreed to serve the development.
(b) If one (1) or two (2) cable operators wish
to provide service, they shall be accommodated in the joint
utilities trench on a nondiscriminatory shared basis.
(c) The developer shall provide at least ten
(10) working days notice of the date that utility trenches will
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be open to the cable operators that have agreed to serve the
development.
(d) Sharing the joint utilities trench shall be
subject to compliance with Public Utilities Commission and
utility standards. If such compliance is not possible, or if
three (3) or more cable operators desire to provide service to
the development, the developer shall provide a separate trench
for the cable television cables, with the entire cost shared
among the participating operators. With the concurrence of the
developer, the affected utilities and the cable operators,
alternative installation procedures, such as the use of deeper
trenches, may be utilized, subject to applicable law.
(e) Any cable operator wishing to serve an area
where the trenches have been closed shall be responsible for its
own trenching and associated costs; provided that if the cable
operator was not provided timely written notice of the
availability of such trenches, the developer shall reimburse the
operator for such costs.
Section 5.06.518 - Use of Poles: A Grantee shall be
authorized to utilize existing poles, conduits, and other
facilities of a public utility, but shall not be authorized to
construct or install any new, different, or additional poles in
the streets without City approval.
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Section 5.06.520 - Construction Standards: Each Grantee
shall install and maintain its wires, cables, fixtures, and other
equipment in accordance with applicable pole attachment
standards, electrical codes and industry standards of the cable
television industry generally applicable to the type of cable
system which the Grantee has constructed. Each Grantee shall
adhere to all building and zoning codes currently or hereafter in
force. Each Grantee shall locate and maintain its line, cables,
and other appurtenances, on public property, in such a manner as
to cause no unreasonable interference with the use of said public
property by any person.
Section 5.06.522 - Required Approvals: The City
Engineer shall approve the location and method of construction of
all a underground facilities and equipment (including any above -
grade portion of such facilities and equipment), provided such
approval is not unreasonably withheld or delayed, and shall be
consistent with the provisions of Section 5.06.516 of this
Chapter, as well as with the design or technical specifications
of the system. The City Engineer shall also approve the location
and installation of all new aerial facilities consistent with
Public Utilities Commission, General Order 95, provided such
approval is not unreasonably withheld or delayed. Such
facilities and equipment shall be located so as not to endanger
persons or property. The construction shall be subject to City
permit and inspection fees as may be required by other applicable
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laws or regulations heretofore or hereafter adopted, including,
but not limited to, those pertaining to works and activities in,
on, under or over streets.
Section 5.06.524 - Submission of Drawings: Upon written
notice to the Grantee, the Grantee shall furnish the City with
as -built drawings of its entire cable television system in the
City. The Grantee shall obtain the City Engineer's approval to
any material modification of the as -built plans, such as a system
rebuild or trunk replacement, and then file the revised as -built
plans within thirty (30) days completion of the modification.
Section 5.06.526 - Relocation of Facilities and
Equipment:
(1) For purposes of this Section, the word "Project"
shall mean any lawful change of grade, alignment or width of any
public street, way, alley or place, including but not limited to,
the construction of any subway or viaduct, that the City may
initiate, either through itself, or any redevelopment agency,
community facility district, assessment district, area of
benefit, reimbursement agreement or generally applicable impact
fee program. This Section shall not apply to any community
facility district or assessment district for the undergrounding
of aerial facilities on residential collector streets.
(2) Grantee shall remove or relocate any facilities
installed, used and maintained under the Franchise if and when
made necessary by any Project.
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(3) When such removal or relocation is required,
Grantee shall begin physical field work on the removal or
relocation within one - hundred twenty (120) days after written
notice from the City Manager, or his designee. If, despite its
reasonable efforts, Grantee is unable to begin removal or
relocation within the above one- hundred twenty (120) day period,
Grantee shall give written notice to the City Manager of the
reason or reasons for the delay and the date removal or
relocation is expected to begin. Grantee shall proceed promptly
to complete such required work.
