O1407
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C~:RHM:rmcable4/ca
CIty CouncIl MeetIng 4-28-87
Santa MonIca, California
ORDINANCE NUMBER 1407 (CCS)
(City CouncIl Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF S~NTA MONICA ADDING CHAPTER 13 TO ARTICLE VI
OF THE SANTA MONICA MUNICIPAL CODE TO PROVIDE FOR
THE ESTABLISHMENT AND GRANTING OF FRANCHISES
OR PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE,
AND OPERATION OF CABLE COMMUNICATIONS OR CABLE
TELEVISION SYSTEMS AND FURTHER PROVIDING FOR THE
CONTINUING REGULATION AND ADMINISTRATION OF THESE
FRANCHISES AND THE ACTIVITIES RELATIVE TO THEM
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN
AS FOLLOWS:
SECTION 1. Chapter 13 is hereby added to ArtIcle VI of
the Santa Monlca MunIcIpal Code to read as follows:
CHAPTER 13 - CABLE ORDINANCE
Subchapter 13A.
General PrOVIsions and ResponsibilIties.
SECTION 63000. Intent. The CIty of Santa MonIca fInds:
( a )
The
development
of
cable
television
and
communications systems has the potential of having great
public benefit and Impact upon the reSIdents of Santa Monica.
(b)
Because
of the complex and rapidly changlng
technology
associated wIth cable teleVlSlon, the public
convenience, safety, and general welfare can best be served by
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establIshIng regulatory powers in the CIty or in such persons
as the City shall deSIgnate.
(c) This Chapter provides for and specifies the means
to attaIn the best possIble public interest and publIC purpose
In these matters and any franchise issued pursuant to this
Chapter shall be deemed to Include this finding as an Integral
part thereof.
SECTION 63001.
DEFINITIONS.
For purposes of this
Chapter, the following words and phrases shall have the
follOWIng meanings:
~aencv SubscrIber.
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A government or publIC agency,
school, or deSIgnated non-prOfit organIzation Wh1Ch receives a
serVIce from a cable communications system.
Basic Cable SerV1ce. Any service tier which includes
the retransmission of local telev1sion broadcast signals.
Basic Radio Serv1ce. The prOVIsion of audio programs to
all subscrIbers at a monthly rate.
Broadc~st Siqn~l. A television or radIO slgnal that is
transmitted over the air to a wide geographic audience and 1S
recelved by a cable communIcatIons system and retransmitted to
subscribers.
Cable Communications Svstem. A facility, consistIng of
a set of closed transmIssion paths and associated signal
generation, receptIon, and control eqUIpment, that IS designed
to prOVIde cable service WhlCh Includes video programming and
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which is provided to multiple subscribers wIthin a community,
but such term does not include:
(1) A facility that serves only to retransmit the
teleVIsion
sIgnals of one or more television broadcast
statIons.
(2) A facility that serves only subscribers in
one or more multIple unIt dwellIngs under common ownership,
control, or management, unless such facility uses any public
right-ot-way.
(3) A facilIty of a common carrIer, except that
such facilIty shall be consIdered a cable system to the extent
such faCIlity is used 1n the transmission of vIdeo programming
dIrectly to SUbscribers.
(4) Any facilities of any electrIc utIlIty used
solely for operatIng Its electrIC utility system.
Cablecast Slonal. ^ nonbroadcast signal that originates
within the faCIlities of the cable communications system.
Cable-mll~. A lInear mile of strand-bearIng cable as
measured on the street or easement from pole to pole or
pedestal to pedestal.
Cable Service. The total of the follOWIng:
(1) The one-way transmission to subscribers of
vIdeo programming or other telecommunIcatIons service.
(2) SubscrIber interactIon, if any, which IS
requIred for the selection of such video programmIng or other
programming service.
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Channel or
Cable
Channel.
1\
portion
of
the
electromagnetlc frequency spectrum WhlCh is used in a cable
system and WhlCh lS capable of dellverlng a television channel
as defined by the Federal Communlcations CommiSSlon.
CIty. The City of Santa Monica.
Citv Counc~l. The governlng body of the City of Santa
Monica.
Commenceme~t 9f Construct~on. The tIme and date when
constructlon of the cable communIcations system is considered
to have commenced, WhICh shall be when the fIrst connection IS
physically made to a utIlIty pole, or undergrounding of cables
is InitIated, after prellmlnary engineering (strand mapping)
and after all necessary permlts and authorizatlons have been
obtalned.
Commencement Qf OoeratiQn.
The tIme and date when
operatIon of the cable communIcations system is considered to
have commenced WhICh shall be when sufficient distributlon
facilitles have been Installed so as to permit the offerIng of
full serVlce to a dwellIng unit located within the franchise
area and such services are actually subscribed to by a
reSIdent of the franchise area.
CommerCIal S~b~~rlber.
A subscriber who receives a
serVIce In a place of business, where the serVIce may be
utilized in connectIon with a bUSIness, trade, or profession.
Commercial
Use
Channel(s).
The channel capacity
designated for commercial use as defIned and required by
federal law.
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Comoletion of Construction. The point in tlme when all
distrlbution facilltles have been installed by the Grantee so
as to permIt the offering of cable serVlce to all of the
potential subscribers 1n the franchise area, as well as the
proVlSlon, 1n an operat1onal state, of any facilities required
by the franchise agreement.
Co~verter. An electronic deVIce which converts slgnal
carriers from one form to another.
Dedlcate. To make avaIlable channel space or equipment
for exclusive use of the designated area, subject to the
authority of the City Council to authorize reassignments of
channels.
Dwellln9 Unit.
This shall have the same meaning as
provided
in California Code of Civil Procedure SectIon
704.710.
FCC. The Federal Commun1cations Commission and any
legally appointed or elected successor.
Franch1se. An Initial authorization, or renewal thereof
issued by a franchising authority, whether such authorization
1S designated as a franchise, permit, license, resolution,
contract,
certificate,
agreement,
or
otherwise, wh1ch
authorizes the construction or operatlon of a cable system.
Franchise Aareement. A franch1se award ordinance, or a
contractual agreement] containing the speCIfIC prOVISions of
the franchise granted, Including referenced specifications,
franchise applications] franchIse requirements, ordinances,
and other related materials.
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'r~n~~~se fee. Any tax, fee, or assessment of any klnd
imposed by a franchIsing authority or other governmental
entity on a Grantee or cable subscriber, or both, solely
because of thelr status as such.
The term "franchise fee"
does not lnclude:
(1) Any
tax, fee, or assessment of general
applicabilIty (includIng any such tax} fee, or assessment
lmposed on both utllitles and cable operators or thelr
services but not Including a tax, fee, or aSsessment which is
unduly dIscrlmlnatory agaInst Grantee or cable subscribers).
(2) Capital costs whlch are required by the
franchise to be lncurred by Grantee for public, educatIonal,
or governmental access faCIlIties.
(3) Requlrements or charges incidental to the
awarding or enforcIng of the franchlse, includlng payments for
bonds,
securIty
funds,
letters
of credIt, lnsurance,
indemnIficatIon, penaltIes, or lIquidated damages.
(4) Any fee imposed under Title 17, UnIted states
Code.
Grantee. Any person receiving a franchise pursuant to
this ordInance and under the grantlng franchIse ordinance, and
Its lawful successor, transferee, or aSSIgnee.
Gross Revenues.
~ll revenues receIved by the Grantee
from all sources of operations of the cable communications
system, except that any sales, eXCIse or other taxes collected
for direct pass-through to local, state, or federal government
shall not be Included.
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InItIal Service Area. The area of the City WhICh will
receIve service initiallYJ as set forth In the franchise
agreement.
If
not
stated otherwise in the franchise
agreement, the initial service area shall consist of the
entIre CIty.
Installation. The connection of the system from feeder
cable to subscrIbers' termInals, and the provls1on of service.
Local
OrlqlnatiQP Channel.
Any channel where the
Grantee is the prImary designated programmer, and provIdes
video programs to subscribers.
MonItoring. Observing a communication signal, or the
absence of a signal, where the observer is neither the
subscriber nor the programmer, whether the signal IS observed
by vIsual or electronIC means, for any purpose whatsoever.
MonitorIng shall not Include systemwide, non-indiVIdually
addressed sweeps of the system for purposes of verifying
system integrity, controlling return paths, transmiSSIons, or
bIlling.
Nonbroadc~st Signal.
A signal that IS provided by a
cable communIcations system and that is not Involved in an
over-the-alr broadcast transmIssion path.
Ooen Ch~nnel. Any channel that can be received by all
subscribers, wIthout the necessity for special equipment.
Pay-Cable or
P~y-TeleVlsIon.
The
delivery
to
subscribers,
over
the
cable communications system, of
televisIon sIgnals for a fee or charge to subscrIbers over and
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above the charge for basic cable servlce, on a per program,
per channel, or other subscrlption basls.
Penetration. The result expressed in the percentage
obtained by dividing the total number of dwelling units in the
franchise area into the number of subscrlbers receiving
service.
Person. Any indIVIdual, partnership, association, JOInt
stock company, trust, corporation} or organizatlonal entity.
Private Channel or Closed Circu~t ~hannel. ~ny channel
which is available only to subscrIbers who are prOVIded wlth
speclal converter or terminal equipment to receive signals on
that channel.
Proqramme~. A person or entity who or WhICh produces or
otherwise
provldes
program materlal or informatlon for
transmlssion by video, audlo, digital, or other signals,
either lIve or from recorded tapes or other storage media, to
subscribers, by means of the cable communications system.
Public. Educatlonal or Government Access Facillties or
PEG ~ccess FaCilities. The total of the following:
(1) Channel
capaclty
deSignated for public,
educatlonal, or governmental use.
(2) Facilities and equipment for the use of such
channel capaclty.
~~G. Public, educatlonal, or government.
ReSldent. Any person reslding in the City as otherwise
deflned by applicable law.
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Residential Aubacrlbar.
A subscriber who receives a
serVIce In an IndIVIdual dwellIng unIt, where the serVIce IS
not to be utIlIzed In connectIon with a busIness, trade, or
profess1.on.
Sale. Any sale, exchange, barter, or offer for sale.
School. 1o.ny
accredited
non-prOfIt
educational
InstItutIon Including primary and secondary schools, colleges,
and universities, both publIC and private.
SerVIce Area or Franchise Area.
The entIre geographIC
area WIthin the CIty deSIgnated in a franchIse agreement to
receIve cable serVIce.
SerVIce Tier.
A category of cable service or other
serVIces provIded by a Grantee and for WhICh a separate rate
IS charged by the Grantee.
Street. Each of the following WhICh have been dedicated
to the public or hereafter dedicated to the publIC and
maintained under public authority or by others and located
WIthin the CIty lImits: streets, roadways, highways, avenues,
lanes,
alleys,
sidewalks, easements, rightS-Of-way, and
similar public property and areas that the city shall permit
to be included WIthIn the definitIon of street from time to
tIme.
SubsCf1.ber. Any person, fIrm, corporation, or other
entity who or WhICh elects to subscrIbe to, for any purpose, a
serVIce prOVIded by the Grantee by means of or in connection
with the cable communicatIons system.
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Tapping. Observing
a two-way communications Signal
exchange, where the observer 1S neither of the communicating
parties, whether the exchange is observed by Visual or
electronIC means, for any purpose whatsoever.
Two
Wav
CommunicatIons.
The
transmlSSlon
of
telecommunIcations SIgnals from subscriber locations or other
pOInts throughout the system back to the system's control
center as well as transmISS10n of signals from the cont~ol
center to subscrIber locations.
Subchapter 13B.
Grant of Franchise.
SECTION 63002. Franchise Reaulrements.
(a) Franchlse Reaulred. No cable communications system
shall be allowed to occupy or use the streets In the franchise
area
or be allowed to operate without a franchise in
accordance with the proviSIons of thIS ordinance.
(b) Franchise NonexclUSIve. ~ny franchise granted shall
be nonexclusive.
CIty speCifically reserVes the right to
grant, at any tIme, such addItIonal franchises for a cable
communications system as it deems appropriate.
(c) EstablIshment of FranchIse Reaulrements. The City
may establish appropriate reqUIrements for new franchIses or
franchIse renewals, and may modify these requirements from
time to time to reflect changing condltlons and state of art
in the cable Industry.
Such reqUirements shall not be
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retroactive to tr~nchlse8 then in effect, but shall become
applicable when the franchlse is renewed, or when Grantee's
service area 1S expanded.
(d) Franchise Area. The City may grant a franchise for
all or any defIned portlon of the CIty. The serVlce area
shall be the entire area defIned in the franchise agreement.
The inItial serVIce area shall be that portion of the
franchise area scheduled to receive Initial service, as stated
in the franchise agreement.
SECTION
63003.
AODl1catIons for Franchise.
Each
applIcatIon for a franchise to construct, operate, or maIntaIn
any cable system In this City shall be filed with the City
Clerk. An applicatIon shall Include, but shall not be limited
to, the fOllOWIng InformatIon:
(a) The name, address, and telephone number of the
applIcant.
(b) A detailed statement of the corporate or business
entity organIzatIon of the applIcant, including, but not
limited to, the following and to whatever extent required by
the City:
(1) The names, resldence and business addresses of
all officers, directors, and aSSOCIates of the applicant.
(2) The names, reSIdence and bUSIness addresses of
all officers, persons, and entitles having any share of the
ownership of the applicant of one percent or more and the
respective ownership share of each such person or ent1ty.
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(3) The names and addresses of any parent or
subsidiary of the appllcant, namely, any other business entlty
own1ng or controll1ng appl1cant 1n whole or 1n part or owned
or controlled in whole or in part by the applicant, and a
statement
describIng the nature of any such parent or
subsid1ary buslness entity includ1ng, but not lim1ted to,
cable systems owned or controlled by the applicant, its
parent, and subsidiary and the areas served thereby.
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detailed descr1ption of all previous
experience of the applIcant in providlng cable teleV1sion
system serVIce and 1n related or simllar fields.
(5) A detailed and complete financial statement of
the applIcant, certified by an Independent certifIed public
accountant, for the fIscal year next preceding the date of the
applicatlon
hereunder, or a letter or other acceptable
evidence in writing from a recognized lendlng inst1tution or
fund1ng source, addressed to both the applicant and the
Council, setting forth the basis for a study performed by such
lendIng InstItutlon or fundIng source, and a clear statement
of its intent as a lending lnstltution or fundIng source to
provIde whatever capltal shall be required by the applicant to
construct and operate the proposed system in the CIty, or a
statement from an Independent certifled publIC accountant,
certIfYIng that the applicant has avallable sufficlent free,
net, and uncommitted cash resources to construct and operate
the proposed system In thiS CIty.
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detailed
flnancial plan (pro forma)
descrIbing for each year of the franchise, projected number of
subscribers, rates, all revenues, operating expenses, capital
expendltures, deprecIation schedules, Income statements, and a
sources and uses of funds statement. All Informatlon 1s to be
presented In the format required by City.
(7) A statement identifYing, by place and date,
any other cable system franchises awarded to the applicant,
and any parent, or Subsldlary corporation; the status of sald
franchlses wlth respect to completlon thereof; the total cost
of completlon of such franchised systems; and the amount of
applicant's
and
its parent's or subsidiary's resources
commltted to the completlon thereof.
(8) A statement ldentlfying franchises owned or
operated by applicant, its parent or Subsidiary corporation,
that have been revoked or licenses terminated by the Federal
CommunIcatIon CommIssion or franchising entIty.
(c) A detailed descriptlon of the proposed plan of
operatlon of the applicant WhlCh shall include, but not be
limited to, the followlng:
(1) A detalled map Indicatlng all areas proposed
to
be
served,
and a proposed time schedule for the
installation of all equipment necessary to become operational
throughout the entire area to be served.
(2) A statement or schedule setting forth all
proposed classlflcatlons of rates and charges to be made
against subscribers and all rates and charges as to each of
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said
claSSIfications, IncludIng installation charges and
service charges.
( 3 )
A
detailed, informative, and referenced
statement descrIbing the actual eqUIpment and operational
standards proposed by the applIcant.
( 4 )
A.
copy of the form of any agreement,
undertaking, or other instrument proposed to be entered into
between the applIcant and any subscriber.
