SR-501-002-01 (2)
CA:RMM:lld124ajhpc
city council Meeting 4-28-87
St?/~OO-z.-D/ ""0
~PR 2 8 1987
Santa Monica, California
STAFF REPORT
FROM:
Mayor and City Council
City Attorney
Ordinance 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
TO:
SUBJECT:
At its meeting on March 24, 1987, the City Council
introduced for first reading an ordinance adding Chapter 13 to
Article VI of the Santa Monica Municipal Code providing 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 ordinance is now presented
to the city council for adoption.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be adopted.
PREPARED BY: Robert M. Myers, city Attorney
Laurie Lieberman, Deputy City Attorney
(,-0
APR 2 8 1981
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BEFORE DISTRIBUTION CHECK CONTENT
DISTRIBUTION OF RESOLUTION It
CouncIl MeetIng Date %'/17
Agenda Item It (}7-0
Was It amended? /)f~
VOTE: Affirmative: 7--c"/
NegatIve:
Abstain:
Absent:
PROOF VOTE~ WITH ANOTHER PERSO~ BEFORE Ah~THING
v15TKlnuTluN: uKIGINftL LO be signed, sealed and filed in Vault.
OF ALL FOR CITY C}ERK'S ACTION
ORDINANCE # /c/'C/ '7
Introduced: 'S/-2r /2 7
Adopted:
AJJ>lAYS PUBLISH AOOP lW ORDINANCES *
*Cross out Attorney r s approval
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NEWSPAPER PUBLICATION (Date:
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Department origInating staff report ( * )
*CI ty Attorney does not want copies of his ord.tnances or resolutions.
lianagement SerVi;t.~e;? Lynne Bar.rette .0rdlnances only
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Agency mentIoned In document or staff report
(certifIed?)
SubJect file (agenda packet)
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Counter file
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o 't her s - (ReVIew for depci:L-u..ents who nee::i to kn:M) .
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SEND FOU~ COPIES OF ALL ORDINANCES TO:
COD~D SYSTEMS, A'ttn Pete~ Maclearie
.1..10 ).,fa~n- rtr~et
A~~'t ~~w Jersey_07717
SEND FOUR COPIES OF AU. ()HDTNANrps to:
RK~ft ~~tek MUNICIPAL COURT
(725 MAIN STREEt Room 118
SAj'lTA MONICA, CA 90401
*Check Ccxie Sections before sendIng.
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TOTAL COPIES
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SUBCHAPTER 13A
Sectl.on 63000.
Sect~on 63001.
SUBCHAPTER 13B.
Sectl.on 63002.
Sectl.on 63003.
Sect~on 63004.
SectIon 63005.
SectIon 63006.
Sect10n 63007.
Section 63008.
Sect10n 63009.
SectIon 63010.
SectIon 63011.
Sect10n 63012.
SUBCHAPTER 13C.
Sect10n 63013.
Sect10n 63014.
Sectl.on 63015.
Sectlon 63016.
Sectlon 63017.
Sect10n 63018.
Sect10n 63019.
Sectlon 63020.
INDEX TO CHAPTER 13 - CABLE ORDINANCE
GENERAL PROVISIONS AND RESPONSIBILITIES. 1
1 n ten t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deflnl tlons.. ..........................2
GRANT OF FRANCHISE... ... ....... ..... .10
Franch1se Requirements........... ..... .10
Appllcatlons for Franch1se ..... ..... .11
App 11 Cd t 1 on Fee............. .......... 15
Select10n of Grantee... ............... .15
Grant, of AuthorIty..... .... .......... .20
Re n ew a 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Use of Pub11c Streets and Ways... ......21
Du rat i on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Transfer of Ownership or Control...... .22
PolIce Powers... . . . . . . . . . .. . . . . . . . . . . . .25
Fr anchl se Fee......... ................26
REGULATION OF FRANCHISE. .... .... ..... .28
Regulatory Authority.................. .28
Regulatory ResponS1blll.ty............. .28
Pub11c Usage of the System. .......... ..29
Ra t e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Rate Change Procedure.................. 33
Annual ReV1ew of Qua11ty of Serv1ce.. ..3~
System and SerV1ces Revlew. .......... ..34
New Developments................. ..... .36
1
SUBCHAPTER 13D.
Beetlon 63021.
Seetlon 63022.
Seet1.on 63023
Seet10n 63024.
Seetlon 63025.
Sect1.on 63026.
SUBCHAPTER 13E.
SectIon 63027.
Seet1.on 63028.
Seet1.on 63029.
SectIon 63030.
Section 63031.
Seetlon 63032.
Seetlon 63033.
Sectlon 63034.
Sect10n 63035.
Sect1.on 63036.
SectIon 63037.
Sectl.on 63038.
SectIon 63039.
SUBCHAPTER 13F.
GENERAL FINANCIAL AND INSURANCE
PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
ConstructIon BQnd........ ... ....... ....38
Complet1on and ~erformanee Bond..... ...38
See u r I ty Fund.......................... 41
LlqU1.dated Damages. ............. ...... .43
I ndemn if 1. cat 1. on. . . . . . . . . . . . . . . . . . . . . . . .46
Insurance............................. .47
DESIGN AND CONSTRUCTION PROVISIONS... .50
System Des1.gn......................... .50
Geograph1.cal Coverage.................. 51
Cablecastlng Fac1.l1.t1.es......... ...... .51
System Construetlon Schedule.......... .51
Delay 1n ConstructIon............... . . .5?-
ProV1S1on of SerVIce.... ... .......... ..52
Undergroundlng of Cable............... .52
New Development Undergroundlng... ..... .53
Underground1ng at Mult1.ple Dwell1.ng
Un 1 t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Locat1.on of Property of Grantee....... .54
Standards for Use of Streets.......... .56
Construct1.on and Technlcal Standards.. .58
Areaw1.de Interconnect ion. . . . . . . . . . . . . . .61
SERVICE PROVISIONS.. .................63
Bectlon 63040. Servlces to be Provided............. ...63
Section 63041. Bas1.c Cable ServIce....................65
Section 63042. Basic RadlO Serv1.ce................... .65
2
SectIon 63043.
Seetlon 63044.
SectIon 63045.
Sectlon 63046.
SectIon 63047.
Sectlon 63048.
SectIon 63049.
SUBCHAPTER 13G.
SectIon 63050.
SectIon 63051.
Sectl.on 63052.
Section 63053.
SectIon 63054.
SectIon 63055.
Sectlon 63056.
SUBCHAPTER 13H.
Section 63057.
SectIon 63058.
SectIon 63059.
SectIon 63060.
SectIon 63061.
Sectlon 63062.
Sect10n 63063
Sectlon 63064.
Sectlon 63065.
InstltutIonal SerVlce... ... .......... ..66
Add~tl9nal Su~scrlber Servlces....... ..66
Local OrIOlnatlon Channe!(s).......... .66
PublIc: Educatlonal, and Government
(PEG) Access Facllltles....... ....... .66
Cable Channels for Commerclal Use..... .67
Leased Use of PEG Access Facllltles... .67
UnIversal Connectlon.. ................ .67
OPERATION AND MAINTENANCE..
. .67
Open Books and Records................ .67
Records RequIred... ................... .68
Rlghts of Indlv1duals.................. 68
Contlnulty of ServIce Mandatorv.. ..... .69
Grantee Rules and Reaulatlons.... ..... .70
Uniform and Veh1cle Identlflcatlon.... .71
Equal Opportunlty Programs....... ......71
CONSUMER PROTECTION. ............ ..... .72
Requests for Cable ServIce and Repairs.72
Complalnt Procedure.................... 74
Request for HearIng................... .75
Complalnt HearIngs Conducted by
Hearlng OffIcer......... .............. .76
Complalnt NotIflcat1on......... ...... .77
RemedIes for VIolatIons............... .77
Complalnt Flle and Reports...... ,,_'w' .77
Tenant R1ghts.. . . . . . . . . . . . . . . . . . . . . . . . .78
Cl tv Riahts. . . . . . . . . . . . . . . . . . . . . . . . . . . .79
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Seetlon 63066. Priv~cy........................... __.. .80
SUBCHAPTER 131. RIGHTS RESERVED TO CITy........... ... .84
Sectlon 63067. Rlght of Emlnent Domaln......... ...... .84
Sectlon 63068. Rights Authorlzed bV Clty Charter or
Ordinance... ...... .................. .84
Section 63069. Rlght to Amend Chapter..... ...... ..... .85
Section 63070. Rlght to ExerClse Other Governmental
Powe r 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Sectlon 63071. Rlght to Bring an Ac t 1 on . . . . . . . . . . . . . . . 85
Sectlon 63072. Rlght of Inspectlon of Constructlon... .85
Section 63073. Right to Inspect FaclIl tles. . . . . _ . . . . . .85
Section 63074. Rlght of Interventlon. . . . . . . . . . . . . . . . . .86
SUBCHAPTER 13J.
Sectlon 63075.
Sectlon 63076.
Sectlon 63077.
Sect10n 63078.
Sect10n 63079.
Seetlon 63080.
Seetlon 63081.
SUBCHAPTER 13K.
Seetlon 63082.
Sectlon 63083.
Seetlon 63084.
Seetlon 63085.
Seetlon 63086.
FRANCHISE VIOLATIONS AND TERMINATION. .86
Rem~dles for Franehlse Vl01atlons......86
Remedles for Delay ln Constructlon.. ...87
Procedure for Remedvlna Franchlse
V 1 0 1 at lons . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88
Forfel ture or Revocatlon............... 89
Procedures in the Event of Term1nation
a r Exp 1 rat 1 on. . . . . . . . . . . . . . . . . . . . . . . . . . 91
Recelvershlp and Foreclosure. ......... .94
Grantee'$ Inablllty ta Perform........ .95
REPORTS. . . . . . . . . . . . . . . . . . . . . .. ....... 96
Annual Reports............. . . . . . . . . . . . .96
Plant Survey Report................... .97
Caples of Federal and State Reports... .98
Publ i c Reports............ ............98
Mlscellaneous Reports........ ....... ..98
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SectIon 63087. Pub11c InspectIon.... ........ ........ .99
SectIon 63088. FaIlure to Report.... ................. .99
SectIon 63089. False Statements...................... .99
Sect10n 63090. Costs of Reports.
................ .99
SUBCHAPTER 13L. MISCELLANEOUS PROVISIONS.... ....... ..100
Sectlon 63091. Compliance w1th State and Federal
Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SectIon 63092. SeverabIlIty: Non-Matertal
Provl 5 10ns . . . . . . . . . . . . . . . . . . . . . . . . .. .100
SectIon 63093.
SectIon 630Q4.
SectIon 63095.
SectIon 63096.
SectIon 63097.
SectIon 63098.
cabIndex/ca
SeverabIlIty: MaterIal PrOVISIons... .101
No tIC e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
No Recourse Agalnst the C1ty......... .101
Nonenforcement by CIty............... .102
Wa 1 ve r s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
EvaluatIon of WaIvers................ .102
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CA:RMM:rmcable4/ca
Clty Councll Meetlng 4-28-87
Santa Mon1ca, Callfornla
ORDINANCE NUMBER 1iQl (CCS)
(Clty Councll Serles)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA 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 COMMUNIC~TIONS 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 1S hereby added to Artlcle VI of
the Santa Monlca Munlclpal Code to read as follows:
CHAPTER 13 - CABLE ORDINANCE
Subchapter 13A.
General Provlslons and ResponSlbllltles.
SECTION 63000. Intent. The Clty of Santa Monlca flnds:
( a )
The
development
of
cable
teleVlslon
and
communlcatlons systems has the potentlal of havlng great
publlC benefit and lmpact upon the reSIdents of Santa Monlca.
( b )
Because
of the complex and rapIdly changl~g
technology
assoclated wlth cable teleVlSlon, the publlC
convenience, safety, and general welfare can best be served by
1
,
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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 poss2ble 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
phrases shall
of
thIS
Chapter, the follOWIng words and
follOWIng meanIngs:
Aaencv SubscrlQ~r. A government or publIC agency,
school, or deSIgnated non-prOfIt organIzatIon WhICh receIves a
serVIce from a cable communIcatIons system.
BaSIC Gable SerVIce. Any serVIce tIer WhIch includes
the retransmISSIon of local teleVISIon broadcast SIgnals.
BaSIC ~adIo SerVIce. The prOVISIon of audIO programs to
all subscrIbers at a monthly rate.
~roadcast Slanal. A teleVISIon or radIO SIgnal that 15
transmItted over the aIr to a WIde geographIC audIence and IS
receIved by a cable communIcatIons system and retransmitted to
subscribers.
have the
Cable CommunIcatIons System. A faCIlIty, conSIstIng of
a set of closed transmISSIon paths and assocIated SIgnal
generatIon, receptIon, and control eqUIpment, that IS deSIgned
to prOVIde cable serVIce WhICh Includes VIdeo programmIng and
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,
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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-of-way.
(3) A faCIlIty of a common carrIer, except that
such faCility shall be consldered a cable system to the extent
such faCIlity IS used In the transmISSIon of VIdeo programmIng
dlrectly to subscrlbers.
(4) Any faCIlItIes of any electrIC utilIty used
solely for operatIng lts electrIC utlllty system.
I
Cablecast $~~nal. A nonbroadcast SIgnal that orIgInates
WIthIn the faCIlItIes of the cable communIcatIons system.
Cable-mIle. 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:
{ll The one-way transmISSIon to subscrIbers of
VIdeo programmIng or other telecommunl=atlons serVIce.
(2) SubscrIber InteractIon,
If any, WhICh IS
reqUIred for the selectIon of such VIdeo programmIng or other
programming serVIce
3
t
Channel or Cable Channel. A portlon of the
electromagnetlc frequency spectrum WhlCh 1S used ~n a cable
system and Wh1Ch 1S capable of dellver1ng a telev1s1on channel
as def1ned by the Federal Communicatlons Comm1sS1on.
C~ty. The C1ty of Santa Monlca.
Clty Gouncll. The governlng body of the Clty of Santa
Mon~ca.
Commencement of Constructlon. The t~me and date when
constructlon of the cable communlcat1ons system 1S cons1dered
to have commenced} Wh1Ch shall be when the flrst connection 1S
physlcally made to a utlllty pole, or underground1ng of cables
15 lnit1ated, after prellmlnary eng1neerlng (strand mapplng)
and after all necessary permits and author1zatlons have been
obta1ned.
Commencement of Operat1on. The tlme and date when
operat1on of the cable commun1cat1ons system 1S consldered to
have commenced WhlCh shall be when suff1clent dlstr1butlon
facillt1es have been lnstalled so as to permlt the offer1ng of
full serVlce to a dwelllng un1t located w1th1n the franch1se
area and such serV1ces are actually subscrlbed to by a
res1dent of the franchise area.
Commerc~al Subscr~ber.
A subscrlber who receIves a
.
serVlce 1n a place of bus1ness, where the serVIce may be
utlllzed 1n connect1on WIth a bUSIness} trade, or professIon.
Commerc1al Use Channelfs}. The channel capac1ty
des1gnated for commercIal use as deflned and requlred by
federal law.
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receIpt of the compl~lnt as well as a descrIptIon of the
complaInt resolutIon process.
(e) Grantee InvestIgatIon. Upon receIpt of a
SUbscrIber Statement of ComplaInt, Grantee shall conduct an
InvestIgatIon of the subscrIber complaInt. Grantee, wIthIn
ten (10) days of receIVIng the complaInt, shall notIfy the
subscrIber In wrItIng of the results of the InvestIgatIon, Its
proposed actIon or resolutIon, If any and the reason for 1ts
deCISIon. Grantee shall also notIfy the subscrIber of the
subscrIber's rlght to flle a request for hearIng wlth CIty In
the event the subscriber 1S dIssatIsfIed WIth Grantee's
deCISIon.
SECTION 63059. Reauest for Hearlna.
(a) A subscrIber who IS dIssatIsfIed WIth Grantee's
deCISIon or who was not sent a wrItten deCISIon WIthIn 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 630SB(b}, w~thln thIrty (30) days of fil~ng of the
subscrIber's complaInt.
(b) The CIty shall not1fy the Grantee af the request
for a hear1ng and the Grantee shall Immedlately forward to the
Clty coples of all mater1als, Includlog the complaInt,
lnvestlgatlon reports, and declslons, related to the dIspute.
The Clty shall set the matter for hearlng as provlded 10
SectIon 61060 unless It lnformally resolves the complaInt tc
the subscrlber's satlsfactlon wlthln ten (10) days.
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SECTION 63060. ComplaInt HeqrInqs Conducted bv Hear1na
Offlcer A hearlng shall be conducted by a hear1ng off1cer
app01nted by C1ty follow1ng not1ce 1n wr1t1ng spec1fYIng the
t1me and place for such hearing. The hearIng shall be
conducted 1n accordance wIth procedures establIshed by the
CIty pursuant to Mun1cIpal Code Sect10n 6126C-E and wIll 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 d1spute, WhICh the hearIng
officer may deem necessary to an understandIng and
determinat10n of the dIspute. The decIslon of the hearlng
offIcer shall be flnal and there shall be no rIght of appeal.
Grantee shall defray the full cost of the hear1ng offIcer
proceedIngs.
In the event Grantee falls or refuses to advance
fees or costs as requIred by the hearing offIcer, such fees or
costs shall be obta1ned from the securIty fund. The
procedures provlded 1n thIS SectIon shall not llmlt any common
law or statutory rlghts of subscrIbers.
