HomeMy WebLinkAbout90-12 CC OrdinanceORDINANCE NO. 90-12
AN ORDINANCE OF THE CITY OF TEMECULA
GOVERNING CABLE TELEVISION FRANCHISE
HEREINAFTER GRANTED BY THE CITY OF TEMECULA
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TABLE OF CONTENTS
Section Title P_ag~
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
Intent .....................................................................1
Definitions ...............................................................2
Franchise to Install and Operate ......................................7
Franchise Required .....................................................8
Term of the Franchise ..................................................9
Franchise Territory .....................................................10
Federal or State Jurisdiction ...........................................11
Franchise Non-Transferable ...........................................13
Geographical Coverage .................................................16
Nonexclusive Franchise .................................................17
Multiple Franchises .....................................................18
Franchise Applications .................................................20
Applications-Contents ..................................................21
Solicitation of Applications .............................................22
Minimum Consumer Protection and
Service Standards .........................................................23
Additional Service Standards ............................................30
Franchise Fee .............................................................31
Security Fund ............................................................33
Design and Construction Requirements ................................. 34
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Section
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
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Title Page
Technical Standards .........................................................37
Hold Harmless ................................................................38
Insurance ......................................................................39
Records Required and Grantoffs
Right to Inspect ..............................................................42
Annual Reports ..................................................................43
Copies of Federal and State Reports .............................................44
Public Reports ....................................................................45
Complaint Report and Opinion Survey .........................................46
Privacy Report ....................................................................47
Reports - General ..................................................................48
Annual Review of System Performance ........................................49
Special Review of System Performance ...................................... 50
Special Evaluation Sessions ......................................................51
Remedies for Franchise Violations ...............................................52
Grantor's Power to Revoke .......................................................54
Procedure for Remedying Franchise
Violations ...........................................................................55
Force Majeure; Grantee's Inability
to Perform ..........................................................................57
Abandonment or Removal of
Franchise Property ..............................................................58
Restoration by Grantor:
Reimbursement of Costs .......................................................60
Extended Operation and Continuity
of Services ........................................................................61
3
Section Title P_age
1.40
1.41
1.42
1.43
Receivership and Foreclosure ..............................................62
Rights Reserved to Grantor ..................................................64
Rights of Individuals ..........................................................65
Separability ......................................................................67
Ords 90-12 4
ORDINANCE NO.90- 12
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS
FOLLOWS:
The following Chapter is added to the City of Temecula Municipal Code:
CHAPTER CABLE TELEVISION FRANCHISES
SECTION 1.1 INTENT
A. The City of Temecula, pursuant to Government Code Section 53066, is authorized
to grant one or more nonexclusive revocable franchises to construct, operate, maintain and
reconstruct cable television systems within the City limits.
B. The City Council finds that the development of cable television and communications
systems has the potential of having great benefit and impact upon the residents of Temecula.
Because of the complex and rapidly changing technology associated with cable television, the
City Council further finds that the public convenience, safety and general welfare can best be
served by establishing regulatory powers which should be vested in the City or such persons as
the City shall designate. It is the intent of this Chapter and subsequent amendments to provide
for and specify the means to attain the best possible cable television service to the public and
any franchises issued pursuant to this Chapter shall be deemed to include this finding as an
integral part thereof.
SECTION 1.2 DEFINITION
For the purpose of this Chapter, the following terms, phrases, words and their
derivations shall have the meaning given herein words used in the present tense include the
future, words in the plural number include the singular number, and words in the singular
number include the plural number. Words not defined shall be given their common and
ordinary meaning.
A "Basic Cable Service" means any service tier which includes the retransmission of local
television broadcast signals.
B. "Cable Television System" or "System", also referred to as "Cable Communications
System" or "Cable System", means a facility consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment, that is designed
to provide cable service which includes video programming and which is provided to
multiple subscribers within a community, but such term does not include:
(1) A facility that serves only to retransmit the television signals of one or
more television broadcast stations.
(2) A facility that serve only subscribers in one or more multiple unit
dwellings under common ownership, control, or management, unless such facility uses any
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public rights-of-way.
(3) A facility of a common carrier, except that such facility shall be
considered a cable system to the extent such facility is used in the transmission of video
programing directly to subscribers; or
(4) Any facilities of any electric utility used solely for operating its electric utility
system.
C. uCable Service" means the total of the following:
(1) The one-way transmission to subscribers of video programming or other
programming service; and
(2) Subscriber interaction, if any, which is required for the selection of such
video programming or other programming service.
D. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering a television
channel as defined by the Federal Communications Commission.
E. "Council" means the City Council of the City of Temecula.
F. 'Franchise. means an initial authorization, or renewal thereof issued by the City
Council, whether such authorization is designated as a franchise, permit, license, resolution,
contract, certificate, agreement, or otherwise, which authorizes the construction or operation of
a cable system.
G. "Franchise Agreement" means a franchise grant ordinance, or a contractual
agreement, containing the specific provisions of the franchise granted, including references,
specifications, requirements and other related matters.
H. "Franchise Fees" means any tax, fee or assessment of any kind imposed by a
franchising authority or other governmental entity on a Grantee or cable subscriber, or both,
solely because of their status as such. The term "franchise fee" does not include:
(1) Any tax, fee or assessment of general applicability (including any such tax,
fee, or assessment imposed on both utilities and cable operators or their services, but not
including a tax, fee or assessment which is unduly discriminatory against cable operators or
cable subscribers);
(2) Capital costs which are required by the franchise to be incurred by Grantee
for public, educational, or governmental access facilities:
(3) Requirements or charges incidental to the awarding or enforcing of the
franchise, including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
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(4) Any fee imported under Title 17, United States Code.
I. UGrantee". means any Person. receiving a franchise pursuant to this Chapter and under
the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.
J. "Grantor". means the City of Temecula as represented by the Council or any delegate
acting within the scope of its jurisdiction.
K. "Gross Annual Receipt"s. means the annual gross receipts received by a Grantee
from all sources of operations of the Cable Television System within the City utilizing the
public streets and rights-of-way for which a franchise is required in order to deliver such
cable service, excluding refundable deposits, except that any sales, excise or other taxes
collected for direct pass-through to local, State or Federal government shall not be
included.
L. "Initial Service Area" means the area of the City which will receive service
initially, as set forth in the Franchise Agreement.
M. "Installation" means the connection of the system to subscribers' terminals, and
the provision of service.
N. "Person" means an individual, partnership, association, joint stock company,
trust, corporation or governmental entity.
O. "Public, Educational or Government Access Facilities" or "PEG Access
Facilities" means the total of the following:
and
(1) Channel capacity designated for public, education, or governmental use;
(2) Facilities and equipment for the use of such channel capacity.
P. "Section". means any section, subsection, or provision of this Chapter.
Q. "Service Area". or "Franchise Area". means the entire geographic area within the
City as it is now constituted or may in the future be constituted.
R. "Service Tier" means a category of cable service or other services provided by a
Grantee and for which a separate rate is charged by the Grantee.
S. "State". means the State of California.
T. "Street". means each of the following which have been dedicated to the public or
are 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, fights-of-way and similar public property and areas that the Grantor
shall permit to be included within the definition of street from time to time.