Section 5.06.528 - Maintenance: Should the Grantee
fail, refuse or neglect to properly perform any work or other act
required by the Franchise following due notice from the City and
a reasonable opportunity to remedy such failure, refusal or
neglect as provided in this Chapter, or should the Grantee fail
to commence to perform such work within the period of time
allowed therefore, and diligently progress and complete such work
thereafter, the City Manager may, upon five (5) days prior
written notice to the Grantee (except in cases of emergency),
cause such work or other act to be completed in whole or in part
by City forces or others, and upon so doing shall submit to the
Grantee an itemized statement of the costs thereof. The Grantee
shall, within thirty (30) days after receipt of such statement,
pay to the City the entire amount thereof, without off -set or
deduction. After thirty (30) days following Grantee's failure to
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pay the City said costs, the City may assess the letter of credit
provided for in this Chapter, in accordance with the provisions
of this Chapter.
Section 5.06.530 - Technical Standards: Grantee shall
comply at all times with FCC technical standards or guidelines.
The City may adopt additional technical standards pursuant to the
Franchise Ordinance and may utilize them as one measure of
Grantee's quality of service in connection with renewal
proceedings. Furthermore, if and when the City may, consistent
with federal law, enforce technical standards more stringent than
those promulgated by the FCC, then the City may, pursuant to
resolution and on the basis of the evidence presented at a
noticed public hearing, establish new technical standards which
exceed the FCC's technical standards or guidelines, provided that
such new technical standards shall not apply to existing
franchises in which the City and the Grantee have adopted
alternative technical standards or where such new technical
standards adversely affect the Grantee under an existing
franchise.
Section 5.06.532 — Performance Testing: Grantee shall
perform at least annually all tests necessary to determine
compliance with the FCC technical standards or guidelines, those
technical standards established in the Franchise Ordinance in
connection with renewal proceedings, and those that may be
established under Section 5.06.530 of this Chapter (if
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applicable). At any time after commencement of service to
subscribers, the City may order that the Grantee perform
additional tests on the basis of substantial numbers of
complaints received or other evidence indicating significant
noncompliance with the applicable technical standards. Such
additional tests shall be limited to the particular matter in
controversy. The costs of any such tests, and any necessary
retests, shall be borne by Grantee. Grantee shall permit
reasonable access to the cable system to permit City or its
consultants to test the system. The City shall bear the cost of
such third -party testing, unless it is determined Grantee is in
material noncompliance with the technical standards.
Section 5.06.534 - Interconnection:
(1) The Franchise Ordinance shall establish the
obligation of the Grantee to interconnect PEG channels of its
cable television system serving the City with adjacent and nearby
systems owned by the same Grantee. The Franchise Ordinance shall
address the timing, method, technical standards and allocation of
costs for the interconnection.
(2) Upon receiving City directive, each Grantee shall
immediately initiate negotiations with the owners of nearby and
adjacent systems regarding interconnecting PEG channels. The
Grantee shall report to the City the results of such negotiations
no later than sixty (60) days after initiation, unless the City
grants an extension of time to complete negotiations.
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Interconnection shall not be required if the City finds that the
Grantee has negotiated in good faith and has failed to obtain
agreement with the system or systems of the proposed
interconnection with respect to timing, method, technical
standards and allocation of costs for the interconnection, or
that the cost of the interconnection would cause an unreasonable
or unacceptable increase in subscriber rates.
Section 5.06.600 - Consumer Standards.
Section 5.06.602 - Consumer Service Standards: The
Grantee shall provide:
(1) An office reasonably accessible to subscribers to
provide the necessary facilities, equipment and personnel to
comply with the consumer service standards under normal
conditions of operation. In the event the business office is not
established within the City, the Grantee will establish a pay
station within the City through an arrangement with a local
merchant or financial institution for the payment of subscribers'
statements. The Grantee shall provide a procedure for
subscribers to obtain installation and disconnection of cable
television service without the necessity of visiting an office
outside of City limits.
(2) Sufficient toll -free telephone line capacity such
that, during normal business hours and excluding major service
outages, a minimum of seventy -five percent (75 %) of all callers
for service will not be required to wait more than sixty (60)
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seconds before being connected to a service representative; and
further, a minimum of fifty percent (50 %) of all callers will not
be required to wait more than thirty (30) seconds before being
connected to a service representative; in each case as measured
over a period of thirty (30) consecutive days.
(3) Emergency toll -free telephone line capacity on a
twenty -four (24) hour basis, including weekends and holidays.
(4) A business and service office, open during normal
business hours and at least two (2) hours weekly outside of
normal business hours, and adequately staffed to accept
subscriber payments and respond to service requests and
complaints.
(5) An emergency system maintenance and repair staff,
capable of responding to and repairing major system malfunction
on a twenty -four (24) hour basis.