(5) 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, flrm,
or corporatIon WhICh materIally relate or pertain to or depend
upon the applIcatIon and the granting of the franchIse.
(d) A copy of any agreement covering the franchise
area, If eXIstIng, between the applicant and any munICIpal
utility or public utIlIty subject to regulation by the
California Public UtIlItIes Commission providIng for the use
of any facilItIes of the public utility including, but not
lImIted to, poles, lines, or condUIts.
(e) Any other detaIls, statements, information, or
references pertInent to the subject matter of such applIcation
WhICh shall be required or requested by the CIty, or by any
other provIsion of law.
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SECTION 63004. ~ppllcatlon Fee.
(a) ~mount. NotwIthstanding any other requu"ement of
this Chapter, each applIcant must furnish wIth its proposal a
non-refundable fIling fee In the form of a certified or
cashler's check made payable to the City ot Santa Monica, in
an amount as may be establIshed by the Clty at the time of
appllcation.
No proposal for a franchIse shall be considered
wIthout receIpt of said check.
(b) DeposIt an9 Use.
All checks receIved will be
deposIted to an account of the CIty and will serve to recover
all expenses Incurred by the CIty In the preparation and
grantIng of a franchIse, the execution of a franchise, and
regulatIon of a franchIse pursuant to this Chapter. Said
expenses shall lnclude, but not be limited to, any and all
administratIve, engineerIng, publIcatIon, or legal costs, and
consultant's
expenses,
incurred In connectIon with the
proceSSIng, evaluatIon, and preparatIon of documents relating
to the franchIse.
(c) AddItional Fee. In the event that expenses exceed
the total amount of fIling fees collected from the applicants,
an applIcant awarded a franchIse shall pay to the City the
excess amount.
SECTION 63005. SelectIon of Grantee.
(a) SolICItation
of Proposals.
The City may, by
advertIsement or any other means, SOllClt and call for
applIcations for cable system franchIses1 and may determine
and fix any date upon or after WhICh the same shall be
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receIved by the CIty, or the date before which the same must
be receIved, or the date after which the same shall not be
receIved, and may make any other determInations and specify
any other times, terms, condItIons, or limItatIons respectIng
the SOlIcItIng, call1ng for, makIng, and receiVIng of such
applications.
The terms and conditions for applicatIon shall
be described in a document called "Request for Proposals."
(b) ComDliance with CItV ReaUIrements.
Any person
submittIng a proposal for a cable system in response to the
CIty'S Request for Proposals shall provide all information
requIred by this Chapter and all other information requested
by City's Request for Proposals or otherwise required by City.
Each proposal shall be responSIve to the questIons solICIting
the
lnformat1on,
and shall completely, accurately, and
materially supply all of the lnformatlon so soliCIted. Any
misrepresentatIon, failure, neglect, or refusal to prOVIde any
of such Information may, at the discretIon of City, render a
proposal Invalid. The requested InformatIon must be complete
and verIfied as true by the applicant.
(c) Property of CIty. All proposals received by the
City from an applIcant shall become the sole property of City
and shall become public documents.
Cd) Aoollcant
ResoonsibilltV.
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Before submItting a
proposal, each applicant shall be solely responsible for and
must:
(1) Be familiar with local conditIons that may in
any manner affect performance under the franchise, including,
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but in no event lImIted to, commun~ty and inst~tut~onal
telecommunIcation needs, relevant demograph1cs, topographics,
pole attachment pOlIcies of appropriate utilIty authorIties,
undergrounding, and subscriber desires.
(2) Be famIlIar WIth federal, state, and local
laws, ordInances, rules, and regulations affectIng performance
under the franchIse.
(3) Carefully correlate and relate all information
and observatIons WIth the reqUIrements of thIS Chapter and the
Request for Proposal documents.
(e) Referral to Citv Manaaer.
Upon receipt of any
applIcatIon for franchIse, the City Manager shall prepare and
submIt
a
report
to
the City CounCIl which includes
recommendatIons respectIng such applIcation.
The C1.ty WIll
evaluate
all
proposals
that
have
complied with Its
reqUIrements.
All applIcants that have met the City's
qualIfIcations In the Request for Proposals and have submitted
proposals
on
the
required forms will be offered the
opportunity to make a formal presentation to the CIty Council
in support of their applicatIons.
(f) Investioatlons.
The
CIty
may
make
such
InvestIgatIons as It deems necessary to determIne the ability
of the applicant to perform under the franChIse, and the
applIcant shall furnIsh to the CIty all such information and
data for thIS purpose as the CIty may request. The City
reserves the rIght to reJect any proposal if the evidence
submItted by, or InvestIgatIon of such applIcant falls to
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satisfy the City that such applicant 1S properly qualified to
carry out the oblIgations of the franchise agreement, comply
with the provisions of thlS Chapter, or to satisfactorily
construct and operate the system.
Proposals that modify or
place condltlons upon requirements stated In the City's
Request for Proposals may be reJected by the CIty.
(g) Re]ectlon,
The City may reJect any and all
applIcations from whatever source and whenever receIved and
the CIty also reserves the rlght to waive any or all
reqUIrements where the best lnterests of the CIty may be
served, and may, if 1t so desires, request new or addItional
proposals.
(h) PubliC
Comment.
If, upon receiv1ng the City
Manager's report, the CIty Council shall determlne to further
consider the applIcatIon, it shall pass a resolutlon setting a
public hearing for the consIderation of applIcations, flxing
and setting forth a day, hour, and place certaIn when and
where any persons having any interest thereIn or objections
may fIle wrItten comments and appear before the CIty CounCIl
and be heard, and directing the City Clerk to pUblISh said
resolutIon at least once Within ten (10) days of the passage
thereof in a newspaper of general circulatIon wlth1n the City.
(i) Con~i~erat~on.
In
making
any
determination
hereunder as to any applIcation for a new franchise, the City
CounCIl may consider factors Includ1ng, but not limIted to,
the quality of the serVIce proposed, Income to the City,
experIence,
character,
background,
and
finanClal
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responsibility ot any applicant, and its management and
owners,
techn~cal and performance quality of equ1pment,
wil11ngness and abi11ty to meet construction and physical
requirements, to meet all requirements set forth 1n this
Chapter, and to abide by all purpose and policy conditions,
franchise
11m1tat10ns
and
requ1rements, and any other
considerat1ons deemed pert1nent by the City Council for
safeguardIng the interests of the C1ty and the public.
(J) Determination. At the tIme set for the hearing, or
at any adJournment thereof, the City Council shall proceed to
hear all protests. The CIty Council shall then make one of
the follow1ng determinations;
(1)
That
such app11cation be denied, whIch
determ~nat1on shall be final and conclUSIve.
(2) That such franchIse be granted upon such terms
and condItIons as the City CounCIl may establish.
(k) AddItional InformatIon.
The C1ty Council may at
any
time
demand,
and
applicants shall provIde, such
supplementary, addItional, or other Information as the City
CounCIl may deem reasonably necessary to determ1ne whether the
requested franch1se should be granted.
(1) Awards ~ased on Herit.
It 1S the intention of the
CIty to award any cable franchIse on the basis of merit of
proposals.
To
this end, any commun1catlons WIth CIty
Councllmembers by those WishIng to submIt proposals for a
cable
franchise
should be 11mited to public sessions.
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Requests for information should be dIrected to the City
Manager.
(m) CItv Council DeCISIons Final. ~ny decision of the
CIty CouncIl concerning selection of a franchIse pursuant to
this Chapter shall be fInal.
SECTION 63006. Grant of ~uthoritv.
(a) Successful applIcants chosen by the City CounCIl
will be granted the rIght and prIVIlege to construct, erect,
operate, and maintaIn 1n, upon, along, across, above, over,
and under the streets, alleys, publIC ways, and publIC places
now laid out or dedicated and all extenSIons thereof, and
additions
thereto,
In
the CIty poles, WIres, cables,
underground condUIts, manholes, and other cable conductors and
fIxtures necessary for the maIntenance and operatIon in the
City of Santa Monica of a cable system, to be used for the
sale and distrIbution of cable serVIces to the residents of
the CIty.
(b) ~ny 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.
(c) Insofar as it is not InconSIstent with or otherwise
preempted by Federal or State regulations, the City Council
retains all authorIty to regulate all telecommunications
serVIces provided by a Grantee to the extent necessary to
assure the delivery of proposed services, If any, and that
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such services are 1n compliance with all regulatory provis10ns
of this Chapter and other applicable la~s.
SECTION 63007. Renewal.
The renewal of any franchise granted pursuant to this
Chapter shall be subJect to the terms of applIcable law and to
such terms and conditIons as may be establIshed by the CIty.
SECTION 63008. Use of PublIC Streets anp Wavs. For the
purpose of operating and maintaIning a cable communIcations
system In the franchIse area, and subJect to the provisions of
SectIon
63037
hereln, the Grantee may erect, Install,
construct, repaIr, replace, reconstruct, and retain in, on,
over, under, upon, across, and along the publIC streets and
ways WIthin the franchIse area such WIres, cables, conductors,
ducts, condUIts, vaults, manholes, amplIfIers, appliances,
pedestals, attachments, and other property and equipment as
are necessary and appurtenant to the operation of the cable
communIcations system. PrIor to construction or alteration,
however, Grantee shall In each case file plans with the
approprIate City agencies and local utility companIes, and
receIve wrItten approval before proceeding. Grantee shall in
any event comply WIth all applIcable City constructIon codes
and procedures.
SECTION 63009. DuratIon. The term of any franchise and
all
rights,
prIvlleges,
obligations,
and restrIctions
pertainlng thereto shall be as speCIfied in the franchise
agreement unless termloated sooner as hereInafter provided.
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The effectIve date of the franchIse shall be the date of
execution of the franchIse agreement by CIty, subject to prIor
execution by Grantee.
In no event shall the term of any
franchlse exceed twenty (20) years.
SECTION 63010. Transfer of OWnershlD or Control.
(a) Transfer
of FranchIse.
Any franchise granted
hereunder shall be a privilege to be held for the benefit of
the pUblIC.
SaId franchise cannot in any event be sold,
transferred, leased, assigned, or disposed of, including, but
not
limited
to, by forced or voluntary sale, merger,
consolidation, receIvershIp, change of management, or other
means without the prIor wrItten consent of City, expressed by
CIty CounCIl resolution, and then only under such condItIons
as CIty may establish. CIty consent shall not be unreasonably
withheld.
(b) OWnershlo and Control.
Grantee shall promptly
notIfy In wrItIng CIty of any proposed change in, or transfer
of, or acquiSItion by any other party of, control of Grantee.
The word <<control<< as used herein is not limited to maJor
stockholders, but includes actual workIng control In whatever
manner exerCIsed. A rebuttable presumption that a transfer of
control has occurred shall arIse upon the acqUIsition or
transfer by any person or group of persons of ten percent
(10\) or more of the benefiCIal ownerShIp interest of Grantee.
Every change, transfer, or acqulsltlon of control of Grantee
shall make the franchise SUbJect to cancellation unless and
until City shall have consented thereto. For the purpose of
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determInIng whether it shall consent to such change, transfer,
or acquIsItion of control, City retains the right to request
such InformatIon as It deems appropriate to determ1ne the
prospectIve party's qualificatIons, and Grantee shall ass 1St
CIty in any such lnqulry.
(c) Grantee ResponsIbility. In seekIng CIty'S consent
to any change 1n ownershlp or control, Grantee shall have the
responsibility:
(1) To show to the satisfaction of City whether
the proposed purchaser, transferee, or aSSIgnee which shall
Include all offIcers, dIrectors, and all persons haVIng a
legal or equitable interest In flve percent (5%) or more of
its votIng stock:
(1) Has ever been convIcted or held liable
for acts InvolVIng moral turpItude IncludIng, but not limIted
to, any violatIon of Federal, State, or local law or
regulatIons,
or
is
presently
under
an
indictment,
lnvestIgatIon, or complaInt chargIng such acts.
(Ii) Has ever had a Judgment in an actIon
for fraud, deceit, or mIsrepresentatIon entered against It,
her, hIm, or them by any court of competent jurIsdictIon.
(Iii) Has pending any legal claim, lawsuit,
or adminIstratIve proceedIng arISIng out of or Involving a
cable system.
(2) To establIsh, to the satIsfaction of City,
the financial capablllty of the proposed transferee to operate
the franchised system, based on the proposed transferee's
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aggregate flnanClal commItments and resources.
city may
request} and Grantee shall provide} all reasonable financial
data relative to the transfer.
(3) To establish to the satIsfaction of City that
the capablllty of the proposed transferee IS such as shall
enable It to maIntaIn and operate the cable system for the
remainIng term of the franchise under the existing franchise
term, and, upon City request, to provlde adequate security for
thIS purpose.
(d) The Grantor agrees that any flnancial institutIon
havlng a pledge of the franchise or lts assets for the
advancement of money for the constructIon and/or operation of
the franchise shall have the rIght to notlfy the Grantor that
it or lts designee satlsfactory to the Grantor will take
control and operate the cable communicatIons system, in the
event of a Grantee default 1n Its finanCial obligations. In
such event, the fInancial InstitutIon shall submIt a plan for
operatIon that Will insure continued serVIce and compliance
WIth all franchIse requIrements durIng the term the financial
InstitutIon exerCIses control over the system. The fInancial
institution shall not exerCIse control over the system for a
period exceeding one year unless extended by the Grantor in
ItS discretion and durIng saId perIod of time it shall have
the rlght to petItIon the Grantor to transfer the franchise to
another Grantee.
If the Grantor finds that such transfer}
after consIdering the legal, finanCIal, character, technical,
and other publIC Interest qualifIcations of the applIcant are
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satisfactory, the Grantor shall transfer and assign the rights
and obl1gations of such franchIse as 1n the public 1nterest.
The consent of the Grantor to such transfer shall not be
unreasonably wlthheld.
(e) CQnsent to Transfer Subordinate to Cltv's Other
Riahts.
The consent or approval of city to any transfer of
the franchlse shall not constltute a waiver or release of the
rights of City in and to the streets, and any transfer shall
by lts terms, be expressly subordinate to the terms and
condltlons of the franchlse.
(f) Necessltv for Comoletlon of Construction. In the
absence of extraordinary circumstances, City shall not approve
any
transfer
or assignment of the franchise prlor to
completion of constructlon of the proposed system.
(g) RI0ht to Purchase Cable ~yste~.
The franchIse
agreement shall provlde the terms and condltlons under which
the City has the right to purchase the cable system, if and
when It is placed on the market for sale.
(1) Successor
in Interest.
In no event shall a
transfer of ownership or control be approved without the
successor In lnterest becomlng a slgnatory to the eXlsting
franchlse
agreement,
or a modlfied franchise agreement
approved by City.
SECTION
63011.
Police
Powers.
In accepting a
franchlse, Grantee acknowledges that its rights hereunder are
subject to the pollce powers of CIty to adopt and enforce
general ordinances necessary to the safety and welfare of the
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public; and it agrees to comply w1th all applicable general
laws and ord1nances enacted by City pursuant to such power.
Any conflict between the provis1ons of thIS ordinance
and any other present or future lawful exerCIse of C1ty'S
pollce powers shall be resolved in favor of the latter, except
that any such exercise that IS not of general application 1n
the
jur1sdIction
or
applies exclus1vely to any cable
commun1cat1ons system franchise which conta1ns provisions
inconSistent with this ordinance shall prevail only if upon
such exerCIse City finds any emergency eXists constltut1ng a
danger to health, safety, property, or general welfare of such
exerCIse if mandated by law.
SECTION 63012. Franchise Fee.
(a) Annual Franch1se Pavment. A Grantee of a franchise
hereunder shall pay to CIty an annual fee in an amount as
designated 1n the franch1se agreement. Such payment shall be
in addItIon to any other prescrIbed fees, 1ncluding, but not
limIted to, bUSiness l1cense and permIt fees, and shall
commence as of the effective date of the franch1se. City,
upon request, shall be furnIshed a statement, eIther audIted
and certIfIed by an independent CertIfied Public Accountant or
certifIed by a fInanCIal offIcer of Grantee, reflecting the
total amounts of gross revenues and all payments, deductions,
and computations for the perIod covered by the payment. City
shall have the rIght to conduct an independent audit of
Grantee's records, and If such audit indIcates a franchise fee
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underpayment of two percent (2\) or more, Grantee shall assume
all reasonable costs of such an audlt.
