HomeMy WebLinkAbout99-45 RESOLUTION NO. 99-45
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH
GRANTING CONSENT TO THE TRANSFER OF CONTROL OF
THE CABLE TELEVISION FRANCHISE
WHEREAS, Century Communications Corporation ("Grantee") currently holds a
cable television franchise (the "Franchise") to own and operate a cable television system
(the "System") in Ukiah ("Grantor').
WHEREAS, on March 5, 1999, the parent company of the Grantee, Century
Communications Corporation ("Century"), entered into an Agreement and Plan of Merger
with Adelphia Communications Corporation ("Adelphia") providing for, among other things,
the sale of stock and transfer of control of Century to Adelphia;
WHEREAS, Century and Adelphia have jointly submitted to the Grantor an
application on Federal Communications Commission Form 394, requesting consent for the
Transfer of Control and have submitted such other information concerning the Transfer of
Control and Adelphia as may be required by law, the Franchise or as requested by the
Grantor (collectively, the "Transfer Application");
WHEREAS, Grantee will continue to hold the Franchise and operate the System
subsequent to the Transfer of Control of Adelphia;
WHEREAS, the Grantor has reviewed the Transfer Application and conducted its
review of the legal, technical, and financial qualifications of Adelphia;
WHEREAS, all written comments and staff reports have been received and made
a part of the record; and
WHEREAS, following review, the Grantor believes it is in the best interest of the
Grantor to approve the Transfer of Control to Adelphia, as described in the Transfer
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RESOLUTION NO. 86-48
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH
CONSENTING TO THE TRANSFER AND ASSIGNMENT OF
GROUP W CABLE'S CABLE TELEVISION SYSTEM AND FRANCHISE
WHEREAS, Group W. Cable, Inc., a New York corporation ("Group W Cable"),
through .~ts.wholly-owned subsidiary GWC 99, Inc. ("GWC Subsidiary"), 'operates
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and maintains a cable television system within the City of Ukiah, California,
pursuant to that certain franchise (the "Franchise") granted by the City and.
evidenced by the document listed on Exhibit hereto (such cable television
system and the Franchise being hereinafter collectively referred to as the
"System"); and
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WHEREAs, Group W Cable's parent corporation, Westinghouse Broadcasting
and Cable, Inc., an Indiana corporation, is selling and otherwise transferring
all of the issued and outstanding shares of the capital stock of Group W Cable
to American Television and Communications Corporation, a Delaware corporation
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("ATC")';Century Southwest Cable Television, Inc., a Delaware Corporation; TGI
Holdings, Inc., a Colorado corporation; and certain affiliates of, or
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subsidiaries or partnerships owned or controlled by, ATC, Comcast Corporation,
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a Pennsylvania corporation, Daniels & Associates, Inc., a Delaware
corporation, and Houston Industries Incorporated, a Texas corporation (all of
the.foregoing entities being hereinafter collectively referred to as the "New
Owners"), and thereby transfer control of Group W Cable to the New Owners; and
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~"~':'!"'"'~'~~:~:,'":'::;the New O~ners presently intend to cause Group W Cable to
transfer control of GWC Subsidiary and/or transfer and assign the System to
Co.rp..o.ra~ioni...;as:soon as practicable after the closing date of the foregoing
:iii;, ":".~ '~ ~?i~.~ ".;:~:'::;~:;:'; · ', .
· .:'. :'~, ~:.!~.'~;e~ :z~,-:.L.; :, .' . .
· ~:~:::.~::~:'[!~,~;': the City is ~i~ling to consent to the transfer of control ?i ~c
'Su~;i~~[::~nd/or .the transfer and assig~enc of =he System to the Transferee
. ;. ~., ..,.'j ..: ....
afte:r'::),'the Closing Date:
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1 NOW, THEREFORE, in consideration of the premises, the City hereby con-
9-//firms that G~C Subsidiary is the current holder of the Franchise, and the City
2 hereby .consents to the transfer of control of GHC Subsidiary and/or the
4 transfer 'and assi~runent of the System to the Transferee after the Closing
[ll~D'at~,:'"provided that this consent shall be subject to the condition that the
6[]holde~i.?f the Franchise shall (promptly after the date of such transfer and/or
? assi81~nen't:)
Il:.: ..' '...: :'. ' execute and deliver to the City its acceptance of, and its
.-... . .
8 agreement and undertaking to perform ail of the duties and obligations under,
9 th~<'Yr~nC'~'~se~':"and' vithin',. .,...::.:..:. thirty (30) days'provtde"the"'i'~ter";0f credit and
l0 certificates of insurance required by the franchise and the City hereby
11 authorizes the Hayor to execute and deliver to Group W Cable a consent.
19- PASSED AND ADOPTED this 21st day of Hay, 1986 by the folloving roll call
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16 A¥I~S... 'Counctlmember Henderson, Kter, Hickey, and Mayor Myers
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17 NOES :- ':[:.N0ne
18 Al~Sl~tT:::Counctlmember Kelley
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HAYOR. · - -.-.
CITY CLERK
City of Uklah, California'
Certified To Be A 1me and ~ ~
ORDINANCE NO. 1033
URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF UKIAH ADDING SECTION 1873. E TO DIviSION 1, CHAPTER 11,
ARTCLE 2 OF THE UKIAH CITY CODE
The City Council of the City of Ukiah ordains as follows:
SECTION I.
(a) Section 1873.E is hereby added to Article 2, Chapter 11 Division 1 of the Ukiah City Code to read
as follows: '
Section 1873- PROCEDURE FOR OBTAINING FRANCHISE:
E. Extension of Cable Television Franchise with Adelphia Communications: Notwithstanding
any other provision of this Article 2 to the contrary, the City Council may extend the Cable
Television Franchise granted to Adelphia Communications without the necessity of
complying with the application or other procedures set forth in Section 1873 for the
purpose of negotiating an acceptable renewal of Adelphia's franchise. The City Council
may extend the franchise retroactively from December 6, 2000, and for such period or
periods of time as the City Council determines are necessary to undertake negotiations
with Adelphia in concert with other jurisdictions in Mendocino County.
SECTION TWO.
Upon approval by a 4/5 vote of the City Council, this Ordinance shall be adopted and become
effective immediately as an urgency measure. The urgency arises from the immediate necessity to
preserve the public peace, health, and safety. The specific facts constituting the urgency are as follows:
1. The current cable television franchise with Adelphia expired on December 6, 2000, and was for a
term of 15 years.
2. The current City Code currently limits the term of a franchise to 15 years and specifies the
procedure required to renew a cable television franchise.
3. To avoid a loss of cable service within the City, the City and Adelphia must have additional time to
conduct negotiations for the renewal of the franchise. The City has agreed to coordinate those
negotiations with other jurisdictions in Mendocino County. If this ordinance is not adopted on an
urgency basis, Adelphia will have no franchise for the period of time required to comply with the
procedures for franchise renewal or until negotiations for the renewal are complete. This could
disrupt cable television service in the City.
Introduced by title only and adopted on December 20, 2000, by the following roll call vote:
AYES: Councilmembers Larson, Smith, Libby, Baldwin, and Mayor Ashiku.
NOES: None.
ABSENT: None.
ABSTAIN: None.
ATTEST:
Marie Ulvila, City Clerk
Phillip A~Jhikd, I~Or
§1870
§1870
CHAPTER 11
FRANCHISES
ARTICLE 2. CABLE TELEVISION SERVICE FRANCHISE
SECTION:
{;1870:
{;1871:
{;1872:
{;1873:
{;1874:
{;1875:
{;1876:
Authority and Definitions
Scope of'Franchise
Franchise Payments, Term and Enforcement
Procedure for Obtaining Franchise
Limitations on Franchise
Miscellaneous Provisions
Criminal Violations and Penalty
{;1870:
AUTHORITY AND DEFINITIONS:
Intent and Authority:
1. The shod title of this Chapter shall be THE CABLE TELEVISION FRANCHISE
REGULATION ORDINANCE.
2. The intent of the City Council in adopting this ordinance is to establish
procedures and standards for the granting and terminating of franchises for
cable television systems which operate in the City and, further, to establish
appropriate standards for the protection of subscribers and users of such
systems and the protection of easements and rights of way.
3. The authority under which this ordinance is enacted includes Sections 53066
and 53066.1 of the California Government Code and Part 76 of the Guidelines
or Rules and Regulations of the Federal Communications.
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B.
Definitions- For the purpose of this Article, 'the following terms, phrases, words,
abbreviations and their derivations shall have the meaning given herein. When
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.
1. "City" shall mean the City of Ukiah, a political subdivision of the State of
California, in its present general law form or in any later reorganized,
consolidated, enlarged or chartered form.
2. "Council" shall mean the present City Council of the City of Ukiah, California,
or any future body constituting the legislative body of the City.
3. "City Manager" shall mean the City Manager or other designation of the City's
chief executive officer, or any designee' thereof.
4. "Franchise" means and includes any authorization granted hereunder in terms
of a franchise, privilege, permit, license or otherwise to construct, operate and
maintain a cable system within all or a specified area in the City. Any such
authorization, in whatever form granted, shall not mean and include any license
or permit required for the privilege of transacting and carrying on a business
within the City as required by other ordinances and laws of this City.
5. "Person" shall mean any natural person and all domestic and foreign
corporations, associations, syndicates, joint stock corporations, partnerships of
every kind, clubs, business or common law trust, concerts of interest and
societies.
6. "Grantee" shall mean the person, firm or corporation granted a franchise by
the Council under this Chapter and the lawful successor, transferee or assignee
of said person, firm or corporation.
7. "Streets" shall mean the surface of and the space above and below any
street, road, highway, freeway, utility right-of-way or any other easement which
now or hereafter exists for the provision of public or quasipublic services to
residential or other properties, and in which the City is expressly or impliedly
authorized or empowered to permit use for installation and operation of a cable
television system.
8. "Property of Grantee" shall mean ali property owned, installed, or used within
the City by a Grantee in the conduct of a cable television system business
under the authority of a franchise granted pursuant to this Chapter.
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§1870
B)
9. 'Subscriber" or 'user" shall mean any person or entity receiving, lawfully and
for consideration, any service of the Grantee's cable television system including,
but not limited to, the conventional cable television system service of
retransmission of television broadcast, radio signals, Grantee's original
cablecasting, and local government, education and public access channels; and
other services, such as leasing of channels, data and facsimile transmission,
pay television and police, fire and similar public service communications.
10. "Cable Communications System" or "Cable System" or "CATV System"
means any cable communications system composed of antennas, cables, wires,
strands, optical fibers, lines, towers, satellite receiving stations, or other
conductors, converters, equipment or facilities, designed and constructed for the
purpose of producing, receiving, transmitting, amplifying and distributing, audio,
video, digital and other forms of electronic signals, to and from subscribers or
users. This shall not include any system that serves only the residents of a
multi-unit dwelling under common ownership, control or management, which
does not use City streets. A system may also be referred to as a CATV system.
