A.
The
city council has determined it is in the best interest of and consistent
with the convenience and necessity of the city to grant franchises
to companies desiring to provide cable communications services within
the confines of the city, and on the terms and conditions hereinafter
set forth, and as may be further described in each franchise agreement.
B.
The
city council has identified the purpose of this chapter to be as follows:
1.
To provide a procedure for the granting of non-exclusive franchises
for providing cable communications in the city;
2.
To regulate the erection, construction, reconstruction, installation,
operation, maintenance, dismantling, testing, repair and use of cable
communications systems in, upon, along, across, above, over or under
or in any manner connected with the streets, public ways or public
places within the jurisdiction of the city as now or in the future
may exist;
3.
To provide for the payment of certain franchise fees and other valuable
considerations to the city which, among other purposes, may be used
to regulate the construction and operation, use and development of
such a system within the city;
4.
To provide conditions under which such franchised system or systems
will serve present and future needs of government, public institutions,
commercial enterprises, public and private organizations, and the
citizens and general public of the city; and
5.
To provide remedies and prescribe penalties and liquidated damages
for any violation of this chapter and the terms and conditions of
franchises granted pursuant thereto.
(Ord. 782 § 1, 1983)
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meanings given in this
section. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include
the singular number, and words in the singular number include the
plural number, and the use of any gender shall be applicable to all
genders whenever the sense requires. The words "shall" and "will"
are mandatory, and the word "may" is permissive. Words not defined
shall be given their common and ordinary meaning.
means a single channel dedicated in whole or in part for
local programming which is not originated by a company.
means any or all of the different combinations of basic program
services as described in a company's proposal, including the delivery
of broadcast signals, satellite signals, local origination and access
signals, covered by the regular monthly charges paid by subscribers,
excluding the optional premium services for which separate charges
are made.
means programming carried on a cable system, exclusive of
broadcast signals, whether originated by the cable operator or any
other party.
means a system of antennas, cables, wires, lines, towers,
waveguides, or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing audio, video and other forms
of electronic or electrical signals, located in the city. This definition
shall not include any such facility that serves or will serve only
subscribers in one or more multiple-unit dwellings under common ownership,
control or management, and does not use city rights-of-way.
means the city of San Dimas in its present incorporated form
or as it may be changed by annexation.
"Completion of construction," "complete system construction"
or "satisfactorily complete and fully activate" means that strand
has been put up and all necessary cable (including trunk and feeder
cable) has been lashed; or, for underground construction, that all
cable has been laid and trenches refilled, all road services restored
and, except as prevented by weather conditions or delayed because
of seasons, landscaping restored; that all amplifier housings and
modules have been installed (including modules for return path signals);
that power supplies have been installed and all bonding and grounding
has been completed; that all necessary connectors, splitters and taps
have been installed; that construction of the head-ends or hubs have
been completed and all necessary processing equipment has been installed;
and that any and all other construction necessary for the system to
be ready to deliver cable service to subscribers has been completed.
Proof of performance tests shall have been conducted on each otherwise
completed segment of the cable system before direct marketing of that
segment begins. It is expected that segments of less than the entire
system will be activated and proofed when completed. Construction
of any segment or of the entire system will not be considered complete
until proof-of-performance tests have been conducted on such segment
(or in the case of the entire system, on all segments of the cable
system) and any problems found during testing have been corrected.
The term "completion of construction" does not include marketing and
installation of subscriber service.
means the governing body of the city of San Dimas.
means to make available channel space or equipment for exclusive
use of the designated user, subject to the authority of the city council
to authorize reassignments of channels.
means the party or parties to which a franchise under this
chapter is granted by the council, and its or their lawful successors
and assigns.
means all cash, credits, property of any kind or nature, or other consideration received directly or indirectly by a grantee, its affiliates, subsidiaries, parent and any person in which grantee has a financial interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable communications services by grantee within the city or in any way derived from the operation of its system, including, but not limited to, basic service, monthly fees, optional service or pay cable fees, installation and reconnection fees, leased channel fees, converter rentals or sales, studio rental, and advertising revenues. These gross revenues shall not be reduced for any purposes other than provided in this chapter, and shall be the basis for computing the fee imposed pursuant to Section 5.60.140. These gross revenues shall not include any taxes on services furnished by grantee imposed upon any subscriber or user by the state, city or other governmental unit and collected by grantee on behalf of the governmental unit, converter deposits, or refunds to subscribers by the grantee.
means with respect to a particular segment, group of segments
or the entire cable system, as the case may be, that all proposed
services and system capabilities as stated in the proposal are available
and/or in place, construction has been completed (see subsection F
of this section), and the completed segment or segments in question
or the entire cable system, as the case may be, has been activated.
means programming locally produced by the company.
refers to a formal response by a qualified cable company
to a specific invitation by the city asking for proposals in accordance
with city specifications to provide cable communications services
to residents, businesses, industries and institutions in the city.
means a recipient of cable communications service.
means the transmission of telecommunications signals from
subscriber locations or other points throughout the system back to
the system's control center, as well as transmission of signals from
the control center to subscriber locations.
means a party utilizing a cable communications system channel
for purposes of production or transmission of material to subscribers,
as contrasted with receipt in a subscriber capacity.
The terms "will be available," "will be equipped," "will
use," "will be designed," "will perform," "will be utilized," "will
permit," "will allow," "will be activated," "will be initially connected,"
"will be capable," "will provide," "will include," "will employ,"
"will be established," "will be able," "will be implemented," "will
be delivered," "will utilize" and other similar uses of terms in a
company's proposal denoting the activation of cable service or the
delivery of equipment, facilities or services, shall be interpreted
to mean delivery or accomplishment at a date no later than the initial
activation of service (see subsection K of this section) unless otherwise
expressly and clearly stated or qualified in the company's proposal
to mean a more specific or different time.
(Ord. 782 § 1, 1983)
A.
Content.
Each application for a franchise to construct, operate or maintain
any cable communications system in this city shall be filed with the
city clerk, and shall be on forms prescribed by the city. The forms
will require, but not be limited to, the following information:
1.
The name, address, and telephone number of the applicant;
2.
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:
a.
The names, residence and business addresses of all officers, directors
and associates of the applicant,
b.
The names, residence and business address of all officers, persons
and entities having any share of the ownership of the applicant, and
the respective ownership share of each such person or entity,
c.
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
communications systems owned or controlled by the applicant, its parent
and subsidiary, and the areas served thereby,
d.
A detailed description of all previous experience of the applicant
in providing cable television system service and in related or similar
fields,
e.
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, and
f.
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 the city.
g.
A statement identifying, by place and date, any other cable communications
system franchises awarded to the applicant, its parent or subsidiary;
the status of the 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;
3.
A detailed description of the proposed plan of operation of the applicant
which shall include, but not be limited to, the following:
a.
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,
b.
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,
c.
A detailed, informative, and referenced statement describing the
actual equipment and operational standards proposed by the applicant,
and that such standards of operations are in compliance with or exceed
those contained in Title 47, Subpart K (Section 76.601 et seq.), of
the Rules and Regulations of the Federal Communications Commission,
d.
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber,
and
e.
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;
4.
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;
5.
Any other details, statements, information or references pertinent
to the subject matter of such application which shall be required
or requested by the council, or by any other provision of law.
(Ord. 782 § 1, 1983)
A.
