(a)
Franchise Required. No cable communications system shall
be allowed to occupy or use the streets in the franchise area or be
allowed to operate without a franchise in accordance with the provisions
of this ordinance.
(b)
Franchise Nonexclusive. Any franchise granted shall
be nonexclusive. City specifically reserves the right to grant, at
any time, such additional franchises for a cable communications system
as it deems appropriate.
(c)
Establishment of Franchise Requirements. The City may
establish appropriate requirements for new franchises or franchise
renewals, and may modify these requirements from time to time to reflect
changing conditions and state of art in the cable industry. Such requirements
shall not be retroactive to franchises then in effect, but shall become
applicable when the franchise is renewed, or when Grantee's service
area is expanded.
(d)
Franchise Area. The City may grant a franchise for all
or any defined portion of the City. The service area shall be the
entire area defined in the franchise agreement. The initial service
area shall be that portion of the franchise area scheduled to receive
initial service, as stated in the franchise agreement.
(Prior code § 63002; added
by Ord. No. 1407CCS, adopted 4/28/87)
Each application, for a franchise to construct, operate, or
maintain any cable system in this City shall be filed with the City
Clerk. An application shall include, but shall not be limited to,
the following information:
(a)
The name, address, and telephone number of the applicant.
(b)
A detailed statement of the corporate or business entity organization
of the applicant, including, but not limited to, the following and
to whatever extent required by the City:
(1)
The names, residence and business addresses of all officers, directors,
and associates of the applicant.
(2)
The names, residence and business addresses of all officers, persons,
and entities having any share of the ownership of the applicant of
1% or more and the respective ownership share of each such person
or entity.
(3)
The names and addresses of any parent or subsidiary of the applicant,
namely, any other business entity owning or controlling applicant
in whole or in part or owned or controlled in whole or in part by
the applicant, and a statement describing the nature of any such parent
or subsidiary business entity including, but not limited to, cable
systems owned or controlled by the applicant, its parent, and subsidiary
and the areas served thereby.
(4)
A detailed description of all previous experience of the applicant
in providing cable television system service and in related or similar
fields.
(5)
A detailed and complete financial statement of the applicant, certified
by an independent certified public accountant, for the fiscal year
next preceding the date of the application hereunder, or a letter
or other acceptable evidence in writing from a recognized lending
institution or funding source, addressed to both the applicant and
the Council, setting forth the basis for a study performed by such
lending institution or funding source, and a clear statement of its
intent as a lending institution or funding source to provide whatever
capital shall be required by the applicant to construct and operate
the proposed system in the City, or a statement from an independent
certified public accountant, certifying that the applicant has available
sufficient free, net, and uncommitted cash resources to construct
and operate the proposed system in this City.
(6)
A detailed financial plan (pro forma) describing for each year of
the franchise, projected number of subscribers, rates, all revenues,
operating expenses, capital expenditures, depreciation schedules,
income statements, and a sources and uses of funds statement. All
information is to be presented in the format required by City.
(7)
A statement identifying, by place and date, any other cable system
franchises awarded to the applicant, and any parent, or subsidiary
corporation; the status of said franchises with respect to completion
thereof; the total cost of completion of such franchised systems;
and the amount of applicant's and its parent's or subsidiary's resources
committed to the completion thereof.
(8)
A statement identifying franchises owned or operated by applicant,
its parent or subsidiary corporation, that have been revoked or licenses
terminated by the Federal Communication Commission or franchising
entity.
(c)
A detailed description of the proposed plan of operation of the applicant
which shall include, but not be limited to, the following:
(1)
A detailed map indicating all areas proposed to be served, and a
proposed time schedule for the installation of all equipment necessary
to become operational throughout the entire area to be served.
(2)
A statement or schedule setting forth all proposed classifications
of rates and charges to be made against subscribers and all rates
and charges as to each of said classifications, including installation
charges and service charges.
(3)
A detailed, informative, and referenced statement describing the
actual equipment and operational standards proposed by the applicant.
(4)
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber.
(5)
A detailed statement setting forth in its entirety any and all agreements
and undertakings, whether formal or informal, written, oral, or implied,
existing or proposed to exist, between the applicant and any person,
firm, or corporation which materially relate or pertain to or depend
upon the application and the granting of the franchise.
(d)
A copy of any agreement covering the franchise area, if existing,
between the applicant and any municipal utility or public utility
subject to regulation by the California Public Utilities Commission
providing for the use of any facilities of the public utility including,
but not limited to, poles, lines, or conduits.
(e)
Any other details, statements, information, or references pertinent
to the subject matter of such application which shall be required
or requested by the City, or by any other provision of law.