11. 'Gross annual revenues" means all cash, credits, property of any kind or
nature, or other consideration, received directly by a Grantee, 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, optional service or pay cable fees, installation
and reconnection fees, leased channel fees, converter rentals or sales, studio
rental, production equipment and production personnel fees and advertising
revenues. Gross annual revenues shall not include any taxes on services
furnished by Grantee imposed upon any subscriber or user by the State, City or
other governmental unit and collected by Grantee on behalf of said govern-
mental unit, converter deposits or refunds to subscribers by the Grantee.
12. "Two-way capacity" means the ability to receive and transmit signals from a
subscriber point to another point in the system.
13. "Channel" means a frequency band capable, pursuant to the standards of
the Federal Communications Commission, of carrying one color video signal.
14. "Complaint" shall mean a written or telephonic communication from a
subscriber to either Grantee or Grantor which specifies a failure of service. A
complaint shall not be deemed to include any objection to the content or subject
matter of a program transmitted over the system.
15. "Standard aerial drop" shall mean the connection of a subscriber hook-up to
Grantee's trunk line by an above ground cable of not more than one hundred
fifty feet (150') in length.
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B)
16. "Failure of service" shall mean:
a. The continued reception at the subscriber's television set of a degraded
signal transmitted over the cable system, for a period of twenty four (24) hours
or more; or
b. The reception at the subscriber's television set of a degraded signal for
not less than thirty (30) minutes on not fewer than five (5) or more occasions;
or
c. The interruption or elimination of a regularly scheduled and previously
programmed satellite or broadcast television signal when such interruption or
elimination was the result of an act or omission of Grantee and when Grantee
has failed to give subscribers not less than ten (10) days' notice of such
interruption or failure;
d. The failure of Grantee to remove, at the request of a subscriber, any
program service for which a separate program charge to the subscriber is made,
within thirty (30) days of the request of a subscriber; or
e. The failure of Grantee to correct an error in billing within sixty (60) days
of a written request by a subscriber for such correction; or
f. The failure of Grantee to repair or correct a degraded signal within ten
(10) days of a request from a subscriber setting forth the need for such repair
or correction;
g. The elimination or interruption of service to a subscriber (except as set
forth in §1874D(3)) without the consent of a subscriber, provided that such
subscriber has paid all fees, charges or rates due to the Grantee within thirty
(30) days of a receipt of a bill or other notice of such fees, charges or rates.
The obligation to pay such fees, charges or rates shall not include any
obligation to make payment for any erroneous 'amount billed to a subscriber
when such error arises out of an act or omission of Grantee, its agents or
contractors;
h. The failure to repair or replace a converter or other equipment required
for the receipt of cable communications service within fifteen (15) days after
receipt of notice from a subscriber that such converter or other equipment does
not provide the services for which the subscriber is being billed.
17. "Degraded signal" shall mean a signal on any channel, regardless of the
point of origin of such signal, which fails to meet the technical standards
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§1871
B17)
prescribed for a Class I television signal as set forth in Guidelines or Rules and
Regulations of the Federal Communications Commission.
§1871'
SCOPE OF FRANCHISE:
Franchise to Install and Operate:
1. A nonexclusive franchise to install, construct, operate and maintain a cable
television system on streets within all or a specific portion of the City may be
granted by the Council to. any person who offers to furnish and provide such
system under and pursuant to the terms and provisions of this Chapter. No
provision of this Chapter may be deemed or construed as to require the
granting of a franchise when, in the opinion of the Council it is in the public
interest to restrict the number of Grantees to one 'or more.
2. The Council, in its discretion, shall by resolution determine the boundaries of
each area or portion of the City for which a separate franchise shall be required
in order for a cable television system to be operated in such area. Such area or
portion shall be known as the "franchise area". Unless otherwise specified by
resolution of the City Council, the franchise area shall include the incorporated
City limits of the City and any areas annexed into the City in the future.
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3. When and in the event that the Grantee of any franchise granted hereunder
uses in its cable television system distribution channels furnished to the Grantee
by a telephone company pursuant to a 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".
Cable Television Service:
1. Required Services: The cable television system permitted to be installed and
operated hereunder shall:
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a. Be operationally capable of relaying to subscriber terminals at least those
television and radio broadcast signals for the carriage of which by the Grantee if
now or hereafter required by the Federal Communications Commission; and
b. Distribute color television signals which it receives in color; and
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§1871
c. Have the capacity to receive and distribute signals from satellites; and
d. Provide channels for public, educational and governmental use. The
number of such channels shall be set forth in a separate ordinance or resolution
granting, renewing or regulating each franchise or in an agreement between the
Grantor and Grantee; and
e. Have a minimum capacity of fifty four (54) channels, or such lesser
number as is specified in an ordinance or agreement granting a franchise.
2. Optional Services: The cable television system permitted to be installed and
operated hereunder may also engage in the business of:
a. Transmitting original cablecast programming other than local, over-the-air
television broadcast signals; and
b. Transmitting television pictures, film and video tape programs, other than
local, over-the-air broadcast television signals, whether or not encoded or
processed to permit reception by only selected receivers or subscribers; and
c. Transmitting and receiving all other signals, including digital, voice and
audio-visual signals including two-way signals and for all other lawful
communications services.
3. Subscriber Complaints- Except in circumstances beyond Grantee's control,
such as acts of God, riots and civil disturbances, and in providing the foregoing
services, the Grantee shall:
a. Limit overall system failures to minimum time duration by locating and
correcting malfunctioning promptly, but in no event longer than twenty four (24)
hours after occurrence, irrespective of holidays or other nonbusiness hours.
b. Establish a comprehensive procedure of receiving, recording and
resolving customer complaints. Such pr.,.:~cedure shall be designed so that any
subscriber may register a complaint by use of local phone service in the
subscriber's area. Complete written notice of such procedures shall be given to
each subscriber at the time of initiation or renewal of service. Notice of such
procedures shall also be published once each year in a newspaper of general
circulation in the franchise area. Such notice shall also state that written
complaints may be directed to the City Manager. Upon request of the City
Manager or other designee, in response to a subscriber complaint, Grantee shall
make a demonstration reasonably satisfactory to the City Manager or other
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§1871
B3b) designee that 'a signal is being delivered which is of sufficient strength and
quality to meet the standards for a Class I broadcast signal as set forth in the
Guidelines or Rules and Regulations of the Federal Communications
Commission.
c. Render efficient service, making repairs as provided in §1874D.
d. Maintain an office in the City, which office shall be open during ali the
usual business hours, with its telephone listed in directories of the telephone
company serving the City, and be so operated that complaints and requests for
repairs or adjustments may be received at any time, day or night, seven
days a week.
e. Maintain a written record or "log" listing date of customer complaints,
identifying the subscriber and describing the nature of the complaint, and when
and what action was taken by Grantee in response thereto. The record of the
respective complaint shall be kept at Grantee's local office for a period of five
(5) years from the date of the complaint and shall be available for inspection
during regular business hours, without further notice or demand, by the City
Manager.
f. Receive and act upon complaints referred to it by the City Manager or
designee in accordance with §1872C.
g. Be subject to penalties in accordance with §1872C.
4. Public, Educational and Governmental Services-
a. With respect to the access channels required pursuant to subsection
B ld, the Grantee shall provide use of such facilities, equipment and technical
services as may be set forth in a separate ordinance or resolution granting,
renewing or regulating the franchise or in any agreement between the Grantor
and the Grantee.
b. Provided that the system passes the facilities enumerated below, the
Grantee shall provide a two hundred (200) aerial foot drop and all subscriber
services, without installation charges, to:
(1) Public schools and community colleges within the City.
(2) An agreed upon number of buildings owned and controlled by the City,
used for public purposes and not for residential use.
5. Compatibility and Connectibility:
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B5)
a. It is the policy of the City that all cable television systems franchised
hereunder shall, insofar as financially and technically feasible, be compatible
one with another and with systems of cities within the City, or with adjacent
unincorporated or incorporated areas.
b. Wherever it is financially and technically feasible, the Grantee shall so
construct, operate and modify the system so as to be able to tie the same into
all other systems, within and adjacent to the City.
6. Uses Permitted: 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 television 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 street such poles, wires,
cable, conductors, ducts, conduit, vaults, pedestal, manholes, amplifiers and
appliances, attachments, and other property a may be necessary and
appurtenant to the cable television 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.
7. Uniformity of Terms and Conditions: All franchises for a Particular "franchise
area" granted pursuant to the provisions of this ordinance shall be granted upon
uniform terms and conditions. Uniformity of terms and conditions may be waived
by Grantor in areas not served by any Grantee under this ordinance, providing
that Grantor first offers to any Grantees under this ordinance the option to serve
such areas within a reasonable time.
Extension of Service:
1. Existing Trunk Lines: Grantee shall, upon request, extend cable television
services to individual residences at the standard rate, provided that such
connection does not require more than a standard aerial drop. Grantee shall
extend cable television services to any isolated residence requiring more than a
standard aerial drop at a premium installation rate if such service has been
requested by the resident directly or through the City Manager or other
designee. The premium installation rate charged shall be the actual cost of time
and materials for the distance exceeding the cost of a standard aerial drop.
Grantee may request advance payment for such installation. If any additional
residences are subsequently connected within a period of five (5) years to the
system using this same cable extension at the request of the initial subscriber,
there shall be a prorated return of this extension fee from funds collected from
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subsequent hoOkups to the same extension in accordance with a reimbursement
agreement, the form of which shall require the approval of the City Manager or
other designee.
2. Trunk Line Extension:
a. Grantee Option: Grantee shall have the option to extend at any time
Grantee's basic trunk line facilities to any portion of the franchise area, provided
that the City Manager or other designee has' approved such extension as being
in the best interests of the public safety and welfare, and provided that Grantee
complies with ali other material provisions of this ordinance.
b. Mandatory Extension: Grantee shall extend its cable television services
to any subscriber or user requesting service in its franchise area.
{}1872: FRANCHISE PAYMENTS, TERM AND ENFORCEMENT:
A. Franchise Payments:
1. In consideration of the granting and exercising of a franchise, as herein
defined, for the operation of a cable television system, any Grantee shall pay
annually to the City during the life of the franchise an amount not to exceed
that allowable by Federal law, so long as such payment is consistent with
applicable State law or regulation.
2. The percentage payments shall be made in the manner, amounts and at
times directed in said franchise or in a Council resolution adopting the rules for
service and rate regulation.