(b)
Acceotance
bv Citv.
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No
acceptance of any payment
by Grantee shall be construed as a release or as an accord and
satisfaction of any claim CIty may have for further or
addltlonal
sums payable as a franchise fee under this
ordInance or for the performance of any other obllgation of
the Grantee. All amounts paid shall be subject to audlt and
recomputation by City.
(c) Pavment Schedule. Franchise fee payments shall be
made
in accordance wlth the schedule 1ndicated in the
franchise agreement.
(d) Franchise
F~~ Ite~l~atlon.
Any Grantee <<pass
through<< or ltemIzation of franchlse fee costs on subscriber's
bills shall be 1n accordance with Federal law.
(e) Fa1lure to Make R~~ulred r~yment.
In the event
that any franchise payment or recomputed amount 1S not made on
or before the dates specIfIed In the franchise agreement,
Grantee shall pay as additIonal compensatlon~
(1) An Interest charge, computed from such due
date, at an annual rate equal to the maximum Interest rate
WhIch could lawfully be charged by a private lender in effect
upon the due date.
(2) A sum of money equal to five percent (5%) of
the amount due in order to defray those additional expenses
and costs incurred by CIty by reason of delinquent payment.
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Subchapter 13C.
Reaulatlon of ~ranchlse.
SECTION
63013.
Reaulatorv Authorltv.
- -
Clty shall
exercise approprlate regulatory authority under the provlslons
of this Chapter and applicable law,
If the franchlse area
served by the cable communications system also serves other
contiguous or neighborIng communItIes} CIty may, at its sole
option,
particIpate In a JOInt regulatory agency, with
delegated responsIbility in the area of cable and related
communIcatIons.
SECTION 63014.
Reaulatorv ReSDonsibllltV.
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City may
exerCIse regulatory responsibilIty, including} but not lImited
to} the followIng areas:
(a) AdminIsterIng and enforcing the provislons of the
cable communIcations system franchisees).
(b) Coordination
of
the
operatIon
of
public}
educatIonal} and government access channels and faCIlities.
(c) PrOVIdIng technical, programming, and operational
support
to
public
agency
users,
such as government
departments, schools, and SOCIal service providers.
Cd) Establishing procedures and standards for use of
channels and facllltles dedicated to PEG access use, if
prOVIded for In any franchise agreement.
(e) PlannIng expanslon and growth of public benefIt
cable services.
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(f) Analyzing the pOSSIbilIty of integrating cable
communications
with
other
local,
state,
or nat~onal
telecommunIcations networks.
(g) Formulat~ng
and
recommending
long-range
telecommunications POlICY,
SECTION
63015.
Public Usaae of the Svstem.
As
specifIed In the franchIse agreement, CIty shall utIlIze a
portion of the cable communicatIons system capacity, and
assocIated facilitIes and resources, to develop and provide
cable serVIces that will be In the public interest. It IS the
intent
of
City to Insure that public, educational or
government access faCIlItIes prOVIded for in any franchise
agreement shall be managed In the best publIC interest so that
programming
using such faCIlIties wIll be open to all
residents, and avaIlable for all forms of publIC expression,
community InformatIon, and debate of publIC Issues.
( a)
Deleaatlon
of
Public
Usaae
Faci1itv Hanaaement.
- -
CIty
may delegate or assign all or a portion of the
responSIbilIty
for
management
of publIC, educatIon or
government access faCIlities to an entity or entIties WhICh
may Include, but not be lImited to, any of the follOWIng:
(1) ~ nonprofIt publIC corporatIon.
(2) An access faCIlIty management commission or
committee, appOInted by City, or elected, and representing a
broad spectrum of the communIty.
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(3) ~n establIshed nonprofit entIty with specIal
cablecasting capabIlIty, such as a local or regional communIty
college.
(4) A grantee of a cable franchIse,
(5) A City department or d1viSlon wIth special
cablecastlng capabIlity.
(b) Functions.
Any entIty or entlties desIgnated to
manage all or a portIon of the PEG access facilItIes and
public usage of the system shall share responsIbilIty with
CIty for such of the following functIons as may be specified
by City:
(1) Manaaement
Of
Facilities.
To
assume
responsibilIty
for and management of the public access
facillties as may in the franchlse agreement be deSIgnated for
communIty-based programming. Community channels may Include
public,
educatIonal, and government access channels, as
designated In the franchIse agreement.
(2) P~G UtIlIzatIon.
Receive and utilIze or
reallocate for utilizatlon on a perIodIC baSIS, channel
capaCIty, faCIlIties, fundlng, and other support provided
specifically for public usage of the cable communIcations
system to conform WIth changIng priorities and public needs.
(3) AdminIstratIon and Reaulation.
To devise,
establIsh, and admInIster rules, regulatIons, and procedures
pertainIng to the use and scheduling of the PEG access
faCIlItIes.
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(4) ~e~orts
on Vtllizatton.
Report to CIty
annually, or upon request, on the utl11zation of resources,
about the new public services developed and the benef1ts
achIeved for City and its resIdents.
(5) Non-DlscrimInatorv ~ccess.
To assure that
the PEG access facilities are made available to all resIdents
of the franchIse area on a nondIscrimInatory, fIrst-come,
fIrst-served basis.
(6) Non-CensorshIQ. To assure that no censorshIp
or control over program content of the PEG access faCIlities
exists except as necessary to comply with Federal prohIbition
of material that IS obscene.
(7) HirIna of Staff.
To hIre and supervise
staff.
(8) Purchase of MaterIals. To make all purchases
of materials and eqUIpment that may be reqUIred.
(9) DeveloDment of FundIna Sources. To develop
sources of fundIng, such as foundation or Federal or state
grants, to further communIty programming.
(10) Performance of Relevant Functions. To
perform such other functIons
faCIlities as may be approprIate.
(11) Esta~llshmen~
relevant to
the
PEG access
of B~dget.
To
establIsh
budgets on an annual basis, and utIlIze funds and resources
receIved from CIty or the publIC usage entity deSIgnated in
SectIon 63015(a), for the purpose of PEG access programming.
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(c) Access Rules. Any entity or ent1ties to whom City
delegates
or
ass1gns
access
facility
management
respons1b1l1tles shall complete a set of rules for the use of
all or a port1on of the access facIlities which shall be
promptly forwarded to CIty. The rules shall be prepared 1n
cooperation with Grantee, and confirmed by agreement between
the PEG access facility management entlty and Grantee. The
rules shall, at a mln1mum, provlde for:
(1) Access
on
a
flrst-come,
flrst-served,
nondiscrlmlnatory basis for all residents of the franchlse
area.
(2) Prohibitlon of commercial use.
(3) Prohlbitlon of any presentation of obscene
material.
(4) Public lnspectlon of the log of producers,
WhlCh shall be retained by the Grantee for a period of four
years.
(5) Procedures by which lndividuals or groups who
violate any rule may be prevented from further access to the
facilities.
(6) Free
use of such reasonable amounts of
channel tlme, cablecastIng facilities, and technical support
as are prOVIded for in the agreement between any PEG access
faCIllty management entlty and Grantee.
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SECTION 63016. Rates.
(a) UnIform A~~lle~t~o~. Grantee shall establish rates
for Its serVIces that shall be appl~ed fairly and unIformly to
all subscrIbers 1n the franchise area.
(b) Schedule of Rates. Grantee shall maintain and file
with CIty, a complete schedule of subscrIber rates Including
all fees and charges for services. Grantee shall notify CIty
and cable subscribers at least thIrty (30) days prior to any
change 1n rates.
(e) DisconneC~IQn.
There shall be no charge for
disconnectIon from the system.
(d) Reconnection.
If a subscriber has failed to pay
properly due monthly fees or If a subscriber disconnects for
seasonal perlods, Grantee may reqUIre, in addition to full
payment
of
any delInquent fees, a reasonable fee for
reconnection.
(e) No Consideration Beyond Sc~~~~le.
Grantee shall
receive no consideration whatsoever for or In connection with
its provIsion of serVIce to Its subscrIbers other than as
flIed with Clty.
SECTION 63017.
Rate Chanae Procedure.
To the extent
permitted by law, the franchise agreement may provide a
procedure for the reVIew and approval of rate changes by the
City.
SECTION 63018. Annual Review of Oualltv of Service. At
CIty'S sole option, WIthln nInety (90) days of the fIrst
33
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annIversary of the effectIve date of each franchise, and each
year thereafter throughout the term of the franch~se, c~ty and
Grantee shall meet publICly to review the performance and
quality of serVIce of the cable communicatIons system. The
reports
requIred
1n Section 63063 regarding subscrIber
complaInts, the records of performance tests and the opinion
survey report shall be utIlized as the basis for reVlew. In
addItIon, any subscrIber may submit comments during the review
meetings, eIther orally or in wrItIng, and these shall be
considered.
(a) WIthIn thirty (30) days after the conclUSIon of the
qualIty of service reVIew meetIngs, City shall issue a report
with respect to the adequacy of system performance and quallty
of serVIce.
If InadequaCIes are found, City may dIrect
Grantee to correct the inadequacies WIthin a reasonable period
of time.
(b) FaIlure of Grantee, after due notice, to correct
the inadequac~es shall be conSIdered a material breach of the
franchIse, and Clty may} at lts sole dlscretion, exercise any
remedy
within
the
scope of this ordinance cons~dered
appropriate.
SECTION 63019. System and SerVICeS ReVIew. To provide
for technologIcal, economIC, and regulatory changes in the
state of the art of cable communlcatlons, to fac~litate
renewal
procedures,
to
promote the maXImum degree of
fleXlbllity In the cable system, and to achleve a continuing,
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advanced modern system, the following system and serVIces
reVIew procedures are hereby established:
(a) At City's sole optIon, City and Grantee shall hold
a system and serVIces reVIew session on or about the second
annlversary date of the franchise agreement.
Subsequent
system
review
sessions
shall
be
scheduled
by City
approxlmately each two (2) years thereafter.
(b) SlXty (60) days prior to the scheduled system and
services reVlew session, Grantee shall submit a report to City
lndlcating the folloWIng:
(i) All cable system services that are belng
provlded on
an operational
basls,
excluding tests
Unlted States
and
demonstrations,
to cities
In the
with
populations comparable to that in the franchise area, that are
not provided to City.
(2) A plan for provlsion of such servlces, or a
justification Indicating why such services are not feasible
for the franchise area.
(c) TOpICS for discussion and review at the system and
services reVlew sessions shall include, but not be limited to,
services provided, application of new technologies, system
performance,
programming,
subscriber
complaints,
user
complalnts, rights of privacy, amendments to the franchise,
undergrounding
processes,
developments in the law, and
regulatory constralnts, and technIcal and economlC feasibility
of system expansion or upgrading.
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(d) Either CIty or Grantee may select addItional topics
for dIScussion at any review session.
(e) ~ll system and services review sessions shall be
open to the publIC and Grantee shall provide notice of such
session at least ten (10) days preceding each session in a
newspaper of general circulation in CIty.
Grantee shall
notify its subscribers of all system and serVlces review
sessions by announcement on at least two (2) channels of its
system between the hours of 7:00 p.m. and 9:00 p.m., for ten
(10) consecutive days precedIng each session.
(f) Not later than sixty (60) days after the conclusion
of each system and services review sesslon, city shall Issue a
report, includIng specifIcally a llstlng of any cable services
not
then
beIng
provided to City that are considered
technIcally and economically feaSIble.
SECTION 63020. New DeveloDments.
(a) A FranchIse ~greement may provIde that subsequent
to each System and SerVIces ReVIew Session and City Issuance
of a report thereon, as set forth In SectIon 63019, the City
CounCIl shall have the authorIty to order a public hearing on
the provlslon of additional channel capaCIty by Grantee or on
the Inclusion in Grantee's cable system of "state of the art"
technology or upgraded faCIlitIes. Notice of such hearing
shall be provided to Grantee and the public not later than
thirty (30) days prIor to such hearlng.
(b) The City Council may order proviSIon of addlt10nal
channel capacity or upgradlng of faCllltles if, after the
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hearing provided In subd1vlsion (a), it makes each of the
followIng findIngs:
(1) There exists a reasonable need and demand for
addItIonal channel capacIty and/or state of the art technology
or upgraded faCIlIties.
(2) ProvIsIon has been made or will be made for
adequate rates which wIll allow Grantee a faIr rate of return
on Its investment (includIng the investment requlred to
provIde the additional channels and/or the state-of-the-art
technology or upgraded faCIlitIes).
( 3 ) WIll
not
result In economic waste for
Grantee.
In consIderIng the economIC feaSIbIlIty of requIred
system
Improvements, the CIty CouncIl may consIder the
extensIon of the term of the franchIse to permIt the recovery
of the cost of saId improvements. ~ny proposed extension of
franchIse is sUbJect to the procedures for franchIse renewal
found In SectIon 63007 of thIS Chapter. WIthout implying any
lImItations as to other proviSIons of this Chapter, this
SectIon IS deemed a materIal prOVISIon WIthin the meanIng of
Sections 63078 and 63093 of thIS Chapter. Non-complIance WIth
this SectIon shall constItute a breach of thIS Chapter, and
City may, at Its sole discretIon, exercise any remedy It deems
approprIate pursuant to thIS Chapter.
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Subchapter 13D.
General FInanCIal and Insurance Provlsions.
SECTION 63021. Construction Bond.
(a) Withln thirty (30) days after the grantIng of a
franchise and pr10r to the commencement of any construct1on
work by Grantee! Grantee shall flle with CIty a construction
bond 1n the amount specif1ed 1n the franchise agreement 1n
favor of Clty and any other person who may cla1m damages as a
result of the breach of any duty by Grantee assured by such
bond.
(b) Such bond shall be in the form approved by City and
shall, among other matters, cover the cost of removal of any
properties Installed by Grantee in the event sald Grantee
shall default in the performance of its franchlse oblIgation.
(c) In no event shall the amount of said bond be
construed to limit the liabllity of Grantee for damages.
(d) City, at its sole option, may waive this
requ1rement, or permit consolIdatlon of the construction bond
with the performance bond and security fund specified,
respect1vely, In Sections 63022 and 63023.
SECTION 63022, CQmpletlon and P~rformance Bond.
(a) Wlthln thIrty (30) days after the award or renewal
of a franchIse, a Grantee shall obtain and maintain at Its
cost and expense, and fIle with the City Clerk, a completion
and performance bond approved by the City Attorney and issued
by a corporate surety authorized to do business in the State
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of California, 1n an amount equal to the antic~pated costs of
the proposed construct~on or reconstructlon, includIng the
cost
of all system equlpment, to guarantee the tlmely
construction, or reconstructIon and full activation of the
cable communications system and the safeguardIng of damage to
prlvate property and restoratIon of damages Incurred by
utillties.
The bond shall provide, but not be limited to, the
followlng condItIon:
There shall be recoverable by City,
jointly and severally from the prIncipal and surety, any and
all damages, loss or costs suffered by CIty resulting from the
failure of a Grantee to satisfactorily complete and fully
actIvate
the cable communIcatIons system throughout the
franchlse area pursuant to the terms and condltlons of thIS
Chapter and the Franchlse ~greement.
(b) Any extenSIon to the prescribed construction or
reconstructIon tIme lImIt must be authorIzed by the CIty
Council.
Such extenSIon shall be authorized only when the
City CounCIl flnds that such extenslon is necessary and
appropriate due to causes beyond the control of a Grantee.
( c ) The
completion and performance bond shall be
termInated only after the Clty CounCIl flnds that a Grantee
has
satisfactorily
completed
lnitlal
constructIon and
activatIon or reconstructIon of the cable communIcatIons
system pursuant to the terms and conditIons of this Chapter
and the FranchIse Agreement. The prInCIpal sum of the bond
39
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may be reduced upon appl~cation of Grantee and approval by
City CouncIl.
(d) The rights reserved to City with respect to the
completlon and performance bond are ~n add1tIon to all other
r1ghts of City, whether reserved by thIS Chapter or authorized
by law, and no act~on, proceedlng, or exerCIse of a right with
respect to such completion and performance bond shall affect
any other r~ghts which may be held by City.