Amount.
Notwithstanding any other requirement of this chapter, each applicant
must furnish with its proposal a nonrefundable filing fee in the amount
of four thousand dollars by certified or cashier's check made payable
to city of San Dimas. No proposal for a franchise shall be considered
without receipt of the 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.
The 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 actual expenses exceed the total amount of
filing fees collected from the applicants, an applicant awarded a
franchise shall pay to the city all actual expenses and costs within
sixty days after the city has provided written itemization of the
expenses.
(Ord. 782 § 1, 1983)
A.
Solicitation
of Proposals. The council may, by advertisement or any other means,
solicit and call for applications for cable communication 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.
Referral
to City Manager. Upon receipt of any application for franchise, the
council shall refer the same to the city manager, who shall prepare
or cause to be prepared a report, including recommendations respecting
such application, and cause the same to be completed and filed with
the council.
C.
Public
Comment. If the council shall determine to further consider the application,
it shall pass a resolution setting a public hearing for the consideration
of competing 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 council
and be heard, and directing the city clerk to publish the resolution
at least once within ten days of the passage thereof in a newspaper
of general circulation within the city.
D.
Consideration.
In making any determination hereunder as to any application for a
new franchise, or renewal thereof, the council shall give due consideration
to the quality of the service proposed, rates to subscriber, 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 and 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 council for safeguarding the interests of the city
and the public.
E.
Determination.
At the time set for the hearing, or at any adjournment thereof, the
council shall proceed to hear all protests. Thereafter, the council
shall make one of the following determinations:
F.
Rejection.
The council may reject any and all applications from whatever source
and whenever received and may, if it so desires, request new or additional
proposals.
G.
Additional
Information. The council may at any time demand, and applicants shall
provide, such supplementary, additional or other information as the
council may deem reasonably necessary to determine whether the requested
franchise should be granted.
H.
Infraction.
Any person submitting a proposal for a cable communications system
in response to the city's request for proposals shall provide all
information required by this chapter and all other information requested
by city's request for proposals or otherwise required by the 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
option of the city, render a proposal invalid. The requested information
must be complete and verified as true by the applicant.
I.
Property
of City. All proposals received by the city from an applicant shall
become the sole property of the city.
J.
Rejection
and Waiver. The city reserves the right to waive any and all formalities
and accept proposals containing minor variances where the best interest
of the city may be served.
K.
Applicant
Responsibility. Before submitting a proposal, each applicant shall
be solely responsible for and must:
1.
Examine this chapter and the request for proposal documents thoroughly;
2.
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;
3.
Be familiar with federal, state and local laws, ordinances, rules
and regulations affecting performance under the franchise; and
4.
Carefully correlate all observations with the requirements of this
chapter and the request for proposals documents.
L.
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. Conditional proposals shall not be accepted.
M.
Awards
Based on Merit. It is the intention of the city to award any cable
communications franchise on the basis of merit of proposals. To this
end, any communications with the city council by those wishing to
submit proposals for a cable communications franchise should be limited
to public sessions. Requests for information should be directed to
the office of the city manager. Proposals will not be evaluated on
the basis of ownership by individuals, institutions and community
agencies in corporations submitting cable communications franchise
proposals.
N.
Council
Decisions Final. Any decision of the city council concerning selection
of a franchisee pursuant to this chapter shall be final.
(Ord. 782 § 1, 1983)
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 a cable communications
system, to be used for the sale and distribution of cable services
to the residents of the city.
(Ord. 782 § 1, 1983)
A.
Except in the case of renewal of a franchise, the duration of the rights, privileges and authorizations granted in a franchise agreement shall be fifteen years from the date a franchise is awarded. A franchise may be renewed by the city upon application of the grantee pursuant to the procedure established in subsection B of this section, and in accordance with then applicable law.
B.
Renewal
Period.
1.
At least fifteen months prior to the expiration of a franchise, grantee
shall inform the city in writing of its intent to seek renewal of
the franchise and thereupon file with the city a proposal for services.
2.
Upon receipt of grantee's notice of intent to renew the franchise,
the city shall determine whether or not to undertake negotiations
with grantee to renew the franchise. The city may determine not to
undertake such negotiations if the city council determines after due
notice and public hearing that the grantee has not complied with the
conditions of nor performed its obligations under the franchise agreement
to the satisfaction of the city and its subscribers. In making this
determination, the city shall consider technical developments and
performance of the system, programming, other services offered, cost
of services, and any other particular requirements set forth in this
chapter. Also, the city shall consider the grantee's proposal and
its annual reports made to the city and the FCC and industry performance
and current state-of-the-art of broadband communications on a national
basis.
3.
If the city undertakes negotiations with the grantee and such negotiations are not resolved to the city's satisfaction within six months thereafter, or if at any time during such period the city council makes the determination set forth in the preceding subsection 2 hereof, after due notice and public hearing thereon, then the city may solicit bids from other potential cable television system operators without any further liability to the grantee.
4.
The city council may grant the grantee extensions of the time periods
established above in this section if the city council determines that
such extensions will promote the likelihood of a satisfactory franchise
renewal.
5.
The city council may grant a franchise renewal only after a duly
noticed public hearing has been held to determine if such renewal
is in the public interest. Such public hearing shall consider the
grantee's performance during the franchise term and the grantee's
new proposal, including technical developments and performance of
the system, programming, other services offered, cost of services,
industry performance, the current state-of-the-art of broadband communications
on a national basis and any other particular requirements of this
chapter.
6.
The renewal of a franchise may be granted by the city council upon
a term of at least ten years, but not more than fifteen years, as
the city council may determine in its sole discretion.
(Ord. 782 § 1, 1983; Ord. 805 § 11, 1984)
A franchise is for the present territorial limits of the city
and for any area henceforth annexed thereto during the franchise term.
(Ord. 782 § 1, 1983)
The grantee shall provide cable communication services throughout
the entire franchise area pursuant to the provisions of this chapter
and the franchise agreement, and shall keep a current file of all
complaints received by the grantee for at least the three most-recent
years. This record shall be maintained during the entire life of the
franchise and be available for public inspection at the local office
of the grantee during regular office hours.
(Ord. 782 § 1, 1983)
A.
Construction
Map and Schedule.
1.
Map and Plan. Grantee shall submit a construction plan which shall
be incorporated by reference and made a part of the franchise agreement.
The plan shall consist of a map of the entire franchise area and shall
clearly delineate the following:
a.
The areas within the franchise area where the cable television system
will be initially available to subscribers, including a schedule of
construction for each year of construction;
b.
Areas within the franchise area where extension of the cable communication
system cannot reasonably be done due to lack of present or planned
development or other similar reasons, with the areas and the reasons
for not serving them clearly identified on the map.
2.
Early Construction and Extension. Nothing in this section shall prevent
the grantee from constructing the system earlier than planned. However,
any delay in the system construction beyond the times specified in
the plan report timetable shall require application to and consent
by the council.
4.
Commencement of Construction. Construction in accordance with the
plan submitted by grantee shall commence as soon after the grant and
acceptance of a franchise as is reasonably possible. Failure to proceed
expeditiously shall be grounds for revocation of a franchise. Failure
to proceed expeditiously shall be presumed in the event construction
is not commenced within twelve months of the grant and acceptance
of a franchise.
5.
Underground and Overhead Construction.
a.
