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CITY COUNCIL AGENDA ITEM NO. 26


Meeting Date: July 22, 2003

Subject/Title: Revisions to Ordinance No. 700 (Brentwood Cable Television Ordinance)

Submitted By: Dennis Beougher, City Attorney

Approved By: John Stevenson, City Manager
____________________________________________________________________________


RECOMMENDATION
Approve revisions to Ordinance No. 700 based on concerns and comments from the Telecommunications Subcommittee of the City Council.

PREVIOUS ACTION
On May 28, 2002 City Council adopted the Brentwood Cable Television Ordinance for the purpose of regulating the time, place and manner of cable television improvements which use the public right-of-way.

BACKGROUND
The Telecommunications Subcommittee of the City Council, and the City’s telecommunications consultant, David Kinley, have reviewed the provisions of the cable television ordinance during the course of the franchise renewal negotiations. The Subcommittee believes that its proposed revisions are desirable in light of its review.

FISCAL IMPACT
None.

Attachments:
Proposed Ordinance with revisions—marked copy
Proposed Ordinance with revisions—clean copy



RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL AMENDING PROCEDURES FOR INFORMAL NEGOTIATION OF CABLE TELEVISION FRANCHISE RENEWAL FROM JUNE 1 TO JULY 1.

WHEREAS, the City of Brentwood has tolled the time deadlines for the formal renewal process regarding the cable television franchise now held by Comcast of California IV, Inc.(“Comcast”); and

WHEREAS, during informal negotiations with Comcast, the City’s Telecommunications Committee continues to make significant progress toward a possible renewal agreement;

NOW, THEREFORE, BE IT RESOLVED that the City Council hereby extends the date for tolling the timeframes of the formal renewal process and completion of a renewal agreement with Comcast from June 1, 2003 to July 1, 2003.

BE IT FURTHER RESOLVED that the deadline for response by Comcast to the City’s Request for Proposal dated September 4, 2002, is hereby extended from June 20, 2003 to July 23, 2003.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 13th day of May 2003, by the following vote:


ORDINANCE NO. 700
WITH REVISIONS PROPOSED BY
TELECOMMUNICATIONS SUBCOMMITTEE
DATED JUNE 3, 2003

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."

5.24.010 Definitions.

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 one-way transmission to Subscribers of (1) video programming, or (2) other programming service; and (B) subscriber interaction, if any, that is required for the selection or use of such video programming or other programming service.

“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 (other than for purposes of Section 621(c)) to the extent such facility is used in transmission of video programming directly to Subscribers , unless the extent of such use is solely to provide interactive on-demand service; (D) an open video system that complies with section 653 of the Cable Act; or (E) any facilities of any electric utility used solely for operating its electric utility system.

“City” means the City of Brentwood, California, or the lawful successor, transferee, designee, or assignee thereof.

“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 direct ownershipby 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. Notwithstanding the above, there shall be deemed no change in Control resulting from any transaction in which the ultimate controlling parent entity remains the same.

“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 initial authorization, or renewal thereof, issued by the City hereunder, as the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, ordinance or otherwise, 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 received by the Cable System, net of commissions, 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; payments from programmers to carry video programming (excluding “launch fees” or other payments for purposes of promoting advertising and distribution of a channel.

In the event that Grantee, or an Affiliate on Grantee’s behalf, shall bundle, tie or combine Cable Services (which are the subject of this definition of Gross Revenues and the franchise fee obligations of a Franchise) with non-Cable Services (which are not subject to the franchise fee provision of a Franchise), for the purposes of Gross Revenues and franchise fee calculations, Grantee shall make any allocations on a reasonable basis and, upon City’s request, shall set forth that basis on a statement or worksheet accompanying its franchise fee payment to City, and City may review the allocation as part of any franchise fee audit undertaken pursuant to a Franchise. Grantee shall not cause revenue to be received by an Affiliate for the purpose of evading any obligations resulting from this definition.

“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 shall 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, but shall not mean the City.

“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 on one or more cable channels.

“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” means a Person or user of the Cable System who lawfully receives Cable Service therefrom with the Grantee’s expressed permission.
“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 construct, and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Streets within the Franchise Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Street and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System. Nothing in a Franchise shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal, state or local law. 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 therefor 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 thereunder 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 it is determined that the City has lawfully found such exercise to be necessary in light of a danger to health, safety or general welfare of the public 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 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). The City and a Grantee shall each bear its own costs with respect to the modification, renewal, and enforcement of a Franchise, including any costs for consultants or attorneys, and Grantee shall retain all rights to pass through or otherwise treat any franchise expenses or costs in the manner permitted by federal law. The City may require 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 transfer of its Franchise up to a maximum of $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 by the City. However, the City may, at its sole discretion, take any lawful action that it deems appropriate to enforce its rights under the Franchise in lieu of revocation, including seeking as damages the costs of determining any non-compliance by Grantee.

