HomeMy WebLinkAbout507ORDINANCE NO. 507
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF IRWINDALE
ESTABLISHING PROCEDURES FOR GRANTING OF
CABLE TELEVISION FRANCHISES AND RENEWALS THEREOF,
AND SETTING FORTH RULES AND REGULATIONS
GOVERNING THE OPERATION OF SUCH FRANCHISES.
The City Council of the City of Irwindale does hereby ordain as follows:
Section 1: Chapter 5.32 of Title 5 of the Irwindale Municipal Code
hereby is repealed; provided, however, that such repeal shall not excuse a violation of
said Chapter occurring prior to the effective date hereof. A new Chapter 5.32 hereby is
added to Title 5 of the Irwindale Municipal Code to read, in words and figures, as
follows:
*+ "Chapter 5.32
"Cable Television Franchises
"Sections:
"5.32.010
Definitions.
"5.32.020
Franchise Required to Operate.
115.32.030
Violations.
"5.32.040
Authorization to Engage in Business.
"5.32.050
Limitations of Franchise.
"5.32.060
Acquisition by City.
"5.32.070
Rights Reserved to the City.
"5.32.080
Applications for New Franchise.
"5.32.090
Application Fees for New Franchise.
"5.32.100
Selection of New Grantees.
"5.32.110
Duration of Franchise and Renewal.
"5.32.120
Transfers and Assignments.
"5.32.130
Incorporation of Proposal by Reference.
115.32.140
Payment of Franchise Fee.
"5.32.150
Use of Telephone Facilities.
115.32.160
Required Services and Facilities.
"5.32.170
Service Standards.
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"5.32.180
Subscriber Service Rates.
"5.32.190
Rights of Individuals.
"5.32.200
Privacy.
"5.32.210
Access Channels.
"5.32.220
Areawide Interconnection of Cable Systems.
"5.32.230
New Developments.
"5.32.240
Time is of the Essence.
"5.32.250
Acceptance and Effective Date of Franchise.
"5.32.260
Permits, Installation, and Service.
"5.32.270
Cable System Construction.
"5.32.280
Methods and Materials of Construction.
"5.32.290
City Work.
"5.32.300
Construction and Technical Standards.
"5.32.310
Location of Property of Grantee.
"5.32.320
Use of Utility Poles and Facilities - Agreement(s)
Required.
"5.32.330
Emergency Work.
"5.32.340
Removal and Abandonment of Property of
Grantee.
"5.32.350
Temporary Removal of Wire for Building
Improvements.
"5.32.360
Tree Trimming.
"5.32.370
Changes Required by Public Improvements.
"5.32.380
Failure to Perform Street Work.
"5.32.390
Complaint Procedure.
"5.32.400
Refund.
"5.32.410
Fiscal Reports.
"5.32.420
Inspection of Property and Records.
"5.32.430
Protection of City Against Liability.
"5.32.440
Security for Performance.
"5.32.450
Liquidated Damages.
"5.32.460
Forfeiture and Termination.
"5.32.470
Continuity of Service Mandatory.
"5.32.480
Failure of City to Enforce a Franchise; no
Waiver of Terms.
"5.32.490
Waivers.
"5.32.500
Miscellaneous Provisions.
"5.32.010. Definitions.
"For the purposes of this Chapter, the following terms, phrases, words,
abbreviations, and their derivations shall have the meaning given herein. When
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not inconsistent with the context, words used in the present tense include the
future tense, words in the plural number include the singular number, and words
in the singular number include the plural number.
"A. `Access Channel' shall mean a single channel dedicated in whole
or in part for local programming which is not originated by a cable company.
`B. `Basic Service' shall mean any service tier which includes the
retransmission of local television broadcast signals, and education, government,
and public access channels.
"C. `Cable Services' shall be defined as the one-way transmission to
transcribers of video programming and other programming services, together with
subscriber interaction, if any, which is required for the selection of such
programming and programming services that the cable operator makes available
to all subscribers generally. Examples of cable services include: video
programming, pay-per-view, voter preference polls in the context of a video
program, teletexts, one-way transmission of any computer software, and one-way
videotext services such as news services, stock market information, etc. Non -
cable services would include: shop -at-home service, electronic mail, one-way and
two-way transmission of non -video data and information not offered to all
subscribers, data processing video conferencing and voice communication.
"D. `Cablecasting' shall mean programming carried on a cable system,
exclusive of broadcast signals, whether originated by the cable operator or any
other parry.
"E. `Cable System' shall mean 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 (1) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (2) a facility that
serves only subscribers in one or more multiple unit dwellings under common
ownership, control, or management, unless such facility or facilities uses any
public right-of-way; (3) a facility of a common carrier which is subject, in whole
or in part, to the provisions of Title II of the Communications Act of 1934, except
that such facility shall be considered a cable system to the extent such facility is
used in the transmission of video programming directly to subscribers; or (4) any
facility of an electric utility used solely for operating its electric utility systems.
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'F. `City' shall mean the City of Irwindale, a municipal corporation of
the State of California, in its present incorporated form or in any later reorganized,
consolidated, enlarged or reincorporated form.
"G. `Construction.' The terms `completion of construction,' `complete
system construction,' `satisfactorily complete' and `fully activate' shall mean that
strand has been put up and all necessary cable (including trunk and feeder cable)
has been lashed --or, for underground construction, that all cable has been laid and
trenches refilled, all road surfaces restored and, except as prevented by weather
conditions or delayed because of seasons, landscaping restored; that all amplified
housings and modules have been installed (including modules for return path
signals if proposed); that power supplies have been installed and all bonding and
grounding has been completed; that all necessary connectors, splatters and taps
have been installed; that construction of the headends or hubs have been
completed and all necessary processing equipment has been installed; and that any
and all other construction necessary for the cable system to be ready to deliver
cable service to subscribers has been completed. Proof of performance tests shall
have been conducted on each otherwise completed segment of the cable system
before direct marketing of that segment begins. It is expected that segments of
less than the entire cable system will be activated and proofed when completed.
Construction of any segment or of the entire cable system will not be considered
complete until proof of the performance tests have been conducted on such
segment (or in the case of the entire cable system, on all segments of the cable
system) and any problems found during testing have been corrected. The term
`completion of construction' does not include marketing and installation of
subscriber service.
"H. `Council' shall mean the present governing body of the City or any
future board constituting the legislative body of the City.
"I. `Grantee' shall mean the person, firm or corporation to whom or
which a franchise is granted by the City Council under this Chapter, and the
lawful successor, transferee or assignee of said person, firm or corporation.
"J. `Gross Revenues' shall mean all cash, credits, property of any kind
or nature, or other consideration received directly or indirectly by a grantee, its
affiliates, subsidiaries, parent and any person, firm or corporation in which
grantee has a financial interest, or from any source whatsoever, arising from or
attributable to the sale or exchange of cable services by grantee within the City or
in any way derived from the operation of its system, including, but not limited to,
basic service monthly fees, pay TV, pay-per-view, leased channel fees, converter
rentals or sales, studio rental, and advertising revenues. These gross revenues
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shall not be reduced for any purposes other than provided herein, and shall be the
basis for computing the fee imposed pursuant to Section 5.32.140. These gross
revenues shall not include converter deposits, refunds to subscribers by the
grantee, uncollectible accounts, sales tax and monies paid to a grantee for
promotional activities which are required to be expended or paid in full by
grantee, or items excluded by the Federal Cable Communications Policy Act of
1984, Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, or any subsequent applicable legislative act or
rule of the Federal Communications Commission.
"K. `Initial activation of cable service,' or `initially providing cable
service' shall mean with respect to a particular segment, group of segments or the
entire cable system, as the case may be, that, all proposed cable services and cable
system capabilities as stated in the proposal are available and/or in place,
construction has been completed (see above definition of construction) and the
completed segment or segments in question or the entire cable system, as the case
may be, have been activated.
"L, `Local Origination Programming' shall mean programming locally
produced by the grantee.
"M. `Proposal' or `Application' shall refer to a formal response by a
qualified cable company to a specific invitation by the City asking for proposals
in accordance with City specifications to provide cable services to residents,
businesses, industries, and institutions within the City.
"N. `Property of grantee' shall mean all property owned, installed or
used by a grantee in the conduct of a cable system business in the City under the
authority of a franchise granted pursuant to this Chapter.
"O. `State of the Art' shall mean a cable system with production
facilities, technical performance, capacity, equipment, components, and service
equal to or better than has been developed and demonstrated to be generally
accepted and used in the cable television industry for comparable areas of
equivalent population.
"P. `Street' or `Public Street' shall mean only a street, road, highway,
freeway, lane, path, alley, court, sidewalk, parkway, or drive which is owned by a
public entity in fee or as to which a public entity has an easement for street
purposes, and with respect to which, and to the extent that, City has a right to
grant the use of the surface of, and space above and below in connection with a
I franchise for a cable system.
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"Q. `Subscriber' shall mean any person or entity receiving for any
purpose the cable television service of a grantee.
"R. `Two-way Communication' shall mean the transmission of
telecommunication signals from subscriber locations or other points throughout
the cable system back to the cable system's control center as well as transmission
of signals from the control center to subscriber locations.
'S. `User' shall mean a party utilizing a cable system channel for
purposes of production or transmission of material to subscribers, as contrasted
with receipt in a subscriber capacity.
"T. The terms `will be available,' `will be equipped,' `will use,' `will
be designed,' `will perform,' `will be utilized,' `will permit,' `will allow,' `will be
activated,' `will be initially connected,' `will be capable,' `will provide,' `will
include,' `will employ,' `will be established,' `will be able,' `will be
implemented,' `will be delivered,' `will utilize,' and other similar uses of terms of
a grantee's proposal denoting the activation of cable service or the delivery of
equipment, facilities, or cable services, shall be interpreted to mean delivery or
accomplishment at a date no later than the initial activation of cable service (as
defined in this Section) unless otherwise expressly and clearly stated or qualified
in the grantee's proposal to mean a more specific or different time.
"5.32.020 Franchise Required to Operate.
"A non-exclusive franchise to construct, operate and maintain a cable
system within all or any portion of the City is required of anyone desiring to
provide cable television service in the City. A franchise may be granted by the
City Council to any person, firm or corporation, whether operating under an
existing franchise or not, who or which offers to furnish and provide such cable
system under and pursuant to the terms and provisions of this Chapter.
"5.32.030 Violations.
"A. From and after the effective date of this Chapter, it shall be
unlawful for any person, firm or corporation to establish, operate or to carry on
the business of distributing to any location in this City any television signals or
radio signals by means of a cable system unless a franchise therefor has first been
obtained pursuant to the provisions of this Chapter, and unless such franchise is in
full force and effect.
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`B. From and after the effective date of this Chapter, it shall be
unlawful for any person, firm or corporation to construct, install or maintain on or
within any public street in the City, or on or within any other public property of
the City, or on or within any privately --owned area within the City which has not
yet become a public street but is designated or delineated as a proposed public
street on any tentative subdivision map approved by the City, any equipment or
facilities for distributing any television signals or radio signals through a cable
system, unless a franchise authorizing such use of such street or property or area
has first been obtained pursuant to the provisions of this Chapter, and unless such
franchise is in full force and effect.
"C. It shall be unlawful for any person, firm or corporation to make
any unauthorized connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of a franchised cable system within this
City for the purpose of receiving any television signal, radio signal, picture,
program or sound, without payment to the owner of said cable system.
"D. It shall be unlawful for any person, firm or corporation without the
consent of the owner, to willfully tamper with, remove or injure any equipment
used as part of a cable franchise, including, but not limited to, cables, wires or
equipment used for distribution of television signals, radio signals, pictures,
programs or sound.
"5.32.040 Authorization to Engage in Business.