In all sections of the city where all the cables, wires or other
like facilities of public utilities are placed underground, the grantee
shall place its cables, wires or other like facilities underground
to the maximum extent that the existing technology reasonably permits
the grantee to do so. If at any time the city determines that existing
wires, cable or other like facilities of public utilities anywhere
in the city shall be changed from an overhead to an underground installation,
the grantee shall also, at grantee's sole expense, convert its system
to an underground installation.
b.
In areas of the city where electrical/telephone systems are installed
on poles aboveground, the grantee shall have the option of installing
the system in like manner aboveground or underground.
6.
Additional Mandatory Extension. Extension of the system into any
areas not specifically treated in the plan shall nonetheless be required
if the terms of any of the following conditions are met:
a.
Mandatory Extension Rule. Grantee shall extend system, upon request,
to any contiguous area not designated for initial service in the plan
when potential subscribers can be served by extension of the system
past dwelling units equivalent to a density of fifty homes per mile
of street. Extension shall be at grantee's cost. If undergrounding
is required by regulation, grantee must make installation at grantee's
expense. Where aerial extension is allowed by regulation but underground
installation is requested by benefited subscribers, the cost of undergrounding
that exceeds estimated aerial extension cost may be charged to benefited
subscribers.
b.
Early Extension. In areas not meeting the requirements for mandatory
extension of service, grantee shall provide, upon the request of five
or more potential subscribers desiring service, an estimate of the
costs required to extend service to those subscribers. Grantee shall
then extend service upon request of the potential subscribers according
to the rate schedule contained within the franchise agreement. Grantee
may require advanced payment or assurance of payment satisfactory
to grantee of the amount which represents the pro rata share of the
subscribers actually receiving the extended service. In the event
that additional subscribers desire service and mandatory extension
is not required pursuant to the mandatory extension rule stated in
the preceding subsection, grantee may charge such new subscribers
their pro rata share of the installation cost determined according
to the rate schedule contained within the franchise agreement. The
current fee owners of the properties who originally paid the costs
of installation shall be reimbursed from the moneys collected for
their pro rata share of the original installation costs. The purpose
of this provision is to assure all subscribers on any given line extension
shall make the same effective contribution to the line extension.
c.
New Development Undergrounding.
i.
In cases of new construction or property development where utilities
are to be placed underground, the developer/property owner shall give
grantee reasonable notice of such construction or development, and
of the particular date on which open trenching will be available for
grantee's installation of conduit and/or cable. Grantee shall also
provide specifications as needed for trenching.
ii.
Costs of trenching and easements required to bring service to the
development shall be borne by the developer/property owner; except
that, if grantee fails to install its conduit and/or cable within
five working days of the date the trenches are available, as designated
in the notice given by the developer or property owner, then should
the trenches be closed after the five-day period, the cost of new
trenching is to be borne by grantee. Except for the notice of the
particular date on which trenching will be available to grantee, any
notice provided to grantee by city of a preliminary plat request shall
satisfy the requirement of reasonable notice if sent to the local
general manager or system engineer of grantee prior to approval of
the preliminary plat request.
d.
Special Agreements. Nothing herein shall be construed to prevent
grantee from serving areas not covered under this section upon agreement
with developers, property owners or residents.
7.
Aerial Drops Exceeding One Hundred Fifty Feet. With respect to requests
for connection requiring an aerial drop-line in excess of one hundred
fifty feet, the grantee must extend and make available cable television
service to such residents at a connection charge not to exceed the
actual installation costs incurred by the grantee for this distance
exceeding one hundred fifty feet.
(Ord. 782 § 1, 1983; Ord. 805 § 14, 1984)
A.
Compliance
with Construction and Technical Standards. Grantee shall construct,
install, operate and maintain its system in a manner consistent with
all laws, ordinances, construction standards, governmental requirements,
FCC technical standards, and detailed standards submitted by grantee
as part of its application, which standards are incorporated by reference
in the franchise agreement. In addition, grantee shall provide the
city, upon request, with a written report of the results of grantee's
annual proof-of-performance tests conducted pursuant to FCC standards
and requirements. If city desires, city may schedule a public hearing
to review the results of grantee's performance tests; and public hearing
to be conducted after the city has provided fourteen days' written
notice of the same to grantee and published notice of the public hearing
in a local newspaper at least once. Grantee shall pay the costs incurred
by the city for any technical assistance deemed necessary by the city
for obtaining independent verification of technical compliance with
all standards.
B.
Additional
Specifications.
1.
Construction, installation and maintenance of the cable communications
system shall be performed in an orderly and workmanlike manner. All
cables and wires shall be installed, where possible, parallel with
and in the same manner as electric and telephone lines. Multiple cable
configurations shall be arranged in parallel and bundled with due
respect for engineering considerations. Underground installations
shall be in conformance with applicable codes.
2.
The grantee shall maintain equipment capable of providing standby
power for head-end, transportation and trunk amplifiers for a minimum
of four hours.
3.
Grantee shall at all times comply with:
4.
In any event, the system shall not endanger or interfere with the
safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
(Ord. 782 § 1, 1983)
A.
A
franchise shall not be assigned or transferred, either in whole or
in part, or leased, sublet, or mortgaged in any manner, nor shall
title thereto, either legal or equitable, or any right, interest or
property therein, pass to or vest in any person without the prior
written consent of the city which consent shall not be unreasonably
withheld. The proposed assignee must show technical ability, financial
capability, legal qualifications and general character qualifications,
as determined by the city, and must agree to comply with all provisions
of the franchise. The city shall be deemed to have consented to a
proposed transfer or assignment in the event its refusal to consent
is not communicated in writing to grantee within one hundred twenty
days following receipt of written notice of the proposed transfer
or assignment.
B.
The
grantee shall promptly notify the city of any actual or proposed change
in, or transfer of, or acquisition by any other party of, control
of the grantee. The word "control" as used in this section is not
limited to major stockholders, but includes actual working control
in whatever manner exercised. Every change, transfer or acquisition
of control of the grantee shall make the franchise subject to cancellation
unless and until the city shall have consented thereto, which consent
will not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of
control, the city may inquire into the qualifications of the prospective
controlling party, and the grantee shall assist the city in any such
inquiry.
C.
A
rebuttable presumption that a transfer of control has occurred shall
arise upon the acquisition or accumulation by any person or group
of persons of twenty percent of the voting interest of the grantee.
D.
The
consent or approval of the city council to any transfer of the franchise
shall not constitute a waiver or release of the rights of the city
in and to the streets and public rights-of-way, and any transfer shall,
by its terms, be expressly subordinate to the terms and conditions
of a franchise.
E.
In
any absence of extraordinary circumstances, the city will not approve
any transfer or assignment of a franchise prior to substantial completion
of construction of the proposed system.
F.
Before
the grantee may accept an offer to purchase a cable communications
system for which a franchise has been granted hereunder, the grantee
must offer the system to the city for purchase on the same price,
terms and conditions. The city shall be given at least thirty days
to evaluate and accept such offer.
G.
The
city council reserves the right to review the purchase price of any
transfer or assignment of a cable system. Any assignee to a franchise
shall expressly agree that any negotiated sale value which the council
(acting upon professional advice) deems unreasonable will not be considered
in the rate base for any subsequent request for rate increases.
H.
In
no event shall a transfer of ownership or control be approved without
the successor in interest becoming a signatory to the franchise agreement.