(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.

5.24.130 Notices.

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) Throughout the term of the Franchise Agreement, the Grantee shall, at its own cost and expense, maintain the following forms of insurance and provide the City, certificates of insurance designating the City and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the Grantee has obtained the insurance required 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 thereunder, shall be construed to limit the liability of the Grantee under any Franchise issued hereunder.

5.24.170 Indemnification.

(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 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 to the extent of the gross negligence or wilful 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 therefrom, 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. Grantee does not assume any risk or provide any indemnity except as expressly provided in this section or elsewhere in the Franchise Agreement.


(d) City Indemnification. 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 gross negligence or willful misconduct of the City or its officials, boards, departments, commissions ,employees, designees or other agents of any kind.

(e) 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. If the City determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the City.

(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 including Section 631 of the Cable Act and regulations adopted pursuant thereto.



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 to every existing residential dwelling unit within any area having a minimum density of at least thirty (30) residential dwelling units per mile measured from Grantee’s existing or proposed distribution cable, and any future dwelling units or annexation areas upon reaching the minimum density of at least thirty (30) residential dwelling units per mile measured from Grantee’s existing distribution cable. The Grantee shall offer Cable Service to all homes located within one hundred fifty (150) feet of the Grantee’s distribution cable. Grantee shall offer service at standard installation charges to all non-residential buildings within one hundred fifty (150) feet of Grantee’s existing distribution cable. Grantee shall offer service to all non-residential buildings beyond one hundred fifty (150) feet of Grantee’s existing distribution cable but may impose an additional charge for such buildings. Grantee shall not be required to provide service to any residential dwelling unit that does not meet the density requirements of this section. Commercial buildings will be provided commercial Cable Service upon agreeing to meet Grantee’s policies, including line extension costs, if applicable.

The Grantee may elect to provide Cable Service to areas not meeting the above density standards. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop in excess of the above standards. Any such additional charge shall be computed on a time plus materials basis to be calculated on that portion of the installation which exceeds the one hundred fifty (150) foot standard set forth above. In no event shall Grantee be required to provide Cable Service to dwelling units not meeting the thirty (30)-home density requirement or the one hundred fifty (150) foot standard set forth in this section.

The Grantee 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 which meets the criteria in section 5.24.200.

(1) The Grantee must make Cable Service available to at least forty percent (40%) of those dwelling units 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 those dwelling units 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) Technical Standards. The Grantee shall comply with all appropriate technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those standards are altered, modified, or amended during the term of this Franchise, the Grantee shall comply with such alterations, modifications or amendments within a reasonable period (as defined by the FCC) after their adoption by the FCC. 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. Notwithstanding anything in the Ordinance or any other provision to the contrary, except as expressly set forth in this Franchise Agreement, the City may not impose technical standards, testing requirements or technology requirements with respect to the Cable System beyond the enforcement of FCC technical standards as provided under this Section. City shall have a right to utilize an engineering technical consultant to confirm compliance with capacity requirements set forth in Section 5.24.350, and City shall be entitled to all contractual or other remedies associated with any noncompliance with the capacity requirements of Section 5.24.350.

(b) Additional specifications:

(1) The Grantee shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to upgrade, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of the Franchise Agreement shall be located so as to minimize the interference with the proper use of the Streets and the rights and reasonable convenience of property owners who own property that adjoins any such Street. Grantee shall comply with generally applicable regulations lawfully adopted pursuant to the generally applicable police powers of the City.

(2) The Grantee shall, at its own cost and expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. The Grantee shall comply with applicable FCC technical standards as well as all applicable federal and state safety regulations, the National Electrical Code and the National Electric Safety Code.

(3) In any event, the Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Franchise area.

(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 but shall not be less than the following:

headend: continuous auto-start
hubs: continuous
nodes and trunk stations: three (3) hours

In addition, Grantee shall provide adequate mobile generators, monitoring systems and personnel so that Grantee is able to detect outages and place mobile generators before loss of fixed back-up power in cases where Subscribers have power.

(8) If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable Systems’ transmission and distribution facilities underground; provided that such facilities are actually capable of receiving the Grantee’s cable and other equipment without technical degradation of the Cable System’s signal quality. City shall require public or municipal utilities to provide the Grantee with written notice of any undergrounding planned by such utility within the City or any area to be annexed by the City. In any region(s) of the Franchise Area where the transmission or distribution facilities of the respective public or municipal utilities are both aerial and underground, the Grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing in this section shall be construed to require the Grantee to construct, operate, or maintain underground any appurtenances which are customarily ground-mounted, such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.

