CITY COUNCIL AGENDA ITEM
Meeting Date: May 28, 2002
Subject/Title: Consideration to approve second reading and adopt Ordinance No. 705 amending Chapter 5.24 of Brentwood Municipal Code regarding Cable Television Ordinance
Submitted By: Engineering: B. Grewal/S. Gronlund
Approved By: John Stevenson, City Manager
Consideration to approve second reading and adopt Ordinance No. 705 amending Chapter 5.24 of Brentwood Municipal Code regarding Cable Television Ordinance.
On May 14, 2002, the City Council approved and waived first reading of Ordinance No. 705 Amending Chapter 5.24 of the Brentwood Municipal Code pertaining to Cable Television Ordinance.
At the City Council meeting on March 12, 2002, Phillip Arndt, Director of Franchises for AT&T, requested that the Council give him time to review and meet with staff on the proposed ordinance. The Council complied and AT&T met with staff and David Kinley, the City’s cable consultant. From those meetings, a revised ordinance was created.
Subsequent to the revised ordinance, staff, Dave Kinley and the Council Members of the former Telecommunications Sub-Committee further refined the document. The attached ordinance reflects the changes.
A summary of the key changes is as follows:
1. Expanded the service area to the entire City limits, regardless of housing density.
2. Increased the prior notification period from twenty-four (24) months to thirty-six (36) and thirty (30) months for franchisees requesting renewals.
3. Significantly revise the schedule and area of service for construction of cable:
Within four (4) years from the date of the award of an initial franchise, the Grantee must make cable service available to every dwelling unit within the Initial Service Area. Revised to “within five (5) years . . . entire City, without exception, must have cable service”.
Definition of “Initial Service Area” means all areas in the City having a density of at least thirty (30) dwelling units per street mile. Revised to eliminate this definition since service area will be the entire City limits.
The Grantee must make cable service available to at least twenty (20%) percent of the dwelling units within the Initial Service Area within six (6) months from the date of the award of the Franchise. Revised to “. . . at least forty (40%) percent of the entire City within eighteen (18) months.”
The Grantee must make cable service available to at least fifty (50%) percent of the dwelling units within the Initial Service Area within one (1) year from the date of the award of the Franchise. Revised to … “… at least eighty (80%) percent of the dwelling units of the entire City…within three (3) years from the date of the Franchise.”
4. Franchisee shall provide a local office and phone number within Brentwood.
5. The capacity of the cable system shall be measured in ability to support 860 megahertz versus stating capacity to support 87 channels.
If the Ordinance is adopted, the quality of cable service would substantially increase for the residents and business at the time when new cable franchises are awarded or when the incumbent applies for a renewal. Since the franchise fee is based upon the percentage of gross revenues, it is anticipated that additional users will be attracted to the enhanced telecommunication, Internet and cable services; therefore, revenue increase to the City.
ORDINANCE NO. 705
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD REPEALING CHAPTER 5.24 AND ADOPTING A NEW CHAPTER 5.24, BRENTWOOD CABLE TELEVISION ORDINANCE
THE CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 5.24 (Community Antenna Television Systems) of the Brentwood Municipal Code is repealed.
Section 2. Chapter 5.24 Brentwood Cable Television Ordinance is added to the Brentwood Municipal Code, to read as follows:
Purpose and Findings
The Brentwood City Council finds that the uncontrolled placement and maintenance of cable television improvements on the public right of way can cause an obstruction of the free use of public property so as to interfere with the comfortable enjoyment of its right of way, interferes with property rights of adjacent owners and tenants, causes visual blight, and detracts from the aesthetics of adjacent uses, and exposes the city to undue claims liability. The Brentwood City Council also finds that the use of its public right of way is so historically associated with the distribution of information, such as newspapers and publications, that access to these areas for such purposes should not be denied. The council finds that these strong but competing interests require a reasonable accommodation which can be achieved through the means of this chapter designed to accommodate such competing interests by regulating the time, place, and manner of cable television improvements, including the using and placement of such cable television improvements, but provides for the purpose of this chapter while still providing ample opportunities for cable television distribution.
Chapter 5.24 Short Title.
This chapter shall be known and may be cited as the "Brentwood Cable Television Ordinance," hereinafter or "Ordinance."
For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein:
“Basic Service” means the service tier provided by the Grantee as required under 47
U.S.C. § 543 (b)(7) which includes the delivery of local broadcast stations, and public, educational and government access channels. Basic Service does not include optional program and satellite service tiers, a la carte services, per channel, per program, or auxiliary services for which a separate charge is made.
“Cable Service” means: (A) the transmission to Subscribers of (1) video programming, or (2) other programming services; and (B) subscriber interaction, if any, that is required for the selection or use of such video programming or other programming services.
“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 (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Subscribers without using any public right-of-way, (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility shall be considered a Cable System to the extent such facility is used in transmission of video programming directly to Subscribers; or (D) any facilities of any electric utility used solely for operating its electric utility system.
“City” means the City of Brentwood, California.
“Control” or “Controlling Interest” shall mean actual working control or ownership of a Cable System in whatever manner exercised. A rebuttable presumption of the existence of Control or a Controlling Interest shall arise from the ownership, directly or indirectly, by any person or legal entity (except underwriters during the period in which they are offering securities to the public) of more than Fifty Percent (50%) of a Cable System or the Franchise under which the Cable System is operated. A change in the Control or Controlling Interest of a legal entity which has Control or a Controlling Interest in a Grantee shall constitute a change in the Control or Controlling Interest of the Cable System under the same criteria. Control or Controlling Interest as used herein may be held simultaneously by more than one person or legal entity.
“Dwelling Unit” means any building or part of a building that is used as a home or residence.
“FCC” means the Federal Communications Commission and any legally appointed, designated or elected agent or successor.
“Franchise” means an authorization, or renewal thereof, issued by the City hereunder, as the franchising authority, to a Grantee to construct or operate a Cable System or provide Cable Service in the City. All of the rights and obligations of the Grantee and the City under this Ordinance and the Franchise Agreement may be referred to herein as the “Franchise.”
“Franchise Agreement” means a contractual agreement entered into between the City and any Grantee hereunder that is enforceable by the City and by the Grantee, and which, along with this Ordinance, sets forth the rights and obligations between the City and the Grantee in connection with the Franchise.
“Grantee” means a Person or legal entity to whom or to which a Franchise under this Ordinance is granted by the City, along with the lawful successors or assigns of such person or entity.
“Gross Revenues” means all revenue collected by the Grantee from the operation of the Cable System to provide Cable Services within the City. Gross Revenues shall include, without limitation: periodic fees charged Subscribers for any basic, optional, premium, per-channel or per-program service; franchise fees; installation and reconnection fees; leased channel fees; converter rentals and/or sales; program guide revenues; upgrade, downgrade or other change-in-service fees; provided, however, that this shall not include any taxes on services furnished by the Grantee herein imposed directly upon any Subscriber of User by the state, local or other governmental unit and collected by the Grantee on behalf of the governmental unit or any franchise fees or other fees collected by Grantee and then paid to the City; local advertising revenues, revenues from home shopping, revenues from the sale, exchange, use or transmission of any programming developed on the Cable System for community or institutional use; provided however, that this shall not include any taxes on services furnished by the Grantee herein imposed directly upon any Subscriber or User by the state, local or other governmental unit and collected by the Grantee on behalf of the governmental unit.
“Installation” means the connection of the Cable System from feeder cable to a Subscriber’s terminal.
“May” is permissive.