"Any franchise granted pursuant to the provisions of this Chapter shall
authorize and permit the grantee to engage in the business of operating and
providing a cable system in the City, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain and retain in, on, over, under,
upon, across and along any public street, such poles, wires, cable, conductors,
ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other
property as may be necessary and appurtenant to the cable system; and in
addition, so to use, operate, and provide similar facilities or properties rented or
leased from other persons, firms or corporations, including but not limited to any
public utility or other grantee franchised or permitted to do business in the City.
"Insofar as it is not inconsistent with or otherwise preempted by federal or
state regulations, the City Council shall grant the right and privilege to successful
grantees to provide non -cable communications services. The City Council shall
also retain all authority, not otherwise preempted, to regulate non -cable
communication services to the extent necessary to assure the delivery of proposed
non -cable services, if any, provided they are in compliance with all regulatory
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provisions of this Chapter.
"5.32.050 Limitations of Franchise.
"A. Any franchise granted under this Chapter shall be non-exclusive.
`B. No privilege or exemption shall be granted or conferred by any
franchise granted under this Chapter except as specifically prescribed herein.
"C. Any privilege claimed under any franchise by the grantee in any
public street or other public property shall be subordinate to any prior or
subsequent lawful occupancy or use thereof by the City, any other governmental
entity, or any person, and shall be subordinate to any easements therein, created
prior to the granting of any franchise hereunder.
"D. As set forth in Section 5.32.240 hereof, time shall be of essence of
any such franchise granted hereunder. The grantee shall not be relieved of its
obligation to comply promptly with any of the material provisions of this Chapter
or by any failure of the City to enforce prompt compliance.
"E. Any right or power in, or duty impressed upon any officer,
employee, department, or board of the City shall be subject to transfer by the City
to any other officer, employee, department, or board of the City.
"F. A grantee shall have no recourse whatsoever against the City for
any loss, cost, expense, or damage arising out of a grantee's performance under
this Chapter and/or pursuant to any franchise issued hereunder or because of its
enforcement except as set forth in Section 5.32.430A of this Chapter and such
grantee's franchise.
"G. Grantee shall be subject to all requirements of City ordinances,
rules, regulations and specifications heretofore or hereafter enacted or established,
and shall comply with all applicable state and federal laws and regulations
heretofore or hereafter enacted or established.
"H. Any such franchise granted shall not relieve the grantee of an
obligation involved in obtaining pole space from any department of the City,
utility company, or from others maintaining poles in public rights-of-way.
"I. Any franchise granted hereunder shall be in lieu of any and all
other rights, privileges, powers, immunities, and authorities owned, possessed
controlled, or exercisable by a grantee, or any successor to any interest of a
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grantee, of or pertaining to the construction, operation, or maintenance of a cable
system in the City; and the acceptance of any franchise hereunder shall operate, as
between grantee and the City, as an abandonment of any and all such rights,
privileges, powers, immunities, and authorities within the City to the effect that,
as between grantee and the City, and all construction, operation and maintenance
by any grantee of any cable system in the City shall be, an shall be deemed and
construed in all instances and respects to be, under and pursuant to said franchise,
and not under or pursuant to any other right privilege, power, immunity, or
authority whatsoever.
"5.32.060 Acquisition by City.
"In accordance with Section 627 of the Cable Communications Policy Act
of 1984, and/or any successor provisions of law thereto, if a renewal of a franchise
held by a grantee is denied and the City acquires ownership of the cable system or
effects a transfer of ownership of a cable system to another person, firm or
corporation, any such acquisition or transfer shall be at fair market value, but with
no value allocated to the franchise itself.
"If a franchise held by a grantee is revoked for cause and the City acquires
ownership of the cable system or effects a transfer of ownership of the cable
system to another person, firm or corporation, any such acquisition or transfer
shall be at an equitable price.
"The value of a cable system (fair market value or equitable price) shall be
determined by an appraisal committee consisting of three qualified persons to be
appointed. The grantee, or its successors or assigns, and the City shall each
recommend one appointee. A third appointee shall be appointed by the American
Arbitration Association. No payment shall be made by the City to the grantee that
would include a value attributed to the franchise itself in the event of acquisition
by the City due to non -renewal of the franchise.
"It shall be understood that, where authorized by contractors of a grantee,
and excluding any loan agreements entered into by a grantee, each material
contract entered into after the effective date of this Ordinance by the grantee with
reference to operations under a franchise shall provide that it shall be subject to
the exercise of this authority by the City and that upon ownership of the system by
the City, the City may succeed, at its discretion, to all the privileges and the
obligations thereof.
"Upon the termination of a franchise and the rights granted thereunder,
whether by expiration or forfeiture, the City Council may direct and require the
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grantee as provided in Sections 5.32.340 and 5.32.350 to remove its wires, cables,
fixtures and accessories and appurtenances from the streets. The City may
execute on the Performance Bond or Letter of Credit as prescribed in Section
5.32.440 where a grantee fails or refuses to complete such removal within the
time specified in Section 5.32.340.
"5.32.070 Rights Reserved to the City.
"A. Nothing herein shall be deemed or construed to impair or affect, in
any way, to any extent, the right of the City to acquire the property of a grantee,
either by purchase, in the event the system is offered for sale by a grantee, or
through the exercise of the right of eminent domain, at fair market value. In the
event acquisition occurs following the denial of a renewal of the franchise, fair
market value shall not include any amount for the franchise itself or for any of the
rights or privileges granted. Nothing herein contained shall be construed to
contract away or to modify or abridge, either for a term or in perpetuity, the City's
right of eminent domain.
`B. There is hereby reserved to the City every right and power which is
required to be herein reserved or provided by any ordinance of the City, and a
grantee, by its acceptance of any franchise, agrees to be bound thereby and to
comply with any action or requirements of the City in its exercise of such rights or
power, heretofore or hereafter enacted or established.
"C. Neither the granting of any franchise hereunder nor any of the
provisions contained herein shall be construed to prevent the City from granting
any identical, or similar, franchise to any other person, firm or corporation, within
all or any portion of the City.
"D. There is hereby reserved to the City the power to amend any
Section or part of this Chapter so as to require additional or greater standards of
construction, operation, or maintenance on the part of a grantee.
"E. Neither the granting of any franchise nor any provision hereof shall
constitute a waiver or bar to the exercise of any power of the City, now existing or
hereafter granted.
"F. The City Council may do all things which are necessary in the
exercise of its jurisdiction under this Chapter and may determine any question of
fact which may arise during the existence of any franchise granted hereunder.
The City Manager or acting City Manager is hereby authorized and empowered to
make preliminary decisions as to any controversy or charge arising from the
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operations of any grantee under this Chapter. Either the grantee or any member of
the public who may be dissatisfied with the decision of the City Manager or
acting City Manager may appeal the matter to the City Council for hearing and
determination within thirty days from receipt of such preliminary decision and if
no such appeal is made by grantee, such preliminary decision shall be deemed a
final decision. The City Council may accept, reject or modify the decision of the
City Manager or acting City Manager, and the City Council may adjust, settle or
compromise any controversy or cancel any charge arising from the operations of
any grantee or from any provision of this Chapter. All actions by the City
Council under this subsection shall be after hearing, upon ten (10) business days
advance written notice to grantee at its address on file with the City. Such actions
may be by either resolution or minute motion, except that revocation of franchise
pursuant to Section 5.32.460 shall be by ordinance.
"5.32.080 Applications For Franchise.
"A. Content. Each application for a franchise to construct,
operate or maintain any cable system in the City shall be filed with the City Clerk
and shall be on forms prescribed by the City. Said forms shall require, but shall
not be limited to, the following information:
111. the name, address, and telephone number of the applicant;
"2. a detailed statement and description of the corporate or
business entity organization of the applicant, including but not limited to, the
following and to whatever extent required by the City:
"a. the names and business addresses of all officers,
directors, and associates of the applicant,
"b. the names and business addresses of all officers,
persons and entities having any share of the ownership of the applicant and the
respective ownership share of each person or entity,
"c. the names and addresses of any parent or subsidiary
of the applicant, including any other business entity owning or controlling
applicant in whole or in part or owned or controlled in whole or in part by the
applicant, and a statement describing the nature of any such parent or subsidiary
business entity, including but not limited to cable systems owned or controlled by
the applicant, its parent and subsidiary and the areas served thereby,
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"d. a detailed description of all previous experience of
the applicant in providing cable television system service and service in related or
similar fields,
"e. a detailed and complete financial statement of the
applicant, certified by an independent certified public accountant, for the fiscal
year next preceding the date of the application hereunder, or a letter or other
acceptable evidence in writing from a recognized lending institution or funding
source, addressed to both the applicant and the City Council, setting forth the
basis for a study performed by such lending institution or funding source, and a
clear statement of its intent as a lending institution or funding source to provide
whatever capital shall be required by the applicant to construct and operate the
proposed cable system in the City, or a statement from an independent certified
public accountant, certifying that the applicant has available sufficient free, net
and uncommitted cash resources to construct and operate the proposed cable
system,
"f. a detailed financial plan (pro forma) describing for
each year of the franchise, projected number of subscribers, rates, all revenues,
P.+o operating expenses, capital expenditures, depreciation schedules, income
statements and a sources and uses of funds statement. All information is to be
presented in the format required by the City, and
eo*�'
"g. a statement identifying, by place and date, any other
cable system franchise(s) awarded to the applicant, its parent or subsidiary; the
status of said franchise(s) with respect to completion thereof; the total cost of
completion of such franchised cable system(s); and the amount of applicant's and
its parent's or subsidiary's resources committed to the completion thereof;
"I a detailed description of the proposed plan of operation of
the applicant which shall include, but not be limited to, the following:
"a. a detailed map indicating all areas proposed to be
served, and a proposed time schedule for the installation of all equipment
necessary to become operational throughout the entire area to be serviced,
"b. a statement or schedule setting forth all proposed
classifications of rates and charges to be made against subscribers and all rates
and charges as to each of said classifications, including installation charges and
cable service charges,
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"c. a detailed, informative, and referenced statement
describing the actual equipment and operational standards proposed by the
applicant,
"d. a copy of the form of any agreement, undertaking,
or other instrument proposed to be entered into between the applicant and any
subscriber, and
"e. a detailed statement setting forth in its entirety any
and all agreements and undertakings, whether formal or informal, written, oral, or
implied, existing or proposed to exist between the applicant and any person, firm,
or corporation which materially relate or pertain to or depend upon the application
and the granting of the franchise;
"4. A copy of any agreement covering the franchise area, if
existing between the applicant and any municipal utility or public utility subject to
regulation by the California Public Utilities Commission providing for the use of
any facilities of the public utility including but not limited to poles, lines or
conduits; and
"5. Any other details, statements, information or references
pertinent to the subject matter of such application which shall be required or
requested by the City Council, or by any other provision of law.
"5.32.090 Application Fees for New Franchise.
"Notwithstanding any other requirement of this Chapter, each
applicant must furnish with its proposal a non-refundable administrative fee in the
amount of Five Thousand Dollars ($5,000) by certified or cashier's check made
payable to the City of Irwindale. No proposal for a franchise shall be considered
without receipt of said check.
"All checks received will be deposited to an account of the City
and will serve to recover all expenses incurred by the City in the investigation of
the application for the granting of a franchise pursuant to this Chapter. Said
expenses shall include, but not be limited to, any and all administrative,
engineering, publication, or legal costs and consultant's expenses incurred in
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connection with the processing, evaluation and preparation of documents relating
to the franchise application.
"In the event that the City's expenses exceed the total amount of
filing fees collected from an applicant, the applicant awarded a franchise may be
required to pay any costs incurred by City which exceed applicant's filing fee
within sixty (60) days of demand by City.
"5.32.100 Selection of New Grantees.