(Ord. 782 § 1, 1983; Ord. 805 §§ 1, 2, 1984)
A.
Initial
Rates.
1.
The grantee shall establish initial rates for its services in accordance
with the rates contained in grantee's application for a franchise.
The initial rate shall be adopted by resolution of the city council.
2.
Initial basic service rates shall be effective until one year following
completion of construction.
B.
Minimum Timing of Requests. The grantee may initiate a rate change at any time after the period stated in subsection A2 of this section, provided not more than one request may be made by the grantee in any twelve-month period.
C.
Rates
Subject to Review. The council shall have the authority to review
the subscriber contract document, if any, and review the following
rates, fees and charges:
1.
Rates for the provision of basic service to subscribers, whether
residential or commercial;
2.
Rates for the connection, installation and reinstatement (including
converters) of basic service, whether residential or commercial;
3.
Rates for installation, connection and reinstatement of basic service
where unusual circumstances exist, such as remote or inaccessible
subscriber locations or subscriber requested underground service drops;
4.
Any other rates for services that may become subject to local regulation.
D.
The
grantee may petition the council for a change in rates by filing a
proposed rate schedule with the city clerk, which petition shall include
the justification(s) for the proposed schedule. The petition shall
be filed at least sixty days prior to the requested implementation
date of the rate change. One copy of the petition shall remain on
file with the city clerk and be open for public inspection.
E.
Within
sixty days of the filing of the petition for rate change, the council
shall hold a public hearing to consider the proposed rate change,
at which hearing all persons desiring to be heard, including the grantee,
shall be heard on any matter, including but not limited to, the performance
of the franchise, the grantee's services, and the proposed new rates.
F.
Upon notice of any public hearing as provided in subsection E, the grantee shall notify its subscribers of the time, place and subject matter of the public hearing by announcement on at least two channels of its system between the hours of seven p.m. and nine p.m. for at least five consecutive days prior to the hearing. In addition, notice of any public hearing shall be published in a newspaper of local general circulation at least once, but not less than seven days before the public hearing, and direct-mail notice to all subscribers by the grantee as a special mailing or attached to monthly bill.
G.
1.
Within sixty days after the hearing, the council shall render a written
decision on the grantee's petition, either accepting, rejecting, modifying
or deferring the same and reciting the basis of its decision. The
council shall consider, inter alia, the following factors in approving
or disapproving the petition:
a.
The ability of the grantee to render system services and to derive
a reasonable profit therefrom under the existing rate schedule and
under the proposed rate schedule;
b.
The revenues and profits derived from system services;
c.
The efficiency of the grantee;
d.
The quality of the service offered by the grantee;
e.
The original cost of the system, less depreciation;
f.
A fair rate of return with respect to the cost of borrowing and the
rates of return on investments having similar risks to that of cable
TV;
g.
The extent to which the grantee has adhered to the terms of this
chapter and the franchise agreement;
h.
Fairness to city residents, subscribers and users.
2.
The council shall not consider any valuation based upon a franchise
or the grantee's goodwill, and these items of value shall neither
be amortized as an expense nor shall a return be paid on them.
H.
If
the council fails to adopt a resolution either accepting, rejecting,
modifying or deferring grantee's petition within sixty days after
the conclusion of the hearing, the grantee shall thereafter be entitled
to put its proposed new rates into effect on a provisional basis;
provided that, it shall keep a full and accurate accounting of all
income resulting from the provisional rates and shall be obliged for
a period of sixty days thereafter to refund the amount by which the
provisional rates exceed the rates ultimately established by resolution
of the council. Upon request by the council, the grantee shall provide
a bond or other reasonable surety to insure that possible refunds
due under this subsection shall be promptly made. The bond or surety
shall be in an amount not to exceed the difference between the amount
of revenues generated in sixty days at the previously existing rates
and the amount of revenues expected to be generated in sixty days
at the provisional rates.
I.
If
the city council fails to adopt a resolution either accepting, rejecting,
modifying or deferring grantee's petition within one hundred twenty
days after the conclusion of the hearing, the grantee's petition will
be deemed approved.
J.
The
grantee's petition for a rate increase shall include, but not be limited
to, the following financial reports, which shall reflect the operations
in the city:
K.
The grantee's accounting records applicable to this system shall be available for inspection by the city at all reasonable times. The city shall have access to records of financial transactions for the purpose of verifying burden rates or other indirect costs prorated to this particular operation. The documents listed in subdivisions 1 through 6 of subsection J above shall include sufficient detail and/or footnotes as may be necessary to provide the city with the information needed to make accurate determinations as to the financial condition of the system. All financial statements shall be certified as accurate by an officer of grantee.
(Ord. 782 § 1, 1983; Ord. 805 §§ 3, 11, 12,
13, 1984)
A.
For
the reason that the streets to be used by the grantee in the operation
of its system within the boundaries of the city are valuable public
properties acquired and maintained by the city at great expense to
its taxpayers, and that the grant to the grantee to the streets is
a valuable property right without which the grantee would be required
to invest substantial capital in right-of-way costs and acquisitions,
and because the city will incur costs in regulating and administering
the franchise, and at the option of the council, the city may make
available a portion of the franchise fee to further the development
of public and community uses of cable TV, the grantee shall pay to
the city an amount equal to five percent of grantee's gross annual
revenue from all sources attributable to the operations of the grantee
within the confines of the city. If such fee requires a waiver or
other approval by the FCC, the applicant agrees to support the waiver
and acknowledges this support by its voluntary act of applying for
a franchise.
B.
The
franchise fee and any other cost or penalties assessed shall be payable
quarterly to the office of the city treasurer. The grantee shall file
a complete and accurate verified statement of all collected gross
revenue within the city during the period for which the quarterly
payment is made, and the payment shall be made to the city not later
than thirty days after the expiration of the quarter for which payment
is due.
C.
The
city shall have the right to inspect the grantee's income records
and the right to audit and to recompute any amounts determined to
be payable under this chapter; provided, however, that such audit
shall take place within thirty-six months following the close of each
of the grantee's fiscal years. Any additional amount due to the city
as a result of the audit shall be paid within thirty days following
written notice to the grantee by the city, which notice shall include
a copy of the audit report.
D.
In
the event that any franchise payment or recomputed amount, cost or
penalty is not made on or before the applicable dates heretofore specified,
interest shall be charged daily from such date at the annual rate
equivalent to an average of the existing prime rate of local banking
institutions in the city.
(Ord. 782 § 1, 1983)
A franchise agreement or contract shall include a description
of the grantee's system design and a description of programming and
services being offered, including optional premium services, plus
a description of facilities being proposed for local origination programming,
and facilities being offered to various community institutions. In
the event a program originator ceases providing a service, or in the
event the grantee determines that other programming or cable services
may be more attractive to subscribers, or other users, the grantee
may, in accordance with the following procedure, substitute services.
The system, after the incorporation of such substitute services, shall
maintain a diversity of public service and entertainment programs
and other cable services, and an overall quality level of programming
that is equal to or higher than the programming level before the substitution.
The city council shall have the right to review any substitution of
service the grantee has made and if, after due hearing on notice,
it determines that the above standards have not been met, may require
the grantee to present alternative groupings of programming and services
and require a change to the alternative grouping which most closely
conforms to the above standards. Nothing in a franchise or contract
shall be construed as obligating the grantee itself to produce substitute
programming to replace programming deleted because the originator
or supplier has ceased producing the service where an alternative
comparable service is not available on a comparable basis from a different
third party.