“Normal Business Hours” as applied to the Grantee shall mean those hours during which similar businesses in the City are open to serve customers. In all cases, Normal Business Hours must include some evening hours at least one night per week, and/or some weekend hours.
“Normal Operating Conditions” shall mean those service conditions that are within the control of the Grantee. Those conditions that are not within the control of the Grantee include, but are not limited to: natural disasters, civil disturbances, power outages, telephone network outages, labor disputes, vandalism, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
“Person” means any natural person or any association, firm, partnership, joint stock company, limited liability company, joint venture, corporation, or other legally recognized entity, private or public, whether for-profit or not-for-profit.
“Shall” is mandatory
“Service Area” means all areas in the City regardless of housing density
“Service Interruption” is the loss of either picture or sound or both for a single or multiple Subscriber(s).
“Street” means the surface of and all rights-of-way and the space above and below any public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter held by the City for the purpose of public travel and shall include other easements or rights-of-way as shall be now held or hereafter held by the City which, within their proper use and meaning, shall entitle the Grantee to the use thereof for the purposes of installing poles (but only in accordance with the requirements of the City’s Engineering Department, including applicable fees), wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to a Cable System.
“Subscriber” shall mean any person(s), firm, Grantee, corporation or other legal entity, or association lawfully receiving any Cable Service provided by a Grantee pursuant to this Ordinance.
“User” means a party utilizing a Cable System channel for purposes of production or transmission of material to Subscribers, as contrasted with receipt thereof in the capacity of a Subscriber.
5.24.020 Cable Franchise Required.
No Person shall be allowed to occupy or use any Streets for installation, operation or maintenance of a Cable System or for the provision of Cable Service in the City without a Franchise.
5.24.030 Applications for Initial (Non-Renewal) Franchises.
Applications for an initial Franchise shall include at a minimum:
(a) a clear description of the identity of the applicant, including but not limited to the name, address, telephone number and type of business entity;
(b) a list of all officers, director and stockholders or partners who hold an ownership interest of more than ten percent (10%) and the names and addresses of parent or subsidiary entities;
(c) a detailed description of the Cable System proposed to be constructed by the applicant;
(d) a detailed description of the manner in which the applicant proposes to construct, install, maintain and operate the Cable System, including a detailed description of the Streets and other public property which the applicant proposes to use;
(e) a detailed description of the Cable Services applicant proposes to provide, including a schedule of all proposed rates and charges to Subscribers and a copy of the proposed service agreement between the applicant and its Subscribers;
(f) a time line for the necessary steps to be taken by applicant from the granting of the Franchise to the completion of the Cable System as proposed by the applicant;
(g) a statement setting forth all agreements or understandings, whether written, oral or implied, existing between the applicant and any Person with respect to the proposed Franchise or Cable System;
(h) a financial statement certified by an officer of the applicant demonstrating the financial condition of the applicant and its financial capability to construct and operate the Cable System as proposed;
(i) any other information which may be pertinent to demonstrating that the applicant has the legal, character, technical and financial capability to construct and operate the Cable System as proposed and to otherwise comply with all the terms of this Ordinance.
The City may at any time require such additional information as it may deem necessary to determine whether the applicant should be granted a Franchise. The applicant shall then provide the required information.
The applicant shall pay to the City at the time of filing an application fee in the amount of five thousand dollars ($5,000) to reimburse the City for expenses incurred in connection with processing and handling the application. This fee shall be in addition to, and not in lieu of, the applicant’s reimbursement of any expenses provided for in 5.24.120. The application fee is non-refundable in the event that the City does not grant the applicant a Franchise.
5.24.040 Grant or Denial of Applications.
(a) After consideration of an application in a public hearing affording due process, the City Council may:
(1) approve by resolution a preliminary grant of the application upon finding that the applicant has the legal, character, financial and technical qualifications to construct and operate the Cable System as proposed and that the proposal otherwise complies with the terms of this Ordinance, and direct the City Manager or his designee to negotiate a Franchise Agreement with the applicant under the terms of the resolution, which Franchise Agreement shall be subject to, and take effect only upon, the approval of the City Council;
(2) deny the application upon a finding that the applicant does not have the legal, character, financial or technical qualifications to construct and operate the Cable System as proposed, or that the applicant has failed to agree to a proposed Franchise Agreement on terms acceptable to the City Council, or that the applicant is otherwise unwilling or unable to comply with the provisions of this Ordinance.
(b) In order that no provider of Cable Services be granted an unfair competition advantage over another and to ensure equal protection under the law, the City Council shall not issue to any Person any Franchise or other authority to construct a Cable System or provide Cable Services or video programming service in any part of the City using the Streets on terms or conditions more favorable or less burdensome to such Person than those applied to any current Grantee under its Franchise.
5.24.050 Rights and Privileges of Grantee.
Any Franchise granted by the City shall grant to the Grantee the right and privilege to erect, construct in accordance with City’s applicable standards and plans, operate and maintain in, upon, along, across, above, over and under the Streets now in existence and as may be created or established during the term of the Franchise any poles, wires, cable, underground conduits, manholes, and other television conductors and fixtures and other facilities and equipment necessary for the maintenance and operation of a Cable System. The installation of poles shall be discouraged and permitted only in accordance with the requirements of the City’s Engineering Department including payment of applicable fees.
5.24.060 Agreement and Incorporation of Application by Reference.
(a) Upon adoption of any Franchise Agreement and execution thereof by the Grantee, the Grantee agrees to be bound by all the terms and conditions contained herein.
(b) Any Grantee also agrees to provide all services specifically set forth in its application and to provide Cable Service within the confines of the City; and by its acceptance of the Franchise, the Grantee specifically agrees that its application is thereby incorporated by reference and made a part of the Franchise.
5.24.070 Franchise Territory.
Any Franchise is for the legally incorporated territorial limits of the City and for any area added to the City’s jurisdiction during the term of the Franchise.
5.24.080 Duration and Acceptance of Franchise.
Any Franchise and the rights, privileges and authority granted under this Ordinance shall take effect and be in force from and after final City approval thereof, as provided by law, and shall continue in force and effect for a term as specified in the Franchise Agreement and no longer than fifteen (15) years, provided that within thirty (30) days after the date of final City approval of the Franchise, the Grantee shall file with the City its unconditional acceptance of the Franchise and promise to comply with and abide by all its provisions, terms and conditions. Such acceptance and promise shall be in writing duly executed. Such Franchise shall be non-exclusive and subject to termination or non-renewal under the provisions of this Ordinance
5.24.090 Franchise Renewal.
Applicable federal procedures and standards shall govern the renewal of any Franchise awarded under this Ordinance. In the event that any or all of the applicable provisions of federal law are repealed or otherwise modified, the following relevant section(s) shall apply:
(a) Between thirty-six (36) and thirty (30) months prior to the expiration of the Franchise, the Grantee shall inform the City in writing of its intent to seek renewal of the Franchise.
(b) The Grantee shall submit a proposal for renewal that demonstrates:
1. That it has been and continues to be in substantial compliance with the terms, conditions, and limitations of this Ordinance and its Franchise;
2. That its Cable System has been installed, constructed, maintained and operated in accordance with the FCC and this Ordinance and its Franchise;
3. That it has the legal, technical and financial qualifications to continue to maintain and operate its Cable System; and
4. That it has made a good faith effort to provide services and facilities which accommodate the demonstrated needs of the community, taking into account the cost of meeting such needs.
5. What if any areas of the City it does not serve, the justification therefore and a specific timetable for providing Cable Service to those areas.