76
~ .
InItIal Servlce Area. The area of the CIty WhlCh will
rece~ve serv~ce in~t~ally, as set forth 1n the franch~se
agreement.
If
not
stated otherWIse ~n the franchlse
agreemen t,
the initIal serVIce area shall cons~st of the
entIre C1.ty.
InstallatIon. The connection of the system from feeder
cable to subscrIbers' termInals, and the prOVI$~On of serv~ce.
Local
Or191natIon Channel.
Any channel where the
Grantee IS the prImary desIgnated programmer, and provIdes
vIdeo programs to subscr1bers.
Monitor~ng. ObserVIng a communicatIon 51gna1, or the
absence of a slgnal, where the observer 1S ne~ther the
subscrIber nor the programmer, whether the s~gnal IS observed
by vIsual or electronIC means, for any purpose whatsoever.
MonItorIng shall not Include systemwIde, non-1nd1v1dually
address~d sweeps of the system for purposes of ver1fYlng
I
system ~ntegrlty, controlling return paths, transm~ss~ons, or
blll1ng.
Nonbroadcast SIgnal.
A slgnal that 15 provIded by a
cable communIcatIons system and that ~s not 1nvolved ~n an
over-the-alr broadcast transmlsslon path.
Ooen Channel. Any channel that can be receIved by all
subscrIbers, WIthout the necessity for speCIal equlpment.
Pay-Cable or
Pav-Tel,ev~Slon.
The
delIvery
to
subscrIbers,
over
the
cable communIcatIons system, of
teleVISion sIgnals for a fee or charge to subscr1bers over and
7
t
above the charge for baS1C cable serv1ce, on a per program,
per channel, or other subscr~ptlon basls.
Penetrat1on. The result expressed 1n the percentage
obta1ned by d1vId1ng the total number of dwellIng unIts 1n the
franchIse area Into the number of subscrIbers receiVIng
serV1ce.
Per~on. Any Ind1vIdual, partnershlp, aSsOcIatIon, JOInt
stock company, trust, corporatIon, or organlzatlonal entlty.
Prlvate Channel or Closed Clrcu~t Channel. Any channel
WhlCh 15 ava1lable only to subscr1bers who are provIded wIth
spec1al converter or termInal equlpment to receIve signals on
that channel.
Proarammer. A person or entlty who or WhICh produces or
otherWlse prov1des program materIal or 1nformat1on for
transmISSIon by VIdeo, audlo, dIgItal, or other slgnals,
eIther llve or from recorded tapes or other storage medIa} to
subscrlbers, by means of the cable commun1catlons system.
PUblIc, ~du~at1onal or Government Access FacIlIties or
PEG Access FaCIlItIes. The total of the follow1ng:
(1) Channel capacIty des1gnated for pUblIC,
educat~onal, or governmental use.
(2) FaCllltles and equ1pment for the use af such
channel capacIty.
P~G. PubllC, educatlonal, or government.
n~sldent. Any person res1d1ng 1n the City as atherWlse
def1ned by appllcable law.
8
. ,
ReSl~Qnt1~1 qUbgcrlb~r.
A subscrlber who recelves a
serV1ce 1n an 1nd1vldual dwellIng unIt, where the serV1ce 15
not to be utlllzed 1n connection with a bUSIness, trade, or
professIon.
Sale. Any sale, exchange, barter, or offer for sale.
Schoo,. Any accredIted non-profIt educatIonal
lnstltutIon InCludIng prImary and secondary schools, colleges,
and unIversItIes, both public and prIvate.
SerVIce Area or Franchise Area. The entIre geographIc
area wlthln the CIty deSIgnated In a franchlse 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 dedlcated
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 publ1C property and areas that the Clty shall perm~t
to be Included WIthIn the defInItIon of street from tIme to
tlme.
Subs~r~ber. ~ny person, fIrm, corporatlon, 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.
9
.
Tao~lng. ObservIng
a two-way commun1catlonS s1gnal
exchange, where the observer 1S ne1ther of the communicat1ng
parties, whether the exchange 1S observed by v1sual or
electronlc means, for any purpose whatsoever.
Two
Way
Commun1catlons.
The
transm1SSlon
of
telecommun1cat1ons signals from subsCrIber locatIons Or other
pOlnts throughout the system back to the system's control
center as well as transmISSIon of slgnals from the control
center to subscr1ber locatIons.
Subchapter 13B.
Grant of FranchIse.
SECTION 63002. iranchlse ReaUIrements.
(a) FranchIse ReqUIred. No cable communIcatIons system
shall be allowed to occupy or use the streets 1n the franchIse
area
or be allowed to operate wlthout a franchlse in
accordance WIth the provIs1ons of thls ordInance.
(b) Franch1se Nonexcluslve. Any franchIse granted shall
be nonexcluslve.
Clty specIfIcally reserves the r~ght to
grant, at any tlme, such addItlonal franchlses for a cable
communlcatlons system as 1t deems appropriate.
(c) EstablIshment of Franchise Requlreme~t~. The C1ty
may establlsh appropriate requlrements for new franchIses or
franchise renewals,
and may modify these requlrements from
tIme to tIme to reflect changlng cond1tIons and state of art
in the cable 1ndustry~
Such reqUIrements shall not be
10
,
retroactive to franc~1ses then in effect, but shall become
applicable when the franch~se ~s renewed, or when Grantee's
serVIce area is expanded.
Cd) Franchlsp' ~rea. The Clty may grant a franchlse for
all or any deflned portIon of the CIty. The serVIce area
shall be the entIre area deflned 1n the franchIse agreement.
The lnltlal SerVlce area shall he that portIon of the
franchIse area scheduled to recelve lnItlal serVIce, as stated
In the franchIse agreement.
SECTION
63003
~Dolicatlons for FranchIse.
Each
applIcatIon for a franchise to construct, operate, or malntaIn
any cable system 1n thIS Clty shall be flled with the CIty
Clerk. ~n applIcatIon shall 1nclude, but shall not be Ilmlted
to, the following InformatIon:
(a) The name,
I
appllcant.
address,
and telephone number of the
(b) ~ detalled statement of the corporate or bUSIness
entity organIzat1on of the applIcant,
lncludlng, but not
lImIted to, the followlng and to whatever extent requ1red by
the Clty:
(1) The names, res1dence and bUS1ness addresses of
all off1cers, directors, and assoclates of the applIcant.
(2) The names, reSIdence and bUSIness addresses of
all offIcers, persons, and entitles havlng any share of the
ownershlp of the applIcant of one percent or more and the
respectlve ownershIp share of each such person or entIty.
11
I
(3) The names and addresses of any parent or
subsidlary of the applicant, namely, any other buslness ent~ty
own1ng or controllIng applicant ~n whole or 1n part or owned
or controlled 1n whole or 1n part by the appllcant, and a
statement descrIbIng the nature of any such parent or
Subsld~ary buslness entlty IncludIng} but not lImIted to,
cable systems owned or controlled by the applicant, its
parent, and SUbsIdIary and the areas served thereby.
(4) ~ detalled descrIptIon of all preVIOUS
exper1ence of the appl1cant 1n prOVIdIng cable teleVISIon
system serVIce and 1n related or slmllar fIelds.
(5) A detaIled and complete fInanCIal statement of
the applIcant, certIfIed by an Independent cert1f1ed publIC
accountant, for the fIscal year next preceding the date of the
applIcatIon hereunder, or a letter or other acceptable
eVldence in wrltlng from a recognlzed lendIng instItutIon or
fundIng source, addressed to both the applIcant and the
Counell, setting forth the baSIS for a study performed by such
lendIng lnst1tut1on or fundIng source, and a clear statement
of Its Intent as a lend~ng InstItutIon or fundlng source to
prOVIde whatever capItal shall be reqUIred by the applIcant to
construct and operate the proposed system In the CIty, or a
statement from an Independent certIfIed publIC accountant,
cert1fYIng that the applIcant has aVdllable suff~clent free,
net, and uncomm1tted cash resources to construct and operate
the proposed system In thIS CIty.
12
~
(61 A detailed flnanc~al plan (pro forma)
descrlbIng for each year of the franchIse, proJected number of
subscrIbers} rates} all revenues] operat~ng expenses} capItal
expendItures, deprec~atlon schedules, Income statements, and a
sources and uses of funds statement. All lnformat~on 15 to be
presented ~n the format requIred by CIty.
(7) ^ statement Ident1fYIng} by place and date,
any other cable system franchIses awarded to the applIcant,
and any parent, or SUbSIdIary corporat~onj the status of saId
franchIses WIth respect to completIon thereof; the total cost
of complet~on of such franchIsed systems; and the amount of
applIcant's and Its parent's or subSIdIary's resources
commItted to the completIon thereof.
(8) A statement IdentIfYIng franchIses owned or
operated by applIcant, Its parent or SUbSIdIary corporatIon,
that have been revoked or llCengeS termInated by the Federal
CommunIcatIon CommISSIon or franchISIng entlty.
(c) A detailed descrIptIon of the proposed plan of
operatlon of the applIcant WhICh shall lnclude, but not be
lImIted to} the follOWIng:
(1) A detaIled map Indlcatlng all areas proposed
to be served, and a proposed tIme schedule for the
lnstallatlon of all eqUIpment necessary to become operational
throughout the entIre area to be served.
(2) A statement or schedule settIng forth all
proposed cla55lflcatlons of rates and charges to be made
agaInst subscrIbers and all rates and charges as to each of
13
~ &
sa~d
claSSlf~catlonSJ
IncludIng Installation charges and
serVIce charges.
(3) ~ detailed, Informat~ve,
statement descrIbIng the actual eqUIpment
standards proposed by the applIcant.
(4) ~ copy of the form
and
referenced
and operatIonal
undertakIng, or other Instrument proposed
between the applIcant and any subscrIber.
(5) ~ detaIled statement settIng forth in Its
entIrety any and all agreements and undertakIngs, whether
formal or Informal, wrItten, oral, or ImplIed, eXIstIng or
proposed to eXIst, between. the applIcant and any person, fIrm,
or corporatIon WhIch materIally relate or pertaIn to or depend
upon the applIcatIon and the grantIng of the franchIse.
of any agreement,
to be entered into
(d) ~ copy of any agreement coverIng the franchIse
area, If eXIstIng, between the applIcant and any munICIpal
utIlity or publIC utIllty 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, l~nes, 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.
14
.
SECTION 63004. ~pgl~cat~on Fee.
Ca} Amount. NotWIthstandIng any other reqUIrement of
thIS Chapter, each applIcant must furnIsh w~th Its proposal a
non-refundable f~llng fee In the form of a certIfIed or
cashIer's check made payable to the CIty of Santa MonIca, In
an amount as may be establIshed by the CIty at the tIme of
applIcatIon. No proposal for a franchIse shall be conSIdered
WIthout receIpt of saId check.
(b) DeCoslt and 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 executlon of a franChIse, and
regulatIon of a franc~lse pursuant to thIS Chapter. SaId
expenses shall Include, but not be lImIted to, any and "all
admInIstratIve, engIneerIng, pUblIcatlon, or legal costs, and
consulttant's expenses, Incurred 1n connectIon WIth the
proceSSIng, evaluatIon, and preparatIon of documents relatIng
to the franchIse.
(c) AQdltlo~al Fee. In the event that expenses exceed
the total amount of flllng fees collected from the applIcants,
an applIcant awarded a franch~se shall pay to the Clty the
excess amount.
SECTION 63005. Select~on of Grantee.
(a) Sollcltatlon of Proposals. The
advertlsement or any other means,
SOllC2t
CIty may, by
and call for
appllcatlons for cable system franchIses, and may determIne
and flX any date upon or after WhICh the same shall be
15
~
;
recelved by the CIty, or the date before wh~ch the same must
be rece~ved, or the date after WhICh the same shall not be
receIved, and may make any other determInatIons and specIfy
any other tImes, terms, condItIons, or lImItatIons respectIng
the solIcItIng, calling for, makIng, and receIvIng of such
applIcatIons.
The terms and condItIons for applIcatIon shall
be descrIbed In a document called "Request for Proposals."
(b) Comollance WIth CItv Reaulrements.
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
InformatIon,
and shall completely, accurately,
and
materIally supply all of the InformatIon so solICIted. Any
mIsrepresentatIon, faIlure, neglect, or refusal to prOVIde any
of such Information may, at the dIscretIon of CIty, render a
proposal InvalId. The requested InformatIon must be complete
and verIfIed as true by the applicant.
(C) Property of C1tV. All proposals recelved by the
CIty from an appllcant shall become the sole property of CIty
and shall become publIC documents.
(d) ~pol~cant
ResoonSlbllltV.
- -
Before submlttlng a
proposal, each appllcant shall be solely responSIble for and
must:
(1) Be famlllar wlth local condltlons that may In
any manner affect performance under the franchlse, lncludlng}
16
.
but 1n no event llmlted to, communIty and InstItutIonal
telecommunIcatIon needs, relevant demograph1cs, topographIes,
pole attachment polIcIes of approprlate utIlIty authorIties,
underground1ng, and subscrIber deSIres
(2) Be famIlIar w1th federal, state, and local
laws, ordInances, rules, and regulations affectlng performance
under the franchlse.
(3) Carefully correlate and relate all informatIon
and observatIons WIth the reqUIrements of thIS Chapter and the
Request for Proposal documents.
ee) Referral to CIty Manager. 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 CIty WIll
evaluate all proposals that have complied wlth Its
requlrements. All applIcants that have met the CIty'S
qualIfIcatlons 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) Investloatlons. The CIty may make such
InvestIgatlons as It deems necessary to determIne the abIlIty
of the applIcant to perform under the franchIse, and the
applIcant shall furnlsh to the CIty all such lnformatlon and
data for thIS purpose as the CIty may request. The CIty
reserves the rlght to reJect any proposal If the eVIdence
submItted by, or InvestIgatIon of such applIcant falls to
17
&
satIsfy the CIty that such applIcant IS properly qualIf~ed to
carry out the oblIgatIons of the franchIse agreement] comply
wIth the provIsIons of thIS Chapter] or to satIsfactorIly
construct and operate the system. Proposals that modIfy or
place condItIons upon requirements stated In the CIty'S
Request for Proposals may be reJected by the CIty.
(g) Relectlon. The CIty may reJect any and all
applIcatIons from whatever source and
the CIty also reserves the rIght to
requIrements where the best Interests
whenever receIved and
waIve any or all
of the CIty may be
served, and may] If It so deSIres, request new or addItIonal
proposals.
(h) PublIC Comment. If] upon receIVIng the CIty
Manager~s report] the CIty CounCIl shall determIne to further
conSIder the applIcatIon] It shall pass a resolutIon settIng a
publIC hearIng for the conSIderatIon of applIcatIons] fIXIng
and settIng forth a day] hour] and place certaIn when and
where any persons haVIng any interest thereIn or obJectIons
may fIle wrItten comments and appear before the CIty Councl1
and be heard, and dIrectIng the City Clerk to publIsh sald
resolutlon at least once wlthln ten (10) days of the passage
thereof In a newspaper of general cIrculatlon wlthln the CIty.
(1) C~nslderatl0n. In makIng any determlnatIon
hereunder as to any appllcatlon for a new franchIse] the Clty
CounCIl may conSIder factors IncludIng] but not Ilmlted to}
the quallty of the serVIce proposed, Income to the CIty,
experlence] character, background, and flnanclal
18
~ .
responsibIlity or any applIcant, and lts management and
owners, technlcal and performance quallty of equlpment,
wlll1ngness and ablllty to meet constructlon and physical
requlrements, to meet all requlrements set forth 1n thlS
Chapter, and to ablde by all purpose and POllCY condltions,
franehlse llmltatlons and reqUIrements, and any other
considerat1ons deemed pertInent by the CIty Council for
safeguardlng the lnterests of the Clty and the publIC.
(J) DetermInatIon. ^t the tlme set for the hearIng, or
at any adJournment thereOf, the City Counell shall proceed to
hear all protests. The Clty Councll shall then make one of
the followlng determlnatlons:
(1) That such appllcatlon be denled, WhICh
determInatlon shall be flnal and concluslve.
(2) That such franchlse be granted upon such terms
and Cordltlons as the Clty Councll may establlsh.
Ck) Addlt~onal Informatlon. The City Councll may at
any tIme demand, and appllcants shall provIde, such
supplementary, addItional, or other lnformatlon as the CIty
CounCIl may deem reasonably necessary to determlne whether the
requested franchIse should be granted.
(1) Awards Based on Herlt. It 1S the intentlon of the
Clty to award any cable franchIse on the baSIS of merIt of
proposals. To this end, any communlcatlons WIth CIty
Councllmembers by those wlshlng to submlt proposals for a
cable franchIse should be llmlted to publIC seSSlons.
19
~
Requests for lnformation should be dlrected to the Clty
Manager.
(m) Cltv Council DeC1Slons Flp~l. Any declslon of the
Clty Councll concernlng selectlon of a franchlse pursuant to
th1s Chapter shall be flnal.
SECTION 63006. Grant of Authorlty.
(a) Successful appllcants chosen by the Clty Councll
wlll be granted the right and prlvllege to construct, erect,
operate, and ma1ntaln in} upon, along, across, above, over,
and under the streets, alleys, publlC ways, and publlC places
now lald out or dedlcated and all extenslons thereof, and
addltlons thereto, 1n the Clty poles, wlres, cables,
underground condults, manholes, and other cable conductors and
flxtures necessary for the malntenance and operat1on 1n the
Clty of Santa Honlca of a cable system, to be used for the
sale and d1str1but1on of cable serVlces to the resldents of
the Clty.