(e) The completion and performance bond shall conta~n
the follow1ng endorsement:
It 1S hereby understood and agreed
that th1S bond may not be cancelled by
the surety nor the intent10n not to
renew be stated by the surety until
sixty (60) days after receipt by City,
by registered mail, of wr~tten notice
of such intent to cancel or not to
renew.
(f) Upon any fallure of a Grantee to satisfactorily
complete construct~on or reconstruction and fully actIvate the
cable communications system throughout the franchise area
pursuant to the terms and condItions of thIS Chapter and the
Franchise Agreement, or in the event of Grantee's abandonment
or materIal delay of the constructIon, reconstruction, or
act1vatlon of the system, City, after gIving Grantee ten (10)
days wrItten notice and an additional ten (10) days to cure
the fa~lureJ abandonment, or delay, shall become empowered
40
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thereby to enter the site of and take possession of the
construction, reconstruction, or activation work for purposes
of completing the work itself or emploYIng some other person
to complete the work, and for such purposes to allow and use
Grantee's equipment provided that the entire expense of the
completion of the work, whether done by CIty Itself or by the
employment of another person, shall be charged to Grantee and
provided further, that the dOing of such work by City itself
or by the employment of other persons shall in no way relieve
Grantee from any covenants, undertakIngs, duties, and
obligations under this Chapter or franchIse, nor limIt the
rights
and
remedies
of City hereunder In any manner
whatsoever.
SECTION 63023. Securltv Fund.
(a) Within thirty (30) days after the effective date of
the franchIse, Grantee shall depOSit into a bank account,
establIshed
by City and maintain on depOSit through the term
of this
franchise, the sum speCIfIed 1n the franchise
as securIty for the faithful performance by it of
agreement,
all the prOVIsions of the franchise, and compliance with all
orders, permits, and directions of any agency of CIty having
jurisdictIon over Its acts or defaults under thIS ordinance,
and the payment by the Grantee of any claims, lIens, and taxes
due City which arIse by reason of the construction, operation,
or maintenance of the system.
The security fund may be assessed by City for purposes
Including, but not limited to, the following:
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(1) Fa1lure of Grantee to pay City sums due under
the terms of the franch1se.
(2) Re1mbursement of costs borne by Clty to
correct franchIse vlolatlons not corrected by Grantee, after
due notice.
(3) Monetary remedies or damages assessed against
Grantee due to default or violatIon of franchise requirements.
(b) At City's sole option, some portion of the security
fund may be prOVIded 1n the acceptable form of an irrevocable
letter of credit or other security acceptable to the CIty.
(c) If Grantee falls, after ten (10) days notice, to
pay to CIty any franchise fee or taxes due and unpaid; or,
falls to pay to CIty within such ten (10) days, any damages,
costs, or expenses, which City shall be compelled to pay by
reason of any act or default of Grantee in connection with the
franchise; or, falls, after thirty (30) days notIce of such
faIlure by Clty, to comply WIth any proviSion of the franchise
which City reasonably determines can be remedied by an
expend1ture
of the securIty fund, city may immediately
withdraw the amount thereof, with interest, from the securIty
fund.
Upon such WIthdrawal, City shall notIfy Grantee of the
amount and date thereof.
(d) WIthin thIrty (30) days after notice to It that any
amount has been WIthdrawn by CIty from the securIty fund
pursuant to subsection (a) of thIS Section, Grantee shall
depOSIt a sum of money suffICIent to restore such securIty
fund to the original amount,
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(e) The
securIty fund deposIted pursuant to this
SectIon shall become the property of the City in the event
that the franchIse IS revoked for cause by reason of the
default of the Grantee.
The Grantee, however, shall be
entItled to the return of such security fund, or portion
thereof, as remaIns on deposIt no later than ninety (90) days
after the eXpIratIon of the term of the franchise, provided
that there 1S then no outstandIng default on the part of the
Grantee.
(f) The rights reserved to CIty w1th respect to the
securlty fund are In addItion to all other rIghts of City
whether reserved by th1S ordInance or author1zed by law, and
no actlon, proceeding, or exerCIse of a rIght WIth respect to
such security fund shall constItute an electIon of remedIes or
a waIver of any other rIght City may have.
SECTION 63024. LIOuIdated Damaaes.
- -
By acceptance of the franchise granted by City, Grantee
understands and shall agree that fa11ure to comply WIth any
time and performance reqUIrements as stIpulated in this
Chapter and the FranchIse Agreement, WIll result In damage to
CIty, and that It is and will be impractIcable to determine
the actual amount of such damage In the event of delay or
non-performance,;
the
Franchise
Agreement shall include
proviS10ns for lIquidated damages to be paId by Grantee} in
amounts set forth in the FranchIse Agreement and chargeable to
43
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the security fund for the occurrence of any of the following
events:
(a) FaIlure
reconstructIon in
to complete
accordance wIth
system construction or
SectIons 63030 ~ se~.,
unless the CIty CouncIl specIfically approves the delay by
motion or resolution, due to the occurrence of conditions
beyond Grantee's control.
(b) Failure to provide upon written request, data,
documents, reports, information, or to cooperate wIth CIty
durIng a franchIse renewal or transfer process or cable
communicatIons system reVIew.
(cl Failure to test, analyze, and report on the
performance of the system followIng a written request pursuant
to thIS Chapter.
(d) For failure to provide in a continuing manner the
types of serVIces proposed In the accepted application, unless
the City CounCIl speCIfIcally approves Grantee a delay or
change, or Grantee has obtaIned modificatIon of its oblIgatIon
under SectIon 625 of the Cable CommunIcations POlICY ~ct of
1984.
(el Failure of Grantee to comply with operational,
maIntenance, or technIcal standards.
(f) ~ny other action or nonaction by Grantee, as agreed
upon between City and Grantee, and set forth in the FranchIse
Agreement. Nothing In this Section shall preclude further
liquidated damages as agreed upon by the parties in the
Franchise Agreement.
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(g) If the City Hanager concludes that a Grantee 1S
lIable for liqUIdated damages pursuant to thiS Section, he or
she shall lssue to Grantee by certIfIed mall a notIce of
Intention to assess lIqUIdated damages. The notice shall set
forth the bas1S for the assessment, and shall inform Grantee
that liquidated damages w1ll be assessed from the date of the
notice unless the assessment notice is appealed for hearIng
before the City Council and the City Council rules: (1) that
the VIolatIon has been corrected, or (2) that an extenSIon of
time or other relief should be granted. A Grantee desir~ng a
hearing before the CIty Council shall send a written notIce of
appeal by certified mail to the City Manager WithIn 10 days of
the date on which the CIty sent the notice of IntentIon to
assess lIqUIdated damages. The hearing on the Grantee's
appeal shall be Within thIrty (30) days of the date on which
CIty sent the notIce of intentIon to assess liquidated
damages. At any time after the expiration of the appeal
period or after a hearing, if the City Council sustains In
whole or in part the City Manager's assessment of liquidated
damages, the City Manager may at any time thereafter draw upon
the security fund or letter of credIt required by Section
63023. Unless the CIty CounCil Indicates to the contrary,
said llquidated damages shall be assessed beginning wlth the
date on WhlCh City sent the notice of the intention to assess
the l~quldated damages and continuing thereafter until such
tlme as the v10lat~on ceases, as determlned by the City
Manager.
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SECTION 63025.
(a) Grantee
granted Indemnify,
Indemnificatlon.
shall by acceptance of any franch1se
defend, and hold harmless City, its C1ty
Council, boards and comm1ssions, officers, agents, servants,
and employees from any and all claims, SUIts, Judgments for
damages or other relief, costs, and attorneys' fees 1n any way
ar1sing out of or through:
(1) The act of CIty 1n granting the franchise.
(2) The acts or omissions of Grantee, its
servants, employees, or agents Including, but not llmited to,
any failure or refusal by Grantee, 1ts servants, employees, or
agents to comply with any obl1gatIon or duty Imposed on
Grantee by thIS ord1nance or the franchIse agreement.
(3) The exerC1se of any rIght or privilege
granted or permItted by thiS ordinance or the franchise
agreement.
Such IndemnIficatIon shall include, but not be limited
to, all claims arISing 1n tort, contracts, 1nfringements of
copyright, v1olatlons of statutes, ordinances, regulat10ns or
otherw1se.
(b) In the event any such cla1ms shall arise, the City
or any other 1ndemn1fied party shall tender the defense
thereof to Grantee. Prov1ded, however, that City in Its sole
dIscretion may part1cipate in the defense of such cla1ms at
Its expense, and in such event, Grantee shall not agree to any
settlement of cla1ms wIthout CIty approval.
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SECTION 63026. Insurance.
(a) Reaulred Insurance.
Grantee
shall
maintain
throughout the term of the franchise insurance in amounts at
least as follows:
(1) Worker's Compensation In~urance. As required
by the California Labor Code and Employee Liability Insurance.
(2) Broad Form Comorehenslve General~iability.
Comprehenslve general llablllty insurance, including, but not
limIted to, coverage for bodily Injury, personal inJury, and
property damage, and broadcaster's liability, shall be
malntalned at the surn(s) specified in the franchise agreement.
(3) Comorehenslve Automoblle Llabilitv.
Comprehensive automobile liability Including, but not limited
to, non-ownershlp and hIred car coverage as well as owned
vehlcles with coverage for bodily InJury and property damage
shall be malntalned at the sum(s) specified in the franchise
agreement.
(4) Qubcontractor Gover~ge.
(a) Grantee shall include any of Its
subcontractors as insureds under the poliCies of insurance
requIred herein, or alternatlvely, shall provide to City
certificates of lnsurance and binding endorsements evidencing
satisfactory
compliance
by each subcontractor with the
Insurance requlrements stated hereIn.
(bl VerificatIon
o~
Insurance.
Grantee
shall furnish to City satisfactory certiflcates of lnsurance,
caples of each Insurance policy, and orIgInal endorsements
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affecting coverage required and fully complying with all
Insurance spec1.f1.CatIons stated herein. Each such orlginal
endorsement shall be signed by a person authorlzed by that
particular Insurer to bind coverage on its behalf.
(c) AcceDtabll~ty
of
Insurers.
Each
requIred Insurance POlICY shall be procured from insurance
companIes with a mInimum rating of B ~ X or better by A.M.
Best's rating service.
(d) Deductibles and Self-Insured Retentlon.
Any deductibles or self-insured retention on the insurance
polic1es required hereln shall be declared to City and be
subject to CIty's wrltten approval, At the sole discretIon of
CIty, eIther (1) the Insurer may be requlred to reduce or
elImInate such deductibles or self-insured retentions as
respects City, its officlals, and employees; ~ (2) Grantee
may be required to procure a bond guaranteeing payment of
losses,
related lnvestigatlon, clalm admlnistratlon, and
defense expenses.
(e) Notlces
Pertaininq
to
Insurance
PollCles.
Each policy of Insurance shall requIre thirty (30)
days prlor written notice of cancellations, non-renewalJ or
material changes 1n the terms of such pollcy. Notice thereof
shall be gIven to city by regIstered mail, return receipt
requested, for all of the above-stated insurance pOllcles.
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(f) Additional Reauirements for Insurance
PolICIes.
(1) This
Insurance
shall
not be
cancelled,
lImited In scope of coverage or limIts, or
non-renewed until thirty (30) days written notice has been
gIven to City.
(2) The CIty of Santa Monica, members
of Its CIty CouncIl, boards and commIssions, offIcers, agents,
volunteers, and employees are Included as addItIonal Insureds
with regard to damages and defense of claims arIsing from (1)
actIvitIes performed by or on behalf of Grantee, (Ii) products
and completed operations of Grantee, or (Ill) premIses owned,
leased, or used by Grantee. The coverage shall contaIn no
special lImitatIons on the scope of protection afforded to the
City, its offIcers, agents, volunteers, or employees.
(3) Grantee's Insurance coverage shall
be primary with respect to the CIty, its officers, agents,
volunteers, and employees. It IS agreed that any insurance or
self-insurance maIntained by CIty shall apply In excess of and
not contrIbutory WIth, insurance prOVIded by the POlICY.
(4) Insurers shall have no rIght of
recovery or subrogatIon against CIty (including Its offIcers,
employees, volunteers, and other agents and agencies), it
being the IntentIon of the parties that the insurance poliCIes
so effected shall protect both parties and be primary coverage
for any and all losses covered by the above-described
insurance.
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(5) The above-descrIbed policies shall
apply separately to each lnsurance company against whom claim
is made or suit 15 brought except with respect to the lImits
of the insurance company's Ilablllty.
(6) The lnsurance company issuing the
policy or policIes shall have no recourse against the City for
payment of any premiums or for assessments under any form of
pollcy.
(7) Any and all deductibles in the
above-descrIbed Insurance polICIes shall be assumed by and be
for the account of, and at the sole rIsk of, Grantee.
(8) A.ny
faIlure
to
comply
WIth
reportIng prOVISIons of the policies shall not affect coverage
provided to the City, Its officers, employees, agents, or
volunteers.
(g) The m1n1mum amounts set forth in the
franchlse agreement for such Insurance shall not be construed
to lImit the liability of Grantee to C1ty under the franchIse
issued hereunder to the amounts of such insurance.
Subchapter 13E.
Deslon and Construction PrOVISIons,
SECTION 63027. System DesIon. The cable communlcatlons
- -
system shall be constructed in accordance wlth the des1gn}
constructIon, or reconstructIon reqUIrements contained in the
franchise agreement.
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SECTION 63028.
Geoqra~nlcal CQverage.
Grantee shall
des~gn and construct the cable system in such a manner as to
have the capabIlity to pass by every dwellIng unIt, includIng
mobllehomes
and
trailers,
school, publIC or nonprofit
corporation, busIness, or agency within the franchIse area.
ServIce shall be provided to subscrIbers in accordance WIth
the schedules and lIne extenSIon policies specified in the
franchIse agreement. Cable system construction and provision
of service shall be non-dIscrIminatory, and Grantee shall not
delay or defer serVIce to any sectIon of the franchise area on
the grounds of economic preference.
SECTION 63029. Cablecastlna FacilIt~es. Grantee shall
provIde
cablecastlng
faCllltles in accordance wlth the
requirements of the franchIse agreement.
SECTION 63030. ~vstem Construction Schedule.
(a) Grantee shall comply WIth the requirements of the
system constructIon or reconstruction schedule contained In
the franchIse agreement.
(b) Grantee shall provIde a detaIled construction plan
indIcatIng progress schedule, area constructIon maps, test
plan, and projected dates for offering serVIce.
In additIon,
Grantee shall update this InformatIon on a monthly baSIS,
shOWIng speCIfIcally whether schedules are beIng met and the
reasons for any delay.
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SECTION 63031.
Delav 1n ConstructIon. Grantee shall
make a good faIth and d1l1gent effort to obtaIn all necessary
permits and clearances.
Wlth1n two (2) months after the
effectIve date of a franchIse, Grantee shall report to CIty
its estimate of the inItial constructIon or reconstruction
date.
The initial date estImated after two (2) months may be
used by City as the presumptIve construction or reconstruction
startIng date, WIth all construction requirements based on
that date, provided} however} that Grantee may adJust Its
estimated InItIal date upon a showing of delays WhICh are
beyond Its reasonable control or WhICh are not reasonably
foreseeable.
SECTION 63032. PrOVIsIon of SerVIce. After serVIce has
been established by actIvating trunk cables for any area,
Grantee shall provlde service to any requesting subscrIber
WIthin that area WIthIn thlrty (30) days from the date of
request.
SECTION
63033.
Underoroundlnc
- -
of
Cable.
The
undergroundlng of cable is encouraged.
Cables shall be
installed underground at Grantee's cost where utilitIes are
already underground. Previously installed aerial cable shall
be
undergrounded
and
relocated In concert, and on a
cost-sharIng basls, WIth other utIlitIes, when such other
ut11Itles may convert from aer1al to underground constructIon.
52
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SECTION
63034.
New Develonment
Underaroundlna.