(6) An installation staff, capable of installing
service to any subscriber under normal conditions within seven
(7) days after receipt of a request, in all areas where trunk and
feeder cable have been activated, as measured over a period of
thirty (30) consecutive days.
Repairs:
Section 5.06.604 - Requests for Cable Service and
(1) Grantee shall render efficient service, make
repairs promptly, and interrupt service only for good cause and
for the shortest time possible. Scheduled interruptions
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exceeding four (4) hours during the period of midnight to 6:00
A.M. and exceeding one (1) hour during other periods shall be
preceded by notice to subscribers. Scheduled interruptions shall
occur during periods of minimum use of the system, preferably
between midnight and 6:00 A.M. Notice shall be provided via the
cable system no earlier than three (3) days prior to the
scheduled interruption. A written log or an equivalent stored in
computer memory and capable of access and reproduction, shall be
maintained for all service interruptions and subscriber requests
for repair or service complaints that result in a service call.
(2) The Grantee shall maintain a repair force of
service representatives capable of responding to subscriber
requests for service within the following time frames ninety -five
percent (95 %) of the time, measured over a thirty day period,
excluding major outages:
(a) System outage: Within two (2) hours, including
weekends, of receiving subscriber calls which by number
identify a system outage of sound or picture of one (1)
or more channels, affecting all the subscribers of the
system or a considerable number thereof.
(b) Isolated outage: Within twenty -four (24) hours,
including weekends, of receiving requests for service
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from five (5) or more customers in the same geographical
area identifying a complete outage of cable service.
(c) Inferior reception quality: Within forty -eight
(48) hours, excluding Sundays and holidays, of receiving
a request for service identifying a problem concerning
picture or sound quality. The subscriber may agree to a
longer service response time.
(3) Grantee shall be deemed to have responded to a
request for service under the provisions of this Section when a
service representative arrives at the service location (which may
be other than a subscriber's residence), if necessary, or
otherwise begins work on the problem. In the case of a
subscriber not being home when the service representative
arrives, response shall be deemed to have taken place if the
service representative leaves written notification of arrival.
(4) Grantee shall schedule service and installation
appointments within a specified four (4) hour time period.
Specifying appointments as either "morning" or "afternoon" shall
be deemed to comply with the requirements of this Subsection.
The obligation of the Grantee to specify installation or service
appointments within a designated four (4) hour time period shall
be consistent with the Grantee's scheduling calendar, such that
when available morning and afternoon appointments have been
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scheduled, additional subscribers requesting installation or
service on such days may be advised that the Grantee's service
personnel may arrive at any point during the business day. If a
subscriber requesting service on a given day cannot be scheduled
with a specific morning or afternoon time period and is advised
that the Grantee's service personnel may arrive at any point
during the business day, the subscriber may request the Grantee
to make an appointment for morning or afternoon service on the
next business day in which such appointments are available.
(5) All requests for cable service or repairs shall
be acknowledged within eighteen (18) hours of the request,
provided that the day following the request is a business day.
Section 5.06.606 - Right of Privacy of Subscribers.
(1) As used in this section, "valid authorization"
shall mean written approval from the subscriber expressly valid
for a period of time not to exceed one year.
(2) Each Grantee shall strictly observe and protect
the rights of privacy and of property of subscribers and users at
all times. Information on individual subscribers, individual
subscriber preferences of any kind, viewing habits, political,
social or economic philosophies, beliefs, creeds, religions or
names, addresses or telephone numbers shall not be revealed to
any person, governmental unit, private agency or company, unless
upon the authority of a court of law, by statute, or upon valid
authorization of the subscriber. The authorization must be
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contained in a separate document with a prominent statement that
the subscriber is authorizing the permission in full knowledge of
its provisions. Such authorization shall not in any event be
required as a condition of receiving service.
(3) A Grantee may release the number of its
subscribers only as a total number, as a percentage of the
potential subscribers throughout its franchise area, and a number
of viewers of individual channels. When indicating the number of
subscribers viewing a particular channel at a particular time, a
Grantee shall indicate only the total number of subscribers
viewing during the relevant time and the percentage of all
subscribers which they represent, but never the identity of a
particular subscriber.
(4) A Grantee may obtain and /or maintain only such
information relating to subscribers as is necessary to conduct
legitimate business activity related to cable service, or any
other service the Grantee provides to subscribers.
(5) A subscriber may, at any time, revoke any valid
authorization previously made, by delivering to a Grantee in
writing, by mail or otherwise, his /her decision to so revoke.