U. "Subscriber." means any person who or which elects to subscribe to, for any
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purpose, a service provided by the Grantee by means of or in connection with the cable
system.
SECTION 1.3 FRANCHISE TO INSTALL AND OPERATE
A franchise granted by the City under the provisions of this Chapter shall encompass
the following purposes:
A. To engage in the business of providing cable television service, and such other
services as may be permitted by law, to subscribers within the designated service area.
B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and
retain, cable, lines, related electronic equipment, supporting structures, appurtenances, and
other property in connection with the operation of a cable system in, on, over. under, upon,
along and across streets or other public places within the designated service area.
C. To maintain and operate said franchise properties for the origination, reception,
transmission, amplification, and distribution of television and radio signals and for the
delivery of cable services.
D. To set forth the obligations of a Grantee under the franchise.
SECTION 1.4 FRANCHISE REQUIRED.
It shall be unlawful for any person to construct, install or operate a cable
television system in the City within any public street without a properly granted franchise
awarded pursuant to the provisions of this Chapter.
SECTION 1.5 TERMS OF THE FRANCHISE.
A. A franchise granted hereunder shall be for a term established in the Franchise Agreement,
commencing on the Grantoffs adoption of an ordinance authorizing the franchise.
B. A franchise granted hereunder may be renewed upon application by the Grantee pursuant to the
provisions of applicable State and Federal law and of this Chapter.
SECTION 1.6 FRANCHISE TERRITORY
Any franchise shall be within all the territorial limits of the City, and within any
area added to the City during the term of the franchise.
SECTION 1.7 FEDERAL OR STATE JURISDICTION.
A. This Chapter shall be construed in a manner consistent with all applicable Federal and
State laws. Whenever the Federal Communications Commission (FCC) or Public Utilities
Commission (PUC) of the State of California or any other Federal or State agency shall now or
hereafter exercise any paramount jurisdiction over any specific provisions of this Chapter, such
paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City.
Ord8 90-12 8
Any modification of such Federal or State law shall to the extent applicable be considered a part
of this Chapter as of the effective date of such modification.
B. In the event that the State or Federal government discontinues preemption in any area
of cable communication over which it currently exercises jurisdiction in such manner as to
expand rather than limit municipal regulatory authority, Grantor may, if it so elects, adopt rules
and regulations in these areas, provided that such rules and regulations shall not apply to any
franchise issued pursuant to this Chapter prior to the adoption of such rules and regulations to
the extent they materially adversely affect such franchise, including without limitation
requirements with respect to system rebuilds, channel capacity, system design, construction and
performance requirements, public, educational or governmental access facilities, support for any
such facilities, interconnect commitments, activation of interactive capability or institutional
networks. Such new municipal regulatory powers may, however, affect existing franchises with
respect to franchise renewal procedures, franchise fees, consumer protection provisions,
regulation of rates, technical standards and related provisions
C. This Chapter shall apply to all franchises granted or renewed after the effective
date of this Chapter. It shall further apply to the extent permitted by applicable Federal or
State law to all existing franchises granted prior to the effective date of this Chapter.
SECTION 1.8 FRANCHISE NON-TRANSFERABLE
A. Grantee shall not sell, transfer, lease, sign, sublet or dispose of, in whole or in part, either by
forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or
any of the rights or privileges therein granted, without the prior consent of the Council and then only
upon such terms and conditions as may be prescribed by the Council, which consent shall not be
unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the
franchise without the consent of the Council shall be null and void.
B. The requirements of Subsection A. shall apply to any change in the control of Grantee. The
word "control" as used herein is not limited to major stockholders or partnership interests, but includes
actual working control in whatever manner exercised. In the event that Grantee is a corporation, prior
approval of the Council shall be required where ownership or control of more than ten percent (101) of
the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of
whom own or control the voting stock of the Grantee as of the effective date of the franchise, singularly
or collectively.
C. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a
substantial part of the franchise property of the Grantee or upon the termination of any lease or interest
covering all or a substantial part of said franchise property. Such notification shall be considered by
Grantor as notice that a change in control of ownership of the franchise has taken place and the
this Section governing the consent of Grantor to such change in control of ownership shall apply.
D. For the purpose of determining whether it shall consent to such change, transfer, or
acquisition of control, Grantor may inquire into the qualifications of the prospective transferee or
controlling party, and Grantee shall assist Grantor in any such inquiry. In seeking Grantor's
consent to any change of ownership or control, Grantee shall have the responsibility of insuring
that transferee completes an application in form and substance reasonably satisfactory to Grantor,
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which application shall include the information required under Subsections A. through H. of
Section 1.13 of this Chapter. An application shall be submitted to Grantor not less than sixty (60)
days prior to the date of transfer. The transferee shall be required to establish that it possesses the
qualifications and financial and technical capability to operate and maintain the system and comply
with all franchise requirements for the remainder of the term of the franchise. If, after considering
the legal, financial, character, technical and other public interest qualities of the applicant and
determining that they are satisfactory, the Grantor finds that such transfer is acceptable, the
Grantor shall transfer and assign the rights and obligations of such franchise as in the public
interest. The consent of the Grantor to such transfer shall not be unreasonably denied or delayed,
provided that in the absence of overriding reasons to limit the number of franchises to
one (1) in the City, Grantor shall presume that competition among at least two (2) cable
operators is beneficial to the City and its residents, and accordingly operators is beneficial to the City and
its residents, and accordingly shall not consent to any transfer that would result in a reduction
in reduction in competition.
E. Any financial institution having a pledge of the Grantee or its assets for the advancement of
money for the construction and/or operation of the franchise shall have the right to notify the Grantor
that it or its designee satisfactory to the Grantor shall take control of and operate the cable television
system, in the event of a Grantee default in its financial obligations. Further, said financial institution
shall also submit a plan for such operation within thirty (30) days of assuming such control that will
insure continued service and compliance with all franchise requirements during the term the financial
institution exercises control over the system. The financial institution shall not exercise control over the
system for a period exceeding one (1) year unless extended by the Grantor in its discretion and during
said period of time it shall have the right to petition the Grantor to transfer the franchise to another
Grantee.
F. Grantee shall reimburse Grantor for Grantoffs reasonable processing and review expenses in
connection with a transfer of the franchise or of control of the franchise, including without limitation
costs of administrative review, financial, legal and technical evaluation of the proposed transferee,
consultants (including technical and legal experts and all costs incurred by such experts), notice and
publication costs and document preparation expenses.
SECTION 1.9 GEOGRAPHICAL COVERAGE.
A. Grantee shall design, construct and maintain the cable television system to have
the capability to pass every dwelling unit in the City, subject to any line extension
requirements of the franchise agreement.
B. After service has been established by activating trunk and/or distribution cables for
any service area, Grantee shall provide service to any requesting subscriber within that
service area within thirty (30) days from the date of request, provided that the Grantee is
able to secure all rights-of-way necessary to extend service to such subscriber within such
thirty (30) day period on reasonable terms and conditions.
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SECTION 1.10 NONEXCLUSIVE FRANCHISE.
