HomeMy WebLinkAboutOrd 1990-2392 NOT APPROVED
ORDINANCE NO. 2392
AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
THE CHULA VISTA MUNICIPAL CODE BY ADDING THERETO
A NEW CHAPTER 5.31 GOVERNING CABLE TELEVISION
FRANCHISES HEREINAFTER GRANTED BY THE CITY OF
CHULA VISTA
Ordinance No. 2392 - i
Page 2
TABLE OF CONTENTS
Section Title Pa~e
5.31.010 Intent ........... 1
5.31.020 Definitions .......... 2
S.31.030 Franchise to Install and Operate 6
5.31.040 Franchise Required ...... 7
5.31.050 Term of the Franchise ..... 8
5.31.060 Franchise Territory ..... 9
5.31.070 Federal or State Jurisdiction. lO
5.31.080 Franchise Non-Transferable ll
5.31.090 Geographical Coverage.. 14
5.31.100 Nonexclusive Franchise . 15
5.31.110 Nultiple Franchises.. . 16
5.31.120 Franchise Applications . 17
5.31.130 Applications - Contents. 18
5.31.140 Solicitation of Applications lg
5.31.150 Franchise Fee ....... 20
5.31.160 Security Fund ....... 22
5.31.170 Design and Construction Requirements 23
5.31.180 Technical Standards ........ 26
5.31.1gO Hold Harmless .......... 27
5.31.200 Insurance .............. 28
5.31.210 Records Required and Grantor's
Right to Inspect ........... 31
- tt - Ordinance No 2392
Page 3
TABLE OF CONTENTS (continued)
Section Tttle Page
5.31.220 Annual Reports ........... 32
5.31.230 Copies of Federal and State Reports.. . 33
5.31.240 Public Reports ............ 34
5.31.250 Complaint Report and Opinion Survey .... 35
5.31.260 Privacy Report 36
5.31,270 Reports - General ....... 37
5.31.280 Annual Review of System Performance. 38
5.31.290 Special Review of System Performance 39
5.31.300 Special Evaluation Sessions ..... 40
5.31.310 Remedies for Franchise Violations.. 41
.31.320 Grantor's Power to Revoke .... 42
5.31.330 Procedure for Remedying Franchise
Violations ............. 43
5.31.340 Force Majeure; Grantee's Inability
to Perform ............ 44
5.31.350 Abandonment or Removal of
Franchise Property .......... 45
5.31.360 Restoration by Grantor:
Reimbursement of Costs ........ 47
5.31.370 Extended Operation and Continuity
of Services ............. 48
5.31.380 Receivership and Foreclosure ...... 49
5.31.3g0 Rights Reserved to Grantor ....... 50
5.31.400 Rights of Individuals .......... 51
5.31.410 Separability ............. 53
Ordinance No. 2392 ORDINANCE NO.
Page 4
THE CIl~ COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS:
The following Chapter is added to the City of Chula Vista Municipal Code:
CHAPTER 5.31 CABLE TELEVISION FRANCHISES
Section 5.31.010 Intent.
A. The City of Chula Vista, pursuant to Government Code Section 63066,
is authorized to grant one or mere 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
con~unications systems has the potential of having great benefit and impact
upon the residents of Chula Vista. Because of the complex and rapid
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.
Ordinance No 2392
Page 5
Section 5.31.020 Definitions.
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
~ontrol equipment, that is designed to provide cable service which includes
video programming and which is provided to multiple subscribers within a
community, but such term does not include:
(1) A facility that serves only to retransmit the television signals
of one or more television broadcast stations.
(2) A facility that serves only subscribers in one or more multiple
unit dwellings under common ownership, control, or management, unless such
facility uses any 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 programming directly to subscribers; or
(4) Any facilities of any electric utility used solely for operating
its electric utility system.
Ordinance No. 2392
Page 6
C. 'Cable 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 Chula Vista.
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 franchislng authority or other governmental anttry 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 undul"'
discriminatory against cable operators or cable subscribers);
Ordinance No 2392
Page 7
(2) Capital costs which are required by the franchise to be incurred
by Grantee for public, educational, or governmental access faci3ities:
(3) Requirements or charges incidental to the awarding or enforcing
of the franchise, including pa~n~ents for bonds, security funds, letters of
credit, insurance, indemnification, penalties, or liquidated damages; or
(4) Any fee imposed under Title 37, United States Code.