Any such revocation shall be effective upon receipt by Grantee.
(6) No monitoring of any subscriber terminal shall
take place without specific prior written authorization by the
user of the terminal in question, provided, however, a Grantee
may conduct systemwide or individually addressed "sweeps" for the
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purpose of verifying system integrity, security monitoring,
and /or other addressable premium service implementation or
verification. In no event shall residential aural or visual
monitoring of any kind take place without a clear indication to
the subscriber that such monitoring is taking place.
(7) A Grantee may, without prior subscriber approval,
monitor those subscriber terminals which are connected to utility
monitoring devices which measure utility usage and which have
been first approved by the City Council.
(8) Prior to the implementation of any interactive
subscriber response mechanism, a Grantee must first demonstrate
to the satisfaction of the City Manager that such a mechanism can
provide effective protection against invasion of privacy.
(9) A Grantee shall not tabulate any test results,
nor, permit the use of the cable television system for such
tabulation, in a manner which would reveal the commercial product
preferences or opinions of subscribers without valid
authorization.
(10) Each compilation, publication, tabulation or
other dissemination of information made or permitted to be made
in violation of this Section with respect to a single occurrence
or series of related occurrences may result in the imposition of
liquidated damages, pursuant to the Franchise Ordinance.
(11) The rights accorded subscribers pursuant to this
Section shall be in addition to any other privacy right accorded
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subscribers pursuant to federal or state law.
(12) The Grantee shall not market mailing lists with
the names and addresses of subscribers unless the subscribers
have been provided the opportunity to prohibit or limit such
disclosure. The Grantee shall provide a form which permits the
subscriber to check a box and mail in the form to delete his or
her name from the mailing list.
(13) Notwithstanding anything in this Section to the
contrary, nothing herein shall prohibit a Grantee from using its
cable system to collect and disclose such information necessary
to render, or conduct a legitimate business activity related to,
a cable service or other service provided by the cable operator
to the subscriber.
Section 5.06.608 - Identification Required: Each
Grantee shall provide its employees, contractors and
subcontractors with identification for all individuals who may
make personal contact with residents of the City.
The Grantee shall provide a list of current employees,
contractors and subcontractors to the City upon request. The
City may require the Grantee to notify subscribers yearly, of the
form of said identification.
Section 5.06.610 - Verification of Standards:
(1) Upon reasonable notice, the Grantee shall
demonstrate compliance with any or all of the standards required
in Sections 5.06.602 - 5.06.608. The Grantee shall provide
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sufficient detail to permit the City to verify the extent of
compliance.
(2) A repeated and verifiable pattern of
noncompliance with the consumer protection standards of Sections
5.06.602 - 5.06.608, after the City has given the Grantee due
notice and a reasonable opportunity to cure in accordance with
the provisions of this Chapter, may be termed a breach of the
Franchise, subject to any and all remedies as prescribed herein
and under applicable law.
Section 5.06.612 - Subscriber Complaints:
(1) Grantee shall establish written procedures for
receiving, acting upon and resolving'subscriber complaints
without intervention by the City consistent with the Franchise.
The written procedures shall prescribe the manner in which a
subscriber may submit in writing a complaint that Grantee has
violated any provision of the Franchise or the subscriber's
contract with Grantee. At the conclusion of Grantee's
investigation of a subscriber complaint, Grantee shall notify the
subscriber in writing of the results of the investigation and its
proposed action or resolution, if any.
(2) In the event that cable service to any subscriber
is interrupted, without fault of the subscriber, or those within
its control, for twenty -four (24) or more consecutive hours, the
Grantee shall provide each affected subscriber requesting the
same a pro rata rebate of the monthly fees for each 24 -hour
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period of the interruption. In addition, customer service
representatives of Grantee shall have the discretion to grant
refunds of up to one month for service interruptions.
(3) The City Manager or his designated representative
shall be responsible for assisting in the resolution of consumer
complaints. Subscribers or the Grantee may call upon this
service.
(4) The Grantee shall designate a "government liaison
person" who shall be responsible for working with the City
Manager or his designated representative to resolve consumer
complaints.
(5) The City may establish an escrow account wherein
a subscriber may deposit a disputed portion of the subscriber's
monthly service charge. If a subscriber either continues to make
full and timely payment of all monthly service charges to Grantee
or deposits any disputed portion of such monthly service charges
to said escrow account, Grantee shall not discontinue service
during the pendency of a complaint submitted under the provisions
of this Chapter. Any amounts deposited in the escrow account
shall be paid to the Grantee or subscriber in accordance with a
final determination of a complaint.