Any franchise granted shall be nonexclusive. The Grantor specifically reserves the
right to grant, at any time, such additional franchises for a cable television system or any
component thereof, as it deems appropriate.
SECTION 1.11 MULTIPLE FRANCHISES.
A. Grantor may grant any number of franchises on a Citywide basis. Grantor may limit the
number of franchises granted, based upon, but not necessarily limited to, the following
considerations:
(1) The capacity of the public rights-of-way to accommodate multiple coaxial cables
in addition to the cables, conduits and pipes of the utility systems, such as electrical power,
telephone, gas and sewerage.
(2) The benefits that may accrue to cable subscribers as a result of cable system
competition, such as lower rates and improved service.
(3) The disadvantages that may result from cable system competition, such as the
requirement for multiple pedestals on residents' property, and the disruption arising from numerous
excavations of the rights-of-way.
B. In the absence of overriding reasons to limit the number of franchises to one (1) in the
City, Grantor shall presume that competition between at least two (2) cable operators is beneficial
to the City and its residents. Each Grantee awarded a franchise to serve the entire City shall offer
service to all residences in the City, in accordance with construction and service schedules mutually
agreed upon between Grantor and Grantee, with a minimum to achieve thirty-three percent (33 %)
service to existing residences by the expiration of one-third (1/3) of the franchise term and one
hundred percent (100%) service to remaining residences by the expiration of one-half (1/2) of the
franchise term.
C. Developers of new residential housing with underground utilities shall provide
conduit to accommodate cables for at least two (2) cable systems in accordance with the
provisions of Section 1.19.D.
D. Grantor may require that any new Grantee be responsible for its own underground
trenching and the cost. associated therewith, if, in Grantor's opinion, the fights-of-way in
any particular area cannot feasibly and reasonably accommodate additional cables.
SECTION 1.12 FRANCHISE APPLICATIONS.
Any person desiring a franchise or franchise renewal for a cable television system shall
file an application with the City. A reasonable nonrefundable application fee established by the
City shall accompany the application or renewal application to cover all costs associated with
processing and reviewing the application, including without limitation costs of administrative
review, financial, legal and technical evaluation of the applicant, consultants (including
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technical and legal experts and all costs incurred by such experts), notice and publication
requirements with respect to the consideration of the application and document preparation
expenses. In the event such costs exceed the application fee, the selected applicant(s) shall pay
the difference to the City within thirty (30) days following receipt of an itemized statement of
such coats.
SECTION 1.13 APPLICATIONS-CONTENTS.
An application for a franchise for a cable television system shall contain, where
applicable:
A. A statement as to willingness to serve the entire City of Temecula..
B. Resume of prior history of applicant, including the expertise of applicant in the
cable television field.
C. List of the partners, general and limited, of the applicant, if a partnership, or the
percentage of stock owned or controlled by each shareholder, if a corporation.
D. List of officers, directors and managing employees of applicant, together with a
description of the background of each such person;
E. The names and addresses of any parent or subsidiary of applicant or any other
business entity owning or controlling applicant in whole or in part, or owned or controlled in
whole or in part by applicant;
F. A current financial statement of applicant verified by a CPA audit or otherwise
certified to be true, complete and correct to the reasonable satisfaction of the City;
G. Proposed construction and service schedule.
H. Any reasonable additional information that the City deems applicable.
SECTION 1.14 SOLICITATION OF APPLICATIONS
A. The Council may, by advertisement or any other means, solicit and call for
applications for cable television system franchises, and may deem and fix any date upon or
before which the same shall be received by the City, and may specify any other times,
terms, conditions, or limitations respecting the soliciting and receiving of such applications.
B. Upon receipt of any application for a franchise, the Council shall refer the same to
the City Manager, who shall prepare a report and make his recommendations respecting
such application.
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A public hearing shall be set prior to any franchise grant, at a time and date approved
by the Council.
Within sixty (60) days after the close of the hearing, the Council shall make a
decision based upon the evidence received at the hearing as to whether or not the
franchise(s) should be granted, and, if granted, subject to what conditions. The Council may
grant one (1) or more franchises, or may decline to grant any franchise.
SECTION 1.15 MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS
A. Grantee shall maintain a local office or offices to provide the necessary facilities,
equipment and personnel to comply with the following consumer protection and standards under
normal conditions of operation:
(1) Sufficient toll-free telephone line capacity during normal business hours to
assure that a minimum of ninety-five percent (95 %) of all calls will be answered before the
sixth ring and ninety percent (90%) of all callers for service will not be required to wait more
than thirty (30) seconds before being connected to a service representative.
(2) Emergency toll-free telephone line capacity on a twenty-four (24) hour basis,
including weekends and holidays.
(3) A business and service office, within the City open during normal business
hours at least eight (8) hours daily, and at least four (4) hours weekly on evening. or weekends,
and adequately staffed to accept subscribed payments and respond to service requests and
complaints.
(4) An emergency system maintenance and repair staff, capable of responding to
and repairing major system malfunction on a twenty-four (24) hour per day basis.
(5) An installation staff, capable of installing service to any subscriber within
seven (7) days after receipt of a request, in all areas where trunk and feeder cable have been
activated.
(6) Grantee shall schedule, within a specified four (4) hour time period, all
appointments with subscribers for installation or service.
B. Grantee shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Scheduled interruptions, insofar as
possible, shall be preceded by notice and shall occur during period of minimum use of the
system, preferably between midnight and six A.M. (6:00 A.M.).
C. Grantee shall maintain a written log, or an equivalent stored in computer memory
and capable of access and reproduction in printed form, for all service interruptions and
requests for cable service.
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D. The Grantee shall maintain a repair force of technicians capable of responding to
subscriber requests for service within the following time frames:
(1) For a system outage: Within two (2) hours, including weekends, of
receiving subscriber calls or requests for service which by number identify a system outage
of sound or picture of one (1) or more channels, affecting at least ten percent (10%) of the
subscribers of the system.
(2) For an isolated outage: Within twenty-four (24) hours, including
weekends, of receiving requests for service identifying an isolated outage of sound or picture
for one (1) or more channels.
(3) For inferior signal quality: Within forty-eight (48) hours, including
weekends, of receiving 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 provisions
of this Section when a technician arrives at the service location and begins work on the
problem. In the case of a subscriber not being home when the technician arrives, the technician
shall leave written notification of arrival. Three (3) successive subscriber failures to be present
at an appointed time shall excuse Grantee of duty to respond.
No charge shall be made to the subscriber for any service call unless the service request
can be demonstrated to be both repeated and non-cable system in origin, or to involve
subscriber negligence.
E. Unless excused, Grantee shall determine the nature of the problem within forty-eight
(48) hours of beginning work and resolve all cable system related problems within five (5)
business days unless technically infeasible. Failure to resolve cable system related problems
within thirty (30) days shall be a material breach of this Agreement.
F. Upon five (5) days notice, Grantee shall establish its compliance with any or all of
the standards required above. Grantee shall provide sufficient documentation to permit Grantor
to verify the compliance.
G. A repeated and verifiable pattern of non-compliance with the consumer protection
standards of A-E above, after Grantee receipt of due notice and an opportunity to cure, may be
deemed a material breach of the Franchise Agreement.