3. The City shall have the right, at its sole cost and expense, to inspect the
Grantee's revenue records under the franchise and the right of audit and
recomputation of any and ali amounts payable under this Chapter. The Grantee
shall bear the expense of such an audit nor more frequently than once every
five (5) years. In addition, Grantee shall bear the expense of any other audit
which reveals an error of five percent (5%) or greater in the amounts payable
under this Chapter.
4. The City shall have the right, at its sole cost and expense, from time to time,
as it may reasonably determine, to select and retain professional consultants
having any relevant expertise to determine whether a Grantee is complying with
the terms of this Chapter and its franchise and to make a report and
recommendations for improvements. The cost of such consultations, reports and
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A4)
Be
Ce
recommendations shall be borne by the Grantor, except with respect to costs
arising out of the grant or renewal of a franchise.
5. No acceptance of any payment shall be construed as a release, or as an
accordance and satisfaction of any claim the City may have for further or
additional sums payable under this Chapter, or for the performance of any other
obligation hereunder.
Terms of Franchise: Any franchise granted by the Council under this Chapter
shall be for a term of years, not to exceed fifteen (15), from the date of its
acceptance by the Grantee. The determination of the term of a franchise shall
be made by the Council at the time of granting the franchise.
Liquidated Damages, Penalties, Sanctions, Termination, Cancellation, Revocation
and Purchase:
1. Subscriber Complaints: '
a. Grantee shall resolve all complaints as defined in §1870B within thirty
(30) days following receipt thereof from a subscriber or referral thereof by the
Grantor.
b. In the event that Grantee has failed to resolve a complaint within the
thirty (30) days specified, a subscriber may request that Grantor declare the
Grantee in breach of the franchise and in violation of the ordinance.
c. A request for a declaration of breach and violation shall be received by
the City Manager or such other person as Grantor shall designate and within
thirty (30) days of such receipt, the City Manager or such designee shall
determine whether to recommend to the Council that a declaration of.breach
and violation should be adopted by the Council.
d. In the event that the City Manager recommends that a declaration shall
issue, such declaration shall include a description of the complaint and a
recommendation with respect to the imposition of liquidated damages as set
forth in §1872C3c(3), and such declaration shall be set for hearing by the
Council.
e. Grantee shall be given not less than fifteen (15) days' notice of the
hearing required under §1872C3c(3) hereof and of the recommendation of the
City Manager or Grantor's designee with respect to the imposition of liquidated
damages.
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C1)
f. The Council may consider the recommendation for which provision is
made in §1872Cld, shall afford Grantee an opportunity to be heard with respect
to such recommendation, shall make a determination as to the merit of the
complaint, and may impose liquidated damages in an amount not in excess of
that set forth in the recommendation.
2. In addition to ali other rights and powers pertaining to the City by virtue of
this Chapter or otherwise, the City reserves the right to impose liquidated
damages, penalties or sanctions or to terminate, cancel and revoke any
franchise granted hereunder and all rights and privileges of a Grantee hereunder
in the event that any Grantee:
a. Violates any material provision of this Chapter or any rule, order or
determination of the City made pursuant to this Chapter or any franchise
granted or franchise agreement awarded pursuant to this Chapter; or
b. Fails, refuses or neglects to do or comply with any material requirement
or limitation contained in this Chapter, a franchise granted pursuant to it, or any
material rule or regulation of the City or City Manager validly adopted pursuant
to this Chapter; or
c. Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a
bankrupt; or
d. Attempts to dispose of any material part of the facilities or property of its
cable business to prevent the City from purchasing same, as provided for
herein; or
e. Attempts to evade any of the provisions of this franchise or practices any
fraud or deceit upon the City; or
f. Fails to complete system construction or extension as provided in this
Chapter or a franchise granted thereunder; or
g. Fails to provide and maintain the types of services, facilities, equipment
or personnel provided for in the franchise and this Chapter; or
h. Fails to restore service within the time period specified in this Chapter
unless approval of any such interruption has been obtained from the City; or
i. Misrepresents any material fact in the Grantee's proposal or in the
execution of a franchise agreement or in any reports required to be filed
pursuant to this Chapter; or
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C2)
j. Fails to abide by the privacy provision of this Chapter; or
k. Fails to timely make payment of any moneys due the City pursuant to
this Chapter.
3. In the event that any cause for liquidated damages, penalties or sanctions, or
termination, cancellation or revocation under this Section occurs, the following
procedures shall apply:
a. The City Manager shall make written demand that the Grantee correct or
comply with any such requirement, limitation, term, condition, rule or regulation
that is a part of the cause for termination, cancellation or revocation.
b. In the event of any failure, breach refusal or neglect, the City Manager
may place a. request for liquidated damages, penalties, sanctions, termination,
cancellation or revocation of the franchise upon the next regular Council meeting
agenda. The City Manager shall cause to be served upon such Grantee, at least
thirty (30) days prior to the date of such Council meeting, a written notice of the
intent to request such sanctions, termination, cancellation or revocation and the
time and place of the meeting, notice of which shall be published by the Clerk
of the Council at least once ten (10) days before such meeting in a newspaper
of general circulation within the City.
c. After providing Grantee with notice and an opportunity to be heard and in
the event that the Council determines that the Grantee, by its acts or omissions,
has given the City cause for sanctions, termination, cancellation or revocation of
the franchise, the Council may:
(1) Instruct the City Manager to make written demand upon Grantee for full
compliance.
(2) If the violation breach, failure, refusal or neglect is not or cannot be
remedies to the satisfaction of the Council within thirty (30) days following
such demand, may take either of the following actions:
(i) Direct the Grantee to comply within such additional time, in such
manner and upon such terms and conditions as the Council may direct; or
(ii) Declare the franchise terminated and of no further force and effect.
(3) Impose liquidated damages, penalties or sanctions as follows:
1109
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C3c3)
§1872
(i) For failure to complete system improvements in accordance with any
agreement or ordinance of the City unless the Council specifically approved
the delay by motion or resolution, due to the occurrence of conditions
beyond Grantee's control; a Grantee shall pay five hundred dollars
($500.00) per 'day for each day, or part thereof, the deficiency continues.
(ii) For failure to test, analyze and report on the performance of the
system following a written request pursuant to this ordinance; a Grantee
shall pay to City fifty dollars ($50.00) per day for each day, or part thereof,
that such noncompliance continues.
(iii) For failure to Provide the aggregate number of services proposed in
the accepted application, unless the Council specifically approves a delay or
change; Grantee shall pay to the City two hundred dollars ($200.00) per
day for each day, or part thereof,-that such noncompliance continues.
(iv) For failure by Grantee to comply with. operational, maintenance or
technical standards, Grantee shall pay to the City fifty dollars ($50.00) for
each day, or part thereof, that such noncompliance continues.
(v) For failure to resolve a subscriber complaint pursuant to a
declaration of breach as set forth in §1872Cld, Grantee shall pay to the
City twenty dollars ($20.00) for each day, or part thereof, as specified in
the declaration of breach. Such liquidated damages shall be in addition to
the rebates for which provision is made in §1874D4.
(4) For the purposes of this subsection, an occurrence shall be deemed a
separate occurrence for each twenty four (24) hour period in which it
continues. In no event shall total liquidated damages exceed ten thousand
dollars ($10,000.00) per month.
(5) Liquidated damages levied by the Grantor pursuant to this subsection
shall not be general revenue to the Grantor and shall be used by the
Grantor only for purposes related to the operation maintenance and
programming of the system. '
(6) Prior to any judicial 'review and if Grantee objects to the imposition of
liquidated damages, in writing and within sixty (60) days of notice, to the
City, Grantee and City shall conduct arbitration in the manner set forth in
§1875E.
1110
· §1872 §1872
c)
De
4. No franchise shall be terminated, cancelled or revoked when the Grantee
thereunder has made a 'reasonable and diligent effort in good faith, to correct or
remedy the breach, failure, refusal or neglect.
5. If the Council declares the franchise terminated, the City may pursue any
remedies available to the City pursuant to this Chapter, the franchise agreement
or any other remedy available to the City as provided by law.
6. In the event that the City requires Grantee to dismantle the system, Grantee
shall, in an expeditious manner, at its own expense and at the direction of the
City, restore any property, public or private, to the condition in which it existed
prior to' the erection or construction of the system, including any improvements
made to such property subsequent to the construction of the system. Grantee
shall, have the option, however, of abandoning the system. If Grantee exercises
this option, Grantor shall have the right to dismantle the system and charge the
reasonable costs of such work to Grantee.
7. In the event the City terminates a franchise agreement pursuant to any
provisions of this Chapter, or at the normal expiration of a franchise agreement,
City shall have the first option to purchase the system. The City shall have
ninety (90) days prior to the effective date of termination to notify Grantee of the
City's intent to exercise the option to purChase stated herein.
8. Upon notification of intent pursuant to this Section, the City and a Grantee
shall attempt to mutually agree upon the value of the system in accordance with
the provisions of this Section. However, if within a reasonable period of time
they cannot agree upon a valuation, then such valuation shall be similarly
determined by a three (3) member board of appraisers, one selected by the
City, one selected by the Grantee, and one selected by the appraisers
themselves. Such determination to be specifically subject to §1872C9. The cost
of such appraisal shall be borne equally by the City and the Grantee. Any
appraisal under this Section shall be consistent with the terms of the Cable
Communications Policy Act of 1984.
9. In the event of a termination of a franchise agreement by the City, the value
of the system shall be based on the fair market value of the system including
value that may be assigned to the system as an ongoing concern, provided that
no value shall be assigned to either the franchise itself, the franchise agreement
or any right, privilege or position within the market arising out of the opportunity
to transact business under the franchise or the franchise agreement.
Performance Assurances-
1111
§1872
§1872
D)
1. Performance Bond to City: Upon being granted a franchise, and upon the
filing of the acceptance required under §1873D of this Chapter, the Grantee
shall file with' the City Clerk, and shall thereafter, annually, during the entire
term of such franchise maintain in full force and effect, a corporate surety bond
or other adequate surety agreement in such amount and kind as shall have
been 'approved by the Council. The bond or agreement shall be so conditioned
that, in the event that Grantee shall fail to comply with any one or more of the
provisions of this Chapter or of such franchise, then there shall be recoverable
jointly and severally from the principal and surety any damages or loss, or costs
suffered or incurred by the City as a result thereof, including reasonable
attorney's fees and costs .of any action or proceeding, and including the full
amount of any compensation, indemnification, cost of removal or abandonment
of any property, or other costs which may be in default up to the full principal
amount of such bond. Said condition shall be a continuing obligation during the
entire term of such franchise and thereafter until Grantee shall have satisfied in
full any and all obligations to the City which arise out of or pertain to said
franchise. Neither the provisions of this Section, nor any bond accepted by the
City pursuant thereto, nor any damages recovered by the City thereunder, shall
be construed to excuse faithful performance by the Grantee or limit the liability
of the Grantee under any franchise issued pursuant to this ordinance or for
damages either to the full amount of the bond or otherwise.