- -
In
cases of new constructIon or property development where
util1tles are to be placed underground, upon request by
Grantee, the developer or property owner shall give Grantee
reasonable notIce of the particular date on which open
trenching will be available for Grantee's Installation of
conduIt, pedestals and/or vaults, and laterals to be provided
at
Grantee's
expense.
Grantee
shall
also
provIde
specIfIcations as needed for trenchIng.
Costs of trenching and easements required to bring
service to the development shall be borne by the developer or
property owner; except that If Grantee falls to install its
condUIt, pedestals and/or vaultsJ and laterals within five (5)
working days of the date the trenches are avaIlable, as
designated in the notIce gIven by the developer or property
owner, then should the trenches be closed after the fIve (5)
day period, the cost of new trenchIng shall be borne by
Grantee.
SECTION 63035.
Undercroundlna at Multiole Dwellinc
- -
UnIts.
In cases of multiple dwellIng unIts servIced by aerial
utIlItIes, Grantee shall make very effort to minimIze the
number of IndIVIdual aerIal drop cables gIving preference to
undergrounding of multiple drop cables between the pole and
the dwellIng unit. The burden of proof shall be upon Grantee
to
demonstrate
why
undergrounding
of drop cables is
technIcally or economically unfeaSIble.
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SECTION 63036. Location of PrODertv of Grantee.
- -
(a) Any
Wlres,
cable
lInes, conduIts, or other
properties of the Grantee to be constructed or installed in
streets shall be so constructed or Installed only at such
locations and in such manner as shall be approved by the
General Serv1ces Director and sUbJect to all provls1ons of
this subchapter.
(b) Grantee
shall
not install any facilities or
apparatus In or on other publIC property, places, easements,
or rights-af-way, or within any prlvately-owned area within
the CIty WhIch has not yet become a publIC street but 1s
deslgnated or delineated as a proposed public street on any
tentatIve subdivision map approved by the Clty, except those
installed in or on public utIlIty faCIlities now existing,
without obtaIning the prIor wrItten approval of the General
SerVIces Director and WIthout paying for the use of such
property.
(c) Grantee shall cause a key map and detailed plat
maps of the entIre system, ShOWIng materIals of construction
and horizontal and vertical locatIons with respect to property
lines and grade lInes, to be prepared by a registered
professlonal CIVIL engIneer or a licensed land surveyor and
flIed in the office of the General Servlces Director prior to
the issuance of a permIt for constructIon, or withIn ninety
(90) days after the grantIng of a franchise to operate and
maintain facilities existIng prlor to the adoptIon of this
SectIon. Prior to requestIng the Issuance of a permIt for the
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lnstallatlon of any facility or apparatus in accordance with
the provisions of thIS Section, Grantee shall file such key
map and detalled plat maps with all utIlity companies and
public
agenCIes
whose facilltles are affected by such
Installation and obtain a statement signed by a respons~ble
official thereof that such utllity or publlC agency has no
objectIon to the proposed location of such faci11ty. Such
utility companies and public agencies shall act upon a request
made to them by a Grantee in accordance wlth the foregOIng
provisions WIthIn thirty (30) days after such request has been
made to such uttlity or publIC agency.
(d) Grantee, upon the request of any person or agency
who has contracted to perform work on a public right-of-way,
shall prOVIde accurate detaIled InformatIon to such person or
agency
regarding the locatIon of any of the Grantee's
facilIties
In
such rIght-of-way.
Such information, if
requested, shall lnclude sending a representative familIar
With the Installatlon of cable facilities to the site of the
work to mark or deSIgnate the locatIon of the faCIlities of
Grantee.
(el In order that the proviSIons of thIS Section may be
reasonably applied, in instances where extreme or unnecessary
hardship would result from carrying out the proviSions of this
Section, the City Council shall have the power to vary the
mandatory prOVisions of thIS Sectlon in any specifIC case in
such a manner that substantial Justice is done upon a showing
by Grantee of good cause therefor.
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SECTION 63037. Standards for Use of st~eets.
( a ) All
transmission
and distribution structures,
lInes, and equipment erected by the Grantee wlthin the CIty
shall be so located as to cause mlnimum interference with the
rIghts and reasonable convenlenC& of property owners who
adJOln any of the said streets.
(b) In case of disturbance of any street, easement, or
paved area or other property the Grantee shall, at its own
cost and expense and In a manner and time perIod approved by
the City, replace and restore such street, easement or paved
area, or other property in as good a conditIon as before the
work lnvolvlng such disturbance was done.
( c ) The
Grantee,
at Lts expense, shall protect,
support, temporarIly dIsconnect, relocate in the same street
or other public place, or remove from the street or other
public place any property of the Grantee when required by the
General Services Director by reason of traffic conditions]
public
safety,
street
vacatIon,
freeway
and
street
construction, change or establishment of street grades, or the
installatIon of sewers, drains, water pipes, power lines,
signal lInes, tracks, or any other type of structures or
Improvements by public agenCIes; provided, however, that
Grantee 1n all such cases shall have the prIvileges, and be
subject to the oblIgations, to abandon any property of the
Grantee In place.
Upon the failure of the Grantee to commence, pursue, or
complete any work required by law, or by the provisions of
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this Chapter, or by lts franchIse, to be done in any street or
other publlC place wlthin the tIme prescribed, and to the
satisfactIon of the General SerVIces DIrector, the General
Services DIrector} at his optIon, may cause such work to be
done, and the Grantee shall pay to the City the cost thereof
in the ItemIzed amounts reported by the General SerVIces
Director to the Grantee WIthIn thIrty (30) days after receIpt
of such itemized report.
Clty shall be permItted to seek
legal and equitable relief to enforce the provisions of this
Section.
(d) Any poles or other fixtures places In or adjacent
to any street by the Grantee shall be placed In such manner as
to comply WIth all requirements of the City.
(e) Grantee shall, at the request of any person holding
a mOVIng permit issued by the CIty, temporarily raise or lower
its wires to permit the mOVIng of buildings. The expense of
such temporary removal or raIsing or lowerIng of WIres shall
be paId by the person requestIng the same, and Grantee shall
have the authority to require such payment In advance.
Grantee shall be gIven not less than forty-eIght (48) hours
notIce to arrange for such temporary WIre changes.
(f) Grantee shall notify CIty regardIng the need to
trim trees upon and overhanging streets of City so as to
prevent the branches of such trees from coming In contact wlth
the WIres and cables of Grantee; at the optIon of CIty, such
trImmIng may be done by City at the expense of Grantee, or by
Grantee under CIty'S supervIsion and dIrection of the expense
57
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of Grantee. When authorIzed, trimming shall be limited to the
area required for clear cable passage and shall not 1nclude
maJor
structural
branches
WhICh
materially alter the
appearance and natural growth habits of the tree.
SECTION 63038. Construction and TechnIcal Standards.
(8) ConstructIon Standards.
(1) Grantor Codes and Perm~ts.
Grantee shall
comply WIth all applicable CIty construction codes and permIts
procedures.
City shall be entItled to charge reasonable
permit and inspectIon fees to recover the speCIal nonrecurrIng
InspectIon costs Imposed by the construction or reconstruction
of the cable system, or by the constructIon, remodelIng, or
maIntenance of bUIldIngs, structures, or grounds withIn the
City and under control of Grantee.
(2) Comollance
WIth
S~~ety
Codes.
~ll
constructIon
practices shall be in accordance WIth all
applicable sections of federal and state occupational and
safety acts and any amendments thereto as well as all state
and local codes where applicable.
(3) Comoliance with Pole ~ttachment Standards.
~ll aerial construction shall comply WIth the practices
included In the Bell System Code of Pole LIne ConstructIon.
(4) Comollance
Wlt~
Electrical
Codes.
All
InstallatIon of electronic equipment shall be of a permanent
nature,
durable
and
Installed in accordance with the
prOVISions of the National Electrical Code (NatIonal Fire
ProtectIon ASSOCIatIon) and the National Electrical Safety
58
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Code (National Bureau of Standards), as amended, and all
appllcable state and local codes.
(5) 1\ntennas
and Towers.
Antenna supportlng
structure (towers) shall be designed for the proper loading as
specIfied In Electronics Industry ~ssoclation's R.S. 222-~
specifications.
(6) Comollance
With
AVIation
ReauIrements.
Antenna supporting structures (towers) shall be paInted,
lIghted, erected, and malntalned In accordance WIth all
applicable rules and regulations of the Federal AviatIon
AdmInistration and all other applIcable state or local codes
and regulatlons.
(7) ConstructIon Standar~~ ~nd ReqUirements. All
of Grantee's plant and equipment including, but not limited
to, the antenna slte, headend and dlstributIon system towers,
house connections,
structures, poles, WIre, cable, coaxIal
cable, fixtures and appurtenances shall be installed, located,
erected,
constructed,
reconstructed,
replaced,
removed,
repaired, maIntaIned, and operated In accordance WIth good
englneer1ng practIces, performed by experIenced maintenance
and constructIon personnel so as not to endanger or interfere
with improvements CIty may deem proper to make, or to
interfere In any manner WIth the rights of any property owner,
or to hinder or obstruct pedestrIan or vehIcular trafflc.
(8) Safety, NUIsance Reculrements. Grantee shall
at all tImes employ ordInary care and shall install and
maintaIn
In
use commonly accepted methods and devices
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preventing failures and 8cc~dents whIch are likely to cause
damage, InJury, or nUIsance to the publlC.
(b) Technical
Standard~.
The Cable Communications
System shall meet all technIcal gUIdelines of the FCC, and all
standards contained In the franchIse agreement.
(c) 1~~t
and CQmpllan~~ Pro~~dure.
Grantee shall
submit, withIn sixty (60) days after the effective date of the
franchise agreement, a detailed test plan describIng the
methods and schedules for test~ng the cable communIcatIons
system on an ong01ng baSIS to determine compliance with the
provisions of the franchise agreement. The tests shall be In
general conformance w~th the prOVIsions of the Standards of
Good
EngineerIng
PractIces
for
Measurements on Cable
TeleVISIon Systems, Issued by the National Cable Television
Associatlon, and performed at intervals no greater than twelve
(12) months. The tests may be wltnessed by representatIves of
City, and wr~tten test reports shall be submitted to CIty. If
more than ten percent (10%) of the locatIons tested fall to
meet the performance standards, Grantee shall be required to
indicate what correctIve measures have been taken, and the
entire test shall be repeated. A second failure of more than
ten percent (10%) may result, at City's option, in approprlate
remedies.
(d) SpeCIal Tests. At any tIme after commencement of
serVIce to subscrIbers, CIty may reqUIre add~tional tests,
full or partlal repeat tests, dIfferent test procedures, or
tests involVIng a specific subscriber's termInal. Requests
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for such additional tests will be made on the basis of
complaInts received or other eVIdence IndIcatIng an unresolved
controversy or sIgnIfIcant noncompliance, and such tests shall
be lImIted to the partIcular matter In controversy. City
shall endeavor to so arrange Its requests for such special
tests so as to mInImIze hardsh~p or inconvenience to Grantee
or to the subscriber.
SECTION 63039. Areawide InterconnectIon.
(a) InterconnectIon
ReqUIred.
Grantee
shall
Interconnect public usage channels of the cable communications
system with any or all other cable systems in adjacent areas,
upon the directIve of City.
InterconnectIon of systems shall
permIt Interactive transmission and reception of program
material,
and may be done by dIrect cable connection,
mIcrowave lInk, satellIte, or other approprIate method.
(b) InterconnectIon
Procedure.
upon receiving the
directive of City to interconnect} Grantee shall immedIately
Initiate negotIations WIth the other affected system or
systems, and shall report to city the results of such
negotiations no later than sixty (60) days after initiation.
(c) RelIef.
Grantee
may
be
granted reasonable
extenSIons of time to Interconnect or CIty may rescind Its
order to interconnect upon petItIon by Grantee to City. City
may grant said request If it fInds that Grantee has negotIated
In good faIth and has faIled to obtain an approval from the
system or systems of the proposed interconnectIon, or that the
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cost of the interconnection would cause an unreasonable or
unacceptable increase in subscrIber rates.
(d) CooDeratIon Reculred. Grantee shall cooperate wIth
any InterconnectIon corporatlon, regional Interconnection
authorIty or CIty, County, State, or federal regulatory agency
which
may be hereafter establIshed for the purpose of
regulatIng,
flnanclng,
or
otherWlse provIding for the
InterconnectIon of cable systems beyond the boundaries of the
franchlse area.
(e) Inltlal Technical ReCUlrements to ~ssure Future
InterconnectIon Gapabtlity.
(1) Every
Grantee
receIving a franchIse to
operate a cable communIcations system wlthin the franchlse
area shall use the same frequency allocations for commonly
provIded televisIon sIgnals so far as IS technIcally and
economIcally feasible.
(2) Grantee shall prOVIde local origInatIon and
access equipment that is compatIble throughout the area so
that VIdeocassettes or VIdeotapes can be shared by varIOUS
systems.
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subchapter 13F.
SerVIce ProvIsions.
SECTION
provIde the
63040. SerVIces to be ProvIded. Grantee shall
initIal serVices lIsted in the franchise
agreement. Services shall not be reduced without thIrty (30)
days prior notIfication to City.
(a) A franchIse applIcation or proposal for renewal
shall include a descriptIon of Grantee's system deSIgn and a
descrIption of programming and services being offered,
includIng optional premIum serVices, a description of
facilities being proposed for local origInation programmIng}
and facilItIes beIng offered to various communIty
lnstItutlons. The offer of programming and serVIces contaIned
withIn a Grantee's applIcatIon shall be deemed a binding offer
of such Grantee for and to the benefit of City and the
subscrIbers of Grantee. In the event a program originator
ceases to provide a servlce, or in the event Grantee
determines that other programming or cable serVIces may be of
greater benefIt to subscribers, Grantee may} SUbJect to to
subsections (a) and (b) of this Section, and upon thIrty (30)
days prIor wrItten notice to CIty, substitute serVIces. CIty
may Include categories of VIdeo programming or other serVIces
as franchIse requirements as provided by the Cable
CommunIcations PoliCY Act of 1984.
(b) The system, after the
substItute services, shall satisfy
IncorporatIon of such
the warranties made by
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Grantee to subscrIbers and potentIal subscribers In its
applIcation for a franchIse. The CIty CouncIl shall have the
right to reVIew any actual or proposed substItution of service
that Grantee has made or may make and may order a change
thereIn if It determInes, after a hearIng, that any warranty
has been violated, or that certaIn broad categorIes of vIdeo
or other informatIon programs that were committed by Grantee
In Its Proposal are not beIng dellvered. ~ny such order shall
issue only after a publIC hearIng has been scheduled and held;
and wrItten notice of such hearIng shall have been prOVided to
Grantee and to the public at least thirty (30) days prior to
such
hearlng.
Any such order may be enforced by an
approprIate actIon In the courts of CalifornIa or the United
States.
A Grantee shall not, In relatIon to this SectIon, be
deemed to have waived any rIght accorded to a franchIsed cable
teleVISIon operator ariSIng under the First Amendment to the
ConstItutIon of the UnIted States or Article I, SectIon 2 of
the CalifornIa ConstitutIon.
(c) NotWIthstanding subsectIons (al and (bl, Grantee
may, in accordance wlth the Cable CommunicatIons Policy Act of
1984, upon thIrty (30) days prior written notice to CIty,
rearrange, replace, or remove a partIcular cable service
reqUIred by the franchise if:
(1) Such serVIce 1S no longer avaIlable to
Granteej or
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(2) Such service is ava~lable to Grantee only upon
the payment of a royalty required under Section 801(b)(2) of
TItle 17, United States Code, WhlCh Grantee can document:
(i) Is substantially in excess of the amount
of such payment required on the date of Grantee's offer to
provIde such service, and
(il) Has not been specifIcally compensated
for through a rate Increase or other adjustment.
Notwithstanding subsectlons (a) and (b), Grantee may
take such actIons to rearrange a particular serVIce from one
service tIer to another, or otherwise offer the service, if
the rates for all of the serVIce tIers involved in such
actions are not subject to regulatIon.
SECTION 63041. ~asIc Cable Servl~e. The ~BaSIC Cable
SerVIce" shall lnclude any service tIer which includes the
retransmiSSIon of local television signals and shall lnclude
at least one channel for public access, one channel for
educatIonal access, and one for government access. This
serVIce
shall
be
provIded to all subscribers at the
establIshed monthly subscription rates.