(c) After giving public notice, the City shall proceed to determine whether the Grantee has satisfactorily performed its obligations under the Franchise. To determine satisfactory performance, the City shall consider technical developments and performance of the Cable System, cost of services, and any other particular requirements set forth in this Ordinance. The City shall also consider the Grantee's reports made to the City and to the FCC, and the City may require the Grantee to make available specified records, documents, and information for this purpose, and may inquire specifically whether the Grantee will supply services sufficient to meet future cable-related community needs and interests, while taking into account the cost of meeting such needs and interests. Provisions shall be made for public comment with adequate prior notice of at least ten (10) days.
(d) Grantee shall be entitled to the same due process rights including those in Section 626 of the Communications Act [47
U.S.C. § 546].
(e) The City shall then prepare any amendments to this Ordinance that it believes necessary.
(f) If the City finds that Grantee has complied with all material obligations under the existing franchise, and that Grantee has the technical, legal, and financial capabilities to meet the obligations of Grantee's renewal proposal, and that Grantee's renewal proposal meets the future cable-related needs and interests of the City, taking into account the cost of meeting them, a new Franchise shall be granted pursuant to this Ordinance as amended for a period to be determined.
5.24.100 Police Powers.
(a) In accepting a Franchise, the Grantee acknowledges that its rights there under are subject to the lawful and generally applicable exercise of the City’s police power to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power.
(b) Any conflict between the provisions of a Franchise Agreement and any other current or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to the Grantee or Cable System which contains provisions inconsistent with the Franchise Agreement or this ordinance, shall prevail only if upon such exercise the City finds a danger to health, safety, property or general welfare or if such exercise is mandated by law.
(c) Any conflict between this Ordinance and any subsequent Franchise Agreement that becomes effective after the effective date of this Ordinance shall be resolved according to the provisions of the Franchise Agreement.
5.24.110 Use of Grantee Facilities.
The City may install and maintain upon the poles of the Grantee, or in any empty conduit space of Grantee within the public rights-of-way, any wire, equipment or other fixtures that do not unreasonably interfere with the Cable System operations, including future plans, of the Grantee, subject to agreement between the City and Grantee on commercially reasonable terms, conditions, and compensation for such use.
5.24.120 Franchise and Enforcement Costs.
(a) The City may require an applicant or Grantee to pay or reimburse the City for all or some portion of its reasonable out-of-pocket expenses, including attorneys’ and consultants’ fees and costs incidental to the awarding, modification, transfer or renewal of its Franchise. These costs may include any such expenses incurred by the City in its study, preparation of proposal documents, evaluation of applications and examinations of the qualifications of the applicant in excess of five thousand dollars ($5,000).
(b) In the case of enforcement proceedings initiated by the City, the City shall be entitled to employ the services of technical, financial or legal consultants. All reasonable fees of such consultants incurred by the City shall be borne equally by the Grantee and the City, regardless of the nature or outcome of any specific dispute or matter under consideration. The City’s payment of its half of such billings shall be prima facie proof of the reasonableness of such charges.
(c) Nothing in this section shall entitle the Grantee to have any role in the selection of City’s consultants or attorneys and, in order to protect the attorney-client and work product privileges, the City may delete from billings for attorneys and consultants retained by the City any detailed description of services performed.
(d) Payment of such costs and expenses shall not be deemed to be “franchise fees” within the meaning of Section 622 of the Cable Communications Policy Act of 1984 (47 U.S.C. 542), and such payments shall not be deemed to be (i) “payments in kind” or any involuntary payments chargeable against the franchise fee to be paid to the City by Grantee pursuant to a Franchise or (ii) part of the franchise fees to be paid to the City by Grantee pursuant to a Franchise to the extent required by applicable law.
All notices from the Grantee to the City pursuant to a Franchise shall be sent to the City Clerk. The Grantee shall maintain with the City, throughout the term of the Franchise, an address for service of notices by mail. The Grantee shall maintain a central office to address any issues relating to operating under the Franchise.
5.24.140 Performance Bond.
(a) Within thirty (30) days after the award of an initial or renewal Franchise, the Grantee shall deposit with the City a bond in an amount established in the Franchise Agreement. The form and content of such bond shall be approved by the City Attorney. This instrument shall be used to ensure the faithful performance of the Grantee of all lawful provisions of the Franchise, and to ensure compliance with all orders, permits and directions of any agency, commission, board, department, division, or office of the City having jurisdiction over its acts or defaults under the Franchise, and to ensure the payment by the Grantee of any fees, claims, liens or taxes due the City which arise by reason of the construction, operation or maintenance of the Cable System pursuant to the Franchise.
(b) The bond shall be maintained at the amount established in the Franchise Agreement for the entire term of the Franchise, even if amounts have to be withdrawn pursuant to the Franchise.
(c) If the Grantee fails, upon thirty (30) days notice and opportunity to cure, to pay to the City any amount owed under the Franchise, that is not on appeal to the court of proper jurisdiction or otherwise in dispute, within the time fixed herein; or fails to repay the City within thirty (30) days after said notice and opportunity to cure, any delinquent amount owed to the City for, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the Grantee in connection with the Franchise, or fails, after three (3) days notice of such failure by the City to comply with any provision of the Franchise which the City reasonably determines can be remedied by demand on the bond, the City may immediately make such demand and recover jointly and severally from the bond, the principal and surety of the bond, the amount thereof, with interest and any penalties, plus a reasonable allowance for attorney’s fees, including the City’s legal staff, and costs, up to the full amount of the bond. Upon such demand for payment, the City shall notify the Grantee of the amount and date thereof.
(d) The rights reserved to the City with respect to the bond are in addition to all other rights of the City, whether reserved by the Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such bond shall affect any other right the City may have.
(e) The bond shall contain an endorsement agreeing that the bond may not be reduced or canceled by the surety nor the intention not to renew be stated by the surety until thirty (30) days after receipt by the City, by registered mail, of a written notice of such intention to reduce, cancel or not renew.
(f) In the event the City receives a thirty (30) day notice from a surety, it shall have the right to demand payment from the bond unless Grantee provides appropriate assurance that a replacement bond will be presented before the expiration of the thirty (30) day period. The sufficiency of such assurance shall be determined by the City in its sole discretion. This section shall not apply if the City and Grantee agree that a bond is no longer required, or if the amount of the bond is in the process of being reduced by agreement between the City and Grantee.
(g) At any time during the term of the Franchise, the City Council may waive in writing the requirement for a Grantee to maintain a performance bond.
5.24.150 Construction Bond.
(a) Within thirty (30) days of the effective date of a Franchise, the Grantee shall file with the City a construction bond in favor of the City in an amount established in the Franchise Agreement. This bond shall be maintained throughout the period for construction of the Cable System in the Service Area, unless otherwise specified in the Franchise Agreement.
(b) If the Grantee has been deemed to have failed to comply with any law, ordinance or resolution governing the Franchise, or to have failed to observe, fulfill and perform each term and condition of the Franchise, as it relates to the conditions relative to the construction of the Cable System, including the Franchise Agreement that is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or losses deemed owed by Grantee to the City, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorney's fees, including the City's legal staff, and costs, up to the full amount of the bond.
(c) The City shall, upon completion of construction of the Service Area, waive the requirement of the Grantee to maintain the bond. However, the City may require a performance bond to be posted by the Grantee for any construction subsequent to the completion of the Service Area, in a reasonable amount not to exceed the amount of the construction bond in the Franchise Agreement and upon such terms as determined by the City.
