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HomeMy WebLinkAboutCC Ord 1418 1997-12-11 ORDINANCE NUMBER /4/8 AN ORDINANCE OF THE CITY OF SEAL BEACH GOVERNING FRANCHISES GRANTED BY THE CITY FOR CABLE ~ELEVISION SYSTEMS AND TELECOMMUNICATIONS SYSTEMS AND AMENDING CHAPTER 23A OF THE CODE OF THE CITY OF SEAL BEACH I THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 23A of the Code of the city of Seal Beach is amended in its entirety to read as follows: CHAPTER 23A FRANCHISES FOR CABLE TELEVISION SYSTEMS AND TELECOMMUNICATIONS SYSTEMS Section 23A-1. INTENT 1. Authority 2. Findings section 23A-2. SHORT TITLE section 23A-3. DEFINED TERMS AND PHRASES section 23A-4. FRANCHISE TERMS AND CONDITIONS 1. Franchise Purposes 2. Franchise Required 3. Term of the Franchise 4. Franchise Territory 5. Federal or State Jurisdiction 6. Franchise Non-Transferable 7. Geographical Coverage 8. Nonexclusive Franchise 9. Multiple Franchises I Section 23A-5. FRANCHISE APPLICATIONS AND RENEWAL 1. Filing of Applications 2. Applications - Contents 3. Consideration of Initial Applications 4. Franchise Renewal section 23A-6. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS 1. Operational Standards 2. Service Standards 3. Billing and Information Standards 4. Verification of Compliance with Standards 5. Subscriber Complaints and Disputes 6. Additional Requirements I Section 23A-7. FRANCHISE FEE AND FINANCIAL REQUIREMENTS 1. Franchise Fee 2. Security Fund -- Ordinance Number 11/19 secti~n 23A-8. CONSTRUCTION REQUIREMENTS 1. System Construction 2. Multiple Franchises Section 23A-9. TECHNICAL STANDARDS 1. Applicable Technical Standards 2. Non-Compliance with Standards I Section 23A-10. INDEMNIFICATION AND INSURANCE REQUIREMENTS 1. Hold Harmless 2. Insurance Section 23A-11. RECORDS AND REPORTS 1. Records Required 2. Annual Reports 3. Opinion Survey Section 23A-12. REVIEW OF SYSTEM PERFORMANCE 1. Annual Review 2. Special Review 3. Special Evaluation Sessions Section 23A-13. FRANCHISE VIOLATIONS 1. Remedies for Material Franchise Violations 2. Procedure for Remedying Franchise Violations 3. Grantor's Power to Revoke 4. Non-Binding Mediation I Section 23A-14. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM Section 23A-15. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY 1. Abandonment or Removal 2. Restoration by Grantor: Reimbursement of Costs 3. Extended Operation and Continuity of Services 4. Receivership and Foreclosure Section 23A-16. RIGHTS OF THE GRANTOR AND SUBSCRIBERS 1. Grantor's Reservation of Rights 2. Waiver 3. Rights of Individuals Section 23A-17. DEFINITIONS ~ection 23A-18. SEVERABILITY I Ordinance Number I~~ Section 23A-1. INTENT 1. Authority. In accordance with applicable federal city is authorized to grant one or franchises to construct, reconstruct, maintain cable television systems limi ts. and state law, the more nonexclusive operate, and within the City 2. Findings. I The city Council finds that the development of cable television and telecommunications systems may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the city Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be vested in the city. It is the intent of this chapter to specify the means for providing the best possible cable television and telecommunications services to the public, and the issuance of all franchises under this chapter are intended to achieve this primary objective. It is the further intent of this chapter to establish regulatory provisions that permit the City to regulate cable television and telecommunications franchises to the extent authorized by federal and state law, including but not limited to the Federal Cable Communications Policy Act of 1984, the Federal Cable Television Consumer Protection and Competition Act of 1992, the Federal Telecommunications Act of 1996, applicable regulations of the Federal Communications Commission, and applicable California law. I Section 23A-2. SHORT TITLE This chapter may be cited as the "Cable Television and Telecommunications Regulatory Ordinance" of the City of Seal Beach. Section 23A-3, DEFINED TERMS AND PHRASES Various terms and phrases used in this chapter are defined below in Subsection 23A-17. Section 23A-4. FRANCHISE TERMS AND CONDITIONS 1. Franchise Purposes. A franchise granted by the city under the provisions of this chapter may authorize the Grantee to do the following: a. To engage in the business of providing cable service, and such other telecommunications services as may be authorized by law that Grantee chooses to provide to subscribers within the designated franchise service area. b. To erect, install, construct, 'repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated franchise service area. I Ordinance N~ber I~/~ c. To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals, and for the delivery of cable services and such other services as may be permitted by law. 2. Franchise Required. I It is unlawful for any person to construct, install, or operate a cable television system in the city within any street or public way without first obtaining a franchise under the provisions of this chapter. 3. Term of the Franchise. a. A franchise granted under this chapter will be for the term specified in the franchise agreement, commencing upon the effective date of the ordinance or resolution adopted by the Grantor that authorizes the franchise. b. A franchise granted under this chapter may be renewed upon application by the Grantee in accordance with the applicable provisions of state and federal law and of this chapter, 4. Franchise Territory. I A franchise is effective within the territorial limits of the City, and within any area added to the city during the term of the franchise, unless otherwise specified in the ordinance or resolution granting the franchise or in the franchise agreement. 5. Federal or state Jurisdiction. This chapter will be construed in a manner consistent with all applicable federal and state laws, and is applicable to all franchises granted or renewed after the effective date of this chapter, to the extent authorized by applicable law. 6. Franchise Non-Transferable. I a. Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by_forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the city Council and then only upon such terms and conditions as may be prescribed by the City Council, which consent may not be unreasonably denied or delayed. Any attempt to sell, trunsfer, lease, assign or otherwise dispose of the franchise without the consent of the Council is null and void. The granting of a security interest in any assets of the Grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this subsection. b. The requirements of subsection "a" apply to any change in control of Grantee. The word "control" as used herein is not limited to major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If Grantee is a corporation, prior authorization of the Council is required where ownership or control of more than twenty percent (20%) of the voting stock of Grantee is acquired by Ordinance Number /~J'~ a person or a group of persons acting in concert, none of whom, singularly or collectively, own or control the voting stock of the Grantee as of the effective date of the franchise. c. Grantee must notify Grantor in writing of any foreclosure or judicial sale of all or a substantial part of the Grantee's franchise property, or upon the termination of any lease or other interest covering all or a substantial part of that franchise property. That notification will be considered by Grantor as notice that a change in control of ownership of the franchise has taken place, and the provisions of this paragraph that require the prior consent of Grantor to that change in control of ownership wil~ apply. d. For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, Grantor may inquire as to the qualifications of the prospective transferee or controlling party, and Grantee must assist Grantor in that inquiry. In seeking Grantor's consent to any change of ownership or control, Grantee or the proposed transferee, or both, if required under applicable law, must complete Federal Communications commission Form 394 or its equivalent. This application must be submitted to Grantor not less than one hundred twenty (120) days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to operate and maintain the cable ~ystem and to comply with all franchise requirements for the remaining term of the franchise. If the legal, financial, and technical qualifications of the applicant are satisfactory, the Grantor will consent to the transfer of the franchise. The consent of the Grantor to that transfer will not be unreasonably denied or delayed. e. Any financial institution holding a pledge of the Grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the Grantor that it, or a designee satisfactory to the Grantor, will take control of and operate the cable television system upon Grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within ninety (90) days after assuming control. The plan must insure continued service and compliance with all franchise requirements during the period that the financial inst1tution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding one year unless authorized by the Grantor, in its sole discretion, and during that period of time it will have the right to petition the Grantor to transfer the franchise to another Grantee. I I I f. Grantee must reimburse Grantor for Grantor's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. No I I I Ordinance Number 1#9 reimbursement may be offset against any franchise fee payable to Grantor during the term of the franchise. 