SECTION 63042. BaSIC Radlo Serv~ce. The "Basic RadIO
Service" shall Include the prOVISIon of all audio services
designated
in
the
franchise
agreement,
includlng
retransmiSSIon of local broadcast FM radio slgnals, and cable
cast FM signals.
ThIS serVIce shall be provIded to all
subscrlbers at establIshed monthly subscriptlon rates.
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SECTION 63043.
Xpstltut~onal ServIce. If specified in
the franchIse agreement, the "InstItutional SerVIce" shall
include
the
provision of transmission and/or receptIon
servIces to InstItutIonal users, on a commercIal use basIs at
established rates. SerVIces may include the distr1bution of
video or non-VIdeo SIgnals.
SECTION
63044.
~dditlonal
Subsc r iber _ Services.
"AdditIonal Subscriber SerVIces," not included 1n the services
speclfled above, may be prOVIded eIther withIn the basIc cable
service rates or on a premIum basis, subJect to applIcable
law.
SECTION 63045. Local OrIcination Channel(s). Grantee
shall operate any cablecastlng studIOS on a h1gh-quality,
profeSSIonal baSIS for the purpose of providIng cablecast
programming responsive to local needs and Interests. The
prImary emphaSIS for the local orIgInatIon channel(s) shall be
on prOVIdIng communIty-focused programmIng that IS unavailable
to vIewers on broadcast teleVISIon channels.
SECTION 63046.
fVblic, E9ucatl9nal: and Government
(PEG) Access FacllitleS. Grantee shall provide the PEG access
faCIlities, Including channel capaclty, necessary Interface
eqUIpment, and cabling, to permit operatIon as speCIfied in
the franchise agreement.
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SECTION 63047.
Cable Channels for Commercial Use.
Grantee shall designate channel capacIty for commercial use as
requlred by applIcable law.
SECTION 63048. Leased Use of PEG Access FaCIlities. If
Clty determ~nes that a new service would be In the public
Interest and receIves a bona flde offer from a third party to
provide such a service, Grantee shall be offered the first
right of refusal to provide the serVIce on the same terms. If
Grantee declines to provIde the serVice, City may utilize
appropriate PEG access fac111tIes to accommodate that service.
SECTION 63049. Universal Connection. City may require
that all dwelllng units Within the franchise area shall be
connected phYSIcally to the cable system by Grantee by means
of drop cables terminating at each dwelling unit, whether or
not the dwelling unit's occupants deSire to subscrlbe to cable
serVIce. The cost and charges shall be determined at the time
such connectIon is required. Grantee shall be entitled to
recover
the
incremental cost of providing a universal
connectIon.
Subchapter 13G.
Operation and Maintenance.
SECTION 63050. Ooen Book~ and Records.
City shall have the right to Inspect at any tIme durlng
normal business hours all books, records, maps, plans, service
complaInt logs, performance test results and other like
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materIals of Grantee which relate to the operatIon of the
franchIse.
Grantee shall keep a separate record for the
franchlse at an office wIthIn the franchise area, WhICh record
shall show the items set forth hereIn. Grantee shall provide
such lnformation In such form as may be reasonably requIred by
city for said records.
If any of such books or records are not kept In the
local office, or upon reasonable request made available to
City, and If City shall determIne that an examinatIon of such
records 1S necessary or approprlate to the performance of any
of CIty'S duties,
then all travel and maIntenance expense
necessarIly Incurred In making such examinatIon shall be paid
by Grantee.
SECTION 63051. Records ReqUIred.
(a) In any event Grantee shall at all tImes maintain;
(1) The complaInt fIle required by SectIon 63063
herein.
(2) A full and complete set of plans, records,
and uas-builtU maps shOWIng the exact locatIon of all cable
communicatIons system equipment installed or In use in the
franchIse area, exclusive of subscrlber serVIce drops.
SECTION 63052. RIchts of Individuals.
(a) Non-DIscrImInatIon.
GranteE!
shall
not
deny
serVIce,
deny access, or otherWIse dIscrImInate against
subscrIbers, channel users, or general CItIzens on the basis
of sex, race, color, religion, ancestry, natIonal origIn, age,
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handicap, pregnancy, marItal status, family compositIon, or
the potentlal or actual occupancy of mInor children. Grantee
shall comply at all tImes with all other applIcable federal,
state, and local laws and regulatIons, and all executIve and
admInIstrative orders relatIng to nondIscrImInation WhICh are
hereby lncorporated and made part of thIS ordInance by
reference.
(b) Fairness ~nd ~cces~lb~llty. The entire system of
Grantee shall be operated 1n a manner consistent with the
prInCIple
of
fairness
and equal accessibIlity of its
faCllit1es, eqUIpment, channels, stUdIOS, and other serVIces
to all CItIzens, bUSInesses, publIC agenCIes, and other
entItles haVIng a legitimate use for the system, and no one
shall be arbItrarIly excluded from ItS use. ~llocatlon of use
of saId facilities shall be made according to the rules or
deCIsions
of
Grantee, City In its lawful exercise of
regulatory authorlty, and any state or federal regulatory
agencies affecting the same.
SECTION 63053. Continuitv of Service Mandatorv.
- -
(a) It shall be the right of all subscrIbers to
contlnue receIVIng serVIce lnsofar as theIr fInancial and
other oblIgations to Grantee are honored.
In the event that
Grantee elects to overbulld, rebuild, modify, or sell the
system, or CIty gIves notice of Intent to termInate or falls
to renew this franchIse, Grantee shall act so as to ensure
that
all
subscribers
receIve continuous, uninterrupted
serVIce.
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In the event of a change of franchisee, or in the event
a new operator acquires the system, Grantee shall cooperate
wIth
City,
new franchIsee, or operator in ma~ntalning
continulty of service to all subscribers. DurIng such period,
Grantee shall be entItled to the revenues for any period
during wh1ch it operates the system, and shall be entitled to
reasonable costs for Its services when It no longer operates
the system.
(b) In the event Grantee fails to operate the system
for seven (7) consecutIve days wIthout prIor approval of City
or wIthout just cause, CIty may, at its optIon, operate the
system Or deSIgnate an operator untIl such t1me as Grantee
restores serVIce under condItIons acceptable to City or a
permanent operator 1S selected.
If CIty IS requIred to
fulfill th1s oblIgatIon for Grantee,
then during such period
as CIty fulfIlls such oblIgatIon, City shall be entItled to
collect all revenues from the system, and Grantee shall
reImburse CIty for all reasonable costs or damages in excess
of the revenues collected by City that are the result of
Grantee's faIlure to perform.
SECTION 63054. Grantee Rules and Reaulatlons. Grantee
shall
have
the
authority
to
promulgate such rules,
regulatIons,
terms, and condItIons governing the conduct of
its bUSIness as shall be reasonably necessary to enable
Grantee to exerCIse ItS rIghts and perform Its oblIgations
under the franchise, and to assure an uninterrupted service to
each and all of ItS customers. Such rules, regulations,
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terms, and conditIons shall not be In conflIct wIth the
provisions hereof or applicable state and federal laws, rules,
and
regulations.
Such
rules,
regulations, terms and
conditions shall be flIed wIth CIty.
SECTION 63055.
Uniform and Vehicle Identiflc~tion.
Every employee of Grantee or its constructIon contractors or
subcontractors shall be clearly identlfied wIth the name of
Grantee visible to the publlc as a representatIve of Grantee.
Every
serVIce
vehicle
of Grantee or its construction
contractors or subcontractors shall also be clearly marked.
All letters and numbers on such vehicles shall be at least
three (3) inches high. Grantee employees and agents shall
also wear an IdentlfIcatlon badge wIth the agent's name and
photograph.
SECTION 63056. Equal OpportunIty froQrams. Throughout
the term of the franchIse, Grantee shall conduct its business
as an Equal Opportunity Employer.
In additIon, throughout the
term of the franchIse, Grantee shall maIntain a policy that
all employment declsions, practIces, and procedures are
conducted wIthout discrimInatIon in VIolatIon of state or
federal law on the basIs of an Individual's race, color,
religIon, age,
sex, natIonal orIgin, or phYSIcal or mental
handIcap.
Grantee's POlICY shall apply to all employment
actions lncluding advertiSIng} recruiting, hIrIng, promotion}
transfer,
renumeratlon,
selectIon for traIning, company
benefits}
diSCIplinary action} lay-off, and termination.
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carry out thIS policy through continued
dedication to a determlned and sustained effort to provide
Grantee
shall
equal employment opportunit1es.
Subchapter 13H.
Consumer ProtectIon.
SECTION 63057. Reauests for Cable SerVIce and ReDairs.
- -
(a) Grantee shall maintaIn an offIce In the serVIce
area WhICh shall be open not less than fifty hours per week,
with a mInImum eight hour day on weekdays and four hour day on
Saturdays. Grantee shall maintain a publicly 11sted toll-free
telephone with suffIcient communication lines and staff so as
to receIve requests for Inltlsting cable serVIce and requests
for repa1rs, bIllIng, or adJustments on a twenty-four (24)
hour a day basis.
(b) Grantee
shall
render efficient serVIce, make
repairs promptly} and Interrupt service only for good cause
and for the shortest time possIble.
Such interruptions,
insofar as possIble, shall be preceded by notice and shall
occur during a period of minimum use of the system. A written
log or an equIvalent stored In computer memory and capable of
access and reproductIon, shall be maintaIned for all service
Interruptions and requests for cable serVIce as reqUIred by
Section 63063.
(c) Grantee
shall
maintain suffiCIent repair and
malntenance
crews
capable
of responding to subscriber
complaInts or requests for serVIce withIn the follOWIng time
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periods after receipt or notlfication of the complaint or
request, including weekends. No charge shall be made to the
subscrIber for this service unless the serVIce request can be
demonstrated to be both repeated and non-cable system in
orlgln, or as a result of damage caused by subscrIber.
(1) Svstem Outaae. WIthln two hours of receiving
subscriber calls WhICh by number identify a system outage of
sound or plcture of one or more channels, affecting all
subscribers of the system or a consIderable number thereof.
(2) Isolated
Outace.
Wlthin
24
hours of
receIVIng a request for serVIce identlfYlng an isolated outage
of sound or pIcture for one or more channels.
(3) InferIor Receotion Oualltv. Wlthln 48 hours
- - -
of receiving a request for serVlce identIfYIng a problem
concerning pIcture or sound qualIty.
Grantee shall be deemed to have responded to a request
for serVlce under the prOVISIons of this Sectlon when a
technlclan arrives at the service location, and in the case of
(1)} (2), and (3) above, leaves wfltten notificatIon of such
arrival
after
makIng reasonable efforts to notify the
subscriber of the technIcian's presence.
SubscrIbers
not satisfled that services have been
provlded as outlIned In Chapter 13, ArtIcle VI of the Santa
Monica MunIcipal Code and the FranchIse Agreement may notIfy
the System Manager.
Upon notlflcatIon by SUbscflber, the
Grantee shall work WIth the subscriber to cure the failure of
service WIthin 48 hours. If the failure is not cured within
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that tIme period, Grantee shall credIt the subscrIber's
account on a pro rata baSIS for loss of serv~ce commenCIng
from the time of notIfIcatIon by subscriber to Grantee.
Grantee shall at the t~me of initial subscrIption to the
system,
and
annually
thereafter, furnlsh a notIce to
subscribers of their right to a refund for any loss or
interruption of serVIce for 48 hours or more.
SECTION 63058. Comolalnt Procedure.
(a) Procedure~. Grantee shall establIsh procedures for
receIVIng, actIng upon, and resolving subscriber complaInts to
the satIsfaction of the Clty Manager. Such procedures shall
include a method for resolVIng subscrIber complaInts without
interventIon by CIty and shall prescrIbe the manner In WhICh a
subscrIber may submit in wrItIng a complaint that Grantee has
violated any provision of thIS Chapter, or the terms and
conditions of the subscriber's contract WIth Grantee and the
manner In WhICh the Grantee WIll promptly resolve such
complaInt.
Grantee shall furnish a notice of such procedures
to each subscrIber at the tIme of InItial subscriptIon to the
system, and annually thereafter.
(b) ComplaInts to Grantee. Any subscrIber who cannot
resolve a dIspute with the Grantee may fIle a complaint with
the
Grantee
on a form approved by the CIty Manager.
ImmedIately upon receIpt of a complaint from a subscriber,
Grantee shall assign a case number to such complaInt and send
to the complaIning subscrIber written acknowledgment of
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recelpt of the complaint as well as a descr1ption of the
complaInt resolutlon process.
(c) Grantee
Invest1oation.
Upon
receipt
of
a
Subscr1ber Statement of Complaint, Grantee shall conduct an
Investigation of the subscrIber complaInt. Grantee, withIn
ten (10) days of receIVIng the complaint, shall not1fy the
subscrlber In writIng of the results of the Investigation, Its
proposed action or reSOlutIon, If any and the reason for ItS
dec1sion.
Grantee shall also notify the subscriber of the
subscriber's right to file a request for hear1ng wIth C1ty in
the event the subscriber is dIssatisfIed wIth Grantee's
deCIsion.
SECTION 63059. Recuest for Hearina.
(a) ~ subscriber who is dlssatlsfled wIth Grantee's
decision or who was not sent a wrItten deCIsion wlthln the ten
(10) day period can file a request for a hearing with the City
Clerk withIn ten (10) days of receipt of Grantee's deCIsion or
if Grantee has faIled to issue a decision as reqUIred by
SectIon 63058(b), WIthin thIrty (30) days of filing of the
subscrIber's complaInt.
(b) The Clty shall notIfy the Grantee of the request
for a hearIng and the Grantee shall immedIately forward to the
CIty
copies of all materIals, includlng the complaint,
investigation reports, and deciSIons, related to the dispute.
The CIty shall set the matter for hearIng as prOVIded in
SectIon 63060 unless It Informally resolves the complaint to
the subscriber's satisfactIon WIthIn ten (10) days.
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SECTION 63060. Comolalnt Hearlncs Conducted bv Hearinc
- -
Of~lcer.
~ hearlng shall be conducted by a hearing officer
appoInted by City folloWIng notice 1n writIng speClfy~ng the
time and place for such hearing.
The hearing shall be
conducted in accordance with procedures established by the
City pursuant to Municipal Code Section 6126C-E and w111 be
scheduled within twenty (20) days of receipt of the request.
The hearing shall be conducted Informally, and the parties may
offer any eVIdence relevant to the dispute, which the hearing
officer
may
deem
necessary
to
an understanding and
determinatlon of the dispute. The decision of the hearing
officer shall be flnal and there shall be no right of appeal.
Grantee shall defray the full cost of the hearIng officer
proceedings.
In the event Grantee fails or refuses to advance
fees or costs as required by the hearIng officer, such fees or
costs
shall
be obtained from the securIty fund.
The
procedures provided in thiS Section shall not limit any common
law or statutory rIghts of subscribers.
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SECTION 63061. ComDlaint NotIficatIon. Grantee shall
provIde written notIce to each subscrIber at least once every
calendar year describIng the procedure establlshed by Grantee
for resolv1ng subscriber complaInts and of the subscriber's
right to have Grantee's response to a subscriber complaInt
revlewed by the C1ty 1n accordance with the proviSIons of this
ordinance. The notIce shall Include the name, business
address, and bUSIness telephone numbers of Grantee's office
and of City offlce designated to receIve complaints. The form
of the notice shall be subJect to the approval of Clty.
SECTION 63062. RemedIes for Vlolatlons. A hearIng
offlcer may, as a part of a subscrIber complaint decision
Issued under the provislons of this Chapter, impose a penalty
on Grantee as specified In the franchIse agreement. A penalty
may be lmposed only if the hearlng offIcer finds that Grantee
has arbitrarily refused or failed without justification to
comply WIth the provisions of this Chapter} including, but not
limlted to, fallIng to prOVIde a wrItten response to a
subscriber complaInt.