(d) The bond shall contain an endorsement stating that the bond may not be reduced or canceled by the surety during the construction period which the bond is intended to cover.
(e) In the event the City receives a thirty (30) day notice from a surety, it shall have the right to demand payment from the bond unless Grantee provides appropriate assurance that a replacement bond will be presented before the expiration of the thirty (30) day period. The sufficiency of such assurance shall be determined by the City in its sole discretion. This section shall not apply if the City and Grantee agree that a bond is no longer required, or if the amount of the bond is in the process of being reduced by agreement between the City and Grantee.
(f) At any time during the term of the Franchise, the City Council may waive in writing the requirement for a Grantee to maintain a construction bond.
5.24.160 Liability Insurance.
(a) The Grantee shall maintain throughout the term of the Franchise, liability insurance insuring the City and the Grantee in the minimum amounts set forth in the Franchise Agreement. If no amounts are so specified, the minimum amounts shall be:
(1) Two million dollars ($2,000,000) for property damage to any one person
(2) Five million dollars ($5,000,000) for property damage from any one occurrence
(3) Two million dollars ($2,000,000) for personal injury to any one person
(4) Five million dollars ($5,000,000.00) for personal injury from any one occurrence.
(b) The certificate of insurance obtained by the Grantee in compliance with this section shall be filed and maintained with the City during the term of the Franchise. The Grantee shall immediately advise the City Attorney of any litigation that may develop that would affect this insurance.
(c) Neither the provisions of this section nor any damages recovered by the City there under, shall be construed to limit the liability of the Grantee under any Franchise issued hereunder.
(a) Disclaimer of Liability. The City shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Grantee’s construction, maintenance, repair, use, operation, condition or dismantling of the its Cable System or due to the act or omission of any person or legal entity other than the City or those persons or legal entities for which the City is legally liable as a matter of law.
(b) Indemnification. The Grantee shall, at its sole cost and expense, indemnify and hold harmless the City, its respective officers, boards, departments, commissions and employees (hereinafter referred to as “Indemnitees”), except the sole negligence or willful misconduct of the City:
(1) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or asserted against the Indemnitees by reason of any act or omission of the Grantee, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, corporation or other legal entity, which may arise out of or be in any way connected with the construction, installation, operation, maintenance or condition of the Cable System caused by Grantee, its subcontractors or agents or the Grantee's failure to comply with any federal, state or local law.
(2) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants) imposed upon Indemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to Grantee, its contractors or subcontractors, for the installation, construction, operation or maintenance of the Cable System. Upon written request by the City, such claim or lien shall be discharged or bonded within fifteen (15) days following such request.
(3) Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or asserted against the Indemnitees by reason of any financing or securities offering by Grantee or an affiliate thereof for violations of any laws, statutes or regulations of the State of California or of the United States, including those of the Securities and Exchange Commission, whether by the Grantee or otherwise; excluding there from, however, claims which are based upon and arise out of information supplied by the City to the Grantee in writing and included in the offering materials with the express written approval of the City prior to the offering.
(c) Assumption of Risk.
(1) The Grantee undertakes and assumes for its officers, directors, agents, contractors and subcontractors and employees all risk of dangerous conditions, if any, on or about any City-owned or controlled property, including public rights-of-way, arising out of the installation, operation, maintenance or condition of the Cable System or the Grantee’s failure to comply with any federal, state or local law. The Grantee hereby agrees to indemnify and hold harmless the Indemnitees against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person.
(2) At its sole cost and expense, the City shall indemnify and hold harmless Grantee for any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or asserted against the Grantee by reason of the sole negligence or misconduct of the Grantor or its officials, boards, departments, commissions or employees.
(d) Defense of Indemnitees. In the event any action or proceeding shall be brought against any or all of the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, the Grantee shall, upon notice from any of the Indemnitees, at the Grantee's sole cost and expense, defend the same; provided further, however, that the Grantee shall not admit liability in any such matter on behalf of the Indemnitees without the express written consent of the City Attorney or the City Attorney's designee.
(e) Notice, Cooperation and Expenses. The City shall give the Grantee reasonably prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the City from cooperating with the Grantee and participating in the defense of any litigation by the City’s own counsel at the City's own expense. No recovery by the City of any sum under the bond shall be any limitation upon the liability of the Grantee to the City under the terms of this Section, except that any sum so received by the City shall be deducted from any recovery which the City might have against the Grantee under the terms of this Section.
(f) Nonwaiver of Statutory Limits. Nothing in this Ordinance is intended to express or imply a waiver by the City of statutory provisions, privileges or immunities of any kind or nature under California law, including the limits of liability of the City.
5.24.180 Rights of Individuals.
(a) The Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, channel Users, or other Persons on the basis of race, color, religion, national origin, income, sex, marital status, sexual preference or age. The Grantee shall comply at all times with all applicable federal, state and local laws and regulations and all executive and administrative orders relating to nondiscrimination.
(b) The Grantee shall comply with the equal employment opportunity requirements of the FCC and other applicable employment laws.
(c) The Grantee shall, at all times, comply with the applicable privacy requirements of state and federal law.
The Grantee agrees to make all services available and Grantee’s Cable System shall be capable of providing Cable Service to all residential and commercial dwellings throughout the Service Area.
5.24.190 Public Notice.
Minimum public notice of any public meeting relating to the Franchise shall be governed by the provisions of the State Open Meetings Law.
5.24.200 Service Availability and Records.
The Grantee shall provide Cable Service throughout the entire Franchise area pursuant to the provisions of the Franchise and shall keep a record for at least three (3) years of all requests for service received by the Grantee.
5.24.210 Cable System Construction.
(a) Within five (5) years from the date of the award of an initial Franchise, the Grantee must make Cable Service available to every dwelling unit within the Service Area.
(1) The Grantee must make Cable Service available to at least forty percent (40%) of the dwelling units within the Service Area within eighteen (18) months from the date of the award of the Franchise.
(2) The Grantee must make Cable Service available to at least eighty percent (80%) of the dwelling units within the Service Area within three (3) years from the date of the award of the Franchise.
(b) The Grantee, in its application, may propose a timetable of construction which will make Cable Service available in the Service Area or other areas sooner than the above minimum requirements, in which case the said schedule will be made part of the Franchise Agreement, and will be binding upon the Grantee.
(c) Any delay beyond the terms of this timetable, unless specifically approved by the City Council in writing, will be considered a violation of this Ordinance.
5.24.220 Construction and Technical Standards.
(a) Compliance with construction and technical standards. The Grantee shall construct, install, operate and maintain its Cable System in compliance with all laws, ordinances, construction standards, governmental requirements, and FCC technical standards. In addition, the Grantee shall file with the City any technical or performance tests for the Cable System required to be filed with the FCC, including but not limited to, the “Cumulative Leakage Index” test.
(b) Additional specifications:
(1) Construction, installation and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All cables and wires shall be undergrounded, except where existing utilities are above ground, and shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.
(2) The Grantee shall at all times comply with the applicable:
a. National Electrical Safety Code (National Bureau of Standards);
b. National Electrical Code (National Bureau of Fire Underwriters);
c. FCC and other federal, state and local regulations.
(3) In any event, the Cable System shall not endanger or interfere with the safety of persons or property in the City or other areas where the Grantee may have equipment located.
(4) Any antenna structure used in the Cable System shall comply with construction, marking, and lighting of antenna structure, required by the United States Department of Transportation.