(9) New Developments. The City shall require developers to provide the Grantee with written notice of the issuance of building or development permits for planned developments within the Franchise Area requiring undergrounding of cable facilities. The City shall require that, as a condition of issuing the permit, the developer give the Grantee access to open trenches for deployment of cable facilities and at least ten (10) business days written notice of the date of availability of trenches. Developer shall be responsible for the digging and backfilling of all trenches in accordance with City requirements. The Grantee shall be responsible for engineering and deployment of labor applicable to its cable facilities. Installation of cable facilities from utility easements to individual homes or other structures shall be at the cost of the home/building owner or developer unless otherwise provided.

5.24.230 Use of Streets.

(a) New Grades or Lines. If the grades or lines of any Street within the Franchise Area are lawfully changed at any time during the term of this Franchise Agreement, then the Grantee shall, upon reasonable written notice from, and consultation with, the City and at no cost and expense to City, protect or promptly remove, alter or relocate the Cable System, or any part thereof, so as to conform with any such new grades or lines. If public funds are available to any Person using such street or public right-of-way for the purpose of defraying the cost of any of the foregoing, the City shall, upon written request of the Grantee, cooperate with Grantee in Grantee’s undertaking to obtain such funds. In no event shall Grantee be obligated to absorb costs of any such removal, alteration or relocation of Grantee’s Cable System which is done at the request of or for the benefit of any non-governmental right-of-way occupant or use

(b) Restoration to prior condition. If in connection with the construction, operation, maintenance, or repair of the Cable System, the Grantee disturbs, alters, or damages any Street, the Grantee agrees that it shall at its own cost and expense replace and restore any such Street to a condition reasonably comparable to the condition of the Street existing immediately prior to the disturbance. 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) Relocation at request of Third Party. The Grantee shall, upon reasonable prior written request of any Person holding a permit issued by the City to move any structure, temporarily move its wires to permit the moving of such structure; provided (i) the Grantee may impose a reasonable charge on any Person for the movement of its wires, and such charge may be required to be paid in advance of the movement of its wires; and (ii) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary relocation.
(f) Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Franchise Area so as to prevent contact with the Grantee’s wires, cables, or other equipment. All such trimming shall be done at the Grantee’s sole cost and expense. The Grantee shall reasonably compensate the City for any damage caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs so damaged. Such replacement shall satisfy any obligations the Grantee may have to the City pursuant to the terms of this Section 3.2.5. Grantee shall notify City in advance of any major trimming of trees.

(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) Subject to applicable federal law, the customer service standards applicable to Grantee’s provision of Cable Service pursuant to a Franchise Agreement shall be as follows:
(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) Standard 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 problems within thirty-six (36) hours during the normal work week 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 four (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. Subscriber bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Subscribers, and in a way that (A) is not misleading, (B) does not omit material information, and (C) does not mischaracterize any information. Notwithstanding anything to the contrary in Section 6.1, above, the Grantee may, in its sole discretion, consolidate costs on Subscriber bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §542(c)).

(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 the City and 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 applicable FCC technical standards which are hereby incorporated herein.

(l)
(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 in the Franchise Area for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billing questions and similar matters. In addition, Grantee shall publish a toll free or local telephone number at which complaints may be taken by other Grantee representatives.

(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 payment of franchise fees shall be made on an quarterly basis and shall be due forty-five (45) days after the close of each calendar quarter. Each franchise fee payment shall be accompanied by a certified report from a representative of the Grantee, which shows the basis for the computation of all Gross Revenue actually received from the operation of the Cable System for the provision of Cable Service in the Franchise Area during the period for which such franchise fee payment is made.

(d) Upon at least thirty (30) calendar days prior written notice, during normal business hours, the City shall have the right to inspect the Grantee’s financial records used to calculate the City’s franchise fees, and the right to audit and to re-compute any amounts determined to be payable under this Section; provided, however, that any such audit shall take place within three (3) years from the close of each Grantee fiscal year that is subject to the audit, after which period any such payment shall be considered final.

(e) Upon the completion of any such audit conducted by the City, the City shall provide to the Grantee a final audit report, which sets forth the City’s findings in detail, including any and all substantiating evidence. The Grantee shall have thirty (30) days from the receipt of the audit report to provide the City with a written response to the audit report, including any substantiating evidence. Any “Final Settlement Amount(s)” due to the City as a result of such audit shall be paid to the City by the Grantee within thirty (30) days from receipt of written notice of the Final Settlement Amount from the City. For purposes of this Section 7 the term “Final Settlement Amount(s)” shall mean the agreed upon underpayment, if any, to the City by the Grantee as a result of any such audit. The City and the Grantee shall bear equally the expense of any inspection or audit of the Grantee’s books and records. However, 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, not to exceed ten thousand dollars ($10,000).
(f) If the franchise fee payment is not actually received by the City on or before the applicable due date set forth in this section, interest shall accrue on the outstanding amount at rates published by the Internal Revenue Service for tax refunds and additional tax payments for the period of delinquency.
5.24.300 Transfer of ownership or Control.

(a) No Franchise or Cable System shall be sold, assigned, transferred 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, 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 . Any Transfer without the prior written consent of the City Council shall be a substantial default of a material provision for which the City may seek remedies pursuant to the procedures set forth in Section 10.4 of this Franchise.