(b) ~ny prlvllege clalmed under any such franchlse by
the Grantee 1n any street or other publlC property shall be
subordlnate to any prlor lawful occupancy of the streets or
other publ1C property.
(c) Insofar as lt 15 not lnconslstent Wlth or otherWlse
preempted by Federal or State regulatlons, the Clty Councll
retaIns all authorlty to regulate all telecommunlcat1ons
serVlces provIded by a Grantee to the extent necessary to
assure the dellvery of proposed servlces, lf any, and that
20
such serVlces are in compllance wlth all regulatory provIsIons
of thls Chapter and other appllcable laws.
SECTION 63007. Renewal.
The renewal of any franchIse granted pursuant to thlS
Chapter shall be subJect to the terms of appl1cable law and to
such terms and condItIons as may be establIshed by the C1ty.
SECTION 63008. Use of PublIC Streets and Ways. For the
purpose of operat1ng and maIntaInIng a cable communIcatIons
system 1n the franchIse area} and sUbJect to the provIsIons of
SectIon 63037 hereIn} 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 operat1on of the cable
communIcatIons system. Pr10r to construct1on or alteratIon,
however, Grantee shall 1n each case fIle plans WIth the
approprIate CIty agenc1es and local utIl1ty companIes, and
receIve wrItten approval before proceeding. Grantee shall 1n
any event comply w1th all applIcable City construct10n codes
and procedures.
SECTION 63009. Duratlon. The term of any franchIse and
all rlghts, prIvlleges, obl1gatIons, and restrlctlons
pertaInlng thereto shall be as speclfled 1n the franchlse
agreement unless termInated sooner as hereInafter provlded
21
The effectlve date of the franch~se shall be the date of
executIon of the franchIse agreement by C~ty, subJect to prIor
executIon by Grantee. In no event shall the term of any
franchIse exceed twenty (20) years.
SECTION 63010. Transfer of OWnershlo or Control.
(a) Transfer of Franch~~~. 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 acqu1sIt10n or
transfer by any person or group of persons of ten percent
(10') or more of the benefIcIal ownership 1nterest of Grantee
Every Change, transfer, or acquIsIt~on of control of Grantee
shall make the franch1se SUbJect to cancellatlon unless and
untIl CIty shall have consented thereto. For the purpose of
22
~
determInIng whether It shall consent to such change, transfer,
or acqu~sltlon of control, CIty retaIns the rIght to request
such InformatIon as It deems approprlate to determ1ne the
prospectIve party's quallfIcat1ons, and Grantee shall aSslst
CIty 1n any such 1nquIry.
(cl Grantee Resoonslb1~ity. In seekIng C1ty'S consent
to any change 1n ownersh1p or control, Grantee shall have the
responsIbIlIty:
(1) To show to the satIsfact10n of C1ty whether
the proposed purchaser, transferee, or ass1gnee WhICh shall
Include all offIcers, dIrectors, and all persons haVIng a
legal or equitable Interest In fIve 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, lany VIolatIon of Federal, State, or local law or
regulatIons, or IS presently under an Indlctment,
InvestIgatIon, or complaInt chargIng such acts.
(11) 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 jur1sd~ctIon.
(11i) Has pendIng any legal claim) laWSUIt}
or admlnIstrat1ve proceedlng arISIng out of or lnvolvlng a
cable system.
(2) To establIsh, to the satIsfactIon of CIty,
the flnanclal capabIlIty of the proposed transferee to operate
the franchIsed system} based on the proposed transferee's
23
~
aggregate f~nanc~al commItments and resources.
CIty may
request, and Grantee shall prov1de, all reasonable fInanCIal
data relat~ve to the transfer.
(3) To establlsh to the satIsfactIon of CIty that
the capabIl1ty of the proposed transferee 1S such as shall
enable It to maIntaIn and operate the cable system for the
remalnlng term of the franchIse under the eXIstIng franchlse
term, and, upon CIty request, to prOVIde adequate securIty for
thIS purpose.
(d) The Grantor agrees that any flnanc~al Instltutlon
havlng a pledge of the franchlse or lts assets for the
advancement of money for the constructlon and/or operatIon of
the franch~se shall have the rIght to notlfy the Grantor that
1t or lts deslgnee satisfactory to the Grantor WIll take
control and operate the cable commun1cat1ons system, 1n the
event of a Grantee default 1n lts flnanclal obllgatlons. In
such event, the flnanCIal lnstltutlon shall submlt a plan for
operatIon that WIll Insure continued serV1ce and complIance
WIth all franchIse requ1rements dur1ng the term the flnanclal
InstItutIon exerC1ses control over the system. The fInanc~al
tnstltut10n shall not exerClse control over the system for a
perlod exceedlng one year unless extended by the Grantor 1n
Its dlscretlon and durlng sa1d perlod of tlme It shall have
the rIght to pet1tIon the Grantor to transfer the franch1se to
another Grantee. If the Grantor finds that such transfer,
after conslderlng the legal, flnancIal, character, technIcal,
and other publ1C Interest quallflcatlons of the appllcant are
24
.
satIsfactory, the Grantor shall transfer and aSSIgn the rlghts
and oblIgatIons of such franChIse as In the publIC Interest.
The consent of the Grantor to such transfer shall not be
unreasonably WIthheld.
(e) Consent to Transfer SubordInate to C~tv's Other
RIghts. The consent or approval of CIty to any transfer of
the franchIse shall not constItute a WaIver or release of the
rIghts of CIty ~n and to the streets, and any transfer shall
by Its terms, be expressly subordInate to the terms and
condItIons of the franchIse.
(f) Necessltv for CompletIon of ConstructIon. In the
absence of extraordInary CIrcumstances, City shall not approve
any transfer or aSSIgnment of the franchIse prIor to
completIon of constructIon of the proposed system.
(9) RIoht to Purchase Cable System. The franchIse
agreement shall prOVIde the terms and condItIons under WhICh
the CIty has the rIght to purchase the cable system, If and
when It IS placed on the market for sale.
(i) Successor In Interest. In no ev~nt shall a
transfer of ownershIp
successor 1n Interest
franchIse agreement,
approved by C1ty.
or control be approved w~thout the
becomIng a slgnatory to the eXlstlng
or a modIfIed franchlse agreement
SECTION 63011. pollce Powers. In acceptlng a
franchIse, Grantee acknowledges that its rlghts hereunder are
SUbJect to the polIce powers of CIty to adopt and enforce
general ordlnances necessary to the safety and welfare of the
25
.
publ1C; and 1t agrees to comply w1th all appllcable general
laws and ord1nances enacted by C1ty pursuant to such power.
Any conflIct between the provISIons of thls ord1nance
and any other present or future lawful exerC1se of C1ty'S
police powers shall be resolved 1n favor of the latter, except
that any such exerCise that IS not of general appl1catIon 1n
the JurIsdIction or applIes exclUSively to any cable
commun1cat1ons system franchIse WhlCh conta1ns prov1sIons
Incons1stent wlth thIS ord1nance shall prevaIl only 1f upon
such exerC1se CIty f1nds any emergency eXIsts constItutIng a
danger to health, safety, property, or general welfare of such
exerCise If mandated by lftw.
SECTION 63012. FranchIse Fee.
(a) Annual FranchIse Payment. ~ Grantee of a franchIse
hereunder shall pay to CIty an annual fee In an amount as
deSignated 1n the franchIse agreement. Such payment shall be
1n addltlon to any other prescr1bed fees, lncludlng, but not
IlmIted to, bUSIness llcense and permit fees) and shall
commence as of the effectIve date of the franchIse. CIty,
upon request, shall be furnIshed a statement, either audIted
and certIfled by an Independent CertlfIed PublIC Accountant or
certIfIed by a f1nanclal offIcer ot Grantee, reflectlng 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 Independ~nt audIt of
Grantee's records} and 1f such audIt IndIcates a franch2se fee
26
underpayment of two percent (2') or more} Grantee shall assume
all reasonable costs of such an audIt.
(b)
Acce!?tanc~
bv CltV.
- -
No
acceptance of any payment
by Grantee shall be construed as a release or as an accord and
satlsfactlon of any cla1m CIty may have for further or
additIonal
sums payable as a franchIse fee under thIS
ord1nance or for the performance of any other obl1gat10n of
the Grantee. All amounts pald shall be subject to aud1t and
recomputatlon by Clty.
(c) Pavment scn~dule. FranchIse fee payments shall be
made
1n accordance w1th the schedule 1ndlcated 1n the
franchlse agreement.
(d) Franchls~
Fee It~~lzatlon.
Any Grantee tlpass
through" or ItemIzatlon of franchlse fee costs on subscrIber's
bllls shall be 1n accordance WIth Federal law.
I (e) Fallure
to Make Reaulred Pavment.
- - -
In the event
that any franchIse payment or recomputed amount 15 not made on
or before the dates speclf1ed 1n the franchlse agreement,
Grantee shall pay as addItlonal compensatIon:
(1) An 1nterest charge} computed from such due
date, at an annual rate equal to the maximum interest rate
Wh1Ch could lawfully be charged by a pr1vate lender 1n effect
upon the due date.
(2) A sum of money equal to f1ve percent (5%) of
the amount due 1n order to defray those addltIonal expenses
and costs Incurred by Clty by reason of del~nquent payment.
27
t
Subchapter 13C.
Regu~at~on of Ffanch1~e.
SECTION
63013.
Reoulatorv Author1tv.
City shall
exerC2se approprIate regulatory authorIty under the provIsIons
of thIS Chapter and applIcable law.
If the franchise area
served by the cable communlcatlons system also serves other
contIguous or neIghborIng communltles, CIty may, at Its sole
optlon,
partIc1pate 1n a JOInt regulatory agency, wIth
delegated responSIbilIty in the area of cable and related
communIcatIons.
SECTION
63014.
Requla~ory
ReSDonsibllltV.
- -
City may
exerCISe regulatory responsibIlity, Including, but not limited
to, the folloWing areas:
Ca} ~dmlnisterlng and enforclng the provislons of the
cable communicatIons system franchlse(s).
(b) Coordinatlon
of
the
operatlon
of
publlc,
educattonal, and government access channels and faCIlities.
(c) ProvIdlng 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 facllttles dedlcated to PEG aCCess use, If
prOVIded for in any franchise agreement.
(e) Planning expans10n and growth of pUbl~c benefIt
cable ser"~ces.
28
~
(f) Analyzing the posslblllty of lntegratlng cable
communlcatlons
w1th
other
local,
state,
or natlonal
telecommunlcatlons networks.
(g) Formulat1ng
and
recommendlng
long-range
telecOmmunlcat~ons pol~cy.
SECTION
63015.
Publ1C Usaae of the Svstem.
As
speclfled 1n the franchlse agreement, C1ty shall ut1l1ze a
portlon of the cable communlcatlons system capacltYI and
associated fac1l1tles and resources, to develop and provlde
cable serV1ces that wlll be 1n the publ1C 1nterest.
It 15 the
l.ntent
of
Clty to lnsure that publlCJ educatlonal or
government access facllltles provlded for 1n any franch1se
agreement shall be managed 1n the best publ1C lnterest so that
programmlng
using such faCllltles wlll be open to all
resldents,
and avallable for all forms of publlc expresslon,
communlty lnformatlon, and debate of publlC lssues.
( a)
Qeleqat\on of PubllC
Usage
FaCllltv Manaaement.
- -
Clty
may delegate or asslgn all or a portlon of the
responslblllty
for
management
of publlC, educatlon or
government access fac1l1t1es to an entlty or entltles WhiCh
may lnclude, but not be Ilmlted to, any of the followlng:
(1) ~ nonproflt publlC corporation.
(2) An access faclllty management commlSSlon or
commltteeJ appolnted by Clty, or elected, and representlng a
broad spectrum of the communlty
29
.
(3) An establlshed nonprof~t entIty wIth special
cablecastlng capablllty, such as a local or reglonal communIty
college.
(4) A grantee of a cable franchlse
(5) A CIty department or dIVIsIon wIth specIal
cablecast~ng capabIllty.
(b) FunctIons. Any entlty or entltles deslgnated to
manage all or a portIon of the PEG access faCILItIes and
publlc usage of the system shall share responsIbILIty WIth
CIty for such of the followIng functIons as may be speCIfIed
by CIty:
(1) ~anagem~nt Qf Fac~lltIes. To assume
responslblllty for and ma~agement of the publlC access
faCIlltles as may 1n the franchIse agreement be deslgnated for
communlty-based programm1ng. Commun1ty channels may 1nclude
publlc, educat1onal, and government access channels, as
designated 1n the franch1se agreement.
(2) PEG UtIl1zat1on. Recelve and utIllze or
reallocate for utIllzatIon on a per~odlc bas~s, channel
capaCIty, faCIlIt1es, fundIng, and other support p(ovIded
speclflcally for publlc usage of the cable communlcatlons
system to conform WIth changIng prlorit1es and publIC needs.
(3) AdmlnIstratIon and ReaulatIon. To devLse,
establIsh,
pertalnlng
faCllltles.
and admIn1ster rules) regulatIons, and procedures
to the use and schedul1ng of the PEG access
30
(4) Reoorts
on Ut~llzatlon.
Report to C1ty
annually} or upon request} on the ut~llzat~on of resources}
about the new publlC serVlces developed and the benefIts
achleved for C~ty and ltS resldents.
(5) Non-Dlscrlmlnatorv ~cc~$s. To assure that
the PEG access facilltles are made aval1able to all resldents
of the franchlse area on a nond1scrlmlnatory, flrst-come,
flrst-served basis.
(6) Non-Censorshlp. To assure that no censorshlp
or control over program content of the PEG access facllltles
eXlsts except as necessary to comply wlth Federal prohlb~tlon
of materlal that 1S obscene.
(7) H~rlno of Staff.
To hlre and superv1se
staff.
(8) Pu~cha5e of Materlal~. To make all purchases
of mater1als and equlpment that may be requlred
(9) Development of Fundlng Sources. To develop
sources of fundlng, such as foundatlon or Federal or state
grants, to further communlty programmlng.
(10) Performance of Relevant Functlons. To
perform such other functlons relevant to the PEG access
facllltles as may be approprlate.
(11) Estab~lshmen~ of Budget. To establlsh
budgets on an annual basls, and utlllze funds and resources
recelved from CIty or the publlC usage ent1ty deslgnated 1n
SectIon 63015fa), for the purpos~ of PEG access programmIng.
31
(e) Access Rules. Any ent~ty or ent~tles to whom C~ty
delegates or assIgns access faClllty management
responslbll~tles shall complete a set of rules for the use of
all or a portlon of the access facll1t~es WhICh shall be
promptly forvarded to CIty. The rules shall be prepared 1n
cooperatIon WIth Grantee, and conflrmed by agreement between
the PEG access faCIllty management entlty and Grantee. The
rules shall, at a mln~mum, provlde for:
(1) Access on a flrst-come,
nondlscr1mInatory
area.
basIS
for
all resIdents
fIrst-served,
of the franchIse
(2) Proh1bitlon of commercial use.
(3) Prohlbltlon of any presentatlon of obscene
materIal.
(4) PublIC lnspectlon of the log of producers,
WhICh shall be retained by the Grantee for a perIod of four
years.
(5) Procedures by WhICh Indivlduals or groups who
vlolate any rule may be prevented from further access to the
facllltles.
(6) Free
use of such reasonable amounts of
channel tlme, cablecastlng facl1ltIes, and techn1cal support
as are prOVIded for 1n the agreement between any PEG access
faClllty management entIty and Grantee.
32
SECTION 63016. Rates.
(a) UnIform Aoollcatlon. Grantee shall establIsh rates
for Its serVIces that shall be applIed faIrly and unIformly to
all subscrIbers In 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 serVlces. Grantee shall notlfy CIty
and cable subscrlbers at least thIrty (30) days prlor to any
change 1n rates.
(c) Dlsconnectlon.
There shall be no charge for
dIsconnectIon from the system.
Cd) Reconnectlon. If a subscrIber has faIled to pay
properly due monthly fees or If a subscr1ber dIsconnects for
seasonal
payment
per1ods,
of any
Grantee may reqUIre} In addltlon to full
dellnquent fees, a reasonable fee for
reconnectlon.
(e) No Conslderatlon VeYQnd ~c~edule.
Grantee shall
receIve no conslderatlon whatsoever for or In connectIon WIth
ltS prOVISIon of serVIce to Its subscrIbers other than as
flIed wIth CIty.
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.
Clty'S sole optIon,
Annual ReVIew ot Oual~ty of SerVlce. At
wlth1n nlnety (90) days of the flrst
33
ann~versary of the effectlve date of each franchise, and each
year thereafte~ throughout the term of the franchise, Clty and
Grantee shall meet publICly to reVIew the performance and
quallty of serVIce of the cable communIcatIons system. The
reports requIred 1n Sectlon 63063 regardIng subscrlber
complalnts, the records of performance tests and the opInIon
survey report shall be utILIzed as the basIs for reVIeW. In
add1t1on, any subscrIber may submIt comments durIng the reVIew
meetIngs, eIther orally or 1n wrItIng, and these shall be
consIdered.
(a) WIthln thIrty (30) days after the concluslon of the
qualIty of serVlce reVl~W meetIngs, CIty shall 1ssue a report
WIth respect to the adequacy of system performance and qualIty
of serVIce. If Inadequacles are found, CIty may dIrect
Grantee to correct the InadequacIes WIthIn a reasonable perIod
of tlme.