(Prior code § 63003; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Amount. Notwithstanding any other requirement of this
Chapter, each applicant must furnish with its proposal a nonrefundable
filing fee in the form of a certified or cashier's check made payable
to the City of Santa Monica, in an amount as may be established by
the City at the time of application. No proposal for a franchise shall
be considered without receipt of said check.
(b)
Deposit and Use. All checks received will be deposited
to an account of the City and will serve to recover all expenses incurred
by the City in the preparation and granting of a franchise, the execution
of a franchise, and regulation of a franchise pursuant to this Chapter.
Said expenses shall include, but not be limited to, any and all administrative,
engineering, publication, or legal costs, and consultant's expenses,
incurred in connection with the processing, evaluation, and preparation
of documents relating to the franchise.
(c)
Additional Fee. In the event that expenses exceed the
total amount of filing fees collected from the applicants, an applicant
awarded a franchise shall pay to the City the excess amount.
(Prior code § 63004; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Solicitation of Proposals. The City may, by advertisement
or any other means, solicit and call for applications for cable system
franchises, and may determine and fix any date upon or after which
the same shall be received by the City, or the date before which the
same must be received, or the date after which the same shall not
be received, and may make any other determinations and specify any
other times, terms, conditions, or limitations respecting the soliciting,
calling for, making, and receiving of such applications. The terms
and conditions for application shall be described in a document called
"Request for Proposals."
(b)
Compliance with City Requirements. Any person submitting
a proposal for a cable system in response to the City's Request for
Proposals shall provide all information required by this Chapter and
all other information requested by the City's Request for Proposals
or otherwise required by City. Each proposal shall be responsive to
the questions soliciting the information, and shall completely, accurately,
and materially supply all of the information so solicited. Any misrepresentation,
failure, neglect, or refusal to provide any of such information may,
at the discretion of City, render a proposal invalid. The requested
information must be complete and verified as true by the applicant.
(c)
Property of City. All proposals received by the City
from an applicant shall become the sole property of City and shall
become public documents.
(d)
Applicant Responsibility. Before submitting a proposal,
each applicant shall be solely responsible for and must:
(1)
Be familiar with local conditions that may in any manner affect performance
under the franchise, including, but in no event limited to, community
and institutional telecommunication needs, relevant demographics,
topographics, pole attachment policies of appropriate utility authorities,
undergrounding, and subscriber desires.
(2)
Be familiar with federal, state, and local laws, ordinances, rules,
and regulations affecting performance under the franchise.
(3)
Carefully correlate and relate all information and observations with
the requirements of this Chapter and the Request for Proposal documents.
(e)
Referral to City Manager. Upon receipt of any application
for franchise, the City Manager shall prepare and submit a report
to the City Council which includes recommendations respecting such
application. The City will evaluate all proposals that have complied
with its requirements. All applicants that have met the City's qualifications
in the Request for Proposals and have submitted proposals on the required
forms will be offered the opportunity to make a formal presentation
to the City Council in support of their applications.
(f)
Investigations. The City may make such investigations
as it deems necessary to determine the ability of the applicant to
perform under the franchise, and the applicant shall furnish to the
City all such information and data for this purpose as the City may
request. The City reserves the right to reject any proposal if the
evidence submitted by, or investigation of such applicant fails to
satisfy the City that such applicant is properly qualified to carry
out the obligations of the franchise agreement, comply with the provisions
of this Chapter, or to satisfactorily construct and operate the system.
Proposals that modify or place conditions upon requirements stated
in the City's Request for proposals may be rejected by the City.
(g)
Rejection. The City may reject any and all applications
from whatever source and whenever received and the City also reserves
the right to waive any or all requirements where the best interests
of the City may be served, and may, if it so desires, request new
or additional proposals.
(h)
Public Comment. If, upon receiving the City Manager's
report, the City Council shall determine to further consider the application,
it shall pass a resolution setting a public hearing for the consideration
of applications, fixing and setting forth a day, hour, and place certain
when and where any persons having any interest therein or objections
may file written comments and appear before the City Council and be
heard, and directing the City Clerk to publish said resolution at
least once within 10 days of the passage thereof in a newspaper of
general circulation within the City.
(i)
Consideration. In making any determination hereunder
as to any application for a new franchise, the City Council may consider
factors including, but not limited to, the quality of the service
proposed, income to the City, experience, character, background, and
financial responsibility of any applicant, and its management and
owners, technical and performance quality of equipment, willingness
and ability to meet construction and physical requirements, to meet
all requirements set forth in this Chapter, and to abide by all purpose
and policy conditions, franchise limitations and requirements, and
any other considerations deemed pertinent by the City Council for
safeguarding the interests of the City and the public.