2. Performance Bond for Subscribers' Upon being granted a franchise, and upon
filing of the acceptance required under §1873D of this Chapter, the Grantee
shall file, annually, with the Clerk of the Council, and shall thereafter during the
entire term of such franchise maintain in full force and effect, a corporate surety
bond or other adequate surety agreement, in the amount as shall have been
approved by the Council. The bond or agreement shall be so conditioned that,
in the event such Grantee shall fail to comply with any one or more of the
provisions of any agreement or undertaking made between Grantee and any
subscriber, then there shall be recoverable jointly and severally from the
principal and surety any damages or costs suffered or incurred by any
subscriber as a result thereof, including reasonable attorney's fees and costs of
any action or proceeding. Said condition shall be a continuing obligation during
the entire term of such franchise and thereafter until Grantee shall have
satisfied in full any and ali obligations to any subscriber which arise out of or
pertain to any such agreement or undertaking.
3. Letter of Credit:
a. In lieu of compliance with subsections 1 and/or 2 of this Section,
Grantee may deposit with the City an irrevocable letter of credit in the amount
1112
{}1872 {}1872
D3a) of thirty thousand dollars ($30,000.00). The letter of credit shall be used to
ensure the faithful performance by Grantee of all subscriber protection
provisions of its franchise and applicable State or Federal law and compliance
with all orders, permits and directions of any agency, commission, board,
department, division or office of the City having jurisdiction over its acts or
defaults under a franchise and the payment by the Grantee of any penalties,
liquidated damages, claims, liens, fees and taxes due the City which arise by
reason of the construction, operation or maintenance of the system.
b. The letter of' credit shall be maintained at thirty thousand dollars
($30,000.00) during the entire term of a franchise even if amounts have been
drawn against such letter pursuant to §1872C.
c. If a Grantee fails to pay to the City any compensation within the time
fixed herein;, or, fails, after ten (10) days' notice, to pay to the City any
liquidated damages, fees or taxes due and unpaid; or fails to repay the City
within ten (10) days, any damages, costs or expenses which the City is
compelled to pay by reason of any act or default of the Grantee in connection
with a franchise; or, fails, after three (3) days' notice by the City of such failure,
to comply with any provision of a franchise which the City reasonably
determines can be remedied by demand on the letter of credit, the City may,
after providing all due process provisions contained in this ordinance,
immediately require payment of the amount thereof, with interest and any
penalties, from the issuer of the letter of credit.
d. The letter of credit will be issued by a financial institution authorized to
do business in the State of California and shall be executed in a form
acceptable to the City.
e. The letter of credit shall specify that, upon presentation of a resolution of
demand of the Council, attested to by the City Clerk, the issuing institution of
such letter of credit shall, upon demand, pay to the City such sum as shall be
specified in the resolution of demand. The letter of credit instrument shall
explicitly acknowledge that the issuing institution of such letter shall have no
discretion to dispute the validity of a demand made upon it pursuant to a duly
authenticated resolution.
f. Any resolution authorizing a demand against'the letter of credit issued
pursuant to the terms of this ordinance, shall be adopted only after a duly
noticed public hearing shall have been conducted at which a Grantee shall have
had the opportunity to dispute any penalty, claim for liquidated damages, liens,
fees, taxes or other claims made by City.
1113
§1872 §1872
D)
4. Hold-Harmless Agreement: Grantee shall indemnify and hold harmless the
City, its officers, boards, Commissions, agents and employees against and from
any and ali claims, demands, causes of actions, suits, proceedings, damages
(including, but not limited to, damages to City property, and damages arising out
of copyright infringements, and damages arising out of any failure by Grantee to
secure consents from the owners, authorized distributors, or licensees of
programs to be delivered by Grantee's cable television system), costs or
liabilities (including costs or liabilities of the City, its officers, boards,
commissions, agents and employees), of every kind and nature whatsoever,
including damages for injury or death or damage to person or property, and
regardless of the merit of. any of the same, and against all liability to other;s,
and against any loss, costs, and expense resulting or arising out of any of the
same, including any attorney fees, accountant fees, expert witness or consultant
fees, court costs, per diem expense, traveling and transportation expense, or
Other costs or expense arising out of or pertaining to the acts or omissions of
the Grantee in the exercise or the enjoyment of any franchise hereunder by
Grantee or the granting thereof by the City.
5. Defense of Litigation: Grantee shall, at the sole risk and expense of Grantee,
upon demand of the City, made by and through the City Attorney, appear in and
defend any and all suits, actions or other legal proceedings, whether judicial
quasijudicial, administrative, legislative, or otherwise brought or instituted or had
by third persons or duly constituted authorities against or affecting the City, its
officers, boards, commissions, agents or employees and arising out of or
pertaining to the acts or omissions of Grantee in the exercise or the enjoyment
of such franchise or the granting thereof by the City. Grantee's choice of
counsel under this provision is subject to the approval of the City Council, which
approval shall not be unreasonably withheld.
Grantee shall pay and satisfy and shall cause to be paid and satisfied any
judgment, decree, order, directive or demand rendered, made or issued against
Grantee, the City, its officers, boards, commissions, agents or employees arising
out of this {}1872 and such indemnity shall exist and continue without reference
to or limitation by the amount of any bond, policy of insurance, deposit,
undertaking or other assurance required hereunder, or otherwise; provided, that
neither Grantee nor City sha!l make or enter into any compromise or settlement
of any claim, demand, cause of action, action, suit or other proceeding without
first obtaining the written consent of the other, such consent not to be
unreasonably withheld.
6. Insurance Required: Upon being granted a franchise, and upon the filing of
the acceptance required under {}1873D of this Article, the Grantee shall
1114
· · §1872 §1873
D6)
file with the City Clerk, and shall thereafter during the entire term of such
franchise, maintain in full force and effect, at its own cost and expense, each of
the following policies of insurance'
a. General comprehensive liability insurance in the amount of two million
dollars ($2,000,000.00); together with bodily injury liability insurance in an
amount not less than one million dollars ($1,000,000.00) for injuries, including
accidental death, to any one person, and subject to the same limit for each
person in an amount not less than one million dollars ($1,000,000.00) on
account of any one occurrence; and property damage liability insurance in an
amount not less than two hundred thousand dollars ($200,000.00) resulting from
any one occurrence; provided, however, as follows:
(1) Grantee shall name the City named as an additional insured in any of
said insurance policies.
(2) Where such insurance is provided by a policy which also covers
Grantee or any other entity or person, it shall contain the standard cross-
liability endorsement.
(3) City shall be provided with certificates of insurance on the form provided
by the City and shall receive a coy of all insurance policies.
{;1873: PROCEDURE FOR OBTAINING FRANCHISE:
A. Applications for New Franchise:
1. Each application for a franchise to construct, operate or maintain any cable
television systems in this City shall be filed with the City Clerk and shall contain
or be accompanied by the following:
a. The name, address and telephone number of the applicant.
b. The exact boundaries of the area within the City for which the franchise
is sought, said area being herein referred to as the "franchise area".
c. A detailed statement of the corporate or other business entity
organization of the applican{ including, but not limited to, the following and to
whatever extent required by the City:
(1) The names, residence and business addresses of all officers, directors
and associates of the applicant.
1115
§1873
Alc)
§1873
(2) The names, residence and business addresses of all officers, persons
and entities having, controlling or being entitled to have or control five
percent (5%) or more of the ownership of the applicant and the respective
ownership share of each such person or entity.
(3) The names and addresses of any parent or subsidiary of the applicant,
namely 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 television systems owned or
controlled by the applicant, /ts parent and subsidiary, and the area served
thereby. '
(4) A detailed description of all previous experience of the applicant in
providing cable television system service in related or similar fields.
(5) A detailed and complete financial statement of the applicant, prepared
by a 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 Council, setting forth the bas~
performed by sUch lendinn instit,,,~ ...... 's for a study
statement ..~ ~,.... ...... ~'. .. ,,,],.,,. u~ [unding source, and a clear
,.,, ~ ~,Len[ as a lending msbtubon or funding source to provide
whatever capital shall be required by the applicant to construct and operate
the proposed system in the City, or a statement from a certified public
accountant certifying that the applicant has available sufficient free, net and
uncommitted cash resources to construct and operate the proposed system
in this City.
(6) A statement identifying, by place and date, any other cable television
franchise or franchises awarded to the applicant, its parent or subsidiary;
the status of said franchise or franchises with respect to completion thereof;
the total cost of completion of such 'system or systems; and the amount of
applicant's and its parent's or subsidiary's resources committed to the
completion thereof.
2. Each such application for a franchise shall further provide 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 franchise areas proposed to be served, and
a proposed time schedule for the installation of all equipment necessary to
become operational throughout each entire franchise area to be served.
1116
§1873
§1873
e.
A2)
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 service charges.
c. A detailed, informative and referenced statement describing the actual
equipment operational standards, channel capacity and services proposed by the
applicant. In no event shall said operational and performance standards be less
than those contained in the Guidelines or Rules and Regulations, Federal
Communications Commission.
d. A copy of the form of any agreement, undertaking or other instrument
proposed to be entered into between the applicant and any subscriber.
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.
3. A copy of any agreement covering the franchise area, if existing, between the
applicant and any 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.
4. Any other details, statements, information or references pertinent to the
subject matter of such application which shall be required or requested by the
Council or by any provision of any other ordinance of the City.
5. An application fee in the sum of ten thousand dollars ($10,000.00), which
shall be in the form of cash, certified or cashier's check or money order, to pay
the costs of studying, investigating, and otherwise processing such application,
and which shall be in consideration thereof and not returnable or refundable in
whole or in part except to the extent that such fee exceeds the actual costs
incurred by the City in studying, investigating and otherwise processing the
application. In the event that such costs exceed the amount of the application
fee or fees, the City shall be reimbursed by the applicant for such excess costs,
provided that the application is approved.
Applications for Renewal of Existing Franchise:
1. Each application for a franchise to continue to operate or maintain an existing
cable television system in this City shall be filed with the City Clerk and shall
contain or be accompanied by the following-
1117
§1873 §1873
B1)
C.
a. The name, address and telephone number of the applicant.
b. The exact boundaries of the area within the City for which the renewal is
sought, said area being herein referred to as the "franchise area".
c. A detailed statement of the corporate or other business entity
organization of the applicant including, but not limited to, the following and to
whatever extent required by the City:
(1) The names, residence and business addresses of all officers, directors
and associates of the applicant.
(2) The names, residence and business addresses of all officers, persons
and entities having, controlling or being entitled to have or control five
percent (5%) or more of the ownership of the applicant and the respective
ownership share of each such person or entity, unless the applicant is a
corporation whose shares are traded on a listed stock exchange.