(b) FaIlure of Grantee, after due notIce, to correct
the lnadequacIes shall be consIdered a materIal breach of the
franchIse, and CIty may, at lts sole dlscretIon, exerClse any
remedy wlthln the scope of thls ordInance consldered
approprlate.
SECTION 63019. Svstem and SerVlces ReVlew. To provlde
for technolog1cal, ecooomlc, and regulatory changes 10 the
state of the art af cable communlcat10ns, to facll1tate
renewal procedures: to promote the maX1mum degree of
fleXlb111ty 1n the cable system, and to achleve a contlnu~ng,
34
advanced modern system, the followlng system and serVlces
reVIew procedures are hereby establIshed:
(a) At Clty's sole optIon, CIty and Grantee shall hold
a system and serVIces reVIew sesSlon on or about the second
annlversary date
of the
franchIse agreement. Subsequent
shall be scheduled by CIty
system
reVIew
seSSIons
approxImately each two (2J years thereafter.
(b) SIxty (60) days prIor to the scheduled system and
serVIces reVIew seSSIon) Grantee shall submIt a report to CIty
IndIcatIng the follOWIng:
(1) All cable system serVIces that are be1ng
prOVIded on an operatIonal baSIS, excludIng tests and
demonstratIons, to CItIes 1n the UnIted States WIth
populatIons comparable to that In the franchIse area] that are
not prOVIded to CIty.
(2) A plan for prOVISIon of such serVIces] 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 reVIew seSSIons shall Include, but not be lImIted to,
serVIces provlded] applIcatIon of new technologIes, system
performance, programmIng, subscrIber complaInts, user
complaInts, rlghts of prlvacy, amendments to the franchIse,
undergroundlng processes, developments In the law, and
regulatory constralnts, and technlcal and economIC feaSIbIlIty
of system expanSIon or upgradIng
35
(d) EIther CIty or Grantee may select addltIonal topics
for dIScussIon at any reVIew seSSIon.
(e) All system and serVIces reVlew seSSlons 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 serVIces 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 Slxty (60) days after the conclusIon
of each system and serVIces reV1ew seSSIon, CIty shall 1ssue a
report, IncludIng specIf1cally a lIstIng of any cable serVIces
not then beIng provided to CIty that are consIdered
technIcally and economIcally feaSIble.
SECTION 63020. New Deve~opments.
(a) A FranchIse Agreement may provIde that subsequent
to each System and SerVIces ReVIew SeSSIon and CIty Issuance
of a report thereon, as set forth 1n Sect10n 63019, the City
Counc11 shall have the authorIty to order a publ1C hearIng on
the prOVISIon of addItional channel capacIty by Grantee or on
the InclUSIon 1n Grantee's cable system of "state of the art"
technology or upgraded faCIlItIes. Notlce of such hearIng
shall be provlded to Grantee and the publlC not later than
th1rty (30) days prIor to such hear1ng.
(b) The City Council may order prOVISIon of addItIonal
channel capacIty or upgrad1ng of faCIlItIes If, after the
36
hearlng provlded In subdlVlS10n (al, it makes each of the
followIng flndIngs:
(1) There eXlsts a reasonable need and demand for
addItIonal channel capacIty and/or state of the art technology
or upgraded facilIties.
(2) PrOVlslon has been made or wIll be made for
adequate rates WhICh wIll allow Grantee a falr rate of return
on Its Investment (lncludlng
provlde the addltlonal channels
technology or upgraded faCILItIes).
(3) Will not result
the lnvestment requIred to
and/or the state-of-the-art
In
economlC
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. Any proposed extenSIon of
franchIse IS subJect to the procedures for franchIse renewal
found In SectIon 63007 of thIS Chapter. WIthout ImplYIng any
IlmItatlons as to other prOVISIons of thIS Chapter, thIS
SectIon IS deemed a materIal prOVISIon wlthln the meanIng of
Sect10ns 63078 and 63093 of thIS Chapter. Non-comp11ance w1th
thIS SectIon shall constItute a breach of thIS Chapter, and
CIty may, at ltS sole dIscretIon, eXerc1se any remedy It deems
approprIate pursuant to thIS Chapter.
37
Subchapter 130.
General FlnQ~G~a~ ~nd Insuranc~ Prov~s~ons.
SECTION 63021. Construction Bond.
(a) WIthIn th1rty (3D) days after the grantIng of a
franchise and prIor to the commencement of any construct1on
work by Grantee, Grantee shall f~le w~th Clty a constructlon
bond 1n the amount specIf1ed 1n the franch1se agreement In
favor of CIty 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 1n the form approved by CIty and
shall, among other matters, cover the cost of removal of any
proper-tIes Installed by Grantee 1n the event sa1d Grantee
shall default In the performance of 1ts franchIse oblIgatIon.
(c) In no event shall the amount of sa1d bond be
construed to lIm1t the lIabIl1ty of Grantee for damages.
Cd) C1ty, at Its sole optIon, may wa1ve thIS
reqUIrement, or permIt consol1dat1on of the constructIon bond
WIth the performance bond and securIty fund speCIfIed,
respectIvely, In SectIons 63022 and 63023.
of
a
franch~se,
CompletIon and Performance Bond.
thIrty (30) days after the award or renewal
a Grantee shall obtaIn and maIntaIn at Its
SECTION 63022
(a) WIth1n
cost and expense, and fIle WIth the C~ty Clerk, a completIon
and pe~formance bond approved by the CIty Attorney and Issued
by a corporate surety authorIzed to do buslness 1n the State
38
of CalIfornIa, In an amount equal to the antIcIpated costs of
the proposed constructIon or reconstructIon, IncludIng the
cost of all system eqUIpment, to guarantee the t~mely
constructIon} or reconstructIon and full actIvatIon of the
cable communIcatIons system and the safeguardIng of damage to
prIvate property and restoratIon of damages Incurred by
utIlItIes.
The bond shall provIde, but not be lImIted to, the
follOWIng 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
franchIse area pursuant to the terms and condItIons of thIS
Chapter and the FranchIse Agreement.
(b) Any extenslon 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 fInds that such extenSIon IS necessary and
approprIate due to causes beyond the control of a Grantee.
(c) The completlon and performance bond shall be
termlnated only after the Clty CounCIl f~nds that a Grantee
has satlsfactorlly completed lnltlal constructlon and
actIvatIon or reconstructlon of the cable communlcatlons
system
and the
pursuant to the terms and condltlons at thIS Chapter
Franchlse Agreement. The prlnclpal sum of the bond
39
may be reduced upon appl~catlon of Grantee and approval by
C1ty CouncIl.
(d) The rIghts r~served to CIty WIth respect to the
completlon and performance bond are In addItIon to all other
rIghts of CIty, whether reserved by th~s Chapter or authorIzed
by law, and no act~on, proceedIng, or exerCIse of a rIght WIth
respect to such completIon and performance bond shall affect
any other rIghts WhICh may be held by CIty.
(e) The completion and performance bond shall contaIn
the follOWIng endorsement:
It IS hereby understood and agreed
that thIS bond may not be cancelled by
the surety nor the ~ntentlon not to
renew be stated by the surety untIl
SIxty (60) days after receIpt by CIty,
by registered mall, of wrItten notIce
of such Intent to cancel or not to
renew.
(f) Upon any faIlure of a Grantee to satIsfactorIly
complete constructIon 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 1n the event of Grantee's abandonment
or materIal delay of the constructIon, reconstruct~on, or
actIvatIon of the system, CIty, after g~vIng Grantee ten (10)
days wr~tten notIce and an addItIonal ten (10) days to cure
the faIlure, abandonment, or delay, shall become empowered
40
thereby to enter the Slte of and take possesslon of the
constructIon, reconstruct1on, or actIvation work tor purposes
of complet1ng the work ltself or emplOYlng some other person
to complete the work, and tor such purposes to allow and use
Grantee's equlpment provlded that the entlre expense of the
completlon of the work, whether done by CIty ltself or by the
employment of another person, shall be charged to Grantee and
provlded further, that the dOlng of such work by CIty Itself
or by the employment of other persons shall 1n no way relleve
Grantee from any covenants, undertaklngs, dutIes, and
obllgatlons under thIS Chapter or franchlse, nor Ilmlt the
rlghts and remed1es of Clty hereunder in any manner
whatsoever.
SECTION 63023. Security Fund.
(a) WIthIn thlrty (10) days after the effectlve date of
the franchise, Grantee shall deposlt lnto a bank account,
establlshed by CIty and malntain on deposIt through the term
of th1s franchIse, the sum specIfIed 1n the franchlse
agreement, as securIty for the faithful performance by It of
all the prOVISIons of the franchIse, and compllance WIth all
orders} permIts, and dIrectIons of any agency of CIty hav1ng
JurIsd1ctIon over 1tS acts or defaults under thiS ordinance I
and the payment by the Grantee of any cla1ms, liens, and taxes
due CIty WhIch ar1se by reason of the constructIon] operation,
or ~a1ntenance of the system.
The securIty fund may be assessed by Clty for purposes
InCludIng, but not lImIted to, the follOWIng;
41
(1) Fa~lure of Grantee to pay C~ty sums due under
the terms of the franch~se.
(2) Re~mbursement of costs borne by CIty to
correct franch~se v~olatlons not corrected by Grantee, after
due notice.
(3) Monetary remed~es or damages assessed agaInst
Grantee due to default or VIolatIon of franchIse requIrements.
(b) At CIty'S sole optIon, some port~on of the securIty
fund may be provIded In the acceptable form of an Irrevocable
letter of credIt or other securlty acceptable to the CIty.
(c) If Grantee falls, after ten (10) days notIce, to
pay to Clty any fran~hlse fee or taxes due and unpaId; or,
falls to pay to C~ty w~thIn such ten (10) days, any damages,
costs; or expenses, whlch CIty shall be compelled to pay by
reason of any act or default of Grantee In connectIon w~th the
franchIse; or, falls, after thIrty (30) days notIce of such
faIlure by CIty, to comply WIth any prOVISIon of the franchIsP
WhICh CIty reasonably determInes can be re~edIed by an
expendIture 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.
42
(e) The
secur1ty fund deposlted pursuant to thls
Section shall become the property of the C1ty 1n the event
that the franch1se 1S revoked for cause by reason of the
default of the Grantee.
The Grantee, however,
shall be
entltled to the return of such securlty fund, or portlon
thereof, as remains on deposlt no later than nInety (90) days
after the eXplratlon of the term of the franchIse} provIded
that there 1S then no outstandlng default on the part of the
Grantee.
(f) The rIghts reserved to C1ty WIth respect to the
securIty fund are 1n add1tIon to all other rIghts of Clty
whether reserved by thIS ordInance or authorlzed by law, and
no actlon, proceedIng, or eXerCIse of a rIght wlth respect to
such secur1ty fund shall const1tute an electlon of remed1es or
a wa1ver of any other rlght CIty may have.
SECTION 63024.
LIOUIdated Damaaes.
- -
By acceptance of the franch1se granted by Clty} Grantee
understands and shall agree that fallure to comply wlth any
tIme and performance reqUIrements as st1pulated 1n th1S
Chapter and the Franchlse Agreement, wlll result 1n damage to
Clty,
and that 1t 1S and w~ll be lmpract1cable to determIne
the actual amount of such damage In the event of delay or
non-performance;
the
Franch1se
Agreement shall 1nclude
proV1S1ons for liquldated damages to be pa1d by Grantee} ~n
amounts set forth In the Franchlse Agreement and chargeable to
43
the secur~ty fund for the occurrence of any of the follow~ng
events:
(a) Fa~lure to complete system constructIon or
reconstruct~on 1n accordance w1th Sections 63030 ~ seq. ,
unless the C~ty C0uncl1 speclflcally approves the delay by
motlon or resolut~on, due to the occurrence of condltlons
beyond Grantee's control.
(b) Fallure to provlde upon wrltten request, data,
documents, reports,
during a franchlse
Informat1on, or to cooperate WIth CIty
renewal or transfer process or cable
communlcatlons system reView.
(c) FaIlure to test, analyze, and report on the
performance of the system fOllOWIng a wrItten request pursuant
to thIS Chapter.
Cd) For fallure to provIde 1n a contInu1ng manner the
types of serVlces proposed in the accepted applIcation, unless
the CIty Council speclfIcally approves Grantee a delay or
change, or Grantee has obtaIned modlf1catIon of 1tS oblIgat1on
under SectIon 625 of the Cable Communlcatlons POllCY Act of
1984.
(el Failure of Grantee to comply wlth operat1onal,
malntenance, or technical standards.
(f) Any other actlon or nonactlon by Grantee, as agreed
upon between CIty and Grantee, and set forth 1n ~he FranchlsP
Agreement. Noth1ng ~n thIS Section shall preclude further
11qu1dated damages as agreed upon by the part1es 1n the
Franch1se Agreement.
44
(g) If the City Manager concl~des that a Grantee IS
llable for llquldated damages pursuant to thlS Sectlon, he or
she shall issue to Grantee by certlfled mall a notlce of
lntentlon to assess llquldated damages. The notlce shall set
forth the baS1S for the assessment, and shall lnform Grantee
that ~lquldated damages wlll be assessed from the date of the
notlce unless the assessment notlce 1S appealed for hearlng
before the Clty Councll and the Clty Councll rules: (1) that
the vlolatlon has been corrected, or (2) that an extenslon of
tlme or other rellef should be granted. A Grantee deslrlng a
hearlng before the C1ty Counc1l shall send a wr1tten notlce of
appeal by certlfled mall to the Clty Manager W1th1n 10 days of
the date on WhICh the Clty sent the notlce of IntentIon to
assess llquldated damages. The hearlng on the Grantee's
appeal shall be wIthIn thIrty (30) days of the date on WhICh
Clty sent the notlee of Intentlon to assess l1quIdated
damages. At any t1me after the eXplratlon of the appeal
perlod or after a hearIng} If the CIty CounCIl sustalns 1n
whole or 1n part the C1ty Manager's assessment of 11guldated
damages} the Clty Manager may at any tIme thereafter draw upon
the securlty fund or letter of credlt regulred by SectIon
63023. Unless the C1ty CounCIl lndlcates to the contrary,
sa1d lIqu1dated damages shall be assessed begInnIng WIth the
date on WhlCh Clty sent the notlce of the lntentlon to assess
the 1Iguldated damages and contInu1ng thereafter untll such
tlme as the VIolatIon ceases, as determlned by the C1ty
Manager.
45
SECTION 63025.
(a) Grantee
granted lndemnlfy]
Indemnlflcatlon.
shall by acceptance of any franchlse
defend] and hold harmless Clty, lts Clty
Councll, boards and commlsslons,
offlcers, agents, servants,
and employees from any and all clalms, sUlts, Judgments for
damages or other rel1ef, costs, and attorneys' fees 1n any way
ar1s1ng out of or through:
(1) The act of Clty 1n grantlng the franch1se.
(2) The acts or omlSSlons of Grantee] lts
servants, employees, or agents lncludlng, but not llmlted to,
any fallure or refusal by Grantee, 1ts servants, employees, or
agents to comply w1th any oblIgatIon or duty lmposed on
Grantee by thlS ordlnance or the franchlse agreement.
(3) The exerC1se of any rIght or prIvIlege
granted or permItted by thls ordlnance or the franchlse
agreement.
Such
to, all
copyrlght,
Indemn1f1catlon shall lnclude, but not be llrnlted
clalms arls1ng 1n tort, contracts, infr1ngements of
vlolatlons of statutes, ord1nances, regulatIons or
otherW1se.
(b) In the event any such clalms shall arIse, the Clty
or any other IndemnIfIed party shall tender the defense
thereof to Grantee. Provlded, however, that Clty 1n 1ts sole
d1scretIon may partlc1pate 1n the defense of such cla1ms at
ltS expense, and 1n such event, Grantee shall not agree to any
settlement of clalms wlthout C1ty approval.
46
SECTION 63026.
Insurance.
(a) Rpqulred
Insurance.
Grantee
sha 11
malntaln
throughout the term of the franch~se Insurance 1n amounts at
least as follows:
(1) Worker's CompensatIon Insurance.
J\s requIred
by the California Labor Code and Employee Llablllty Insurance.
(2) Broad Form Comorehenslve General L~ablllty.
Comprehensive general llablllty Insurance, lncludlng, but not
llmlted to, coverage for bodlly InJury, personal lnJury, and
property
damage,
and broadcaster's llablllty,
shall be
malntalned at the sum(s) speclf1ed 1n the franchise agreement.
(3) Com~rehe~~lve
Auto",oblle
Ll,ab1.llty.
Comprehens1ve automobIle l1ab1llty lncludlng, but not l1m1ted
to, non-ownershlp and hired car coverage as well as owned
vehlcles With coverage tor bodily InJury and property damage
sha~l be malntalned at the sum(s) speCified 1n the franch1se
I
agreement.
(4) Subcontractor Coverage.
(a) Grantee
shall
Include any of Its
subcontractors as Insureds under the poliCies of Insurance
requ1red hereln, or alternatively,
shall prOVide to Clty
certlflcates of ~nsurance and blnd~ng endorsement5 eV1denc1ng
sat~sfactory
complIance
by each subcontractor w1th the
~nsurance requlrements stated hereln.
(b) Verlflcatlon
of
Insurance.