(5) All working facilities and conditions used during construction, installation and maintenance of the Cable System shall comply with the standards of the Occupational Safety and Health Administration.
(6) Radio frequency (RF) leakage shall be monitored and repaired in accordance with applicable FCC rules and regulations.
(7) Grantee shall maintain equipment capable of providing standby power for headend, transportation and trunk amplifiers for the minimum time period specified in the Franchise Agreement
(8) In all areas of the City where all cables, wires and other like facilities of public utilities are placed underground, the Grantee shall place its cables, wires and other like facilities underground. When all public utilities relocate their facilities from pole to underground, the Grantee must do so concurrently.
5.24.230 Use of Streets.
(a) Interference with persons and improvements. The Cable System, poles, wires and appurtenances shall be located, erected operated and maintained so that none of its facilities shall endanger or interfere with the lives of persons or interfere with the rights or reasonable health, safety or welfare of property owners who adjoin any of the streets and public ways, or interfere with any improvements the City may make, or hinder or obstruct the use of the Streets or public property of the City.
(b) Restoration to prior condition. In case of any Grantee disturbance of pavement, sidewalk, landscaping, driveway or other surfacing, the Grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, landscaping, or surface of any Street disturbed, in as good condition as before the work was commenced and in accordance with standards for such work set by the City. After ten (10) days notice of the need for restoration, if restoration measures are not being performed to the reasonable satisfaction of the City, the City may undertake remedial restoration activities, such activities to be performed at the Grantee's cost.
Prior to undertaking any such work Grantee must obtain an encroachment permit in accordance with the applicable requirements of the City’s Engineering Department.
(c) Erection, removal and common uses of poles and above ground structures.
(1) No poles or similar wire-holding structures shall be erected by the Grantee without prior approval of the City with regard to location, height, types, and any other pertinent aspect and only in accordance with the applicable requirements of the City’s Engineering Department. However, no location of any pole or similar wire-holding structure shall confer upon Grantee any vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines, after all requisite notice and due process, that such removal or relocation is necessary to the public health, safety or welfare.
(2) Where existing poles or similar wire-holding structures are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that such use is necessary to the public health, safety or welfare would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable.
(3) Where the City desires to make use of the poles or other similar wire holding structures of the Grantee and the use will not unduly interfere with the Grantee’s operations, the City may require the Grantee to permit such use for reasonable consideration and terms.
(4) The placement, erection and any necessary screening for small pedestals or similar above ground structures must be approved by the City’s Engineering Department.
(d) Relocation of facilities. Upon reasonable notice by the City at any time during the term of the Franchise, the Grantee shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense for one or more of the following reasons designated by the City:
(1) traffic conditions or any other condition affecting public safety;
(2) construction, alteration or vacation of any Street;
(3) installation of sewers, drains, water pipes, power lines, fiber optic cables and conduit, signal lines or tracks;
(4) installation or construction of any other type of structures or improvements by the City or public agencies.
(e) Cooperation with building movers. The Grantee shall, at the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires or other fixtures to permit the moving of buildings. Expenses of such temporary removal, raising or lowering shall be paid by the person making the request, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given at least ten (10) days advance notice to arrange for such temporary changes.
(f) Tree trimming. The Grantee shall not remove any tree or trim any portion of any tree within any Street without the prior consent of the City, except in an emergency situation. The Grantee shall provide notice to any affected residents at the same time that the Grantee applies to the City for consent to perform tree trimming. The City shall have the right to do the trimming requested by the Grantee at the cost of the Grantee. Regardless of who performs the work requested by the Grantee, the Grantee shall be responsible, shall defend and hold City harmless from any and all damages to any tree as a result of Grantee's trimming, or to the property surrounding any tree, whether such tree is trimmed or removed, except claims arising from City’s sole negligence or misconduct.
(g) Road cuts. The Grantee shall not use road cuts for the laying of cable or wires without the prior approval of the City. In the absence of such approval, the Grantee shall utilize auguring or other boring methods, but only upon notice to the City and only after locating all underground utilities. City does not permit excavation in newly resurfaced streets during the three-year period after completion of street resurfacing. For those streets with chip seal or slurry seal coatings, the moratorium shall be for 18 months, subject to exceptions permitted by Section 100 of the City’s Standard Plans and Specifications.
5.24.240 Operational Standards.
(a) The Grantee shall maintain all parts of the Cable System in good condition throughout the entire Franchise term.
(b) Upon a request for any Cable Service by any Person located within the Franchise territory and more than one hundred fifty (150) feet from the existing Cable System, the Grantee shall furnish the requested service within thirty (30) business days to such person as required by the terms of the Franchise.
(c) Temporary Service Drops:
(1) The Grantee shall make commercially reasonable efforts to bury temporary drops within five (5) days after placement. Delays for any reason other than those listed herein will be communicated to the City. In the absence of evidence to the contrary, delays caused by the following conditions are presumed to be acceptable during the existence of the condition: adverse weather or ground conditions, the need for a street bore, Cable System redesign requirements and any other unusual obstacle, such as obstructive landscaping, that is created by the Subscriber.
(2) The Grantee shall provide reports to the City, upon request, on the number of drops that have not yet been buried.
(d) The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum Cable System use.
(e) The Grantee shall not allow the operations of the Cable System to interfere with television reception of Subscribers or persons not served by the Grantee, nor shall the Cable System interfere with, obstruct or hinder in any manner the operation of the various utilities serving customers within the City, nor shall other utilities interfere with the Grantee's Cable System.
5.24.250 Customer Service Standards.
(a) Nothing in this Ordinance shall be construed to prohibit the enforcement of any federal, state or local law or regulation concerning customer service or consumer protection that imposes customer service standards or consumer protection requirements that exceed the customer service standards of the Franchise or that address matters not addressed by the Franchise.
(b) The Grantee shall make available at all times to its Subscribers a local or toll-free telephone access line and shall have knowledgeable, qualified representatives available to respond to customer telephone inquiries regarding service and repairs during Normal Business Hours.
(c) Under Normal Operating Conditions, telephone answer time including wait time and the time required to transfer the call, shall not exceed thirty (30) seconds. This standard shall be met no less than ninety percent (90%) of the time as measured on a quarterly basis.
(d) Under Normal Operating Conditions, the customer shall receive a busy signal less than three percent (3%) of the total time that the office is open for business.
(e) Under Normal Operating Conditions, each of the following standards shall be met no less than ninety-five percent (95%) of the time as measured on an annual basis.
(1) All installations shall be performed within seven (7) business days after an order has been placed. A standard installation is one that is within one hundred fifty (150) feet of the existing Cable System.
(2) Excluding those situations that are beyond its control, the Grantee shall respond to any Service Interruption promptly and in no event later than twenty-four (24) hours from the time of initial notification. Grantee shall respond to all other service requests within twenty-four (24) hours during the normal workweek for that Cable System. The appointment window alternatives for installations, service calls, reconnects and other related activities will be: "morning" or "afternoon"; not to exceed a four-hour "window" during Normal Business Hours for the Cable System, or at a time that is mutually acceptable. The Grantee shall schedule supplemental hours during which appointments can be scheduled based on the needs of the community. If at any time an installer or technician is running late, an attempt to contact the customer shall be made and the appointment rescheduled as necessary at a time that is convenient to the customer.
(f) Upon notification by a Subscriber of a Service Interruption, Grantee shall give the Subscriber a credit for one day of the affected service if service is interrupted for more than 4 hours in any one day and the Service Interruption is caused by Grantee.