H. Grantee shall establish written procedures for receiving, acting upon and resolving
subscriber complaints without intervention by the Grantor. The written procedures shall
prescribe the manner in which a subscriber may submit a complaint either orally or in writing
specifying the subscriber's grounds for dissatisfaction. Grantee shall file a copy of these
procedures with Grantor.
I. Grantor may determine, upon a review of a subscriber complaint and the Grantee's
decision, if any, whether further action is warranted. In the event the Grantor does not initiate
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further proceedings within fifteen (15) days of the filing of the complaint, the Grantee's
proposed action or resolution shall be final. If the Grantor decides to initiate further
investigation, the Grantor shall allow the Grantee and the subscriber to submit, within ten (10)
days of notice thereof, a written statement of the facts and arguments in support of their
respective position. The Grantee or the subscriber may request in such statement that a hearing
be conducted by the Grantor. Grantor shall give police in writing of the time and place for such
hearing. The heating shall be conducted informally, and the parties may offer any information
pertinent to the dispute. The parties shall provide any additional evidence, including testing
reports from the Grantee, which the Grantor may deem necessary to an understanding and
determination of the dispute. The Grantor shall issue a written decision within fifteen (15) days
of receipt of the written statements or, if a hearing is requested, within fifteen (15) days of the
conclusion of the hearing, setting forth the basis of the decision.
J. The Grantor may establish an escrow account wherein a subscriber may deposit a
disputed portion of the subscriber's monthly service charge. If a subscriber either continues to
make full and timely payment of all monthly service charges to Grantee or deposits any
disputed portion of such monthly service charges into said escrow account, Grantee shall not
discontinue service during the pendency of a complaint submitted under the provisions of this
ordinance. Any amount deposited in the escrow account shall be paid to the Grantee or
subscriber in accordance with a final determination of a complaint. Grantee shall advise all
subscribers, in writing, of these escrow provisions.
K. It shall be the right of all subscribers to continue receiving service insofar as their
financial and other obligations to the Grantee are honored. In the event that the Grantee elects
to rebuild, modify, or sell the system, or the Grantor gives notice of intent to terminate or not
to renew the franchise, the Grantee shall act so as to ensure that all subscribers receive
continuous, uninterrupted service so long as the franchise remains in force.
In the event of a change of Grantee, or in the event a new operator acquires the
system, the original Grantee shall cooperate with the Grantor, new Grantee or operator in
maintaining continuity of service to all subscribers. During such period, Grantee shall be
entitled to the revenues for any period during which it operates the system.
L. In the event Grantee fails to operate the system for seven (7) consecutive days without
prior approval or subsequent excusal of the Grantor, the Grantor may, at its option, operate the
system or designate an operator until such time as Grantee restores service under conditions
acceptable to the Grantor or a permanent operator is selected. If the Grantor should fulfill this
obligation for the Grantee, then during such period as the Grantor fulfills such obligation, the
Grantor shall be entitled to collect all revenues from the system, and the Grantee shall reimburse
the Grantor for all reasonable costs or damages in excess of the revenues collected by the
Grantor that are the result of the Grantee's failure to perform.
Ord~ 90-12 15
M. Every officer, agent, or employee of the Grantee or its contractors or subcontractors
who come into contact with members of the public shall wear on their outer clothing a photo-
identification card in a form approved by Grantor. Grantee shall account for all identification
cards at all times. Every vehicle of the Grantee or its contractors or subcontractors
shall be clearly identified as working for Grantee. The Grantee's telephone number shall
also be clearly marked on all such vehicles. All such identification shall be returned on
termination of service or permanently defaced on the sale of vehicle.
SECTION 1.16 ADDITIONAL SERVICE STANDARDS
Additional service standards and standards governing consumer protection and
response by Grantee to subscriber complaints not otherwise provided for in this Chapter
may be established in the Franchise Agreement, and Grantee shall comply with such
standards in the operation of the cable television system. A verified and continuing pattern
of noncompliance may be deemed a material breach of the franchise.
SECTION 1.17 FRANCHISE FEE
A. Following the issuance and acceptance of the franchise, the Grantee shall pay to the
Grantor a franchise fee in the amount set forth in the Franchise Agreement.
B. The Grantor, on an annual basis, shall be furnished a statement within sixty (60) days of
the close of the calendar year, either audited and certified by an independent Certified Public
Accountant or certified by a financial officer of the Grantee, reflecting the total amounts of gross
receipts and all payments, deductions and computations for the period covered by the payment.
Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit
of Grantee's records, in accordance with Generally Accepted Accounting Procedures, and if such
audit indicates a franchise fee underpayment of two percent (2 %) or more, the Grantee shall assume
all reasonable costs of such an audit.
C. No acceptance of any payment by the Grantor shall be construed as a release or as an
accord and satisfaction of any claim the Grantor may have for further or additional Bums payable as
a franchise fee under this ordinance or for the performance of any other obligation of the Grantee.
D. In the event that any franchise payment or recomputed amount is not made on or before
the dates specified herein, Grantee shall pay as additional compensation:
(1) An interest charge, computed from such due date, at an annual rate equal to the
average rate of return on invested funds of the Grantor during the period for which payment was
due; and
(2) If the payment is late by forty-five (45) days or more, a sum of money
equal to five percent (5 %) of the amount due in order to defray those additional expenses
and costs incurred by the Grantor by reason of delinquent payment.
Ords 90-12 16
E. Franchise fee payments shall be made in accordance with the schedule indicated in
the Franchise Agreement.
SECTION 1.18 SECURITY FUND.
A. Grantor may require Grantee to deposit into an interest bearing account established by Grantor a
sum established in the Franchise Agreement as a security fund. This sum shall be maintained on deposit
for a term as provided in the Franchise Agreement, with any interest payable to Grantee.
B. The security fund shall be available to Grantor to satisfy any and all claims, liens and/or taxes
due Grantor from Grantee which arise by reason of construction, operation, or maintenance of the system,
and to satisfy any remedies or liquidated damages arising out of a franchise breach, subject to the
procedures and amounts designated in the Franchise Agreement.
C. Subject to Grantor approval, the security fund requirements may be satisfied by conveyance of
an irrevocable letter of credit to the Grantor, or by provision of a corporate surety bond, in a form
approved by Grantor.
SECTION 1.19 DESIGN AND CONSTRUCTION REQUIREMENTS.
A. Grantee shall not construct any cable system facilities until Grantee has secured the
necessary permits from Grantor, or other cognizant public agencies.
B. In those areas of the City where transmission or distribution facilities of the public
utilities providing telephone and electric power service are underground, the Grantee likewise
shall construct, operate and maintain its transmission and distribution facilities therein
underground.
C. In those areas of the City where Grantee's cables are located on the above-ground
transmission or distribution facilities of the public utility providing telephone or electric power
service, and in the event that the facilities of both such public utilities subsequently are placed
underground, then the Grantee likewise shall reconstruct, operate and maintain its
transmission and distribution facilities underground, at Grantee's cost.