(j)
Determination. At the time set for the hearing, or at
any adjournment thereof, the City Council shall proceed to hear all
protests. The City Council shall then make one of the following determinations:
(k)
Additional Information. The City Council may at any
time demand, and applicants shall provide, such supplementary, additional,
or other information as the City Council may deem reasonably necessary
to determine whether the requested franchise should be granted.
(l)
Awards Based on Merit. It is the intention of the City
to award any cable franchise on the basis of merit of proposals. To
this end, any communications with City Councilmembers by those wishing
to submit proposals for a cable franchise should be limited to public
sessions. Requests for information should be directed to the City
Manager.
(m)
City Council Decisions Final. Any decision of the City
Council concerning selection of a franchise pursuant to this Chapter
shall be final.
(Prior code § 63005; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Successful applicants chosen by the City Council will be granted
the right and privilege to construct, erect, operate, and maintain
in, upon, along, across, above, over, and under the streets, alleys,
public ways, and public places now laid out or dedicated and all extensions
thereof, and additions thereto, in the City poles, wires, cables,
underground conduits, manholes, and other cable conductors and fixtures
necessary for the maintenance and operation in the City of Santa Monica
of a cable system, to be used for the sale and distribution of cable
services to the residents of the City.
(b)
Any privilege claimed under any such franchise by the Grantee in
any street or other public property shall be subordinate to any prior
lawful occupancy of the streets or other public property.
(c)
Insofar as it is not inconsistent with or otherwise preempted by
Federal or State regulations, the City Council retains all authority
to regulate all telecommunications services provided by a Grantee
to the extent necessary to assure the delivery of proposed services,
if any, and that such services are in compliance with all regulatory
provisions of this Chapter and other applicable laws.
(Prior code § 63006; added
by Ord. No. 1407CCS, adopted 4/28/87)
The renewal of any franchise granted pursuant to this Chapter
shall be subject to the terms of applicable law and to such terms
and conditions as may be established by the City.
(Prior code § 63007; added
by Ord. No. 1407CCS, adopted 4/28/87)
For the purpose of operating and maintaining a cable communications
system in the franchise area, and subject to the provisions of Section
6.108.10.110 herein, the Grantee may erect, install, construct, repair,
replace, reconstruct, and retain in, on, over, under, upon, across,
and along the public streets and ways within the franchise area such
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments, and other property and equipment
as are necessary and appurtenant to the operation of the cable communications
system. Prior to construction or alteration, however, Grantee shall
in each case file plans with the appropriate City agencies and local
utility companies, and receive written approval before proceeding.
Grantee shall in any event comply with all applicable City construction
codes and procedures.
(Prior code § 63008; added
by Ord. No. 1407CCS, adopted 4/28/87)
The term of any franchise and all rights, privileges, obligations,
and restrictions pertaining thereto shall be as specified in the franchise
agreement unless terminated sooner as hereinafter provided. The effective
date of the franchise shall be the date of execution of the franchise
agreement by City, subject to prior execution by Grantee. In no event
shall the term of any franchise exceed 20 years.
(Prior code § 63009; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Transfer of Franchise. Any franchise granted hereunder
shall be a privilege to be held for the benefit of the public. Said
franchise cannot in any event be sold, transferred, leased, assigned,
or disposed of, including, but not limited to, by force or voluntary
sale, merger, consolidation, receivership, change of management, or
other means without the prior written consent of City, expressed by
City Council resolution, and then only under such conditions as City
may establish. City consent shall not be unreasonably withheld.
(b)
Ownership and Control. Grantee shall promptly notify
in writing City of any proposed change in, or transfer of, or acquisition
by any other party of, control of Grantee. The word "control" as used
herein is not limited to major stockholders, but includes actual working
control in whatever manner exercised. A rebuttable presumption that
a transfer of control has occurred shall arise upon the acquisition
or transfer by any person or group of persons of 10% or more of the
beneficial ownership interest of Grantee. Every change, transfer,
or acquisition of control of Grantee shall make the franchise subject
to cancellation unless and until City shall have consented thereto.
For the purpose of determining whether it shall consent to such change,
transfer, or acquisition of control, City retains the right to request
such information as it deems appropriate to determine the prospective
party's qualifications, and Grantee shall assist City in any such
inquiry.
(c)
Grantee Responsibility. In seeking City's consent to
any change in ownership or control, Grantee shall have the responsibility:
(1)
To show to the satisfaction of City whether the proposed purchaser,
transferee, or assignee which shall include all officers, directors,
and all persons having a legal or equitable interest in 5% or more
of its voting stock:
(i)
Has ever been convicted or held liable for acts involving moral
turpitude including, but not limited to, any violation of Federal,
State, or local law or regulations, or is presently under an indictment,
investigation, or complaint charging such acts.