(g) The Grantee shall provide written information for each of the following areas at the time of installation and at any future time upon the request of the Subscriber:
(1) Products and services offered
(2) Prices and service options
(3) Installation and service policies
(4) How to use the Cable Services
(h) Bills shall be clear, concise and understandable, with all charges for Cable Services itemized.
(i) Credits shall be issued promptly, but no later than the Subscriber's next billing cycle following the resolution of the request and the return of the equipment by the Subscriber if service has been terminated.
(j) The Grantee shall give Subscribers a minimum of thirty (30) days advance notice of any rate or channel change.
(k) The Grantee shall maintain and operate the Cable System in accordance with the rules and regulations incorporated herein or the applicable statutes, rules and regulations promulgated by federal, state or local governments, including the FCC.
(l) The Grantee shall continue, through the term of the Franchise, to maintain the technical standards and quality of service required by the Franchise. Should the City find, by resolution, that the Grantee has failed to maintain such technical standards and quality of service, and should it, by resolution, specifically enumerate improvements to be made to bring the Cable System back into compliance with such technical standards and quality of service, the Grantee shall make such improvements.
(m) The Grantee shall keep a monthly service log that indicates the nature of each service complaint received in the last twelve (12) months, the date and time each complaint was received, the disposition of each complaint, and the time and date thereof. This log shall be made available for periodic inspection by the City.
5.24.260 Service Standard
(a) If the Grantee elects to overbuild, rebuild, modify or sell the Cable System, or to transfer it within the meaning of Section 29, the Grantee shall take reasonable measures to minimize any disruption of service to Subscribers.
(b) If a new operator acquires the Cable System, the Grantee shall cooperate with the City, new franchisee or new operator to maintain continuity of service to all Subscribers.
5.24.270 Complaint Procedure.
(a) The City Manager or his designee has primary responsibility for the continuing administration of the Franchise and implementation of complaint procedures.
(b) During the term of the Franchise and any renewal thereof, the Grantee shall maintain a local office for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billing questions and similar matters. The office must be reachable by a local call to receive and address complaints during normal business hours. The Grantee shall also establish and maintain one or more payment locations within the City where customers may make payments and drop off or exchange Subscriber-related equipment.
(c) As Subscribers are connected or reconnected to the Cable System, the Grantee shall, by appropriate means, such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed.
(d) When there has been a pattern of complaints which reasonably indicates that the Cable System is not in compliance with the technical standards of the FCC promulgated pursuant to 47 U.S.C. sec. 544 (e), the City shall have the right to require the Grantee to test, analyze and report on the performance of the Cable System. The Grantee shall cooperate fully with the City in performing such testing and shall prepare results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information:
(1) The nature of the complaint or problem that precipitated the special tests;
(2) The Cable System component(s) tested;
(3) The equipment used and procedures employed in testing;
(4) The method, if any, in which such complaint or problem was resolved;
(5) Any other information pertinent to the tests and analysis which may be required.
(e) The City may require that tests be supervised, at the Grantee's expense, by an independent consulting engineer of the City’s choice if: 1) the results are found to be inadequate to correct the problem which led to the complaints or 2) Grantee has failed to cooperate fully with the City in performing the tests and reporting thereon. The engineer shall sign all records of the supervised tests and forward to the City such records with a report interpreting the results of the tests and recommending actions to be taken.
(f) The City’s rights under this section shall be limited to requiring tests, analysis and reports covering specific subjects and characteristics based on complaints or other evidence when and under such circumstances as the City has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard Cable Service.
5.24.280 Grantee Rules and Regulations.
The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its obligations under the Franchise, and to assure uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable state and federal laws, rules and regulations.
5.24.290 Franchise Fee.
(a) A Grantee shall pay to the City a franchise fee in the amount designated in the Franchise Agreement. Unless otherwise specified in the Franchise Agreement, such franchise fee shall be the maximum percentage of the Grantee's Gross Revenues allowed by applicable law.
(b) The franchise fee shall be in addition to, and not in lieu of, any other tax owed to the City by the Grantee, such as municipal property taxes or other state, county or local taxes.
(c) The franchise fee and any other costs or penalties assessed shall be payable quarterly on a calendar year basis to the City within forty-five (45) days of the end of each quarter. Within forty-five (45) days of the end of each quarter, the Grantee shall also file a complete and accurate verified statement of all Gross Revenues received during the quarter and the Grantee’s fiscal year-to-date.
(d) The City shall have the right to inspect the Grantee's income records and to audit and recalculate any amounts determined to be payable under the Franchise; provided, however, that such audit shall take place no more than once a year and within thirty-six (36) months following the close of each of the Grantee's fiscal years that is the subject of the audit. Any additional amount due the City as a result of an audit shall be paid within thirty (30) days following written notice to the Grantee by the City, which shall include a copy of the audit report. This time shall be extended if within the thirty (30) day period Grantee delivers notice to the City that it objects to the findings of the audit. The notice shall state with reasonable specificity the basis for Grantee's objections. The parties shall meet within thirty (30) days to attempt to resolve Grantee's objections. If the parties are unable to resolve Grantee's objections, the parties shall select an independent auditor, who shall review the audit and Grantee's objections. The decision of the independent auditor shall be final. The parties shall share equally the costs of the independent auditor, subject to Section 30 (e).
(e) If the results of an audit show an underpayment of franchise fees exceeding five percent (5%) of the amount owed, the Grantee shall reimburse the City for its reasonable and actual costs of the audit.
(f) If any franchise fee payment or recomputed amount, cost or penalty, is not made on or before the applicable dates heretofore specified, interest shall be charged from such date at an annual rate of twelve percent (12%).
5.24.300 Transfer of Ownership or Control.
(a) No Franchise or Cable System shall be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary or voluntary sale, merger, consolidation, or otherwise hypothecated in any manner, nor shall title thereto, either legal or equitable, Control thereof, or any right, interest or property therein, pass to or vest in any Person or entity, nor shall Control of or a Controlling Interest in the Franchise or Cable System be changed (hereinafter a “Transfer”) without the prior written consent of the City Council. Every such Transfer which occurs without the prior written consent of the City Council shall cause the Franchise to be deemed terminated immediately, subject to applicable law.
(b) Without the City Council’s prior consent, the Grantee may (among other things): (i) grant a security interest in, or make a collateral assignment of, the Franchise and the Cable System for the purposes of securing indebtedness; and (ii) transfer or assign the Franchise and the Cable System to a wholly owned subsidiary of the Grantee and such subsidiary may transfer or assign the Franchise and the Cable System back to the Grantee without such consent, providing that such assignment is without any release of liability of the Grantee. However, no secured party may take control of the Franchise or the Cable System without the City Council’s prior consent according to this section.
(c) The Grantee shall promptly notify the City of any actual or proposed Transfer of, or acquisition by any other Party of Control of, or a change in a Controlling Interest in, the Grantee, the Franchise or the Cable System. A rebuttable presumption that a Transfer of Control or of a Controlling Interest has occurred shall arise upon the acquisition or accumulation in any manner by any Person or group of Persons of Fifty and One Tenth Percent (50.1%) of the voting interests of the Grantee or of a Controlling Interest.