D. In the event of multiple franchisees desiring to serve new residential developments
in which the electric power and telephone utilities are underground, the following procedure
shall apply with respect to access to and utilization of underground easements:
(1) The developer shall be responsible for contacting and surveying all franchised
cable operators to ascertain which operators desire to provide cable television service to that
development. The developer may establish a reasonable deadline to receive cable operator
responses. The final development shall indicate the cable operators that have agreed to serve
the development.
(2) If one (1) or two (2) cable operators wish to provide service, they shall be
accommodated in the joint utilities trench on a nondiscriminatory shared basis. If fewer than
Ords 90-12 17
two (2) operators indicate interest, the developer shall provide conduit to accommodate two
(2) sets of cable television cables and dedicate to the City any initially unoccupied conduit.
The developer shall be entitled to recover the cost of such initially unoccupied conduit in the
event that Grantor subsequently leases or sells occupancy or use rights to any Grantee.
(3) The developer shall provide at least ten (10) working days notice of the date
that utility trenches will be open to the cable operators that have agreed to serve the
development. When the trenches are open, cable operators shall have forty-eight (48) hours to
begin the installation of their cables, and five (5) days after beginning installation to complete
installation.
(4) The final development map shall not be approved until the developer submits
evidence that:
(a) It has notified each Grantee that underground utility trenches are to
open as of an estimated date, and that each Grantee will be allowed access to such trenches,
including trenches from proposed streets to individual homes or home sites, on specified
nondiscriminatory terms and conditions, and
(b) It has received a written notification from each Grantee that the
Grantee intends to install its facilities during the open trench period on the specified terms and
conditions, or such other terms and conditions as are mutually agreeable to the
developer and Grantee, or has received no reply from a Grantee within ten (10) days
after its notification to such Grantee, in which case the Grantee will be deemed to
have waived its opportunity to install its facilities during the open trench period.
(5) Sharing the joint utilities trench shall be subject to compliance with Public Utilities
Commission and utility standards. If such compliance is not possible, or if three (3) or more cable
operators desire to provide service to the development, the developer shall provide a separate trench
for the cable television cables, with the entire cost shared among the participating operators. With the
concurrence of the developer, the affected utilities and the cable operators, alternative installation
procedures, such as the use of deeper trenches, may be utilized, subject to applicable law.
(6) Any cable operator wishing to serve an area where the trenches have been closed
shall be responsible for its own trenching and associated costs.
(7) The City reserves the right to limit the number of drop cables and/or pedestals per
residence, or to require that the drop cable(s) and/or pedestal(s) be utilized only by the cable operator
selected by the resident to provide service.
(8) The City reserves the right to grant an encroachment permit to a cable franchise
applicant to install conduit and/or cable in anticipation of the granting of a franchise. Such
installations shall be at the applicant's risk, with no recourse against the City in the event the pending
franchise application is not granted. The City may require an applicant to provide a separate trench
for its conduit and/or cable, at the applicant's cost. The construction of such a separate trench, if
provided, shall be coordinated with, and subject to, the developer's overall construction schedule.
Orda 90-12 18
SECTION 1.20 TECHNICAL STANDARDS.
A. The Grantee shall construct, install, operate and maintain its system in a manner
consistent with all applicable laws, ordinances, construction standards, governmental require-
ments, FCC technical standards, and any derailed standards set forth in its Franchise
Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a written report
of the results of the Grantee's annual proof of performance tests conducted pursuant to FCC
standards and guidelines.
B. Failure to maintain specified technical standards shall constitute a material breach of
the franchise.
SECTION 1.21 HOLD HARMLESS.
Grantee shall indemnify, defend and hold Grantor, its officers, agents and employees harmless
from any liability, claims, damages, costs or expenses, including reasonable attorneys' fees, arising
from injury to persons or damages to property to the extent caused by any conduct undertaken by the
Grantee, its officers, agents or employees, by reason of the franchise; Grantee shall at its sole cost and
expense, upon demand of Grantor, appear in and defend any and all suits, actions or other legal
proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or
instituted or had by third persons or duly constituted authorities, against or affecting Grantor, its
officers, agents or employees, and arising out of or pertaining to any conduct of the Grantee, its agents
or employees which is within the scope of this indemnity.
SECTION 1.22 INSURANCE.
A. On or before commencement of franchise operations, the Grantee shall obtain
policies of liability, Workers' Compensation and property insurance from companies
authorized to transact business in California by the Insurance Commissioner of California.
B. The policy of liability insurance shall:
(1) Be issued to Grantee and name Grantor, its officers, agents and employees
as additional insured;
(2) Indemnify for all liability for personal and bodily injury, death and damage
to property arising from activities conducted and premises used pursuant to this Chapter by
providing coverage therefor, including but not limited to coverage for:
o Negligent acts or omissions of Grantee and its agents, servants and employees,
committed in the conduct of franchise operation, and/or
Use of motor vehicles;
(3) Provide a combined single limit for comprehensive general liability and
comprehensive automobile liability insurance in the amount provided for in the Franchise
Agreement. Such insurance policy shall be subject to the review kind approval of Grantor's
Orals 90-12 19
legal counsel; and
(4) Be noncancellable without thirty (30) days prior written notice thereof
directed to Grantor.
C. The policy of Worker's Compensation Insurance shall:
(1) Have been previously approved as to substance and form by the California
Insurance Commissioner;
(2) Cover all employees of Grantee who in the course and scope of their
employment are to conduct the franchise operations;
(3) Provide for every benefit and payment presently or hereinafter conferred by
Division 4 of the Labor Code of the State upon an injured employee, including vocational
rehabilitation and death benefits.
D. The policy of property insurance shall provide fire insurance with extended coverage
on the franchise property used by Grantee in the conduct of franchise operation in an amount
adequate to enable Grantee to resume franchise operations following the occurrence of any risk
covered by this insurance.
E. Grantee shall file with Grantor prior to commencement of franchise operations either
certified copies of these insurance policies or a certificate of insurance for each of the required
policies executed by the company issuing the policy or by a broker authorized to issue such a
certificate, certifying that the policy is in force and providing the following information with
respect to said policy:
(1) The policy number;
(2) The date upon which the policy will become effective and the date upon
which it will expire;
(3) The names of the named insured and any additional insured required by this
Chapter or the Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
(6) Amount or limit of coverage provided by the insurance.
F. Conduct of franchise operations shall not commence until Grantee has complied with
the aforementioned provisions of this Section.
G. In the event Grantee fails to maintain any of the above-described policies in full
force and effect, Grantor shall, upon forty-eight (48) hours notice to Grantee, have the right to
procure the required insurance and recover the cost thereof from Grantee. Grantor shall also
Ords 90-12 20
have the right to suspend the franchise during any period that Grantee fails to maintain said
policies in full force and effect.
H. No more than once during any three (3) year period, Grantor shall have the right to
order Grantee to increase the amounts of the insurance coverage provided herein. Such order
may be made by Grantor after complying with the hearing procedure provided for in Section
1.32 herein. Increases in insurance coverage shall be based upon current prudent business
practices of like enterprises involving the same or similar risks.
SECTION 1.23 RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT.
A. Grantee shall at all times maintain:
(1) A record of all complaints received and interruptions or degradation of service
experienced for the preceding two (2) years, provided that such complaints result in or require a service
call.