(b) Without the City’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’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 more than Fifty Percent (50%) 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 demonstrate the requisite legal, technical and financial qualifications and the proposed resulting franchiseholder 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
Chapter.

5.24.310 Availability of books and records.

(a) Throughout the term of this Franchise Agreement, upon reasonable prior written notice of at least five (5) business days (excluding holidays) unless otherwise agreed to by the parties, the Grantee shall make available for the City’s review books, records, maps, plans and other like materials of the Grantee applicable to the Cable System, at any time during Normal Business Hours. All such documents required to be made available under this section shall be retained by the Grantee for a minimum period of three (3) years.

(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.

(c) Throughout the term of this Franchise Agreement, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC’s rules and regulations

(d) Proprietary Information. Notwithstanding anything to the contrary set forth in herein, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. To the extent Grantee does submit information in document form that it deems proprietary and confidential, Grantee shall clearly so label such document, or part thereof. To the maximum extent authorized under California law, the City agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to employees, representatives, and agents of the City that have a need to know, or in order to enforce the Franchise Agreement and who agree to maintain the confidentiality of all such information. To the extent the City believes that such information must be further disclosed under applicable law, prior to any such disclosure, City will provide Grantee at least five (5) business days advance notice in order that Grantee can exercise any rights or protections with respect to potential disclosure of such information. The Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act. For purposes of this section, the terms “proprietary or confidential” include, but are not limited to, information relating to the Cable System design, Subscriber lists, Cable Service and marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the Grantee to be competitively sensitive.

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 not less than eight hundred sixty (860) megahertz and be two-way capable and have a capacity of not less than seventy (70) analog channels.



(b) 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. Commencing one year after activation of the four (4) PEG channels referenced above, this obligation will cease as to any of the PEG channels which has not been programmed with locally provided programming on average at least six (6) hours per day over a thirty (30) day period preceding such date. However, there shall never be less than one PEG channel. Upon reasonable demonstration of need and likelihood that the programming threshold will be met, City, upon six (6) months written notice, can require Grantee to re-activate any of the above-referenced channels which have ceased. But in no event may City request reactivation of more than one channel at a time. 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) All PEG channels shall be used solely for the distribution of non-commercial public, educational or governmental programming. Grantee may reserve the right to use any PEG channel capacity not used by the City to the extent permitted under federal law. The City shall be solely responsible for the management, administration and programming of all PEG channels.

(d) 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.


5.24.360 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.

5.24.370 Rate change procedures.

The City reserves all rights, if any, to regulate cable service and equipment rates, subject to applicable law.

5.24.380 Enforcement and Termination of Franchise.

(a) In the event the City believes that the Grantee has not complied with the material terms of the Franchise, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default.

(b) The Grantee shall have thirty days from the receipt of the City’s notice: (A) to respond to the City, contesting the assertion of noncompliance or default, or (B) to cure such default, or (C) in the event that, by nature of the default, such default cannot be cured within the thirty day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.

(c) In the event the Grantee fails to respond to the City’s notice described above, disputes the notice, or in the event that the alleged default is not remedied within thirty days or the date projected pursuant to subsection (d), above, the City shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the City that is scheduled at a time, which is no less than ten (10) business days therefrom. The City shall notify the Grantee in writing of the time and place of such meeting and provide the Grantee with a reasonable opportunity to be heard.

(d) Subject to applicable federal and state law, in the event the City, after such meeting, determines that the Grantee is in default of any provision of the Franchise, the City may:

(1) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages or seek other equitable relief; or

(2) impose forfeitures under section 5.24.400; or

(3). in the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following:

(i) The City shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have ninety (90) days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The City shall cause to be served upon the Grantee, at least ten (10) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise.

(ii) At the designated hearing, the City shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the City shall be in writing and shall be delivered to the Grantee in the manner set forth in Section 11.2 herein. The Grantee may appeal such determination to an appropriate court or pursue any lawful recourse or remedy.

(iii) The City may, at its sole discretion, take any lawful action that it deems appropriate to enforce its rights under the Franchise in lieu of revocation, including seeking as damages the costs of determining any non-compliance by Grantee. Subject to applicable federal law, the Franchise may not be revoked, forfeited or terminated except as provided in this section.

(e) 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 default of its terms and conditions following the required 30-day period to cure. A substantial default 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;

(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.





(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.

5.24.390 Technical Violation

It is not the intention of the City to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called “technical” breach(es) or violation(s) of the Franchise, which shall include, but not be limited, to the following:

(a) in instances or for matters where a violation or a breach of the Franchise by the Grantee was good faith error that resulted in no or minimal negative impact on the Subscribers within the Franchise Area; or

(b) where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise, or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise.

5.24.400 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 as provided 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 herein: 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, 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.