"A. Solicitation of Proposals. The City Council may, by
advertisement or any other means, solicit and call for applications for cable
system franchises, and may determine and fix any date upon or after which the
same shall be received by the City, and/or the date before which the same must
be received, or the date after which the same shall not be received, and may make
any other determinations and specify any other times, terms, conditions, or
limitations respecting the soliciting, calling for, making and receiving of such
e041' applications. The terms and conditions for application shall be described in a
document called `Request for Proposals.'
`B. Compliance With City Requirements. Any person, firm or
corporation submitting a proposal for a cable system franchise in response to the
City's Request for Proposals shall provide all information required by this Chapter
and all other information requested by City's Request for Proposals or otherwise
required by the City. Each proposal shall be responsive to the questions soliciting
the information, and shall completely, accurately and materially supply all of the
information so solicited. Any misrepresentation, failure, neglect or refusal to
provide any of such information may, at the option of the City Council, render a
proposal invalid. The requested information must be complete and verified as
true by the applicant.
"C. Proper of City. All proposals received by the City shall become
the sole property of the City.
"D. Applicant Responsibility. Before submitting a proposal, each
applicant shall be solely responsible for and must: (1) examine Chapter 5.32 of
the Municipal Code and the Request for Proposals documents thoroughly; (2) be
familiar with local conditions which may in any manner affect performance under
the franchise, including, but in no event limited to, community and institutional
telecommunication needs, relevant demographics, topographies, pole attachment
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policies of appropriate utility authorities, undergrounding, and subscriber desires;
(3) be familiar with all applicable federal, state and local laws, ordinances, rules
and regulations affecting performance under the franchise; and (4) carefully
correlate all observations with the requirements of this Chapter and the Request
for Proposals documents.
"E. Referral to City Manager. Upon receipt of any application for
franchise, the City Council shall refer the same to the City Manager who shall
prepare or cause to be prepared a report, including recommendations respecting
such application, and cause the same to be completed and filed with the City
Council. The City will evaluate all proposals that have complied with its
requirements. All applicants that have met the City's qualifications in the Request
for Proposals and have submitted proposals on the required forms will be offered
the opportunity to make a formal presentation to the City Council in support of
their applications.
"F. Investiaations. The City may make such investigations as it
deems necessary to determine the ability of the applicant to perform under the
franchise, and the applicant shall furnish to the City all such information and data
for this purpose as the City may request. The City reserves the right to reject any
proposal, if the evidence submitted by, or investigation of such applicant fails to
satisfy the City that such applicant is properly qualified to carry out the
obligations of the franchise agreement, comply with the provisions of this
Chapter, or to satisfactorily construct and operate a cable system. Proposals that
modify or place conditions upon requirements stated in the City's Request for
Proposals may be rejected by the City.
"G. Resection. The City may reject for any reason any and all
applications from whatever source and whenever received and the City also
reserves the right to waive all formalities where the best interests of the City may
be served, and may, if it so desires, request new or additional proposals.
"H. Public Comment. If, upon receiving the City Manager's report,
the City Council shall determine to further consider the applications, it shall cause
the setting of a public hearing for the consideration of competing applications;
fixing and setting forth a day, hour, and place certain when and where any persons
having any interest therein or objections may file written comments and appear
before the City Council and be heard, and directing the City Clerk to publish
notice of said hearing at least once within ten days of the setting of the public
hearing, in a newspaper of general circulation within the City.
N\IRWIMORDCABLE 15
W
"I. Consideration. In making any determination hereunder as to any
application for a new franchise, the City Council may, to the extent permitted by
law, consider any and all factors including, but not limited to, the quality of the
cable service proposed, rates to subscribers, income to the City, experience,
character, background, and financial responsibility of any applicant, and its
management and owners, technical and performance quality of equipment,
willingness and ability to meet construction and physical requirements, to meet all
requirements set forth in this Chapter, and to abide by all purpose and policy
conditions, franchise limitations and requirements, and any other consideration
deemed pertinent by the City Council for safeguarding the interests of the City
and the public.
"J. Determination. At the time set for the hearing, or at any
adjournment thereof, the City Council shall proceed to hear all public comments.
Thereafter, the City Council shall make one of the following determinations:
11
1. that such application be denied, which determination shall
be final and conclusive; or
"2. that such franchise be granted subject to any specified
terms and conditions thereof No provision of this Chapter shall be deemed or
construed so as to require the granting of a franchise when, in the opinion of the
City Council, it is in the public interest to restrict the number of grantees.
"K. Additional Information. The City Council may at any time,
demand and applicants shall provide, such supplementary, additional or other
information as the City Council may deem reasonably necessary to determine
whether the requested franchise should be granted.
"L. Awards Based on Merit. It is the intention of the City to award
any cable franchise on the basis of merit of a proposal. To this end,
communication with the City Council by those wishing to submit proposals for a
cable franchise shall be limited to public meetings. Requests for information
should be directed to the Office of the City Manager.
"M. City Council Decisions Shall Be Final. Any decision of the City
Council concerning selection of a franchisee pursuant to this Chapter shall be
final.
MRWIMORDCABLE 16
ro�ll
"5.32.110 Duration of Franchise and Renewal.
"A. The duration of the rights, privileges and authorizations granted in
a franchise agreement shall not exceed, but may be less than, ten (10) years from
the date a franchise is awarded. A franchise may be renewed by the City upon a
grantee's request pursuant to the procedure established in subsection B, below,
and in accordance with the then applicable law.
`B. Renewal in accordance with Section 626 of the Cable
Communications Policy Act of 1984, or any successor provisions thereto:
111. During the six-month period which begins with the 36th
month before the franchise expiration, the City may on its own initiative, and shall
at the request of the cable operator, commence proceedings which afford the
public in the franchise area appropriate notice and participation for the purpose of:
"a. Identifying the future cable -related community
needs and interests; and
ep" "b. Reviewing the performance of the cable operator
under the franchise during the then current franchise term.
"2. Upon completion of a proceeding under subsection B.1 of
this Section, a cable operator seeking renewal of a franchise may, on its own
initiative or at the request of the City, submit a proposal for renewal.
Subject to applicable provisions of law, any such proposal shall
contain such material as the City may require, including proposals for an upgrade
of the cable system. The City may establish a date by which such proposal shall
be submitted.
"3.a. Upon submittal by a cable operator of an application to the
City for the renewal of a franchise, the City shall provide prompt public notice of
such proposal and may seek additional proposals, and, during the 4 -month period
which begins on the completion of any proceedings under subsection B.1 of this
Section, renew the franchise or, issue a preliminary assessment that the franchise
should not be renewed and, at the request of the operator or on its own initiative,
commence an administrative proceeding, after providing public notice of such
proceeding, in accordance with Subsection 3.b to consider whether:
"(i) the cable operator has substantially complied
eoN with the material terms of the existing franchise and with applicable law;
NURWIMORDCABLE 17
e". ,
"(ii) the quality of the operator's service,
(including signal quality, response to consumer complaints) and billing practices,
but without regard to the mix, quality, or level of cable services or other services
provided over the system, has been reasonable in light of community needs;
"(iii) the operator has the financial, legal, and
technical ability to provide the services, facilities, and equipment as set forth in
the operator's proposal; and
"(iv) the operator's proposal is reasonable to meet
the future cable -related community needs and interests, taking into account the
cost of meeting such needs and interests and the availability of such services to
other similarly situated communities.
"b. In any proceeding under Subsection 3.a the cable
operator shall be afforded adequate notice and the cable operator and the City
shall be afforded fair opportunity for fall participation, including the right to
introduce evidence (including evidence related to issues raised in the proceeding
under subsection B.1), to require the production. of evidence, and to question
?0*N witnesses. A transcript shall be made of any such proceeding.
"c. At the completion of a proceeding under this
subsection, the City shall issue a written decision granting or denying the proposal
for renewal based upon the record of such proceeding, and transmit a copy of such
decision to the cable operator. Such decision shall state the reasons therefor.
"4. Any denial of a proposal for renewal shall be based on one
or more adverse findings made with respect to the factors described in
subparagraphs (i) through (iv) of subsection 3.a., pursuant to the record of the
required proceeding. The City may not base a denial of renewal on a failure to
substantially comply with the material terms of the franchise under subsection
3.a.(i) or on events considered under subsection 3.a.(ii) in any case in which a
violation of the franchise or the events considered under subsection 3.a.(ii) occur
after the effective date of this Title unless the City has provided the operator with
notice and the opportunity to cure, or in any case in which it is documented that
the City has waived its right to object.
"5.a. Any cable operator whose proposal for renewal has been
denied by a final decision of the City made pursuant to this Section, or has been
adversely affected by a failure of the City to act in accordance with the procedural
requirements of this Section, may appeal such final decision or failure pursuant to
the provisions of Section 635, or any successor provision thereto.
NVRW[MORDCABLE 18
e" -
"b. The court shall grant appropriate relief if the court
finds that:
(i) any action of the franchising authority is not
in compliance with the procedural requirements of this Section; or
(ii) in the event of a final decision of the City
denying the renewal proposal, the operator has demonstrated that the adverse
finding of the franchising authority with respect to each of the factors described in
subparagraphs (i) through (iv) of subsection 3.a. on which the denial is based is
not supported by a preponderance of the evidence, based on the record of the
proceeding conducted under subsection 3.
"6. Any decision of the City on a proposal for renewal shall not
be considered final unless all administrative review by the State has occurred or
the opportunity therefor has lapsed.
"7. For purposes of this Section, the term `franchise expiration'
means the date of the expiration of the term of the franchise, as provided under the
(0+. franchise, as it was in effect on the date of the enactment of this Title.
"8. Notwithstanding the provisions of subsections B.1 through
B.4 of this Section, the grantee may submit a proposal for the renewal of the
franchise pursuant to this subsection at any time, and the City may, after affording
the public adequate notice and opportunity for comment, grant or deny such
proposal at any time (including after proceedings pursuant to this Section have
commenced). The provisions of subsections B.1 through B.4 of this Section shall
not apply to a decision to grant or deny a proposal under this subsection. The
denial of a renewal pursuant to this subsection shall not affect action on a renewal
proposal that is submitted in accordance with subsections B.1 through B.4 of this
Section.
"C. Unless otherwise agreed to by the City and the grantee, the
grantee shall pay all costs incurred by the City in considering and processing a
proposal for renewal as described in subsection B.6 of this Section.
"5.32.120 Transfers and Assignments.
"A. A franchise shall not be sold, assigned or transferred, either in
whole or in part, or leased, sublet, or mortgaged in any manner nor shall title
thereto, either legal or equitable or any right, interest or property therein, pass to
NURWIMOROCABLE 19
51
or vest in any person, firm or corporation, without prior written consent of the
City.
No such consent shall be required for a transfer in trust, mortgage, or other
hypothecation as a whole or in part to secure an indebtedness, except in the
instance of hypothecation to other than an institutional lender when such
hypothecation shall exceed fifty percent (50%) of the market value of the property
used by the grantee in conducting the business of the franchise.
The proposed assignee must show technical ability, financial capability,
legal qualifications and general character qualifications as reasonably determined
by the City and must agree to comply with all provisions of the franchise and such
conditions as may be prescribed by City Council resolution.
`B. The grantee shall promptly notify the City of any actual or
proposed change in, or transfer to, or acquisition by any other parry, of control of
the grantee. The word `control' as used herein is not limited to major
stockholders but includes actual working control in whatever manner exercised.
Every change, transfer, or acquisition of control of the grantee shall make the
tON franchise subject to cancellation unless and until the City shall have consented
thereto. For purposes of determining whether it shall consent to such change,
transfer or acquisition of control, the City may inquire into the qualifications of
any prospective controlling party and the grantee shall assist the City in any such
inquiry.