7. Geographical Coverage. a. Grantee must design, construct, and maintain the cable' television system so as to have the capability to pass every dwelling unit in the city, subject to any service-area line extension requirements of the franchise agreement. b. After service has been established by activating trunk or distribution cables for any service area, Grantee must provide service to any requesting subscriber in that service area within thirty (30) days from the date of request, provided that the Grantee is able to secure on reasonable terms and conditions all rights-of-way ~ecessary to extend service to that subscriber within that thirty (30) day period. 8. Nonexclusive Franchise. Any franchise granted is nonexclusive. The Grantor specifically reserves the right to grant, at any time, su~h additional franchises for a cable television system, or any component thereof, as it deems appropriate, subject to applicable state and federal law. However, if an additional franchise is granted on terms more favorable to the second Grantee (whether involving the grant of greater benefits or the imposition of lesser obligations), or if another entity using the public rights-of-way offers service that is competitive with Grantee, then the ,initial Grantee will have the right to renegotiate its franchise to incorporate the more favorable terms, or to reduce its obligations, to achieve competitively neutral and nondiscriminatory treatment. 9. Multiple Franchises. a. Grantor may grant any number of franchises, subject to applicable state and federal law. Grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as: (1) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage. (2) The benefits that may accrue to cable subscribers as a result of cable system competition, such as lower rates and improved service. (3) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations of the public rights-of-way. b. Developers of new residential housing with underground utilities must provide conduit to accommodate cables for at least two cable systems and must dedicate the use of that conduit to the city. Ordinance Number /~~ c. Grantor may require that any new Grantee be responsible for its own underground trenching and the associated costs if, in Grantor's opinion, the rights-of-way in any particular area cannot reasonably accommodat~ additional cables. section 23A-S. FRANCHISE APPLICATIONS AND RENEWAL 1. Filing of Applications I Any person desiring an initial franchise for a cable television system must file an application with the city. A reasonable nonrefundable application fee in an amount established by resolution of the City Council must accompany the application. That application fee will cover all costs associated with reviewing and processing the application, including without limitatioQ costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If those actual costs exceed the application fee, the applican~ must pay the difference to the City within thirty (30) days following receipt of an itemized statement of those costs. 2. Applications - Contents An application for an initial franchise for a cable television system must contain, where applicable: a. A statement as to the proposed franchise service area. I b. A resume of the applicant's prior history, including the experience and expertise of applicant in the cable television field. c. A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a corporation. d. A list of officers, directors, and managing employees of applicant, together with a description of the background of each such person. e. The names and addresses of any parent or subsidiary of applicant, or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant. f. A current financial statement of applicant verified by a Certified Public Accountant or otherwise certified to be true, complete, and correct to the reasonable satisfaction of the City. g. The proposed construction and service schedule. I h. Any additional information that the city deems reasonably necessary. 3. Consideration of Initial Applications a. Upon receipt of any application for an initial franchise, the City Manager or the City Manager's designee must prepare a report and make Ordinance Number /1/'1 !J I recommendations to the city Council concerning that application. b. A public hearing will be set prior to any initial franchise grant, at a time and date approved by the City Council. within thirty (30) days after the close of the hearing, the city Council will make a decision based upon the evidence received at the hearing as to whether the franchise should be granted, and, if granted, subject to what conditions. The City Council may grant one or more franchises, or may decline to grant any franchise. 4. Franchise Renewal Franchise renewals will be made in accordance with applicable law. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. Section 23A-6. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS 1. Operational Standards a. Except as otherwise provided in the franchise agreement, Grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under normal operating conditions: I (1) Sufficient toll-free telephone line capacity during normal business hours to assure that telephone calls are answered before the fourth ring. Telephone answer time by a customer service representative, including wait time, may not exceed thirty (30) seconds. Callers needing to be transferred may not be required to wait more than thirty (30) seconds before being connected to a service representative. Under normal operating conditions, a caller will receive a busy signal less than three percent (3%) of the time. (2) Emergency toll-free telephone line capacity on a twenty-four (24) hour basis, including weekends and holidays. Calls received after normal business hours must be responded to by a trained company representative on the next business day. I (3) A conveniently located local business and service or payment office open during normal business hours at least eight (8) hours daily, and at least four (4) hours weekly on evenings or weekends, and adequately staffed to accept subscriber payments and to respond to service requests and complaints. (4) An emergency system maintenance and repair staff, which promptly responds to and repairs major system malfunctions on a twenty-four (24) hour per day basis. (5) An installation staff, capable of installing service to any subscriber requiring a standard installation within seven (7) days after receipt of a request, in all areas where trunk and feeder cable have been activated. "Standard installations" are those that are located up to one hundred fifty (150) feet from the existing Ordinance Number /~/~ distribution system, unless otherwise defined in any franchise agreement. (6) Grantee must schedule, within a specified four (4) hour time period during normal business hours, all appointments with subscribers for installation of service, service calls, and other activities at the subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the convenience of the customer. Grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a Grantee representative is running late for an appointment with a customer and will not be able to keep the scheduled appointment, the customer must be contacted and the appointment rescheduled, as necessary, at a time that is convenient for the customer. I b. The standards of subparagraphs (1) through (6) above must be met not less than ninety percent (90%) of the time, measured on a quarterly basis. 2. Service Standards a. Grantee must render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, must be preceded by notice and must occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. b. The Grantee must maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames: I (1) For a system outage: within two (2) hours, including weekends, of receiving subscriber calls or requests for service that by number identify a system outage of sound or picture of one or more channels, affecting at least ten percent (10%) of the subscribers of the system. (2) For an isolated outage: Within twenty- four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels that affects three (3) or more subscribers. On weekends, an outage affecting fewer than three (3) subscribers must result in a service call no later than the following Monday morning. (3) For inferior signal quality: Within forty-eight (48) hours, excluding Sundays and holidays, of receiving a request for service identifying a problem concerning picture or sound quality. c. Grantee will be deemed to have responded to a request for service under the provisions of this paragraph 2 when a technician arrives at the service location and begins work on the problem. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival. I d. Grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by Grantee to subscribers, unless the defect was caused by the subscriber. ( I I I 4. Ordinance Number /~~ 3. e. Unless excused, Grantee must determine the nature of the problem within forty-eight (48) hours of commencing work and resolve all cable system related problems within five (5) business days, unless technically infeasible. Billing and Information Standards a. Subscriber bills must be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills must also clearly delineate all activity during the billing period, including optional charges, rebates, and credits. b. In case of a billing dispute, the Grantee must respond to a written complaint from a subscriber within thirty (30) days. c. Upon request, Grantee must provide credits or refunds to subscribers whose service has been interrupted for four (4) or more hours. All credits for service must be issued no later than the customer's next billing cycle following the deter~ination that a credit is warranted. For subscribers terminating service, refunds must be issued promptly, but no later than thirty (30) days after the return of any Grantee-supplied equipment. d. Grantee must provide written information on each of the fOllowing areas at the time of the installation of service, at least annually to all subscribers, and at any time upon request: (1) Products and services offered. (2) Prices and options for programming services and conditions of subscription to programming and other services. (3) Installation and service maintenance policies. (4) Instructions on the use of the cable service. (5) Channel positions of programming carried on t~e system. (6) Billing and complaint procedures, including the address and telephone number of the Grantor's office designated for dealing with cable-related issues. e. Subscribers must be notified ~f any changes in rates, programming services, or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of those changes if the change is within the control of the Grantee. In addition, Grantee must notify subscribers thirty (30) days in advance of any significant changes in the information required in subsection d. above. Verification of Compliance with Standards a. Upon five (5) days notice, Grantee must demonstrate its compliance with any of the Ordinance Number ;I~~ standards specified in this'section 23A-6, consistent with applicable law. Grantee must provide sufficient documentation to enable Grantor to verify compliance. b. A repeated and verifiable pattern of noncompliance with the consumer protection standards of paragraphs 1 through 3 of section 23A- 6 above, after Grantee's receipt of due notice and an opportunity to cure, pursuant to section 23A-13, may be deemed a material 'breach of the franchise agreement. I 5. Subscriber Complaints and Disputes a. Grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the Grantor. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. Grantee must file a copy of these procedures with Grantor. These procedures must include a requirement that Grantee respond to any written complaint from a subscriber within thirty (30) days of receipt. b. Grantor has the right to review Grantee's response to subscriber complaints in order to determine Grantee's compliance with the franchise requirements. c. All subscribers have the right to continue receiving service so long as their financial and other obligations to the Grantee are honored. If the Grantee elects to rebuild, modify, or sell the system, or if the Grantor gives notice of intent to terminate or not to renew the franchise, the Grantee must act so as to ensure that all subscribers receive service while the franchise remains in force. I d. Upon a change of control of Grantee, or if a new operator acquires the cable system, the original Grantee must cooperate with the Grantor, the new Grantee, or the new operator in maintaining continuity of service to all subscribers. During that transition period, Grantee is entitled to the revenues derived from its operation of the system. 6. Additional Requirements a. If Grantee fails to operate the system for seven (7) consecutive days without the Grantor's prior approval or subsequent ratification, the Grantor may, at its sole option, operate the system or designate an operator until Grantee restores service under conditions acceptable to the Grantor, or until a permanent operator is selected. If the Grantor satisfies this obligation on behalf of the Grantee, then during that period the Grantor is entitled to collect all revenues derived from the system, and the Grantee must indemnify the Grantor against any damages that Grantor ,may suffer as a result of Grantee's failure to operate the system. I b. All officers, agents, or employees of Grantee, or its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or who require entry onto subscribers' premises, must carry a photo- Ordinance Number /1118 identification card in a form approved by Grantor. Grantee must account for all identification cards at all times. All vehicles of the Grantee or its major subcontractors must be clearly identified as vehicles engaged in providing services for the Grantee. I c. Additional standards relating to service, consumer protection, and response by Grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement or by separate ordinance, and Grantee must comply with those standards in the operation of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise, provided that Grantee is entitled to receive due process, including written notification and an opportunity to cure, before any sanction is imposed. Section 23A-7. FRANCHISE FEE AND FINANCIAL REQUIREMENTS 1. Franchise Fee I a. Following the issuance and acceptance of the franchise, the Grantee must pay to the Grantor a franchise fee on cable service receipts in the amount and at the times set forth in the franchise . agreement. For receipts from other telecommunications services, the Grantee must pay to Grantor an in-lieu franchise fee in the maximum amount permitted by applicable law, not to exceed the percentage established in the franchise agreement per gross annual cable receipts. b. On an annual basis, the Grantee must submit to the Grantor a statement within sixty (60) days of the close of the calendar year. This statement must either be certified by an independent certified Public Accountant or by the chief financial officer of the Grantee, and must set forth the total amount of gross revenues and all payments, deductions, and computations for the period covered by the statement. Upon thirty (30) days prio~ written notice, Grantor has the right to conduct an independent audit of Grantee's records in accordance with Generally Accepted Accounting Principles. If that audit indicates a franchise fee or in-lieu fee underpayment of three percent (3%) or more, the Grantee must assume all reasonable costs of that audit. If a dispute arises with respect to the calculation of the franchise fee, the Grantor and the'Grantee will first attempt to resolve that dispute in accordance with the mediation procedures set forth in section 23A-13(4). I c. Except as otherwise provided by law, no acceptance of any payment by the Grantor will be construed as a release or as an accord and satisfaction of any claim'the Grantor may have for additional sums payable as a franchise fee or in- lieu.fee und~r this chapter, or for the performance of any other obligation of the Grantee. d. If any franchise or in-lieu fee payment or recomputed amount is not made on or before the dates specified in the franchise agreement, Grantee must pay as additional compensation: Ordinance Number /1/18 (1) An interest charge, computed from the specified due date until the date that payment is made, at an annual rate equal to the prime lending rate of any national bank selected by Grantor, plus one percent (1%); and (2) If the payment is late by forty-five (45) days or more, a sum of money equal to five percent (5%) of the amount due in order to defray additional expenses and costs incurred by the Grantor by reason of the delinquent payment. e. Franchise fee or in-lieu fee payments must be made in accordance with the schedule specified in the franchise agreement. I 2. Security Fund a. Grantor may require Grantee to provide a security fund, in an amount and in the form specified in the franchise agreement. The amount of the security fund will be established based on the nature and extent of the Grantee's obligations under the terms of the franchise agreement. b. The security fund will be available to Grantor to satisfy all claims, liens, and taxes due Grantor from Grantee that arise by reason of the construction, operation, or maintenance of the system, and to satisfy any actual or liquidated damages arising out of a breach of the franchise, subject to the procedures and conditions set forth in the franchise agreement. c. If the security fund is drawn upon by Grantor in accordance with the procedures established in this chapter and the franchise agreement, Grantee must cause the security fund to be replenished to its original amount no later than thirty (30) days after any withdrawal by Grantor. Failure to replenish the security fund will be deemed a material breach of the franchise. I Section 23A-8. CONSTRUCTION REQUIREMENTS 1. System Construction a. Grantee may.not construct any cable system facilities until Grantee has secured the necessary permits from Grantor, or from other public agencies having jurisdiction over that construction. b. In those areas of the city where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, the Grantee must likewise construct, operate, and maintain its transmission and distribution facilities underground. c. In those areps of the city where the Grantee's cables are located on the above-ground transmission or distribution facilities of any public utility providing telephone or electric power service, and if the facilities of both those public utilities are subsequently placed underground, then the Grantee must likewise reconstruct, operate, and maintain its transmission and distribution facilities underground, at Grantee's sole cost. certain of Grantee's equipment, such as pedestals, amplifiers, and power supplies, which normally are placed above I Ordinance Number 1#$ ground, may continue to remain in above-ground enclosures, unless otherwise provided in the franchise agreement. I d. Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals, or other fixtures and equipment ("structures"), or the construction of any additional structures in, upon, along, across, under, or over the streets, alleys, and public ways, must be made under the direction of Grantor's City Engineer. If the proposed change, extension, or construction conforms to the provisions of this chapter and this Code, the city Engineer will issue written permits for that work. The height of all aerial wires above public thoroughfares must conform to the requirements of the California regulatory agency having jurisdiction over this matter. I (1) All transmission and distribution structures, lines, and equipment erected by the Grantee must be located so as not to interfere with the proper use of streets, alleys, and other public ways and places, and so as to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of those streets, alleys, or other public ways and places. These facilities must not'interfere with existing public utility installations. (2) If any property or improvements of the Grantor in the public rights-of-way are disturbed or damaged by the Grantee, or by any of its contractors, agents, or employees, in connection with the performance of any work authorized by this chapter or by the franchise agreement, the Grantee must promptly, at the Grantee's sole cost and expense, restore as nearly as practicable to its former condition the property or those improvements that were disturbed or damaged. If any such property or improvements at any later time become uneven, unsettled, or otherwise require restoration, repair, or replacement because of such disturbance or damage by the Grantee, then the Grantee, as soon as reasonably possible, must, upon receipt of notice from the Grantor and at the Grantee's sole cost and expense, restore as nearly as practicable to their former condition the property or improvements that were disturbed or damaged. Any such restoration by the Gra~tee must be made in accordance with those specifications that may, from time to time, be provided for by ordinance. I (3) Before commencing any work in the public rights-of-way, the Grantee must obtain all permits lawfully required for that work by this Code. However, if emergency work is required, the Grantee must obtain all permits within three (3) working'days after commencing that emergency work. (4) Grantee may not unreasonably or unnecessarily obstruct the public rights-of-way in performing any of the work authorized by this chapter. The Grantee must maintain such barriers, signs, and warning signals during the performance of work on or adjacent to the public rights-of-way as may be necessary to reasonably avoid injury or damage to life and property. Ordinance NUmber;l41I'i9 (5) If at any time during the term of the franchise the Grantor lawfully elects to alter or change the grade or location of any street, alley, or other public rights-of-way, the Grantee must, upon reasonable notice by the Grantor, remove and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense, and in each instance comply with the requirements of the Grantor. (6) The Grantee may not place poles, conduits, or other fixtures above or below ground where they will interfere with any gas, electric, or telephone fixtures, water hydrants, or other utilities. All such poles, conduits, or other fixtures placed in any street must be placed so as to comply with all ordinances of the Grantor. I (7) The Grantee may be required by the Grantor to permit joint use by other utilities of its property and appurtenances located in the streets, alleys, or other public rights-of-way, insofar as that joint use is reasonably practicable and payment of reasonable rental is required; provided, however, that in the absence of agreement regarding such joint use, the Council will provide for arbitration of the terms and conditions of that joint use, including the compensation to be paid for it, and the arbitration award will be final. (8) The Grantee must, on request of any person holding a moving permit issued by the Grantor, temporarily move its wires or fixtures to permit the moving of buildings. The expense of that temporary removal will be paid by the person requesting it, and the Grantee must be given not less than forty-eight (48) hours' advance notice to arrange for that temporary removal. I (9) The Grantee has the authority, except when in conflict with any existing ordinance, to trim trees that are upon or overhanging the streets, alleys, sidewalks, and public places so as to prevent the branches of those trees from coming in contact with the Grantee's wires and cables. However, at the option of the Grantor, such trimming may be done by Grantor, or under its supervision and direction, at the expense of the Grantee. 2. Multiple Franchises a. If more than one franchise is awarded, the Grantor reserves the right to limit the number of drop cables per residence, or to require that the drop cable or cables be used only by the cable operator selected by the resident to provide service. b. The Grantor reserves the right to grant an encroachment permit to an applicant for a cable franchise to install conduit or cable in anticipation of the granting of that franchise. Such installations are at the applicant's sole risk, with no recourse against the Grantor if the pending franchise application is not granted. The Grantor may require an applicant to provide a separate trench for its conduit or cable, at the applicant's sole cost. I Ordinance Number /~B Section 23A-9. TECHNICAL STANDARDS I 2. 1. Applicable Technical Standards The Grantee must construct, install, operate, and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any additional standards that may be set forth in the franchise agreement. In addition, the Grantee must provide to the Grantor, upon request, a written report of the results of the Grantee's periodic proof of performance tests that are conducted in accordance with FCC standards and guidelines. Non-Compliance with Standards The repeated and verified failure of the Grantee to maintain specified technical standards will constitute a material breach of the franchise. Section 23A-10. INDEMNIFICATION AND INSURANCE REQUIREMENTS 1. Hold Harmless 2. I I Grantee will indemnify, defend, and hold harmless the Grantor, its officers, agents, and employees, from any liability, claims, damages, costs, or expenses, to the extent provided in the franchise agreement. Insurance a. On or before' the commencement of franchise operations, the Grantee must obtain policies of liability, workers' compensation, and property insurance from qualified insurance companies that are admitted surety insurers in the State of California. b. The pOlicy. of liability insurance must: (1) Be issued to Grantee and name Grantor, its officers, agents, and employees, as additional insureds. (2) Indemnify for all liability for personal and bodily injury, death, and damage to property arising from activities conducted and premises used under the authority of this chapter by providing coverage that includes, without limitation, the following: Negligent acts or omissions Grantee, and its agents, servants and employees, that are committed in the conduct of franchise operations; and Use of motor vehicles. (3) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement. The liability insurance policy is subject to review by Grantor's legal counsel. (4) Be subject to cancellation only upon thirty (30) days prior written notice directed to Grantor. Ordinance Number It/; 13 c. The policy of workers' compensation insurance must comply with the laws of the state of California. d. The policy of property insurance must provide fire insurance with extended coverage on the franchise property used by Grantee in the conduct of its franchise operations in an amount adequate to enable Grantee to resume franchise operations following the occurrence of any risk covered by this insurance. I e. Prior to commencement of its franchise operations, Grantee must file with Grantor a certificate of insurance for each of the required policies. The certificate of insurance must be executed by the company issuing the policy, or by a broker authorized to issue that certificate, and must certify that the policy is in force and must provide the following information with respect to the insurance policy: (1) The policy number; (2) The date upon which the pOlicy will become effective and the date upon which it will expire; (3) The names of. the named insureds and any additional insureds required by the franchise agreement; (4) The subject of the insurance; (5) The type of coverage provided by the insurance; and I (6) The amount or limit of coverage provided by the insurance policy. If the certificate of insurance does not provide all of the information listed above, Grantor reserves the right to inspect the relevant insurance policies. f. Franchise operations may not commence until Grantee has complied with the provisions of this paragraph 2. g. If Grantee fails to maintain any of the above-described policies in full force and effect, Grantor, upon forty-eight (48) hours notice to Grantee, has the right to procure the required insurance and to recover its cost from Grantee. Grantor also has the right to suspend the franchise during any period that Grantee fails to maintain the insurance policies in full force and effect. In order to account for increases in consumer prices, Grantor has the right, no more than once during any five (5) year period, to order Grantee to increase the amounts of the insurance coverage specified in the franchise agreement to reflect the C.P.I. increase during such five (5) year period. Increases in insurance coverage will be based upon current prudent business practices of like enterprises involving the same or similar risks. I Ordinance Number /qlB Section 23A-ll. RECORDS AND REPORTS 1. Records Required a. Grantee must maintain at all times: I (1) A record of all service calls and interruptions or degradations of service experienced for the preceding two (2) years, provided that those complaints result in or require a service call. (2) A complete set of plans, records, and "as-built" maps showing the locations of the cable television system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscribers' homes. (3) If requested by Grantor, a summary of service calls, identifying the number, general nature, and disposition of those calls on a monthly basis. . A summary of those service calls must be submitted to the Grantor within thirty (30) days following any Grantor request and in a form acceptable to the Grantor. b. The Grantor may submit requests for additional information, records, and documents from time to time, provided that they reasonably relate to the scope of the city's rights under this chapter or the franchise agreement. I c. Upon reasonable notice, and during normal business hours, Grantee must permit examination by any duly authorized representative of the Grantor of all franchise property and facilities, together with any appurtenant property and facilities of Grantee situated within or outside the City, and all records relating to the franchise, provided they are necessary to enable the Grantor to carry out its regulatory responsibilities under this chapter or the franchise agreement. Grantee has the right to be present at any such examination. 