I. "Grantee" 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 Chula Vista as represented by the Council
or any delegate acting within the scope of its Jurisdiction.
K. "Gross Annual Receipts" means the annua] 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'
terminal s, and the provision of service.
N. "P~.rson" means an individual, partnership, association, Joint stock
company, trust, corporation or governmental entity.
O. "Public, Educational or Government Access Facilities" or "PEG Access
'acilities" means the total of the following:
Ordinance No. 2392 '
Page 8
(1) Channel capacity designated for public, education, or
governmental use; and
(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 designated in a Franchise Agreement to receive cable service.
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, rights-of-way anu
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 purpose, a service provided by the Grantee by means of or in
connection with the cable system.
Ordinance No 2392
Page 9
Section 5.31.030 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 cable television service and the
distribution and sale of such service 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.
Ordinance No. 2392
Page lO
Sectlon 5.31.040 Franchise Required.
]t Shall be unlawful for any person to construct, install or operate a
cable television system tn the City within any public street without a
properly granted franchise awarded pursuant to the provisions of this Chapter.
Ordinance No 2392
Page ll
Section 5.33.050 Term of the Franchise.
A. A franchise granted hereunder* shall be for a term established tn the
Franchise Agreement, commencing on the effective date of the Franchise
Agreement, or upon the Grantor's adoption of an ordinance authorizing the
franchise, whichever shall occur sooner.
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.
C. Either expiration of the franchise terms without renewal or
termination by revocation as herein permitted shall not be deemed a "taking"
as the term is used in connection with either the exercise of eminent domain
powers or in connection with any constitutional privilege of either due
process or compensation.
D. Any franchise granted hereunder which is accepted by a grantee,
either directly or by the commencement of service pursuant to the terms and
conditions thereof, shall obligate the grantee to provide the service as
herein specified for the term of the franchise and pursuant to the terms and
conditions herein set forth in the franchise agreement.
Ordinance No. 2392
Page 12
Section 5.31.060 Franchise Territory.
Any franchise shall be within ~ll or a specified portion of the
territorial limits of the City, and within any area henceforth added to the
franchise service area of any Grantee during the term of the franchise.
Ordinance No 2392
Page 13
Section B.31.070 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. 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
~reemption 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 tel ated provisions.
Ordinance No. 2392
Page 14
Section 5.31.080 Franchise Non-Transferable.
A. Grantee shall not sell, transfer, lease, assign, 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 i~
whatever manner exercised. In the event that Grantee is a corporation, priu.
approval of the Council shall be required where ownership or control of more
than twenty percent (20%) 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 provisions under this Section governing the
consent of Grantor to such change in control of ownership shall apply.
Ordinance No 2392
Page 15
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, which application shall include the
information required under Subsections B. through F. of Section 5.31.130 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.
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
destgnee satisfactory to the Grantor shall take control of and operate the
cable television system, in the event of a Grantee default in its financial
~bligations. Further, said financial institution shall also submit a plan for
Ordinance No. 2392 '
Page 16
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 all of Grantor's 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,
consul rants (including technical and legal experts and all costs incurred b,~-
such experts), notice and publication costs and document preparation expenses.
Ordinance No 2392
Page 17
Section 5.31.090 Geographical Coverage.
A. Grantee shall design, construct and maintain the cable television
system to have the capability to pass every dwelling unit tn Grantee's service
area, subject to the 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.
Ordinance No. 2392
Page 18
Section 5.31.100 Nonexclusive Franchise.
Any franchlse granted shall be nobexclusive. The 6rantor spec~ffcally
reserves the rtght to grant, at any tfme, such additional franchises for a
cable television system or anY component thereof, as tt deems appropriate.
Ordinance No 2392
Page 19
Section S.31.110 Multiple Franchises.
A. Grantor may grant any number of franchises, either on a City-wide
basis or for a limited service area. 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,
~uch as the requirement for multiple pedestal s 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 any area of the City, Grantor shall presume that
competition between at least two (2) cable operators is beneficial to the City
and its residents. In the event of multiple franchises desiring to serve new
residential developments the procedures contained in Section 5.31.170 herein
shall apply.
C. In granting any multiple franchise, Grantor may require new Grantees
to serve some portion or all of the areas of the City already receiving cable
services, as well as serving new residential developments.
D. Grantor may require that any new Grantee be responsible for its own
underground trenching and the costs associated therewith, if, in Grantor's
~pinion, the rights-of-way in any particular area cannot feasibly and
reasonably accommodate additional cables.