SECTION 63063. Comolalnt FIle and Reoorts. An accurate
and comprehenslve file shall be kept by Grantee of any and all
complaints regarding the cable system. All service complaint
records shall be retaIned on file for a period of three (3)
years. Complete records of Grantee's actIons in response to
all complaInts shall be kept. These flIes and records shall
include:
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(a) A summary of complaints, identIfying the number and
nature of complaInts} the date and time complaInts were
received, and theIr disposltlon, In a form approved by CIty.
A copy of the summary shall be completed for each month and
submitted to CIty by the tenth day of the succeeding month.
(b) A wrItten or computer-stored log and summary of all
serVlce InterruptIons.
(c) A wrItten or computer-stored log and summary of all
requests for cable service and theIr dlSposltlon.
(d) The results of an annual opinion survey report
WhICh
IdentIfIes
satIsfaction
or dissatisfaction among
subscrIbers WIth cable communIcatIons serVIces offered by
Grantee.
A copy shall be submItted to CIty no later than two
(2) months after the end of Grantee's fiscal year. The survey
requIred to make saId report shall be In a format approved by
CIty and may be In a form that can be transmitted to
subscribers WIth one or more bIlls for service, such as
postage-pald self-addressed postcards.
SECTION
63064.
Tenant RightliS.
Grantee shall be
requIred to provide service to tenants in indlvldual units of
a multiple hOUSIng faCIlIty with all services offered to other
dwellIng unIts within the franchIse area, so long as the owner
of the facilIty consents in writing, if requested by Grantee,
to the follOWIng:
(a) Grantee's prOVIdIng of the service to units of the
faCIlity.
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(b) Reasonable condltlons and times for installation,
maintenance, and InspectIon of the system on the facility
premises.
(c) Payment to owner by Grantee of reasonable fees for
access to property.
(d) Reasonable conditions promulgated by Grantee to
protect Grantee's equipment and to encourage widespread use of
the system.
(e) ~bsence of additIonal rental charges for tenants
who receIve cable service.
SECTION 63065.
CIty Riqhts.
When there have been
similar complaints made or when there exists other evidence
WhICh, in the Judgment of the City Manager, casts doubt on the
relIabilIty or quality of cable service, the City Manager may
require
Grantee
to
test, analyze, and report on the
performance of the system. Such report shall be delIvered to
the City Manager no later than fourteen (14) days after the
CIty Manager notIfies Grantee of the required report and shall
Include
the
following InformatIon:
the nature of the
complaints which precIpitated the special tests; what system
component was tested, the eqUIpment used, and procedures
employed in saId testIng; the results of such test; and the
method in WhICh sald complaints were resolved. If requested,
the CIty Manager may allow Grantee additional tIme to complete
the report for good cause.
The City Manager may reqUIre that tests and analyses
shall be superVIsed by a professional engIneer not on the
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permanent staff of Grantee. ~fter the engineer has sIgned all
records of the speCIal tests they shall be forwarded to the
CIty Manager with a report interpreting the results of the
tests and recommending actIons to be taken by Grantee and
CIty.
The City Manager may require tests, analyses, and
reports coverIng specIfIC subjects and characteristics based
on
complaInts
or
other evidence when and under such
CIrcumstances as the City has reasonable grounds to believe
that the complaInts or other eVIdence requires that tests be
performed to protect the public agaInst substandard cable
service.
Grantee shall be responsIble for the costs of any
and all tests, analyses, and reports reqUIred under thIS
Section.
SECTION 63066.
Privacv.
(a) Each Grantee shall strlctly observe and protect the
rights of privacy and of property of subscrIbers and users at
all times.
Information on indIVIdual subscrIbers, IndiVIdual
subscriber preferences of any kind Including, but not lImited
to,
VIewing
habits,
politIcal,
social,
or
economic
philosophIes, beliefs, creeds, religions, shopping choices,
Interests, opInions, energy uses, medIcal information, banking
data
or information, or names, addresses, or telephone
numbers, or any other personal or prIvate information, shall
not be maIntaIned or revealed to any person, mailing serVIce,
lnvestigatlng agency or department, company, other agency, or
entity unless upon the authority of a court of law or upon
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prlor wrItten permission of the subscrlber. The request for
permiSSIon must be contained In a separate document wIth a
promlnent statement that the subscrIber IS authorIZIng the
permlssion
In
full
knowledge of its proviSIon.
Such
authorizatIon shall not in any event be required as a
conditlon of recelving serVIce.
(b) Grantee may release the number of its subscrIbers
but only as a total number and as a percentage of the
potentlal subscrIbers throughout the CIty. When indicatIng
the number of subscribers vIewlng a particular channel at a
partIcular tlme, Grantee shall indicate only the total number
of subscrIbers viewing durIng the relevant tIme and the
percentage of all subscribers which they represent, but never
the IdentIty of a particular subscrIber.
provide such lnformation to City upon request.
(c) ~t the time of entering into an agreement to
Grantee shall
provIde any cable serVIce or other service to a subscriber and
at least once a year thereafter, a cable operator shall
provide notice in the form of a separate, written statement to
such subscrIber which clearly and conspIcuously Informs the
subscrIber of:
(1) The
nature
of
personally
ldentlflable
InformatIon collected or to be collected wlth respect to the
subscrlber and the nature of the use of such information.
(2) The perIod during which such information Will
be maIntaIned by the cable operator.
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(3) The times and place at which the subscriber
may have access to such Information In accordance with
subsection (f).
(4) The limitations provIded by thIS Section with
respect to the collectlon and disclosure of information by a
cable operator and the right of the subscriber under state and
federal law to enforce such limitations.
In the case of subscribers who have entered Into such an
agreement before the effective date of thIS Section, such
notice shall be provided wlthln 180 days of such date and at
least once a year thereafter.
(d) Information collected on individual subscrIbers
shall be limited to Informatlon that IS relevant and necessary
to provislon of the services requested by subscribers.
(e) Grantee shall be responsible for the accuracy,
relevance, and completeness of any information collected,
maintained, and revealed about indiVidual subscribers.
(f) ~ cable subscriber shall be provided access to all
personally Identifiable informatIon regarding that subscriber
which is collected and maintained by a cable operator. Such
information shall be made avaIlable to the subscriber at
reasonable tImes and at a convenIent place deSIgnated by such
cable
operator.
~ cable subscriber shall be prOVIded
reasonable
opportunIty
to
correct
any error In such
information.
(g) Grantee
may
malntaln such informatIon as IS
necessary to bill subscribers for the purchase of any system
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service.
Grantee may contract for billing servIces, With the
wrItten consent of the City provided that such contractor
agrees to be bound by the_ prOVISIons of this Section and the
penalties thereto pertaIning.
(h) Neither Grantee nor any other person shall inltlate
In any form, the discovery of any information on or about a
subscriber's premlses wIthout prIor valId authorizatIon from
the SUbscrIber potentIally affected.
(i) A
subscriber
may
at
any
tIme revoke any
authorizat10n 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
franchisee.
(J) No monitoring of any subscrIber terminal shall take
place without speciflc prior valId wrItten authorization by
the user of the termInal In question; provided, however, that
Grantee may conduct systemWide or IndIvidually addressed
"sweeps" for the sole purpose of verifYIng system integrity.
Grantee shall not InItIate a subscriber response mechanism
without a finding by the City Manager that the response
mechanlsm can operate effectIvely and yet gIve absolute
protection agalnst any invaSion of privacy.
(k) Grantee shall not tabulate any test results, nor
permit the use 01 the system for such tabulation, which would
reveal the commercIal product preferences or opInIons of
indIvidual subscrlbers, members of their familIes or theIr
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invltees, lIcensees, or employees without prior valid wrItten
authorizatIon of the subscrIber.
(1) 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.
Subchapter 131.
RIghts Reserved to CIty.
SECTION
63067.
Right of Eminent Domain.
NothIng
contaIned In thIS Chapter shall be deemed or construed to
impair or affect, in any way, to any extent, the right of city
to acquire the property of 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 contaIned in this Chapter shall be
construed to contract away or to modify or abridge, eIther for
a term or in perpetuity, the CIty'S rIght of emInent domain.
SECTION 63068.
RIchts AuthorIzed bv Citv Charter or
Ordinanc~.
There IS hereby reserved to CIty every right and
power WhICh is required to be reserved by the proviSIons of
this Chapter or by any law of the CIty, and Grantee, by its
acceptance of any franchIse, agrees to be bound thereby and to
comply WIth any actIon or reqUIrements of the CIty in Its
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exerClse of such Skllls or power heretofore or hereafter
enacted or established.
SECTION 63069. Rlaht to Amend Chapter. There IS hereby
reserved to the CIty the power to amend any Section of thls
Chapter so as to reqUIre addItIonal or greater standards of
constructIon, operatIon, maIntenance, or otherWise on the part
of Grantee.
SECTION 63070.
Rlaht to Exer~~s~ Other Governmental
Powers.
NeIther the grantIng of any franchIse under the
prOVIsions of thIS Chapter nor any proviSIon of thIS Chapter
shall constitute a waIver or bar to the exerCIse of any
governmental rIght of power of City.
SECTION 63071.
RIght to Bring an ~ctlon. The Clty
Council may take such actions as are necessary and convenIent
in the exercise of its JurISdIctIon under the prOVIsions of
thIS Chapter.
SECTION 63072.
RICht of Insoection of ConstructIon.
City shall have the rIght to inspect all constructIon or
InstallatIon work performed subJect to the proviSIons of the
franchise and to make such tests as lt shall find necessary to
ensure complIance with the terms of this franchise and other
pertInent proviSlons of law.
SECTION 63073.
Ri9~t to Inspect FacilitIes. Grantee
shall allow City to make InspectIons of any of Grantee's
faci11ties and eqUIpment at any tlme upon reasonable notIce,
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or, in the case of emergency, upon demand without prior
notice.
SECTION 63074. R1Cht of InterventIon. CIty shall have
the rIght of Intervention in any SUIt or proceeding to which
Grantee
is
party,
and Grantee shall not oppose such
Intervention by City.
Subchapter 13J.
FranchIse Violations and Termination.
SECTION 63075. Remedies for Franchise VIolatIons. If
Grantee faIls to perform any obligation under the franchise,
or fails to do so in a timely manner, City may at its option,
and In its sole discretIon:
(a) Assess against Grantee monetary damages up to the
limits established In the franchise agreement for material
franchise vIolations, said assessment to be levied agaInst the
securIty fund, hereInabove provided, and collected by City
immediately
upon
said assessment.
The amount of such
assessment shall be deemed, without proof, to represent
lIqUIdation of damages actually sustained by City by reason of
Grantee's failure to perform.
Such assessment shall not
constitute a waIver by CIty of any other right or remedy it
may
have
under the franchise or under applicable law
including, wIthout lImitation,
Its right to recover from
Grantee such additional damages,
losses, costs and expenses,
IncludIng actual attorneys' fees, as may have been suffered or
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incurred by CIty by reason of or arIsing out of such breach of
the franchise.
ThIS provls1on for assessment of damages is
intended by the partIes to be separate and apart from CIty'S
right to enforce the provlsions of the constructIon and
performance bonds provIded for In Sections 63021 and 63022,
and is Intended to provide compensation to CIty for actual
damages.
(b) TermInate the franchise, for any of the causes
stated in SectIon 63078, below, or other materIal breach of
the franchIse.
CIty may, In lts sole Judgment and dIscretion, impose
any or all of the above-enumerated measures against Grantee,
which shall be In additlon to any and all other legal or
equitable remed1es it has under the franchise or under any
applicable law.
No remedy shall be imposed by CIty against
Grantee for any vlolat1on of the franchise wIthout Grantee
beIng afforded due process of law, as provided for In Section
63079 below.
SECTION 63076.
Remedies for Qelay in ConstructIon.
CIty may Impose the followlng remedies with regard to delays
in new system constructIon, or maJor system reconstruction or
expansion:
(a) Reduction In the duration of the franchise on a
month-far-month baSIS for each month of delay exceedIng SIX
(6) months.
(b) ForfeIture of constructIon bonds and/or assessment
of monetary damages up to the maXImum per day and per incident
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limIts specIfied In the franchIse agreement, levied against
the securIty fund, for delays exceedIng one year.
(c) TermInation of the franchIse withln one year after
award of the franchIse If Grantee has faIled to InItIate
scheduled system constructIon or reconstructIon.
(d) TermInatIon of the franchise for delays exceeding
eIghteen (18) months.
~ny remedIes applied shall be in accordance wIth the
procedures contained In Section 63079 herein.
SECTION
63077.
rrQcedure for Remedvino Franchise
VIolations.
In the event that CIty determInes that Grantee
has Violated any prOVISIon of the franchise, any rule or
regulatIon promulgated pursuant hereto or any applIcable
federal,
state, or local law, City may make a written demand
on Grantee that It remedy such VIolatIon.
If the VIolation,
breach, failure, refusal, or neglect IS not remedied to the
satisfaction of City WithIn thIrty (30) days follOWing such
demand, City shall determIne whether or not such VIolatIon,
breach, failure, refusal, or neglect by Grantee was excusable
or inexcusable, In accordance with the following procedure:
(a) A public hearIng shall be held and Grantee shall be
prOVIded With an opportunIty to be heard upon thirty (30) days
written notIce to Grantee of the time and the place of the
hearing prOVIded and the allegatIons of franchIse violations.
(b) If, after notIce IS gIven and, at Grantee's option,
a full public proceeding is held, city determInes that such
VIolatIon, breach, failure, refusal, or neglect by Grantee was
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excusable as provided In Section 63081 below, CIty shall
direct Grantee to correct or remedy the same w~thIn such
addItIonal tIme,
in such manner, and upon such terms and
conditIons as City may dIrect.
(c) If, after notIce IS given and, at Grantee's optIon,
a full publIc proceeding is held, City determines that such
violatIon,
breach,
faIlure,
refusal,
or
neglect was
Inexcusable, then City may Impose a remedy In accordance with
SectIon 63075 above.
SECTION 63078. ForfeIture or RevocatIon.
(a) Ground~ for ~evocatlon. City reserves the right to
revoKe any franchise granted hereunder and rescind all rIghts
and priVIleges associated wIth the franchise In the event of a
material breach of thIS ordinance or the franchise agreement.
A material breach of the franchise shall Include, but not be
limIted to:
(1) If Grantee should default in the performance
of any of its materIal oblIgatIons under this ordinance or
under
such
documents, agreements, and other terms and
proviSIons entered Into by and between CIty and Grantee,
subJect to the prOVIsions of SectIon 63077.
(2) If Grantee should fail to provIde or maIntain
In full force and effect, the liabilIty and indemnificatIon
coverages or the securIty fund and bonds as required herein.
(3) If any court of competent jurisdIctIon, or
any Federal or State regulatory body by rules, decisions, or
other actIon determInes that any materIal prOVISIon of the
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franchIse documents, Including this ordinance, the franchise
agreement,
and
Grantee's
appl1catlon
15
invalId
or
unenforceable
prior
to
the
commencement
of
system
construction.
(4) If
Grantee should WIllfully violate any
orders or rulings of any regulatory body having jurIsdIction
over Grantee relat1ve to the franchise.
(5) If Grantee ceases to prOVIde serVIces of the
cable communicatIons system for any reason wIthin the Control
of Grantee.
(6) If Grantee attempts to evade any of the
proviSIons of thIS ordInance or the franchIse agreement or
attempts to practIce any fraud or deceIt upon CIty.
(7) If Grantee's constructIon} reconstructIon, or
system extension schedule IS delayed for more than eighteen
(18) months later than the schedule contained In the franchIse
agreement and City fInds that the delay was not excusable
under the prOViSIons of SectIon 63081.
(8) If Grantee becomes Insolvent, unable, or
unWillIng to pay Its debts} or upon listIng of an order for
relief In favor of Grantee in a bankruptcy proceedlng.
(b) Procedure Prior to RevocatIon.
(1) CIty may make wrltten demand that Grantee
comply with any such requirement, limItatIon, term, conditIon,
rule, or regulatIon or correct any actIon deemed cause for
revocatIon.
If the failure, refusal, or neglect of the
Grantee contInues for a perIod of thIrty (30) days following
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such written demand, City may place the Issue of termInatIon
of the franchlse upon a regular City Council meet~ng agenda.