Grantee
sha 11
furnlsh to CIty satIsfactory certlflcates of lnsurance,
cODles of each Insurance ~OllCY}
and orlglnal endorsements
47
affect1ng coverage requlred and fully complYIng wIth all
.lnsurance spec1f1catlons stated here1n. Each such orlg1nal
endorsement shall be slgned by a person authorIzed by that
partlcular Insurer to b1nd coverage on lts behalf.
( c) Acceptablll,ty of Insurers. Each
requIred Insurance POlICY shall be procured from lnsurance
companles w1th a mlnlmum ratlng of B + X or better by A.M.
Best's ratIng serVlce.
(d) Deductlbles and Self-Insured Retentlon.
Any deductlbles or self-lnsured retentIon on the lnsurance
pollcles requlred hereln shall be declared to Clty and be
SUbJect to CIty'S wrltten approval. At the sole dIscretIon of
C1ty, elther (1) the lnsurer may be requIred to reduce or
elImlnate such deductIbles or self-Insured retent10ns as
respects Clty,
may be requIred
losses, related
defense expenses.
1tS off1cials, and employees; QL (2) Grantee
to procure a bond guaranteelng payment of
Investigat1on, clalm admlnlstratlon, and
(e) Notlces
Pertalnlna
to
Insurance
Pollc1es. Each POl1CY of Insurance shall requlre thIrty (30)
days pr10r wrltten notice of cancellatIons, non-renewal, or
materIal changes 1n the terms of such pollcy. Notlce thereof
shall be glven to CIty by regIstered mall, return receIpt
requested, for all of the above-stated Insurance pollCles.
48
rf) AddltlOnal Reaulrements for Insurance
PolICles.
(1) ThlS
Insurance
shall
not be
cancelled,
lImIted In scope of coverage or l~mlts,
or
non-renewed untIl
gIven to CIty.
thIrty
(30) days wrItten ~otIce has been
(2) The CIty of Santa MonIca, members
of Its CIty Counc~l, boards and camm~sslons, offIcers, agents,
volunteers, and employees are Included as addItIonal Insureds
wlth regard to damages and defense of claIms arISIng from (1)
actIVItIes performed by or on behalf of Grantee, (11) products
and completed operatlons of Grantee, or (111) premlses owned}
leased} or used by Grantee. The coverage shall contaIn no
speclal llmltatlons 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 offlcers, agents,
volunteers, and employees It IS agreed that any Insurance or
self-Insurance maIntalned by CIty shall apply In excess of and
not contrIbutory wlth, Insurance provlded by the POlICY.
(4) Insurers shall have no rIght of
recovery or subrogatIon agaInst CIty (lnclud1ng Its off1cers)
employees, volunteers, and other agents and agenCIes), 1t
belng the 1ntentlon of the partIes that the Insurance pollCles
so effected shall protect both partles and be prImary coverage
for any and all losses covered by the above-descrlbed
1nsurance.
49
(5) The above-descr~bed pollcles shall
apply separately to each lnSU~ance company agalnst whom clalm
15 made or SUlt 15 brought except with respect to the llm~ts
of the 1nsurance company's llabIllty.
(6) The 1nsurance company lssulng the
POllCY or pollcles shall have no recourse aqalnst the Clty tor
payment of any premlums or for assessments under any form of
POllCY.
(7) Any and all deduct1bles 1n the
above-descr1bed 1nsurance pollcles shall be assumed by and be
for the account of, and at the sole rlsk of, Grantee.
(8) ~ny fallure to comply WIth
reportlng prov1slons of the pollcles shall not affect coverage
provrded to the Clty, lts offIcers, employees, agents, or
volunteers.
(g) The mlnlmum amounts set forth 1n the
franchlse agreement for such Insurance shall not be construed
to llmlt the liablllty of Grantee to CIty under the franchlse
1ssued hereunder to the amounts of such lnsurance.
Subchapter 13E
DeSlon and Con~truct1on ProVlslons.
SECTION 63027. System DeSign. The cable commun1catlo~5
system shall be constructed 1n accordance w1th the deslgn)
constructlon, or reconstructlon requlrements contalned 1n the
franch1se agreement.
50
SECTION 63028.
Geoaraohlcal Coveraae.
- - -
Grantee shall
design 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.
CablecastIng FaCIlItIes.
Grantee shall
prOVIde
cablecastlng
faCIlItIes
In accordance WIth the
reqUirements of the franchIse agreement.
SECTION 63030.
System 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 add1.tIon,
Grantee shall update thIS InformatIon on a monthly baSIS,
shOWIng speCIfIcally whether schedules are beIng met and the
reasons for any delay.
51
SECTION 63031.
Delav 1n Construct1on.
Grantee shall
make a good fa~th and dlllgent effort to obtaIn all necessary
permIts and clearances. Wlthln two (2) months after the
effectIve date of a franchIse: Grantee shall report to CIty
Its estImate of the InIt~al constructIon or reconstructIon
date. The InItIal date est1mated after two (2) months may be
used by CIty as the presumptlve 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 WhlCh are
beyond its reasonable control or WhICh are not reasonably
foreseeable.
been
SECTION 63032.
establIshed by
PrOVISIon of Servlc~.
After serVIce has
actIvatIng trunk cables for any area,
Grantee shall provIde serVIce to any requestIng subscrIber
w1thIn that area WIthIn thIrty (30) days from the date of
request.
SECTION
63033.
Underqroundlng
of
Cable.
The
undergroundlng of cable 1S encouraged. Cables shall be
lnstalled underground at Grantee's cost where utllltles are
already underground. PrevIously Installed aerIal cable shall
be undergrounded and relocated In concert, and on a
cost-sharlng bas1S, WIth other utllltles, when such other
utllltles may convert from aerlal to underground constructIon.
52
SECTION
63034.
New Oevelo~ment
Underaroundlna.
- -
In
cases of new constructlon or prope~ty development where
utllItles are to be placed underground,
upon request by
Grantee,
the developer or property owner shall glve Grantee
reasonable notlce of the particular date on WhICh open
trenchlng wIll be ava1lable for Grantee's
Installatlon of
condult,
pedestals and/or vaults, and laterals to be provlded
at
Grantee's
expense.
Grantee
shall
also
provlde
specifIcatlons as needed for trenchlng.
Costs of trenchlng and easements
requIred to brlng
servIce to the development shall be borne by the developer or
property owner;
except that If Grantee falls to Install Its
condult, pedestals and/or vaults, and laterals w1thln fIve (5)
worklng days of the date the trenches are avaIlable, as
des1gnated 1n the notlce gIven by the developer or property
owner,
then should the trenches be closed after the flve (5)
day pen.od,
the cost of new trenchlng shall be borne by
Grantee.
SECTION 63035.
Undergroundlng ~t Mult10le Dwelllna
UnIts.
In cases of multlple dwellIng unlts serVIced by aerial
utllltles] Grantee shall make very effort to mln~mlZe the
number of lnd~vldual aer1al drop cables gIVIng preference to
undergroundlng of multlple drop cables between the pole and
the dwellIng unlt.
The burden of proof shall be upon Grantee
to
demonstrate
why
undergroundlng
of drop cables
1S
technlcally or economIcally unfeaSIble.
53
SECTION 63036.
LocatIon o~ Prooertv of Grantee.
(a) Any
WIres,
cable
lInes,
condUIts,
or other
propertIes of the Grantee to be constructed or 1nstalled 1n
streets shall be so constructed or Installed only at such
locations and 1n such manner as shall be approved by the
General SerVices DIrector and sUbJect to all prOVISIons of
thIS subchapter.
(b)
Grantee
shall
not Install any faCIlIties or
apparatus
1n or on other publ1C property, places) easements,
or r1ghts-af-way,
or w1th1n any prIvately-owned area WIthIn
the CIty WhIch has not yet become a publIC street but 15
deSIgnated or delineated as a proposed publIC street on any
tentatIve subdiv1Slon map approved by the City, except those
Installed 1n or on publIC utIlIty faCIl1tIes now eXIstIng,
WIthout obtaInIng the prIor wrItten approval of the General
SerVIces D1rector and WIthout paYIng for the use of such
property.
(e) Grantee shall cause a key map and deta1led 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 orepared by a regIstered
profess tonal CIVIl engIneer or a lIcensed land surveyor and
flIed In the offlce of the General SerV1ces 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 lssuance of a permIt for the
54
InstallatIon of any faClllty or apparatus In accordance wlth
the provlsions of thlS SectIon, Grantee shall fIle such key
map and detalled plat maps wIth all utlllty companIes and
publlC agencles whose faCllltles are affected by such
Installatlon and obtaIn a statement sIgned by a responsLble
offlclal thereof that such utIl1ty or publIC agency has no
objectIon to the proposed locatIon of such faclllty. Such
utlllty companles and publlC agenCIes shall act upon a request
made to them by a Grantee In accordance wIth the foregolng
prOVISIons wIthln thIrty (30) days after such request has been
made to such utlllty 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 1nformatlon to such person or
agency regardIng the locatlon of any of the Grantee's
facllltles In such rIght-of-way. Such InformatIon, If
requested, shall Include sendIng a representatlve famILIar
WIth the Installatlon of cable facllltles to the SIte of the
work to mark or deSIgnate the locatIon of the faCllltles of
Grantee.
(e) In order that the prov1sIons of thIS SectIon may be
reasonably applIed, In Instances where extreme or unnecessary
hardshIp would result from carrYIng out the ~rovls1ons of thIS
SectIon, the CIty CounCIl shall have the power to vary the
mandatory provlslons of thlS SectIon 1n any spec1flC case In
such a manner that substantIal JustIce IS done upon a s~owlng
by Grantee of good cause therefor.
55
SECTION 63037. Standards for Use of Stre~ts.
(a) All transmlSSlon and d1strlbutlon structures,
llnes, and equipment erected by the Grantee wlthln the Clty
shall be so located as to cause mlnlmum lnterference wlth the
rlghts and reasonable convenlence of property owners who
adJoln any of the sald streets.
(b) In case of dlsturbance of any street, easement, or
paved area or other property the Grantee shall, at lts own
cost and expense and In a manner and tlme perIod approved by
the C1ty, replace and restore such street, easement or paved
area, or other property 10 as good a cond~t~on as before the
work involVIng such dlsturbance was done.
(c) The Grantee, at Its expense, shall protect,
support, temporarlly dIsconnect, relocate 1n the same street
or other publIC place, or remOve from the street or other
publlc place any property of the Grantee when requlred by the
General Servlces DIrector by reason of traffIC condltlons:
publ1c safety, street vacatlon, freeway and street
constructlon} change or establIshment of street grades, or the
lnstallatlon of sewers, dralns, water plpes, power llnes,
s~gnal llnes, tracks, or any other type of structures or
lmprovements by publlC agenCIes; provlded, however, that
Grantee 1n all such cases shall have the prlv11eges, and be
subJect to the obllgatlons, to abandon any property of the
Grantee 10 place.
Upon the fallure of the Grantee to commence, pursue, or
complete any work requlred by law, or by the provlslons of
56
thlS Chapter} ar by ~ts franchlse} to be done in any street or
other publiC place wlthln the tlme prescrlbed, and to the
satisfaction af the General SerVices Dlrector, the General
SerVices Director, at hiS optlon, may cause such work to be
done, and the Grantee shall pay to the Clty the cost thereof
in the itemized amounts reported by the General SerVlces
Director to the Grantee within thirty (30) days after receipt
of such item1zed report. Clty shall be permltted to seek
legal and equltable rellef to enforce the prOVisions of thlS
Sectlon.
(d) Any poles or other flxtures places 1n or adJacent
to any street by the Grantee shall be placed 1n such manner as
to comply wlth all requlrements of the City.
(e) Grantee shall, at the request of any person holdlng
a moving permlt issued by the Clty} temporarlly ralse or lower
its Wires to permit the movlng of bUildings. The expense of
such temporary removal or raiSing or lowering of Wlres shall
be pald by the person requestlng the same, and Grantee shall
have the authority to requlre such payment ln advance.
Grantee shall be glven not less than forty-elght (48) hours
notlce to arrange for such temporary Wlre changes.
(f) Grantee shall not1fy C1ty regarding the need to
trlm trees upon and overhanglng streets of Clty so as to
prevent the branches of such trees from comlng 1n contact wlth
the W1r~s and cables of Granteej at the optlon of Clty} such
trlmmlng may be done by Clty at the eXpens~ of Grantee, or by
Grantee under Clty'S supervlslon and dlrectlon of the expense
57
of Grantee. When authorlzed, trlmmlng shall be Ilmlted to the
area requlred for clear cable passage and shall not lnclude
maJor structural branches WhlCh materlally alter the
appearance and natural growth hab~ts of the tree.
SECTION 63038. ConstructIon and Technlcal Sta~dards.
(a) Constructlon Standards.
(1) Grantor Codes and Permlts
Grantee shall
comply wIth all appllcable Clty constructIon codes and permlts
procedures. C1ty shall be entItled to charge reasonable
permIt and lnspectlon fees to recover the speclal nonrecurrlng
lnspectIon costs Imposed by the constructlon or reconstructIon
of the cable system, or by the constructlon, remodelIng, or
malntenance of bUlldlngs, structures, or grounds wIthln the
CIty and under control of Grantee.
(2) Compl1ance
wIth
Safety
Codes.
~11
construct1on
practIces shall be 1n accordance w1th 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) Comollance WIth Pole Attachment Standards.
All aerIal constructIon shall comply WIth the practIces
1ncluded 1n the Bell System Code of Pole LIne ConstructIon.
(4) ComplIance WIth Electr~cal Codes. All
Installat10n of elect~on~c eqUIpment shall b~ of a permanent
nature, durable and Installed In accordance with the
provlsIons of the National ElectrIcal Code (NatIonal FIre
ProtectIon ASSoclatlon) and the National ElectrIcal Safety
58
Code (Natlonal Bureau of Standards),
appllcable state and local codes.
(5) ~ntennas and Towers. Antenna supportlng
structure (towers) shall be deslgned for the proper loadlng as
speclfled 1n Electron1cs Industry ASSocIatIon's R.S. 222-A
specIflcat1ons.
as amended,
and all
(6) Comollance
wIth
AVIatIon
Reaulrements.
Antenna support1ng
structures
(towers)
shall be paInted,
accordance wIth all
the Federal AVIatIon
lIghted, erected,
appl1cable rules
and malntaIned In
and regulatIons of
AdmlnIstratIon and all other applIcable state or local codes
and regulat1ons.
( 7 )
ConstructIon Standards and ReaUIrements.
All
of Grantee's plant and equIpment IncludIng, but not lImIted
to, the antenna SIte, headend and dIstrIbutlon system towers,
house connectIons, structures, poles, WIre, cable, coaxIal
cable, fIxtures and appurtenances shall be Installed, located,
erected, constructed) reconstructed, replaced, removed,
repaired, ma1nta1ned, and operated 1n accordance wIth good
engIneerIng practIces) performed by experIenced maIntenance
and construct1on personnel so as not to endanger or Interfere
wIth Improvements CIty may deem proper to make, or to
1nterfere In any manner WIth the rights of any property owner}
or to hlnder or obstruct pedestrlan or vehIcular trafflc.
(8) Safety, NUisance ReqUIrements. Grantee shall
at all times employ ordInary care and shall Install and
malntaln 1n use commonly accepted methods and deVices
59
prevent~ng fallures and accldents WhICh are lIkely to cause
damage] InJury] or nUIsance to the publIC.
(b) Techn~cal Standards. The Cable CommunIcatIons
System shall meet all technIcal gUIdelInes of the FCC] and all
standards contaIned In the franchIse agreement.
(e) Test and Compl~ance Procedure. Grantee shall
subm~t, wIthIn SIxty (60) days after the effectIve date of the
franchIse agreement, a detaIled test plan descrlb~ng the
methods and schedules for test~ng the cable communIcatIons
system on an ongoIng bas~s to determIne complIance wIth the
provIsIons of the franchIse agreement. The tests shall be In
general conformance wIth the provlslons of the Standards of
Good Englneer~ng PractIces for Measurements on Cable
Televts~on Systems] Issued by the NatIonal Cable TeleVISIon
ASSOCIatIon, and performed at Intervals no greater than twelve
(12) months. The tests may be wItnessed by representatIves of
CIty, and wr~tten test reports shall be submItted to CIty. If
more than ten percent (10%) of the locat1ons tested ~aLl to
meet the performance standards, Grantee shall be requ~red to
Ind~cate what correct~ve measures have been taken] and the
entIre test shall be repeated. A second faIlure of more than
ten percent (10%) may result, at Clty's optlon, In appropr1ate
remed~es.
(d) Spec~al Tests. At any tIme after commencement of
serVIce to subscr~bers) CIty may requlre add~tlonal tests,
full or partlal repeat tests] dIfferent test procedures, or
tests Involvlng a specIflC subscrtber's term1nal. Requests
60
for such addltlonal
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 hardship or InconvenIence to Grantee
or to the subscrIber,
SECTION 63039. AreaWIde InterconnectIon.
(a) InterconnectIon ReqUIred, Grantee shall
Interconnect publIC usage channels of the cable communIcat~ons
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) Interconn~ctlon ~rocedure. Upon receiVIng the
dIrectIve of City to Interconnect, Grantee shall ImmedIately
InItIate negotlat~ons 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.