(ii)
Has ever had a judgment in an action for fraud, deceit, or misrepresentation
entered against it, her, him, or them by any court of competent jurisdiction.
(iii)
Has pending any legal claim, lawsuit, or administrative proceeding
arising out of or involving a cable system.
(2)
To establish, to the satisfaction of City, the financial capability
of the proposed transferee to operate the franchised system, based
on the proposed transferee's aggregate financial commitments and resources.
City may request, and Grantee shall provide, all reasonable financial
data relative to the transfer.
(3)
To establish to the satisfaction of City that the capability of the
proposed transferee is such as shall enable it to maintain and operate
the cable system for the remaining term of the franchise under the
existing franchise term, and, upon City request, to provide adequate
security for this purpose.
(d)
The Grantor agrees that any financial institution having a pledge
of the franchise or its assets for the advancement of money for the
construction and/or operation of the franchise shall have the right
to notify the Grantor that it or its designee satisfactory to the
Grantor will take control and operate the cable communications system,
in the event of a Grantee default in its financial obligations. In
such event, the financial institution shall submit a plan for operation
that will insure continued service and compliance with all franchise
requirements during the term the financial institution exercises control
over the system. The financial institution shall not exercise control
over the system for a period exceeding one year unless extended by
the Grantor in its discretion and during said period of time it shall
have the right to petition the Grantor to transfer the franchise to
another Grantee. If the Grantor finds that such transfer, after considering
the legal, financial, character, technical, and other public interest
qualifications of the applicant are satisfactory, the Grantor shall
transfer and assign the rights and obligations of such franchise as
in the public interest. The consent of the Grantor to such transfer
shall not be unreasonably withheld.
(e)
Consent to Transfer Subordinate to City's Other Rights. The consent or approval of City to any transfer of the franchise
shall not constitute a waiver or release of the rights of 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)
Necessity for Completion of Construction. In the absence
of extraordinary circumstances, City shall not approve any transfer
or assignment of the franchise prior to completion of construction
of the proposed system.
(g)
Right to Purchase Cable System. The franchise agreement
shall provide the terms and conditions under which the City has the
right to purchase the cable system, if and when it is placed on the
market for sale.
(h)
Successor in Interest. In no event shall a transfer
of ownership or control be approved without the successor in interest
becoming a signatory to the existing franchise agreement, or a modified
franchise agreement approved by City.
(Prior code § 63010; added
by Ord. No. 1407CCS, adopted 4/28/87)
In accepting a franchise, Grantee acknowledges that its rights
hereunder are subject to the police powers of City 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 City pursuant to such power.
Any conflict between the provisions of this ordinance and any
other present or future lawful exercise of 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 any cable communications system franchise which contains
provisions inconsistent with this ordinance shall prevail only if
upon such exercise City finds any emergency exists constituting a
danger to health, safety, property, or general welfare of such exercise
if mandated by law.
(Prior code § 63011; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Annual Franchise Payment. A Grantee of a franchise hereunder
shall pay to City an annual fee in an amount as designated in the
franchise agreement. Such payment shall be in addition to any other
prescribed fees, including, but not limited to, business license and
permit fees, and shall commence as of the effective date of the franchise.
City, upon request, shall be furnished a statement, either audited
and certified by an independent Certified Public Accountant or certified
by a financial officer of Grantee, reflecting the total amounts of
gross revenues and all payments, deductions and computations for the
period covered by the payment. City shall have the right to conduct
an independent audit of Grantee's records, and if such audit indicates
a franchise fee underpayment of 2% or more, Grantee shall assume all
reasonable costs of such an audit.
(b)
Acceptance by City. No acceptance of any payment by
Grantee shall be construed as a release or as an accord and satisfaction
of any claim City may have for further or additional sums payable
as a franchise fee under this ordinance or for the performance of
any other obligation of the Grantee. All amounts paid shall be subject
to audit and recomputation by City.
(c)
Payment Schedule. Franchise fee payments shall be made
in accordance with the schedule indicated in the franchise agreement.
(d)
Franchise Fee Itemization. Any Grantee "pass through"
or itemization of franchise fee costs on subscriber's bills shall
be in accordance with Federal law.
(e)
Failure to Make Required Payment. In the event that
any franchise payment or recomputed amount is not made on or before
the dates specified in the franchise agreement, Grantee shall pay
as additional compensation:
(1)
An interest charge, computed from such due date, at an annual rate
equal to the maximum interest rate which could lawfully be charged
by a private lender in effect upon the due date.
(2)
A sum of money equal to 5% of the amount due in order to defray those
additional expenses and costs incurred by City by reason of delinquent
payment.
(Prior code § 63012; added
by Ord. No. 1407CCS, adopted 4/28/87)