(3) The names and addresses of any parent or other business entity owning
or controlling applicant in whole or in part and a statement describing the
nature of such owning or controlling entity. Applicant shall also provide a
list of all other cable television systems and their locations, owned or
controlled by it or by the business entity owning or controlling the applicant.
(4) An annual shareholders report for the immediately prior fiscal year, if
applicant is not a corporation, a report containing such information as would
be contained in a stockholder's report. Such report shall subsequently be
furnished to City on an annual basis.
(5) Any other details, statements, information or references pertinent to the
subject matter of such application which shall be required or requested by
the Council or by any provision of any other ordinance of the City.
(6) Any fee or fees to which an applicant would be subject pursuant to
§1873A5.
2. An applicant shall likewise furnish all that information required by §1873A2,
subsections a, b, c and d.
Decision by Council:
1. The Council may, by advertisement or any other means, solicit and call for
applications for cable television system franchises, and may determine and fix
1118
· ' §1873 §1873
C1)
any date upon or after which the same shall be received by the City, or the
date before which the same must be received, or the date after which the same
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 applications.
The Grantee shall pay to the City a sum of money sufficient to reimburse it for
all expenses incurred by it in connection with the granting of a franchise
pursuant to the provisions of this Chapter. Such payment shall be made within
thirty (30) days after the City furnishes the Grantee with a written statement of
such expenses.
2. Upon receipt of any application or franchise, the Council shall refer the same
to the City Manager, who shall prepare a report and make his recommendations
respecting such application and cause the same to be completed and filed with
the Council within sixty (60) days.
3. In making any determination hereunder as to any application, the Council
may give due consideration to the quality of the 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
pedormance quality of equipment, willingness and ability to meet construction
and physical requirements, and to abide by policy conditions, franchise
limitations and requirements, and any other considerations deemed pertinent by
the Council for safeguarding the interests of the City and the public. The
Council, in its discretion, shall determine the award of any franchise on the
basis of such considerations and without competitive bidding.
4. If the Council shall determine to reject such application, such determination
shall be final and conclusive, and the same shall be deemed rejected.
5. If the Council shall determine to further consider the application, the following
shall be done:
a. The Council shall decide and specify the terms and conditions of any
franchise to be granted hereunder and as herein provided.
b. The Council shall pass its resolution of intention to consider the granting
of such a franchise, giving notice of receipt of the application, and describing
the character of the franchise desired, stating the name of the proposed
Grantee, the character of the franchise, the terms and conditions upon which
such franchise is proposed to be granted, that copies of the proposed franchise
1119
D~
§1873
§1873
C5b) may be obtained at the office of the City Clerk, fixing and setting forth a day,
hour and place certain when and where any persons having any interest therein
or objection to the granting thereof may file written protests and appear before
the Council and be heard, and directing the City Clerk to publish said resolution
at least once within ten (10) days of the passage thereof in a newspaper of
general circulation within the City.
6. At the time set forth the hearing, or at any adjournment thereof, the Council
shall proceed to hear all written protests. Thereafter, the Council shall make one
of the following determinations:
a. That such franchise 'be denied; or
b. That such franchise be granted upon the terms and conditions as
specified in the resolution of intention to grant the same; or
c. That such franchise be granted, but upon the terms and conditions
different from those specified in the resolution of intention to grant the same.
7. If the Council shall determine that a franchise be denied, such determination
shall be expressed by minute order or resolution and shall be final and
conclusive.
8. If the Council shall determine that a franchise be granted upon the terms and
conditions as specified in the resolution of intention to consider granting the
same, such determination shall be expressed by ordinance or resolution granting
a franchise to the applicant.
9. If the Council shall determine upon granting a franchise to impose different
terms and conditions than those specified in the resolution of intention, then
such determination shall be expressed by resolution adopted prior to granting a
franchise by ordinance.
Acceptance of the Franchise:
1. No franchise granted under this Chapter shall become effective for any
purpose unless and until written acceptance thereof shall have been filed with
the City Clerk. Written acceptance, which shall be in the form and substance
approved by the City Attorney, shall also be and operate as an acceptance of
each and every term, condition and limitation contained in this ordinance, and in
such franchise, and as otherwise specified herein.
1120
§1873
§1874
D)
2. The written acceptance shall be filed by the Grantee not later than one
minute after twelve o'clock (12:01) P.M. of the thirtieth day next following the
effective date of the ordinance or resolution granting such franchise.
3. In default of the filing of such written acceptance as herein required, the
Grantee shall be deemed to have rejected and repudiated the franchise.
Thereafter, the acceptance of the Grantee shall not be received nor filed by the
City Clerk. The :~rantee shall have no rights, remedies or redress in the
premises unless and until the Council, by resolution, shall determine that such
acceptance be received or filed and then upon such terms and conditions as the
Council may impose.
4. In any case, and in any instance, all rights, remedies and redress in these
premises which may or shall be available to the City shall at all times be
available to .the City and shall be preserved and maintained, and shall
continuously exist in and to the City, and shall not be in any manner or means
modified, abridged, altered, restricted or impaired by reason of any of these
premises, or otherwise.
§1874: LIMITATIONS ON FRANCHISE:
A. General Limitations:
1. Every franchise granted under this Article shall be nonexclusive.
2. No privilege or exemption shall be granted or conferred by any franchise
granted under this Chapter except those specifically prescribed herein.
3. Any privilege claimed under any such franchise by the Grantee in any street
or other public property shall be subordinate to any prior lawful occupancy of
the streets or other public property.
4. Any such franchise shall be a privilege to be held in personal trust by the
original Grantee.
a. A franchise shall not in any event be sold, transferred, leased, assigned
or disposed of, in whole or .in part, either by forced or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise without prior consent of the
Council expressed by resolution and then only under such conditions as may
therein be prescribed. Any such transfer or assignment shall be made only by
an instrument in writing, such as a bill of sale or similar document, a duly
1121
§1874 §1874
A4a) executed copy of which shall be filed in the office of the City Clerk within thirty
(30) days after any such transfer or assignment. The said consent of the
Council may not be unreasonably refused; provided, however, that the proposed
assignee shall show adequate financial responsibility as determined by the
Council and shall agree to comply with all provisions of this Chapter; and
provided further, that no such consent shall be required for a transfer in trust,
mortgage or other hypothecation, in whole or in part, to secure an indebtedness
except that, when such hypothecation shall exceed fifty percent (50%) of the
market value of the property used by the grantee in the conduct of the cable
television system, prior consent of the Council shall be required for such a
transfer. Such consent shall not be withheld unreasonably.
b. In the event that grantee is a corporation, prior approval of the Council,
expressed by ordinance, shall be required where there is an actual change in
control or where ownership of more than fifty percent (50%) of the voting stock
of grantee is acquired by a person or group of persons acting in concert, none
of whom already own fifty percent (50%) or more of the voting stock.
c. Nothing herein shall prevent any transfer between a wholly owned
subsidiary and a parent company, or a name change which does not reflect any
substantive change in the ownership of the grantee's legal entity.
5. Time shall be of the essence of any franchise granted under this Chapter.
The grantee shall not be relieved of his obligation to comply promptly with any
of the provisions of this ordinance by any failure of the City to enforce prompt
compliance.
6. 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.
7. The grantee shall have no recourse whatsoever against the City for any loss,
cost, expense or damage arising out of any provision or requirement of this
ordinance or of any franchise issued hereunder, or because of its enforcement,
except for such acts as may arise out of the wilful, tortious conduct of the City.
8. The grantee shall be SUbject to all requirements of City laws, rules,
regulations and specifications heretofore or hereafter enacted or established,
pursuant to the valid exercise of the police power of the City.
9. Any franchise granted shall not relieve the grantee of any obligation involved
in obtaining pole or conduit space from any department of the City, utility
company, or from others maintaining utilities in streets.
1122
§1874 §1874
^)
eJ
10. Any other provision of this Article notwithstanding, in the event that
extraordinary unforeseen circumstances beyond the control of grantee materially
impact (a) the ability of grantee to derive a fair and reasonable rate of return
from a cable television franchise granted under this Article, or (b) the ability of
grantee to perform some or all of its obligations under this Article or a franchise
granted under this Article, then grantee shall have the right to petition the
Council for special relief. Upon a demonstration to the Council by grantee of
such extraordinary unforeseen circumstances and the impacts thereof, grantee
shall be entitled to appropriate relief grantee shall bear the burden of proof to
establish the extraordinary, unforeseen circumstances and adverse impact as set
forth in (a) and (b) of this subsection Al0.
Rights Reserved to City:
1. 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 the grantee, either
by purchase or through the exercise of the right of eminent domain, at a fair
and just value, which shall not include any amount for the franchise itself or for
any of the rights or privileges granted, and nothing herein contained shall be
construed to contract away or to modify or abridge, whether for a term or in
perpetuity, the City's right of eminent domain. Any acquisition of grantee's
property shall be consistent with the terms of the Cable Communications Policy
Act of 1984.
2. There is hereby reserved to the City every right and power which is required
to be herein reserved or provided by ~;~y law, and the grantee, by its
acceptance of the 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, pursuant to the valid exercise of
the police power of the City.
3. Neither the granting of any franchise nor any provision hereof shall constitute
a waiver or bar to the exercise of any governmental right or power of the City.
4. The Council may do all things which are necessary and convenient 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, with the. approval of the City Attorney, is hereby authorized
and empowered to adjust, settle, or compromise any controversy or charge
arising from the operations of any Grantee under this ordinance, either on behalf
of the City, the Grantee, or any subscriber, in the best interest of the public. In
the event that the Grantee is dissatisfied with the decision of the City Manager,
1123
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B4)
Grantee may appeal the matter to the Council for hearing and determination.
The Council may accept, reject, or modify the decision of the City Manager, and
the Council may adjust, settle, or compromise any controversy or cancel any
charge arising from the operations of the Grantee or from any provision of this
Article.
C.
