For the purposes of this article, the following terms, phrases,
words, abbreviations, and their derivations shall have the meaning
given in this section. When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural
number include the singular number, and words in the singular number
include the plural number.
means any service not included in "basic CATV service," in
"basic subscriber radio service" or in "institutional service," including,
but not limited to, pay-cable.
means a purchaser of cable television service who receives
service in a government or public agency, school or nonprofit corporation.
means a television or radio signal that is transmitted over-the-air
to an audience in a wide geographic area and is received by a cable
television system, off-the-air, by microwave link, by satellite receiver,
or by other means.
are terms describing a system employing antenna, microwave,
wires, waveguides, coaxial cables, or other conductors, equipment
or facilities designed, constructed or used for the purpose of:
Collecting and amplifying local and distant broadcast television
or radio signals and distributing and transmitting them;
Transmitting original cablecast programming not received through
television broadcast signals;
Transmitting television pictures, film and videotape programs,
not received through broadcast television signals, whether or not
encoded or processed to permit reception by only selected receivers;
Transmitting or receiving two-way signals or transmissions;
Transmitting or receiving all other signals: digital, voice
and audio-visual; provided, however, that any of the services permitted
to be performed under this article, as described above, shall be those
performed by the grantee for subscribers, as defined in this section,
in the operation of cable television or a cable television system
franchised by the city, and not otherwise.
means the nonprofit corporation which is intended to receive
and allocate funds and other considerations by the grantee to: (i)
promote the arts, (ii) assist community program development for community
non-commercial cable television or other medium, (iii) provide facilities
and equipment to citizens for the production of non-commercial educational
or cultural television programs, (iv) promote charitable purposes,
and (v) promote public purposes.
means a nonbroadcast signal that originates within the facilities
of the cable television system.
means a six-megahertz frequency band, which is capable of
carrying either one standard video signal, a number of audio, digital
or other nonvideo signals, or some combination of such signals.
means the city of Lawndale, a municipal corporation of the
state of California, in its present incorporated form or in any later
reorganized, consolidated, enlarged or reincorporated form.
means the chief executive officer, or any designee thereof.
means a purchaser of cable television service who receives
service in a place of business, where the service may be utilized
in connection with a business, trade or profession.
means an electronic device which converts signal carriers
from one form to another.
means the governing body of the city or any future board
constituting the legislative body of the city.
means any channel where an educational institution is the
only designated programmer.
means and includes any authorization granted under this article
in terms of a franchise, privilege, permit, license or otherwise to
construct, operate and maintain a cable television system within all
or a specified area in the city. Any such authorization, in whatever
form granted, shall not mean and include any license or permit required
for the privilege of transacting and carrying on a business within
the city as required by other ordinances and laws of the city.
means any channel where a local government agency is the
only designated programmer.
means the person, firm or corporation granted a franchise
by the council under this article, and the lawful successor, transferee
or assignee of such person, firm or corporation.
means any and all compensation and other consideration in
any form whatever and any contributing grant or subsidy received directly
or indirectly by a grantee from:
Subscribers or users in payment for television or FM radio signals,
reception or service received within the city, including installation
and line extension charges;
Any fees or income received by the grantee for carrying advertising
or commercial messages over the cable television facilities;
Any other person or utilization of or connection to the property
of the grantee to the extent the city may from time to time legally
impose a franchise payment on account thereof.
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Notwithstanding the above, gross revenue shall not include any
taxes on services furnished by the grantee and imposed directly on
any subscriber or user by any city, state or other governmental unit.
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means such video, audio, data and other services provided
to institutional users on an individual application, private channel
basis. These may include, but shall not be limited to, two-way video,
audio or digital signals among institutions, or from institutions
to residential subscribers.
means any channel available for lease and programming by
persons or entities other than the grantee, including those portions
of the other access channels not in use by their designated programmers.
means any channel where the grantee is the only designated
programmer and provides video programs to subscribers.
means observing a one-way communications signal, or the absence
of a signal, where the observer is neither the subscriber nor the
programmer, whether the signal is observed by visual or electronic
means, for any purpose whatsoever.
means a signal that is transmitted by a cable television
system and that is not involved in an over-the-air broadcast transmission
path.
means the delivery to subscribers, over the cable television
system, of television signals for a fee or charge to subscribers,
over and above the charge for basic CATV service, on a per-program,
per-channel or other subscription basis.
means any natural person and all domestic and foreign corporations,
associations, syndicates, joint stock corporations, partnerships of
every kind, clubs, business or common law trusts, and societies.
means any channel which is available only to subscribers
who are provided with special converter or terminal equipment to send
or receive signals on that channel.
means any person or entity who or which produces or otherwise
provides program material or information for transmission by video,
audio, digital or other signals, either live or from recorded tapes
or other storage media, to subscribers, by means of the cable television
system.
means all property owned, installed or used within the city
by a grantee in the conduct of a cable television system business
under the authority of a franchise granted pursuant to this article.
means any channel where any member of the public or any noncommercial
organization may be a programmer, without charge, on a first-come,
first-serve, nondiscriminatory basis.
means any person residing in the city, as otherwise defined
by applicable law.
means a purchaser of cable television service who receives
services in a dwelling unit, where the service is not to be utilized
in connection with a business, trade or profession.
means any public educational institution, including primary
and secondary schools, colleges and universities, and all similarly
situated private and parochial educational institutions which have
received the appropriate accreditation from the state and, where required,
from other authorized accrediting agencies.
means the surface, the air space above the surface and the
area below the surface of any public place, including public utility
easements.
means observing a two-way communication signal exchange,
where the observer is neither of the communicating parties, whether
the exchange is observed by visual or electronic means, for any purpose
whatsoever.
(Prior code § 7-1; Ord. 933-03 § 1; Ord.
1013-08 § 3)
A.
A nonexclusive
franchise to install, construct, operate and maintain a cable television
system on streets within all or a specific portion of the city may
be granted by the council to any person, whether or not operating
under an existing franchise, who or which offers to furnish and provide
such system under and pursuant to the terms and provisions of this
article.
No provision of this article may be deemed or construed as to
require the granting of a franchise when in the opinion of the council
it is in the public interest to restrict the number of grantees to
one or more.
B.
When
and in the event that the grantee of any franchise granted under this
article uses in its cable television system distribution channels
furnished to the grantee by a telephone company pursuant to tariff
or contract on file with a regulatory body having jurisdiction, and
said grantee makes no use of the streets independent of such telephone
company-furnished facilities, such grantee shall be required to comply
with all of the provisions of this article as a "licensee" and in
such event whenever the term "grantee" is used herein it shall be
deemed to mean and include "licensee."
(Prior code § 7-2; Ord. 1013-08 § 3)
A.
Basic
Service. The cable television system permitted to be installed and
operated hereunder shall:
1.
Be
operationally capable of relaying to subscriber terminals those television
and radio broadcast signals for the carriage of which the grantee
is now or hereafter authorized by the Federal Communications Commission;
2.
Be
constructed two-way operational from the date of system initiation;
3.
Distribute
color television signals which it receives in color;
4.
Provide
at least one channel, without charge, for exclusive use of the city.
Additional channels may be required by the city as the need, in the
determination of the city, arises;
5.
Provide
a community service channel program, as defined by Government Code
Section 53066.1, as amended, plus any additional requirements which
the council may, from time to time, impose;
6.
Provide,
at a minimum, a fully equipped permanent studio within the city limits,
or within six miles of the city limits, for public and municipal use,
plus such other mobile and portable studios as are, from time to time,
necessary;
7.
Consist
of state-of-the-art technology and be at least equivalent in capacity
and capability to those cable television systems constructed and operated
in adjacent cities.
B.
Nonbasic
Services. The cable television system permitted to be installed and
operated under this article may also engage in the business of:
1.
Transmitting
original cablecast programming not received through television broadcast
signals;
2.
Transmitting
television pictures, film and videotape programs not received through
broadcast television signals, whether or not encoded or processed
to permit reception by only selected receivers or subscribers;
3.
Transmitting
and receiving all other signals: digital, voice and audio-visual.
C.
Subscriber
Complaints. In addition to other service regulations adopted by the
council, and excepting circumstances beyond the grantee's control
such as acts of God, riots and civil disturbances, and in providing
the foregoing services, the grantee shall:
1.
Limit
system failures to minimum time duration by locating and correcting
malfunctioning promptly, but in no event longer than twenty-four hours
after occurrence, irrespective of holidays or other nonbusiness hours;
2.
Upon
complaint by a subscriber, make a demonstration satisfactory to the
city manager that a signal is being delivered which is of sufficient
strength and quality to meet the standards set forth in the regulations
of the Federal Communications Commission;
3.
Render
efficient service, making repairs promptly and interrupting service
only for good cause and for the shortest time possible. Planned interruptions,
insofar as possible, shall be preceded by notice given to subscribers
twenty-four hours in advance and shall occur during periods of minimum
use of the system;
4.
Maintain
an office within six miles of the city, which office shall be open
during all the usual business hours, with its telephone number listed
in directories of the telephone company serving the city, and be so
operated that complaints and requests for repairs or adjustment may
be received at any time, day or night, seven days a week; or provide
a local telephone directory listing and "toll free" telephone service
maintained on a seven-day, twenty-four-hour basis for the receipt
of consumer complaints;
5.
Maintain
a written record, or log, listing the date of customer complaints,
identifying the subscriber and describing the nature of the complaint,
and when and what action was taken by the grantee in response thereto;
such record shall be kept at the grantee's local office, for a period
of three years from the date of complaint, and shall be available
for inspection during regular business hours, without further notice
or demand, by the city manager.
D.
Municipal
Service. In addition to the foregoing provisions of this chapter:
1.
With
respect to the local government channel, the grantee shall provide,
at the request of the city manager, use of the grantee's studio, equipment
and technical services for production of live and videotaped municipal
programs, subject to scheduling requirements of the grantee;
2.
With
respect to the basic television services, the grantee shall provide
all subscriber services, and a tiein connection, without cost, when
the system possesses such facilities and as designated by the council,
subject to the requirements of federal law, to:
E.
Compatibility
and Connectibility.
1.
It
is the desire of the city that all cable television systems franchised
under this article shall, insofar as financially and technically possible,
be compatible with one another and with systems adjacent to the city.
2.
Wherever
it is financially and technically feasible, the grantee shall so construct,
operate and modify the system as to tie the same into all other systems
within and adjacent to the city.
3.
The
city may enter into agreements with adjacent cities to solicit and
evaluate proposals for the construction and operation of cable television
systems.
F.
Uses
Permitted. Any franchise granted pursuant to the provisions of this
article shall authorize and permit the grantee to engage in the business
of operating and providing a cable television system in the city,
and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain and retain in, on, over, under, upon, across
and along any street such poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, and appliances, attachments
and other property as may be necessary and appurtenant to the cable
television system; and, in addition, so to use, operate and provide
similar facilities or properties rented or leased from other persons,
firms or corporations, including, but not limited to, any public utility
or other grantee franchised or permitted to do business in the city.
(Prior code § 7-3; Ord. 1013-08 § 3)
A.
In consideration
of the granting and exercise of a franchise to use the streets, as
defined in this article, for the operation of a cable television system,
any grantee shall pay to the city, during the life of the franchise,
five percent of the franchisee's gross revenues per year from its
cable services in the community, except that, to the extent that the
Federal Communications Commission, in its Rules and Regulations, at
some time in the future, allows a municipality to raise such franchise
fee absent the showings currently required by Section 76.31 of the
Rules and Regulations of the Federal Communications Commission, without
qualification to a higher percentage. The city reserves the right
to unilaterally increase such franchise fee to such higher percentage.
B.
The
percentage payments shall be made in the manner and at times directed
in such franchise agreement or in a council resolution fixing franchise
fees and adopting rules for service and rate regulation.
C.
No acceptance
of any payment shall be construed as a release or as an accord and
satisfaction of any claim the city may have for further or additional
sums payable under this article or for the performance of any other
obligation under this article.
D.
In the
event that the above payment is not received by the city within the
specified time, the grantee shall pay to the city liquidated damages
of two percent per month on the unpaid balance in addition thereto.
(Prior code § 7-4; Ord. 1013-08 § 3)
A.
The
franchise(s) granted by the council under this article shall be for
a maximum term of fifteen years from the date of its acceptance by
the grantee. During the last year of the franchise, the grantee may
apply to the council for a renewal of the franchise. Permission to
renew for an additional equal term of fifteen years shall not be unreasonably
withheld if the grantee has substantially complied with the terms
and conditions of the existing franchise.
B.
The
city may terminate any franchise granted pursuant to the provisions
of this article in the event of the failure, refusal or neglect by
the grantee to do or comply with any material requirement or limitation
contained in this article, or any material rule or regulation of the
council or city manager validly adopted pursuant to this article.
C.
The
city manager may make written demand that the grantee do or comply
with any such requirement, limitation, term, condition, rule or regulation.
If the failure, refusal or neglect of the grantee continues for a
period of thirty days following such written demand, the grantor shall
cause a public hearing to be held thereon by the city council. A written
notice of this intent to request such termination, and of the time
and place of the meeting, shall be mailed certified to the grantee,
and such notice shall be published by the city clerk at least once
within ten days before such meeting in a newspaper of general circulation
within the city.
D.
The
council shall consider the request of the city manager and shall hear
any persons interested therein, and shall determine, in its discretion,
whether or not any failure, refusal or neglect by the grantee was
with just cause.
E.
If such
failure, refusal or neglect by the grantee was with just cause, the
council shall direct the grantee to comply within such time, in such
manner, and upon such terms and conditions as are reasonable.
F.
If the
council determines such failure, refusal or neglect by the grantee
was without just cause, then the council may, by resolution, declare
that the franchise of such grantee shall be terminated and forfeited,
unless there is compliance by the grantee within such period as the
council may fix, or reduce the length of the franchise by a period
of time up to the duration of the failure and/or violation.
G.
The
termination and forfeiture of any franchise shall in no way affect
any of the rights of the city under the franchise or any provision
of law.
H.
In the
event of any holding over after expiration of any franchise granted
under this article, without the prior consent of the city expressed
by resolution, the grantee shall pay to the city reasonable compensation
and damages, of not less than one hundred percent of its profits during
such period.
(Prior code § 7-5; Ord. 1013-08 § 3)
A.
Each
application for a franchise to construct, operate or maintain any
cable television system in the city shall be filed with the city clerk
and shall contain or be accompanied by the following:
1.
The
name, address and telephone number of the applicant;
2.
A
detailed statement of the corporate or other business entity organization
of the applicant, including, but not limited to, the following and
to whatever extent required by the city:
a.
The names and residence and business addresses of all officers, directors
and associates of the applicant,
b.
The names and residence and business addresses of all officers, persons
and entities having, controlling or being entitled to have or control
five percent or more 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 the applicant
in whole or in part, and a statement describing the nature of any
such parent or subsidiary business entity, including, but not limited
to, cable television 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, prepared
by an independent certified public accountant, for the fiscal year
next preceding the date of the application under this chapter, 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 a certified
public accountant, certifying that the applicant has available sufficient
free, net and uncommitted case resources to construct and operate
the proposed system in the city,
f.
A statement identifying, by place and date, any other cable television
franchise(s) awarded to the applicant, its parent or subsidiary; the
status of such franchise(s) with respect to completion thereof; the
total cost of completion of such system(s); and the amount of the
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 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,
e.
A detailed statement setting forth in their 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 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 provision of any other ordinance
of the city;
6.
An
application fee in the sum of two thousand five hundred dollars, which
shall be in the form of cash, certified or cashier's check, or money
order, to pay the costs of studying, investigating and otherwise processing
such application, and which shall be in consideration thereof and
not returnable or refundable in whole or in part, except to the extent
that such fee exceeds the actual costs incurred by the city in studying,
investigating and otherwise processing the application; provided that
any applicant who delivers to the city clerk a written withdrawal
of or cancellation of any application under this article, not later
than the seventh day next following the day such application is received
by the city clerk, shall be entitled to have returned and refunded
the sum of two thousand five hundred dollars less any actual costs
or expenses incurred by the city by reason of such application.
B.
The
council may, by advertisement or any other means, solicit and call
for applications for cable television 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, 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.
C.
If the
council determines 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 person having any interest therein or objections
thereto may file written protests and/or appear before the council
and be heard, and directing the city clerk to publish such resolution
at least once within ten days of the passage thereof in a newspaper
of general circulation within the city.
D.
In making
any determination under this chapter as to any application for a new
franchise or renewal thereof, the council may 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 abide by 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.
At the
time set for the hearing, or at any adjournment thereof, the council
shall proceed to hear all protests. Thereafter, the council by resolution
shall make one of the following determinations:
F.
The
council may reject any and all applications and may, if it so desires,
request new and/or additional proposals.
G.
The
council may at any time demand, and applicant(s) 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.
Any
grantee, upon the effective date of its franchise, shall be required
to reimburse the city for its estimated engineering, administrative,
publication and legal expenses incurred in connection with the development
of the city's cable television chapter, RFP preparation, and processing,
evaluation and preparation of documents relating to such franchise,
as such shall be established in the franchise agreement, in a total
amount not to exceed fifteen thousand dollars.
(Prior code § 7-6; Ord. 1013-08 § 3)
A.
Performance
Deposit to City. The grantee shall, concurrently with the filing of
an acceptance of award of the franchise granted under this chapter,
deposit in a financial institution selected by the city the sum of
one hundred fifty thousand dollars in a joint account with the grantee
and the city as cosignatories. This sum shall be maintained in this
account during the period from commencement to completion of construction
of the cable television system within the city limits. At the grantee's
sole option, the grantee may provide a letter of credit in the same
sum in lieu of the deposit required by this section, provided that
such letter of credit, the form of such letter of credit and issuing
institution, is approved by the city attorney. The return of said
sum, together with interest, to the grantee shall be conditioned upon
the faithful performance of the grantee, and upon the further condition
that in the event that the grantee fails to comply with any one or
more material terms or conditions set forth in this agreement, the
grantor may draw from this sum, together with interest thereon, any
damages or loss suffered by the grantor as a result of such failure,
including, but not limited to, the full amount of any compensation,
indemnification or cost of removal or abandonment of any property
of the grantee which may be in default, plus a reasonable allowance
for any attorney's fees and other costs.
B.
Surety.
Upon the effective date of the franchise agreement, the grantee shall
provide to the grantor by filing with the city clerk, and shall thereafter
maintain in full force and effect during the entire term of such agreement,
a corporate surety bond or other surety agreement, including a certificate
of deposit or letter of credit with an unconditional right of call
on the part of the grantor, approved in writing by the grantor, in
the amount of fifty thousand dollars. This bond or agreement filed
with the grantor shall provide that in the event the grantee fails
to comply with any one or more of the material terms or conditions
set forth in the agreement, or with any term or condition of any undertaking
made between the grantee and any subscriber, then there shall be recoverable
jointly and severally from the principal and surety any and all damages
and costs suffered or incurred by any subscriber as a result thereof,
including, but not limited to, reasonable attorney's fees and costs
of any action or proceeding brought to collect such damages or costs.
C.
Hold-harmless
Agreement. The grantee shall indemnify and hold harmless the city,
its officers, boards, commissions, agents and employees, against and
from any and all claims, demands, causes of actions, actions, suits,
proceedings, damages (including, but not limited to, damages to city
property and damages arising out of copyright infringements, and damages
arising out of any failure by the grantee to secure consents from
the owners, authorized distributors or licensees of programs to be
delivered by the grantee's cable television system), costs or liabilities
(including costs or liabilities of the city with respect to its employees),
of every kind and nature whatsoever, including, but not limited to,
damages for injury or death or damage to person or property, and regardless
of the merit of any of the same, and against all liability to others,
and against any loss, cost and expense resulting or arising out of
any of the same, including any attorney's fees, accountant's fees,
expert witness or consultant's fees, court costs, per-diem expense,
traveling and transportation expense, or other costs or expenses arising
out of or pertaining to the exercise or the enjoyment of any franchise
under this chapter by the grantee or the granting thereof by the city.
D.
Defense
of Litigation.
1.
The
grantee shall, at the sole risk and expense of the grantee, upon demand
of the city made by and through the city attorney, appear in and defend
any and all suits, actions or other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative or otherwise, brought
or instituted or had by third persons or duly constituted authorities,
against or affecting the city, its officers, boards, commissions,
agents or employees, and arising out of or pertaining to the exercise
or the enjoyment of such franchise or the granting thereof by the
city.
2.
The
grantee shall pay and satisfy or shall cause to be paid and satisfied
any judgment, decree, order, directive or demand rendered, made or
issued against the grantee, the city, its officers, boards, commissions,
agents or employees in any of these premises; and such indemnity shall
exist and continue without reference to or limitation by the amount
of any bond, policy of insurance, deposit, undertaking or other assurance
required under this article or otherwise; provided that neither the
grantee nor the city shall make or enter into any compromise or settlement
of any claim, demand, cause of action, action, suit or other proceedings
without first obtaining the written consent of the other.
E.
Insurance Required. Upon being granted a franchise, and upon the filing of the acceptance required under Section 5.32.080, the grantee shall file with the city clerk and shall thereafter during the entire term of such franchise maintain in full force and effect at its own cost and expense each of the following policies of insurance:
1.
General
comprehensive liability insurance in the amount of two million dollars;
2.
Bodily
injury liability insurance in an amount not less than five hundred
thousand dollars for injuries, including accidental death, to any
one person, and subject to the same limit for each person in an amount
not less than one million dollars on account of any one occurrence;
3.
Property
damage liability insurance in an amount not less than two hundred
fifty thousand dollars resulting from any one occurrence;
4.
Broadcasters'
liability insurance in the amount of one million dollars, insuring
against all liability by reason of or arising out of any failure by
the grantee to secure consents from the owners, authorized distributors
or licensees of programs to be delivered by the grantee's CATV system,
or violation or alleged violation of copyright, and against any loss,
cost, expense and damages resulting therefrom;
5.
Workers'
compensation insurance in the statutory amount.
F.
The
grantor, its officers, employees and agents, shall be named as an
additional insured in any and all of these insurance policies, except
for workers' compensation, which shall not be cancellable nor shall
coverage be reduced without thirty days' advance written notice to
the grantor. The grantee shall make a good-faith effort to have the
city named as an additional insured on the broadcaster's liability
insurance, but if such cannot be obtained, the grantor hereby waives
such requirement. All of these insurance policies shall be maintained
in full force and effect at the sole cost and expense of the grantee
for the term of this agreement. Where such insurance is provided by
a policy which also covers the grantee or any other entity or person,
the policy shall contain the standard cross-liability endorsement.
G.
The
type of insurance and minimum limits of insurance required herein
may become inadequate during the term of such franchise. The grantee
shall add such insurance coverage and increase such minimum limits
by such amounts as will adequately protect the grantor, when reasonably
requested to do so by the grantor.
(Prior code § 7-7; Ord. 1013-08 § 3)
A.
No franchise
granted under this article shall become effective for any purpose
unless and until written acceptance thereof has been filed with the
city clerk. Written acceptance, which shall be in the form and substance
approved by the city attorney, shall also be and operate as an acceptance
of each and every term and condition and limitation contained in this
article, or in such franchise, or otherwise specified as herein provided.
B.
The written acceptance shall be filed by the grantee not later than 12:01 p.m. of the thirtieth day next following the city council's adoption of the resolution granting such franchise pursuant to Section 5.32.060(E)(2).
C.
In default
of the filing of such written acceptance as herein required, the grantee
shall be deemed to have rejected and repudiated the franchise. Thereafter,
the acceptance of the grantee shall not be received nor filed by the
city clerk. The grantee shall have no rights, remedies or redress
in the franchise unless and until the council, by resolution, determines
such terms and conditions as the council may impose.
D.
In any
case and in any instance, all rights, remedies and redress which may
or shall be available to the city shall at all times be available
to the city, and shall be preserved and maintained and shall continuously
exist in and to the city, and shall not be in any manner or means
modified, abridged, altered, restricted or impaired by agreement or
otherwise.
E.
Any
franchise granted and accepted under this article shall be in lieu
of any and all other rights, privileges, powers, immunities and authorities
owned, possessed, controlled or exercisable by the grantee, of or
pertaining to the construction, operation or maintenance of any cable
television systems in the city.
(Prior code § 7-8; Ord. 1013-08 § 3)
A.
Every
franchise granted under this article shall be nonexclusive.
B.
No privilege
or exemption shall be granted or conferred by any franchise granted
under this article except those specifically prescribed herein.
C.
Any
privilege claimed under any such franchise by the grantee in any street
or other public property shall be subordinate to any prior lawful
occupancy of the streets or other public property.
D.
Any
such franchise shall be a privilege to be held in personal trust by
the original grantee. It cannot in any event be sold, transferred,
leased, assigned or disposed of, in whole or in part, either by forced
or involuntary sale or by voluntary sale, merger, consolidation or
otherwise, without prior consent of the council expressed by resolution,
and then only under such conditions as may therein be prescribed.
Any review and decision of the council regarding any such disposition
shall be completed within sixty days of the application therefor by
the grantee. In order to warrant city council approval of a transfer,
lease, assignment or other disposition of the subject cable television
system by the grantee, the proposed new grantee must demonstrate financial
responsibility and must agree to comply with all provisions of the
franchise and this article; except that no council consent shall be
required for a transfer in trust, mortgage or other hypothecation
as a whole to secure an indebtedness of the grantee, nor shall council
consent be required for changes in the structure of the corporations,
individuals or entities comprising the subject general partnership,
so long as the grantee remains the principal provider of the service
under this article.
Prior approval by the city council, expressed by resolution,
shall be required where there is an actual change in control of the
grantee or where ownership of more than fifty percent of the voting
stock of the grantee is acquired by a person or persons acting in
concert, none of whom owns, prior to such acquisition, fifty percent
or more of the voting stock, individually or collectively.
Any authorized transfer, lease assignment or other disposition
shall be made only by a duly executed written instrument, a copy of
which shall be filed with the city clerk within thirty days after
the effective date of such transaction.
E.
Time
shall be of the essence of any such franchise granted under this article.
The grantee shall not be relieved of its obligation to comply promptly
with any provisions of this article by any failure of the city to
enforce prompt compliance.
F.
Any
right or power in, or duty impressed upon, any officer, employee,
department or board of the city shall be subject to transfer by the
city to any other officer, employee, department or board of the city.
G.
The
grantee shall have no recourse whatsoever against the city for any
loss, cost, expense or damage arising out of any provision or requirement
of this article or of any franchise issued hereunder or because of
its enforcement.
H.
The
grantee shall be subject to all requirements of city laws, rules,
regulations and specifications here-tofore or hereafter enacted or
established.
I.
Any
such franchise granted shall not relieve the grantee of any obligations
involved in obtaining pole or conduit space from any department of
the city, any utility company, or from others maintaining utilities
in streets.
J.
Any
franchise granted under this article shall be in lieu of any and all
other rights, privileges, powers, immunities and authorities owned,
possessed, controlled or exercisable by the grantee, or any successor
to any interest of the grantee, of or pertaining to the construction,
operation or maintenance of any cable television system in the city;
and the acceptance of any franchise under this article shall operate,
as between the grantee and the city, as an abandonment of any and
all of such rights, privileges, powers, immunities and authorities
within the city, to the effect that, as between the grantee and the
city, any and all construction, operation and maintenance by any grantee
of any cable television system in the city shall be, and shall be
deemed and construed in all instances and respects to be, under and
pursuant to said franchise, and not hereunder or pursuant to any other
right, privilege, power, immunity or authority whatsoever.
(Prior code § 7-9; Ord. 1013-08 § 3)
A.
There
is reserved to the city every right and power which is required to
be herein reserved or provided by any law, and the grantee, by its
acceptance of the franchise, agrees to be bound thereby and to comply
with any action or requirements of the city in its exercise of such
rights and powers, heretofore or hereafter enacted or established.
B.
Nothing
in this article shall be deemed or construed to impair or affect,
in any way, to any extent, the right of the city to acquire the property
of the grantee, either by purchase or through the exercise of the
right of eminent domain, at a fair and just value. Unless the grantee
and the grantor otherwise agree, the value of the CATV system shall
be the aggregate of the replacement value of tangible assets and the
going-concern value of the franchised CATV system; provided, however,
that if the grantee shall be materially in default in the performance
of its obligations under such franchise and has not cured such default
in accordance with the provisions of the agreement, then the grantor
shall have the right to take possession of the CATV system and acquire
ownership thereof by paying the grantee the replacement value of the
tangible assets in use at the time of such acquisition, but without
having any obligation to pay the grantee the going-concern value of
the system. Nothing herein contained shall be construed to contract
away, modify or abridge, whether for a term or in perpetuity, the
city's right of eminent domain.
C.
Neither
the granting of any franchise nor any provision of this article shall
constitute a waiver or bar to the exercise of any governmental right
or power of the city.
D.
The
council may do all things which are necessary and convenient in the
exercise of its jurisdiction under this article and may determine
any question of fact which may arise during the existence of any franchise
granted under this chapter. The city manager, with the approval of
the city attorney, is authorized and empowered to adjust, settle or
compromise any controversy or charge arising from the operations of
any grantee under this chapter, either on behalf of the city, the
grantee, or any subscriber, in the best interest of the public. Either
the grantee or any member of the public who may be dissatisfied with
the decision of the city manager may appeal the matter to the council
for hearing and determination. The council may accept, reject or modify
the decision of the city manager, and the council may adjust, settle
or compromise any controversy or cancel any charge arising from the
operations of the grantee or from any provision of this article.
E.
The franchise granted to the grantee shall be subject to such additional rules and regulations as the city may from time to time adopt consistent with the limitations of federal or state law. In the event that the Federal Communications commission elects to deregulate any area of cable communications over which it currently exercises jurisdiction, or to grant authority to municipalities to regulate in these areas, the city may, if it so elects, adopt additional rules and regulations. No such additional rules and regulations shall become effective without the grantee having been given notice and an opportunity to be heard concerning such rules and regulations as provided in Section 5.32.110(A)(3). In such event any franchise issued pursuant to this article shall automatically be amended, without any additional act by any party to it, to be consistent with such rules and regulations.
(Prior code § 7-10; Ord. 1013-08 § 3)
A.
Standards
of operation shall be subject to the following:
1.
Prior
to receiving any applications for franchises, the council may adopt
rules, regulations and standards governing the operation of cable
television systems in the city. Such rules, regulations and standards
shall apply to and shall govern the operations of the grantee of any
franchise under this article, and are expressly declared a part of
any franchise hereunder.
2.
The
standards adopted pursuant to these procedures shall be exclusively
in those areas not either expressly or impliedly preempted by the
Federal Communications Commission at the time of adoption.
3.
The
council may at any time adopt new rules, regulations or standards,
or may amend, modify, delete or otherwise change its respective rules
or regulations or standards previously adopted, in the following manner:
the council shall pass its resolution of intention stating or describing
the rules or regulations or standards to be adopted, amended, modified,
deleted or otherwise changed, and fixing and setting forth a day,
hour and place certain when and where any persons having any interest
therein or objection thereto may appear before the council and be
heard. Such resolution shall direct the city clerk to publish the
same at least once within ten days of the passage thereof in a newspaper
of general circulation within the city, and to mail a copy of the
same to any grantee or applicant for a franchise not more than thirty
days nor less than fifteen days prior to the time fixed for hearing
thereon.
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At the time set for such hearing, or at any adjournment thereof,
the council shall proceed to hear and pass upon such comments as may
be presented. Thereafter the council, by its resolution, may adopt,
amend, modify, delete or otherwise change its respective rules, regulations
and standards. Such determination by the council shall be final and
conclusive. The rules and regulations, as amended, modified, deleted
or otherwise changed by the council shall become effective upon the
tenth day following the adoption of such resolution, unless a longer
period shall be otherwise provided in such resolution.
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B.
Rates.
The following limitations shall apply to the rates charged to subscribers
by the grantee:
1.
All
services, including installation, programming and otherwise shall
be offered at uniform rates and charges for the same class of services.
2.
The
grantee shall not increase the initial rates for a period of thirty-six
months after the effective date of the franchise, or twenty-four months
from the date the CATV system is complete, has been fully energized,
and service can be offered to subscribers in every area served by
the franchise, whichever period ends later.
3.
After expiration of the time prescribed in subsection (B)(2) of this section for maintenance of initial rates, rates set forth may only be increased by the grantee with the approval of the grantor, given only after compliance with the procedure provided in this section. Increases in rates shall be requested no more often than annually by the grantee. Upon receipt of a rate increase request, the grantor shall schedule a public hearing prior to arriving at a decision. No rate increase shall be approved without the grantee having given each subscriber thirty days' prior written notice of such public hearing. The grantor may request relevant financial and other information necessary to determine the justification for the requested increase. Within ninety days after receipt of the rate increase request, the grantor, by resolution, shall approve the request in full, approve the request in part, or disapprove the request. In any event, the grantor shall provide findings as to the basis for its decision. The grantor shall consider any or all of the following factors in determining whether to approve, modify or disapprove the grantee's requests for rate increases during the term of the franchise:
a.
The grantee's substantial fulfillment of all material requirements
of the franchise;
b.
Quality of service, as indicated by the number and type of service
complaints, the grantee's response to complaints, and the results
of periodic system performance tests;
c.
Prevailing rates for comparable services in other cable systems of
similar size and complexity;
d.
Rate of return on the grantee's financial investment and equity,
as compared to businesses of equivalent risk. The rate of return shall
be calculated on a cumulative basis for all system revenues and costs,
including services such as pay-television that may be exempt from
local rate regulation. The grantor shall have the right to request
from the grantee all information as shall be reasonably necessary
to determine revenues and costs of the cable television system regulated
by the franchise;
e.
Performance of the grantee in introducing new services and expanding
the cable system's capability, as compared to other systems of similar
size and complexity.
No rate increase shall become effective without the grantee
having given each subscriber thirty days' written notice that such
rate increase has been approved.
4.
No
charge shall be imposed upon any subscriber for termination of cable
television service or removal of cable television apparatus upon termination
of such service. No rate or charge of any type shall be imposed on
a subscriber after receipt of notice of termination from such subscriber,
unless such subscriber withdraws such notice prior to actual termination
of service.
5.
No
charge shall be made to any subscriber by reason of the maintenance,
repair, removal or replacement of any cable television apparatus,
or property of the grantee, unless the same was caused by the deliberate
and negligent act of such subscriber.
6.
Except
as otherwise provided elsewhere in this article, the grantee shall
not charge different rates to subscribers within the same class of
service, nor shall there be any difference in the services or facilities
or in any other respect between subscribers within the same class,
except as authorized in Section 230 and except that installation charges
may vary according to the costs of installation. No grantee shall
make or grant any preference to any corporation or person as to rates,
charges, services, facilities or rebates or in any other respect,
nor subject any corporation or person to any prejudice or disadvantage.
(Prior code § 7-11; Ord. 1013-08 § 3)
A.
Within
thirty days after acceptance of any franchise, the grantee shall proceed
with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business, including, but
not limited to, any utility joint use attachment agreements, microwave
carrier licenses and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of the cable television system, or associated micro
transmission facilities.
In connection therewith, copies of all petitions, applications
and communications submitted by the 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 the grantee's cable television operations,
shall also be submitted simultaneously to the chief administrative
officer.
B.
Within
six months of the effective date of the franchise agreement, the grantee
shall commence construction and installation of the cable television
system.
C.
Within
one hundred eighty days after the commencement of construction and
installation of the system, the grantee shall proceed to render service
to subscribers, and the completion of the installation and construction
shall be pursued with reasonable diligence thereafter, so that service
to all of the areas designated and scheduled on the map and plan of
construction made part of the franchise shall be provided as set forth
therein. The grantee is required to complete construction of the entire
system in a maximum of one year from the date of the granting of the
franchise.
D.
The
grantee shall utilize existing poles, conduits and other facilities
whenever possible, and shall not construct or install any new, different
or additional poles, conduits or other facilities, whether on public
property or on privately-owned property, unless and until first securing
the written approval of the city manager.
Whenever the grantee shall not utilize existing poles, conduits
and other facilities, or whenever existing conduits and other facilities
shall be located beneath the surface of the streets, or whenever the
city shall undertake a program designed to cause all conduits and
other facilities to be located beneath the surface of the streets
in any area or throughout the city, in the exercise of its police
power or pursuant to the terms of this article, upon reasonable notice
to the grantee, any such conduits or other facilities of the grantee
shall be constructed, installed, placed or replaced beneath the surface
of the streets. Any construction, installation, placement, replacement
or changes which may be so required shall be made at the expense of
the grantee, whose costs shall be determined as in the case of public
utilities.
E.
The
city shall have the right, free of charge, to make additional use,
for any public or municipal purpose, whether governmental or proprietary,
of any poles, conduits or other similar facilities erected, controlled
or maintained exclusively by or for the grantee in any street, provided
such use by the city does not interfere with the use by the grantee.
F.
In those
areas of the city where the transmission or distribution facilities
of the respective public utilities providing telephone, communication
and electric services are underground or hereafter are placed underground,
the grantee likewise shall construct, operate and maintain all of
its transmission and distribution facilities underground. The term
"underground" shall include a partially underground system, provided
that, upon obtaining the written approval of the city manager, amplifiers
in the grantee's transmission and distribution lines may be placed
in appropriate housings upon the surface of the ground.
G.
The
grantee, at its expense, shall protect, support, temporarily disconnect,
relocate or remove any property of the grantee when, in the opinion
of the city manager, the same is required by reason of traffic conditions,
public safety, street vacation, freeway or street construction, change
or establishment of street grade, installation of sewers, drains,
waterpipes, power line, signal line, transportation facilities, tracks
or any other types of structure or improvements or governmental agencies,
whether acting in a governmental or a proprietary capacity, or any
other structure or public improvement, including, but not limited
to, movement of buildings, urban renewal and redevelopment, and any
general program under which the city shall undertake to cause all
such properties to be located beneath the surface of the ground. The
grantee shall in all cases have the privilege, subject to the corresponding
obligations, to abandon any property of the grantee in place, as herein
provided. Nothing hereunder shall be deemed a taking of the property
of the grantee, and the grantee shall be entitled to no surcharge
by reason of anything hereunder.
H.
Upon
the failure, refusal or neglect of the grantee to cause any work or
other act required by law or under this section to be properly completed
in, on, over or under any street within any time prescribed therefor,
or upon notice given where no time is prescribed, the city manager
may cause such work or other act to be completed in whole or in part,
and upon so doing shall submit to the grantee an itemized statement
of the costs thereof. The grantee shall, within thirty days after
receipt of such statement, pay to the city the entire amount thereof.
If timely payment of such cost is not made by the grantee, such amount
shall be recovered by the city from the proceeds of the performance
bond of the grantee.
(Prior code § 7-12; Ord. 1013-08 § 3)
A.
In the
event that:
1.
The
use of any part of the system of the grantee is discontinued for any
reason for a continuous period of thirty days, without prior written
notice to or approval of the city; or
2.