Section 5.06.614 - Arbitration of Subscriber Complaints:
(1) The Grantee shall notify subscribers of this
complaint arbitration procedure at the time they originally apply
for service, and subsequently, annually.
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(2) A subscriber dissatisfied with Grantee's proposed
decision regarding a complaint may have the City review the
complaint. To obtain this review, the subscriber must request
City review within 30 days of receipt of Grantee's response to
the complaint, or within 45 days of submitting the complaint to
the Grantee, if the Grantee has failed to respond to the
complaint. The City may extend the time to request its review
for good cause.
(3) Before reviewing the complaint, the City Manager
shall refer it to the Grantee. If the Grantee fails to resolve
the complaint within ten (10) days, the City Manager shall review
the subscriber's complaint and determine if further action is
warranted. The City Manager may request written statements from
the Grantee and subscriber, and /or oral presentations.
(4) The City Manager shall determine upon his review
of the evidence if there has been a violation of this Chapter,
the Franchise Ordinance or any applicable rule or regulation, and
if so, what remedy, if any, shall be imposed. The remedy imposed
may include a rebate of subscriber charges related to the period
of violation of the Franchise or a penalty of up to $100 for any
single event or series of related events.
designee.
(5) The City Manager may delegate his duties to his
(6) The Grantee or the subscriber may appeal the City
Manager's decision to the hearing officer provided for by Section
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5.06.328.
Section 5.06.700 - Rates.
Section 5.06.702 - Rate Regulation: The City shall not
regulate Grantee's rates for any class of cable service during
the time period that rate regulation is prohibited under the
Federal or State law. The City reserves the right to institute
any rate regulation system permitted by law in the event that the
deregulation of rates mandated by the Federal Cable
Communications Policy Act of 1984 or any successor or replacement
thereto is ever repealed or held unconstitutional, or amended to
allow for rate regulation. The City may adopt such a rate
regulation system by amendment to the Franchise Ordinance.
Section 5.06.704 - Billing Procedures: The Grantee
shall provide billing statements to its subscribers in the manner
set out in the Franchise Ordinance. At a minimum, such billing
statements shall identify the aggregate charges for all services
delivered to the subscriber, the individual services the
subscriber receives, the date such charges must be paid prior to
assessment of any late charge or related fee, credit for payment
received against current or prior service charges and an accurate
description of any taxes, fees or assessments separately charged
to the subscriber.
Section 5.06.706 - Notice of Rate Increases: The
Grantee shall provide the City and subscribers at least sixty
(60) days in advance with written notice of the implementation of
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changes in any of its rates and charges which are not subject to
regulation by the City. The notice shall include a statement of
the reasons for the rate increase.
Section 5.06.800 - Service Provisions.
Section 5.06.802 - PEG Programming: Grantee shall
provide support for PEG programming pursuant to the provisions of
the Franchise Ordinance.
Section 5.06.804 - System Extension:
(1) The Grantee shall extend energized trunk or
distribution cable from any existing terminus of the cable system
to any area immediately adjacent thereto located within the
Grantee's franchise area having a density of at least forty (40)
residential dwelling units per mile as measured from that
terminus, provided that (1) each such dwelling unit is or is
anticipated to be located within a distance of no more than a
standard one hundred fifty (150) foot drop as measured from the
anticipated location of such trunk or distribution cable, and (2)
the Grantee is able to secure all necessary easements or rights -
of -way for purposes of locating its cable system in the area of
such extension, including the location of all trunk, distribution
and drop cables, on reasonable terms and conditions.
(2) The Grantee shall extend cable television
services to any isolated residences not within the terms of
subparagraph (1) or commercial premises at a premium installation
rate upon request by the resident or owner. The premium
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installation rate charged shall be the actual cost for the
extension. Grantee may request advance payment for such
installation.
(3) No provision of this Chapter shall require
Grantee, if more than one exists, to extend cable television
services to an area currently being provided with such services
by another Grantee, or planned to be served by another Grantee
within six months.