(d) Subject to applicable federal law, any proposed assignee, transferee or acquirer of Control or a Controlling Interest in the Grantee, the Franchise or the Cable System must show legal, technical, character and financial qualifications as determined by the City and must agree to comply with all provisions of the Franchise. The City shall have one hundred and twenty (120) days to act upon any request for approval of a Transfer submitted in writing that contains or is accompanied by all such information as is required in accordance with FCC regulations and by the City. The City shall be deemed to have consented to a proposed Transfer if its refusal to consent (including the reasons therefore) is not communicated in writing to the Grantee within one hundred and twenty (120) days following receipt of written notice together with all the required information, unless the requesting party and the City agree to an extension of time. The City shall not unreasonably withhold consent to a proposed Transfer.
(e) The consent or approval of the City to any Transfer of Control of, or a Controlling Interest in, the Grantee, the Franchise or the Cable System shall not constitute a waiver or release of the rights of the City in and to the Streets, and any Transfer shall by its terms, be expressly subordinate to the terms and conditions of the Franchise.
(f) In the absence of extraordinary circumstances, the City shall not approve any Transfer of Control of, or a Controlling Interest in, a Franchise prior to substantial completion of construction of the Cable System which is proposed to be built under that Franchise.
(g) In no event shall a Transfer of Control of, or a Controlling Interest in, the Grantee, Franchise or Cable System be approved without the successor(s) in interest agreeing in writing to abide by all terms and conditions of the Franchise.
(h) Notwithstanding this Section 5.24.300 or anything to the contrary in this Ordinance, all City review of any Transfers shall be in accordance with and subject to applicable federal law.
(i) This Section 5.24.300 shall not be effective with respect to any transaction of which the City has been provided written notice by Grantee as of the effective date of this
5.24.310 Availability of Books and Records.
(a) The Grantee shall fully cooperate in making available at reasonable times, and the City shall have the right to inspect at the Grantee’s local office, upon reasonable notice and where reasonably necessary for the enforcement of the Franchise, books, records, maps, plans and other like materials of the Grantee applicable to the Cable System, at any time during Normal Business Hours.
(b) Unless prohibited by law, rule or regulation, copies of the following records and/or reports are to be made available to the City upon request, but no more frequently than on an annual basis unless otherwise agreed upon by the Grantee and the City:
(1) a yearly review and resolution or progress report submitted by the Grantee to the City;
(2) periodic preventive maintenance reports;
(3) copies of FCC Form 395-A (or successor form) or any supplemental forms related to equal opportunity or fair contracting policies;
(4) Subscriber inquiry/complaint resolution data (but not including names or addresses) and documentation concerning these inquiries and/or complaints;
(5) periodic construction update reports including, where appropriate, the submission of “as built” and strand maps;
(6) any technical or performance tests required to be filed with the FCC, such as the “Cumulative Leakage Index” test.
5.24.320 Other Petitions and Applications.
Copies of all petitions, applications, communications and reports related to the Cable System and submitted by the Grantee to the FCC, the Securities and Exchange Commission, or to any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting operations authorized by the Franchise or received from such agencies shall be provided to the City upon request.
5.24.330 Fiscal Reports.
Upon request by the City, the Grantee shall file annually with the City no later than one hundred twenty (120) days after the end of the Grantee's fiscal year, a statement of a Gross Revenues certified by an officer of the Grantee. Verified statements submitted quarterly under 5.24.290 shall satisfy this requirement.
5.24.340 Removal of Cable System.
At the expiration of the Franchise term or when any renewal of the Franchise is denied, or upon termination of the Franchise as provided herein, or the discontinuance by Grantee of use of the Cable System or any part thereof for a continuous period of six (6) months or more, upon written notice from the City, the Grantee shall forthwith, remove at its own expense all portions of the Cable System designated in the City’s notice from all Streets and public property within the City within a reasonable time period fixed in the City’s notice. Upon such notice of removal, a bond shall be furnished by the Grantee in an amount sufficient to cover this expense. If the Grantee fails to do so within the time period specified in the City’s notice, the City may perform the work at the Grantee's expense.
5.24.350 Required Services and Facilities in New and Renewal Franchises.
(a) Any franchise granted pursuant to this Chapter shall set forth minimum channel capacity, access channel, and system construction obligations. The Cable System shall be designed, constructed, operated and maintained to have a bandwidth of eight hundred sixty (860) megahertz.
(b) The Grantee shall provide emergency alert capability pursuant to FCC rules. The Grantee shall cooperate with the City in the use and operation of the emergency alert override system. The Cable System shall be designed, constructed, operated and maintained to have the technical capability for two-way communications. The Cable System shall be designed, constructed, operated and maintained to provide:
(1) at least one (1) specially designated channel for use by local education authorities;
(2) at least one (1) specially designated channel for local government uses;
(3) at least one (1) specially designated channel for use by local not-for-profit religious entities;
(4) at least one (1) specially designated channel for public use under the control of the City, with playback equipment located in facilities designated by the City;
provided, however, these channels must be available full-time, dedicated to the City, and controlled by it. Except for the equipment required in subsection (4), any studios and associated production equipment required by the Franchise Agreement shall be located in a mutually agreed upon site to meet the need for educational and local governmental access as noted in (1) and (2). Financial and technical support and replacement and maintenance of equipment of this facility may be specified in the Franchise Agreement.
(c) The Grantee shall provide emergency alert capability pursuant to FCC rules. The Grantee shall cooperate with the City in the use and operation of the emergency alert override system.
5.24.370 Performance Evaluation Sessions.
(a) The City and the Grantee may hold scheduled performance evaluation sessions within ninety (90) days of the third and sixth anniversary dates of the Franchise or renewal thereof or as may be required by federal and state law. All such evaluation sessions shall be open to the public.
(b) Special evaluation sessions may be held at any time during the term of the Franchise at the request of the City or the Grantee.
(c) All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with the legal notice requirements of the City.
(d) Topics which may be discussed at any scheduled or special evaluation session may include, but are not limited to: service rate structures; franchise fee, penalties, free or discounted services; application of new technologies; Cable System performance; services provided; programming offered; customer complaints; privacy; amendments to this Ordinance or the Franchise Agreement; judicial and FCC rulings; line extension policies; and Grantee or City rules. The City acknowledges that, pursuant to federal law, it does not have jurisdiction nor enforcement rights over all the standards and services mentioned above, including programming and the application of all new technologies under a cable television franchise. Nothing in this subsection shall be construed as requiring the renegotiation of the Franchise Agreement.
(e) Members of the general public may add topics either by working through the negotiating parties or by presenting a petition. If such a petition bears the valid signatures of five (5) or more residents of the City, the proposed topic or topics shall be added to the list of topics to be discussed at the evaluation session.
5.24.380 Rate Change Procedures.
The City reserves all rights, if any, to regulate cable service and equipment rates, subject to applicable law.
5.24.390 Franchise Forfeiture and Termination.
(a) Pursuant to Section 47, in addition to all other rights and powers retained by the City under this Ordinance or otherwise, the City reserves the right to forfeit and terminate the Franchise and all rights and privileges of the Grantee hereunder in the event of a substantial breach of its terms and conditions following the required 30-day period to cure. A substantial breach by the Grantee shall include, but shall not be limited to the following:
(1) Violation of any material provision of the Franchise or any material rule, order or regulation of the City or determination of the City Council;
(2) Attempt to evade any material provision of the Franchise or to practice any fraud or deceit upon the City or its Subscribers or customers;
(3) Material failure to begin or complete Cable System construction or Cable System extension, or to make Cable Service available as provided herein;
(4) Failure to provide the services promised in the Grantee's application as incorporated herein by Section 4;
(5) Failure to restore service after one hundred sixty-eight (168) consecutive hours of interrupted service, except when approval of such interruption is obtained from the City; or;
(6) Material misrepresentation of fact in the application which was inaccurate as of the date the application was filed.