(2) A full and complete set of plans, records and "as-built" maps showing the location of
the cable television system installed or in use in the City, exclusive of subscriber service drops and
equipment provided in subscribers' homes.
(3) A record of service calls, identifying the number, general nature and disposition of
such calls, on a monthly basis. A summary of such service calls shall be submitted to the Grantor
within thirty (30) days following the end of each month in a form reasonably acceptable to the Grantor.
B. The Grantor may impose reasonable requests for additional information, records and
documents from time to time, provided they reasonably relate to the scope of the City's rights under
this Chapter or the Grantee's Franchise Agreement.
C. Upon reasonable notice, and during normal business hours, Grantee shall permit examination
by any duly authorized representative of the Grantor, of all franchise property and facilities, together
with any appurtenant property and facilities of Grantee situated within or without the City, and all
records relating to the franchise, provided they reasonably relate to the scope of Grantor's rights under
this Chapter or the Grantee's Franchise Agreement.
SECTION 1.24 ANNUAL REPORTS
Within ninety (90) days after the end of the calendar year, Grantee shall submit a written
annual report to Grantor with respect to the preceding calendar year in a form approved by
Grantor, including, but not limited to, the following information:
A. A summary of the previous year's (or in the case of the initial reporting 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;
B. A current statement of costs of construction by component categories;
Ords 90-12 21
C. A list of Grantee's officers, members of its board of directors, and other principals of
Grantee;
D. 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 entities, if
any;
E. An indication on a map of those areas where service is planned and a schedule describing
the planned implementation;
F. Information as to the number of homes passed, subscribers, additional television outlets,
and penetration of basic and pay service in the service area.
G. Any other information which the Grantor shall reasonably request.
SECTION 1.25 COPIES OF FEDERAL AND STATE REPORTS.
Grantee shall submit to Grantor copies of all pleadings, applications and reports
submitted by Grantee to, as well as copies of all decisions, correspondence and actions by
any Federal, State or local court, regulatory agency, or other governmental body which are
non-routine in nature and which will materially affect its cable television operation within the
franchise area. Grantee shall submit such documents to Grantor simultaneously with their
submission to such court, agency and/or body; or within five (5) days after their receipt from
such court, agency and/or body. Information otherwise confidential by law and so designated
by Grantee, which is submitted to Grantor, shall be retained in confidence by Grantor and its
authorized agents and shall not be made available for public inspection.
SECTION 1.26 PUBLIC REPORTS.
If Grantee is publicly held, a copy of each Grantee's annual and other periodic
reports and those of its parent, shall be submitted to Grantor within forty-five (45) days of
its issuance.
SECTION 1.27 COMPLAINT REPORT AND OPINION SURVEY.
A. The Grantee shall furnish to the Grantor the results of any opinion survey conducted
by the Grantee which identifies satisfaction or dissatisfaction among subscribers within the City
with the Grantee's cable service. The results of such survey shall be furnished to the Grantor
within thirty (30) days following completion of the survey.
B. Upon request of the Grantor, but not more than once annually, the Grantee shall
conduct a subscriber satisfaction survey pertaining to quality of service, which may be
transmitted to subscribers in subscriber statements for cable services. The form and content of
such survey shall be reasonably acceptable to the Grantor. The cost of such survey shall be borne
by the Grantee.
Ord8 90-12 22
SECTION 1.28 PRIVACY REPORT.
Upon Grantor's request, but no more than annually, Grantee shall submit to
Grantor an annual report indicating the degree of compliance with the privacy provisions
contained in Section 1.42 herein and all steps taken to assure that the privacy rigt~ts ot
individuals have been protected.
SECTION 1.29 REPORTS-GENERAL
A. All reports required under this Chapter, except those confidential by law, shall be
available for public inspection in the Grantor's offices during normal business hours.
B. All reports and records required under this Chapter shall be furnished at the sole
expense of Grantee, except as otherwise provided in this Chapter or the Franchise
Agreement.
C. The willful refusal, failure, or neglect of Grantee to file any o£ the reports
required as and when due under this Chapter, may be deemed a material breach of the
Franchise Agreement if such reports are not provided to Grantor within thirty (30) days after
written request therefor, and may subject the Grantee to all remedies, legal or equitable,
which are available to Grantor under the franchise or otherwise.
D. Any materially false or misleading statement or representation made knowingly
and willfully by the Grantee in any report required under this Chapter or under the Franchise
Agreement may be deemed a material breach of the franchise and may subject Grantee to all
remedies, legal or equitable, which are available to Grantor under the franchise or otherwise.
SECTION 1.30 ANNUAL REVIEW OF SYSTEM PERFORMANCE.
Each year throughout the term of the franchise, if requested by the Grantor, Grantor
and Grantee shall meet publicly to review system performance and quality of service.
The various reports required pursuant to this Chapter, results of technical performance
tests, the record of subscriber complaints and Grantee's response to complaints, and the
information acquired in any subscriber surveys, shall be utilized as the basis for review. In
addition, any subscriber may submit comments or complaints during the review meetings,
either orally or in writing, and these shall be considered. Within thirty (30) days after
conclusion of a system performance review meeting, Grantor may issue findings with respect
to the adequacy of system performance and quality of service.
If the Grantee is determined not to comply with the requirements of this Chapter or the
Grantee's franchise, Grantor may direct Grantee to correct the areas of noncompliance within
a reasonable period of time. Failure of Grantee, after due notice, to correct the areas of
noncompliance within the period specified therefor or to commence compliance within such
period and diligently achieve compliance thereafter shall be considered a material breach of
the franchise, and Grantor may exercise any remedy within the scope of this Chapter and the
Ords 90-12 23
Franchise Agreement considered appropriate.
SECTION 1.31 SPECIAL REVIEW OF SYSTEM PERFORMANCE.
When there have been complaints made or where there exists other evidence which,
in the judgment of the Grantor, casts reasonable doubt on the reliability or quality of cable
service to the effect that the Grantee is not in compliance with the requirements of this
Chapter or its franchise, the Grantor shall have the right to compel the Grantee to test,
analyze and report on the performance of the system in order to protect the public against
substandard cable service. Such test or tests shall be made and the report thereof shall be
delivered to the Grantor no later than thirty (30) days after the Grantor notifies the Grantee
that it is exercising such right, and shall be made at Grantee's sole cost. Such report shall
include the following information:
The nature of the complaints which precipitated the special tests; what system component
was tested; the equipment used and procedures employed in said testing; the results of such
tests; and the method by which such complaints were resolved. Any other information
pertinent to the special test shall be recorded.
SECTION 1.32 SPECIAL EVALUATION SESSIONS.
The Grantor may hold special evaluation sessions at any time during the term of a
franchise, provided such sessions are held no more often than once every three (3) years.
The Grantee shall be notified of the place, time and date thereof and the topics to be
discussed. Such sessions shall be open to the public and advertised in a newspaper of general
circulation at least thirty (30) days before each session. The sessions may include an
evaluation of any items considered relevant to the cable system, the subscribers and the City.
Either the Grantor or the Grantee may propose items for discussion or evaluation.
SECTION 1.33 REMEDIES FOR FRANCHISE VIOLATIONS.