(Ord. 782 § 1, 1983; Ord. 805 § 4, 1984)
A.
All
transmission and distribution structures, lines and equipment erected
by the grantee within the city shall be so located as to cause minimum
interference with the rights and reasonable convenience of property
owners who adjoin any of the streets.
B.
In
case of disturbance of any street, easement or paved area, or other
property, the grantee shall, at its own cost and expense and in a
manner approved by the city, replace and restore such street, easement
or paved area or other property in as good a condition as before the
work involving such disturbance was done.
C.
1.
If at any time during the period of a franchise the city shall lawfully
elect to alter or change the grade of any street, the grantee, upon
reasonable notice by the city, shall remove, relay and relocate its
poles, wires, cables, underground conduits, manholes and other fixtures,
at its own expense.
2.
Any poles or other fixtures placed in or adjacent to any street by
the grantee shall be placed in such manner as to comply with all requirements
of the city.
3.
The grantee shall, at the request of any person holding a moving
permit issued by the city, temporarily raise or lower its wires to
permit the moving of buildings. The expense of such temporary removal
or raising or lowering of wires shall be paid by the person requesting
the same, and the grantee shall have the authority to require such
payment in advance. The grantee shall be given not less than forty-eight
hours' notice to arrange for such temporary wire changes.
4.
The grantee shall have the authority to trim trees upon and overhanging
streets of the city so as to prevent the branches of such trees from
coming in contact with the wires and cables of the grantee; except
that, at the option of the city, such trimming may be done by it or
under its supervision and direction at the expense of the grantee.
5.
At the expiration of the term for which a franchise is granted, or
upon its termination and cancellation, as provided for in this chapter,
the city shall have the right to require grantee to remove at its
own expense aerial plant and all visible facilities attached to underground
plant from all portions of the cable television system located in
all streets, alleys and easements within the city. The city's right
to require such removal may be delayed so long as grantee can demonstrate
to the city that provisions for continuation of services have been
established and that grantee's plant is essential for the continuation
of services. The city may require the grantee to file a bond guaranteeing
that the grantee will pay all costs involved in removing the cable
system from all streets, alleys and easements within the jurisdiction
of the city.
(Ord. 782 § 1, 1983; Ord. 805 § 5, 1984)
A.
It
shall be expressly understood and agreed by and between the city and
any grantee that the grantee shall save the city and its agents and
employees harmless from and against all claims, damages, losses and
expenses, including attorney's fees, sustained by the city on account
of any lawsuit, judgment, execution of judgment, claim or demand by
another individual, corporation or entity whatsoever arising out of,
but not limited to, copyright infringements and all other damages
arising out of the implementation or terms of this chapter, the award
of any franchise, or the installation, operation or maintenance of
a cable system, whether or not any act or omission complained of is
authorized, allowed or prohibited by this chapter and/or any franchise
agreement granted.
B.
The
grantee shall maintain and, by its acceptance of a franchise, specifically
agrees that it will maintain throughout the term of a franchise the
following types of liability insurance insuring the city and the grantee,
with at least the minimum amounts set forth in the request for proposals
and/or franchise agreement of:
1.
Worker's compensation, state, maritime or other laws;
2.
Grantee's liability;
3.
Comprehensive general liability, including bodily injury, property,
damage, and aggregate;
4.
Comprehensive automobile liability, including nonownership and hired-car
coverage as well as owned vehicles. Each insurance policy shall name
the city as an additional insured, and shall ensure performance of
the indemnity provisions set forth in this chapter.
C.
The
insurance policy obtained by the grantee in compliance with this section
must be approved by the city attorney, and such insurance policy,
along with written evidence of payment of required premiums, shall
be filed and maintained with the office of the city clerk during the
term of a franchise and may be changed from time to time to reflect
changing liability limits. A grantee shall immediately advise the
city attorney of any litigation that may develop that would affect
the insurance.
D.
Neither
the provisions of this section nor any damages recovered by the city
under this section, shall be construed to or limit the liability of
a grantee under any franchise issued under this chapter or for damages.
E.
All
insurance policies maintained pursuant to a franchise shall contain
the following endorsement:
It is hereby understood and agreed that this insurance policy
may not be cancelled by the surety nor the intention not to renew
be stated by the surety until 30 days after receipt by the City, by
registered mail, of written notice of such intention to cancel or
not to renew.
(Ord. 782 § 1, 1983)
A.
Within
thirty days after the award of a franchise, a grantee shall file with
the city a letter of credit from a financial institution in the amount
of fifty thousand dollars. The form and content of such letter of
credit shall be approved by the city attorney. The letter of credit
shall be used to insure the faithful performance by a grantee of all
provisions of this chapter and resulting franchise agreement; and
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 a franchise; and the
payment by the grantee of any penalties, liquidated damages, claims,
liens and taxes due the city which arise by reason of the construction,
operation or maintenance of the system.
C.
If
a grantee fails to pay to the city any compensation within the time
fixed in this section; or fails after thirty days' notice to pay to
the city any taxes due and unpaid; or fails to repay the city, within
thirty days, 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 a franchise; or fails after ten days' notice by the city of such
failure, to comply with any provision of a franchise which the city
reasonably determines can be remedied by demand on the letter of credit,
the city may immediately require payment of the amount thereof, with
interest and any penalties, from the letter of credit.
D.
The
rights reserved to the city with respect to the letter of credit are
in addition to all other rights of the city, whether reserved by a
franchise or authorized by law, and no action, proceeding or exercise
of a right with respect to such letter of credit shall affect any
other right the city may have.
(Ord. 782 § 1, 1983)
A.
1.
Within thirty days after the award of a franchise, a grantee shall
obtain and maintain at its cost and expense, and file with the city
clerk, a corporate surety bond in a company authorized to do business
in the state, and found acceptable by the city attorney, in the amount
of five hundred thousand dollars to guarantee the timely construction
and full activation of the CATV system and the safeguarding of damage
to private property and restoration of damages incurred with utilities.
2.
The bond shall provide, but not be limited to, the following condition:
There shall be recoverable by the city, jointly and severally from
the principal and surety, any and all damages, losses or costs suffered
by the city resulting from the failure of a grantee to satisfactorily
complete and fully activate the CATV system throughout the franchise
area pursuant to the terms and conditions of this chapter and the
franchise agreement.
B.
Any
extension to the prescribed construction time limit must be authorized
by the council. Such extension shall be authorized only when the council
finds that such extension is necessary and appropriate due to causes
beyond the control of a grantee.
C.
The
construction bond shall be maintained in the amount of five hundred
thousand dollars, but may be reduced as a ratio of unconstructed miles
to total miles to be built within the city, and shall be terminated
only after the council finds that a grantee has satisfactorily completed
initial construction and activation of the CATV system pursuant to
the terms and conditions of this chapter and the franchise agreement.
D.
The
rights reserved to the city with respect to the construction bond
are in addition to all other rights of the city, whether reserved
by this chapter or authorized by law, and no action, proceeding or
exercise of a right with respect to such construction bond shall affect
any other rights the city may have.
E.