Council's Continuing Right to Adopt Regulations:
1. Standards of Operation:
a. Prior to receiving any applications for franchises, the Council may adopt,
by resolution, rules, regulations, and standards governing the operation of cable
television systems in the City. Such rules, regulations, and standards shall apply
to and shall govern the operations of the Grantee of any franchise hereunder
and are expressly declared a part of any franchise hereunder.
b. Notwithstanding any provision herein to the contrary, the Council may
increase the technical standards required of Grantee's operation at any time
during the life of the franchise reasonably related to the state of the art then
prevailing, so long as such technical standards do not conflict with the then
effective Federal Communications Commission guidelines or regulations and so
long as the Grantor establishes that such standards are technically and
economically feasible.
c. Rules, regulations, and standards not adopted prior to receiving any
application for a franchise shall be adopted by the Council at the first regular
meeting of the Council next following the effective date of this Chapter by
resolution which shall become effective upon adoption and shall be applicable to
any application for a franchise previously received.
d. The standards adopted shall govern the engineering, construction,
installation, service, and maintenance of ali cable television systems in the City
including, but not limited to standards governing carrier levels, signal-to-noise
ratios, hum modulation, distortion levels, channel interactions and interference.
e. Provided the same do not materially alter the content or provisions of the
franchise, and further provided that the Council may, consistent with this
ordinance and any ordinance granting a franchise hereunder, at any time adopt
new rules or regulations or standards, or may amend, modify, delete, or
otherwise change its respective rules or regulations or standards previously
adopted, in the following manner: The Council shall pass its resolution of
intention stating or describing the rules or regulations or standards to be
1124
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Cle)
adopted, amended, modified, deleted, or otherwise changed and fixing and
setting forth a day, hour, and place certain when and where any persons having
any interest therein, or objection thereto, may appear before the Council and be
heard. No rule, regulation or standard or amendment, modification, deletion or
charge shall be adopted by the Council unless such rule, regulation or standard
or amendment modification, deletion or change is technologically and
economically feasible. Such resolution shall direct the City Clerk to publish the
same at least once within ten (10) days of the passage thereof in a newspaper
of general circulation within the City and to mail a copy of the same to any
Grantee or applicant for a franchise not more than thirty (30) days nor less than
fifteen (15) days prior to the time fixed for hearing thereon.
(1) At the time set .for such hearing, or at any adjournment thereof, the
Council shall proceed to hear and pass upon such comments as may be
presented. Thereafter, the Council, by its resolution, may adopt, amend,
modify, delete, or otherwise change its respective rules, regulations, and
standards as set forth above. Such determination by the Council shall be
final and conclusive.
(2) Any rule or regulation or standard as adopted, amended, modified,
deleted, or otherwise changed by the Council shall become effective upon
the tenth day following the adoption of such resolution unless a longer
period shall be otherwise provided in such resolution.
f. In the event that the Federal Communications Commission modifies any
provision of 47 Code of Federal Regulations, Part 76, Pertaining to cable
television standards, such modifications, to the extent explicitly inconsistent,
shall be deemed to modify any franchise granted pursuant hereto.
2. Rates:
a. In granting any franchise hereunder, the Council, by resolution, may
establish and fix all rates and charges for the basic service, herein defined,
allowable to Grantee.
b. Rates and charges for services, other than the basic service, may also
be subject to approval by the Council by resolution after due notice and hearing
as provided herein, but only in the event that such regulation is permitted by the
Federal Communications Commission, Federal law, or any other applicable law.
c. In connection with any proposed change of any rates or charges of
Grantee to subscribers initiated by Grantee over which Grantor has ultimate
1125
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C2c) authority, or the approval of rates for additional services, at any time after the
granting of a franchise, the Council may direct the City Manager of the City to
conduct a preliminary hearing into the matter. If so directed by the Council, the
City Manager shall issue his written notice fixing and setting forth the day, hour,
and place certain when and where any persons having any interest therein may
appear and be heard.
(1) The City Clerk shall cause such notice to be published in a newspaper
of general circulation within the City. The City Clerk shall also cause a copy
of such notice to be mailed to any Grantee at least ten (10) days prior to
the date specified for the hearing. At the time set for such hearing, or at
any adjournment thereof, the City Manager shall proceed to hear the
matter. Following the close of such hearing, the City Manager shall prepare
and file with the Council his report of the hearing, his findings, and an
opinion 'containing his recommendations, and-the reasons therefor.
(2) Within sixty (60) days after said hearing, the City Manager shall render
a written decision on the Grantee's petition, either accepting, rejecting,
modifying or deferring the same and reciting the basis of its decision. Such
decision shall be rendered on the basis of criteria set forth in the ordinance
or resolution granting or renewing a franchise. In the absence of any such
criteria, the City Manager shall consider, but not be limited to the following
factors in approving or disapproving the petition:
(i) Grantee's substantial fulfillment of all material requirements of the
franchise.
(ii) Quality of service, as indicated by the number and type of service
· complaints, Grantee's response to complaints, and the result of periodic
system performance tests and the annual reviews specified in §1875D.
(iii) Prevailing rates for comparable services in other cable systems of
similar size and complexity.
(iv) Rate of return on Grantee's equity, as compared to businesses of
equivalent risk. For the purposes of this ordinance, the rate of return on
equity shall be defined' as the net, after-tax profit divided by the equity
portion of Grantee's investment as reported on the Grantee's financial
statement.
The rate of return shall be calculated on a cumulative basis for all system
revenues and costs excluding pay service revenues, fees and associated
1126
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C2c2iv)
§1874
assets. Upon request of the City Manager, Grantee shall promptly provide,
from the Grantee, its parent company and any subsidiary company, all
information as shall be reasonably necessary to determine system revenues
and costs.
(v) Performance of Grantee in introducing new services and expanding
the cable system's capability, as compared to other systems of similar size
and complexity, and as evaluated by the system and services review
specified in §1875D.
(3) If the City Manager or the Council fail to render a written decision either
accepting, rejecting, or modifying Grantee's petition within one hundred
twenty (120) days of the Grantee's petition pursuant to this Section the
Grantee shall thereafter be entitled to put its proposed new rates into
effect.
(4) The Grantee's petition for a rate increase shall include, but not be
limited to, the following financial reports, which shall reflect the operations
of the system:
(i) Balance Sheet
(ii) Income Statement
(iii) Statement of Sources and Applications of Funds.
(iv) Detailed Supporting Schedules of Expenses, Income, Assets,
Depreciation and other items as may be required.
(v) Statement of Current and Projected Subscribers and Penetration.
(5) The Grantee's accounting records applicable to the system shall be
available for inspection by the Grantor at all reasonable times. The Grantor
shall have access to records of financial transactions for the purpose of'
verifying burden rates or other indirect costs prorated to the operation. The
documents listed above shall include sufficient detail and/or footnotes as
may be necessary to provide the Grantor with the information needed to
make accurate determinations as to the financial condition of the system.
All financial statements 'shall be certified as accurate by a certified public
accountant or an office of Grantee.
(6) After the expiration of ten (10) days following receipt of the City
Manager's report and opinion, and, if no objection has been filed thereto,
1127
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C2c6)
§1874
the Council shall determine whether to adopt the opinion or to hold a
further hearing and shall pass its resolution of intention to do so, descr.ibing
and stating any rates or charges to be changed, the reasons of the Council
therefor, fixing and setting forth a day, hour, and place certain when and
where any persons having any interest therein may appear before the
Council and be heard. Such resolution 'shall direct the City Clerk to publish
the same resolution at least once ten (10) days prior to the passage thereof
in a newspaper of general circulation within the City. The City Clerk also
shall cause a copy of such resolution to be mailed to the Grantee at least
ten (10) days prior to the date specified for hearing thereon.
(7) If upon receipt of 'the report and opinion, and the expiration of said
ten (10) days without objection, or following the holding of a further hearing,
if the Council determines to do so, the Council shall find that the changing
of any rates or charges of Grantee to subscribers will be fair to the system
operator and not unreasonably detrimental or injurious to the best interests
and welfare of the subscribers and users and of the City, then the Council,
by resolution shall authorize the change of rates or charges of Grantee to
subscribers and users as determined. Such resolution shall thereupon
become and shall be a part of any franchise granted hereunder and
affected thereby.
(8) Neither the Council nor the Grantee shall, as to rates, charges, service,
service facilities, rules, regulations, or in any other respect, make or grant
any preference or advantage to any person nor subject any person to
Prejudice or disadvantage; the foregoing, however, shall not be construed to
prohibit the offering by Grantee of discounts to elderly subscribers, or any
sales or promotional discounts of limited duration.
(9) Pursuant to §1875F, the Council, by resolution, may waive the
provisions of this Section with respect to the regulation of rates and
charges for any' or all of the services provided by' a Grantee. Such a waiver
shall not be a bar to the subsequent revocation of such waiver, provided
that the reinstitution of rate and charge regulation shall apply only to
increases proposed subsequent to the revocation of the waiver.
d. In the event that a franchise elects to exercise any rights it may have
pursuant to Section 53066.1 of the Government Code, the Council may enact
such regulations as are consistent with Section 53066.1 for the protection of
subscribers.
Services to Subscribers, Rebates:
1128
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E.
D)
1. A Grantee shall furnish each subscriber at the time service is installed,
written instructions that clearly set forth procedures for placing a service call.
Such instructions shall also include the name, business address and business
telephone number of the office designated by the City Manager and notice that
the subscriber may call or write the City for information regarding terms and
conditions of the cable franchise agreement and this chapter, if Grantee fails to
respond to the subscriber's request for service or adjustment within the periods
required in this Section. The instructions shall also include information regarding
service response time and service interruptions and notifications as required in
this Section.
2. A Grantee shall provide service response, within twenty four (24) hours, five
(5) days a week, for all complaints and requests for repairs or adjustments
received prior to twelve o'clock (12:00) noon of each working day. In no event
shall the response time for calls received subsequent to twelve o'clock (12:00)
noon exceed two (2) working days.
3. A Grantee may interrupt system service after six o'clock (6:00) A.M. and
before eleven o'clock (11:00) P.M. only upon necessary cause for the shortest
time possible and only after publishing notice of service interruption, except for
emergency situations. Services may be interrupted between eleven o'clock
(11:00) P.M. and six (6:00) A.M. for routine testing, maintenance and repair,
without notification.
4. Except for acts of God, and except in circumstances where prior approval
has been obtained from the City, in the event that service to any subscriber or
user is interrupted, as defined in §1870B16g, and the interruption is under the
control of the Grantee, a Grantee, shall rebate a pro-rata percentage of the
monthly fee to affected subscribers or users for each twenty four (24) hour
period of interrupted service after the first twenty four (24) hours.
5. A Grantee shall be responsible for all subscriber and user complaint
resolution and shall maintain a written record or log, listing the date and time of
customer complaints, describing the nature of the complaints and when and
what actions were taken by the Grantee in response thereto. The log shall be
kept at the Grantee's local office, reflecting the operations to date for a period
of at least three (3) years, and shall be available for inspection by the City
during regular business hours at the Grantee's local office.
Permits and Construction:
1. Within thirty (30) 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,
1129
§1874
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El)
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 television
systems or associated microwave transmission facilities.
In connection therewith, copies of all petitions, applications, and communications
submitted by the Grantee to the Federal Communications Commission,
Securities and Exchange Commission, or any other Federal or State regulatory
commission or agency having jurisdiction in respect to any matters affecting
Grantee's cable television operations within the City, shall also be submitted
simultaneously to the City Manager.
2. Within ninety (90) days after obtaining all necessary permits, licenses, and
authorizations, including right of access to poles and conduits, Grantee shall
commence construction and installation of the cable television system.