(e) RelIef' Grantee may be granted reasonable
extenSIons of tIme to Interconnect or CIty may resclnd Its
order to Interconnect upon pet~tlon by Grantee to CIty. Clty
may grant sa~d request If It f~nds that Grantee has negot~ated
1n good faIth and has faIled to obtaIn an approval from the
system or systems of the proposed Interconnect10n] or that the
61
cost of the lntercOnnect1on would cause an unreasonable or
unacceptable Increase In subscrIber rates.
(d) Coooeratlon Req~~red. Grantee shall cooperate WIth
any Interconnectlon corporatIon, reglonal InterconnectIon
authorIty Or CIty] County, State, or federal regulatory agency
which may be hereafter establIshed for the purpose of
regulatIng, fInanCIng, or otherWIse prov~dIng for the
InterconnectIon of cable systems beyond the boundarles of the
franch1se area.
(e) InItIal TechnIca~ ReQUIrem~n~s to Assure Future
InterconnectIon CapabllIty.
(1) Every Grantee receIVIng a franchIse to
operate a cable communlcat~ons system w~thln the franchIse
area shall use the same freque~cy allo~atIons for commonly
prov1ded teleVISIon SIgnals so far as IS technIcally and
economlcally feasIble.
(2) Grantee
access
eqUIpment
that
shall prcv~de local orIgInatIon and
15 compatlble throughout the area so
v~deotapes can be shared by varIOUS
that
VIdeocassettes
or
systems
.
62
Subchapter 13F.
SerVlve ProvIsIons.
SECTION
provide the
63040. Servlc~s to be ~rovlded. Grantee shall
InItIal serVIces lIsted In ~he franchise
agreement.
SerVIces shall not be reduced wIthout thIrty (30)
days prlor notIfIcatlon to CIty.
(a) A franch~se applIcatIon or proposal for renewal
shall lnclude a descrlptIon of Grantee'g system desIgn and a
descrIpt~on of programmIng and serVIces beIng offered,
lncludlng opt~onal prem~um serVIces] a descr~ptlon of
faCll1tIes beIng proposed for local orIgInatIon programmIng,
and faCllItIes beIng offered to varIOUS communIty
Inst1tutIons. The offer of programmIng and serVIces contaIned
withIn a Grantee's applIcatIon shall be deemed a blndlng offer
of such Grantee for and to the benefIt of CIty and the
subscrIbers of Grantee. In the event a program orlglnator
ceases to prOVIde a serVIce] or 1n 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 (3D}
days prIor wrItten notIce to CIty, substltute serVIces. CIty
may Include categorIes of VIdeo programmIng or other serVIces
as franchIse reqUIrements as provldfld by the Cable
Commun~catlons POlICY Act of 1984.
(b) The system, after the IncorporatIon of
such
substItute serVIces,
shall
satIsfy the warrantles made by
63
Grantee to subscr1bers and potentIal subscrlbers 1n 1tS
applIcatIon for a franchIse. The CIty CouncIl shall have the
r~ght 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 certaln broad categorIes of VIdeo
or other InformatIon programs that were commltted by Grantee
In Its Proposal are not beIng delIvered. Any such order shall
Issue only after a publIC hearIng has been scheduled and held;
and wrItten notlce of such hearIng shall have been prOVIded to
Grantee and to the publlc at least thIrty (30) days prIor to
such hearIng. Any such order may be enforced by an
appropr1ate actIon 1n the courts of CalIfornIa or the UnIted
States. A Grantee shall not, ~n relatIon to thIS SectIon, be
deemed to have wa1ved any fIght accorded to a franchIsed cable
teleVISIon operator arISIng under the FIrst Amendment to the
Const1tut~on of the UnIted States or Artlcle I, SectIon 2 of
the CalIfornIa ConstItutIon.
(e) Notwlthstand1ng subsectIons (a) and (bl, Grantee
may] In accordance WIth the Cable CommunicatIons POlICY Act of
1984,
upon thIrty (30)
days pr10r wrItten notIce to Clty,
rearrange,
replace, Or remove a partlcular cable serVIce
reqUIred by the franch~se 1f'
(1) Such serV1ce 1S no longer avallable to
Grantee: or
64
(2) Such serVIce 1S avaIlable to Grantee only upon
the payment of a royalty requlred under Sectlon 801(b)(2) of
TItle 17, UnIted States Code, WhICh Grantee can document:
(I) Is substantIally in excess of the amount
of such payment requIred an the date of Grantee's offer to
provIde such serVIce] and
( 11 )
Has not been specIfIcally compensated
for through a rate Increase or other adJustment.
NotWIthstandIng subsectIons
( 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
actlons are not SUbJect to regulatIon.
SECTION 63041.
BaSIC Cable SerVIce.
The "BaSIC Cable
SerVIce"
shall
Include any serVIce tIer WhIch Includes the
retransmISSIon of local teleVIsion sIgnals and shall Include
at least one channel for publIC access, one channel for
educatIonal access,
and one for government access.
ThIS
serVIce
sha 11
be
provIded to all subscrIbers at the
establIshed monthly subscrIptIon rates.
SECTION 63042.
~aSIc RadIo SerVIce.
The "BaSIC RadIO
SerVIce"
shall
Include the prov~sIon of all audIO serVIces
deSIgnated
In
the
franchIse
agreement,
l'"lcludlna
""
retransmISSIon of local broadcast FM radIO sIgnals] and cable
cast FM sIgnals.
ThIS serVIce shall be provIded to all
subscrIbers at establlshed monthly subscrIptIon rates.
65
SECTION 63043.
InstItutIonal SerVIce.
If specIfled In
the franchIse agreement,
the ~Instltutlonal SerVIce" shall
Include
the
prOVISIon of transmISSIon and/or receptIon
serVIces to InstItutIonal users, on a commerCIal use baSIS dt
establIshed rates. SerVIces may Include the dIstrIbutIon of
VIdeo or non-VIdeo SIgnals.
SECTION
63044.
AddItIonal
S~bscrlber
SerVIces.
"AddItIonal SubscrIber SerVIces]" not Included In the serVIces
speCIfIed above, may be prOVIded eIther withIn the baSIC cablp.
serVIce rates or on a premIum baSIS, subJect to applIcable
law.
SECTION 63045.
Local OrIalnatlon Channel[sl.
Grantee
shall operate any cablecastlng studIOS on a hIgh-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 b@
on prOVIdIng communIty-focused programmIng that IS unavaIlable
to VIewers on broadcast teleVIsion channels.
SECTION 63046 Publ1c. EducatIonal. and Government
(PEG) Access FacilItIeS. Grantee shall prOVIde the PEG access
faCIlItIes, ~ncludIng channel capaCIty, necessary ~nterface
eqUIpment] and cablIng, to permIt operat~on as spec~fIed In
the franchIse agreement.
.
66
SECTION 63047.
Cable Channels for CommercIal Use.
Grantee shall designate channel capaCIty for commerCIal use as
requIred by appl~cable law.
SECTION 63048. Leased Use of P~G Access FacILItIes. If
C~ty determInes that a new serV1ce would be 1n the publIC
Interest and receIves a bona fIde offer from a thlrd party to
prOVIde such a serVIce} Grantee shall be offered the first
rIght of refusal to prOVide the serVlce on the same terms. If
Grantee declInes to prOVIde the serVIce, CIty may utIlIze
approprIate PEG access faCIlIties to accommodate that serVIce.
SECTION 63049. Universal Connect\on. CIty may requlre
that all dwellIng unIts Within the franchlse area shall be
connected phys~cally to the cable system by Grantee by means
of drop cables termlnatlng at each dwelling un1t, whether or
not the dwellIng unIt's occupants deSIre to subscrIbe to cable
serVIce. The cost and charges shall be determIned at the tIme
such connectlon 1S requ1red. Grantee shall be entItled to
recover
the
Incremental cost of providIng a universal
connectIon.
Subchapter 13G.
Operation and MaIntenance.
SECTION 63050.
Open Books and Records.
City shall have the rlght to Inspect 3t any tIme durlng
normal bUSlness hours all books} records, maps} plans} serVIG@
complaint logs] performance test results and other lIke
67
materlals of Grantee WhICh relate to the operatIon of the
franch~se. Grantee shall keep a separate record for the
franchIse at an offlce wlthl~ the franchlse area, WhICh record
shall show the Items set forth hereIn. Grantee shall prov1de
such lnformatIon 1n such form as may be reasonably requlred by
CIty for said records.
If any of such books or records are not kept In the
local offlce] or upon reasonable request made avaIlable to
CIty, and If CIty shall determlne that an examlnatIon of such
records IS necessary or approprlate to the performance of any
of C~ty's duties, then all travel and maIntenance expense
necessarlly Incurred 1n maklng such examlnatlon shall be paId
by Grantee.
SECTION 63051.
Records ReqUIred.
(a) In any event Grantee shall at all tImes malntaIn:
(1) The complaInt fIle requlred by Sectlon 63063
hereIn.
(2) A full and complete set of plansl recordsl
and "as-bUIlt" maps showlng the exact locatIon of all cable
communIcatIons system equ~pment 1nstalled or In use In the
franchIse area, exclUSIve of subscrIber serVIce drops.
SECTION 63052. Rlohts of Indlv~duals
(a) Non-Dlscr~mlnatlon. Grantee shall not
5erVIce,
deny access,
or otherWIse dIscrImInate
deny
agaInst
subscrIbers,
of sex, race,
channel usersl or general cIt1zens on the b~SlS
color] rellg1on, ancestry, nat10nal orIglnJ age,
68
handicap, pregnancy, marltal status, famlly composltlon, or
the potentIal or actual occupancy of mInor chlldren. Grantee
shall comply at all tlmes wlth all other appllcable federal,
state, and local laws and regulatIons, and all executIve and
admInlstratIve orders relatIng to nondIscrImInatIon WhICh are
hereby Incorporated and made part of thls ordInance by
reference.
(bl Falrness and Accesslbll+ty. The entIre system of
Grantee shall be operated In a manner conSIstent WIth the
prInCIple of faIrness and equal accessIbI1lty of lts
faCIIItles, eqUIpment, channels, stUdlOS, and other serVIces
to all CItIzens, buslnesses, publIC agenCIes] and other
entItles haVIng a leg~tlmate use for the system, and no one
shall be arbltrarI1y excluded from Its use Allocatlon of use
of saId facIl~tles shall be made accordlng to the rules or
declslons of Grantee] CIty ln 1tS lawful exerCIse of
regulatory authorIty, and any state or federal regulatory
agencles affect~ng the same.
SECTION 63053. ContInulty of SerVIce Mandatorv.
(a) It shall be the rlght of all subscrIbers to
contlnue receIvlng serVIce ~nsofar as theIr fInanCIal and
other obl~gatIons to Grantee are honored. In the event that
Grantee elects to overbulld] rebUIld, modlfy, or sell the
system, or Clty glves notIce of Intent to termInate or falls
to renew thIS franchIse, Grantee shall act so as to ensure
that all subscrlbers recelve contInuous, unInterrupted
serVIce.
69
In the event of a change of franchIsee, or In the event
a new operator acqulres the system, Grantee shall cooperate
wIth CIty, new franchlsee} cr operator In maIntaInIng
contlnulty of serVice to all subscrlbers. DurIng such perIod]
Grantee shall be entItled to the revenues for any perIod
durIng WhICh lt operates the system, and shall be entItled to
reasonable costs for Its serVIces when It no longer operate~
the system.
(b) In the event Grantee falls to operate the system
fOr seven (7) consecutIve days wlthout prIor approval of CIty
or w~thout Just cause] Clty may, at Its optIon, operate the
system or deslgnate ~n operator unt~l such tIme as Grantee
restores serVlce under condItIons acceptable to CIty or a
permanent operator IS selected. If CIty IS reqUIred to
fulflll th~s obllgatlon 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 e~cess
of the revenues collected by CIty that are the result of
Grantee's faIlure to perform.
shall
have
63054. Grantee Rules and RegulatIons. Grantee
the authorIty to promulgate such rules,
terms] and cond~tIons governlng the conduct of
as shall be reasonably nec~ssary to enable
exerCIse Its r~ghts and perform 1tS oblIgat1ons
SECTION
regulatIons,
Its bUSIness
Grantee to
under the franchlse} and to assur~ an unInterrupted serV1ce ~o
each and allot 1tS
customers.
Such ru:es, regulat1ons;
70
terms]
and condItIons sh~ll not be In conflIct wIth the
prOVISIons hereof or applIcable state and federal laws, rules]
and
regulatlons.
Such
rules]
regulatlons,
terms and
condItIons shall be flIed wIth CIty.
SECTION 63055.
Un~form and VehIcle IdentIfIcat~on.
Every employee of Grantee or Its constructIon contractors or
subcontractors shall be clearly IdentIfIed WIth the name of
Grantee VISIble to the publIC as a representatIve of Grantee.
Eve ry
serVIce
vehlcle
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 h1.gh.
Grantee employees and agents shall
also wear an Ident1f1catlon badge WIth the agent's name and
photograph.
SECTION 63056.
Eaual OooortunItv Proarams.
- --
Throughout
the term of the franchIse, Grantee shall conduct Its buslness
as an Equal Opportunlty Employer.
In addltlon, throughout the
term of the franchlse, Grantee shall maIntaIn a POllCY that
all
employment deCISIons,
practIces]
and procedures are
conducted WIthout dIscrImInatIon 1n v~olatIon of state or
federal
law on the baSIS of an IndIVIdual's race, color,
relIgIon,
age,
sex]
nat10nal orIgIn) or phys~cal or mental
handIcap.
Grantee's POlICY shall apply to all employment
actIons
~ncludlng advertISIng] recru~tlngJ h~rIng] promotLon,
transfer)
renumerat~on,
~electlon for traInIng]
company
benefIts,
d~SClpllnary actIon]
lay-off]
and termlnatlon.
71
Grantee shall carry out thIS policy
dedlcatIon to a determIned and sustaIned
equal employment opportunItIes.
through contInued
effort to provIde
Subchapter 13H.
Consumer Protect~Qn.
SECTION 63057.
(a) Grantee
Requests for Cab~~ ~~rvIce a~d Repa+rs.
shall maIntaIn an off1ce ~n the serVIce
area WhIch shall be open not less than fIfty hours per w~ek]
wIth a mInImum eIght hour day on weekdays and four hour day on
Saturdays Grantee shall maIntaIn a publIcly l1sted toll-free
telephone w~th suffICIent communIcatIon lInes and staff so as
to receIve requests tor In~tIating cable serVIce and requests
for repaIrs] bllllng1 or adJustments on a twenty-four (24)
hour a day basIs.
(b) Grantee shall render efflcIent 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 maIntaln~d for all serVIce
InterruptIons and requests for cable serVIce as requIred by
SectIon 63063.
(c) Grantee
shall
maIntaIn suffICIent repaIr and
maIntenance
crews
capable
of
~espondlng to subscrLber
wIthIn the followIng tIme
complaInts
or requests for serVIce
72
perIods after receipt or notIfIcatIon of the complalnt or
request]
Includl.ng weekends.
No charge shall be ~ade to the
subscrIber for thIS serVIce unless the serVIce request can be
demonstrated to be both repeated and non-cable system ln
orlg~n, or as a result of damage caused by subscrlber
(1) System Outage.
W~thln two hours of receIvIng
subscriber calls WhICh by number identlfy a system outage of
sound or plcture of one or more channels]
affect~ng all
subscrIbers of the system or a consIderable number thereof.
( 2 )
Isolated
Outage.
WIthln
24
hours of
receIVIng a request for serVIce IdentIfYIng an lsolated outage
of sound or pIcture for one or more channels.
( 3 )
InferIor Receotlon QualIty
Wlthln 48 hours
of recelvlng a request for serVIce IdentIfYIng a problem
concernIng pIcture or sound qualIty.
Grantee shall be deemed to have responded to a request
for serVIce under the prcv~slons of thIS SectIon when a
technICIan arrIves at the serVIce locatIon, and In the case of
(1 ) ]
(2), and (3) above,
leaves wrItten not~flcatlon of such
arrIval
after
makIng reasonable efforts to notIfy the
subscriber of the technICIan's presence.
Subscr1bers
not satIsfIed that serVIces have been
prOVIded as outlIned 1n Chapter 13,
Artlcle VI of the Santa
Mon~ca Munic1pal Code and the FranchIse Agreement may rotlfy
the System Manager
Upon notIflcat1on by subscrIber] the
Grantee shall work wlth the subscrIber to cure the faIlure of
serVIce WIthIn 48 hours
If ~he fa1lure 15 not cured w~~hln
73
that
tlme perIod,
Grantee shall credIt the subscrIber's
account on a pro rata baSlS for loss of serVIce commenc~ng
from the tIme of notltlcatlon by subscrlber to Grantee.
Grantee shall at the tIme of Inltlal 5ubscrlptIon to the
system]
and
annually
thereafter,
furnIsh a notIce to
subscrlbers of the1r rIght to a refund for any loss or
InterruptIon of serVlce for 48 hours or more.
SECTION 63058.
Comola~nt Procedure.
( a )
Procedures.
Grantee shall establ~sh procedures for
receIVIng, actIng upon, and resolVIng subscrlber complaInts to
the satIsfactIon of the CIty Manager
Such procedures shall
Include a method for resolVIng subscrlber complalnts wlthout
1nterventlon by C~ty and shall prescrIbe the manner 1n WhICh a
subscrIber may submIt In wrltlng a complaint that Grantee has
VIolated any proVlslon of thIS Chapter] or
the ter~s and
condItIons of the subscrlber'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) Complalnts to Grantee.