5.24.420 Foreclosure.

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.

5.24.430 Receivership.

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 thereunder; 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.

5.24.440 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.


5.24.450 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.

5.24.460 Force Majeure.

The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including forfeiture, termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee’s ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee’s cable and/or equipment is attached, as well as unavailability of materials and/or labor to perform the work necessary.

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 ___th day of _______, 2003.

Adopted and ordered posted at a meeting of the City Council of the City of Brentwood held on the ____ day of ________ 2003 by the following vote:







ORDINANCE NO. 700
WITH REVISIONS PROPOSED BY
TELECOMMUNICATIONS SUBCOMMITTEE
DATED JUNE 3, 2003

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."

5.24.010 Definitions.

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 one-way transmission to Subscribers of (1) video programming, or (2) other programming service; and (B) subscriber interaction, if any, that is required for the selection or use of such video programming or other programming service.

“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 (other than for purposes of Section 621(c)) to the extent such facility is used in transmission of video programming directly to Subscribers , unless the extent of such use is solely to provide interactive on-demand service; (D) an open video system that complies with section 653 of the Cable Act; or (E) any facilities of any electric utility used solely for operating its electric utility system.

“City” means the City of Brentwood, California, or the lawful successor, transferee, designee, or assignee thereof.

“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 direct ownership 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. Notwithstanding the above, there shall be deemed no change in Control resulting from any transaction in which the ultimate controlling parent entity remains the same.

“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 initial authorization, or renewal thereof, issued by the City hereunder, as the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, ordinance or otherwise, 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 received by the Cable System, net of commissions, 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; payments from programmers to carry video programming (excluding “launch fees” or other payments for purposes of promoting advertising and distribution of a channel.

In the event that Grantee, or an Affiliate on Grantee’s behalf, shall bundle, tie or combine Cable Services (which are the subject of this definition of Gross Revenues and the franchise fee obligations of a Franchise) with non-Cable Services (which are not subject to the franchise fee provision of a Franchise), for the purposes of Gross Revenues and franchise fee calculations, Grantee shall make any allocations on a reasonable basis and, upon City’s request, shall set forth that basis on a statement or worksheet accompanying its franchise fee payment to City, and City may review the allocation as part of any franchise fee audit undertaken pursuant to a Franchise. Grantee shall not cause revenue to be received by an Affiliate for the purpose of evading any obligations resulting from this definition.

“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 shall 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, but shall not mean the City.

“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 on one or more cable channels.

“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” means a Person or user of the Cable System who lawfully receives Cable Service therefrom with the Grantee’s expressed permission.
“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 construct, and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Streets within the Franchise Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Street and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System. Nothing in a Franchise shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal, state or local law. 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 therefor 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 thereunder 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 it is determined that the City has lawfully found such exercise to be necessary in light of a danger to health, safety or general welfare of the public 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 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). The City and a Grantee shall each bear its own costs with respect to the modification, renewal, and enforcement of a Franchise, including any costs for consultants or attorneys, and Grantee shall retain all rights to pass through or otherwise treat any franchise expenses or costs in the manner permitted by federal law. The City may require 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 transfer of its Franchise up to a maximum of $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 by the City. However, the City may, at its sole discretion, take any lawful action that it deems appropriate to enforce its rights under the Franchise in lieu of revocation, including seeking as damages the costs of determining any non-compliance by Grantee.

(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.

5.24.130 Notices.

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.

(c) 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) Throughout the term of the Franchise Agreement, the Grantee shall, at its own cost and expense, maintain the following forms of insurance and provide the City, certificates of insurance designating the City and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the Grantee has obtained the insurance required in the Franchise Agreement. If no amounts are so specified, the minimum amounts shall be:

(4) Two million dollars ($2,000,000) for property damage to any one person

(5) Five million dollars ($5,000,000) for property damage from any one occurrence

(6) 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 thereunder, shall be construed to limit the liability of the Grantee under any Franchise issued hereunder.

5.24.170 Indemnification.

(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 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 to the extent of the gross negligence or wilful 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 therefrom, 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. Grantee does not assume any risk or provide any indemnity except as expressly provided in this section or elsewhere in the Franchise Agreement.


(d) City Indemnification. 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 gross negligence or willful misconduct of the City or its officials, boards, departments, commissions ,employees, designees or other agents of any kind.

(e) 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. If the City determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the City.

(f) 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.

(g) 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 including Section 631 of the Cable Act and regulations adopted pursuant thereto.

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.