2. Annual Reports a. Within ninety (90) days after the end of each calendar year, Grantee must submit to Grantor, if requested, an annual report with respect to the preceding calendar year. This annual report must be in a form approved by Grantor, and may include, without limitati~n, the following information: (1) A summary of the previous year's activities relating to development of the cable system, including services commenced or discontinued during the reporting year. I (2) A list of Grantee's officers, members of its board of directors, and other principals. (3) A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Grantee. (4) A list of all residences in Grantee's service area where service is not available, and a schedule for providing service. Ordinance Number /41.1~ (5) Information as to the number of homes passed, subscribers, additional television outlets, and the number of basic and pay-per-view subscribers. (6) Any other information relevant to franchise regulation that the Grantor may reasonably request. b. upon request, Grantee must submit to Grantor copies of all pleadings, applications, reports, decisions, correspondence, and actions submitted to or received from any federal, state, or local court, regulatory agency, or other governmental body, which documents are non-routine in nature and which may materially affect Grantee's cable television operations within the franchise service area. Information submitted to Grantor that by law is protected from disclosure, and is so designated by Grantee, will be retained in confidence by Grantor and its authorized agents and will not be made available for public inspection. However, Grantee has no obligation to provide to Grantor copies of documents that contain Grantee's trade secrets or are otherwise of a confidential or proprietary nature unless it receives satisfactory assurances that such information will be held in strict confidence by the Grantor. To the extent possible, Grantee will provide Grantor with summaries or copies of any required documents from which trade secrets and proprietary matters have been deleted. The burden of proof will be on Grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the Grantor. I c. If Grantee is publicly held, a copy of Grantee's annual and other periodic reports submitted to its shareholders must be delivered to Grantor within ten (10) days after their issuance. I d. Upon Grantor's request, but no more frequently than annually, Grantee must submit to Grantor a privacy report indicating its compliance with the provisions contained in Section 23A-16.3 and all measures taken to ensure that the privacy rights of individuals are being protected. e. All reports required under this chapter, except those required by law to be kept confidential, will be available for public inspection in the Grantor's offices during normal business hours. f. All reports and records required under this chapter will be furnished at the sole expense of Grantee, unless otherwise provided in the franchise agreement. g. The willful refusal, failure, or neglect of Grantee to file when due any of the reports required under this chapter may be deemed a material breach of the franchise agreement if, those reports are 'not provided to Grantor within thirty (30) days after written request. Any such material breach may subject the Grantee to all remedies, legal or equitable, that are available to Grantor under this chapter or the franchise agreement. I h. Any materially false or misleading statement or representation that is knowingly and willfully I Ordinance Number J'~l1 made by the Grantee in any report required under this chapter or the franchise agreement may be deemed a material breach of the franchise and may subject Grantee to all remedies, legal or equitable, that are available to Grantor. 3. Opinion Survey Upon request of the Grantor, but not more than once every two years, the Grantee must conduct a subscriber satisfaction survey pertaining to quality of service. This survey may be transmitted to subscribers along with Grantee's invoice for cable services. The results of that survey must be provided to the Grantor on a timely basis, and its cost must be borne by the Grantee. Section 23A-12. REVIEW OF SYSTEM PERFORMANCE I 2. I 1. Review a. No more often than biannually during the term of the franchise, if requested by the Grantor, Grantee and Grantor will meet publicly to review system performance and quality of service. The various reports-required by this chapter, results of technical performance tests, ~he record of subscriber complaints and Grantee's response to those complaints, and the information obtained from any subscriber surveys will be used as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these will also be considered. Within thirty (30) days after the conclusion of a system performance review meeting, Grantor may issue findings with respect to the Grantee's compliance with the . franchise and quality of service. b. If Grantor determines that Grantee is not in compliance with the requirements of this chapter or the franchise agreement, Grantor may direct Grantee to correct the areas of noncompliance, pursuant to section 23A-13. Failure of Grantee, after due notice, to correct the areas of noncompliance within the period specified, or to commence compliance within that period and diligently achieve compliance thereafter, will be deemed a material breach of the franchise, and Grantor may exercise any remedy provided by this chapter or the franchise agreement. Special Review a. , When complaints are made, or where other evidence exists that, in the Grantor's judgment, casts reasonable doubt on the reliability or quality of cable service and indicates that the Grantee is not in compliance with the requirements of this chapter or its franchise, the Grantor has the right to compel the Grantee to test, analyze, and report on the performance of the system in order to protect the public against substandard cable service. b. Grantor may not compel Grantee to provide such tests or reports unless Grantor has provided Grantee with at least thirty (30) days notice of its intention to exercise its rights under this paragraph 2 and has provided Grantee with an opportunity to be heard prior to the exercise of these rights. ------- Ordinance Number J'~I'~ c. The test or tests must be made and the report delivered to the Grantor, at Grantee's sole cost, no later than thirty (30) days after the Grantor notifies the Grantee that it is exercising its rights. The report must include the following information: The nature of the complaints that precipitated the special tests; the system components that were tested; the equipment and procedures used in the testing; the results of the tests; and the method by which the complaints were resolved. Any other information pertinent to the special tests must be reported. 3. special Evaluation Sessions I The Grantor may hold special evaluation sessions at any time during the term of the franchise. The Grantee must be notified of the time, place, and date of the sessions and the topics to be. discussed. These sessions will be open to the publiq and advertised in a newspaper of g~neral circulation at least ten (10) days before each session. The sessions may include an evaluatio~ of any items considered relevant to the cable system, the subscribers, and the city. Either the Grantor or the Grantee may propose items for discussion or evaluation. section 23A-13. FRANCHISE VIOLATIONS 1. Remedies for Material Franchise Violations If Grantee fails to perform in a timely manner any material obligation set forth in this chapter or in a franchise granted hereunder, following notice from the Grantor and an opportunity to cure that nonperformance in accordance with the provisions of this section or the franchise agreement, Grantor may, in its sole discretion: I Cure the violation and recover the actual cost of cure' from the security fund if the violation is not cured within thirty (30) days after written notice to the Grantee of Grantor's intention to cure and to draw upon the security fund. Assess liquidated damages against the Grantee in the amount set forth in the franchise agreement if the violation is not cured, or if Grantee has not commenced to cure, on a schedule acceptable to Grantor, within thirty (30) days after written notice to the Grantee of Grantor's intention to assess liquidated damages. This assessment may be withdrawn from the security fund, and will not constitute a waiver by Grantor of any other right or remedy it may have under the franchise or applicable law, including without limitation, its right to recover from Grantee any additional damages, losses, costs, and expenses, including actual attorney's fees, that may have been