Any subscrIber who cannot
resolve a dIspute wlth the Grantee may fIle a complaInt w~th
the
Grantee
on a form dpproved by the Clty Manager.
Immed~ately upon receIpt of a complaInt from a subscrlber,
.
Grantee shall aSSIgn a case number to such compla1nt and send
to the complaInIng subscrIber wrItten acknowledgment of
74
receIpt of the compl~lnt as well as a descrIptIon of the
complaInt resolutIon process.
(e) Grantee InvestIgatIon. Upon receIpt of a
SUbscrIber Statement of Compla~nt, Grantee shall conduct an
Invest~gatlon of the subscrIber complaInt. Grantee, wlthln
ten (10) days of receIVIng the complaInt, shall notIfy the
subscrIber In wrItIng of the results of the InvestIgatIon] Its
proposed actIon or resolutIon] If any and the reason for Its
deCISIon. Grantee shall also notIfy the subscrIber of the
subscrIber's rIght to flle a request for hear~ng wlth CIty ln
the event the subscriber IS dIssatIsfIed WIth Grantee's
deCISIon.
SECTION 63059. Reauest for Hearlna.
(a) A subscrIber who IS dlssatlsfled w~th Grantee's
deCISIon or who was not sent a wrItten deCISIon WIthIn the ten
(10) day perIod can fIle a request for a hearIng with the CIty
Clerk wlthIn ten (10) days of receIpt of Grantee's deCISIon or
If Grantee has faIled to Issue a deciSIon as requIred by
SectIon 630SB(b}, WIthIn thIrty (30) days of filIng of the
subscrIber's complaInt.
(b) The CIty shall notIfy the Grantee of the request
for a hearIng and the Grantee shall ImmedIately forward to the
CIty copIes of all materIals, InclUdIng the complaInt,
InvestIgatIon reports, and deCISIons, related to the dIspute.
The CIty shall set the matter for hearlng as prOVIded In
Sectlon 61060 unless It lnformally resolves the compla~nt tc
the subscrIber's satlsfact~on w~thln ten (10) days.
75
SECTION 63060. ComplaInt Heqrlnqs Conducted bv HearInG
Offlcer A hearlng shall be conducted by a hearIng offlcer
appoInted by Clty follOWing notIce 1n wrIting speclfYIng the
tIme and place for such hearing. The hearing shall be
conducted In accordance WIth procedures establIshed by the
C~ty pursuant to MunlcIpal Code Sect10n 6126C-E and Will be
scheduled WIthin twenty (20) days of receIpt of the request.
The hearIng shall be conducted Informally, and the parties may
offer any ev~dence relevant to the dlspute, WhICh the hearing
officer may deem necessary to an understandIng and
determinatlon of the dIspute. The deCISIon of the hearlng
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 falls 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 llmlt any common
law or statutory rIghts of subscrIbers.
76
SECTION 63061. Comolalnt Notlf~catlon.
G~antee shall
provIde wrItten notIce to each subscrIber at least once every
calendar year descrIbIng the procedure establIshed by Grantee
for resolVIng subscrIber complaInts and of the subscrIber's
rIght to have Grantee's response to a subscrIber complaInt
revIewed by the CIty 1n accordance wIth the provlslons of thIS
ordInance. The notIce shall Include the name] bUSIness
address] and bUSIness telephone numbers of Grantee's offIce
and of CIty offIce des1gnated to receIve complaInts. The form
of the notlce shall be subJect to the approval of Clty.
SECTION 63062. Remed~es for VIolat1ons. A hearIng
offIcer may, as a part of a subscr~ber complaInt dec~sIon
Issued under the provls~ons of thIS Chapter} Impose a penalty
on Grantee as speclfled In the franchIse agreement. A penalty
may be Imposed only If the hearIng offIcer fInds that Grantee
has arbItrarIly refused or faIled WIthout JustIfIcatIon to
comply WIth the prOVISIons of th~s Chapter] Includlng] but not
lImIted to, failIng to prOVIde a wr1tten response to a
subscrlber complaInt
SECTION 6~C63. ComplaInt Flle and Reports. An accurate
and comprehenSIve flle shall be kept by Grantee of any and all
complaInts regardlng 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 f11es and records shall
lnclude:
77
(a] A summary of complalnt3, ldentlfYlng the number and
nature of complaInts)
t~e date and tIme complaInts were
receIved] and theIr dISpOSItIon, 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 succeedlng month.
(b) ~ wrItten or computer-stored log and summary of all
serVlce InterruptIons.
(e) A wrItten or computer-stored log and summary of all
requests for cable serVIce and thelr dISposlt~on.
(d) The results of an annual opInIon survey report
WhICh
IdentIfIes
satIsfact~on
or dIssatIsfactIon among
subscrIbers WIth cable communIcatIons serVIces offered by
Grantee.
~ copy shall be submItted to CIty no later than twc
(2) months after the end of Grantee's fIscal year. The survey
reqUIred to make sald 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-paId self-addressed postcards.
SECTION
63064.
Tenant RIghts.
Grantee shall be
reqUIred to provlde serv~ce to tenants In IndIVIdual units of
a mult~ple hOUSIng faCIlIty WIth all serVIces offered to other
dwellIng unIts WIthIn the franchIse area, so long as the owner
of the faclllty consents ln wrlt~ng] 1f requested by Grantee,
to the follOWIng:
.
(a) Grantee's prOVIdIng of the serVIce to unIts of the
faCIlIty.
78
(b) Reasonable condltIons and tlmes for Installatlon]
malntenance, and Inspectlon of the system on the faCIlIty
premlses.
(e) 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 w1despread use of
the system.
(e) Absence of addltlonal rental charges for tenants
who receIve cable serVIce.
SECTION 63065.
CltV RIohts.
When there have been
Slmllar complalnts made or when there eXlsts other eVIdence
WhICh, 1n the Judgment of the CIty Manager, easts doubt on the
rellablllty or quallty of cable servlce] the Clty Manager may
requlre Grantee to test] analyze] and report on the
performance of the system. Such report shall be dellvered to
the CIty Manager no later than fourteen (14) days afte~ the
Clty Manager notIfIes Grantee of the requlred report and shall
lnclude the followlng lnformatIon: the nature of the
complaInts WhICh precIpltated the spec1al testsj what system
component was tested, the equ1pment used] and procedures
employed 10 saId testIng; the results of such test, and the
method ln WhlCh sa~d complalnts were resolved. If requested,
the CIty Manager may allow Grantee addltlonal tIme to complete
the report for good cause.
The CIty Manager ~ay requ1re that tests and analyses
shall be supervised by a professional engIneer not on the
79
permanent staff of Grantee ^fter the engIneer has sIgned all
records of the specIal tests they shall be forwarded to the
CIty Manager wlth a report InterpretIng the results of the
tests and recommend1ng actlons to be taken by Grantee and
CIty.
The C~ty Manager may requIre tests, analyses, and
reports coverIng speclf~c subJects and characterlstlcs based
on complaInts or other ev~dence when and under such
CIrcumstances as the Clty has reasonable grounds to bel1eve
that the complaInts or other eVIdence requlres that tests be
performed to protect the publIC agaInst substandard cable
serVlce. Grantee shall be responslble for the costs of any
and all tests] analyses, and reports requlred under thls
Sectlon.
SECTION 63066. PrIvacv.
(a) Each Grantee shall strlctly observe and protect the
rights of prIvacy and of property of subscr~bers and users at
all tImes. InformatIon on IndIVIdual subscrlbers] lndIvldual
subscr~ber preferences of any kInd IncludIng, but not lImIted
to, VIewing habIts, polItIcal, soclal] or economlC
phIlosophIes, belIefs] creeds, relIgIons, shoppIng chOIces,
Interests, oplnlons, energy uses, medIcal InformatIon, bankIng
data or InformatIon, or names, addresses] or telephone
numbers, or any other personal or prIvate lnformatlon] shall
not be ma1ntaIned or revealed to any person, maIlIng serv~ce,
InvestIgatIng agency or department, com~any] other agency, or
entIty unless upon the authorlty of a court of law or upon
80
pr10r wr1tten permISSIon of the subscr1ber. The request tor
permlsslon must be concalned 10 a separate document with a
promlnent statement that the subscrIber 1S authorizlng the
permlSSlon In full knowledge of its provisIon. Such
authorIzation shall not In any event be requlred as a
cond1t~on of receiVIng serVIce.
(b) Grantee may release the number of lts subscrIbers
but only as a total number and as a percentage of the
potentIal subscrlbers throughout the CIty. When IndIcating
the number of subscribers VIeWIng a particular channel at a
particular time, 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 Grantee shall
provlde such lnformatlon to Clty upon request.
(e) At the t1me of enter~ng lnto an agreement to
prov1de 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 consp1cuously lnforms the
subscrIber of:
( 1 )
The
nature
of personally ldent1flable
collected w~th respect to the
lnformatlon
collected or to be
subscrIber and the nature of the use of such ~nformatlon.
(2) The period durIng WhiCh such InformatIon w1ll
be maInta1ned by the cable operator
81
(3) The
tImes and place at WhICh the subscr~ber
such lnformatlon In accordance wlth
may have access to
subsectlon (f)
(4) The lImItatIons provlded by thIS Sectlon wIth
respect to the collectlon and dIsclosure of Informatlon by a
cable operator and the rIght of the subscrIber under state and
federal law to enforce such llmItatlons.
In the case of subscrlbers who have entered Into such an
agreement before the effectIve date of thIS SectIon] such
notIce shall be provIded wlth1n 180 days of such date and at
least once a year thereafter.
(d) Informatlon collected on 1ndlvIdual subscrIbers
shall be lImIted to InformatIon that 1S relevant and necessary
to provlslon of the serVlces requested by subscrIbers.
(e) Grantee shall be responsIble for the accuracy]
relevance, and completeness of any InformatIon collected,
maIntaIned, and revealed about Ind~v1dual subscrIbers.
(f) A cable subscrIber shall be provlded access to all
personally IdentIfIable InformatIon regardlng that subscrIber
WhICh 15 collected and maIntaIned by a cable operator. Such
InformatIon shall be made avaIlable to the suoscrlber at
reasonable tImes and at a convenlent place deSIgnated by such
cable operator. A cable subscrlber shall be prOVIded
reasonable opportunIty to correct any error 1n such
lnformation.
(9) Grantee
.
may
maIntaIn such lnformatlon a~ IS
necessary to bIll subscr1bers f0~ the purchase of any system
82
serVlce. Grantee may contr~ct for blll~ng servIces, WIth the
written consent of the CIty prov~ded that such contractor
agrees to be bound by the_ prov~slons of thIS Section and the
penaltIes thereto pertalnLng.
(h) NeIther Grantee nor any other person shall InItIate
In any form, the d~scovery of any InformatIon on or about a
subscrIber's premIses without prIor valId authorIzatIon from
the subscrIber potentially affected.
(i) A subscrIber may at any time revoke any
authorIzation previously made, by delIverIng to Grantee In
wrItlng by mall or otherWIse, hIs/her deCISIon to so revoke.
~ny such revocatIon shall be effect~ve upon receipt by
franchIsee.
(J) No monitoring of any subscrIber terminal shall take
place WIthout speCIfIC prIor valId wrItten authorIzatIon by
the user of the terminal In questIon; prOVIded, however] 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
mechanIsm can operate effectIvely and yet give absolute
protectIon agaInst any InvaSion of prIvacy.
(k) Grantee shall not tabulate any test results, ncr
permit the use of the system for such tabulatIon, whlch would
reveal the commerCial product preferences or opinIons of
IndIVIdual
subscrIbers,
members of the1r famIlIes or theIr
63
invltees] lIcensees, or employees without prlor valld wr~tten
authorlzatlon of the subscriber.
(1) Each compilatIon, publicatIon, tabulation} or other
d~ssem~natIon of each piece of Infcrmat10n made or permItted
to be made ln violatlon of thiS Section shall be consIdered a
separate vlolation.
Subchapter 13I.
R~ghts Reserved to C~tv.
SECTION 63067. Right of Eminent Domaln. Noth~ng
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 rlght 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 abr~dge, either for
a term or In perpetUIty, the City's right of emlnent domain.
SECTION 63068. ~lg~tS Autnor~zed by City Charter or
Ordinance. There IS hereby reserved to City every right and
power WhICh is requlred to be reserved by the prOVisions of
th1s 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 actlon or requlrements of the City 1n lts
84
exerC1se of such sk~lls or power heretofore or hereafter
enacted or establlshed.
SECTION 63069. Rlght to Amend Chapter. There IS hereby
reserved to the Clty the power to amend any Sectlon of thls
Chapter so as to reqUIre addltlonal or greater standards of
constructIon, operatlon, maIntenance] or otherWIse on the part
of Grantee.
SECTION 63070. RIght to Exerc~s~ Other G9vernmenta~
Powers. Nelther the grant~ng of any franchlse under the
provls1ons of thlS Chapter nor any prOVIslon of thlS Chapter
shall constltute a walver or bar to the exerCIse of any
governmental rIght of power of City.
SECTION 63071.
Rlght to Brlng an Aet1on. The CIty
CouncIl may take such actIons as are necessary and convenIent
~n the exerCIse of its JurisdIctIon under the provls10ns of
thIS Chapter.
SECTION 63072.
Riaht of Insoectlon of ConstructIon.
CIty shall have the rlght to inspect all constructlon or
lnstallatIon work performed subJect to the prOVISIons of the
franchIse and to make such tests as It shall flnd necessary to
ensure compllance wlth the terms of thIS franchIse and other
pertInent provIslons of law.
SECTION 63073.
Rlght to Insoect FaCllltles. Gr~ntep
shall allow CIty to make Inspectlons af any of Grantee's
faCIlItles and eqUIpment a~ any ttme upon reasonable notIce,
65
or]
~n the case of emergency,
upon demand wIthout prior
notIce.
SECTION 63074. Rloht of InterventIon. CIty shall have
the rIght of InterventIon 1n 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 Franc~}se VIolatIons. If
Grantee falls to perform any oblIgatIon under the franchIse,
or falls to do so In a tImely mannerl CIty may at Its optIon}
and ~n 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 prov1ded, 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
lncludlng, Without llmltatlon} Its rIght to recOVer from
Grantee such addItIonal damages, losses} costs and expenses,
Includ~ng actual attorneys' fees, as may have bee~ suffered or
86
1ncurred by City by reason of or arIsIng out of such breach of
the franchIse. Th1S provls10n for assessment of damages IS
1ntended by the parties to be separate and apart from CIty'S
rIght to enforce the provislons of the constructlon and
performanee bonds
and IS Intended
damages.
(b) TermInate the franchlseJ
prOVIded for 1n Sectlons ~3021 and 63022,
to provlde compensation to CIty for actual
stated In Section 63078J belowJ or
the franchise.
for any of the causes
other materIal breach of
any
wh~ch
City maYJ
or all of the
In Its sole Judgment and dIscretIon, Impose
above-enumerated measures agaInst GranteeJ
shall
be
1n
addItIon to any and all other legal or
it has under the franchise Or under any
equltable
appllcable
remedIes
law.
No remedy shall be
imposed by CIty aga~nst
Grantee for any vIolatlon of the franchIse WIthout Grantee
beIng afforded due process of law, as prov~ded for In SectIon
63079 below.
SECTION 63076.
RemedIes
for Delav In Construct10n.
remedIes WIth regard to delays
CIty
may Impose the follOWIng
ln new system constructlon, or maJor system reconstructIon or
expanSIon:
(a) ReductIon 1n the duratIon of the franchIse on a
month-for-month bas1s for each month of delay exceedIng SIX
(6) months.
(b) ForfeIture of constructlon bonds and/or assessment
of monetary damages up to the maXlmum per day and per ~ncldent
87
11mlts speclfled In the franchlse agreement, leVIed against
the securIty fund, for delays exceedIng one year.
(e) TermlnatIon of the franchIse WIthIn 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 remedles applIed shall be In accordance WIth the
procedures contaIned In SectIon 63079 hereln.
SECTION
63077.
?roc~dure for _ ~emedYInq FraqchIse
Vlo1at19ns. 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 InexcusableJ 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 not1ce to Grantee of the tIme and the place of the
hearIng provIded and the allegat~ons of franchIse vlalat~ons.
(b) IfJ after notIce 15 glven and, at Grantee's opt~on)
a full publIC proceedIng 13 held, CIty determInes that such
vlolat1on) breach, fallure, refusal, or neglect by Grantee was
88
excusable as prov1ded ln Sect10n 63081 below, Clty shall
dlrect Grantee to correct or remedy the same WIthIn such
addIt10nal tIme, 1n such manner, and upon such terms and
condlt1ons as CIty may dlrect.
(e) If, after notlce IS gIven andJ at Grantee's optIon]
a full publIC proceedIng IS held} Clty determInes that such
vIolatlon, breachJ faIlureJ refusal, or neglect was
Inexcusable1 then CIty may Impose a remedy 1n accordance w1th
Sectlon 63075 abOVe.
SECTION 63078. Forfe1tur~ or Revqc~t+on.
(a) Grounds for ~evocat~on. City reserves the rIght to
revoke any franchIse granted hereunder and reSCInd all rIghts
and prlvIleges 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 obllgat1ons under thIS ordInance or
under such documentsJ agreementsJ and other terms and
prOVISIons entered Into by and between CIty and Grantee,
subJect to the provls1ons of Sect10n 63077.