If Grantee fails to perform in a timely manner any obligation required by this Chapter or a
franchise granted hereunder following notice from the Grantor and an opportunity to cure such non-
performance in accordance with the provisions of Section 1.35 of this Chapter, Grantor may at its
option and in its sole discretion:
A. Cure the violation and recover the actual cost thereof from the security fund established
herein if such violation is not cured within five (5) days after written notice to the Grantee of
Grantor's intention to cure and draw upon the security fund;
B. Assess against Grantee liquidated damages in an amount set forth in the Franchise
Agreement for any such violation(s) if such violation is not cured within five (5) days after written
notice to the Grantee of Grantor's intention to assess liquidated damages. By acceptance of a
franchise hereunder, Grantee hereby agrees to pay any assessment to be levied against the security
fund hereinabove provided and collected by Grantor immediately upon such assessment. Such
Ords 90-12 24
assessment shall not constitute a waiver by Grantor of any other right or remedy it may have under
the franchise or under applicable law, including without limitation, its right to recover from Grantee
such additional damages, losses, costs and expenses, including actual attorneys' fees, as may have
been suffered or incurred by Grantor by reason of or arising out of such breach of the franchise;
C. For violations which have materially degraded the quality of service, order and direct
Grantee to issue rebates or credits to subscribers, in an amount to be determined by Grantor to be
reasonably related to the nature of the degradation in service and measured by the period of the
degradation, to provide monetary relief substantially equal to the reduced quality of service resulting
from Grantee's failure to perform.
SECTION 1.34 GRANTOR'S POWER TO REVOKE.
Grantor reserves the right to revoke any franchise granted pursuant to this Chapter and
rescind all rights and privileges associated with it in the following circumstances, each of
which shall represent a default by Grantee and material breach under the franchise grant:
A. If Grantee shall default in the performance of its material obligations under this
Chapter or under such agreements, contracts or other terms and provisions entered into by
and between Grantor and the Grantee;
B. If Grantee shall fail to provide or maintain in full force and effect the insurance
coverage or security fund as required herein;
C. If Grantee shall violate any order or ruling of any regulatory body having
jurisdiction over the Grantee relative to the Grantee's franchise, unless such order or ruling is
being contested by Grantee by appropriate proceedings conducted in good faith;
D. If Grantee attempts to evade any provision of this Chapter or practices any fraud or
deceit upon Grantor;
E. If Grantee persistently fails to remedy defaults for which lesser penalties have
previously been imposed;
F. If Grantee becomes insolvent, unable or unwilling to pay its debt., or is adjudged a
bankrupt;
The termination and forfeiture of the Grantee's franchise shall in no way affect any
right of Grantor to pursue any remedy under the franchise or any provision of law.
SECTION 1.35 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS.
Prior to imposing any remedy or other sanction against Grantee specified in this
Chapter, Grantor shall give Grantee notice and opportunity to be heard on the matter, in
accordance with the following procedures:
Ords 90-12 25
A. Grantor shall first notify Grantee of the violation in writing by personal delivery or
registered or certified mail, and demand correction within a reasonable time, which shall not
be less than five (5) days in the case of the failure of the Grantee to pay any sum or other
amount due the Grantor under this Chapter or the Grantee's franchise and thirty (30) days in
all other cases. If Grantee fails to correct the violation within the time prescribed or if
Grantee fails to commence correction of the violation within the time prescribed and dili-
gently remedy such violation thereafter, the Grantor shall then give written notice of not less
than twenty (20) days of a public hearing to be held before the Council. Said notice shall
specify the violations alleged to have occurred.
B. At the public hearing, the Council shall hear and consider all relevant evidence,
and thereafter render findings and its decision.
C. In the event the Council finds that Grantee has corrected the violation or has
diligently commenced correction of such violation after notice thereof from Grantor and is
diligently proceeding to fully remedy such violation, or that no violation has occurred, the
proceedings shall terminate and no penalty or other sanction shall be imposed.
D. In the event the Council finds that the alleged violations exist and that Grantee has
not corrected the same in a satisfactory manner or has not diligently commenced correction of
such violation after notice thereof from Grantor and is not diligently proceeding to fully
remedy such violation the Council may impose one or more of the remedies specified herein
as it, in its discretion, deems appropriate under the circumstances.
SECTION 1.36 FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM.
In the event Grantee's performance of any of the terms, conditions or obligations
required by this Chapter or a franchise granted hereunder is prevented by a cause or event not
within Grantee's control, such inability to perform shall be deemed excused and no penalties
or sanctions shall be imposed as a result thereof; provided, however, that such inability to
perform shall not relieve a Grantee from the obligations imposed by Section 1.33.C,
pertaining to refunds and credits for interruptions in service. For the purpose of this Section,
causes or events not within the control of Grantee shall include without limitation acts of
God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a
governmental agency or court, explosions, acts of public enemies, and natural disasters such
as floods, earthquakes, landslides, and fires, but shall not include financial inability of the
Grantee to perform or failure of the Grantee to obtain any necessary permits or licenses from
other governmental agencies or the right to use the facilities of any public utility where such
failure is due solely to the acts or omissions of Grantee, or the failure of the Grantee to secure
supplies, services or equipment necessary for the installation, operation, maintenance or
repair of the cable communications system where the Grantee has failed to exercise reasonable
diligence to secure such supplies, services or equipment.
SECTION 1.37 ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY.
A. In the event that the use of any franchise property or a portion thereof is discontinued
Ords 90-12 26
for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that
franchise property.
B. Grantor, upon such terms as Grantor may impose, may give Grantee permission to
abandon, without removing, any system facility or equipment laid, directly constructed, operated
or maintained under the franchise. Unless such permission is granted or unless otherwise
provided in this Chapter, the Grantee shall remove all abandoned facilities and equipment upon
receipt of written notice from Grantor and shall restore the street to its former state at the time
such facilities and equipment were installed, as near as may be, so as not to impair its
usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own
expense, any excavation that shall be made by it and shall leave all public ways and places in as
good condition as that prevailing prior to such removal without materially interfering with any
electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the
right to inspect and approve the condition of the public ways, public places, cables, wires,
attachments and pole prior to and after removal. The liability, indemnity and insurance
provisions of this Chapter and the security fund as provided herein shall continue in full force
and effect during the period of removal and until full compliance by Grantee with the terms and
conditions of this Section.
C. Upon abandonment of any franchise property in place, the Grantee, if required by the
Grantor, shall submit to the Grantor an instrument, satisfactory in form to the Grantor,
transferring to the Grantor the ownership of the franchise property abandoned.
D. At the expiration of the term for which the franchise is granted, or upon its
revocation or earlier expiration, as provided for herein, in any such case without renewal,
extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own
expense, all above-ground portions of the cable television system from all streets and public
ways within the City within a reasonable period of time, which shall not be less than one
hundred eighty (180) days.
E. Notwithstanding anything to the contrary set forth in this Chapter, the Grantee may
abandon any underground franchise property in place so long as it does not materially interfere
with the use of the street or public rights-of-way in which such property is located or with the
use thereof by any public utility, or other cable Grantee.