Ordinance No. 2392
Page 20
Section 5.31.120 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, consul tents (including 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 receip'~--
of an itemized statement of such costs.
Ordinance No 2392
Page 21
Section 5.31,130 Appllcatfons - Contents.
An application for a franchise for a cable television system shall
contain, where applicable:
A. Designation of specific area(s) to be served by franchise;
B. Resume of prtor htstory of applicant, Including the expertise of
applicant ~n the cable television field.
C. L~st of the partners, general and 11mfted, of the applicant, ~f a
partnership, or the percentage of stock owned or controlled by each
shareholder, if a corporation.
O. L~st of officers, directors and managlng employees of applfcant,
together w~th 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 o~n~ng or controlling applicant In whole or ~n part,
or owned or controlled ~n whole or tn part by applicant;
F. A current flnanc~al statement of applfcant verified by a CPA audit or
othenv~se certlfted to be true, compl ere and correct to the reasonable
satlsfactlon of the Ctty;
G. Proposed construction and service schedule.
H. Any reasonable additional ~nformat~on that the C~ty deems applicable.
Ordinance No. 2392
Page 22
Section 5.31.140 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.
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 tu
Sether 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.
Ordinance No 2392
Page 23
Section 5.31.150 Franchise Fee.
A. Following the issuance and a~ceptance 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 the
Grantee, reflecting the total amounts. of gross receipts and all payments,
deductions and computations for the period covered by the payment. Upon ten
(lO) days prior written notice, Grantor shall have the right to conduct an
independent audit of Grantee's records, in accordance with Generally Accepted
~ccounting 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 sums 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
Ordinance No. 2392
Page 24
(2) If the payment is late by forty-five (45) days or more, a sum of
money equal to five percent (B%) of th~ amount due in order to defray those
additional expenses and costs incurred by the Grantor by reason of delinquent
payment.
E. Franchise fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
Ordinance No 2392
Page 25
Section 5.31.160 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
Oy provision of a corporate surety bond, in a form approved by Grantor.
Ordinance No. 2392
Page 26
Section 5.3].]70 Oesiqn and Construction Reouirements.
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 undergroun~--
then the Grantee likewise shall reconstruct, operate and maintain
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 (the names of which shall be obtained from the
City Engineer) 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 map shall
indicate the cable operators that have agreed to serve the development.
Ordinance No 2392
Page 27
(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 cost basis. If fewer than 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.
In the event developer has provided conduit to accommodate cable
television cables and said conduit is subsequently used by a cable television
franchisee, prior to occupancy of said conduit, the franchisee shall enter
into good faith negotiations with the City to pay for the reasonable
reimbursement of the developer's costs for the digging of the trench and the
-.Qlacement of the conduit on a non-discriminatory shared costs basis with other
trench occupants. The City shall use monies received from the franchisee to
reimburse the developer for his reasonable costs.
(3) lhe 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) 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
Ordinance No. 2392
Page 28
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.
(5) Any cable operator wishing to serve an area where the trenches
have been closed shall be responsible for its own trenching and associated
costs.
(6) 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.
(7) The City reserves the right to grant an encroachment permit to a
cable franchise applicant to install conduit and/or cable in anticipation -'
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 appltcant's cost. The
construction of such a separate trench, if provided, shall be coordinated
with, and subject to, the developer's overall construction schedule.
Ordinance No 2392
Page 29
Section 5.31.180 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 requirements, FCC technical standards, and any
detailed 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.
Ordinance No. 2392
Page 30
Section S.31.1gO 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 o.r 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.
Ordinance No 2392
Page 31
Section 5.31.200 Insurance.
A. On or before conmnencement 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 insureds;
(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
'or limited to coverage for:
· Negligent acts or omissions of Grantee and its agents,
servants and employees, committed in the conduct of
franchise operations, 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 and approval of Grantor's 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
~altfornia Insurance Commissioner;
Ordinance No. 2392
Page 32
(2) Cover all employees of Grantee who tn the course and scope of
thetr emplo3nnent are to conduct the franchise operatfons;
(3) Provtde for every benefit and payment presently or herefnafter
conferred by Dtvtston 4 of the Labor Code of the State upon an injured
employee, Including vocational rehabilitation and death beneffts.