C~ty shall cause a wrltten notlce of intent to request
termInation, includIng the t~me and place of the meeting, to
be served upon such Grantee at least ten (10) days prIor to
the date of such meetIng. Such notice shall be published In a
newspaper of general cIrculation within the franchise area at
least once, ten (10) days before such meetIng.
(2) City
shall
hear any persons Interested
thereIn, and shall determIne whether Grantee has committed a
material breach of th~s ordInance or the franchise agreement,
and, if so, whether such breach was Willful.
(3) If City determInes that Grantee has committed
a materIal breach, City may, by resolution, declare that the
franchise of such Grantee shall be termInated and security
fund and bonds forfeited, or the CIty may, at its option and
if the materIal breach is capable of being cured by Grantee,
direct Grantee to take appropriate remedial action WIthIn such
tIme and manner and upon such terms and conditions as City
shall determine are reasonable under the CIrcumstances. The
CIty
may
place
conditlons on any Grantee forfeiture,
including, but not limIted to, establIshing the date on which
such forfeIture shall become effective.
SECTION 63079. Procedures in the Event Qf Termination
or EXpiratIon.
(a) DlSposltlQn
of
FacJ.litles.
In the event a
franchise expIres, is revoked, or otherwise terminated, City
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may order the removal of the system facilitIes from the
franchIse
area
wIthIn a reasonable period of time as
determined by the CIty or require the orIginal Grantee to
maIntaIn and operate its cable system untIl a subsequent
Grantee is selected and a s~bsequent or modIfied cable system
becomes operatIonal. Grantee shall promptly, upon being given
ten (10) days notIce, remove from the streets or publIC places
all such property of such system other than any WhICh the
General SerVIces DIrector may permit to be abandoned In place.
In the event of such removal, Grantee shall promptly restore
the street or other area from which such property has been
removed to a condItIon satisfactory to the General SerVIces
DIrector.
Any property of Grantee remaIning in place thirty (30)
days after the termInatIon or expIration of the franchise
shall
be conSIdered permanently abandoned.
The General
SerVIces DIrector may extend such tIme not to exceed a
reasonable period.
(b) Abandonment of Pro~erty. Any property of Grantee
to be abandoned In place shall be abandoned in such manner as
the General SerVIces DIrector shall prescrIbe. SubJect to the
prOVISIons of any utIlity JOInt use attachment agreement, upon
permanent abandonment of the property of Grantee in place, the
property shall become that of City, and Grantee shall submIt
to the General SerVIces Director an Instrument In wrItIng to
be approved by the CIty Attorney,
transferrIng to City the
ownershIp of such property.
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(e) RestoratIon of Pro~erty.
In removIng its plant,
structures, and eq~lpment, Grantee shall refIll, at Its own
expense, any excavation that shall be made by it and shall
leave all public ways and places In as good condition as that
prevailIng prIor to Grantee's removal of its equipment and
appliances WIthout affectIng the electrical or telephone cable
WIres,
or
attachments.
The
lIability,
indemnity and
insurance, and the security fund and bonds provided shall
contInue In full force and effect durIng the period of removal
and until full compliance by Grantee WIth the terms and
conditions of this Section.
(d) Extended OperatIon. Upon either the expiration or
revocation of a franchise, CIty may require Grantee to
continue to operate the cable communicatIons system for a
defined period of tIme not to exceed twenty-four (24) months
from the date of such expIratIon or revocatIon. Grantee
shall, as trustee for Its successor In interest, contInue to
operate the cable communIcatIons system under the terms and
conditions of thIS ordinance and the franchise agreement and
to prOVIde the regular cable service and any and all of the
other serVIces that may be provlded at that tIme. CIty shall
be permitted to seek legal and eqUItable relief to enforce the
provlslons of thIS SectIon.
(e) Gran~or<s RIght ~ot ~ffected. The termination and
forfeiture of any franchise shall In no way affect any of the
rIghts of CIty under the franchise or any provision of law.
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SECTION 63080. ReceivershiD and Foreclosure.
(a) ~ny franchlse granted shall, at the option of City,
cease and termInate one hundred twenty (120) days after the
appOIntment of a rece~ver or receivers or trustee or trustees
to take over and conduct the business of Grantee whether in a
recelvershlp, reorganIzation, bankruptcy, or other action or
proceedIng unless such receivership or trusteeship shall have
been vacated prior to the explration of saId one hundred
twenty (120) days, or unless:
(1) Such receIvers or trustees shall have wlthin
one hundred twenty (120) days after their election or
appointment, fully complied wlth all the terms and provislons
of thIS ordinance and the franchIse granted pursuant hereto,
and the receIvers or trustees wlthln saId one hundred twenty
(120)
days shall have remedied all defaults under the
franchIse; and,
(2) Such receivers or trustees shall, within saId
one hundred twenty (120) days, execute an agreement duly
approved by the Court haVIng JurIsdictIon on the premises,
whereby such receIvers or trustees assume and agree to be
bound by each and every term, provlsion, and lImitation of the
franchise agreement.
(b) In the case of a foreclosure or other involuntary
sale of the plant, property, and equipment of Grantee, or any
part thereof, CIty may serve notice of termInatIon upon
Grantee and to the purchaser at such sale, in which event the
franchise and rIghts and prIVIleges of Grantee hereunder shall
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cease and terminate thIrty (30) days after service of such
notice unless:
(1) CIty
has
approved the transfer of the
franchIse, as and In the manner In thIS ordInance provided;
and
(2) Such
successful
purchaser
shall
have
covenanted and agreed with CIty to assume and be bound by all
the terms and condItions of the franchise agreement.
SECTION 63081. Grantee's InabIlity to Perform.
In the
event Grantee's performance of any of the terms, conditions,
obl~gations, or reqUIrements of the franch~se IS prevented or
ImpaIred due to any cause beyond Its reasonable control or not
reasonably foreseeable, such Inability to perform shall be
deemed to be excused and no penalties or sanctIons shall be
imposed as a result thereof, provided Grantee has notified
City in wrltIng WIthIn thirty (30) days of its discovery of
the occurrence of such an event.
Such causes beyond Grantee's
reasonable
control
or not reasonably foreseeable shall
Include, but shall not be lImIted to, civil emergenCIes.
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Subchapter 13K.
Re!,Qrt~.
SECTION 63082. Annual Reoorts. At CIty's sole opt1on,
wIthIn Slxty (60) days after the close of Grantee's fIscal
year, Grantee shall submit a written annual report, in a form
approved by C1ty, inelud1ng, but not limIted to, the following
informatIon:
(a) A summary of the previous year's (or, in the case
of the 1nltlal report year, the inItIal year's) actIvitIes In
development of the cable system1 Including, but not 11m1ted
to, serVlces begun or dIscontInued during the reportlng year,
and the number of subscribers for each class of service.
(b) A revenue statement, audited by an Independent
Certified Public Accountant1 or certIfied by an officer of the
Grantee.
(el A current statement of costs of construction by
component categorIes.
(d) A statement of prOJected constructlon for the next
two years.
(e) A list of Grantee's offIcers, members of Its board
of dIrectors, and other princlpals of Grantee.
(f) A list of stockholders or other equity Investors
holding fIve percent (5\) or more of the votlng Interest in
Grantee and its parent, SubSIdIary and affIlIated corporatIons
and other entItles, If any.
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(g) To the extent that money, other than profIts, is
paId to a parent, subsidiary, or other person affiliated wIth
Grantee, the amounts of such payments and the basis for
computatIon of such amounts (e.g., the basis for computing any
management fees or share of "home office" overhead).
SECTION 63083.
Plant Survey Report.
At city's sole
optIon, Grantee shall submIt to CIty an annual plant survey
report WhICh shall be a complete survey of Grantee's plant and
a full report thereon. SaId report shall include, but not be
lImIted to, a descrIptIon and "as-bUIlt" maps of the portions
of the franch~se area that have been cabled and have all
services available, an approprIate englneerlng evaluatIon
includIng
sUitable
electronlc measurements conducted In
conformIty
wlth
FCC gUIdelInes and franchIse technical
standards.
Said report shall be In suffiCIent detail to
enable City to ascertain that the serVIce requirements and
technical standards of the FCC and/or the franchise were
achIeved and maintained. If CIty has reason to believe that
portions or all of the systeM do not meet either the FCC
technIcal guidelInes, or those incorporated into the franchIse
agreement, at CIty'S request, but not more often than once per
three years, Grantee and CIty shall agree upon the appolntment
of a qualified independent engIneer to evaluate and verify the
technIcal performance of the cable system. The cost of such
evaluatlon shall be borne equally by Grantee and City.
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SECTION 63084.
Cop~es of ~eQer~1 ~nd Stqte ~eDorts.
Grantee
shall subm~t to City copIes of all pleadings,
appl~cationsl reports, communIcations and documents of any
kind,
submItted by Grantee to, as well as copIes of all
decisions, correspondence and actIons by, any federal} state,
and local courts, regulatory agenCIes and other government
bodies relatIng to its cable teleVIsion operations within the
franchise area. Grantee shall submit such documents to City
sImultaneously w1th their submission to such courts, agenc1es,
and bodies; and w1thin ten (10) days after theIr receipt from
such courts} agencies and bodies.
Grantee hereby waIves any
right to claim confidential, privileged, or proprIetary rIghts
to
such
documents unless such confidential rIghts are
determined to be confidentIal by law or by the practices of
federal or state agencies. Such confidential data exempt from
publIC dIsclosure shall be retaIned 1n confIdence by City and
its authorIzed agents and shall not be made available for
public Inspection.
SECTION 63085.
Public ~eports.
A copy of each of
Grantee's annual and other periodiC public reports and those
of Its parent, SUbSIdIary, and affiliated corporations and
other entities, as City requests, shall be submitted to CIty
wlthin ten (10) days of ltS Issuance.
SECTION 63086.
MIscellaneous Reoorts.
Grantee shall
submIt to CIty such other 1nformatlon or reports In such forms
and at such tImes as CIty may reasonably request or reqUIre.
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SECTION 63087. PublIC Insoection. All reports subject
to publIC dlsclosure shall be available for publiC InspectIon
at a designated CIty office durlng normal bUSIness hours.
SECTION
63088.
FaIlure to ReDort.
The refusal,
fallure, or neglect of Grantee to flle any of the reports
requIred, or such other reports as City reasonably may
request, shall be deemed a materIal breach of the franchIse,
and shall subJect Grantee to all remedIes, legal or eqUItable,
WhICh are avaIlable to Clty under the franchlse or otherwise.
SECTION 63089. False Statements. Any materially false
or mIsleading statement or representatIon made knowingly by
Grantee In any report requIred under the franchIse shall be
deemed a material breach of the franchIse and shall subject
Grantee to all remedies, legal or eqUItable, which are
avaIlable to CIty under the franchIse or otherWIse.
SECTION 63090.
Cost of Report~.
All reports and
records required under thIS or any other section shall be
furnished at the sole expense of Grantee.
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Subchapter 13L.
Hiscellaneou~ ~roVlsions.
SECTION 63091. ComDliance wIth State and Federal Laws.
NotWIthstandIng any other provisIons of the franchIse to the
contrary, Grantee shall at all times comply with all laws and
regulatIons of the state and federal government or any
administrative agenCIes thereof. PrOVIded, however, If any
such state or federal law or regulatIon shall require Grantee
to perform any serVIce, or shall permIt Grantee to perform any
serVIce, or shall prohibit Grantee from performIng any
serVIce, In conflIct w~th the terms of the franchise or any
law or regulatIon of City, then as soon as pOSSIble following
knowledge thereof, Grantee shall notIfy City of the point of
conflIct believed to eXIst between such regulatIon or law and
the laws or regulations of City or the franchise.
SECTION 63092. SeverabilIty: Non-Material ProviSIons.
If any prOVISIon of this ordInance or any related agreements
is held by any court or by any federal, state, or local agency
of competent JurISdiction to be Invalid as conflIctIng with
any federal, state, or local law, rule, or regulatIon now or
hereafter in effect, or is held by such court or agency to be
modified In any way in order to conform to the reqUIrements of
any such law, rule, or regulatIon, and If said provision is
considered nonmaterial by City, saId prOVIsion shall be
considered a separate, dIstInct, and Independent part of this
ordInance, and such holding shall not affect the validIty and
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enforceability of all other provisIons hereof. In the event
that such law, rule, or regulatIon is subsequently repealed,
rescinded,
amended,
or otherw~se changed, so that the
proVls~on WhICh has been held invalid or modifIed is no longer
In conflIct wIth the law, rules, and regulat~ons then in
effect, said provision shall thereupon return to full force
and effect, and shall thereafter be binding on the parties
hereto, provided that C1ty shall gIve Grantee th1rty (30) days
written notIce of such change before requiring complIance with
said prOVIsIon.
SECTION 63093. Severabilltv: Material ProviSIons. If
any materIal sectIon of this ordinance, as determIned by CIty,
IS held to be InvalId or preempted by federal, state, or
county regulatIons or laws, any franchise affected by such
decisIon shall be deemed termInated. Upon such termination,
CIty
shall,
in Its discretion, negotiate wIth Grantee
approprIate
modifications
to
the franchIse to provide
reasonable relief to City from such Invalidity or preemption,
Including the payment of damages.
SECTION 63094. NotIces. Grantee shall maintain WIthIn
the franchIse area throughout the term of the franchise, an
address for service of notices by mail.
SECTION 63095. No Recourse ^cainst the Citv. Grantee
shall
have no recourse whatsoever against City or its
offIcials, boards, comm1ss1ons, agents, or employees for any
loss, costs, expenses, or damage arISIng out of any prOVISIon
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or reqUIrement of the franchIse or because of the enforcement
of the franchlse.
SECTION 63096. Nonenforcement bv CltV. Grantee shall
not be relieved of its obllgatlon to comply wIth any of the
prOVISIons of thIS ordInance by reason of any failure of the
CIty to enforce prompt complIance.
SECTION
63097.
Waivers.
Any provision of thIS
ordInance may be waived by City, at City's sole discretion, by
CIty Council resolutIon. Grantee may submIt a written request
for waIver at any tIme, and the request shall be placed on the
agenda for a public hearIng and decision. City shall reach
ltS deCIsion no later than one hundred twenty (120) days
followlng the receipt of any waiver request.
SECTION 63098. Evaluation of Walvers. The CIty Council
may authorIze the economic, technical, or legal evaluation of
such waiver request and Grantee shall be requlred to reimburse
the City for any expendItures Incurred by City in connection
with such evaluatlon. Any expenditure and/or reimbursement
pursuant to thiS Section shall be exclUSIve of the franchise
fee.
SECTION 2. Any prOVision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provisions of
thiS Chapter, to the extent of such inconSIstencies and no
further, are hereby repealed or modIfied to that extent
necessary to affect the provlsIons of thIS Chapter.
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SECTION
3.
If any section, subsection, sentence,
clause, or phrase of th1s Chapter 1S for any reason held to be
invalId or unconstitutional by a decision of any court of any
competent jurISdIction, such deC1Slon shall not affect the
valIdIty of the remaining portIons of the ordInance. The CIty
Council hereby declares that it would have passed thIS
OrdInance and each and every section, subsectIon, sentence,
clause, or phrase not declared Invalid or unconstitutIonal
WIthout regard to whether any portion of the ordinance would
be subsequently declared invalid or unconstItutional.
The Mayor shall sign and the City Clerk
shall attest to the passage of thIS OrdInance. The City Clerk
SECTION 4.
shall cause the same to be publlshed once in the official
newspaper withIn 15 days after its adoption. ThIS OrdInance
shall become effective 30 days after Its adoptIon.
APPROVED ~S TO FORM:
~ '-w. ~_l_
ROBERT H. MYERS
CIty Attorney
~
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Adopted and approved this 28th day of April, 1987.
Q lA^r ~ _
C -- , Mayor
I hereby certify that the foregoing Ordinance No.
--
1407(CCS)
was duly and regularly introduced at a meeting of the City
Council on the 24th day of March 1987; that the said Ordinance
was thereafter duly adopted at a meeting of the city council on
the 28th day of April 1987 by the following Council vote:
Ayes: Councilmembers:
Finkel, Jennings, A. Katz, H.
Katz, Reed, Zane and Mayor Conn
Noes: Councilmembers:
None
Abstain: councilmembers:
None
Absent: Counci1members:
None
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