The
construction bond shall contain the following endorsement:
It is hereby understood and agreed that this bond may not be
cancelled by the surety nor the intention not to renew be stated by
the surety until 60 days after receipt by the City, by registered
mail, of written notice of such intent to cancel or not to renew.
(Ord. 782 § 1, 1983)
A.
A
grantee shall put, keep and maintain all parts of the system in good
condition throughout the entire franchise period.
B.
Upon
termination of service to any subscriber, a grantee shall promptly
remove all its facilities and equipment from the premises of such
subscriber upon subscriber's request.
C.
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 system use.
D.
Grantee
shall not allow its cable or other operations to interfere with television
reception of persons not served by grantee, nor shall the system interfere
with, obstruct or hinder in any manner the operation of the various
utilities serving the residents of the city.
E.
A grantee shall continue, through the term of the franchise, to maintain the technical, operational and maintenance standards, and quality of service set forth in this chapter and franchise agreement. Should the city find, by public hearing process, that a grantee has failed to maintain these standards and quality of service, and should it specifically enumerate improvements to be made, a grantee shall make such improvements. Failure to make such improvements within three months will constitute a breach of condition for which the remedy of Section 5.60.270 is applicable.
(Ord. 782 § 1, 1983)
A.
1.
It shall be the right of all subscribers to continue receiving service
insofar as their financial and other obligations to a grantee are
honored. In the event that a grantee elects to overbuild, rebuild,
modify or sell the system, or the city gives notice of intent to terminate
or fails to renew a franchise, the grantee shall act so as to ensure
that all subscribers receive continuous, uninterrupted service regardless
of the circumstances.
2.
In the event of a change of grantee, or in the event a new operator
acquires the system, a grantee shall cooperate with the city, new
grantee or operator in maintaining continuity of service to all subscribers.
During such period, grantee shall be entitled to the revenues for
any period during which it operates the system, and shall be entitled
to reasonable costs for its services when it no longer operates the
system.
B.
In
the event grantee fails to operate the system for four consecutive
days without prior approval of the city or without just cause, the
city may, at its option, operate the system or designate an operator
until such time as grantee restores service under conditions acceptable
to the city or a permanent operator is selected. If the city is required
to fulfill this obligation for a grantee, the grantee shall reimburse
the city for all reasonable costs or damages in excess of revenues
from the system received by the city that are the result of the grantee's
failure to perform.
(Ord. 782 § 1, 1983)
A.
The
city manager or the city manager's designee is specified by the city
as having primary responsibility for the continuing administration
of a franchise and implementation of complaint procedures.
B.
A
grantee shall maintain a central office within the city, which shall
be open during all usual business hours, and/or provide a toll-free
telephone number to be so operated that complaints and request for
repairs or adjustments may be received on a twenty-four-hour basis.
C.
A
grantee shall maintain a repair and maintenance crew capable of responding
to subscriber complaints or requests for service within twenty-four
hours after receipt of the complaint or request. No charge shall be
made to the subscriber for this service unless such maintenance or
repair is required as a result of damage caused by subscriber. A grantee
may charge for service calls to the subscriber's home that are not
the result of cable failure upon approval of a rate and equitable
procedure by the city.
D.
A
grantee shall establish procedures for receiving, acting upon and
resolving subscriber complaints to the satisfaction of the city manager's
office. A grantee shall furnish a notice of such procedures to each
subscriber at the time of initial subscription to the system. Upon
request by a subscriber, the grantee shall credit a subscriber's account
on a pro rata basis for loss of service commencing forty-eight hours
after notification.
E.
A
company shall keep a maintenance service log which will indicate the
nature of each service complaint, the date and time it was received,
the disposition of the complaint, and the time and date thereof. This
log shall be made available for periodic inspection by representatives
of the city manager's office. All service complaint entries shall
be retained on file for a period consisting of the most recent three
years.
F.
When
there have been similar complaints made or when there exists other
evidence, which in the judgment of the city manager, casts doubt on
the reliability or quality of cable service, the city manager shall
have the right and authority to compel a grantee to test, analyze
and report on the performance of the system. Such report shall be
delivered to the city manager no later than fourteen days after the
city manager formally notifies the grantee, and shall include the
following information:
G.
The
city and the grantee shall share equally the cost incurred in utilizing
the independent professional engineer.
H.
The
city's right under this section shall be limited to requiring tests,
analyses and reports covering specific subjects and characteristics
based on the complaints or other evidence when and under such circumstances
as the city has reasonable grounds to believe that the complaints
or other evidence requires that tests be performed to protect the
public against substandard cable service.
(Ord. 782 § 1, 1983; Ord. 805 § 6, 1984)
A grantee shall fully cooperate in making available at reasonable
times, and the city manager or his designee shall have the right to
inspect the books, records, maps, plans and other like materials of
the grantee applicable to the CATV system, at any time during normal
business hours; provided, where volume and convenience necessitate,
grantee may require inspection to take place on grantee's premises.
(Ord. 782 § 1, 1983)
Copies of all petitions, applications, communications and reports
submitted by a grantee to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters
affecting cable television operations authorized pursuant to the franchise,
shall be provided simultaneously to the city.
(Ord. 782 § 1, 1983)
The grantee shall file annually with the office of the city
clerk, no later than one hundred twenty days after the end of the
grantee's fiscal year, a copy of a financial report applicable to
the CATV system serving the city, including an income statement applicable
to its operations during the preceding twelve-month period, a balance
sheet, and a statement of its properties devoted to CATV system operations,
by categories, giving its investment in such properties on the basis
of original cost, less applicable depreciation. These reports shall
be certified as correct by an authorized officer of grantee, and there
shall be submitted along with them such other reasonable information
as the council shall request.
(Ord. 782 § 1, 1983)
A.
In
addition to all other rights and powers retained by the city under
this chapter or otherwise, the city reserves the right to forfeit
and terminate a franchise and all rights and privileges of a grantee
in the event of a material breach of its terms and conditions. A material
breach by grantee includes, but shall not be limited to the following:
1.
Violation of any material provision of the franchise or any material
rule, order, regulation or determination of the city made pursuant
to the franchise;
2.
Attempt to evade any material provision of the franchise, or practice
of any fraud or deceit upon the city or its subscribers or customers;
3.
Failure to begin or complete system construction or system extension
as provided under the franchise;
4.
Failure to provide the types of services promised;
5.
Failure to restore service after ninety-six 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 for or negotiation
of the franchise.
B.
The
foregoing shall not constitute a material breach if the violation
occurs as a result of acts of God or occurs as a result of circumstances
beyond grantee's control. Grantee shall not be excused by mere economic
hardship nor by misfeasance or malfeasance of its shareholders, directors,
officers or employees.
C.
The
city may make a written demand that a grantee comply with any such
provision, rule, order or determination under or pursuant to this
chapter and franchise agreement. If the violation by the grantee continues
for a period of thirty days following such written demand without
written proof that the corrective action has been taken or is being
actively and expeditiously pursued, the city may place the issue of
termination of a franchise before the city council. The city shall
cause to be served upon grantee, at least twenty days prior to the
date of such a council 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 issue which the council is to consider.
D.
The
city council shall hear and consider the issue and shall hear any
person interested therein, and shall determine, in its discretion,
whether or not any violation by the grantee has occurred.
E.
If
the city council shall determine the violation by a grantee was the
fault of grantee and within its control, the council may, by resolution,
declare that the franchise of the grantee shall be forfeited and terminated
unless there is compliance within such period as the city council
may fix, such period not to be less than sixty days, provided no opportunity
for compliance need be granted for fraud or misrepresentation.
F.
The
issue of forfeiture and termination shall automatically be placed
upon the council agenda at the expiration of the time set by it for
compliance. The council then may terminate a franchise forthwith upon
finding that grantee has failed to achieve compliance or may further
extend the period, in its discretion.
(Ord. 782 § 1, 1983; Ord. 805 § 7, 1984)
By acceptance of the franchise granted by the city, a grantee
understands and agrees that failure to comply with any time and performance
requirements as stipulated in this chapter and franchise agreement
will result in damage to the city, and that it is and will be impracticable
to determine the actual amount of such damage in the event of delay
or nonperformance; and grantee therefor shall agree that, in addition
to any other damage suffered by the city, the grantee will pay to
the city the following amounts which will be chargeable to the security
fund:
A.
For failure to complete system construction in accordance with Section 5.60.100, unless the council specifically approves the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control, a grantee shall pay one thousand dollars per day for each day or part thereof the deficiency continues;
B.
For
failure to provide, upon written request, data, documents, reports
or information, or to cooperate with city during an application process
or CATV system review, a grantee shall pay fifty dollars per day or
part thereof each violation occurs or continues;
C.
For
failure to test, analyze and report on the performance of the system
following a written request pursuant to this chapter, a grantee shall
pay to city two hundred dollars per day for each day or part thereof
that such noncompliance continues;
D.
For
failure to provide in a continuing manner the types of services proposed
in the accepted application, unless the council specifically approves
grantee a delay or change, grantee shall pay to the city one thousand
dollars per day for each day or part thereof that each noncompliance
continues;
E.
In accordance with Section 5.60.200 in which it has been determined that there has been a failure of grantee to comply with operational, maintenance or technical standards, grantee shall pay to the city one thousand dollars for each day or part thereof that such noncompliance continues beyond the three-month period provided in Section 5.60.200.
(Ord. 782 § 1, 1983; Ord. 805 § 8, 1984)
A.
A
grantee shall not deny service, deny access, or otherwise discriminate
against subscribers, channel users, or general citizens on the basis
of race, color, religion, national origin, or sex. A grantee shall
comply at all times with all other applicable federal, state and local
laws and regulations, and all executive and administrative orders
relating to nondiscrimination which are incorporated and made part
of this chapter by reference.
B.
A
grantee shall strictly adhere to the equal employment opportunity
requirements of federal, state and local regulations, and as amended
from time to time.
C.
No
signals shall be transmitted from a subscriber terminal for purposes
of monitoring individual viewing patterns or practices without the
express written permission of the subscriber. The request for such
permission shall be contained in a separate document with a prominent
statement that the subscriber is authorizing the permission in full
knowledge of its provision. The authorization shall be revocable at
any time by the subscriber without penalty of any kind whatsoever.
Such authorization is required for each type or classification of
two-way cable communications activity planned; provided, however,
that a grantee shall be entitled to conduct system-wide or individually
addressed "sweeps" for the purpose of verifying system integrity,
controlling return-path transmission, or billing for pay services.
D.
A
grantee, or any of its agents or employees, shall not, without the
specific written authorization of the subscriber involved, sell or
otherwise make available to any party:
(Ord. 782 § 1, 1983)
A.
Upon
the foreclosure or other judicial sale of all or a substantial part
of the system, or upon the termination of any lease covering all or
a substantial part of the system:
1.
A 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 this chapter governing
the consent of the city to such change in control of a grantee shall
apply; or
2.
In such an instance, the city may serve notice of termination upon
a grantee and, if applicable, the successful bidder at such sale.
In such event, the franchise shall cease and terminate thirty days
after service of such notice unless:
B.
The
city shall have the right to revoke this franchise one hundred twenty
days after the appointment of a receiver, or trustee, to take over
and conduct the business of a grantee, whether in receivership, reorganization,
bankruptcy, or other action or proceeding, unless such receivership
or trusteeship has been vacated prior to the expiration of said one
hundred twenty days, or unless:
1.
Within one hundred twenty days after the election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this chapter and remedied all defaults thereunder; and
2.
Such receiver or trustee, within the one hundred twenty 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 the chapter and franchise
agreement and of the franchise granted to a grantee.
(Ord. 782 § 1, 1983)
A.
The
city and a grantee shall hold scheduled performance-evaluation sessions
within thirty days of the first, second, third, sixth, ninth, and
twelfth anniversary dates of a grantee's award of the franchise, and
as may be required by federal and state law.
B.
Special
evaluation sessions may be held at any time during the term of a 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 legal notice.
Grantee shall notify its subscribers of all evaluation sessions by
announcement on at least two channels of its system between the hours
of seven p.m. and nine p.m., for five consecutive days preceding each
session.
D.
Topics
which may be discussed at any scheduled or special evaluation session
may include, but not be limited to, service rate structures; franchise
fee; liquidated damages; free or discounted services; application
of new technologies; system performance; services provided; programming
offered; customer complaints; privacy; amendments to this chapter;
judicial and FCC rulings; line extension policies; and grantee or
city rules.
(Ord. 782 § 1, 1983)
A.
The
city council shall have the authority to order a public hearing from
time to time on the provision of additional channel capacity by grantee
or on the inclusion in the grantee's CATV system of state-of-the-art
technology or upgraded facilities.
B.
If after such a hearing the city council determines (1) that there exists a reasonable need and demand for additional channel capacity and/or state-of-the-art technology or upgraded facilities, and (2) that provision has been made or will be made for adequate rates which will allow grantee a fair rate of return on its investment (including the investment required to provide the additional channels and/or the state-of-the-art technology or upgraded facilities), and will not result in economic waste for the grantee, the city council may order grantee to provide a specified number of additional channels and/or specified state-of-the-art technology or upgraded facilities. Without implying any limitations as to other provisions of this chapter, this section is deemed a material provision within the meaning of Section 5.60.260.
C.
If
any access channel(s), in the opinion of the council, have become
fully utilized, company shall within six months from receipt of written
notice make a new channel available for the same purpose(s); provided,
however, that nothing in this subsection shall require grantee to
add additional channel capacity to the CATV system. Such requirement
may be met by making available, on a part-time basis, one or more
other underutilized access channels, or on a full-time or part-time
basis one or more other unused channels until such time as such underutilized
or unused channels are needed for the uses to which they have been
dedicated.
D.
Whenever,
in the opinion of the city council, any access channel is underutilized,
the city may order or permit different or additional uses for the
channel.
(Ord. 782 § 1, 1983)
A.
Interconnection
Required. A grantee shall interconnect access channels of the cable
system with any or all other CATV systems in adjacent areas, upon
the directive of the city. Interconnection of systems may be done
by direct cable connection, microwave link, satellite, or other appropriate
method.
B.
Interconnection
Procedure. Upon receiving the directive of the city to interconnect,
a grantee shall immediately initiate negotiations with the other affected
system or systems in order that all costs may be shared equally among
cable companies for both construction and operation of the interconnection
link.
C.
Relief.
A grantee may be granted reasonable extensions of time to interconnect,
or the city may rescind its order to interconnect upon petition by
the grantee to the city. The city shall grant the request if it finds
that a grantee has negotiated in good faith and has failed to obtain
an approval from the system or systems of the proposed interconnection,
or that the cost of the interconnection would cause an unreasonable
or unacceptable increase in subscriber rates.