3. Within one hundred eighty (180) days after the commencement of
construction and installation of the system, Grantee shall proceed to render
service to subscribers, and the completion of the installation and construction
shall be pursued with reasonable diligence thereafter so that service to all of the
areas designated and scheduled on the map and plan of construction made a
part of the franchise shall be provided at the times set forth therein.
Notwithstanding any provision to the contrary in this Chapter, no franchise shall
be granted unless a construction schedule and line extension policy are a
condition thereof and of sufficient detail as to guarantee all households in the
franchise area basic service within the earliest feasible time at the lowest
feasible cost.
4. Substantial failure on the part of the Grantee to commence and diligently
pursue each of the foregoing requirements and to complete each of the matters
set forth herein may be grounds for termination of such franchise. By resolution,
the Council shall extend the time for the commencement and completion of
installation and construction for additional periods upon a showing by Grantee
that it has experienced delays by reason of circumstances beyond its control.
Failure to comply with any time requirements referred to in subsections 1, 2,
and 3 of this subsection E of this Section 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 and Grantee therefore agrees that, in addition to
any other damage suffered by City as set forth in §1872C3c(3), it will pay to
City the sum of five hundred dollars ($500.00) per day for each and every day's
delay beyond the time prescribed, plus authorized extensions thereof, for
completion of any of the acts required to be done by this Section.
1130
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E)
5. Grantee shall utilize existing poles, conduits, and other facilities whenever
possible and shall not construct or install any new, different, or additional poles,
conduits, or other facilities, whether on public property or privately-owned
property, unless and until first securing the written approval of the City Manager.
Whenever Grantee shall not utilize existing poles, conduits, and other facilities,
or whenever all existing utility and telephone conduits and other facilities shall
be located beneath the surface of the streets on a particular street, or whenever
the City shall undertake a program designed to cause all conduits and other
facilities to be located beneath the surface of the streets in any area or
throughout the City, in the exercise of its police power or pursuant to the terms
hereof, upon reasonable notice to Grantee, any such conduits or other facilities
of Grantee shall be constructed, installed, placed, or replaced beneath the
surface of the streets. Any construction, installation, placement, replacement, or
changes which may be so required shall be made at the expense of Grantee,
whose costs shall be determined as in the case of public utilities.
6. In those areas of the City where the transmission or distribution facilities of
the respective public utilities providing telephone, communication, and electric
~ervices are underground, or hereafter are placed underground, the Grantee
iikewise shall construct, operate, and maintain all of his transmission and
distribution facilities underground. The term 'underground' shall include a partial
underground system provided that, upon obtaining the written approval of the
City Manager, amplifiers of the Grantee's transmission and distribution lines may
be placed in appropriate housings upon the surface of the ground.
7. The Grantee, at its expense, shall protect, support, temporarily disconnect,
relocate, or remove any property of Grantee when, in the opinion of the City
Manager or the City's Director of Public Works the same is required by reason
of traffic conditions, public safety, street vacation, freeway or street construction,
change or establishment of street grade, installation of sewers, drains,
waterpipes, power lines, signal lines, transportation facilities, tracks, or any other
types of structure or improvements by governmental agencies whether acting in
a governmental or a proprietary capacity, or any other structure or public
improvement including, but not limited to, movement of buildings, urban renewal
and redevelopment, and any general program under which the City shall
undertake to cause all such properties to be located beneath the surface of the
ground. The Grantee shall in all cases have the privilege, subject to the
corresponding obligations, to abandon any property of Grantee in place, as
herein provided. Nothing hereunder shall be deemed a taking of the property of
Grantee, and Grantee shall be entitled to no surcharge by reason of anything
hereunder.
1131
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E)
{}1875:
§1875
8. Upon the failure, refusal, or neglect of Grantee to cause any work or other
act required by law or hereunder to be properly completed in, on, over, or under
any street within any time prescribed therefor, or upon reasonable notice given,
where no time is prescribed, the City Manager may, if Grantee fails within a
reasonable time to act, cause such work or other act to be completed in whole
or in part and, upon so doing, shall submit to Grantee an itemized statement of
the reasonable costs thereof. The Grantee shall, within thirty (30) days after
receipt of such statement, pay to the City the entire amount thereof.
9. In the event that (a)the use of any part of the system of Grantee is
discontinued for any reason for a continuous period of thirty (30) days, without
prior written notice to and approval by the City, or (b) any part of such system
has been installed in any street or other area without complying with the
requirements hereof, or (c) any franchise shall be terminated, cancelled, or shall
expire, then ~he Grantee shall, at the option of tile City, and at the expense of
Grantee and at no expense to the City and upon demand of the City, promptly
remove from any streets or other area all property of Grantee; and Grantee
shall promptly restore the street or other area from which such property has
been removed to such reasonable condition as the City Manager or City Director
of Public Works shall approve.
10. The Council may, upon written application therefor by Grantee, approve the
abandonment of any of such property in place by Grantee and under such terms
and conditions as the Council may prescribe. Upon abandonment of any such
property in place, Grantee shall cause to be executed, acknowledged, and
delivered to the City such instruments as the City Attorney shall prescribe and
approve, transferring and conveying the ownership of such property to the City.
MISCELLANEOUS PROVISIONS:
Miscellaneous Provisions:
1. A franchise granted to provide service within the City shall authorize and
permit the Grantee to solicit, sell, distribute, and make a charge to subscribers
within the City for connection to the cable television system of Grantee and
shall also authorize and permit the Grantee to traverse any portion of the City in
order to provide service.
2. A franchise, easement, license, or other permit granted to anyone other than
the Grantee to traverse any portion of the City in order to provide service shall
not authorize nor permit said person to solicit, sell, distribute, or make any
1132
§1875
§1875
A2)
charge to subscribers within the City, nor to render any service or connect any
subscriber within the City to the cable television system of Grantee.
3. Grantee shall be subject to all provisions of the other ordinances, rules,
regulations, and specifications of the City heretofore or hereafter adopted
pursuant to the valid exercise of the pOlice power including, but not limited to,
those pertaining to works and activities in, on, over, under, and about streets
and other public throughways or infrastructure.
Grantee also shall be subject to the provisions of general laws of the State of
California, or as hereafter amended, when applicable to the exercise of any
privilege contained in any franchise granted under this ordinance including, but
not limited to, those pertaining to works and activities in and about State
highways.
4. A franchise under this ordinance does not authorize grantee directly or
indirectly to engage in the business of selling at retail, leasing, renting,
repairing, or servicing of television sets or radios. The foregoing shall not be
construed to prohibit Grantee from making a charge to subscribers for the
connection of video tape recorders or equipment for a comparable purpose to
Grantee's cable television system.
5. If the Federal Communications Commission or the Public Utilities Commission
of the State of California, or any other Federal or State body or agency, shall
now or hereafter exercise any paramount jurisdiction over the subject matter of
any franchise granted under this Chapter, then, to the extent such jurisdiction
shall preempt or preclude the exercise of like jurisdiction by the City, the
jurisdiction of the City shall cease and no longer exist.
Any and all minimum standards governing the operation of Grantee and any and
all maximum rates and charges specified herein, or in any franchise issued
hereunder, existing now and at any time in the future, including such time as
any paramount jurisdiction shall preempt or preclude that of the City; and ar~y
and all rights, powers, privileges, and authorities of the City to determine,
establish, or fix any of the same are each and all hereby declared to the C~ty
and by any Grantee accepting any franchise hereunder to be contractual in
nature and to be for the benefit of the City.
6. When not otherwise prescribed herein, all matters herein required to be filed
with the City shall be filed with the City Clerk.
7. No person, firm, or corporation within the service area of the Grantee, and
where trunk lines are in place, shall be refused service; provided, however, that
1133
B.
§1875
§1875
A7)
the Grantee sh'all not be required to proVide service to any subscriber who does
not pay the applicable connection fee or service charge, or, in the case of
reconnection of the same subscriber, who has not paid all past outstanding
charges.
8. Before providing cable television service to any subscriber, the Grantee shall
provide a written notice to the subscriber substantially as follows:
Subscriber is hereby notified that, in providing cable television
service, the Grantee is making use of public rights of way
within the City and that the continued use of such rights of
way is in no way guaranteed. In the event the continued use
of such rights of way is denied to Grantee for any reason,
Grantee will make every reasonable effort to provide service
over alternate routes. By accepting cable television service,
subscriber agrees he will make no claim nor undertake any
action against the City, its officers, or its employees ff the
service to be provided hereunder is interrupted or
discontinued.
9. The form of the Grantee's contract with the subscriber shall also be subject
to approval of the City, such approval not to be unreasonably withheld.
Privacy:
1. As used in this subsection, "valid authorization- means written approval from
the subscriber for a period of time not to exceed one year.
2. Each Grantee shall strictly observe and protect the right of privacy and of
property of subscribers and users at all times Informati
subscribers, individual subscri'-- ...... .' . on on individual
uu[ preferences or any kind. viewing habits,
preferences of any kind, viewing habits, political, soci
_philo. sophies, beliefs, creeds, religions' or names .... al or economic
' ' , auaress
numbers shall not be revealed to any ,-,ere,-,,, ...,..,..-- _ es or tel.e, phone
I F ~'~ ~'~ 1 I 1 IIIdlllllserv' '
agency, or department com,-,.~ .... .,- ..... g ice, Investigatin
· , ~,~,,,~,, :.,mu[ a enc or enti g
authority of a court o .... g. Y .ty, unless upon the
f law or upon prior written permission of the subscriber.
The request for permission must be separately signed or initialed and contain a
prominent statement that the subscriber is authorizing the permission in full
knowledge of its provision. Such authorization shall not in any event be required
as a condition of receiving service.
3. A Grantee may release the number of its subscribers but only as a total
number and as a percentage of the potential subscribers throughout the City.
1134
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§1875
B3)
When indicating the number of subscribers viewing a particular channel at a
particular time, Grantee shall indicate only the aggregate numbers of subscribers
viewing during the relevant time and the percentage of subscribers which they
represent, but never the identity of a particular subscriber.
4. A Grantee may maintain such information as is necessary to bill subscribers
for the purchase of any system service.
5. A subscriber may at any time revoke any authorization previously made, by
delivering to Grantee in writing by mail or otherwise, his/her decision to so
revoke. Any such revocation shall be effective upon receipt by Grantee.
6. No monitoring of any subscriber terminal shall take place without specific
prior valid authorization by the user of the terminal in question; provided,
however, the Grantee may conduct systemwide or individually addressed
"sweeps" for the purposes of billing, verifying System integrity and ensuring
signal quality. Grantee shall not initiate a subscriber response mechanism
without a finding by the City Manager that the system can operate effectively
and yet give protection against any invasion of privacy.