Section 5.06.806 - Tenant Rights: It is City's intent
that tenants not be discriminated against in-the ability to
subscribe to cable services. Grantee shall be required to
provide service to tenants in individual units of a multiple
housing facility with all services offered to other dwelling
units within the franchise area, so long as the owner of the
facility consents in writing, if requested by Grantee, to the
following:
(1) To Grantee's providing the service to units of
the facility on such terms and conditions as are reasonably
acceptable to Grantee, provided that the owner of the facility
does not seek to charge Grantee any fee or consideration for
access to the facility or for the right of providing cable
television service to the dwelling units within the facility;
(2) To reasonable conditions and time for
installation, maintenance, and inspection of the system on the
facility premises;
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(3) To reasonable conditions promulgated by Grantee
to protect Grantee's equipment and to encourage widespread use of
the system; and
(4) To not discriminate in rental charges, or
otherwise, between tenants who receive cable service and those
who do not.
(5) To provide all easements, rights -of -way and other
rights of access deemed reasonably necessary or appropriate by
Grantee for purposes of providing cable television service to the
facility.
Section 5.06.808 - Continuity of Service Mandatory.
(1) It shall be the right of all subscribers to
continue receiving service insofar as their financial and other
obligations to the Grantee are honored. In the event that the
Grantee elects.to overbuild, rebuild, modify, or sell the system,
or the City gives notice of intent to terminate or fails to renew
a franchise, the Grantee shall maintain continuity of service to
all subscribers.
In the event of a change of Grantee, or in the
event a new operator acquires the system, the original Grantee
shall cooperate with City, new Grantee or operator in maintaining
continuity of service to all subscribers.
(2) In the event Grantee fails to operate the system
for five (5) consecutive days without prior approval of City or
without just cause, City may, at its option, operate the system
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or designate an operator until such time as Grantee restores
service under conditions acceptable to City or a permanent
operator is selected. If City is required to fulfill this
obligation for the Grantee, then during such period as City
fulfills such obligation, City shall be entitled to collect all
revenues from the system, and the Grantee shall reimburse City
for all reasonable costs or damages in excess of the revenues
collected by City that are the result of the Grantee's failure to
perform.
Section 5.06.900 - Operation and Maintenance.
Section 5.06.902 - Maintenance of and Inspection of
Records: The City shall have the right, upon two (2) business
days advanced notice, to inspect all books, records, maps, plans,
gross revenues, service complaint logs, performance test results
and other like materials of the Grantee which reasonably relate
to Grantee's compliance with the provisions of the franchise.
Section 5.06.904 - Complaint Records:
(1) An accurate and comprehensive file shall be kept
by the Grantee of any and all written complaints, inquiries, or
requests for service or repairs regarding the cable system. A
procedure shall be established by the Grantee by the time of
installation of the cable system to remedy complaints quickly and
reasonably to the satisfaction of the City. These files and
records shall remain open to the public during normal business
hours, so that individuals are able to inspect their own files.
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(2) Records of Grantee's actions in response to all
complaints or inquiries which result in a service call shall be
entered into a data base, or "log ", listing the date of consumer
complaints and requests for service or repairs. The log shall
further identify the subscriber and describe the nature of the
complaint or request, and when and what action was taken by the
Grantee in response thereto. A separate log shall identify
system outages. All such records shall be maintained for a
period of three (3) years, and shall be available for inspection
in accordance with Section 5.06.902. Summaries of such records
shall be available monthly and delivered quarterly to the City
Manager or his designated representative.
Section 5.06.906 - Property Damage: Any physical damage
caused by employees, contractors or subcontractors of the Grantee
to private or public property shall be repaired or replaced.
Section 5.06.1000 - Condemnation.
Section 5.06.1002 - Condemnation: The City, in
compliance with the Federal Cable Communications Policy Act of
1984 and California Law governing eminent domain and upon payment
of fair market value, may condemn the franchise, property and
plant of Grantee.
Section 5.06.1100 - Reports.
Section 5.06.1102 - Annual Reports:
(1) The City may require, pursuant to resolution
adopted at least 60 days before the close of Grantee's fiscal
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year, that within 60 days after the close of Grantee's fiscal
year, the Grantee shall submit a written annual report, in a form
approved by the City, including, but not limited to, the
following information:
(a) A summary of the previous year's (or, in the case
of the initial report year, the initial year's) activities in
development of the cable system, including, but not limited to,
services begun or discontinued during the reporting year, and the
number of subscribers for each class of service;
(b) A revenue statement, audited by an independent
Certified Public Accountant, or certified by an officer of the
Grantee;
(c) A statement of projected construction, if any,
for the next two (2) years;
(d) A list of Grantee's officers, members of its
board of directors, and other principals of Grantee;
(e) A list of stockholders or other equity investors
holding five percent (5 %) or more of the voting interest in the
Grantee and its parent, subsidiary and affiliated corporations
and other entities, if any, unless the parent is a public
corporation whose annual reports are publicly available.