suffered or incurred by Grantor by reason of or arising out of that breach of the franchise. I 2. Procedure for Remedying Franchise Violations Prior to imposing any remedy or other sanction specified in this subsection, Grantor must give Grantee notice and the opportunity to be heard on the matter, in accordance with the following procedures: I I I Ordinance Number~~(? a. Grantor must first notify Grantee of the violation in writing, by personal delivery or by registered or certified mail, and demand correction within a reasonable time. That time period may not be less than thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed, or if Grantee fails to commence correction of the violation within the time prescribed and diligently remedy the violation, Grantor must then give not less than twenty (20) days written notice of a public hearing to be held by the City Council. The notice must specify the material violations alleged to have occurred. b. At the public hearing, the City Council will hear and consider all relevant evidence, and then render its findings and decision. c. If the City Council finds that the Grantee has corrected the material violation, or has commenced correction of the violation after notice from Grantor and is diligently proceeding to remedy the violation, or that no material violation has occurred, then the proceedings will terminate and no penalty or other sanction will be imposed. If the City Council finds that material violatIons exist and that Grantee has not corrected them in a satisfactory manner, or has not commenced correction of the violation after notice from Grantor and is not diligently proceeding to remedy the violation, then the City Council may, in its discretion, impose one or more of the remedies provided in this chapter or in the franchise agreement, as may be appropriate under the circumstances. 3. Grantor's Power to Revoke Grantor reserves the right to revoke any franchise granted under this chapter and to rescind all rights and privileges associated with it in any of the following circumstances, each of which constitutes a default and a material breach by Grantee under the franchise: a. . Grantee's default in the performance of its material obligations under this chapter or the franchise agreement and the continuance of that default after receipt of due notice and a reasonable opportunity to cure. b. Grantee's failure to provide, or to maintain in full force and effect, the insurance coverage or security fund in the amounts specified in the franchise agreement. c. Grantee's violation of any order or ruling of any regulatory body having jurisdiction over the Grantee relative to the franchise, unless that order or ruling is being contested in good faith by Grantee in judicial or administrative proceedings. d. Grantee's acts or omissions that involve any fraud or deceit as to the Grantor. e. Grantee's insolvency, inability to pay its debts, or adjudication as a bankrupt. The revocation and termination of the Grantee's Ordinance Number /~l? franchise does not affect any right of Grantor to pursue any other remedy under the franchise or applicable law. 4. Non-Binding Mediation. a. Upon Grantor's determination that the franchise should be revoked, as provided for above in Subsection 3, the Grantor and Grantee will, following notification from Grantee, enter into non-binding mediation with respect to the alleged violation. No revocation will be implemented until the mediation process has been concluded, or until the Grante~'s time for invoking the right to mediation has expired. I b. within ten (10) days after receipt from Grantor of its written notice of a determination of revocation, the Grantee must give written notice to the Grantor of its intention to invoke mediation procedures. within fifteen (15) days after such notification, the Grantor and Grantee must select a mediator to assist in the resolution of the dispute. If the dispute is not resolved through the mediation process within sixty (60) days, the Grantee may terminate the mediation process by giving ten (10) days written notice to Grantor. Upon termination of the mediation process, both patties have the right to pursue all available legal remedies. section 23A-14. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM If Grantee's performance of any of the terms, conditions, or obligations required by this chapter or by a franchise granted hereunder is prevented by a cause or event not within Grantee's control, that inability to perform will be deemed excused and no penalties or sanctions will be imposed; provided, however, that such inability to perform will not relieve the Grantee from any obligations imposed by section 23A-6.3.c pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of Grantee include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters, such as floods, earthquakes, landslides, and fires. Such causes or events do not include the financial inability of the Grantee to perform, the failure of the Grantee to obtain any necessary permits or licenses from other governmental agencies, the failure to obtain the right to use the facilities of any public utility where that failure is due solely to the acts or omissions of Grantee, or the failure of the Grantee to obtain supplies, services, or equipment necessary for the installation, operation, maintenance, or repair of the cable television system where the Grantee has failed to exercise reasonable diligence to secure those supplies, services, or equipment. I I Section 23A-15. ABANDONMENT OR REMOV~L OF FRANCHISE PROPERTY 1. Abandonment or Removal a. If the use of any property of Grantee within the public rights-of-way is discontinued for a consecutive 12-month period, Grantee will be I I 2. I Ordinance Number;l~lf deemed to have abandoned that franchise property. Any part of the cable system that is parallel or redundant to other parts of the system, and is intended for use only when needed as a backup for all or a portion of the system, will not be deemed to have been abandoned because of its lack of use. b. If any broken or discarded equipment of the Grantee is' left in the public right-of-way within public view for a period of thirty (30) consecutive days, the Grantee will be deemed to have abandoned that franchise property. c. Upon such terms as Grantor may impose, Grantor may authorize Grantee to abandon, and not remove, any underground facility or equipment that is laid, constructed, operated, or maintained under the franchise. Unless that authorization is granted, or unless otherwise provided in the franchise agreement, the Grantee must remove all underground facilities and equipment upon receipt of written notice from Grantor and restore any affected street to the state existing at the time such' facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures, and equipment, Grantee must refill, at its sole expense, any excavation made by it and must leave all public ways and places in as good condition as that prevailing prior to such removal and without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor has the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments, and poles prior to and after removal. The liability, indemnity, and insurance provisions of this chapter, and the security fund provided for by the Grantor, will ,continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this subsection b. , d. Upon abandonment in place of any franchise property, the Grantee, if required by the Grantor, must submit to the Grantor an instrument, - satisfactory in form to the Grantor, transferring to the Grantor the ownership of the abandoned franchise property. Upon expiration of the term of the franchise, or upon its earlier revocation or termination, the Grantor has the right to require Grantee to remove, at its sole expense, all above-ground portions of the cable television system from all streets and public ways within the City within a reasonable period of time, which will be not less than one hundred eighty (180) days. Restoration by Grantor: Reimbursement qf Costs If Grantee fails to complete any work_required by this chapter, the franchise agreement, or any other law, or if that work is not completed within thirty (30) days after receipt of written notice from Grantor, or, if more than thirty (30) days are reasonably required for that work, the Grantee does not commence the work within that thirty (30) day period and diligently complete the work, then Grantor may cause that work to be done. Grantee must reimburse Grantor the costs of completing that wQrk within thirty (30) days after receipt of an itemized list of those costs, or Grant9r may Ordinance Number I'~tr recover those costs from the security fund provided by Grantee. 3. Extended Operation and Continuity of Services Upon'either.the expiration or revocation of the franchise, the Grantor may authorize the Grantee to continue to operate the cable television system for an extended period of time. Grantee must continue to operate the system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber services and any other services that may then be provided. All subscribers will have the right to continue to receive all available services, provided their financial and other obligations to Grantee are honored. The Grantee must use all reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during any transition period following franchise expiration or termination. 