"C. A rebuttable presumption that transfer of control has occurred shall
arise upon the acquisition or accumulation by any person, firm, corporation, or
group of persons, firms or corporations of fifty percent (50%) the voting interest
of the grantee. A transfer of control effected through acquisition of shares over a
stock exchange or in the over-the-counter market shall not be deemed a `transfer
of control' within the meaning of this Section.
"D. The consent or approval of the City Council to any transfer of a
franchise shall not constitute a waiver or release of the rights of the City in and to
the streets, and any transfer shall, by its terms, be expressly subordinate to the
term and conditions of a franchise.
"E. In the absence of extraordinary circumstances, the City Council
will not approve any transfer or assignment of a franchise prior to substantial
completion of construction of proposed cable system.
MIRWIMORDCABLE 20
'F. The City Council reserves the right of `First Negotiation' to
purchase the cable system from the grantee at such time that grantee decides to
place such system on the market for sale independent of other systems. Such right
of first negotiation shall continue for a thirty day period commencing with the
date grantee notifies the City of its intention to so place the system on the market.
The City and the grantee shall each conduct such negotiations in good faith.
There shall be no obligation to reach agreement and if no agreement is reached by
the end of such thirty day period, neither grantee nor the City shall have any
further obligation to the other with respect to this right of `first negotiation.'
"G. In no event, shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to the franchise agreement.
"5.32.130 Incorporation of Proposal by Reference.
Upon award of a franchise pursuant to this Chapter, a grantee shall agree
to be bound by all the terms and conditions contained herein and to execute a
franchise in such form as may be prescribed by the City.
A grantee also agrees to provide all the cable services specifically set forth
in its proposal, to provide cable service within the confines of the City and by its
acceptance of the franchise, the grantee specifically grants and agrees that its
proposal is thereby incorporated by reference and made a part of the franchise
agreement. In the event of a conflict between such proposal and the provisions of
this Chapter and/or the applicable franchise agreement, that provision which
provides the greatest benefit to the City, in the opinion of the City Council, shall
prevail; provided that the City, having chosen or accepted one of the conflicting
provisions, may not thereafter elect to require compliance with a different
alternative of the conflicting provisions. Failure to provide services as promised
in grantee's application may be deemed a violation of this Chapter to which the
provisions of Section 5.32.450 and Section 5.32.460 of this Chapter shall apply.
"5.32.140 Payment of Franchise Fee.
"A. For the reason that the streets and other public rights-of-way which
are used by the grantee in the operation of its cable system within the boundaries
of the City are valuable public properties acquired and maintained by the City at
great expense to its taxpayers, and that the grant to the grantee to the use of said
streets is a valuable property right without which the grantee would be required to
invest substantial capital in right-of-way costs and acquisitions, and because the
City will incur costs in regulating and administering the franchise, the grantee
M[RWMORDCABLE 21
shall pay to the City an amount equal to five percent (5%) of grantee's Gross
Revenue (as defined in Section 5.32.010 J) for the prior one year period.
`B. The franchise fee assessed shall be payable semi-annually to the
City. The grantee shall file a complete and accurate verified statement of all
collected gross revenues within the City during the period for which said semi-
annual payment is made, and said payment shall be made to the City not later than
forty-five (45) days after the date for which payment is due.
"C. The City shall have the right to inspect the grantee's income
records and the right to audit and to recompute any amounts determined to be
payable under this Chapter; provided, however, that such audit shall take place
within thirty-six (36) months following the close of each of the grantee's affected
fiscal years. Any additional amount due to the City as a result of the audit shall
be paid within thirty (30) days following written notice to the grantee by the City.
Said notice shall include a copy of the audit report.
"D. In the event that any franchise payment or recomputed amount is
not made on or before any applicable due dates heretofore specified, interest shall
be charged daily from such date at the annual rate equivalent to the then existing
prime rate of the 12th Federal Reserve District of the United States of America
plus two percent (2%).
"5.32.150 Use of Telephone Facilities.
When and in the event that the grantee of any franchise granted hereunder
uses in its cable system distribution channels furnished to the grantee by a
telephone company pursuant to tariff or contract on file with a regulatory body
having jurisdiction and said grantee makes no use of the streets independent of
such telephone company furnished facilities, said grantee shall be required to
comply with all of the provisions hereof as a `licensee' and in such event
whenever the term `grantee' is used herein it shall be deemed to mean and include
`licensee.' No provision of this Chapter shall be deemed or construed as requiring
the granting of a franchise hereunder to a telephone company furnishing such a
channel service.
"5.32.160 Required Services and Facilities.
"A. Pursuant to Section 626 of the Cable Communications Policy Act
of 1984, or successor provision thereto, a franchise application or proposal for
renewal shall include a description of the grantee's cable system design and a
description of programming and cable services being offered, including optional
MIRWIMORDCABLE 22
premium cable services, a description of facilities being proposed for local
originating programming, and facilities being offered to various community
institutions. The offer of programming and cable services contained within a
grantee's application shall be deemed incorporated by reference into the franchise
pursuant and subject to the provisions of Section 5.32.130 hereof. In the event a
program originator ceases to provide a cable service, or in the event the grantee
determines that other programming and cable services may be of greater benefit to
subscribers or that a particular cable service may be terminated, the grantee may,
subject to subsections B and C of this Section, substitute or terminate such
particular cable service.
`B. The cable system, after the incorporation of such substitute cable
services or the termination of such cable services, shall fulfill the obligations
contained in its application for a franchise. The City Council on behalf of cable
system subscribers shall have the right to review any substitution or termination
of cable service that the grantee has made and may, to the extent permitted by
law, order a change therein if it determines, after a hearing on notice, that grantee
has failed to fulfill its franchise obligations or that certain broad categories of
video or other information programs that were committed to by grantee in its
proposal and which are provided for in the franchise agreement, are not being
delivered. Any such order shall be issued only after a public hearing has been
scheduled and held; and written notice of such hearing shall have been provided
to the grantee and to the public at least 30 days prior to such hearing. Any such
order may be enforced by an appropriate action in the courts of California or of
the United States. A grantee shall not, in relation to this Section, be deemed to
have waived any right accorded to a franchised cable television operator arising
under the First Amendment to the Constitution of the United States or Article I,
Section 2 of the California Constitution.
"C. Notwithstanding and without limitation on grantee's rights set forth
in subsections A and B of this Section, a grantee may, in accordance with and
subject to the provisions of the Cable Television Consumer Protection and
Competition Act of 1992, or successor provision thereto, rearrange, replace, or
remove a particular cable service required by the franchise provided no less than
thirty (30) days prior written notice, or such other period of notice as set by law, is
given to the City and each subscriber.
"5.32.170 Service Standards.
"A A grantee shall put, keep and maintain all parts of the cable system
in good condition throughout the entire franchise period.
MIRWIMORDCABLE 23
`B. Upon termination of cable service to any subscriber, a grantee shall
promptly remove all of its facilities and equipment located on the exterior of the
house from the premises of such subscriber upon subscriber's request.
"C. Grantee shall render efficient cable service, make repairs promptly,
and interrupt cable service only for good cause and for the shortest time possible.
Such interruptions, insofar as possible, shall be preceded by notice and shall occur
during periods of minimum cable system use.
"D. Grantee shall not allow its cable or other operations to interfere
with television reception of persons not serviced by grantee, nor shall the cable
system interfere with, obstruct or hinder in any manner, the operation of the
various utilities serving the residents of the City.
"E. A grantee shall continue, through the term of the franchise, to
maintain the technical, operational, and maintenance standards and quality of
cable service set forth in this Chapter and the franchise agreement. Should the
City find, by resolution, that grantee has failed to maintain the standards and
quality of cable service set forth in this Chapter and/or the franchise agreement,
and should it, by resolution specifically enumerate improvements to be made in
order to assure compliance with such standards and quality of cable service, a
grantee shall make such improvements. Failure to make such improvements
within three (3) months of such resolution (subject to circumstances not within
grantee's control) will constitute a violation of this Chapter for which the remedy
set forth in Section 5.32.460 is applicable.
"5.32.180 Subscriber Service Rates.
"A. Authority to regulate rates. To the extent permitted by federal and
state law, the City may regulate the rates for cable service in accordance with any
applicable law currently in effect, including, but not limited to, the Cable
Television Consumer Protection and Competition Act of 1992.
`B. Inspection of financial records. The grantee's accounting records
applicable to its cable system shall be available for inspection by the City at all
reasonable times. The City shall have access to records of financial transactions
for the purpose of verifying burden rates or other indirect costs prorated to this
particular cable system. The documents listed above shall include sufficient detail
and/or footnotes as may be necessary to provide the City with the information
needed to make accurate determinations as to the financial condition of the cable
system. All financial statements shall be certified as accurate by an officer of the
grantee.
NvxwnMoaocABLE 24
"5.32.190 Rights of Individuals.
"A. A grantee shall not deny cable service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the basis of
race, color, religion, national origin, sex, age or disability. A grantee shall comply
at all times with all other applicable federal, state and local laws and regulations,
and as amended from time to time relating to non-discrimination.
`B. A grantee shall strictly adhere to applicable equal employment
opportunity requirements of federal, state and local regulations, and as amended
from time to time.
"5.32.200 Privacy.
"A. In accordance with Section 631(a)(1) of the Cable
Communications Policy Act of 1984, at the time of entering into an agreement to
provide any cable service or other service to a subscriber and at least once a year
thereafter, a grantee shall provide notice in the form of a separate, written
statement to such subscriber which clearly and conspicuously informs the
en, subscriber of:
11
1. the nature of personally identifiable information collected
or to be collected with respect to the subscriber and the nature of the use of such
information;
"2. the nature, frequency, and purpose of any disclosure which
may be made of such information, including an identification of the types of
persons to whom the disclosure may be made;
"3. the period during which such information will be
maintained by the grantee;
"4. the times and places at which the subscriber may have
access to such information; and
"5. the limitations provided by this Section with respect to the
collection and disclosure of information by a grantee and the right of the
subscriber.
`B. Each grantee shall strictly observe and protect the right of privacy
and property of subscribers and users at all times.
N\IRWIMORDCABLE 25
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, mailing service, investigating agency or department, company,
other agency or entity, unless upon the authority of a court of law or upon prior
written permission of the subscriber. The request for permission must be
requested by a grantee in a separate document with a prominent statement that the
subscriber would be authorizing the disclosure of private information. Such
authorization shall not in any event be required as a condition of receiving service.
"C. A grantee may release the number of its subscribers and
information regarding the number of subscribers viewing a particular channel at a
particular time only in a manner which is in compliance with the protection of
subscriber privacy provisions (Section 63 1) of the Cable Communications Policy
Act of 1984, or any successor provisions thereto.
"D A grantee may maintain such information as is necessary to bill
subscribers for the purchase of any cable system service. A grantee may contract
for billing services, provided that such contractor agrees to be bound by the
(001, privacy provisions of this Chapter. Notwithstanding the foregoing provisions,
grantee shall remain responsible throughout the term of the franchise for
performance of its obligations.
"E. Neither a grantee nor any other person, firm or corporation shall
initiate in any form the discovery of any information on or about a subscriber's
premises without prior written and valid authorization from the subscriber
potentially affected.
'T. A subscriber may at any time revoke any authorization previously
made, by delivering to grantee in writing by mail or otherwise, notice of such
revocation. Any such revocation shall be effective upon receipt by grantee.
"G. No monitoring of any subscriber terminal shall take place without
specific prior valid written authorization by the user of the terminal in question;
provided, however, the grantee may conduct cable system -wide or individually
addressed `sweeps' for the purpose of verifying cable system integrity. Grantee
shall not initiate a subscriber response mechanism without a finding by the City
Manager that the cable system can operate effectively and yet give protection
against any invasion of privacy.
