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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 1

Meeting Date: July 29, 2004

Subject/Title: Review of Comcast’s Compliance with City Ordinances, City Manager’s 30 Day Demand for Possible Declaration of Continuing Material Breaches of Franchise, Imposition of Forfeitures, Authorize City Manager to Issue a 20 Day Notice of Public Hearing to Request Termination, and Set a Date for that Public Hearing

Submitted By: Dennis Beougher, City Attorney
____________________________________________________________________________
RECOMMENDATION
Review status of compliance by Comcast of California IV, Inc. (“Comcast”) with City’s regulatory ordinances, City Manager’s 30-day demand letter, authorize City Manager to issue a 20-day notice of public hearing to request termination, and set a date for that public hearing. If Council finds continuing material breaches, then:

1. Approve a resolution declaring continuing material breaches of the franchise agreements in Resolution 107X, as amended by Resolutions 83-33, 98-119, 98-160, 2408 and 2421 and violations of the related regulatory ordinances Chapter 5.24.220 (a) and (b) and 5.24.420 (2002), or in the alternative section 5.24.180 (1968), of the Municipal Code; and

2. Impose forfeitures and provide required 20-day notice for hearing to terminate the franchise.

3. Set the date of Thursday, August 19, 2004, at 4:00 p.m., for the Public Hearing to impose forfeitures and terminate the franchise.

PREVIOUS ACTION
On June 23, 2004, the City Manager notified Comcast of apparent violations of the following sections of the City’s regulatory ordinance:

Ordinance 705 (2002)

1. Section 5.24.220 (a) Compliance With Construction and Technical Standards.

2. Section 5.24.220 (b) Additional Specifications.

3. Section 5.24.420 Compliance with Local, State and Federal Laws.

Ordinance 181 (1968)

1. Section 5.24.180 Construction and Installations—General Specifications.

He based the notice on a study entitled “Brentwood System” undertaken at the City’s request by B&B International and dated March 17, 2004. In his notice, the City Manager demanded “correction of all violations of these ordinances in the system” within 30 days.

On June 24, 2004, the City Manager amended the 30-day period to extend from June 24, 2004.

B&B International will submit an update report to staff and Council to confirm or deny the conclusion presented in B&B International’s previous report that sixty-nine percent (69%) of the Comcast system failed to satisfy applicable NEC, NESC and G-95 standards. If based on a further sampling in Comcast’s cable system, conducted after the 30-day deadline for corrections has passed, B&B International concludes that there are numerous and continuing violations of these same sections of the City’s regulatory ordinance, then Staff recommends adoption of the attached resolution.

BACKGROUND
Chapter 5.24.390 of the City’s regulatory ordinance provides that:

The City reserves the right to forfeit and terminate the Franchise and all rights and privileges of the Grantee hereunder in the event of a substantial breach of its terms and conditions following the required 30-day cure period. A substantial breach by the Grantee shall include, but 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.

With respect to a continuing violation:

(c) …the City may place the issue of termination of the Franchise before the City Council. The City shall cause to be served upon the Grantee, at least twenty (20) days prior to the date of such meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and the issue(s) which the Council is to consider.

Chapter 5.24.330 provides for daily monetary forfeitures for non-compliance of up to One Hundred Dollars ($100.00) per day, per violation, for each day that such violation occurs or continues, for

(c) 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

AND
(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.

Said forfeitures “shall be jointly and severally recoverable from the Grantee and the surety under the appropriate bond.”

Under section 5.24.180 of Ordinance 181 (1968), the franchise may be terminated by the Council “after thirty days’ notice of any proposed termination and public hearing.”

FISCAL IMPACT
The imposition of forfeitures may increase revenue to the City.

Attachment:
Resolution

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL DECLARING A CONTINUING MATERIAL BREACH OF THE FRANCHISE, IMPOSING FORFEITURES AND ISSUING A 20-DAY NOTICE OF PUBLIC HEARING FOR TERMINATION

WHEREAS, on June 23 and 24, 2004, the City Manager notified Comcast of California IV, Inc. (“Comcast”) of apparent violations in Comcast’s cable system (“System”) of City Ordinance 705 sections 5.24.220 (a), 5.24.220 (b) (1) (2) and (3) and 5.24.420 or alternatively City Ordinance 181 section 5.24.180; and

WHEREAS, the notice from the City Manager demanded that Comcast correct all violations of those provisions in the System within thirty (30) days; and

WHEREAS, the City has received evidence of continuing violations in the System of those provisions of the City Ordinances after the end of the 30-day period.

NOW, THEREFORE, BE IT RESOLVED that the City hereby finds that there have been and continue to be material breaches of the franchise agreement and of City Ordinance 705 sections 5.24.220 (a), 5.24.220 (b) (1) (2) (3), and 5.24.420, or alternatively City Ordinance 181 section 5.24.180, specifically as referenced in the studies on the System by the City’s technical consultant, B&B International, dated March 4, March 17, and July 26, 2004.

BE IT FURTHER RESOLVED that, pursuant to Municipal Code section 5.24.390 (c), the City Manager shall cause to be served upon Comcast a written notice of intent to request termination of the Comcast franchise at a meeting of the City Council on August 19, 2004, at 4:00 p.m., in the City Council Chambers located at 734 Third Street, Brentwood, California.

BE IT FURTHER RESOLVED that, pursuant to Municipal Code section 5.24.430 (d) and/or (f), the City hereby authorizes the City Manager to impose upon and recover from Comcast and its surety forfeitures of One Hundred Dollars ($100.00) per day for each violation of Municipal Code section 5.24.220 (a) and (b) (1) (2) and (3) and 5.24.420 (a) beginning on July 30, 2004.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 29th day of July 2004, by the following vote:
 

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