4. Receivership and Foreclosure a. A franchise granted in accordance with this chapter will, at the option of Grantor, terminate one hundred twenty (120) days after the appointment of a receiver or a trustee to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy, or similar action or proceeding, unless that receivership or trusteeship is vacated prior'to the expiration of that one hundred twenty (120) day period, or unless: I (1) The receiver or trustee, within one hundred twenty (120) days after election or appointment, fully complies with all terms and provisions of this chapter and the franchise agre~ment. and remedies all defaults under the franchise or provides a plan to remedy those defaults that is satisfactory to the Grantor; and I (2) The receiver or trustee, within that one hundred twenty (120) day period, executes an agreement, duly approved by the court having jurisdiction in the matter, whereby:the receiver or trustee assumes and agrees to be bound by every provision of the franchise agreement. b. Upon a foreclosure or judicial sale of the franchise property, or any material part of that property, Grantor may serve notice of termination upon Grantee and the successful bidder at that sale, in which event the franchise and all rights and privileges of the Grantee under that franchise will terminate thirty (30) days after service of that notice, unless: (1) franchise and Grantor has approved the transfer of the in the manner provided by this chapter; I (2) the successful bidder covenants and agrees with Grantor to assume and to be bound by all provisions of the franchise agreement. section 23A-16. RIGHTS OF THE GRANTOR AND SUBSCRIBERS 1. Grantor's Reservation. of Rights In addition to the rights' specifically reserved to the Grantor by this chapter, the Grantor reserves I I I Ordinance Numberl'~~ to itself every right and power that is required to be reserved by the provisions of any ordinance or the franchise agreement. 2. waiver The Grantor has the right to waive any provisions of the franchise agreement, except those required by federal or state laws or regulations, if the Grantor determines that it is in the public interest to do so, and that the enforcement of those provisions will impose an undue hardship on the Grantee or the subscribers. To be effective, a waiver must be in writing and signed by an authorized representative of the Grantor. The waiver of any provision in one instance will not be deemed a waiver of that provision in any other instance, nor will it be deemed a waiver of any other provision of the franchise unless that fact is so stated. 3, Rights of Individuals a. Grantee may not deny service or access, or otherwise discriminate against subscribers, channel users, or residents on the basis of race, color, rel'igion, national origin, age, or sex. Grantee must comply with all applicable federal, state, and local laws and regulations relating to nondiscrimination. b. . Grantee must comply with all applicable equal employment opportunity requirements of federal, state, and local laws and regulations, as they now exist or as they may be amended from time to time. c. Neither Grantee, nor any other person or entity may, without a subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose other than routine maintenance of the system, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified. d. In providing its services, or in pursuing any collateral commercial enterprise relating to those services, Grantee must take all reasonable precautions to prevent the invasion of a subscriber's or a resident's right of privacy, and other civil rights, as delineated or defined by applicable law. e. No cable, line, wire, amplifier, converter, or other equipment owned by Grantee may be installed in a subscriber's premises, other than in lawfully-obtained easements, without first obtaining any required consent. If a subscriber requests service, permission to install upon that subscriber's property will be presumed. . f. Neither the Grantee, nor any of its agents, employees or subcontractors, may sell, or otherwise make available to any person, without the prior written consent of the subscriber under state a~d federal privacy laws, any of the following: Ordinance Number 11t& (1) A list containing the names and addresses any subscribers who have requested in writing to be removed from that list. (2) Any list that identifies the'viewing habits of individual subscribers. This does not prohibit the Grantee from providing to other persons composite ratings of subscriber viewing preferences. g. city shall have the right to inspect all construction, reconstruction or installation work performed by Grantee. Section 23A-17. DEFINITIONS I For the purpqses of this chapter, the following words, terms, phrases, and their derivations have the meanings set forth below. Words used in the present tense include the future tense, and words in the singular number include the plural number. Words not defined are to be given their common and ordinary meaning. 1. "Basic Cable Service" or "Basic Service" means any service tier that includes the retransmission of local television broadcast signals. 2. "Cable Television System" or "System", also referred to as "Cable Communications System" or "Cable System", means a facility, consisting of a set of closed transmission paths and associated signal . generation, reception, and control equipment, that is designed to provide cable service, including video programming, and which is provided to multiple . subscribers within a community; but this term does not include: a. A facility that serves only to retransmit the television signals of one or more television broadcast stations; I b. A facility that serves subscribers without using any public right-of-way; c. A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Telecommunications Act of 1996, except that such facility will be considered a cable system (other than for purposes specified in section 621(c) of the 1984 Cable Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; d. An open video system that complies with section 653 of Title VI of the Telecommunications Act of 1996; or e. are used system. 3. "Cable Service" means the total of the following: Any facilities of any electric utility that solely for operating its electric utility I a. The one-way transmission to subscribers of video programming or other programming service; and b. Subscriber interaction, if any, that is required for the selection of such video programming or other programming service. Ordinance Number J'~(9 4. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum used in a cable system that is capable of delivering a television channel as defined by the Federal Communications Commission. 5. "Council" means the city Council of the City of Seal Beach. I 6. "Franchise" means an initial authorization, or renewal thereof, issued by the City Council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction or operation of a cable system. Any such authorization, in whatever form granted, does not supersede the requirement to obtain any other license or permit required for the privilege of transacting business within the City as set forth in other ordinances and laws of the City. 7. "Franchise Agreement" means a franchise granted by ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including references, specifications, requirements, and other related matters. 8. . "Franchise Fee" means any tax, fee, or assessment of any kind imposed by the city on a Grantee as compensation for the Grantee's use of the public rights-of-way. The term "franchise fee" does not include: I a. Any tax, fee, or assessment of general applicabili ty (including any such tax" fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment that is unduly discriminatory against cable operators or cable subscribers); b. Capital costs that are required by the franchise to be incurred by the Grantee for public, educational, or governmental access facilities; c. Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or d. Any fee imposed under Title 17 of the United states Code. 9. "Grantee" means any person receiving a franchise in accordance with this chapter, and that person's lawful successor, transferee, or assignee. I 10. "Grantor" or "City" means the City of Seal Beach as represen~ed by the city Councilor by any delegate, acting within the scope of its jurisdiction. 11. "Gross Annual Cable Service Revenues" means the annual gross revenues received by a Grantee from all operations of the cable television system within the City, excluding uncollected bad debt, refundable deposits, ~ebates or credits, and further excluding any sales, excise, or other taxes or charges collected for direct pass-through to the local, state or federal government. Revenues collected as franchise fees from subscribers will not be included in Gross Annual Cable Service Revenues pending a final decision in the case of United Artists Cable of Baltimore, 77 RR 2d 1306 Ordinance Number /1//13 . (released April 6, 1995). If the final decision (following all jUdicial appeals) in this case results in a determination that franchise fees may be included in Gross Annual Cable Service Revenues, then Grantee must, within 90 days of the final decision, pay any - underpayment of franchise fees owed to the Grantor based upon that determination. 12, "Gross Annual Telecommunications Service Revenues" means the annual revenues received by a Grantee from the operation of a cable system to provide telecommunications services other than cable service. I 13. "Installation" means the connection of the system to subscribers' terminals, and the provision of service. 14. "Person" means. an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 15. "Public ,-- Educational or Government Access Facilities" or "PEG Access Facilities" means the total of the following: a. Channel capacity designated for noncommercial public, educational, or government usei'and --- b. 'Facilities and equipment for the use of that channel capacity. 