D. The policy of property insurance shall provtde ffre Insurance w~th
extended coverage on the franchise property used by Grantee In the conduct of
franchise operations tn an amount adequate to enable Grantee to resume
franchise operations following the occurrence of any rtsk covered by th~s
insurance.
E. Grantee shall ffle wtth Grantor prtor to commencement of franchise
operations etther certified coptes of these Insurance poltcles or ~-
certfficate of Insurance for each of the requfred pollcies executed by the
company tssutng the poltcy or by a broker authorized to fssue such a
certificate, certifying that the policy ts tn force and provldtng the
following fnformat~on wfth respect to satd polfcy:
(1) The pollcy number;
(2) The date upon whtch the pollcy wt11 become effective and the
date upon whtch tt wtll expfre;
(3) The names of the named tnsureds and any additional insured
requtred by this Chapter or the Franchfse Agreement;
(4) The subject of the ~nsurance;
(5) The type of coverage provtded by the Insurance; and
(6) Amount or 11mtt of coverage provtded by the insurance.
F. Conduct of frenchhe operations shall not commence untfl Grantee he
complied wtth the aforementioned provisions of thls Sectton.
Ordinance No 2392
Page 33
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 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 B.31.320 herein. Increases
in insurance coverage shall be based upon current prudent business practices
of like enterprises involving the same or similar risks.
Ordinance No. 2392
Page 34
Sectfon 5.31.210 Records Requlred and Grantor's R~ght to Znspect.
A. Grantee shall at all t~mes meanrain:
(1) A record of all complafnts recetved and interruptions or
degradation of servtce experienced for the preceding two (2) years, provtded
that such complaints result ~n 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 ~nstalled or ~n use ~n the
City, exclusive of subscriber servtCe drops and equlpment provided in
subscribers' homes.
(3) A record of service call s, 1denttrying the number, general
nature and disposition of such calls, on a monthly bas~s. A summary of such
service calls shal] be submitted to the Grantor within thirty (30) day~--
followlng the end of each month In a form reasonably acceptable to the Grantor.
B. The Grantor may tmpose reasonable requests for additional
information, records and documents from t~me to t~me, provided they reasonably
relate to the scope of the C~ty's rights under th~s Chapter or the Grantee's
Franchise Agreement.
C. At all reasonable t~mes, Grantee shall pemft examination by any duly
authorized representative of the Grantor, of all franchise property and
factlft~es, together with any appurtenant property and fac~lft~es of Grantee
sftuated w~th~n or w~thout the Ctty, and all records relating to the
franchise, provfded they reasonably relate to the scope of Grantor's rights
under this Chapter or the Granteels Franchise Agreement.
Ordinance No 2392
Page 35
Section 5.31,220 Annual Reports.
Within ninety (90) days after the ~nd 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;
C. A list of Grantee's officers, members of its board of directors, and
-qther 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 w/nich the Grantor shall reasonably request.
Ordinance No. 2392 '
Page 36
Section 5.31.230 Copies of Federal and State Reports.
Grantee shall submit to Grantor cop~es of all pleadings, appltcaUons 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 tn nature and which
will materially affect its cable television operations 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. Znformatlon
otherwise confidential by law and so designated by Grantee, which ts submitted
to Grantor, shall be retained in confidence by Grantor and its authorized
agents and shall not be made available for public inspection. _-
Ordinance No 2392
Page 37
Section 5.31.240 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.
0rd~nance No. 2392
Page 38
Sectton 5.31.250 0pln~on Survey.
Upon request of the Grantor, but not more than once annually, the Grantee
shall conduct a subscriber satfsfact~on survey pertaining to qualtty of
service, whlch may be transmftted 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. The results of such survey shall be furnished to the Grantor w~th~n
thirty (30) days following completion of the survey.
Ordinance No 2392
Page 39
Section 5.31.260 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 5.31.420 herein and all steps taken to assure
that the privacy rights of individuals have been protected.
Ordinance No. 2392
Page 40
Section 5.31.270 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 of
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.
Ordinance No 2392
Page 41
Section 5.31.280 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
~ssue 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 Franchise Agreement considered appropriate.
Ordinance No. 2392
Page 42
Sectton 5.31.290 Special Revtew of System Performance.