(a) The Grantee shall provide Cable Service to every existing residential dwelling unit within any area having a minimum density of at least thirty (30) residential dwelling units per mile measured from Grantee’s existing or proposed distribution cable, and any future dwelling units or annexation areas upon reaching the minimum density of at least thirty (30) residential dwelling units per mile measured from Grantee’s existing distribution cable. The Grantee shall offer Cable Service to all homes located within one hundred fifty (150) feet of the Grantee’s distribution cable. Grantee shall offer service at standard installation charges to all non-residential buildings within one hundred fifty (150) feet of Grantee’s existing distribution cable. Grantee shall offer service to all non-residential buildings beyond one hundred fifty (150) feet of Grantee’s existing distribution cable but may impose an additional charge for such buildings. Grantee shall not be required to provide service to any residential dwelling unit that does not meet the density requirements of this section. Commercial buildings will be provided commercial Cable Service upon agreeing to meet Grantee’s policies, including line extension costs, if applicable.

(b) The Grantee may elect to provide Cable Service to areas not meeting the above density standards. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop in excess of the above standards. Any such additional charge shall be computed on a time plus materials basis to be calculated on that portion of the installation which exceeds the one hundred fifty (150) foot standard set forth above. In no event shall Grantee be required to provide Cable Service to dwelling units not meeting the thirty (30)-home density requirement or the one hundred fifty (150) foot standard set forth in this section.

(c) The Grantee 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 which meets the criteria in section 5.24.200.

(1) The Grantee must make Cable Service available to at least forty percent (40%) of those dwelling units 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 those dwelling units within three (3) years from the date of the award of the Franchise.

(c) 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) Technical Standards. The Grantee shall comply with all appropriate technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent those standards are altered, modified, or amended during the term of this Franchise, the Grantee shall comply with such alterations, modifications or amendments within a reasonable period (as defined by the FCC) after their adoption by the FCC. 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. Notwithstanding anything in the Ordinance or any other provision to the contrary, except as expressly set forth in this Franchise Agreement, the City may not impose technical standards, testing requirements or technology requirements with respect to the Cable System beyond the enforcement of FCC technical standards as provided under this Section. City shall have a right to utilize an engineering technical consultant to confirm compliance with capacity requirements set forth in Section 5.24.350, and City shall be entitled to all contractual or other remedies associated with any noncompliance with the capacity requirements of Section 5.24.350.

(b) Additional specifications:

(1) The Grantee shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to upgrade, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of the Franchise Agreement shall be located so as to minimize the interference with the proper use of the Streets and the rights and reasonable convenience of property owners who own property that adjoins any such Street. Grantee shall comply with generally applicable regulations lawfully adopted pursuant to the generally applicable police powers of the City.

(2) The Grantee shall, at its own cost and expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. The Grantee shall comply with applicable FCC technical standards as well as all applicable federal and state safety regulations, the National Electrical Code and the National Electric Safety Code.

(3) In any event, the Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Franchise area.

(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 but shall not be less than the following:

headend: continuous auto-start
hubs: continuous
nodes and trunk stations: three (3) hours

In addition, Grantee shall provide adequate mobile generators, monitoring systems and personnel so that Grantee is able to detect outages and place mobile generators before loss of fixed back-up power in cases where Subscribers have power.

(8) If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable Systems’ transmission and distribution facilities underground; provided that such facilities are actually capable of receiving the Grantee’s cable and other equipment without technical degradation of the Cable System’s signal quality. City shall require public or municipal utilities to provide the Grantee with written notice of any undergrounding planned by such utility within the City or any area to be annexed by the City. In any region(s) of the Franchise Area where the transmission or distribution facilities of the respective public or municipal utilities are both aerial and underground, the Grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing in this section shall be construed to require the Grantee to construct, operate, or maintain underground any appurtenances which are customarily ground-mounted, such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.

(9) New Developments. The City shall require developers to provide the Grantee with written notice of the issuance of building or development permits for planned developments within the Franchise Area requiring undergrounding of cable facilities. The City shall require that, as a condition of issuing the permit, the developer give the Grantee access to open trenches for deployment of cable facilities and at least ten (10) business days written notice of the date of availability of trenches. Developer shall be responsible for the digging and backfilling of all trenches in accordance with City requirements. The Grantee shall be responsible for engineering and deployment of labor applicable to its cable facilities. Installation of cable facilities from utility easements to individual homes or other structures shall be at the cost of the home/building owner or developer unless otherwise provided.

5.24.230 Use of Streets.

(a) New Grades or Lines. If the grades or lines of any Street within the Franchise Area are lawfully changed at any time during the term of this Franchise Agreement, then the Grantee shall, upon reasonable written notice from, and consultation with, the City and at no cost and expense to City, protect or promptly remove, alter or relocate the Cable System, or any part thereof, so as to conform with any such new grades or lines. If public funds are available to any Person using such street or public right-of-way for the purpose of defraying the cost of any of the foregoing, the City shall, upon written request of the Grantee, cooperate with Grantee in Grantee’s undertaking to obtain such funds. In no event shall Grantee be obligated to absorb costs of any such removal, alteration or relocation of Grantee’s Cable System which is done at the request of or for the benefit of any non-governmental right-of-way occupant or use

(b) Restoration to prior condition. If in connection with the construction, operation, maintenance, or repair of the Cable System, the Grantee disturbs, alters, or damages any Street, the Grantee agrees that it shall at its own cost and expense replace and restore any such Street to a condition reasonably comparable to the condition of the Street existing immediately prior to the disturbance. 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.