(b) The foregoing shall not constitute a major breach if the violation occurs but is without fault of the Grantee or occurs as a result of circumstances beyond its control. The Grantee shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees.
(c) The City may make a written demand that the Grantee comply with any such provision, rule, order or determination under or pursuant to the Franchise. If the violation by the Grantee continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the City may place the issue of termination of the Franchise before the City Council. The City shall cause to be served upon the Grantee, at least twenty (20) days prior to the date of such meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and the issue(s) which the Council is to consider.
(d) The City Council shall hear and consider the issue(s) and shall hear any person interested therein and shall determine in its discretion whether the Grantee has committed any violation which warrants forfeiture or termination of the Franchise.
(e) If the City Council determines that the violation by the Grantee was the fault of the Grantee and within its control, the Council may, by resolution declare that the Franchise of the Grantee shall be forfeited and terminated unless there is compliance within such period as the Council may fix, such period to not be less than thirty (30) days; provided, however, that no opportunity for compliance need be granted for fraud or material misrepresentation.
(f) The issue of forfeiture and termination shall automatically be placed upon the Council agenda at the expiration of the time set by it for compliance. The Council may then terminate the Franchise forthwith upon finding that the Grantee has failed to achieve compliance or it may further extend the period, at its discretion.
Upon the foreclosure or other judicial sale of all or a substantial part of the Cable System, or upon the termination of any lease covering all or a substantial part of the Cable System, the Grantee shall notify the City of such fact, and such notification shall be treated as a notification that a change in Control of the Grantee has taken place, and the provisions of the Franchise governing the consent of the City to such change in Control of the Grantee shall apply. Notwithstanding anything to the contrary in this Ordinance, any such foreclosure shall be in accordance with the requirements of federal law.
The City shall have the right to cancel a Franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Grantee, unless such receivership or trusteeship shall have been vacated prior to the expiration of one hundred twenty (120) days, or unless:
(1) Within one hundred twenty (120) days after his/her election or appointment, such receiver or trustee shall have fully complied with all the provisions of this Ordinance and remedied all defaults there under; and
(2) Such receiver or trustee, within the one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Ordinance and the Franchise granted to the Grantee.
Notwithstanding anything to the contrary in this Ordinance, any such foreclosure shall be in accordance with the requirements of federal law.
5.24.420 Compliance with Local, State and Federal Laws.
(a) Notwithstanding any other provisions of the Franchise to the contrary, the Grantee shall at all times comply with all applicable laws, regulations, and ordinances of the City, state and federal government or any administrative agencies thereof, provided however, if any such state or federal law or regulation shall require the Grantee to perform any service, or shall permit the Grantee to perform any service, or shall prohibit the Grantee from performing any service, in conflict with the terms of the Franchise or of any law or regulation of the City, then as soon as possible following knowledge thereof, the Grantee shall notify the City of the point of conflict believed to exist between such regulation or law and the laws or regulations of the City or the Franchise.
(b) If the City determines that a material provision of this Ordinance is affected by any subsequent action of the state or federal government, the City and the Grantee shall negotiate to modify any of the provisions herein to such reasonable extent as may be necessary to carry out the full intent and purpose of this Ordinance.
(c) If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise, or any renewal thereof.
5.24.430 Forfeitures for Violations and Non-Compliance.
For the violation of any of the following provisions of this Ordinance, forfeitures shall be jointly and severally recoverable from the Grantee and the surety under the appropriate bond as follows, and the City may determine the amount of the forfeiture for other material violations that are not specified in a sum not to exceed one hundred dollars ($100.00) per day, per violation, for each day that such violation occurs or continues:
(a) Material failure to furnish, maintain, or offer all Cable Services to any potential Subscriber within the City pursuant to Sections 19 or 22 herein upon order of the City: fifty dollars ($50.00) per day, per violation, for each day that such failure occurs or continues;
(b) Material will include but shall not be limited to the following: failure to obtain or file evidence of required insurance, construction bond, performance bond, or other required financial security: one hundred dollars ($100.00) per day, per violation, for each day such failure occurs or continues;
(c) Material failure to provide access to data, documents, records, or reports to the City as required by sections 21, 31, 32, 33 and 34: one hundred dollars ($100.00) per day, per violation, for each day such failure occurs or continues;
(d) Material failure to comply with applicable construction, operation, maintenance or installation standards: one hundred dollars ($100) per day, per violation for each day such failure occurs or continues;
(e) Any material violations for non-compliance with the customer service, technical or quality of service standards of Sections 25 through 27, the Grantee shall pay fifty dollars ($50.00) per day, per violation for each day that such noncompliance occurs or continues;
(f) Any other material violations of the Franchise to be determined by the City in a public hearing but not specifically noted in this section shall not exceed one hundred dollars ($100.00) per day, per violation for each day such violation occurs or continues.
(a) Whenever the City believes that the Grantee has violated one (1) or more terms, conditions or provisions of the Franchise, and wishes to impose penalties, a written notice shall be given to the Grantee informing it of such alleged violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford the Grantee an opportunity to remedy the violation or otherwise respond. The Grantee shall have thirty (30) days subsequent to receipt of the notice in which to correct the violation or respond to the notice. If the violation is not corrected or if Grantee has not otherwise responded to the notice within 30 days, the City may impose penalties unless the violation is of such a nature so as to require more than thirty (30) days and the Grantee proceeds diligently within the thirty (30) days to correct the violation. In any case where the violation is not cured within thirty (30) days of notice from the City, or such other time as the Grantee and the City may mutually agree to, the City may proceed to impose forfeitures.
(b) The Grantee may, within ten (10) days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by the Grantee to the City shall specify with particularity the matters disputed by the Grantee and shall stay the running of the thirty (30) day cure period pending a decision by the City Council as required below. The City Council shall hear the Grantee's dispute. Grantee must be given at least ten (10) days notice of the hearing. At the hearing, the Grantee shall be entitled to present evidence. After the hearing, the City shall provide Grantee a copy of its decision, along with supporting documents. In the event the City upholds the finding of a violation, the Grantee shall have fifteen (15) days subsequent, or such other time period as the Grantee and the City mutually agree, to correct the violation.
(c) The rights reserved to the City under this section are in addition to all other rights of the City whether reserved by this Ordinance or authorized by law or equity, and no action, proceeding or exercise of a right with respect to penalties shall affect any other right the City may have.
5.24.450 Tampering with Cable System Prohibited.
(a) It is unlawful for any Person to make any unauthorized connection, in any form or manner, with any part of a Cable System for the purpose of taking or receiving television signals, radio signals, picture, programs, sound or electronic impulses of any kind for the purpose of enabling himself or others to receive any such television signal, radio signal, picture, program, sound or electronic impulses.
(b) It is unlawful for any Person, without the consent of the Grantee, to willfully tamper with, remove, obstruct or injure any cable, wires, devices or other equipment of the Cable System.
Section 3. SEVERABILITY CLAUSE
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
Section 4. EFFECTIVE DATE
This ordinance shall take effect thirty (30) days after passage and shall within fifteen (15) days after passing, be posted in accordance with section 36933 of the Government Code of the State of California with the names of those City Council members voting for or against it.
The foregoing ordinance was introduced at a regular meeting of the City Council of the City of Brentwood, held on the 12th day of March 2002.
Adopted and ordered posted at a meeting of the City Council of the City of Brentwood held on the 28th day of May 2002 by the following vote: