The city may grant a franchise pursuant to a franchise ordinance.
Each franchise shall be subject to the provisions of this chapter,
the franchise ordinance, and the acceptance of the franchise ordinance.
No subsequently enacted ordinances or regulations shall materially
alter the rights or obligations of the grantee under the franchise
ordinance or this chapter, provided that the franchise shall be subject
to all ordinances and regulations of general application now in effect
or subsequently enacted, including those concerning encroachment permits,
business licenses, zoning and building, which ordinances or regulations
are a valid and proper exercise of the city's police powers.
(Ord. 1598 § 1, 1992)
It is unlawful for any person to construct, install or operate
a cable television system in the city within any street or within
any other right-of-way within the city which has not yet been dedicated
to the city but is designated or delineated for public use on any
tentative subdivision map approved by the city and, in each such case,
to construct or install any equipment or facilities for a cable system,
whether or not operational, without a properly granted franchise awarded
pursuant to the provisions of this chapter, which franchise is in
full force and effect.
(Ord. 1598 § 1, 1992)
The term of the franchise or any franchise renewal shall be
established in the franchise ordinance.
(Ord. 1598 § 1, 1992)
The city may establish franchise renewal procedures by resolution
subject to applicable federal and state law.
(Ord. 1598 § 1, 1992)
Any application for either a new franchise grant, a franchise
renewal or a franchise transfer, shall be made in a manner prescribed
by the city manager, and shall include an application fee, in an amount
to be set by the city manager, to recover the costs necessary to adequately
analyze the application. In addition, the grantee shall reimburse
the city for all out-of-pocket processing costs, which shall include,
but not be limited to, costs of publications of notices, development
and publication of relevant franchise ordinances and agreements, and
any other out-of-pocket not covered by the application fees, incurred
by the city in its study and evaluation of applications. The city
may periodically bill the applicant for such additional amounts to
reimburse the city for administrative expenses incurred in addition
to the application fee. The bills shall be supported with evidence
of the expense or cost incurred. The applicant shall pay such bills
within thirty days of receipt.
These franchise processing costs are over and above any construction
inspection and permit fees and the franchise fees specified in this
chapter or the franchise ordinance.
(Ord. 1598 § 1, 1992)
(a) The
city reserves the right to terminate any franchise in the event of
a material breach of any of its material terms or any material term
of any applicable federal, state or local statute or regulation, which
breach is not cured following written notice and a reasonable opportunity
to cure. Such a breach may include, but not be limited to:
(1) If the grantee practices, or attempts to practice, any fraud or deceit
upon the city;
(2) If the grantee becomes insolvent, unable or unwilling to pay its
debts, or upon listing of an order for relief in favor of grantee
in a bankruptcy proceeding;
(3) If the grantee materially fails to substantially meet the customer
service standards established in this chapter over a three-month period
of time;
(4) If the grantee fails to provide or maintain in full force and effect,
the liability and indemnification coverages, letter of credit or bonds
as required by the franchise;
(5) If the grantee willfully violates any orders or rulings of any regulatory
body having jurisdiction over the grantee relative to the franchise,
provided that the grantee may contest any such orders or rulings by
appropriate proceedings conducted in good faith, in which case no
breach of the franchise shall be deemed to have occurred;
(6) If the grantee ceases to provide at least eighty percent of its standard
cable service over all or a substantial portion of its cable system
for a period of five days or more;
(7) If the grantee willfully fails to provide the city with required
information, reports and/or test results in a timely manner as provided
in the franchise;
(8) Subject to any applicable force majeure provisions, if the grantee
fails to initiate or complete scheduled system construction or reconstruction
within the time set forth in the franchise ordinance;
(9) Any other wilful act or omission by the grantee which materially
violates the terms, conditions or requirements of the franchise or
any order, directive, rule or regulation issued thereunder and which
is not timely corrected or remedied following receipt of written notice
of the violation;
(10) A documented pattern and practice of material violation of the material
terms, conditions, or requirements of the franchise followed by a
cure which was prompted by a notice to cure received from the grantor.
(Ord. 1598 § 1, 1992; Ord. 1622 § 4, 1994)
(a) Prior
to imposing any sanction or penalty including termination of the franchise
upon the grantee, the city council or the city manager shall give
the grantee a reasonable notice and an opportunity to cure period
to correct the material breach. The written notice shall be by certified
mail or by other means providing for certification of receipt.
(b) The
notice to cure period shall be a minimum of fifteen days in the case
of any payments due under the franchise and a minimum of thirty days
in all other cases (except in cases of emergency where a shorter time
may be prescribed consistent with the nature of the emergency). Where
thirty days is insufficient time for the grantee to cure the noticed
breach, the grantee shall be deemed in compliance with the provisions
if, within that thirty-day time period grantee begins a good faith
effort to cure such breach and shall present a specific and reasonable
timetable to the city for the cure of the breach.
(c) Upon receiving the city manager's notice of the breach, the grantee shall investigate the alleged breach, and within the time period established in the notice and in accordance with subsection
(b) above, notify the city manager in writing of the results of the investigation and its proposed action or resolution, if any. In the event the city manager does not refer the matter to a hearing officer or the city council as provided under subsection
(d) within thirty days of the receipt of the grantee's response, the grantee's proposed action or resolution shall be final.
(d) If
the breach is not cured within such time period as the city manager
establishes, the city manager shall cause to be noticed a public hearing
before the city council or refer the matter to a hearing officer.
All breaches of the customer service standards where the city manager
determines that the penalty may not include franchise termination
shall be referred to a hearing officer.
(e) The
grantee shall not be deemed to be in default in the performance of
its obligations under this chapter and no penalty or sanction shall
be imposed upon the grantee where the grantee has remedied the breach
to the reasonable satisfaction of the city manager within the period
specified in the notice specifying the breach.
(Ord. 1598 § 1, 1992; Ord. 1622 § 5, 1994)
(a) The
city manager may refer to a hearing officer any controversy or claim
arising out of or relating to the franchise or its existence, construction,
interpretation, performance, enforcement, operation, breach, continuance
or termination. Such hearing proceedings shall be initiated by the
city manager by written notice to the grantee. Notice shall be by
certified mail or by other means providing for certification of receipt.
(b) The
city manager shall select a retired California Superior or Appellate
Court Judge, or a retired Federal Court Judge as the hearing officer.
(c) The
hearing shall be conducted according to California
Code of Civil Procedure
Section 1280, et seq., (the "General Arbitration Act").
(d) The
hearing officer shall commence the hearing within thirty days of his
selection unless the parties and the hearing officer otherwise agree.
Any party to the hearing may issue a request to compel reasonable
document production from the other party. Disputes concerning the
scope of document production and enforcement of document requests
shall be subject to agreement by the parties, or if agreement is not
reached within twenty days of the document request, then by disposition
by order of the hearing officer. Except as may be otherwise specifically
agreed by the parties, no other form of pretrial discovery shall be
available to the parties; provided that the provisions of Code of
Civil Procedure Section 1283.05 shall apply.
(e) The
hearing officer shall be vested with quasi-judicial authority, and
shall be entitled to: (1) order the grantee to undertake remedial
action to cure any breach of its obligations under its franchise,
(2) assess liquidated damages and/or levy a penalty upon the grantee
in accordance with the terms of this chapter and the franchise ordinance,
(3) determine that the grantee has not violated any of its obligations
under its franchise, or (4) terminate the franchise.
(f) At
any hearing conducted pursuant to this section, the city shall have
the burden of establishing a material breach to the satisfaction of
the hearing officer by a preponderance of the evidence. The cable
television provider may present such evidence, as it may desire.
(g) The
hearing officer shall enter findings of fact and conclusions of law
which must be supported by the evidence. The hearing officer shall
not have the power to commit errors of law or legal reasoning, and
the award may be vacated or corrected pursuant to California Code
of Civil Procedure Section 1286.2 or 1286.6 for any such error. Any
party to a hearing may petition the Superior Court for Los Angeles
County, California to confirm, correct or vacate the award on the
grounds stated in the General Arbitration Act. Any proceedings on
appeal shall be in accordance with
Code of Civil Procedure Sections
1294 and 1294.2.
(h) All
witnesses testifying at the hearing shall be sworn. Witnesses shall
be subject to direct and cross-examination. However, formal rules
of evidence applicable to the trial of civil or criminal proceedings
in the trial courts of this state shall apply to evidence adduced
at the hearing only to extent that such rules are reasonably necessary
to the preservation of the probative nature of the evidence proffered.
The hearing may be continued from time to time.
(i) Except
as may be apportioned by the hearing officer in his discretion, each
party shall bear one-half of the fees and expenses of the hearing
officer, together with any other expenses of the hearing proceedings,
incurred or approved by the hearing officer. Each part shall bear
its own witness and attorneys' fees or other expenses incurred by
such party for its own benefit.
(j) Any
failure of the grantee to comply with the final order of the hearing
officer shall be deemed a material breach of the franchise, and may
be grounds for termination of the franchise.
(k) The
decision of the hearing officer shall be final. It shall be subject
to judicial review pursuant to California
Code of Civil Procedure
Section 1094.5. In the event grantee initiates such a review, the
hearing officer's determination, orders and recommendations shall
be stayed pending a final order of the court.
(Ord. 1598 § 1, 1992; Ord. 1622 § 6, 1994)
In the event the grantee's performance of any of the terms,
conditions or obligations required by this chapter or its franchise
is prevented by any cause beyond the grantee's reasonable control,
such inability to perform shall be deemed to be excused and no penalties
or sanctions shall be imposed as a result thereof, provided the grantee
has notified the city in writing within thirty days of its discovery
of the occurrence of such an event. In such an instance, the grantee
shall have reasonable time, under the circumstances, to perform its
obligation under this chapter or to procure a substitute for such
obligation which is satisfactory to the city. For the purpose of this
section, causes or events not within the control of the grantee shall
include, but not be limited to acts of God, strikes, sabotage, riots
or civil disturbances, epidemic, labor disputes, shortage of labor,
freight embargoes, shortages or unavailability of materials and supplies,
explosion, natural disasters such as floods, earthquakes, landslides
and fires, rationing, and power or communications failures, but shall
not include financial inability of the grantee to perform or failure
of the grantee to obtain any necessary permits or licenses from other
governmental agencies or the right to use the facilities of any public
utility where such failure is due solely to the acts or omissions
of the grantee.
(Ord. 1598 § 1, 1992)