"H. A grantee shall not tabulate any test results, nor permit the use of
the cable system for such tabulation, which would reveal the commercial product
NVRWIMORDCABLE 26
preferences or opinions of individual subscribers, members of their families or
their invitees, licensees or employees without prior valid written authorization.
"I. Each compilation, publication, tabulation or other dissemination of
each piece of information made or permitted to be made in violation of this
Section shall be considered a separate violation.
"5.32.210 Access Channels.
"A. Each cable system franchised by the City shall provide at least one
government access channel dedicated to the City's use; one education access
channel dedicated to all schools (public and private non-profit) within the City;
and one public access channel to be utilized by the public in accordance with
rules, regulations and procedures established by the City Council and the grantee,
all in accordance with the Cable Communications Policy Act of 1984, or any
successor provisions thereto.
"B. If any government or education access channel is being utilized
more than ten hours per day, five days a week between the hours of 6:00 a.m. and
11:00 p.m. for twelve (12) consecutive weeks; or if any public access channel is
being utilized eighty percent (80%) of the time between 4:00 p.m. and 11:00 p.m.
for twelve (12) consecutive weeks, a grantee shall, upon receipt of written notice
from City make new channel(s) available for the same purpose(s); provided,
however, that nothing in this subsection shall require grantee to construct or add
additional channel capacity to the cable system for the sole purpose of providing
additional access channel capacity, nor shall the grantee be required to make such
new channel(s) available if such utilization of such existing government,
education or public access channel(s) consists of more than ten percent (10%)
character generated programming during any such consecutive twelve (12) week
period. Such requirement(s) may be met by making available, on a part-time
basis, one or more other under-utilized channels, or on a full of part-time basis
one or more other unused access channels until such time as such under-utilized
or unused access channels are needed for the uses to which they have been
dedicated.
"C. Whenever any access channel, other than the basic access channels
required -in Subsection (a) of this Section for government, education and public
access, is utilized less than four (4) hours per day for six (6) days per week for a
continuous period of not less than twelve (12) consecutive weeks, the City
Council may permit different or additional `interim' uses for said channel. The
grantee may be permitted to utilize unused access channel capacity under rules
and procedures established by the City; however, no access capacity shall be
NURWMORDCABLE 27
utilized by the grantee until all other channel capacity on the cable system has
been programmed.
"D. Access channels permitted by the City for `interim' use by a cable
operator are to be restored to government, education or public access use
whenever the criteria in subsection B of this Section are exceeded for any one of
the existing access channel uses or whenever the demand for use as demonstrated
by records of each access channel indicate that an excessive number of people or
programs are being turned away by lack of channel capacity available.
"5.32.220 Areawide Interconnection of Cable Systems.
"A. Interconnection Required. To the extent permitted by law, a
grantee shall interconnect access channels of the cable system with any or all
other cable systems in adjacent areas, upon the directive of the City.
Interconnection of cable systems may be done by direct cable connection,
microwave link, satellite, or other appropriate method.
`B. Interconnection Procedure. Upon receiving the directive of the
City to interconnect, a grantee shall immediately initiate negotiations with the
other affected cable system or systems in order that all costs may be shared
equally among cable systems for both construction and operation of the
interconnection link.
"C. Relief. A grantee may be granted reasonable extensions of time to
interconnect or the City may rescind its order to interconnect upon petition by the
grantee to the City. The City shall grant said request, if it finds that a grantee has
negotiated in good faith and has failed to obtain an approval from the cable
system or systems of the proposed interconnection or that the cost of the
interconnection would cause an unreasonable or unacceptable increase in
subscriber rates.
"D. Cooperation Required. A grantee shall cooperate with any
interconnection corporation, regional interconnection authority or other city,
county, state and federal regulatory agency which may be hereafter established for
the purpose of regulating, financing, or otherwise providing for the
interconnection of cable systems beyond the boundaries of the City.
"5.32.230 New Developments.
"A. The City Council shall have the authority to order a public hearing
on the provision of additional channel capacity by grantee or on the inclusion in
NVRWIMORDCABLE 28
r^
the grantee's cable system of `State of the Art' technology or upgraded facilities.
Notice of such hearing shall be provided to the grantee and the public not later
than thirty (30) days prior to such hearing.
"B. If after such hearing, the City Council determines that (1) there
exists a reasonable need and demand for additional channel capability and/or
`State of the Art' technology or upgraded facilities, and (2) provision of such
additional channel capability and/or `State of the Art' technology or upgraded
facilities is economically feasible for the grantee, and provided that (3) provision
has been made for grantee to continue to establish rates in its sole discretion,
subject to the provisions of grantee's franchise, to the extent permitted by law, the
City Council may order grantee to provide such additional channel capacity,
and/or `State of the Art' technology or upgraded facilities. In considering the
economic feasibility of such required cable system improvements, the City
Council shall consider providing for the extension of the term of the franchise or
renewal of the franchise so that grantee may recover the cost of such
improvements.
"Without implying any limitations as to other provisions of this Chapter,
(0+41 this Section is deemed a material provision within the meaning of Section
5.32.460 of this Chapter.
"5.32.240 Time is of the Essence.
"Whenever a franchise shall set forth any time for a material act to be
performed by or on behalf of the grantee, such time shall be deemed of the
essence and any failure of the grantee to perform such act within the time allotted
shall always be sufficient grounds for the City to invoke liquidated damages or
revocation of a franchise, as provided in Sections 5.32.450 and 5.32.460.
"5.32.250 Acceptance And Effective Date Of Franchise.
"A. No franchise granted pursuant to the provisions of this Chapter
shall become effective unless and until all requirements herein are satisfied and all
such provisions are hereby declared to be conditions precedent to the effectiveness
of any such franchise granted hereunder. In the event any of such requirements
are not satisfied in the time and manner required, the City Council may declare
the franchise null and void.
`B. Within thirty (30) days after the effective date of the ordinance
awarding a franchise, or within such extended period of time as the City Council
in its discretion may authorize, the grantee shall file with the City Clerk its written
MRWIMORDCABLE 29
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acceptance of the franchise, in form satisfactory to the City Attorney, together
with the Performance Bond or Letter of Credit and insurance policies required by
this Chapter, respectively, thereby agreeing to comply with and to do everything
which is required of the grantee by the provisions of this Chapter and the
applicable franchise agreement. Such acceptance and agreement shall be
acknowledged by the grantee before a notary public, and shall in form and content
be satisfactory to and approved by the City Attorney.
"5.32.260 Permits, Installation And Service.
"Within sixty (60) days after acceptance of any franchise, the grantee shall
proceed with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business, including, but not limited to, any
utility joint use attachment agreements, microwave carrier licenses, and any other
permits, licenses and authorizations to be granted by duly constituted regulatory
agencies having jurisdiction over the operation of cable systems, or their
associated microwave transmission facilities.
"5.32.270 Cable System Construction.
"A. Construction Man and Schedule.
111.
Map and Plan
"Grantee shall submit a construction plan or reconstruction plan
which shall be incorporated by reference and made a part of the franchise
agreement. The plan shall include cable system design details, equipment
specifications, and design performance criteria. The plan shall also include a map
of the entire franchise area and shall clearly delineate the following:
"(a) Areas within the franchise area where the cable
system will be available to subscribers including a schedule of construction for
each year that construction or reconstruction is proposed; and
"(b) Areas within the franchise area where extension of
the cable system cannot reasonably be done due to lack of present or planned
development or other similar reasons, with the areas and the reasons for not
serving them clearly identified on the map.
MIRWIMORDCABLE 30
f"`
"2. Early Construction and Extension
"Nothing in this Section shall prevent the grantee from
constructing or reconstructing the cable system earlier than planned. However,
any delay in the cable system construction beyond the times specified in the plan
report timetable shall require application to and consent by the City Council.
"3. Delay in Construction Timetable
"Any delay beyond the terms of construction or reconstruction
timetable, unless approved by the City Council, will be considered a violation of
this Chapter for which the provisions of Section 5.32.460 shall apply as
determined by the City Council.
"4. Commencement of Construction or Reconstruction
"Construction or reconstruction in accordance with the plan
submitted by grantee shall commence, or continue, as applicable, as soon after the
grant and acceptance of a franchise as is reasonably possible. Failure to proceed
(+., expeditiously shall be grounds for revocation of a franchise. Failure to proceed
expeditiously shall be presumed in the event construction or reconstruction is not
commenced within twelve (12) months of the grant and acceptance of a franchise.
"5. Additional Mandatory Extension.
"To the extent permitted by law, extension of a cable system into
any area not specifically treated in the plan shall nonetheless be required if the
terms of any of the following conditions are met:
"(a) Mandatory Extension Rule
"Grantee shall extend cable service upon request to any contiguous
area not designated for initial cable service in the construct plan when potential
subscribers can be served by extension of cable system past dwelling units
equivalent to a density of 35 homes per street mile for aerial cable or 50 homes
per street mile for underground cable. Extension shall be at grantee's cost. If
undergrounding is required by regulation, grantee must make installation at
grantee's expense. Where aerial extension is allowed by regulation but
underground installation is requested by benefited subscribers, the cost of
undergrounding that exceeds estimated aerial extension cost may be charged to
benefited subscribers;
MIRWIMORDCABLE 31
go
"(b) Early Extension
"In areas not meeting the requirements for mandatory extension o
cable service, grantee shall provide, upon the request of five (5) or more potential
subscribers desiring cable service, an estimate of the costs required to extend
cable service to said subscribers. Grantee shall then extend cable service to such
potential subscribers at the expense of -such subscribers upon request of such
potential subscribers and provide cable service to such subscribers according to
the existing rate schedule. Grantee may require advance payment or assurance of
payment satisfactory to grantee. The amount paid by subscribers for early
extension shall be non-refundable, and in the event the area subsequently reaches
the density required for mandatory extension, such payments shall be treated as
consideration for early extension;
"(c) New Development Undergrounding
"In cases of new construction or property development where
utilities are to be placed underground, the developer/property owner shall give
grantee reasonable notice of such construction or development, and of the
particular date on which open trenching will be available for grantee's installation
of conduit and/or cable. Grantee shall also provide specifications as needed for
trenching.
"Costs of trenching and easements required to bring cable service
to the development shall be borne by the developer/property owner; except that if
grantee fails to install its conduit and/or cable within five (5) working days of the
date the trenches are available, as designated in the notice given by the developer
or property owner, then should the trenches be closed after the five (5) day period,
the cost of new trenching is to be bome by grantee. Except for the notice of the
particular date on which trenching will be available to grantee, any notice
provided to grantee by City of a preliminary plat request shall satisfy the
requirement of reasonable notice if sent to the cable system's local general
manager or engineer prior to approval of the preliminary plat request.
"(d) Special Agreements
"Nothing herein shall be construed to prevent grantee from serving
areas not covered under this Section, but within the franchise area, upon
agreement with developers, property owners or residents.
NURWR4\ORDCABLE 32
"6. Aerial Drops Exceeding 150 Feet
"To the extent permitted by law, with respect to requests for
connection requiring an aerial drop line in excess of one hundred and fifty (150)
feet, the grantee must extend and make available cable service to such residents at
a connection fee not to exceed the actual installation costs incurred by the grantee
for the distance exceeding one hundred and fifty (150) feet.
"T Underground Drops Exceeding 150 feet
"To the extent permitted by law, all areas subject to be
underground construction shall require all underground drop installations of not
more than 150 feet at the cost of the grantee. Connections in excess of 150 feet
shall be at the expense of a subscriber at grantee's actual cost.
"5.32.280 Methods and Materials of Construction.
"The City shall have the right to specify the methods and materials of
construction, together with the horizontal and vertical location of any facility
f+., proposed by grantee within any public property or right-of-way. Methods of
construction shall include the City's right to limit the work of the grantee to assure
a minimum of inconvenience to the traveling public.
"5.32.290 City Work.