D.
Cooperation
Required. A grantee shall cooperate with any interconnection corporation,
regional interconnection authority, or city, county, state and federal
regulatory agency which may be hereafter established for the purpose
of regulating, financing or otherwise providing for the interconnection
of cable systems beyond the boundaries of the city.
(Ord. 782 § 1, 1983)
A.
No
franchise granted pursuant to the provisions of this chapter shall
become effective unless and until the ordinance codified in this chapter
has become effective and, in addition, unless and until all things
required in this section are done and completed, all of such things
being hereby declared to be conditions precedent to the effectiveness
of any such franchise granted hereunder. In the event any of such
things are not done and completed in the time and manner required,
the council may declare the franchise null and void.
B.
Any franchise granted pursuant to this chapter shall be granted by ordinance or resolution of the city council. Within thirty days after the effective date of such ordinance or resolution awarding a franchise or within such extended period of time as the city council in its discretion may authorize, a grantee shall file with the city clerk its written acceptance, in a form satisfactory to the city attorney, of the franchise agreement, together with the insurance policies, security fund and construction bond required by Sections 5.60.170, 5.60.180 and 5.60.190, respectively, and its agreement to be found by and to comply with and to do all things required by the provisions of this chapter. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and shall in form and content be satisfactory to and approved by the city attorney.
(Ord. 782 § 1, 1983; Ord. 805 § 15, 1984)
A.
From
and after the effective date of the ordinance codified in this chapter,
it is unlawful for any person to establish, operate or to carry on
the business of operating a cable television system unless a franchise
therefor has first been obtained pursuant to the provisions of this
chapter.
B.
It
is unlawful for any person, firm or corporation to make any unauthorized
connection, whether physically, electrically, acoustically, inductively
or otherwise, with any part of a franchised CATV system within this
city for the purpose of enabling himself or others to receive any
cable television service, without payment to the owner of the system.
C.
It
is unlawful for any person, without the consent of the owner, to wilfully
tamper with, remove or injure any cables, wires or equipment used
for distribution of cable television services.
D.
No
grantee nor any representative of a grantee shall engage in the business
of selling, repairing or installing television receivers, radio receivers,
or accessories for such receivers within the city during the term
of a franchise, and the grantee shall not allow any of its representatives
to so engage in any such business.
(Ord. 782 § 1, 1983; Ord. 805 § 9, 1984)
A.
Upon
award of a franchise pursuant to this chapter, a grantee shall agree
to be bound by all the terms and conditions contained herein.
B.
A grantee also agrees to provide all services specifically set forth in its proposal, to provide cable television service within the confines of the city and, by its acceptance of the franchise, the grantee specifically grants and agrees that its proposal is thereby incorporated by reference and made a part of the franchise agreement. In the event of a conflict between such proposal and the provisions of this chapter, and the franchise agreement, that provision which provides the greatest benefit to the city, in the opinion of the council, shall prevail; provided, that the city, having chosen or accepted one of the conflicting provisions, may not thereafter elect to require compliance with a different alternative of the conflicting provisions. Failure to provide services as promised in grantee's application shall be deemed a breach of this chapter to which the provisions of Section 5.60.260 shall apply.
(Ord. 782 § 1, 1983; Ord. 805 § 10, 1984)
Whenever a franchise or contract sets forth any time for an
act to be performed by or on behalf of the grantee, such time shall
be deemed of the essence, and any failure of the grantee to perform
within time allotted shall always be sufficient ground for the city
to invoke liquidated damages or revocation of a franchise.
(Ord. 782 § 1, 1983)
A grantee shall not be excused from complying with any of the
terms and conditions of a franchise or this chapter by any failure
of the city upon any one or more occasions to insist upon or to see
compliance with any such terms or conditions.
(Ord. 782 § 1, 1983)
A.
Purpose
and Authority. This section is designed to regulate video service
providers holding state video franchises and operating within the
city.
As of January 1, 2007, the state of California will have the sole authority to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006. ("The Act"). Pursuant to The Act, the city of San Dimas shall receive a franchise fee and shall receive a fee for public, educational and government (PEG) purposes from all state video franchise holders operating within the city. Additionally, the city will acquire the responsibility to establish and enforce penalties, consistent with state law, against all state video franchise holders operating within the city for violations of customer service standards but The Act grants all authority to adopt customer service standards to the state. The Act leaves unchanged the city's authority to regulate the city's current cable franchise in accordance with Chapter 5.60 and the cable franchise currently in effect until such time as the cable franchisee no longer holds a city franchise or is no longer operating under a current or expired city franchise.
B.
State
Video Franchise and PEG Fees.
1.
For any state video franchise holder operating within the boundaries
of the city of San Dimas, there shall be a fee paid to the city equal
to five percent of the gross revenue of that state video franchise
holder.
2.
For any state video franchise holder operating within the boundaries
of the city of San Dimas, there shall be an additional fee paid to
the city equal to up to one percent of the gross revenue of that state
video franchise holder, which fee shall be used by the city for PEG
purposes consistent with state and federal law. The percentage amount
of the fee shall be set annually by the city council prior July 1st
of each year.
3.
Gross revenue, for the purposes of subsections (1) and (2) above, shall have the definition set forth in California Public Utilities Code Section 5860.
C.
Audit
Authority. Not more than once annually, the city council or their
designee may examine and perform an audit of the business records
of a holder of a state video franchise to ensure compliance with this
section.
D.
Customer
Service Penalties Under State Video Franchises.
1.
The holder of a state video franchise shall comply with all applicable
state and federal customer service and protection standards pertaining
to the provision of video service.
2.
The city manager shall monitor the compliance of state video franchise
holders with respect to state and federal customer service and protection
standards. The city manager will provide the state video franchise
holder written notice of any material breaches of applicable customer
service standards, and will allow the state video franchise holder
thirty days from the receipt of the notice to remedy the specified
material breach. Material breaches not remedied within the thirty-day
time period will be subject to the following penalties to be imposed
by the city:
a.
For the first occurrence of a violation, a fine of five hundred dollars
shall be imposed for each day the violation remains in effect, not
to exceed one thousand five hundred dollars for each violation.
b.
For a second violation of the same nature within twelve months, a
fine of one thousand dollars shall be imposed for each day the violation
remains in effect, not to exceed three thousand dollars for each violation.
c.
For a third or further violation of the same nature within twelve
months, a fine of two thousand five hundred dollars shall be imposed
for each day the violation remains in effect, not to exceed seven
thousand five hundred dollars for each violation.
3.
A state video franchise holder may appeal a penalty assessed by the
city manager to the city council within sixty days of the initial
assessment. The city council shall hear all evidence and relevant
testimony and may uphold, modify or vacate the penalty. The city council's
decision on the imposition of a penalty shall be final.
E.
City
Response to State Video Franchise Applications.
1.
Applicants for state video franchises within the boundaries of the
city of San Dimas must concurrently provide complete copies to the
city of any application or amendments to applications filed with the
PUC. One complete copy must be provided to the city manager.
2.
Within thirty days of receipt, the city manager will provide any
appropriate comments to the PUC regarding an application or an amendment
to an application for a state video franchise.
(Ord. 1183 § 1, 2008)