(2) In addition, at City's request, Grantee shall
submit to City an annual plant survey report which shall include,
but not be limited to:
(i) "as- built" maps of the portions of the
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franchise area that have been cabled and have all services
available;
(ii) a summary of the system indicating miles and
homes passed;
(iii) annual proof of performance tests, in
sufficient detail to enable the City to ascertain that the
technical standards of the Franchise are achieved and maintained.
(3) If City has reason to believe that portions or
all of the system do not materially comply with the technical
standards incorporated into the Franchise Ordinance, at the
City's request, but no more often than once per three (3) years,
the Grantee and the City shall agree upon the appointment of a
qualified independent engineer to evaluate and verify the
technical performance of the cable television system. The cost
of such evaluation shall be borne by the Grantee if the
evaluation indicates a material breach of the Franchise, which
shall be determined to exist if more than twenty -five percent
(25 %) of all test points measured materially fail to comply with
the applicable technical requirements of the Franchise
Ordinance. -
Section 5.06.1104 - Copies of Reports.
(1) Copies of all reports materially adversely
affecting the Franchise submitted by the Grantee to the FCC or
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any other Federal or State agency shall be submitted to City
simultaneously with filing such reports with said agencies.
Grantee's routine public correspondence to said agencies need not
be automatically submitted to City, but shall be made available
to City upon written request.
(2) Grantee shall submit to the City such other
information or reports in such forms and at such times as the
City may reasonably request or require, provided such information
or reports are reasonably related to the Grantee's compliance
with its obligations under the Franchise.
(3) All reports and records required under this or
any other section shall be furnished at the sole expense of the
Grantee.
Section 5.06.1106 - Failure to Report. The refusal,
failure, or neglect of the Grantee to file any of the reports
required under this Chapter, where such refusal, failure or
neglect is not remedied following due notice and an opportunity
to cure as provided in this Chapter, or the inclusion of any
materially false or misleading statement or representation made
knowingly by the Grantee in such report, shall be deemed a
material breach of the Franchise, and shall subject the Grantee
to all remedies, legal or equitable, which are available to the
City under the Franchise or otherwise.
Section 5.06.1108 - Public Reports. A copy of each of
Grantee's annual and other periodic public financial reports and
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those of its parent, subsidiary and affiliated corporations and
other entities, as the City requests, shall be submitted to the
City within thirty (30) days after receipt of a request.
Section 5.06.1110 - Inspection of Facilities: The
Grantee shall allow the City to make inspections of any of the
Grantee's facilities and equipment relevant to the Franchise at
any time upon reasonable notice, or, in a case of emergency, upon
demand without prior notice.
Section 5.06.1112 - Subscriber Satisfaction Surveys:
Grantee shall conduct, at least annually, a subscriber
satisfaction survey. The City may add to this survey reasonable
cable - related questions. The Grantee shall provide the City with
copies of the survey results.
Section 5.06.1114 - Annual Review of Performance and
Quality of Service.
(1) At City's sole option, within ninety (90) days
of the first anniversary of the effective date of each franchise,
and each year thereafter throughout the term of the franchise,
City may hold a public hearing at which the Grantee shall be
present and shall participate, to review the performance and
quality of service of the cable communications system. The
reports required herein regarding subscriber complaints, the
records of performance tests and the opinion survey report shall
be utilized as the basis for review. In addition, any subscriber
may submit comments or complaints during the review meetings,
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either orally or in writing, and these shall be considered.
(2) Within thirty (30) days after the conclusion of
the public hearing, City shall issue a report with respect to
system performance and quality of service. If any noncompliance
with the Franchise is found, City may direct Grantee to correct
the noncompliance within a reasonable period of time in
accordance with the provisions of this Chapter.
(3) Failure of Grantee, after due notice and
opportunity to cure as set forth in this Chapter, to correct the
noncompliance shall be considered a breach of the Franchise, and
City may, at its sole discretion, exercise any remedy within the
scope of this Chapter considered appropriate.