Any
part of such system has been installed in any street or other area
without complying with the requirements of this article, then any
franchise shall be terminated, canceled or shall expire, and the grantee
shall, at the option of the city, and at no expense to the city, and
upon demand of the city promptly remove from any streets or other
area all property of the grantee, and the grantee shall promptly restore
the street or other area from which such property has been removed
to such condition as the city manager shall approve.
B.
The
council may, upon written application therefor by the grantee, approve
the abandonment of any such property in place by the grantee and under
such terms and conditions as the council may prescribe. Upon abandonment
of any such property in place the grantee shall cause to be executed,
acknowledged and delivered to the city such instruments as the city
attorney shall prescribe and approve, transferring and conveying the
ownership of such property to the city.
(Prior code § 7-13; Ord. 1013-08 § 3)
A.
The
performance of the grantee's cable television system shall meet the
technical standards of the FCC, 47 CFR, Section 76.601, or any successor
section of the Federal Communications Commission's Rules and Regulations,
as these requirements may apply or be extended from time to time.
B.
Tests
shall include, at a minimum: pre-construction tests, initial proof-of-performance
tests, annual compliance tests, tests in response to subscriber complaints,
and monthly monitor tests.
(Prior code § 7-14)
A.
At all
reasonable times, the grantee shall permit any duly authorized representative
of the city to examine all property of the grantee, together with
any appurtenant property of the grantee situated within or without
the city, and to examine and transcribe any and all maps and other
records kept or maintained by the grantee with respect to its franchise.
If any such maps or records are not kept in the city, or upon reasonable
request made available in the city, and if the council shall determine
that an examination thereof is necessary or appropriate, then all
travel and maintenance expense necessarily incurred in making such
examination shall be paid by the grantee.
B.
The
grantee shall prepare and furnish to the city manager and the city
clerk, at the times and in the form prescribed by either of said officers,
such reports with respect to its operations, affairs, transactions
or property as may be reasonably necessary or appropriate to the performance
of any of the rights, functions or duties of the city or any of its
officers in connection with the franchise.
C.
The
grantee shall at all times make and keep in the city full and complete
plans and records showing the exact location of all cable television
system equipment installed or in use in streets and other public places
in the city.
D.
The
grantee shall file with the city manager, on or before the last day
in March of each year, a current map or set of maps, drawn to scale,
showing all cable television system equipment installed and in place
in streets and other public places of the city.
(Prior code § 7-15)
A.
Upon
the revocation of the franchise, or the expiration of the term thereof,
the grantor may, in any lawful manner and upon the payment of fair
market value lawfully ascertained, purchase, condemn, acquire, take
over and hold the property and plant of the grantee in whole or in
part.
B.
In order
to preserve the right of the city under the franchise provided for,
and its right to acquire the property of the grantee by purchase or
by eminent domain proceedings at its then fair market value, at any
time during the existence of the franchise, it is especially provided
that if at any time the franchise or the property of the grantee under
the franchise shall become the subject of eminent domain proceedings
by the city, the city reserves and shall have the right at the time
such proceedings are commenced, or at any time thereafter, to terminate
said franchise by resolution.
(Prior code § 7-16)
The city may intervene in any suit or proceeding in which the
grantee is a party, provided that the city's interests are not adequately
represented by the existing parties, and provided further that the
disposition of each suit or proceeding without the city's participation
may, as a practical matter, impair or impede the city's ability to
protect those interests.
(Prior code § 7-17)
A.
In the
event any new territory is annexed to the city which is contiguous
to only one franchise area in the city, such new territory shall become,
by operation of law, a part of such franchise area immediately upon
the effective date of such annexation.
B.
In the
event any new territory becomes annexed to the city which is contiguous
to more than one franchise area in the city or is not contiguous to
any franchise area, then the council shall determine at a public hearing
which grantee or grantees, if any, shall serve such new territory.
C.
In the
event any portion of the unincorporated territory covered by an existing
franchise or license granted by the county of Los Angeles is annexed
to the city prior to the time that the grantee of such county franchise
or license has commenced installation of a cable television system
within such territory, all rights acquired by such grantee under its
county franchise or license shall terminate by operation of law as
of the date on which the annexation to the city becomes effective.
D.
In the
event any portion of unincorporated territory covered by an existing
franchise or license granted by the county of Los Angeles is annexed
to the city after the grantee thereof has commenced or completed construction
and installation of a cable television system within such territory,
the rights reserved under such franchise or license to the county
of Los Angeles or to any officer thereof shall inure to the benefit
of the city, and all regulatory provisions of this article and any
other rules and regulations applicable to cable television systems
operating within the city, whether then in effect or subsequently
adopted, shall be applicable to and binding upon such grantee. In
addition, the grantee shall be obligated to pay annually to the city
the percentage of gross receipts established by the county of Los
Angeles in such franchise or license which are derived from its operations
within the annexed territory for five years or until termination of
the franchise, whichever is of the shorter time duration, at which
time the council may establish the percentage of gross receipts to
be paid to the city.
(Prior code § 7-18; Ord. 1013-08 § 3)
A.
The
grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries
or nuisances to the public.
B.
The
grantee shall install and maintain its wires, cables, fixtures and
other equipment in accordance with the requirements of the National
Electrical Code, as it now exists or hereafter may be amended, and
in such manner that they will not interfere with any installations
of the city or of a public utility serving the city.
C.
All
structures and all lines, equipment and connections in, over, under
and upon the streets, sidewalks, alleys and public ways or places
of the city, wherever situated or located, shall at all times be kept
and maintained in a safe, suitable, substantial condition, and in
good order and repair.
D.
The
grantee shall strictly adhere to all building and zoning codes currently
or hereafter in force. The grantee shall arrange its lines, cables
and other appurtenances on both public and private property in such
a manner as to cause no unreasonable interference with the use of
such public or private property by any person.
(Prior code § 7-19)
Upon termination of service to any subscriber, the grantee shall
promptly remove all its facilities and equipment from the premises
of such subscriber upon the subscriber's request.
(Prior code § 7-20)
Any and all streets and public ways which are disturbed or damaged
during the construction, operation, maintenance or reconstruction
of the cable television system shall be promptly repaired by the grantee,
at its expense, to the satisfaction of the city.
(Prior code § 7-21)
The grantee is expected to make use of existing aerial poles.
However, the grantee shall have the right to erect poles if written
permission is obtained from the city. Except as may be permitted,
the grantee shall lease pole space from the existing owners for all
construction. The city shall utilize its best efforts to assist in
arriving at an equitable rental agreement.
(Prior code § 7-22)
A.
Services
shall be offered to all city residents in accordance with the provisions
of the franchise agreement. The grantee shall not materially reduce
the level of service without permission of the city, but may at its
discretion substitute programming to offer subscribers an equal or
better array of services.
B.
The
grantee shall render efficient service, making repairs promptly and
interrupting service only for good cause and for the shortest time
possible. The grantee shall limit system failures to minimum time
duration by locating and correcting malfunctioning promptly, but in
no event longer that twenty-four hours after occurrence, irrespective
of holidays or other nonbusiness hours. Planned interruptions, insofar
as possible, shall be preceded by notice given to subscribers twenty-four
hours in advance and shall occur during periods of minimum use of
the system. The grantee shall credit a subscriber's account based
upon the degree of service loss (amount of time, time of day, type
of programming, type of service, etc.) for loss, reduction or degradation
of service commencing twenty-four hours after notification of the
grantee.
C.
The
grantee shall maintain a maintenance service log covering the preceding
three years, listing date of subscriber complaints, identifying the
subscriber and describing the nature of the complaint, and when and
what action was taken by the grantee in response thereto. The log
shall be kept at the grantee's local office and shall be available
for inspection by the grantor during regular business hours.
(Prior code § 7-23)
A.
Upon
the foreclosure or other judicial sale of all or a substantial part
of the cable television system, or upon the termination of any lease
covering all or a substantial part of the cable television system,
the grantee shall notify the city clerk 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 article governing
the consent of the council to such change in control of the grantee
shall apply.
B.