16.;' "Service Area" or "Franchise Service Area" means the entire geographic area of the city as it is now constituted, or may in the future be constituted, unless otherwise specified in the ordinance granting the franchise, or in the franchise agreement. . I 17. "Service Tier" means a category of cable service or other services provided by a Grantee and for which a separate rate is charged by the Grantee. 18. "Street" or "Public Way" means each of the " following that has been dedicated to the public or is later dedicated to the public and maintained under public authority or by others and located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way, and similar public property and areas that the Grantor authorizes to be included within the definition of street from time to time. 19. "Subscriber" or "Customer" or "Consumer" means any person subscribing to, for any purpose, a service provided by the Grantee by means of or in connection with the cable system, and who pays the charges for that service. section 23A-18. SEVERABILITY If any provision of this chapter is determined by any court of competent jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be invalid and in conflict with any . paramount federal or state law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that. paramount law or regulation, then that provision will be deemed a separate, distinct, and independent part of this chapter, and such determination will not affect the validity and enforceability of any other provisions. If that paramount federal or'state law or regulation is I Ordinance ~umber I'~/~ I subsequently repealed or amended so that the provision of this chapter determined to be invalid or subject to modification is no longer in conflict with that law or regulation, then that provision will again become effective and will thereafter be binding on Grantor and Grantee; provided, however, that Grantor must give Grantee thirty (30) days written notice of that change before requiring compliance with that provision, or such longer period of time as may be reasonably required for Grantee to comply with that provision." Section 2. The City Clerk is directed to certify to the passage and adoption of this ordinance and to cause it to be published or posted as required by law. ~ . rI( PA~SE, PROY~, A~D ADOPTED thi ;1;'--- :~~, 1997. . STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I I, Joanne M. Yeo, city Clerk of the City of Seal Beach, California, do hereby certify he foregoing is the original of Ordinance Number on file in the office of't~G City Clerk, oduce meeting held on the /l?~ day of , - 1997, and passed, approve and adopted the c~ty council;P~t'the City of Seal Beach me ting thereof held on the ~ day of , 1997, by the follow~ng vote: AYES: Councilmemb NOES: ABSENT: ABSTAIN: and do further certify that Ordinance Number ;I~~ has been published pursuant to the Seal Beach City Charter and Resolution Number 2836. I Clerk Ordinance Number /41t! PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CA,L1FORNIA, County of Orange I am a citizen of the United States and a resident of the County, afore- said; I am over the age of eighteen years, and not a party to or inter- ested in the above-entitled matter. I am the princip~1 ~I~rk of t~e print~r of the SEAL BEACH SUN;.a newspaper of general circulation, 'printed and , published weekly in the City of Seal Beach, County of Orange and which newspaper has been adjudged a newspaper of general circulation by the Superior Cou.rt of the County of Orange, Statl! .of ,california, under the date of 2/24/75, Case,NUlTIber AB25B3; that the notice of which'tti~' annexed is a printed Cdp"Yb,<i~t .i~. typ.e:tt!:oY' smaller than nonpar'eil), has'>been ......._ '-.'1"\ 1\'" ,. published in each regal.ar_an'Cl entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: , 4~/4fC ,,?~ all in the ar 19 97 , I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Seal Beach, California, this ~ day of ~19.!ll... ~~ PUBLICATION PROCESSED BY: T!"IE SUN NEWSPAPERS . 216 Main Street Seal Beach, CA 90740 (310)430-7555 (714) 759-7726 This 'space for tor the County Clerk's Filing Stamp I Proof of Publication of ............................ . ............................ . NOTICE OF . . PUBLIC HEARING NOTICE IS HEREBY GIVEN Ihar the . CIIyCounclloflheCltyofSealBB8Ch MIl corDJct a public heEmg on Mondav. AugUSl25th. 1997 at 7:00 p m In the City Council Chambers, 211 Elghlh Street. S8.al Beach. to conslde, an agreement between lhe City of Seal _ Beach and ComcasI: CabkMsIOn. renew- Ing a nonexclusive franehlselg oper- ate B cable lelev.slon system In Ihe City of Seal Baach and sanlng tDlth terms and comhllons relatmg to lhe . renewal of S&Id franchise. A11lntarest- 8d persons may anend Ihe meellng and be heard. Wnnen comments may also be submutad and should be addressed to the Clly CoullCll, C/o CIIy Oetk.. Cly HIlI( 211 EJgnh SIteeI, SoIlI Baach. If the proposed actIons are challenged In court, you may be bnut- ad 10 raJlmg onty those issues you Ql someane else r8lSed 81 the pubk hear- ang descnbed an Ihls notice, or In WIll. ten correspondence delivered to the CAty of Seal Beach ai, or Prior to, the publIC hearing. " .. DATED THIS 1Blh day of August 1997,' , Joanne M Yao: City Clerk - , CAty 01 Seal Beach _ Published In the Seal Beach\Sun Joumal, 08121197. . I " I I I. I PROOF OF PUBLICATION _ (2015.5 C.C,P.) STATE OF CALIFORNIA, County of Orange I am a citizen of the United States and a resident of the County afore- said; I am over the age of eighteen years, and not a party to or inter- ested in the above-entitled matter. I am the principal clerk of the printer of the SEAL BEACH SUN, a newspaper of general circulation, printed and published weekly in the City of ~ Beach, County of Orange and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Orange, State of California, under the date of 2/24/75, Case Number A82583; that the notice of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: ~A\ -, ,all in the year 19Jrr., I certify (or decla~e) under penalty of perjury that the foregoing is true and correct. Dated at Seal Beacli, California, this \ \ day of ~, 19.J}L. (t ~ .,.a.~ ~.b o'O<:::J ~ Slgnat e . PUBLICATION PROCESSED BY: THE SUN NEWSPAPERS 216 Main Street Seal Beach, CA 90740 (310)430-7555 (714) 759-7726 .." Ordinance Number /';/8 This space for for the County Clerk's Filing Stamp Proof of Publication of ........................................................ .. ....................................................... .. . :NOTicE OF CONrINUEO - , ~ ,"' PUBUC HEARING-..,.' : 1 . . CABLE FRANCHISE '.. ,'NOTlCEISHEREBYGlVENthatU. Cll\' Council of Ihe City of Seal Beach I , dKf, 81lhelr regular meehng of August 25th. 1997. continue II pulJlIC hearJnQ until Monday, September 22nd~1997 In the CItV Council Chamber. 211 Eoghll1 S...., Seal Beech, releiing 10 ._of""_betwien the CIIV 01 5881 SeBeh and Corneast I CableviSlOn, renewing 8 nonexcluS1V8 tfranchl~ 10 ~rate a cable tehwislon syslem In the CIty of Seal Beach .. ling Ionh terms ei1d candIIJons rela.lng 10 Dl. ntn8WBJ of said franchlse ana constderallon of an OrdInance amend- ing.... Code ofll1e cny of Seal Beach aDV8rnlng franchises granted by the Qty for C'a~e teleVIsion systems and telecommunlcallons systems Alllnte[eSled persons may attend thI meeting and be heard Wnnen coma __....be~""'_ be _..sed 10 Qty Counal C/o CdV CS\eOt, City Hall, 2f 1 ElghUi'Streef. ea' BeaCh If the proposed CounCIl acIIOre n d1EIIer9id n COlI"\, )OJ may be Imted tofBIsmganly th0s81SSU8Ii you or someone else raised Bllhe publIC h8amg delCllbed in Ihl$l1OtICe or In wrlnen correspondence dellv~ erod to IIl8 CIIy Cerk ai, or pnor to: the public h8anng DATED THIS 4th day of Seplem: ber..l997 ....i.,f :..~II.. Joanne M. Yeo; CIIy Clerk' . .. ~CIIy of Seal ~~h . P...bhshed In ttie Seal Beech Sun Joumal. 09111/97:- ., Ordinance Number IpVl? PROOF OF PUBLICATION (2015,5 C,C,P.) STATE OF CALIFORNIA, County of Ora'nge I am a citizen of the United States and a resident of the County afore- , said; I am over the age of eighteen years, and not a party to or inter- ested in the above-entitled matter. I am the principal clerk of the printer of the SEAL BEACH SUN, a newspaper of general circulation, printed and published weekly in the City of Seal Beach, County of Orange and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Orange, State of California, under the date of 2/24175. Case Number A82583: that the notice of which the annexed is a printed copy (set in type not smaller than nonpareil), ha!. been published in each regular and entire issue of 3aid newspaper and not in any supplement thereof on the following dates, to-wit: \'\/),.0 . all in the year 19Jrr.. I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Seal Beach, California, this ).:0 day of N 0 ~ . , 19JIT.. ~_...,.~ "I}. ~~ Signature PUBLICATION PROCESSED BY: THE SUN NEWSPAPERS 216 Main Street Seal Beach, CA 90740 (310)430-7555 (714) 759-7726 This space for for the County Clerk's Filing Stamp I Proof of Publication of ............................ . ............................ . ." 'SUMMARv- .,!jJ!'; Ordmance Number",41Bofthe City of Seal Beach arriends Chapter 23A . of the Code of Ihe Oly of Seal Beach. r8VtS1ngthBregulabcl1S~1he . granting ollranchises by lhe City of __farcable_systemS and telecommunications systems I Ordinance Number 14 8 was . Introduced 81 the I'Bpr Oty.Couna . meetr1g of Novembei ,101h. 1997 and .' Ilrsl reading was approved by the following vote r . AYES Brown. FullOn:,Hastlngs NOES Campall. Forsylhe. . Mi>tIon earned Qrdanance Number 1418 WIll receive second reading and be conSIdered tar_allfio__24,1997 meeting Copes of OrdInance Number 141 B are avmlable from the office of - the City Clerk, Crty Hal!: 211 - 81h Slreel. Seal Beach. telephone (562) 431-2527. llI\1ED1lIs'''''d!rtolNlMlniler.'llIl7 Joanne M . Yea. Cdy Clerk Crtyof Seal Beach o_ j PubltstMId In the Seal Beach Sun :11J20J97". ._.. _" ~ : I I