Nhen there have been complafnts mad~ or where there extsts other evidence
whtch, fn the Judgment of the Grantor, casts reasonable doubt on the
reliability or qualtty of cable service to the effect that the Grantee ~s not
tn compliance w~th the requirements of thts Chapter or ~ts franchise, the
Grantor shall have the right to compel the Grantee to test, analyze and report
on the performance of the system ~n 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 not~fies the Grantee that ~t ~s exercising such r~ght, and shall
be made at Grantee's sole cost. Such report shall tnclude the following
information: The nature of the complaints which precipitated the specla~-
tests; what system component was tested; the equipment used and procedures
employed tn said testing; the results of such tests; and the method by which
such complaints were resolved. Any other information pertinent to the speclal
test shall be recorded.
Ordinance No 2392
Page 43
Section 5.31.300 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
eval uati on.
Ordinance No. 2392
Page 44
Section 5.31.310 Remedies for Franchise Violations.
If Grantee fails to perform In a timely manner any obligation required by
thts Chapter or a franchise granted hereunder following notice from the
Grantor and an opportunity to cure such nonperformance tn accordance with the
provisions of Section 5.31,330, Grantor may at its option and in its sole
discretion:
A. Cure the v~olatlon and recover the actual cost thereof from the
security fund established herein Jf such violation fs not cured w~thtn five
(5) days after written notice to the Grantee of Grantor's intention to cure
and draw upon the securtty fund;
B. Assess against Grantee liquidated damages in an amount set forth tn
the Franchise Agreement for any such v~olatton(s) if such violation is not--
cured within five (5) days after wrttten notice to the Grantee of Grantor's
~ntentlon to assess liquidated damages. By acceptance of a franchise
hereunder, Grantee hereby agrees to pay any assessment to be levied against
the security fund heretnabove provided and collected by Grantor fmmedlately
upon such assessment. Such 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 w~thout limitation, its right to recover from
Grantee such additional damages, losses, costs and expenses, tncludtng 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 vlolat~ons 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 o' '
the degradation tn service and measured by the period of the degradation, to
provide monetary relief substantially equal to the reduced quality of service
resul ring from Gran~ee's failure to perform.
Ordinance No 2392
Page 45
Section 5.31.320 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 debts,
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.
Ordinance No. 2392
Page 46
Section 5.31.330 Procedure for Remedying Franchhe Violations.
Prior to fmposlng any remedy or o~her sanction agafnst Grantee specified
tn thfs Chapter, Grantor shall g~ve Grantee notice and opportunity to be heard
on the matter, ~n accordance w~th the following procedures:
A. Grantor shall first notify Grantee of the violation ~n writing by
personal deltvery or registered or certified ma~l, and demand correction
w~thln a reasonable t~me, which shall not be less than ftve (5) days ~n the
case of the failure of the Grantee to. pay any sum or other amount due the
Grantor under th~s Chapter or the Grantee's franchise and thirty (30} days ~n
all other cases. If Grantee fa~ls to correct the v~olat~on w~thtn the t~me
prescribed or If Grantee fa~ls to commence correction of the v~olat~on ~th~n
the t~me prescrlbed and dfligently remedy such v~olatfon thereafter, th
Grantor shall then gfve written notice of not less than twenty (20) days of a
publtc hearing to be held before the Council. Sa~d notice shall spectfy the
v~olattons alleged to have occurred.
B. At the public hearing, the Council shall hear and consider all
relevant evfdence, and thereafter render ftndlngs and tts dechfon.
C. In the event the Councfl finds that Grantee has corrected the
v~olatfon or has d~ltgently commenced correction of such v~olat~on after
notice thereof from Grantor and ~s d~ltgently proceeding to fully remedy such
v~olatfon, or that no v~olatton has occurred, the proceedings shall tem~nate
and no penalty or other sanction shall be imposed.
D. Zn the event the Council f~nds that the alleged v~olat~ons exfst and
that Grantee has not corrected the same tn a satisfactory manner or has not
d~lfgently commenced correction of such violation after notfce thereof fror
Grantor and ts not diligently proceeding to fully remedy such v~olat~on, the
Council may ~mpose one or more of the remedies speclf~ed herefn as ~t, In tts
d~scretfon, deems approprfate under the c~rcumstances.
Ordinance No 2392
Page 47
Section 5.31.340 Force Hajeure; 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 5.31.330.C.,
pertaining to refunds and credits fo~ 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. Any excuse from performance or the suspension of any penalties or
sanctions otherwise imposed shall operate for no longer than six months from
the initial date of the commencement of the force majeure condition.
Ordinance No. 2392
Page 48
Section 5.31.350 Abandonment or Removal of Franchise Property.