The
city shall have the right to revoke the franchise one hundred twenty
days after the appointment of a receiver or trustee to take over and
conduct the business of the 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 receiver's election or appointment,
such receiver or trustee has fully complied with all the provisions
of the franchise and remedied all defaults thereunder;
2.
Such
receiver or trustee, within said one hundred twenty days, has 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 franchise.
(Prior code § 7-24; Ord. 1013-08 § 3)
It shall be the right of all subscribers to receive all available
services insofar as their financial and other obligations to the grantee
are honored. In the event that the grantee elects to overbuild, rebuild,
modify or sell the system, or the city revokes or fails to renew the
franchise, the grantee shall do everything in its power to ensure
that all subscribers receive continuous, uninterrupted service regardless
of the circumstances during the lifetime of the franchise. (In the
event of purchase by the city, or a change of the grantee, the current
grantee shall cooperate with the city to operate the system for a
temporary period, in maintaining continuity of service to all subscribers.
(Prior code § 7-25)
A.
Any
individual, partnership or corporation employed by the city for the
purposes of advising the city, its council, commissions, city manager
or staff on matters relating to cable television, or reviewing and
evaluating, or assisting the city in reviewing and evaluating, proposals
for the construction and operation of a cable television system(s),
or regulating, or assisting the city in regulating, a cable television
system, shall, as a term condition of their employment, file within
ten days of the date of employment with the city clerk a statement
containing:
1.
A
listing and description of any financial and/or ownership interest
held by the consultant in any cable television company, any subsidiary
or affiliate of any cable television company, any company which is
a supplier or customer of any cable television company, or in another
company which owns stock or has any interest in any of those types
of companies which are described in this section. If the consultant
is a partnership, the financial and/or ownership interest in cable
television companies, affiliates, subsidiaries, suppliers and customers
of any partner must be disclosed. If the consultant is a corporation,
the financial and/or ownership interests in cable television companies,
affiliates, subsidiaries, suppliers and customers of any shareholder,
officer or directors must be disclosed.
2.
A
listing and description of any cable television company, affiliate,
subsidiary, supplier or customer which the consultant has represented,
on a compensated or noncompensated basis, within the last fifteen
years.
B.
The
statement filed pursuant to this section shall be a public document
open to inspection by any person. Failure to file this statement,
or the inclusion of a material misrepresentation or omission within
the statement, shall constitute grounds for the city's termination
of the employment contract. This provision shall not apply to individuals
who are subject to the reporting requirements of the "Political Reform
Act of 1974" (California Government Code Sections 81008 et seq.),
under the local Conflict of Interest Code if the disclosures required
by the code are substantially similar to those of this section.
(Prior code § 7-26)
A.
A franchise
granted to provide service within the city may authorize and permit
the grantee to solicit, sell, distribute and make a charge to subscribers
within the city for connection to the cable television system of the
grantee, and shall also authorize and permit the grantee to traverse
any portion of the city in order to provide service outside the city.
B.
A franchise,
easement, license or other permit granted to anyone other than the
grantee to any portion of the city in order to provide service outside
the city shall not authorized nor permit such person to solicit, sell,
distribute or make any charge to subscribers within the city, nor
to render any service to or connect any subscriber within the city.
C.
No franchise
granted under this chapter shall ever be given any value by any court
or other authority, public or private, in any proceeding of any nature
or character, wherein or whereby the city shall be a party or affected
therein or thereby.
D.
The
grantee shall be subject to all provisions of the other ordinances,
rules, regulations and specifications of the city heretofore or hereafter
adopted, including, but not limited to, those pertaining to works
and activities in, on, over, under and about streets.
Any privilege claimed under any franchise granted pursuant to
this article in any street or other public property shall be subordinate
to any prior lawful occupancy of the streets or other public property.
The grantee also shall be subject to the provisions of general
laws of the state of California, or as hereafter amended, when applicable
to the exercise of any privilege contained in any franchise granted
under this article, including, but not limited to, those pertaining
to works and activities in and about state highways.
E.
The
grantee shall be prohibited from directly or indirectly doing any
of the following:
1.
Engaging
in the business of selling at retail, leasing, renting, repairing
or servicing of television sets or radios;
2.
Imposing
a fee or charge for any service or repair to subscriber-owned receiving
devices, except for the connection of its service or for the determination
by the grantee of the quality of its signal to the recipients thereof;
3.
Soliciting,
referring or causing or permitting the solicitation or referral of
any subscriber to persons engaged in any business herein prohibited
to be engaged in by the grantee;
4.
Providing
information concerning the viewing patterns of identifiable individual
subscribers to any person, group or organization for any purpose.
F.
If the
Federal Communications Commission or the Public Utilities Commission
of the State of California or any other federal or state body or agency
shall now or hereafter exercise any paramount jurisdiction over the
subject matter of any franchise granted under this article, then to
the extent such jurisdiction shall preempt or preclude the exercise
of like jurisdiction by the city, the jurisdiction of the city shall
cease and no longer exist.
G.
When
not otherwise prescribed in this chapter, all matters herein required
to be filed with the city shall be filed with the city clerk.
H.
No person,
firm or corporation within the service area of the grantee, and where
trunk lines are in place, shall be refused service; provided, however,
that the grantee shall not be required to provide service to any subscriber
who does not pay the applicable connection fee or service charge.
I.
Before
providing cable television service to any subscriber, the grantee
shall provide a written notice to the subscriber, substantially as
follows:
Subscriber is hereby notified that in providing cable television
service the grantee is making use of public rights-of-way within the
city of Lawndale and that [if] the continued use of such right-of-way
is denied to grantee for any reason, grantee will make every reasonable
effort to provide service over alternate routes. By accepting cable
television service, subscriber agrees he will make no claim nor undertake
any action against the city of Lawndale, its officers, or its employees
if the service to be provided hereunder is interrupted or discontinued.
J.
The
form of the grantee's contract with the subscriber shall also be subject
to approval of the city.
K.
The
grantee may be required, at the option of the city, to purchase from
the city any cable television system purchased through a negotiated
sale or taken through eminent domain by the city, at a price equal
to the city's total costs, including attorneys' and appraisers' fees
and other costs of negotiation and/or litigation. The grantee shall
be required to operate such system as part of its systems, without
interruption of service, subject to the terms and conditions of the
grantee's franchise and this article.
(Prior code § 7-27; Ord. 1013-08 § 3)
A.
In the
carrying out of the construction, maintenance and operation of the
cable television system, the grantee shall not discriminate against
any employee or applicant for employment because of race, creed, color,
sex or national origin.
B.
The
grantee shall take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without
regard to their race, creed, color, sex or national origin. Such action
shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff
or termination, rates of pay or other forms of compensation, and selection
of training, including apprenticeship.
C.
The
grantee shall post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of
this nondiscrimination clause.
D.
The
grantee shall, in all solicitations or advertisements for employees
placed by or on behalf of the grantee, state that all qualified applicants
shall receive consideration for employment without regard to race,
creed, color, sex or national origin.
E.
The
grantee shall incorporate the foregoing requirements in all of its
contracts for work relative to construction, maintenance and operation
of the cable television system, other than contracts for standard
commercial supplies or raw materials, and shall require all of its
contractors for such work to incorporate such requirements in all
subcontracts for such work.
(Prior code § 7-28)
A.
It is
unlawful for any person to construct, install or maintain within any
public street in the city, or within any other public property of
the city, or within any privately-owned area within the city which
has not yet become a public street but is designated or delineated
as a proposed public street on any tentative subdivision map approved
by the city, any equipment or facilities for distributing any television
signals or radio signals through a cable television system, unless
a franchise authorizing such use of such street or property or area
has first been obtained pursuant to the provisions of this chapter
and unless such franchise is in full force and effect.
B.
It is
unlawful for any person, firm or corporation to make or use any unauthorized
connection, whether physically, electrically, acoustically, inductively
or otherwise, with any part of a franchised cable television system
within the city for the purpose of enabling such person, firm or corporation,
or others, to receive or use any television signal, radio signal,
picture, program or sound without payment to the owner of such 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 television signals, radio signals, pictures, programs
or sound.