SECTION 1.38 RESTORATION BY GRANTOR: REIMBURSEMENT OF COSTS.
In the event of a failure by Grantee to complete any work required herein or by any other
law or ordinance, and if such work is not completed within thirty (30) days after receipt of
written notice thereof from Grantor or, if more than thirty (30) days are reasonably required
therefor, if Grantee does not commence such work within such thirty (30) day period and
diligently complete the work thereafter (except in cases of emergency constituting a threat to
public health, safety or welfare), Grantor may cause such work to be done and Grantee shall
reimburse Grantor the costs thereof within thirty (30) days after receipt of an itemized list of
such costs, or Grantor may recover such costs through the security fund provided by Grantee.
Ords 90-12 27
SECTION 1.39 EXTENDED OPERATION AND CONTINUITY OF SERVICE
Upon either expiration or revocation of the franchise, the Grantor shall have discretion
to permit Grantee to continue to operate the cable television system for an extended period of
time not to exceed twelve (12) months from the date of such expiration or revocation, unless
extended by resolution of Grantor. Grantee shall, as trustee for its successor-in-interest,
continue to operate the system under the terms and conditions of this Chapter and the franchise
and to provide the regular subscriber service and any and all of the services that may be
provided at that time. It shall be the right of all subscribers to continue to receive all available
services provided their financial and other obligations to Grantee are honored. The Grantee
shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers,
including operation of the system during transitional periods following franchise expiration or
termination.
SECTION 1.40 RECEIVERSHIP AND FORECLOSURE
A. A franchise granted hereunder shall, at the option of Grantor, cease and terminate
one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or
trustees, to take over and conduct the business of Grantee, whether in a receivership,
reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship
shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
(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 Chapter and the
franchise granted pursuant hereto, and the receivership or trustees within said one hundred
twenty (120) days shall have remedied all the faults under the franchise or provided a plan for the
remedy of such faults which is satisfactory to the Grantor; and (2) such receivers or trustees
shall, within said one hundred twenty (120) days, execute an agreement duly approved by the
court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to
be bound by each and every term, provision and limitation of the franchise herein granted.
B. In the case of a foreclosure or other Judicial sale of the franchise property, or any
material part thereof, Grantor may serve notice of termination upon Grantee and the successful
bidder at such sale, in which event the franchise herein granted and all fights and privileges of
the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice,
unless: (1) Grantor shall have approved the transfer of the franchise, as and in the manner
that this Chapter provides; and (2) such successful bidder shall have covenanted and agreed
with Grantor to assume and be bound by all terms and conditions of the franchise.
Ords 90-12 28
SECTION 1.41 RIGHTS RESERVED TO GRANTOR.
A. In addition to any rights specifically reserved to the Grantor by this Chapter, the
Grantor reserves to itself every right and power which is required to be reserved by a provision
of any ordinance or under the franchise, and the Grantee by accepting a franchise hereunder
agrees to be bound thereby and to comply with any action or requirement of the Grantor in its
exercise of any such right or power.
B. The Grantor shall have the right to waive any provision of the franchise, except those
required by Federal or State regulation, if the Grantor determines (1) that it is in the public
interest to do so, and (2) that the enforcement of such provision will impose an undue hardship
on the Grantee or the subscribers. To be effective, such waiver shall be evidenced by a
statement in writing signed by a duly authorized representative of the Grantor. Waiver of any
provision in one instance shall not be deemed a waiver of such provision subsequent to such
instance nor be deemed a waiver of any other provision of the franchise unless the statement so
recites.
SECTION 1.42 RIGHTS OF INDIVIDUALS.
A. Grantee shall not deny service, deny access, or otherwise discriminate against
subscribers, channel users, or general citizens on the basis of race, color, religion, national
origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and
local laws and regulations, and all executive and administrative orders, relating to
nondiscrimination, including without limitation Section 51 of the California Civil Code which
is incorporated in this Section by reference.
B. Grantee shall adhere to the applicable equal employment opportunity requirements of
the FCC, State and local regulations, as now written or as amended from time to time.
C. Neither Grantee, nor any person, agency, or entity shall, without the subscriber's
consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber
outlet or receiver for any purpose except routine maintenance of the system, detection of
unauthorized service, polling with audience participating, or audience viewing surveys to
support advertising research regarding viewers where individual viewing behavior cannot be
identified.
D. In the conduct of providing its services or in pursuit of any collateral commercial
enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a
subscriber's or general citizen's right of privacy or other personal right. through the use of the
system as such rights are delineated or defined by applicable law. Grantee shall not
without lawful court order or other applicable valid legal authority utilize the system's
interactive two-way equipment or capability for unauthorized personal surveillance of any sub-
scriber or general citizen.
Ords 90-12 29
E. No cable line, wire, amplifier, converter, or other piece of equipment owned by
Grantee shall be installed by grantee in the subscriber's premises without first securing any
required consent. If a subscriber requests service, permission to install upon subscriber's
property shall be presumed.
F. The Grantee shall credit or refund to the subscriber upon request, for interruptions
in service, as provided in the Grantee's Franchise Agreement.
G. The Grantee, or any of its agents or employees, shall not sell, or otherwise make
available to any party:
(1) Any list of the names and addresses of subscribers containing the names and
addresses of subscribers who request in writing to be removed from such list; and
(2) Any list which identifies the viewing habits of individual subscribers,
without the prior written consent of such subscribers. This does not prohibit the Grantee from
providing composite ratings of subscriber viewing to any party.
SECTION 1.43 SEPARABILITY.
If any provision of this Ordinance is held by any court or by any Federal or State
agency of competent jurisdiction, to be invalid as conflicting with any Federal or State law,
rule or regulation now or hereafter in effect, or is held by such court or agency to be modified
in any way in order to conform to the requirements of any such law, rule or regulation, such
provision shall be considered a separate, distinct, and independent part of this Chapter, and
such holding shall not affect the validity and enforceability of all other provisions hereof. In
the event that-such law, rule or regulation is subsequently repealed, rescinded, amended or
otherwise changed, so that the provision hereof which had been held invalid or modified is no
longer in conflict with such law, rule or regulation, said provision shall thereupon return to
full force and effect and shall thereafter be binding on Grantor and Grantee, provided that
Grantor shall give Grantee thirty (30) days written notice of such change before requiring
compliance with said provision or such longer period of time as may be reasonably required
for Grantee to comply with such provision.
PASSED, APPROVED AND ADOPTED this 24th day of July, 1990.
Ronald J. Parks, Mayor
ATTEST:
Ords 90-12 30
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) SS
CITY OF TEMECULA )
I, June s. Greek, Deputy City Clerk of the City of Temecula, HEREBY DO CERTIFY
that the foregoing Ordinance 90-12 was duly adopted at a regular meeting of the City Council
of the City of Temecula at the 24th day of July, 1990 by the following vote of the Council:
AYES: 5
COUNCILMEMBERS: Birdsall, Lindemans,
Moore, Munoz, Parks
NOES: 0
COUNCILMEMBERS: NONE
ABSENT 0
COUNCILMEMBERS: NONE
Juh~S~Greek, Deputy City~Clerk
Ords 90-12 31