A. In the event that the use of any franchise property or a portion
thereof is discontinued 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 above-ground 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 removi'~
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 poles 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 instrumenl
satisfactory in form to the Grantor, transferring to the Grantor the ownership
of the franchise property abandoned.
Ordinance No 2392
Page 49
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. At the option of the Grantor, the Grantee shall either abandon any
underground franchise property in place or shall remove any underground
franchise property upon the expiration of the terms for which the franchise is
granted or upon its revocation or earlier termination as herein provided.
Ordinance No. 2392
Page 50
Sectton 5.31.360 Restoration by Grantor: Reimbursement of Costs.
Zn the event of a fatlure by Grantee to complete any work requfred herefn
or by any other law or ordinance, and tf such work ts not completed wtth~n
thtrty (30) days after recetpt of wrttten notice thereof from Grantor or, ff
more than th(rty (30) days are reasonably requtred therefor, tf Grantee does
not commence such work wlthtn such thtrty (30) day pertod and d11fgently
complete the work thereafter (except tn cases of emergency constituting a
threat to public health, safet~y or welfare}, Grantor may cause such work to be
done and Grantee shall reimburse Grantor the costs thereof w~thln thtrty (30)
days after recetpt of an ttem~zed lfst of such costs, or Grantor may recover
such costs through the securtty fund provtded by Grantee.
Ordinance No 2392
Page 51
Section 5.31.370 Extended Operation and Continuity of Services.
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
~asonable efforts to provide continuous, uninterrupted service to its
subscribers, including operation of the system during transitional periods
following franchise expiration or termination.
Ordinance No. 2392
Page 52
Section 5.31.380 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 reme<
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 rights 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 ant
be bound by all terms and conditions of the franchise.
Ordinance No 2392
Page 53
Sectton 5.31.390 Rfghts Reserved to Grantor.
A. Zn add~tfon to any rtghts specifically reserved to the Grantor by
th~s Chapter, the Grantor reserves to ttself every r~ght and power which ts
required to be reserved by a provh~on 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 tn
tts exercise of any such r~ght or power.
B, The Grantor shall have the r~ght to waive any provision of the
franchise, except those required by Federal or State regulation, tf the
Grantor determines (1} that ft ~s In the public triterest to do so, and (2)
that the enforcement of such provision w~11 ~mpose an undue hardship on the
~rantee or the subscribers. To be effective, such waiver shall be evidenced
by a statement In writing s~gned by a duly authorized representative of the
Grantor. Walver of any provfs~on tn one tnstance shall not be deemed a waiver
of such provislon subsequent to such ~nstance nor be deemed a waiver of any
other provfs~on of the franchise unless the statement so recites.
Ordinance No. 2392
Page 54
Section 5.31.400 Rights of Individuals.
A. Grantee shall not deny service, deny access, or other-
wise 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
nondiscrmination, 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 th'~-
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 conmnercial enterprise resulting therefrom, Grantee shall take
reasonable steps to prevent the invasion of a subscrtber's or general
cittzen's right of privacy or other personal rights 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 subscriber or general citizen.
Ordinance No 2392
Page 55
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
'~rom 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.
Ordinance No. 2392 "
Page 56
Sectton 5.31.420 Separabfltty.
If any provision of th~s Ordinance Is held by any court or by any Federal
or State agency of competent Jurisdiction, to be tnval~d as conflicting w~th
any Federal or State law, rule or regulation now or hereafter ~n effect, or ts
held by such court or agency to be modified ~n any way fn order to conform to
the requirements of any such law, Pule or regulation, such provision shall be
considered a separate, dfsttnct, and ~ndependent part of thts Chapter , and
such holdtng shall not affect the validity and enforceability of all other
provisions hereof. In the event that such law, rule or regulation
subsequently repealed, rescinded, amended or otherwise changed, so that the
provision hereof which had been held tnvalfd or modefled ~s no longer ~n
conflict wlth such law, rule or regularfort, sa~d provision shall thereupo---
Peturn to full force and effect and shall thereafter be btnd~ng on Grantor and
Grantee, provided that Grantor shall g~ve Grantee thirty (30) days written
nottce of such change before requiring compliance with safd provision or such
longer period of ttme as may be reasonably required for Grantee to comply
such provls~on.
Ordinance No 2392
Page 57
PASSED, APPROVED, and ADOPTED this day of , 1989.
Mayor
ATTEST:
City Clerk
WPC 0573G