D.
Liquidated
damages shall be assessed in an amount not to exceed one hundred dollars
per day or, where it is determined on the basis of expert professional
opinion that there is a failure to meet the technical performance
standards specified in this article, not to exceed two hundred fifty
dollars per day, for the grantee's violation or failure to take corrective
action with respect to a violation of any provision of this article,
provided that such remedy may only be imposed by the city council
after compliance with the procedure set forth in this chapter for
notice and hearing before the city council. Such damages shall be
assessed by the grantor only where the amount of actual damages is
impractical or extremely difficult to establish.
(Prior code § 7-29; Ord. 1013-08 § 3)
A.
In addition to any provisions concerning delays in construction set forth in Section 5.32.120(H) of this chapter, the grantor reserves the right to impose the following in the event that the grantee violates any other material provisions of the franchise agreement or this article, and provided that the grantee has not commenced corrective action within thirty days following written notice of delinquency by the city to the grantee; the city may impose the following remedies:
1.
Liquidated damages in an amount not to exceed one hundred dollars per day or, where it is determined on the basis of expert professional opinion that there is a failure to meet the technical performance standards specified herein, not to exceed two hundred fifty dollars per day, for the grantee's violation of such agreement or of this article or failure to take corrective action with respect to a violation; provided that such remedy may only be imposed by the city council after compliance with the procedure set forth in Section 5.32.110(A)(3) for notice and hearing before the city council. Such damages shall be assessed by the grantor only where the amount of actual damages is impractical or extremely difficult to establish;
2.
A
requirement that the grantee give rate credits to customers or classes
of customers in such amount as the city, in its discretion, may determine
based upon the degree of service loss (amount of time, time of day,
type of programming, type of service, etc.);
3.
A
requirement that the grantee correct or otherwise remedy the violation
prior to any rate increase becoming effective;
4.
A
reduction in the term of the franchise of one day per day of violation;
B.
The
remedies prescribed in this section may be applied separately or cumulatively.
In determining which remedy or remedies for the grantee's violation
are appropriate, the city shall take into consideration the nature
of the violation, the person or persons bearing the impact of the
violation, the nature of the remedy required in order to prevent further
such violations, and such other matters as the grantor may deem appropriate.
(Prior code § 7-30; Ord. 1013-08 § 3)
A.
The
city reserves the right to revoke any franchise and terminate any
franchise agreement and all rights and privileges pertaining thereto,
in the event that:
1.
The
grantee wilfully or repeatedly violates any material provisions of
such agreement or this article;
2.
The
grantee's completion of construction is delayed for over twenty-one
months;
3.
The
grantee becomes insolvent, is involuntarily adjudged as bankrupt,
or files a voluntary petition for relief under the Bankruptcy Act;
4.
The
grantee is adjudged to have practiced any fraud or deceit upon the
city, and such judgment becomes final after all appeals are exhausted
according to law.
B.
The city may make written demand that the grantee remedy any default which is cause for termination under this chapter. If failure, refusal or neglect of the grantee continues for a period of thirty days following such written demand, the city shall cause a public hearing to be held thereon by the city council in accordance with procedures set forth in Section 5.32.110(A)(3).
C.
If the
council determines such failure, refusal or neglect by the grantee
was without just cause, then the council may, by resolution, declare
that the franchise of such grantee shall be terminated and forfeited
unless there is compliance by the grantee within such period as the
council may fix, or reduce the length of the franchise by a period
of time up to the duration of the failure and/or violation.
D.
The
termination and forfeiture of any franchise shall in no way affect
any of the rights of the city under the franchise or any provisions
of law.
(Prior code § 7-31; Ord. 1013-08 § 3)
A.
For
the purposes of this article "CPUC" means the California Public Utilities
Code.
B.
For
the purposes of this article "franchise holder" means a "holder of
a state franchise" as that term is defined at Section 5830 of the
CPUC.
C.
For
the purposes of this article "gross revenues" shall have the definition
as set forth at Section 5860 of the CPUC.
(Ord. 1013-08 § 4)
A.
Any
franchise holder operating within the boundaries of the city, shall
calculate and remit to the city a franchise fee of five percent of
its gross revenues in accordance with the following:
1.
The
fee shall be payable to the city quarterly no later than June 1, September
1, December 1 and March 1 for the preceding calendar quarter for which
the payment is due. However, in accordance with CPUC Section 5860(a)
the first remittance by a franchise holder shall not be due until
one hundred eighty days after the provision of service began.
2.
As
required by Section 5860(h) of the CPUC, the payment shall be accompanied
by a summary explaining the basis for the calculation of the franchise
fee.
3.
Per
Section 5860(h) of the CPUC, if the franchise holder does not pay
the franchise fee when due, the franchise holder shall pay a late
payment charge at a rate per year equal to the highest prime lending
rate during the period of delinquency, plus one percent.
B.
As required
by Section 5870(n) of the CPUC, the city hereby establishes a fee
of one percent of a franchise holder's gross revenues to support Public,
Educational and Governmental (PEG) facilities, to be paid by any franchise
holder operating within the boundaries of the city in accordance with
the following:
1.
The
fee shall be payable to the city quarterly no later than June 1, September
1, December 1 and March 1 for the preceding calendar quarter for which
the payment is due.
2.
As
permitted by Section 5870(o) of the CPUC, any franchise holder operating
in the city may recover the PEG fees required herein as a separate
line item on the regular bill of each subscriber.
(Ord. 1013-08 § 4)
Not more than once annually, the city manager or his designee may examine and perform an audit of the business records of any franchise holder to ensure compliance with Section 5.32.510 or any other fee or tax as permitted by law.
(Ord. 1013-08 § 4)
A.
Any
franchise holder shall, at minimum, comply with all applicable state
and federal customer service and protection standards pertaining to
the provision of video service.
B.
The
city manager or his or her designee will provide a franchise holder
with written notice of any material breach of applicable customer
service and protection standards, and will allow the franchise holder
at least thirty calendar days from the receipt of the notice to remedy
the specified material breach. A material breach that is not remedied
by the franchise holder within the remedy period shall subject the
franchise holder to the following penalties to be imposed by the city:
1.
For
the first occurrence of a material breach, a penalty of not more than
five hundred dollars for each day of each material breach, not to
exceed one thousand five hundred dollars for each occurrence of a
material breach.
2.
For
the second violation of the same nature within twelve months, a penalty
of one thousand dollars for each day of each material breach, not
to exceed three thousand dollars for each occurrence of the material
breach.
3.
For
a third or further violation of the same nature within twelve months,
a penalty of two thousand five hundred dollars for each day of each
material breach, not to exceed seven thousand five hundred dollars
for each occurrence of the material breach.
C.
The
franchise holder may appeal any imposition of penalties to the city
council. Any appeal must be made within thirty calendar days of the
city's delivery of the notice regarding the imposition of penalties.
All appeals must be timely submitted in writing to the city clerk
to be placed on a city council agenda for consideration. Any appeal
must contain a detailed explanation of why the applicant believes
that the finding of material breach or the imposition of penalties
was inconsistent with statutory requirements or authority.
D.
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.
The
city and any franchise holder may mutually agree to extend the time
periods specified herein. Any such agreement shall be in writing and
executed by the city manager, or his or her designee, and an authorized
representative of the franchise holder.
F.
Any
penalty imposed on the franchise holder pursuant to this section shall
be paid to the city. As provided for in Section 5900(g) of the CPUC,
the city shall submit one-half of all penalties received from a franchise
holder to the Digital Divide Account established in Section 280.5
of the CPUC.
(Ord. 1013-08 § 4)
A.
Applicants
for state video franchises within the boundaries of the city must
concurrently provide complete copies to the city of any application,
or amendments to applications, filed with the California Public Utility
Commission. One complete copy must be provided to the city clerk.
(Ord. 1013-08 § 4)
All franchise holders shall comply with all other applicable laws including Section 12.04.060 this code.
(Ord. 1013-08 § 4)