7. A Grantee shall not tabulate any test results, nor permit the use of the
system for such tabulation, which would reveal the commercial product
preferences or opinions of individual subscribers, members of their families or
their invitees, licensees or employees without .prior valid authorization of the
subscriber.
8. 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.
Equal Employment Opportunity and Affirmative Action.
1. in the carrying out of the construction, maintenance, and operation of the
cable television system, the Grantee shall not discriminate against any employee
or applicant for employment because of race, creed, color, sex, or national
origin.
2. The Grantee shall take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, creed, color, sex, or national origin. Such action shall include, but not
be limited to, the following: Employment, upgrading, demotion and transfer,
recruitment and recruitment advertising, layoff and termination, rates of pay, and
other forms of compensation and selection for training including apprenticeship.
1135
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§1875
c)
De
3. The Grantee shall post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of this
nondiscrimination clause.
4. The Grantee shall, in all solicitations or advertisements for employees placed
by or on behalf of the Grantee, state that all qualified applicants will receive
consideration for employment without regard to race, creed, color, sex, or
national origin.
5. The Grantee shall incorporate the foregoing requirements in all of its
contracts for work relative to construction, maintenance, and operation of the
cable television system, other than contracts for standard commercial supplies
or raw materials, and shall require all of its contractors for such work to
incorporate such requirements in ali subcontracts for such work.
Periodic Review and Revision: To provide for changes in the state of the art of
cable communications, to facilitate renewal procedures, to promote the maximum
degree of flexibility in the cable system, and to provide on a continuing basis,
an advanced, modern system, the Grantor and the Grantee shall comply with
the following system and services review provisions:
1. At Grantor's or Grantee's option, the Grantor and Grantee may hold a System
and Services Review Session on or about the third anniversary date of the
franchise agreement. Subsequent System Review Sessions may be scheduled
by the Grantor each two (2) years thereafter.
2. Sixty (60) days prior to the scheduled System and Services Review Session,
Grantee shall submit a report to Grantor indicating the following:
a. A survey of cable system services that are being provided on an
operational basis, excluding tests and demonstrations, to cities in the United
States of similar size and complexity.
b. A plan for provision of those services not provided by the Grantee or an
explanation indicating why such services are not feasible for the franchise area.
3. Topics for discussion and review at the System and Services Review
Sessions shall include but shall not be limited to, services provided, rate
structure, adequacy of rate of return to Grantee, application of new
technologies, the metering and supply of utility services, system performance,
programming, (including access opportunities), subscriber complaints, user
complaints, rights of privacy, amendments to the franchise, undergrounding
processes, and developments in the law.
1136
§1875
§1875
D)
E.
4. Either the Grantor or the Grantee may select additional topics for discussion
at any Review Session.
5. Not later than sixty (60) days after the conclusion of each System and
Services Review Session, Grantor shall issue findings, including specifically a
listing of any cable services not then being provided that the Grantor establishes
are technically and economically feasible. Grantor may request Grantee to
provide such services within a reasonable time, under reasonable rates and
conditions. Failure to provide such requested services may be considered a
breach of the franchise, subject to remedies as provided in this ordinance.
Arbitration:
1. Arbitration: A dispute as to any decision arising out of the effect or
interpretation, of the Sections specified in E2, below, may be appealed to
arbitration subject to the consent of both parties. If the parties consent to
arbitration, judicial relief may not be sought until a final, written decision has
been rendered by the Arbitration Panel as set forth in E7.
2. Matters Arbitrable: Any dispute shall be arbitrable which arises out of
decisions of the Grantor rendered pursuant to the following Sections of the
ordinance:
a. §1872C3: the amount or length of liquidated damages, penalties or
sanctions.
b. §1874C2c(2)' The denial of a rate increase.
c. §1874D4: Rebates to subscribers.
d. §1875D5: Requests arising out of Systems Review.
3. Procedure: Arbitration proceedings shall be conducted in compliance with the
California Arbitration Act, §§1280 et seq. of the California Code of Civil
Procedure, except as elsewhere provided in this Section.
4. Arbitration Panel: Each arbitration shall be conducted by a panel of three (3)
arbitrators. One arbitrator shall be appointed by the Grantee, one arbitrator shall
be appointed by the Grantorl and the third arbitrator shall be the chairperson of
the panel, and shall'be appointed by the other two (2) arbitrators. If the other
two (2) arbitrators are unable to agree upon an appointment, the third arbitrator
shall be appointed by the Justice Court Judge in the judicial district which the
1137
§1875
E4)
§1875
City is located. No member of the panel shall be an officer, employee or
attorney of the Grantee or any affiliate thereof, or the City.
The Grantee and Grantor shall each appoint its arbitrator and mail notice to the
other of its selection not later than fifteen (15) calendar days following filing of a
notice of appeal to arbitration or mailing of the initiation of arbitration. The third
arbitrator shall be appointed not later than thirty (30) calendar days following
filing of the notice of appeal to arbitration or mailing of the initiation of
arbitration.
5. Arbitration Hearing: The chairperson of the arbitration panel shall select the
site of the hearing, retain a stenographic reporter to report the hearing, and, in
consultation with the other members of the panel and the parties, schedule the
hearing. The hearing shall be scheduled to commence not later than seventy
five (75) calendar days following filing of the notice of appeal to arbitration or
mailing of the initiation of arbitration. The chairperson of the panel shall mail
written notice of the time, date and place of the hearing to the other two (2)
arbitrators, legal counsel to the Grantor, the Grantee, and the Grantee's surety
on the performance bond .not later than twenty (20) calendar days in advance of
the hearing.
6. Arbitration Costs: The compensation and expenses of the arbitrator appointed
by the Grantee shall be borne and paid solely by the Grantee. The
compensation and expenses of the arbitrator appointed by the Grantor shall be
borne and paid solely by the Grantor. The Grantee and Grantor shall each bear
and solely pay their own costs of attorneys' fees, expert and other witness fees
and other expenses incurred in preparing and prosecuting their respective
cases. In proceedings where the record of a public hearing of the Grantor is to
be considered by the arbitration panel, the costs of transcribing, typing and
copying the record shall be borne and paid solely by the Grantee.
The compensation and expenses of the chairperson of the arbitration panel,
rental, if any, for the place of 'the hearing, per diem costs of the stenographic
reporter, costs of transcribing and typing any transcripts of the arbitration
hearing, and any other costs of the arbitration proceeding not identified in the
first paragraph of this subsection shall be divided equally between, borne and
paid by the Grantee and Grantor. The arbitration panel shall not be empowered
to order a division of costs, fees or expenses different from that prescribed by
this Section.
7. Arbitration Award: The arbitration award shall be determined by a majority of
the members of the arbitration panel, and shall be in writing. If it is necessary
1138
{;1875
{}1876
E7)
F.
for the panel to make determinations of fact, it shall include findings of fact and
conclusions with the award if requested by any party to the proceeding. The
award shall be issued and mailed to the parties not later than ninety (90)
calendar days following the close of the arbitration hearing.
8. Limitations of Powers: The arbitration panel shall have no authority to add to,
delete or alter any provisions of the Ordinance, Agreement, Request for
Proposals or the'Proposal submitted by the Grantee, but shall limit its
interpretation to the express terms of the Ordinance, Agreements, if any, or the
Application submitted by the Grantee. Under no circumstances shall an
arbitration panel be vested with authority or jurisdiction to determine or award
monetary damages (by way of setoff, counterclaim, directly or otherwise) or any
other relief against the Grantor or its officers, agents or employees.
Waivers:
1. Any provision of this ordinance may be waived, at the sole discretion of the
City, by resolution of the City Council.
2. Grantee may submit a request for waiver to the City Council at any time
during the franchise term. Such request for waiver shall be set for public
hearing and acted upon within one hundred eighty (180) days following the
submission.
G.
He
3. The City Council may authorize the economic, technical or legal evaluation of
such waiver request and Grantee. shall be required to reimburse the City for any
expenditures incurred by City in connection with such evaluation.
Force Majeure: Grantee shall not be deemed in violation of this ordinance or the
franchise for the delay in performance or failure to perform in whole or in part
its obligations under this ordinance or the franchise due to labor dispute,
material shortage, war or act of war (whether an actual declaration of war is
made or not), insurrection, riot, act of public enemy, accident, fire, flood or other
act of God or by other events to the extent that such events are caused by
circumstances beyond Grantee's control.
Notice: All notices authorized or prescribed by this Article shall be deemed to
have been given and served, when deposited in the United States mail, postage
prepaid, return receipt requested.
§1876:
CRIMINAL VIOLATIONS AND PENALTY:
1139
Ae
Criminal ViolatiOns:
§1876
1. From and after the effective date of this Chapter, it shall be unlawful for any
person to construct, install, or maintain within any public street in the City, or
within any other public property of the City, 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 television system unless a franchise
authorizing such use of such street or property or area has first been obtained
pursuant to the provisions of this ordinance and unless such franchise is in full
force and effect.
2. It shall be unlawful for any person, firm, or corporation to make or use any
unauthorized.connection, whether physically, electrically, acoustically, inductively,
or otherwise, with any part of a franchised cable television system within this
City for the purpose of enabling himself or others to receive or use any
television signals, radio signal, picture, program, or sound without payment to
the owner of said system. This Section is not intended to affect any direct
interception of satellite programming that is governed by the provisions of the
Cable Communications Policy Act of 1984.
3. It shall be unlawful for any person, without the consent of the owner, to
willfully tamper with, remove, or injure any cables, wires, or equipment used for
distribution of television signals, radio signals, pictures, programs, or sound.
Criminal Penalties: Any person convicted of violating subsection A of Section
1876 shall be punished, in addition to whatever monetary fines and penalties
are otherwise authorized herein, by imprisonment in the County jail for a term
not exceeding six (6) months, or by a fine of one thousand dollars ($1,000.00),
or both such fine and imprisonment.
§§1877 to 1902 of the Ukiah Municipal Code are reserved. (Ord. 597, §3,
adopted 1968; amd. by Ord. 851, adopted 1985).
1140
Application;
NOW,
the promises
1.
THEREFORE, BE IT RESOLVED, that in consideration of the foregoing and
set forth herein, the Grantor agrees to the following:
Grantor consents to the Transfer of Control to Adelphia or to any wholly
owned affiliate of Adelphia as described in the Transfer Application; and the
Grantor acknowledges that no further consent is required for the assignment
of the Franchise to any affiliate company under common control with or
controlled by Adelphia.
Grantor confirms that the Franchise is valid and outstanding and in full force
and effect.
3. This resolution shall take effect immediately.
PASSED AND ADOPTED this 16th day June, 1999, by the following roll call vote.
AYES:
NOES: None.
ABSENT: None.
ABSTAIN: None.
Councilmembers Smith, Libby, Baldwin, Ashiku, and Mayor Mastin.
Marie Ulvila, City Clerk
B:RESI
CABLE
Jim~stin,~