(e) 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) Relocation at request of Third Party. The Grantee shall, upon reasonable prior written request of any Person holding a permit issued by the City to move any structure, temporarily move its wires to permit the moving of such structure; provided (i) the Grantee may impose a reasonable charge on any Person for the movement of its wires, and such charge may be required to be paid in advance of the movement of its wires; and (ii) the Grantee is given not less than ten (10) business days advance written notice to arrange for such temporary relocation.
(f) Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Franchise Area so as to prevent contact with the Grantee’s wires, cables, or other equipment. All such trimming shall be done at the Grantee’s sole cost and expense. The Grantee shall reasonably compensate the City for any damage caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs so damaged. Such replacement shall satisfy any obligations the Grantee may have to the City pursuant to the terms of this Section 3.2.5. Grantee shall notify City in advance of any major trimming of trees.

(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) Subject to applicable federal law, the customer service standards applicable to Grantee’s provision of Cable Service pursuant to a Franchise Agreement shall be as follows:

(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) Standard 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 problems within thirty-six (36) hours during the normal work week 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 four (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. Subscriber bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Subscribers, and in a way that (A) is not misleading, (B) does not omit material information, and (C) does not mischaracterize any information. Notwithstanding anything to the contrary in Section 6.1, above, the Grantee may, in its sole discretion, consolidate costs on Subscriber bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §542(c)).

(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 the City and 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 applicable FCC technical standards which are hereby incorporated herein.

(l) 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 in the Franchise Area for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billing questions and similar matters. In addition, Grantee shall publish a toll free or local telephone number at which complaints may be taken by other Grantee representatives.

(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 payment of franchise fees shall be made on an quarterly basis and shall be due forty-five (45) days after the close of each calendar quarter. Each franchise fee payment shall be accompanied by a certified report from a representative of the Grantee, which shows the basis for the computation of all Gross Revenue actually received from the operation of the Cable System for the provision of Cable Service in the Franchise Area during the period for which such franchise fee payment is made.

(d) Upon at least thirty (30) calendar days prior written notice, during normal business hours, the City shall have the right to inspect the Grantee’s financial records used to calculate the City’s franchise fees, and the right to audit and to re-compute any amounts determined to be payable under this Section; provided, however, that any such audit shall take place within three (3) years from the close of each Grantee fiscal year that is subject to the audit, after which period any such payment shall be considered final.

(e) Upon the completion of any such audit conducted by the City, the City shall provide to the Grantee a final audit report, which sets forth the City’s findings in detail, including any and all substantiating evidence. The Grantee shall have thirty (30) days from the receipt of the audit report to provide the City with a written response to the audit report, including any substantiating evidence. Any “Final Settlement Amount(s)” due to the City as a result of such audit shall be paid to the City by the Grantee within thirty (30) days from receipt of written notice of the Final Settlement Amount from the City. For purposes of this Section 7 the term “Final Settlement Amount(s)” shall mean the agreed upon underpayment, if any, to the City by the Grantee as a result of any such audit. The City and the Grantee shall bear equally the expense of any inspection or audit of the Grantee’s books and records. However, 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, not to exceed ten thousand dollars ($10,000).

(f) If the franchise fee payment is not actually received by the City on or before the applicable due date set forth in this section, interest shall accrue on the outstanding amount at rates published by the Internal Revenue Service for tax refunds and additional tax payments for the period of delinquency.

5.24.300 Transfer of ownership or Control.

(a) No Franchise or Cable System shall be sold, assigned, transferred 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, 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 . Any Transfer without the prior written consent of the City Council shall be a substantial default of a material provision for which the City may seek remedies pursuant to the procedures set forth in Section 10.4 of this Franchise.

(b) Without the City’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’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 more than Fifty Percent (50%) 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 demonstrate the requisite legal, technical and financial qualifications and the proposed resulting franchiseholder 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
Chapter.

5.24.310 Availability of books and records.

(a) Throughout the term of this Franchise Agreement, upon reasonable prior written notice of at least five (5) business days (excluding holidays) unless otherwise agreed to by the parties, the Grantee shall make available for the City’s review books, records, maps, plans and other like materials of the Grantee applicable to the Cable System, at any time during Normal Business Hours. All such documents required to be made available under this section shall be retained by the Grantee for a minimum period of three (3) years.

(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.