"The City reserves the right to construct such portions of the grantee's
proposed facilities and equipment as public safety and convenience may dictate,
but not before an itemized cost estimate of the work to be performed has been
presented and approved by the grantee. If the costs are excessive, the grantee may
have the work performed by a licensed contractor acceptable to City, or by the
grantee, at the grantee's sole expense.
"5.32.300 Construction And Technical Standards.
"A. Compliance With Construction and Technical tand rde. Grantee
shall construct, install, operate and maintain a cable television system in a manner
consistent with all laws, ordinances, construction standards, of the City, the most
recent edition of The Standards of Good Engineering Practices for Measurements
on Cable Television Systems, published by the National Cable Television
Association, as amended from time to time, and detailed standards submitted by
grantee as part of its application, which standards are incorporated by reference in
the franchise agreement. In addition, grantee shall provide the City, upon request,
MIRWIMORDCABLE 33
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with a written report of the results of grantee's annual proof of performance tests.
Grantee shall pay the reasonable costs incurred by the City for any technical
assistance deemed necessary by the City for obtaining independent verification of
technical compliance with all standards.
`B. Additional Specifications. Construction, installation and
maintenance of a cable system shall be performed in an orderly and professional
manner. All cables and wires shall be installed, where possible, parallel with and
in the same manner as electric and telephone lines. Multiple cable configurations
shall be arranged in parallel and bundled with due respect for engineering
considerations. Underground installations shall be in conformance with all
applicable codes.
"The grantee shall provide emergency head -end power, and shall
maintain equipment capable of providing standby power for main trunk amplifiers
for a minimum of two (2) hours.
"Grantee shall at all times comply with:
(O*N 11
1. National Electrical Safety Code (National Bureau of
Standards);
Underwriters);
"2. National Electrical Code (National Bureau of Fire
"3. Bell System Code of Pole Line Construction; and
"4. The most recent edition of The Standards of Good
Enizineerin2 Practices for Measurements on Cable Television Systems (National
Cable Television Association), as amended from time to time.
"In any event, the cable system shall not endanger or interfere with the
safety of persons or property in the franchise area or other areas where the grantee
may have equipment located.
"5.32.310 Location of Property of Grantee.
"A. Any poles, wires, cable lines, conduits or other properties of a
grantee to be constructed or installed in streets shall be so constructed or installed
only at such locations and in such manner as shall be approved by the City
Engineer acting in the exercise of his or her reasonable discretion.
M[RwIMOROCABLE 34
`B. A grantee shall not install or erect any facility or apparatus in or on
other public property, place, easement, right-of-way, or within any privately
owned area within the City which has not yet become a public street but is
designated or delineated as a proposed public street on any tentative subdivision
approved by the City, except those installed in or erected upon a public utility
facility now existing, without obtaining the prior written approval of the City
Council.
"C. Notwithstanding any other provision in this Chapter or any
franchise granted pursuant thereto, all facilities of a grantee in any public street or
in any public or private easement, and cable service lines to subscribers off the
main lines, shall be located underground at such depths and locations as shall be
approved by the City Engineer, except where grantee uses existing poles, with
permission from the owner, and as to such cable service lines where and so long
as electric and telephone lines to the subscribers are overhead. Upon the
undergrounding of the utility lines of the owner using said poles, grantee shall
concurrently (or earlier) place its facilities underground at depths and locations
approved by the City Engineer. All underground wires or cable of grantee shall
be placed in conduits.
"D. A grantee shall cause a key map and detailed plat maps of the
entire cable system, showing materials of construction and horizontal and vertical
locations with respect to property lines and grade lines, to be prepared by a state -
licensed cable television engineer and filed in the City Engineer's office prior to
the issuance of a permit for construction, or within ninety (90) days after the
granting of a franchise to operate and maintain facilities existing prior to the
adoption of this Section. Prior to requesting the issuance of a permit for the
installation of any facility or apparatus in accordance with the provisions of this
Section, the grantee shall file such key map and detailed plat maps with all utility
companies and public agencies whose facilities are affected by such installation
and obtain a statement signed by a responsible official thereof that such utility or
public agency has no objection to the proposed location of such facility. Such
utility companies and public agencies shall act upon a request made to them by a
grantee in accordance with the foregoing provisions within thirty (30) days after
such request has been made to such utility or public agency.
"E. A grantee shall comply with the provisions of those existing Codes
of the State of California, which provide for location of general utility services,
and the existing City of Irwindale Public Works standards.
MIRWIMORDCABLE 35
"F. A grantee shall install its underground equipment and apparatus
simultaneously with telephone and electric conduit whenever the same are
installed within the grantee's area.
"G. In order that the provisions of subsections C and F of this Section
may be reasonably applied in instances where extreme or unnecessary hardship
would result from carrying out the provisions of this Section, the City Council
shall have the power to vary the mandatory provisions of this Section in any
specific case in such a manner that substantial justice is done upon a showing by
the grantee of good cause therefor. Notwithstanding any other provision of this
Chapter, the franchise agreement may require that all facilities will be
underground from the beginning without utilization of existing above ground
facilities. In such event, the franchise agreement may provide for certain
exceptions, or delegate to the City Engineer authority to make exceptions when
deemed reasonably necessary from the standpoint of either practical installation or
economic cost. In any event, all installations shall be in accordance with
standards approved by the City Engineer. Notwithstanding, amplifiers in
grantee's transmission and distribution lines may be in appropriate housing upon
the surface of the ground, as approved by the City Engineer.
"5.32.320 Use Of Utility Poles & Facilities - Agreement(s)
Required.
"A. When any new portion of the cable system is to be installed on
public utility poles and facilities, grantee will provide the City with proof that
agreements for such joint use of poles and facilities have been entered into by
grantee and such utilities.
`B. Underground cable facilities shall not be placed in common
trenches with Southern California Edison Company, Pacific Bell or General
Telephone Companies, or any City owned or privately owned trench without prior
written approval from the owner of the facility.
"5.32.330 Emergency Work.
"The City reserves the right to remove any portion of the grantee's
equipment and facilities as may be required in any emergency as determined by
the City without liability for interruption of cable service and City shall not be
obligated to restore cable service or to pay the costs of expenses of restoring cable
service. In the event this work results in a loss of cable service, without fault on
the part of grantee, no refund will be credited to subscriber accounts.
NURwIMORDCABLE 36
"5.32.340 Removal And Abandonment Of Property Of Grantee.
"A. In the event that the use of any part of the cable system is
discontinued for any reason for a period of twelve (12) consecutive months, or in
the event such cable system or property has been installed in any street or public
without complying with the requirements of the grantee's franchise or this
Chapter, or the franchise has been terminated, canceled or has expired, the grantee
shall promptly, upon being given ten (10) days written notice from the City
Engineer, commence removal from the streets or public places all such property
and poles of such cable system other than any which the City Engineer may
permit to be abandoned in place. In the event of such removal, the grantee shall
promptly restore the street or other area from which such property has been
removed to a condition satisfactory to the City Engineer.
`B. Any property of the grantee remaining in place thirty (30) days
after the termination or expiration of the franchise shall be at the option of the
City Council considered permanently abandoned. The City Engineer may extend
such time not to exceed an additional thirty (30) days.
"C. Any property of the grantee permitted to be abandoned in place
shall be abandoned in such manner as the City Engineer shall prescribe. Upon
permanent abandonment of the property of the grantee in place, the property shall
become that of the City, and the grantee shall submit to the City an instrument in
writing, to be approved by the City Attorney, transferring to the City the
ownership of such property.
"5.32.350 Temporary Removal of Wire for Building
Improvements.
"The grantee, on the request of any person, firm or corporation holding a
building moving permit issued by the City, shall temporarily raise or lower its
wires to permit the moving of buildings. The expense of such temporary removal,
raising or lowering of wires shall be paid to the grantee by the person, firm or
corporation requesting the same, and the grantee shall have the authority to
require such payment in advance. The grantee shall be given not less than forty-
eight (48) hours advance notice to arrange for such temporary wire changes.
"5.32.360 Tree Trimming.
"The grantee shall notify the City regarding the need to trim trees upon
and overhanging streets of the City so as to prevent the branches of such trees
from coming in contact with the wires and cables of the grantee; at the option of
NURWIMOROCABLE 37
r"l
the City, such trimming may be done by the City at the expense of the grantee, or
by the grantee under the City's supervision and direction, at the expense of the
grantee. When authorized, such trimming shall be limited to the area required for
clear cable passage and shall not include major structural branches which
materially alter the appearance and natural growth habits of the tree. If such
trimming is not performed by the City, the grantee shall be responsible for any
and all damages to any tree as a result of trimming, or to the land surrounding any
tree, whether such tree is trimmed or removed.
"5.32.370 Changes Required By Public Improvements.
The grantee shall from time to time protect, support, temporarily dislocate,
temporarily or permanently as may be required, remove or relocate, without
expense to the City or any other governmental entity any facilities installed, used,
and maintained under the franchise, if and when made necessary by any lawful
change of grade, alignment, or width of any public street, including the
construction of any subway or viaduct, by the City or any other governmental
entity, or made necessary by any other public improvement or alteration in, under,
on, upon or about any public street or other public property, whether such public
�.+ improvement or alteration is at the instance of the City or another governmental
entity, and whether such governmental or proprietary function, or improvement or
alteration is for a governmental or proprietary function, or made necessary by
traffic conditions, public safety, street vocation or any other public project or
purpose of City or any other governmental entity. The decision of the City
Engineer under this Section shall be final and binding on a grantee.
"5.32.380 Failure To Perform Street Work.
"Upon failure of the grantee to commence, pursue, or complete any work
required by law or by the provisions of this Chapter or by its franchise agreement
to be done in any street or other public place, within the time prescribed, and to
the satisfaction of the City Engineer, the City may, at its option, cause such work
to be done and the grantee shall pay to the City the cost thereof in the itemized
amounts reported by the City Engineer to the grantee within ten (10) days after
receipt of such itemized report. Or, at City's option, City may demand of grantee
the estimated cost of such work as estimated by the City Engineer, and such shall
be paid by grantee to City within ten (10) days of such demand. Upon award of
any contract or contracts therefor, grantee shall pay to City within ten (10) days of
demand any additional amount necessary to provide for cost of such work. Upon
completion of such work, grantee shall pay to City or City shall refund to grantee
such sums so that the total received and retained by City shall equal the cost of
NVRWIMORDCABLE 38
such work. `Cost' as used herein shall include fifteen percent (15%) of other
costs for City's overhead.
"5.32.390 Complaint Procedure.
"A. The City Manager or designee shall have primary responsibility for
the continuing administration of a franchise and implementation of complaint
procedures.
`B. A grantee shall maintain an office within the City limits, which
shall be open during all usual business hours, have a publicly -listed telephone
number with a toll-free number and sufficient lines; and be so operated that
complaints and requests for repairs, billing or adjustments shall be received on a
twenty-four (24) hour basis. Subscribers shall be promptly notified of any change
of address of such office or of telephone number(s). The City Council, via a
resolution, may permit the office to exist within an adjoining city upon such other
terms and conditions as such resolution may provide.
"C. A grantee shall maintain a repair and maintenance crew capable of
responding to subscriber complaints or requests for service within twenty-four
(24) hours after receipt of the complaint or request. No charge shall be made to
the subscriber for this service unless such maintenance or repair is required as a
result of damage caused by subscriber. A grantee may charge for cable service
calls to the subscriber's home that are not the result of cable failure and if
authorized by law, upon approval of a rate and equitable procedure by the City.
"D. A grantee shall establish procedures for receiving, acting upon, and
resolving subscriber complaints to the reasonable satisfaction of the City
Manager. A grantee shall furnish a notice of such procedures to each subscriber at
the time of initial subscription to the cable system and annually thereafter.