(2) If Grantee should faIl to prOVIde or maIntaln
1n full force and effect, the lIabIlIty and Indemnlflcat~on
coverages or the securIty fund and bonds as requ1red here1n.
(3) If any court of competent Jurlsd1ct~on, Or
any Federal or State regulatory body by rules} declsLons} or
other actIon determlnes that any materIal prov1sIon of the
89
franch~se
documents) IncludIng thIS ord~nance)
and Grantee's appllcat~on 1S
the franchise
1nval~d or
agreement,
unenforceable
constructIon.
prlor
to
the
commencement
of
system
(4 )
If
Grantee should wlllfully vlolate any
orders or ru11ngs of any regulatory body havIng ]urlsdIctlon
over Grantee relatIve to the franch1se.
(5) If Grantee ceases to provIde serVlces of the
eable commUnlcatlons system for any reason wIth~n the Control
of Grantee.
(6) If Grantee attempts to evade any of the
proVIslons of thIS ordInance or the franchIse agreement or
attempts to pract~ce any fraud or deceIt upon CIty.
(7) If Grantee's constructlon, reconstructlon, or
system extens~on schedule 1S delayed for more than eIghteen
(18) months later than the schedule contalned ln the franchlse
agreement and Clty flnds that the delay was not excusable
under the provISIons of Section 63081.
(8) If Grantee becomes lnsolventJ unable, or
unwIlllng to pay lts debts, or upon 11st~n9 of an order for
rellef In favor of Grantee In a bankruptcy proceedIng.
(b) Procedure PrIor to RevocatIon.
(1) C~ty may make wrltten demand that Grantee
comply WIth any such reqUIrement, I1mltatlon, term, condltlonJ
rUle, or regulatIon or correct any actlon deemed cause for
revocatIon. If tl1e fa~lure, refusal,' or neglect of the
Grantee contlnues for a perlod of th~rty (30j days followlng
90
such wrItten demand, CIty may place the Issue of termInat~on
of the franchIse upon a regular CIty Councll meetIng agenda.
CIty shall cause a wrItten notIce of Intent to request
termInatlon, includIng the tIme 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 thIS ordlnanee or the franchIse agreement,
andJ If so, whether such breach was WIllful.
(3) If City determInes that Grantee has commItted
a materIal breach, City maYJ 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,
d~rect 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 condltlons 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 9f Termlnatlon
or EXplratlon.
( a )
P~Sposltlon
of
FaCIlItIes.
In
the event a
franchIse expIres, IS revoked,
or otherWIse termInated, CIty
91
may order the removal of the system facllItIes 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 ~ystem untIl a subsequent
Grantee IS selected and a s~bsequent or modIfIed cable system
becomes operatIonal. Grantee shall promptly, upon belng gIven
ten (10) days notlce, remove from the streets or publIC places
all such property of such system other than any WhICh the
General Servlces Director may permIt to be abandoned 1n 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 condItlon satLsfactory to the General SerVIces
DIrector.
Any property of Grantee remaInIng 1n place thIrty (30)
after the termInatIon or explratIon of the franchIse
be conSIdered permanently abandoned. The General
SerVIces DIrector may extend such tIme not to exceed a
days
shall
reasonable perIod.
(b) Abandonment of Property 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 ut1lIty JOInt use attachment agreement, upon
permanent abandonment of the property of Grantee In placeJ the
property shall beeome that of CIty, and Grantee shall submIt
to the General Serv~ces DIrector an lnstrument ln wrltlog to
be approved by the Clty Attorney,
ownershlp of such property.
transferrlng to Clty the
92
(cl Res~orat~on of Prooertv. In removlng lts plant,
structuresJ and equIpment, Grantee shall refll1, at Its own
expenseJ any excavatIon that shall be made by It and shall
leave all publIC ways and places 1n as good condltIon as that
prevallIng prlor to Grantee's removal of Its equIpment and
appllances wlthout affectIng the electrIcal or telephone cable
wlres, or attachments. The l1abIlltYJ Indemnlty and
Insurance, and the securlty fund and bonds prOVIded shall
continue In full force and effect durIng the perIod of removal
and untll full compllance by Grantee wIth the terms and
condltlons of thlS Sectlon.
(d)
Extended OperatIon.
Upon eIther the eXpIratlon or
revocatIon of a franchIse, Clty may reqUIre Grantee to
contlnue to operate the cable communIcatIons system for a
defined period of tIme not to exceed twenty-four (24) months
from the date of such eXpIratlon or revocatIon.
Grantee
shall, as trustee for Lts successor In InterestJ contlnue to
operate the cable communIcatIons system under the terms and
conditIons of thIS ordInance and the franchlse agreement and
to provlde the regular cable serVlce and any and all of the
other serVlces that may be prov1ded at that t1me. CIty shall
be permltted to seek legal and eqUItable rellef to enforce the
prOVISIons of thIS SectIon.
(e) Grantor's RIght Not Affected. The term~nat~on and
forfelture of any franchIse shall In no way affect any of the
rIghts of Clty under the franchIse or any prov1sIon of law
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SECTION 63080. Recelversh19 ~rd Foreclosure.
(a] Any franchIse granted shall~ at the opt~on of CIty,
cease and termInate one hundred twenty (120) days after the
appOIntment of a receiver or recelvers or trustee or trustees
to take over and conduct the bUSIness of Grantee whether In a
recelversh~PJ reorganIzatlonJ bankruptcYJ or other act~on or
proceeding unless such receIvershIp or trusteeshIp shall have
been vacated prIor to the eXpIratIon of sa~d one hundred
twenty (120) days, or unless:
(1) Such receIvers or trustees shall have WIthIn
one hundred twenty (120) days after theIr electIon or
appOIntment, fully complIed WIth all the terms and prOVISIons
of thIS ordInance and the franchIse granted pursuant hereto,
and the receIvers or trustees WIthin saId one hundred twenty
(120) days shall have remedIed all defaults under the
franchlSej 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, prOVISIon, and lImItatIon of the
franchise agreement.
(b) In the case of a foreclosure or other Involuntary
sale of the plant, property] and equ1pment of Grantee, or any
part thereof, CIty may serve notlce of termlnatlon upon
Grantee and to the purchaser at such sal'e, In WhIch event the
franchIse and rlghts and pr~vlleges of Grantee hereunder shall
94
cease and te~mlnate thlrty (30) days after serVlce of such
notlce unless:
(1) Clty has approved the transfer of the
as and In the manner ln thlS ordInance provIded;
franchIse,
and
(2) Such successful purchaser shall have
covenanted and agreed wlth Clty to assume and be bound by all
the terms and condltlons of the franchlse agreement.
SECTION 63081. Grantee's Inablllty to Perform. In the
event Grantee's performance of any of the terms) condItlons)
oblIgations, or reqUIrements of the franchlse 15 prevented or
lmpa1red due to any cause beyond Its reasonable control or not
reasonably foreseeable, such inabIlIty to perform shall be
deemed to be excused and no penaltles or sanctIons shall be
imposed as a result thereof, provlded Grantee has notIf~ed
Clty 1n wrltlng 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
lncludeJ but shall not be 11mIted to, clVll emergenCIes.
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Subchapter 13K.
Reports.
SECTION 63082. ~nnual Reports. At CIty'S sole opt~on}
w~thIn s~xty (60) days after the close of Grantee's fIscal
year, Grantee shall submIt a wrltten annual report, In a form
approved by CIty, ~ncludlng, but not lImIted to] the follow~ng
InformatIon:
(a) A summary of the prev~ous year's (or, In the case
of the InItIal report year, the InItIal year's) actIVItIes In
development of the cable system} IncludIng} but not lImIted
to, serVICes begun or dIscontInued durIng the reportIng year,
and the number of subscrIbers for each class of serVICe.
(b) A revenue statementJ audIted by an Independent
CertIfIed Publle Accountant, or certIfIed by an offIcer of the
Grantee.
(c) 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, m~mbers of Its board
of dIrectorsJ and other prInCIpals of Grantee.
(f) A lIst of stockholders or other eqUIty Investors
holdIng fIve percent (5%) or more of the votIng 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 prof~ts, 15
pald to a parentJ SUbsIdlary, or other person aff~llated w~th
Grantee, the amounts of such payments and the baSIS for
computat~on of such amounts (e.g 7 the baSIS for computIng any
ma~agement fees or share of uhome offlce" ov~rhead).
SECTION 63083. Plant Survev Reoort. At CIty's sole
optlon, 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. Sald report shall Include, but not be
llmlted to, a descrlptlon and ~as-buIlt" maps of the portIons
of the franchIse area that have been cabled and have all
serVlces available, an approprlate englneerlng evaluatIon
Includlng sUItable electronIC measurements conducted In
conformlty wlth FCC gUIdelInes and franchlse technIcal
standards. SaId report shall be In suffICIent dptall to
enable City to ascertaln that the serVlce reqUIrements and
technIcal standards of the FCC and/or the franchIse were
achIeved and maIntaIned. If CIty has reason to belIeve that
portlons or all of the system do not meet eIther the FCC
technIcal gUldellnes, or those lncorporated Into the franchIse
agreement, at Clty's request, but not more often than cnce per
three years, Grantee and CIty shall agree upon the appOIntment
of a quallfIed lndependent engIneer to evaluate and verIfy the
technIcal performance of the cable system. The cost of such
evaluatIon shall be borne equally by Grantee and Clty.
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SECTION 63084.
CopIes of Federal and State Reoorts.
Grantee shall submIt to CIty coples of all pleadIngs,
applIcatIons, reports, communlc~tlons and documents of any
kInd, submltted by Grantee to, as well as coples of all
deCISIons, correspondence and actIons by, any federalJ state,
and local courtsJ regulatory agencIes and other government
bodIes relatIng to lts cable teleVls~on operatlons WIthIn the
franchIse area. Grantee shall submIt such documents to CIty
SImUltaneously WIth theIr submISSIon to such courts) agenc1es,
and bodIes; and WIthIn ten (10) days after theIr receIpt from
such courts, agencles and bodIes. Grantee hereby waIves any
rIght to claIm confIdentIal, prlvlleged, or propr~etary rIghts
to such documents unless such confldentlal rlghts are
determIned to be confIdentIal by law or by the practIces of
federal or st~te agenCIes. Such confIdentIal data exempt from
publIC dIsclosure shall be retaIned In confIdence by CIty and
Its authorIzed -agents and shall not be made aVa~lable for
publIC InspectIon.
SECTION 63085. PublIC Reoorts. ^ copy of each of
Grantee's annual and other periodIC publ~c reports and those
of lts parentJ Subsld~arYJ and affIlIated corporatIons and
other entltIes, as CIty requests,
shall be submItted to CIty
WIthIn ten (10) days of Its lssuance.
SECTION 63086. MIscellaneous Reports. Grantee shall
subm1t to CIty such other lnformatlon or reports In such forms
and at such tImes as Clty ~ay reasonably request or requlre.
98
SECTION 63087. PubliC Insoect10n. All reports subJect
to publiC dIsclosure shall be ava~lable for publIC inspection
at a designated City office durIng normal bUSiness hours.
SECTION 63088. FaIlure to Report. The refusal,
faIlure, or neglect of Grantee to file 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 a~e avaIlable to Clty under the franchIse or otherwlse.
SECTION 63089. False Statements. Any materially false
or mIsleading statement or representatIon made knowlngly by
Grantee ~n any report reqUIred under the franchIse shall be
deemed a materIal breach of the franchise and shall subJect
Grantee to all remedIes, legal or equitableJ WhlCh are
available to Clty under the franchise or otherwise.
SECTION 63090.
Cost of Reports.
All reports and
records reqUIred under thIS or any other sectlon shall be
furnIshed at the sole expense of Grantee.
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Subchapter 13L.
MIscellaneous ProvLs1on~.
SECTION 63091
ComolIance wIth State and Federal Laws.
NotwIthstandIng any other prOVIsIons of the franchIse to the
contrary, Grantee shall at all tlmes comply wIth all laws and
regulatIons of the state and federal government or any
admlnIstratlve agencIes thereof. ProvIded, howeverJ ~f any
such state or federal law or regulat~on shall requIre Grantee
to perform any serVIce, or shall permlt Grantee to perform any
servIceJ or shall prohIbIt Grantee from performIng any
serVIce, 1n conflIct w1th the terms of the franchise or any
law or regulatlon of City, then as soon as poss1ble fOllowlng
knowl~dge thereofJ Grantee shall notlfy CIty of the pOlnt of
confl1ct belIeved to eXIst between such regulatIon or law and
the laws or regulatIons of CIty or the franch1se.
SECTION 63092. SeverabIlIty; Non-Materlal ProVlslons.
If any prOVISIon of thIS ordInance or any related agreements
lS held by any court or by any federal, stateJ or local agency
of competent JurIsdIctIon to be Invalid as confllctlng wIth
any federal, state, or local law} rule, or regulatIon now or
hereafter 1n effectJ or 1S held by such court or agency to be
modifIed ln any way In order to conform to the reqUIrements of
any such law, rule, or regulatlon, and If sald proV~Slon IS
conSld~red nonmaterIal by CIty, s81d provIs10n shall be
cons~dered a separate, dIstInct, and ~ndependent part of th15
ordlnance, and such holdIng shall not affect the valld~ty and
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enforceablllty of all other provISIons hereof. In the event
that such law, rule] or regulatlo~ IS subsequently repealed,
reSCInded, amended, or otherWIse changed, so that the
provISIon WhICh has been held Invalld or. modIfIed 1S no longer
In conflIct wIth the law, rules, and regulatIons then In
effect] sald provISIon shall thereupon return to full force
and effect, and shall thereafter be bIndIng on the partIes
heretoJ provIded that CIty shall glve Grantee thIrty (30) days
written notice of such change before reqUIrIng complIance wIth
saId provlsion.
SECTION 63093.
SeverabllItv:
Materlal Provis1ons.
If
any materIal sectlon of thIS ordlnanceJ as determIned by Clty,
1S held to be InvalId Or preempted by federal, state, or
county regulatIons or laws, any franchIse affected by such
decIsIon shall be deemed t~rmInated. Upon such termInatIon}
CIty shall, In lts dIscretIon, negot1ate wIth Grantee
approprIate modIfIcatIons to the franChIse to prOVIde
reasonable relIef to CIty from such lnvalIdIty or preemptIon,
IncludIng the payment of damages.
SECTION 63094.
NotIces.
Grantee shall malntaln WIthIn
the franchIse area throughout the term of the franchise, an
address for serV1ce of notlces by mall.
SECTION 63095.
No Recourse AoaInst the C~tv.
Grantee
shall have no recourse whatsoever agaInst CIty or Its
offICIals, boards, commISSIons, agentsJ or employees for any
loss, costs, expenses, or damage arlslng out of any provlslon
101
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or requirement of the franchIse or because of the enforcement
of the franchIse.
SECTION 63096.
Nonenforcement bv
CIty. Grantee shall
comply wIth any of the
of any faIlure of the
not be relIeved of Its obl~gat~on to
prov~slons of thIS ordlnance by reason
C~ty to enforce prompt complIance.
SECTION
63097.
Waivers.
Any provlslon of
thIS
ordlnance may be waived by CIty, at CIty'S sole dlscretlon, by
Clty Council resolutIon. Grantee may submIt a wrItten request
for waIver at any tlmeJ and the request shall be placed on the
agenda for a publIC hearIng and deCIsion. Clty shall reach
Its deC1SIon no later than one hundred twenty (120) days
follOWIng the receipt of any waIver request.
SECTION 6309B. EvaluatIon of WaIvers. The CIty CounCIl
may authorIze the econom~c, technIcal, or legal evaluatIon of
such waIver request and Grantee shall be requlred to reImburse
the CIty for any expendItures Incurred by CIty In connectlon
WIth such evaluatIon. Any expendIture and/or reimbursement
pursuant to thls SectIon shall be exclUSIve of the franchIse
fee.
SECTION 2. Any prOVISIon of the Santa Monlca MunICIpal
Code or appendIces thereto lnconslstent wlth the provlslons of
thIS Chapter, to the extent of such InconSIstenCIes and no
furtherJ are hereby repealed or modIfIed to that extent
necessary to affect the prOVISIons of thIS Chapter.
t02
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SRCTION
3.
It any sect~on,
subsectlon,
sentence,
clause, or phrase of th~s Chapter ~s for any reason held to be
lnvalld or unconst~tutlonal by a deCISIon of any court of any
competent Jur~sdlctlon, such deCISIon shall not affect the
valld1ty of the remalnIng portions of the ordInance. ~he CIty
CounCIl hereby declares that it would have passed thIS
OrdInance and each and every sect1on, subsectIonJ sentence,
clauseJ or phrase not declared InvalId or unconstItutIonal
WIthout regard to whether any portIon of the ordInance would
be subsequently declared lnvalld or unconstItutIonal.
The Mayor shall s1gn and the CIty Clerk
shall attest to the passage of thIS OrdInance. The City Clerk
SECTION 4.
shall cause the same to be published once In the offICIal
newspaper w~thln 15 days after Its adoptIon. ThIS OrdInance
shall become effectIve 30 days after Its adoptIon.
~PPROVED AS TO FORM:
~~.~
ROBERT M. MYERS 0 .
Cl.ty Attorney
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Adopted and approved this 28th day of April, 1987.
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Mayor
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I hereby certify that the foregoing
ordinance No.
1407 (CCS)
was duly and regularly introduced at a meeting of the ci ty
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: councilmembers:
None
ATTEST:
~~~
City Clerk