Section 5.06.1116 - System and Services Review. To
address technological, economic, and regulatory changes in the
state of the art of cable communications, to facilitate renewal
procedures, and to promote flexibility in the cable system, the
following system and services review procedures are hereby
established:
(1) At City's sole option, City may hold a public
hearing on or about the third anniversary date of the Franchise
Ordinance at which the Grantee shall be present and shall
participate, to review the cable communications system and
services. Subsequent system and services review hearings may be
scheduled by City each three (3) years thereafter. It is City's
intent to conduct any system and services review concurrently
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with any Annual Review as provided for herein.
(2) Sixty (60) days after receiving notice from the
City, Grantee shall submit a report to City indicating the
following:
(a) All cable system services reported in cable
industry trade journals that are being commonly
provided on an operational basis, excluding tests
and demonstrations, to communities in the United
States with comparable populations, that are not
provided to City.
(b) Any specific plans for provision of such new
services by the Grantee, or a justification
indicating why Grantee believes that such
services are not feasible for the franchise area.
(3) Topics for discussion and review at the system
and services review hearing shall include, but shall not be
limited to, services provided, economic and technical feasibility
of providing new services, application of new technologies,
system performance, programming, subscriber complaints, user
complaints, rights of privacy, amendments to the franchise,
undergrounding processes, developments in the law, and regulatory
constraints.
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(4) Either City or the Grantee may select additional
topics for discussion at any review hearing.
(5) Not later than sixty (60) days after the
conclusion of each system and service review hearing, City shall
issue a report, including specifically a listing of any cable
services not then being provided to City that are considered
technically and economically feasible and for which there is a
demonstrated need among the Grantee's subscribers in relation to
the cost thereof. City may request, but not require, Grantee to
provide such services within a reasonable time.
Section 5.06.1200 - Miscellaneous Provisions:
Section 5.06.1202 - Compliance with State and Federal
Laws. Notwithstanding any provisions of the franchise to the
contrary, the Grantee shall at all times comply with all
applicable laws and regulations of the State and Federal
government or any administrative agencies thereof. However, if
any such State or Federal law or regulation shall require the
Grantee to perform any service, or shall permit the Grantee to
delete any service, or shall prohibit the Grantee from performing
any service, in conflict with the terms of the Franchise or any
law or regulation of the City, then as soon as possible following
knowledge thereof, the Grantee shall notify the City of the point
of conflict believed to exist.
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Section 5.06.1204 - Notices: Grantee shall maintain
within Los Angeles or Ventura County throughout the term of the
Franchise, an address for service of notices by mail."
SECTION 2. The City Clerk is directed to certify the
adoption of this ordinance and shall cause the same to be
published or posted in the manner prescribed by law.
PASSED AND ADOPTED this 21st day of NOVEMBER , 1989.
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the City Council of the City_of Moorpark at a regular
meeting thereof, held on the 21stday of NOVEMBER , 1990, by the
following vote of the Council:
AYES: COUNCILMEMBERS MONTGOMERY, PEREZ, WOZNIAK AND MAYOR LAWRASON
NOES: NONE
ABSENT: NONE
ATTEST:
MOORPARK
BERNARDO M.PEREZ
Mayor
SCOTT MONTGOMERY
Mayor Pro Tern
ELOISE BROWN
Councilmember
CLINT HARPER, Ph.D.
Councilmember
PAUL W. LAWRASON, Jr.
Councilmember
LILLIAN KELLERMAN
City Clerk
STATE OF CALIFORNIA )
COUNTY OF VENTURA )
CITY OF MOORPARK )
SS.
STEVEN KUENY
City Manager
CHERYL J.KANE
City Attorney
PATRICK RICHARDS, A.I.C.P.
Director of
Community Development
R. DENNIS DELZEIT
City Engineer
JOHN V. GILLESPIE
Chief of Police
RICHARD T. HARE
City Treasurer
I, Lillian E. Kellerman, City Clerk of the City of Moorpark,
California, do hereby certify under penalty of perjury that
the foregoing Ordinance No. 133 was adopted by the
City Council of the City of Moorpark at a meeting held on
the 21st day of NOVEMBER , 1990, and that the
same was adopted by the following vote:
AYES: COUNCILMEMBERS MONTGOMERY, PEREZ, WOZNIAK AND MAYOR LAWRASON
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
WITNESS my hand and the official seal of said City this
26TH day of NOVEMBER , 1990.
LLIAN E. KE LERMAN, CITY CLERK
799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864