"E. A grantee shall keep a maintenance cable service log which will
indicate the nature of each cable service complaint, the date and time it was
received, the disposition of said complaint and the time and date thereof. This log
shall be made available for periodic inspection by representatives of the City
Manager. All cable service complaint entries shall be retained for no less than
three (3) years.
"F. When there have been similar complaints made or when there
exists other reliable evidence, which in the judgment of the City Manager casts
/� doubt on the reliability or signal quality of cable service, the City Manager or City
F Manager's designee shall have the right and authority to compel a grantee to test,
MIRWIMORDCABLE 39
51
analyze, and report on the performance of the cable system. Such report shall be
delivered to the City Manager no later than thirty (30) days after the City Manager
formally notifies the grantee and shall include the following information: the
nature of the complaints communicated to the grantee by the City in writing
which precipitated the special test(s); which cable system component(s) was/were
tested, the equipment used, and procedure(s) employed in said testing; the results
of such test(s); and the method(s) in which said complaints were resolved.
"G. The City Manager may require that tests and analyses shall be
supervised by a professional engineer not employed by the grantee or the City.
The aforesaid engineer shall sign all records of the special tests and forward to the
City Manager such records with a report interpreting the results of the tests and
recommending actions to be taken by a grantee and the City.
"5.32.400 Refund.
"A. Subscribers not satisfied that their cable services have been
provided as outlined in this Chapter and/or the franchise agreement shall be
encouraged to notify the cable system's general manager. The grantee shall work
with the subscriber to resolve the problem within 48 hours, and upon request by a
subscriber, the grantee shall credit the subscriber's account on a pro rata basis for
a bona fide particular loss of cable service commencing 48 hours after notification
of the grantee, it being agreed that such credit shall be the amount of the pro -rata
cost to the subscriber of the particular tier or level of service in which the affected
channel or channel(s) is contained, or in the instance of a premium channel (e.g.
HBO) the pro -rata cost to the subscriber of the `lost' premium or channel.
`B. A grantee shall , at the time of initial subscription to the cable
system and annually thereafter, furnish a notice to subscribers of their right to a
refund for any loss or interruption of cable service for 48 hours or more.
"5.32.410 Fiscal Reports.
"At such time that grantee makes application to renew its franchise or at
such time that the City has reasonable credible evidence in its possession that
grantee's financial condition is such that grantee cannot reasonably be expected to
have the financial capacity to carry out its obligation under its franchise the City
may request the grantee to file with the office of the City Clerk, no later than one
hundred twenty (120) days after the giving of such request, copies of an
independently audited (by a CPA) balance sheet of the entire cable company (such
a report shall include information in regard to other cable systems owned and
operated by the grantee) and an independently audited (by a CPA) balance sheet
N\IRWIMORDCABLE 40
r,
applicable to the cable system serving solely the City, and a statement of its
properties devoted to the cable system operation, by categories, giving its
investment in such properties on the basis of original cost, less applicable
depreciation. In addition, grantee shall file annually with the office of the City
Clerk no later than one hundred twenty (120) days after the end of the grantee's
fiscal year a report containing the following specific information (`System
Specific Information') specific to the City: number of homes passed, number of
cable plant miles, number of subscribers for each type of cable service offered and
the gross revenues for each type of cable service offered and the gross revenues
from all sources attributable to the operations of grantee from within the City.
This report shall be prepared and certified as correct by an authorized officer of
the grantee, and there shall be submitted along with it at the end of the grantee's
fiscal year, copies of both an independently audited (by a CPA) financial report of
the entire cable company (such a report shall include information in regard to
other cable systems owned and operated by the grantee) and an independently
audited (by a CPA) financial report applicable to the cable system serving solely
the City, including a detailed income and expense statement applicable to its
operation during the preceding twelve (12) month period, a balance sheet and a
statement of its properties devoted to the cable system operation, by categories,
fo.., giving its investment in such properties on the basis of original cost, less
applicable depreciation. The latter report shall contain the following information,
specific to the City: number of homes passed, number of cable plant miles,
number of subscribers for each type of cable service offered and the gross
revenues from all sources attributable to the operations of grantee from within the
City. This report shall be prepared and certified as correct by an authorized
officer of the grantee and there shall be submitted along with them such other
reasonable information as the City Council shall request. Further, should the City
Council so request, interim monthly reports of System Specific Information shall
be submitted to the City within 60 days of request.
"5.32.420 Inspection Of Property And Records.
"A. At all reasonable times and upon reasonable notice, except when in
emergency situations as determined by City, the grantee shall permit any duly
authorized representative of the City to examine all property of the grantee,
together with any appurtenant property of the grantee situated within the City, or
outside of the City, when directly related to the grantee's franchise. Grantee shall
permit City to examine and transcribe any and all maps and other records kept or
maintained by the grantee or under its control which deal with the operations,
affairs, transactions or property of the grantee with respect to its franchise. If any
such maps or records are not kept in the City, or upon reasonable request made
available in the City, and if the City Council shall determine that an examination
NURVWORDCABLE 41
thereof is necessary or appropriate, then all travel and maintenance expenses
necessarily incurred in making such examination shall be paid by the grantee.
`B. The grantee shall prepare and furnish to the City Manager, at the
times and in the form prescribed by said officer, such reports with respect to its
operations, affairs, transactions or property as may be reasonably necessary or
appropriate to the performance of any of the rights, functions or duties of the City
or any of its officers in connection with the franchise.
"C. The grantee shall at all times make and keep in the City full and
complete plans and records showing the exact location of all cable system
equipment installed or in use in streets, public right -of- ways and other places in
the City.
"D. The grantee shall file with the City Engineer, on or before the last
day in March of each year, a current map or set of maps drawn to scale, showing
all cable system equipment installed and in place in streets, public right-of-ways
and other public places of the City.
�. "5.32.430 Protection Of City Against Liability.
"A. Indemnification. The grantee shall defend, indemnify and hold
harmless the City, the Irwindale Community Redevelopment Agency and City's
and Agency's officers, boards, commissions, agents and employees against and
from any and all claims, demands, actions, suits, liabilities and judgments of
every kind and nature and regardless of the merit of the same, arising out of or
related to a Grantee's exercise or enjoyment of any cable television franchise
granted pursuant to the provisions of this Chapter (except that grantee shall not be
required to indemnify City as to claims, demands, actions, suits, liabilities and
judgments arising out of the sole acts or omissions of the City) regardless of any
claimed or actual contributory negligence or conduct of any such indemnitee, and
including, without affecting the scope of the foregoing, and not limited to claims,
demands, actions, suits, liabilities and judgments based upon unfair competition
or alleged unfair competition, any infringement or violation, or alleged
infringement or violation of any copyright, whether common law or statutory, or
failure of grantee to secure consents from owners, authorizing distributors or
licensees of programs to be delivered by grantee's cable system; and grantee shall
reimburse the City and any other such indemnitee for any costs and expenses
incurred by them in defending against any such claim or demand or action,
including any attorney fees, accountant fees, expert witness or consultant fees,
court costs, per them expenses, travel and living expenses; and grantee shall upon
demand of the City or any other such indemnitee appear in and defend any and all
MIRWIMORDCABLE 42
suits, actions or other legal proceedings whether judicial, quasi-judicial,
administrative or otherwise, brought by third persons or duly constituted
authorities against or affecting the City, the Agency, or any of City's or Agency's
officers, boards, commissions, agents or employees and arising out of or related to
the exercise or enjoyment of such franchise, or the granting thereof by the City;
the foregoing obligation shall exist and continue without reference to or limitation
by the amount of any bond, policy of insurance, deposit, undertaking or other
security required hereunder; provided that the City shall not make or enter into
any compromise or settlement of any claim, demand, action or suit without the
consent of the Grantee.
`13. Comprehensive Liability Insurance. Upon acceptance of such
franchise, the grantee shall file with the City Clerk and shall thereafter during the
entire term of such franchise maintain in full force and effect, at its own expense,
a general comprehensive liability insurance policy or policies which shall insure
grantee and provide primary coverage for the City, the Irwindale Community
Redevelopment Agency, and City's and Agency's officers, boards, commissions,
agents and employees, against liability for loss or liability for personal injury,
death, property damage (both automobile and non -automobile caused), or other
eo+.,, damages. Such policy or policies shall include insurance against damages from
claims of unfair competition, copyright infringement (common law or statutory)
and a failure of grantee to secure consents, etc., occasioned by any activity or
operation of grantee under such franchise, and regardless of any claimed or actual
activities of City or Agency, or City's or Agency's officers, boards, commissions,
agents and employees. The City Council, in any franchise granted, may waive the
requirement for insurance from one or more perils mentioned in the last preceding
sentence upon a finding that such insurance cannot be procured or cannot be
procured at a reasonable cost, and in connection therewith may reduce the
otherwise required limits on coverage hereafter set forth. Unless otherwise
provided in a franchise, such policy or policies shall be issued by a company
approved by the City Manager and shall be in a form approved by the City
Attorney, with minimum combined single limits of liability coverage in the
amount of Two Million Dollars ($2,000,000). The policy shall name the City, the
Irwindale Community Redevelopment Agency, and City's and Agency's officers,
boards, commissions, agents and employees as additional insureds and shall
contain a provision that a written notice of any cancellation, modification or
reduction in coverage of said policy shall be delivered to the City Clerk thirty (30)
days in advance of the effective date thereof. No franchise granted under this
Chapter shall be effective unless and until each of the foregoing policies of
insurance as required in this subsection has been delivered to the City Clerk. Any
substitute policy or policies shall be subject to the same approvals and shall
comply with all of the provisions of this subsection.
N\IRWIMORDCABLE 43
5d
"5.32.440 Security for Performance.
"A. City may require grantee to provide, within thirty (30) days after
the award or renewal of a franchise and throughout the term thereof, and for the
sole benefit of the City, a Performance Bond or Letter of Credit, in form and
substance satisfactory to the City Attorney, in the amount of $50,000, which shall
serve to secure grantee's performance of its franchise obligations as follows:
111.
to pay to the City any taxes after ten (10) days written
notice of delinquency;
"2. to pay to the City, after ten (10) days written notice, any
amounts due and owing the City by reason of the indemnity provisions of Section
5.32.430;
"3. to pay to the City any liquidated damages due and owing to
the City pursuant to Section 5.32.450;
"4. to pay to the City any amounts due pursuant to Section
1^ 5.32.110;
"5. to pay, after ten (10) days written notice, any amounts
owing as franchise fees pursuant to Section 5.32.140; and
"6. to pay to the City and amounts due pursuant to Section
5.32.470.
"Said Performance Bond or Letter of Credit shall be used to assure the
faithful performance by a grantee of all material provisions of this Chapter and
resulting franchise agreement and City orders issued thereunder, and the payment
by the grantee of any penalties, liquidated damages, claims, liens and taxes due to
the City which arise by reason of the construction, operation or maintenance of
the cable system, including cost of removal or abandonment of any property of the
grantee. Grantor may execute on the Performance Bond or Letter of Credit in the
event Grantee fails to perform any of the obligations set forth above in this
Section 5.32.440. However, execution on said Bond or Letter of Credit shall not
occur with respect to obligations which liquidated damages apply until City
Manager becomes entitled to so execute as provided in Section 5.32.450.
`B. The rights reserved to the City with respect to the Performance
Bond or Letter of Credit are in addition to all other rights of the City, whether
reserved by a franchise or authorized by law, and no action, proceeding or
NVRWIMORDCABLE 44
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exercise of a right with respect to such Performance Bond or Letter of Credit shall
affect any other right the City may have.
"5.32.450 Liquidated Damages.
"A. By acceptance of the franchise granted by the City, a grantee
understands and shall agree that a material breach of any time and/or performance
requirement as stipulated in this chapter and the franchise will result in damage to
the City, and that it is and will be impracticable to determine the actual amount of
such damage in the event of delay or non performance; the franchise shall include
provisions for liquidated damages to be paid by the grantee, in amounts set forth
in the franchise and chargeable to the performance bond or letter of credit for the
following concerns:
11
1. Failure to complete system construction or reconstruction
in accordance with sections 5.32.160, 5.32.170, and 5.32.300 - Unless the City
Council specifically approves the delay by motion or resolution, where such delay
is due to the occurrence of conditions beyond grantee's control, a grantee shall pay
five hundred dollars ($500) per day for each day, or part thereof, the delinquency
continues;
"2. Failure to provide upon written request, data, documents,
reports, information or to cooperate with city during an application process or
cable system review - a grantee shall pay fifty dollars ($50) per day for each day,
or part thereof, that each violation occurs or continues;
"3. Failure to test, analyze and report on the performance of the
system following a written request pursuant to Section 5.32.110 - A grantee shall
pay to City one hundred dollars ($100) per day for each day, or part thereof, that
such non-compliance continues;
"4. Failure to provide in a continuing manner the types of
services proposed in the accepted application or renewal proposal, unless the City
Council specifically approves grantee a delay or change or the grantee has
obtained modification of its obligation under Section 625 of the Cable
Communications Policy Act of 1984, or successor provision thereof, a grantee
shall pay to the City five hundred dollars ($500) per day for each day, or part
thereof, that each non-compliance continues;
"5. Forty-five (45) days following adoption of a resolution by
the City Council in accordance with Section 5.32.170 determining a failure of
grantee to comply with operational, maintenance or technical standards, grantee
NVRWTMORDCABLE 45
shall pay to the City five hundred dollars ($500) for each day, or part thereof, that
such non-compliance continues; and
"6. Any other material breach of any provision of the franchise
by a grantee, as agreed upon between the City and such grantee, and set forth in
the Franchise Agreement. Nothing in this Section shall preclude further
liquidated damages as agreed upon by the parties in the franchise agreement.
"(b) If the City Manager concludes that a grantee is
liable for liquidated damages pursuant to this Section, the following procedure
shall be implemented:
"The City Manager shall issue to grantee by certified mail a, notice of
intention to assess liquidated damages. The notice shall set forth the basis of
assessment by explaining specific areas of noncompliance.
"Grantee shall have 60 days from the date of notice in which to cure
problems or violations. In the event of circumstances which prevent grantee's
curing of such violations of noncompliance, the 60 -day cure period may be
Alo� extended upon mutual agreement.
"If grantee is unable to cure said violation or noncompliance to the City's
reasonable satisfaction within the period provided in this Section 5.32.450, a
public hearing shall be set by the City Council to occur within thirty (30) days.
"If, following said hearing, the City Council sustains in whole or in part
the City Manager's assessment of liquidated damages, the City Manager may at
any time thereafter execute on the Performance Bond or Letter of Credit required
by Section 5.32.440. Unless the City Council indicates to the contrary, said
liquidated damages shall be assessed beginning with the date of service of the
notice of intention to assess liquidated damages.
"5.32.460 Forfeiture And Termination.
"A. In addition to all other rights and powers retained by the City under
this Chapter or otherwise, the City reserves the right to forfeit and terminate a
franchise and all rights and privileges of a grantee in the event of a material
breach of its terms and conditions. In interpreting this Chapter, material
provisions shall include those labeled as such and all others, which, under all the
facts and circumstances indicated, are a significant provision of the franchise
agreement. A material breach by a grantee shall include, but shall not be limited
to, the following:
1 UMMORDCABLE 46
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"1. Violation of any material provision of the franchise or any
material rule, order, regulation or determination of the City made pursuant to the
franchise;
"2. Attempt to evade any material provision of the franchise or
practice any fraud or deceit upon the City or its subscribers or customers;
"3. Failure to begin or complete cable system construction,
reconstruction or cable system extension as provided under the franchise
agreement;
"4. Failure to provide the types of cable services specified in
the franchise; assuming grantee has unsuccessfully pursued whatever recourse is
available under Section 625 of the Cable Communications Policy Act of 1984, or
successor provision thereto;
"5. Failure to restore cable service after ninety-six (96)
consecutive hours of interrupted cable service, except when approval of such
interruption is obtained from the City; or
"6. Material misrepresentation of fact in the application for, or
in the negotiation of the franchise.
`B. The foregoing shall not constitute a material breach if the violation
occurs but is without fault of a grantee or occurs as a result of circumstances
beyond its control, as determined by the City. Grantee shall not be excused by
mere economic hardship nor by misfeasance or malfeasance of its shareholders,
directors, officers, or employees.
"C. The City may make a written demand that a grantee comply with
any such material provision, rule, order, or determination under or pursuant to this
Chapter or applicable franchise agreement. If the violation by the grantee
continues for a period of thirty (30) days following such written demand without
written proof that the corrective action has been taken or is being actively and
expeditiously pursued, the City may place the issue of termination of a franchise
before the City Council. The City shall serve upon grantee twenty (20) days prior
written notice of its intent to terminate and the time and place of the meeting.
Public notice shall be given of the meeting.
"D. The City Council shall hear and consider the issue and shall hear
any person interested therein, and shall determine, in its discretion, whether or not
any violation by the grantee has occurred.
NVRWIMORDCABLE 47
"E. If the City Council shall determine the violation by a grantee was
the fault of the grantee and within its control, the City Council may, by resolution,
declare that the franchise of the grantee be forfeited and terminated, unless there is
compliance within such period as the City Council may fix, such period not to be
less than thirty (30) days, provided no opportunity for compliance need be granted
for fraud or misrepresentation.
"F. The issue of forfeiture and termination shall automatically be
placed upon the City Council agenda at the expiration of the time set by it for
compliance. The City Council then may terminate a franchise forthwith upon
finding that grantee has failed to achieve compliance or may further extend the
period, in its discretion.
"5.32.470 Continuity Of Service Mandatory.
"A. It shall be the right of all subscribers to continue receiving cable
service insofar as their financial and other obligations to a grantee are honored. In
the event that a grantee elects to overbuild, rebuild, modify or sell the cable
system, or the City gives notice of proposed termination or revocation of a
�,.. franchise, or pursuant to applicable law, intent to deny renewal of a franchise, the
grantee shall act so as to assure that all subscribers receive continuous,
uninterrupted service regardless of the circumstances, but in no event beyond the
time grantee actually ceases to provide cable service in the City of Irwindale.
"In the event of a change of grantee, or in the event a new operator
acquires the cable system, a grantee shall cooperate with the City, new grantee or
operator in maintaining continuity of cable service to all subscribers. During such
period, grantee shall be entitled to the revenues for any period during which it
operates the cable system, and shall be entitled to reasonable costs for its cable
services when it no longer operates the cable system.
`B. In the event grantee fails to operate the cable system for ninety-six
(96) consecutive hours without prior approval of the City or without just cause,
the City may, at its option, operate the cable system or designate an operator until
such time as grantee restores cable service, under conditions acceptable to the
City or a new permanent operator is selected. If the City is required to fulfill this
obligation for a grantee, the grantee shall reimburse the City for all reasonable
costs or damages in excess of revenues from the cable system received by the City
that are the result of the grantee's failure to perform. City may utilize grantee's
Performance Bond or Letter of Credit for such reimbursement.
NVRWIMORDCABLE 48
"5.32.480 Failure of City To Enforce A Franchise;
No Waiver Of Terms.
"A grantee shall not be excused from complying with any of the terms and
conditions of a franchise or this Chapter by any failure of the City upon any one
or more occasions to insist upon or to seek compliance with any such terms or
conditions.
"5.32.490 Waivers.
"A. Any provision of this Chapter may be waived, at the sole discretion
of the City, by resolution of the City Council.
`B. Grantee may submit a request for waiver to the City Council at any
time during the franchise term. Such request for waiver may, at the sole
discretion of the City Council, be set for public hearing and a decision shall be
made within one hundred and twenty (120) days following its submission.
Procedures for modification of franchise obligations shall be in full compliance
with Section 625 of the Cable Communications Policy Act of 1984, or any
successor provision thereto.
"C. The City Council may authorize the economic, technical or legal
evaluation of such waiver request and the grantee shall be required to reimburse
the City for all expenditures incurred by City in connection with such evaluation.
"D. This Section is enacted solely for the convenience and benefit of
the City and shall not be construed in such a manner as to create any right or
entitlement for the grantee.
"5.32.500 Miscellaneous Provisions.
"A. When not otherwise prescribed herein, all matters herein required
to be filed with the City shall be filed with the City Clerk.
`B. Neither grantee nor any of its officers, shareholders, owners or
employees shall have any financial interest, directly or indirectly, in any TV or
radio sales or repair business, nor shall grantee or any of such persons accept or
receive referral fees or gratuities from any such sales or repair business. No
violation of this subsection, unknown to grantee, by an employee of grantee who
is not an officer, shareholder or owner shall constitute a breach of this subsection,
unless grantee should fail to discharge any such person upon discovery thereof.
NVRVWORDCABLE 49
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"C. No person, firm or corporation in the existing cable service
franchise area of the grantee shall be arbitrarily refused cable service; provided,
however, that the grantee shall not be required to provide cable service to any
subscriber who does not pay the applicable connection fee or monthly cable
service change.
"D. All notices which City may give to a grantee or which a grantee
may give to City shall be given in writing and may be given by first class mail,
postage prepaid addressed to grantee's most recent business address on file with
the City or by a national express mail service, and addressed to City at its City
Hall. Such notices, so sent by express mail, shall be deemed given one day after
deposit in the U.S. Mail if so deposited in Los Angeles County; otherwise they
shall be deemed given upon receipt."
Section 2: Penalties for Violation.
It shall be unlawful for any person, firm, partnership, or corporation to
violate any provision, or fail to comply with any of the requirements of this Ordinance
hereby adopted. Any person, firm, partnership, or corporation violating any provision of
this Ordinance or failing to comply with any of its requirements shall be deemed guilty of
a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding
Five Hundred Dollars ($500.00) or by imprisonment not exceeding six (6) months or by
both such fine and imprisonment. Each such person, firm, partnership, or corporation
shall be deemed guilty of a separate offense for each and every day or any portion thereof
during which any violation of any of the provisions of t his Ordinance is committed,
continued or permitted by such person, firm, partnership, or corporation, and shall not be
deemed punishable therefor as provided in this Ordinance.
Section 3: Civil Remedies are Available.
A violation of any of the provisions of this Ordinance shall constitute a
nuisance and may be abated by the City through civil process by means of restraining
order, preliminary or permanent injunction, or in any other manner provided by law for
the abatement of such nuisance.
NURWIMOROCABLE 50
Section 4: Severability.
The City Council declares that, should any provision, section, paragraph,
sentence or word of this Ordinance be rendered or declared invalid by any final court
action in a court of competent jurisdiction, or by reason of any preemptive legislation, the
remaining provisions, sections, paragraphs, sentences and words of this Ordinance shall
remain in full force and effect.
Section 5: The City Clerk shall certify to the passage of this
Ordinance and shall cause this Ordinance to be published as required by law.
ADOPTED AND APPROVED this 22ndiay of August 1996.
Mayor
I, Camille Diaz, Deputy City Clerk of the City of Irwindale,
California, do hereby certify that the foregoing Ordinance was introduced at a regular
meeting of the City Council of the City of Irwindale held on the 8 th day of
August , 1996, and was finally passed at a regular meeting of the City Council of
the City of Irwindale held on the 22ndlay of August 1996, by the following
vote:
AYES: COUNCIL MEMBERS: Miranda, J., Breceda, J., Miranda, P.,
Tapia, J. and Chavez, R.
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
ABSTAINED: COUNCIL MEMBERS: None
ATTEST: /
Deputy City Clerk of the City of I ndale
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