(c) Throughout the term of this Franchise Agreement, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC’s rules and regulations

(d) Proprietary Information. Notwithstanding anything to the contrary set forth in herein, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. To the extent Grantee does submit information in document form that it deems proprietary and confidential, Grantee shall clearly so label such document, or part thereof. To the maximum extent authorized under California law, the City agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to employees, representatives, and agents of the City that have a need to know, or in order to enforce the Franchise Agreement and who agree to maintain the confidentiality of all such information. To the extent the City believes that such information must be further disclosed under applicable law, prior to any such disclosure, City will provide Grantee at least five (5) business days advance notice in order that Grantee can exercise any rights or protections with respect to potential disclosure of such information. The Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act. For purposes of this section, the terms “proprietary or confidential” include, but are not limited to, information relating to the Cable System design, Subscriber lists, Cable Service and marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the Grantee to be competitively sensitive.

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 not less than eight hundred sixty (860) megahertz and be two-way capable and have a capacity of not less than seventy (70) analog channels.

(b) The Cable System shall be designed, constructed, operated and maintained to provide:

(5) at least one (1) specially designated channel for use by local education authorities;

(6) at least one (1) specially designated channel for local government uses;

(7) at least one (1) specially designated channel for use by local not-for-profit religious entities;

(8) 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. Commencing one year after activation of the four (4) PEG channels referenced above, this obligation will cease as to any of the PEG channels which has not been programmed with locally provided programming on average at least six (6) hours per day over a thirty (30) day period preceding such date. However, there shall never be less than one PEG channel. Upon reasonable demonstration of need and likelihood that the programming threshold will be met, City, upon six (6) months written notice, can require Grantee to re-activate any of the above-referenced channels which have ceased. But in no event may City request reactivation of more than one channel at a time. 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) All PEG channels shall be used solely for the distribution of non-commercial public, educational or governmental programming. Grantee may reserve the right to use any PEG channel capacity not used by the City to the extent permitted under federal law. The City shall be solely responsible for the management, administration and programming of all PEG channels.

(d) 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.


5.24.360 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.

(d) Special evaluation sessions may be held at any time during the term of the Franchise at the request of the City or the Grantee.

(e) 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.

5.24.370 Rate change procedures.

The City reserves all rights, if any, to regulate cable service and equipment rates, subject to applicable law.

5.24.380 Enforcement and Termination of Franchise.

(a) In the event the City believes that the Grantee has not complied with the material terms of the Franchise, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default.

(b) The Grantee shall have thirty days from the receipt of the City’s notice: (A) to respond to the City, contesting the assertion of noncompliance or default, or (B) to cure such default, or (C) in the event that, by nature of the default, such default cannot be cured within the thirty day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.

(c) In the event the Grantee fails to respond to the City’s notice described above, disputes the notice, or in the event that the alleged default is not remedied within thirty days or the date projected pursuant to subsection (d), above, the City shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the City that is scheduled at a time, which is no less than ten (10) business days therefrom. The City shall notify the Grantee in writing of the time and place of such meeting and provide the Grantee with a reasonable opportunity to be heard.

(d) Subject to applicable federal and state law, in the event the City, after such meeting, determines that the Grantee is in default of any provision of the Franchise, the City may:

(1) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages or seek other equitable relief; or

(2) impose forfeitures under section 5.24.400; or

(3). in the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following:

(i) The City shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have ninety (90) days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The City shall cause to be served upon the Grantee, at least ten (10) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise.

(ii) At the designated hearing, the City shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the City shall be in writing and shall be delivered to the Grantee in the manner set forth in Section 11.2 herein. The Grantee may appeal such determination to an appropriate court or pursue any lawful recourse or remedy.

(iii) The City may, at its sole discretion, take any lawful action that it deems appropriate to enforce its rights under the Franchise in lieu of revocation, including seeking as damages the costs of determining any non-compliance by Grantee. Subject to applicable federal law, the Franchise may not be revoked, forfeited or terminated except as provided in this section.


(e) 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 default of its terms and conditions following the required 30-day period to cure. A substantial default 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;

(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.

(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.

5.24.390 Technical Violation

It is not the intention of the City to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called “technical” breach(es) or violation(s) of the Franchise, which shall include, but not be limited, to the following:

(a) in instances or for matters where a violation or a breach of the Franchise by the Grantee was good faith error that resulted in no or minimal negative impact on the Subscribers within the Franchise Area; or

(b) where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise, or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise.

5.24.400 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 as provided 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 herein: 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, 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.

5.24.420 Foreclosure.

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.

5.24.430 Receivership.

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:

(a) 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 thereunder; and

(b) 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.

(c) Notwithstanding anything to the contrary in this Ordinance, any such foreclosure shall be in accordance with the requirements of federal law.

5.24.440 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.


5.24.450 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.

5.24.460 Force Majeure.

The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including forfeiture, termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee’s ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee’s cable and/or equipment is attached, as well as unavailability of materials and/or labor to perform the work necessary.

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 ___ day of _______, 2003.

Adopted and ordered posted at a meeting of the City Council of the City of Brentwood held on the ____ day of ________ 2003 by the following vote:







 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov