Ord 129ORDINANCE NO. 129
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA
TO PROVIDE FOR THE ESTABLISP~IENT AND G~ANTING OF
FRANCHISES OR PRIVIT.~Rq FOR THE CONSTRUCTION,
~ AND OPERATION OF CABLE ~ICATION,
OR CABLE T~RVISION SYST~4S AND FURTHER
PROVIDING FOR THE CONTINUING R~i43IATION
AND ADMINISTRATION OF T~E FRANCHISES
AND THE ACTMTIES ~ATIVE TO TH~4
S~CTION 1. INTE~f
The City of Poway finds that the develoEa~ent of cable television and ~
munications systens has the potential of having great benefit and impact
upon the people of Poway. Because of the ccmplex and rapidly changing tech-
nology associated with cable television, the City further finds that the
public convenience, safety and general welfare can best be served by
establishing regulatory powers which should be vested in the City or such
persons as the City shall designate. It is the intent of this ordinance and
subsequent amendments to provide for and specify the me~ns to attain the
best possible public interest and public purpose in these matters and any
franchise agreement issued purs~ant to this ordinance shall be deemed to
include this finding as an integral part thereof.
S~CTION 2. SHORT TITLE
This ordinance shall be known and may be cited as the "City of Poway Cable
Television Franchise Ordinance."
S~CTION 3. DEFINITIONS
For the purpose of this ordinance the following terms, phrases, words and
their derivations shall have the meaning given herein. When not incon-
sistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in
the singular number include the plural number. The words "shall" is man-
datory and '%~ay" is permissive. Words not defined shall be given their com-
mon and ordinary meaning.
3.1 "Additional Subscriber Service" means any service not included in
"Poway Required Basic Television Service," or "Basic Subscriber Radio
Service" or "Institutional Service," including, but not limited to,
pay-cable.
3.2 "Agency Subscriber" me~ns a subscriber who receives a service in a
government or public agency, school, or nonprofit corporation.
Ordinance No. 129
Page 2
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"Basic Subscriber Radio Service" means the provision to all subscribers
of such audio programs as the retransmission of broadcast Fbi radio
signals, the retransmission of shortwave, weather, news, time and other
similar audio information and the transmission of cablecast audio
signals, all provided to subscribers at a monthly rate.
"Poway Required Basic Television Service" m~ns the total of all of the
following:
(a)
The transmission to all subscribers of all broadcast television
channel signals authorized or permitted by the FCC and provided
for in a franchise agr~ment.
(b)
The provision to all subscribers of nonbroadcast open channel
signals, originating frc~u sources outside the Cable C~,L,onications
Systeu.
(c) The cablecasting to all subscribers of local origination
progran~ning and public, education and government access
progran~uing.
(d) The transmission to all subscribers of all other cablecasting
open-channel signals.
Poway Required Basic Television Service may be offered to subscribers
in one or more tiers or c~abination of programs.
"Broadcast Signal" means a television or radio signal that is
transmitted over the air to a wide geographic audience and is received
by a Cable C~,,aunications System off-the-air or by microwave.
"Cable C~L,~ahnications Systems" or "System," also referred to as "Cable
Television System," "CATV System," or "Broadband C~,,~nications
Network," m~ns a system of antennas, cables, amplifiers, towers,
microwave links, cablecasting studios, and other conductors, 'conver-
ters, equiEm~ent or facilities, designed and constructed for the primary
purpose of distributing video progran~ing to home subscribers, and the
secondary purpose of producing, receiving, amplifying, storing, pro-
cessing, or distributing audio, video, digital, or other forms of
electronic or electrical signals.
"Cablecast Signal" m~ans a nonbroadcast signal that originates within
the facilities of the Cable Cu,,~onications System.
"Cable-mile" means a lin~_r mile of strand-bearing cable as m~ured on
the street or easement frem pole to pole or pedestal to pedestal.
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Ordinance No. 129
Page 3
"Channel" means a six (6) Megahertz (~z) frequency band, which is
capable of carrying either one (1) stand~rd television or video signal,
a number of audio, digital or other nonvideo signals, or sc~e cc~-
bination of such signals.
"Class IV Channel" m~ns a signaling path provided by a Cable
Cu~,,~unications System to transmit signals of any type from a subscriber
terminal to another point in the cable television system.
"Closed-Circuit" or "Institutional Service" m~ans such video, audio,
data and other services provided to institutional users on an indivi-
dual requirement, private channel basis. These may include, but not be
limited to, two-way video, audio or digital signals among institutions,
or frem institutions to residential subscribers.
"Cu~,,ence Construction" means that time and date when construction of
the Cable CuL,~nications System is considered to have c~L,~enced, which
shall be when the first connection is physically made to a utility
pole, or undergrounding of cables is initiated, construction does not
include preliminary engineering (strand mapping) nor obtaining
necessary permits and authorizations.
"Cu~,~ence Operation" means that time and date when operation of the
Cable C~,,~nications System is considered to have c~%m~=-nced which shall
be when sufficient distribution facilities have ~n installed so as to
permit the offering of full service to at lea~t ten percent (10%) of
the dwelling units located within the service area.
"Cu~,~rcial Subscriber" means a subscriber who receives a service in a
place of business, where the service my be utilized in connection with
a business, trade, or profession.
"Converter" means an electronic device which converts signal carries
frcm one form to another.
"Council" means the governing body of the City of Poway.
"Education Channel," or "Education Access Channel" means any channel
where educational institutions are the primary designated programmers.
"FCC" means the Federal C~,~,~nications Cu~,~'.~ssion and any legally
appointed or elected successor.
"Franchise" means the nonexclusive rights granted purs,,~nt to this
ordinance to construct and operate a Cable Cu~,~unications Syst~ along
the public way within all or a specified area in the City. Any such
authorization, in whatever form granted, shall not me__~n 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 this City.
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Ordinance No. 129
Page 4
"Franchise Agreement" means a franchise award ordinance, or a contrac-
tual agreement, containing the specific provisions of the franchise
granted, including referenced specifications, franchise applications,
franchise requir~nents, ordinances and other related materials.
"Franchise Foe" m~ans the foe paid by the Grantoe to the Grantor in
consideration of the use of the public streets and rights-of-way.
"Government Channel" or "Government Access Channel" means any channel
where local government agencies are the primary designated progr~.~,~rs.
"Grantcc" means any "person" receiving a franchise pursuant to this
ordinance and under the granting franchise ordinance, and its lawful
successor, transferee or assignoe.
"Grantor" or "City" means the'City of Poway as represented by the City
Council or any delegate acting within the scope of its jurisdiction.
"Gross Annual Revenues" memns the annual gross revenues received by the
Grantoe frcm all sources of operations of the Cable C~nications
System, except that any sales, excise or other taxes collected for
direct pass-through to local, state or federal government shall not be
included.
"Initial Service Area" means the area of the City which will receive
service initially, as set forth in the franchise agreement.
"Installation" means the connection of the system frcm the feeder cable
to subscribers' terminals, and the provision of service.
"Leased Channel" or "Leased Access Channel" means any channel or por-
tion of a channel available for lease and progranm~ing by persons or
entities other than the Grant~.
"Local Origination Channel" means any channel where the Grantoe is the
primary designated progranmer, and provides video programs to subscri-
bers.
"Monitoring" means observing a cu%¥nunication signal, or the absence of
a signal, where the observer is neither the subscriber nor the
progranmer, whether the signal is observed by visual or electronic
means, for any purpose whatsoever. Monitoring shall not include
syst~mm~ide, nonindividually addressed sweeps of the system for purposes
of verifying system integrity, controlling return paths transmissions,
billing for pay-cable, verifying ccm~pliance with FCC rules, or
detecting unauthorized connections to the cable c~¥~unications syst~n.
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Ordinance No. 129
Page 5
"Nonbroadcast Signal" means a signal that is transmitted by a Cable
Com~nications System and tb~t is not involved in an over-the-air
broadcast transmission path.
"Open Channel" means any channel that can be received by all subscri-
bers, without the necessity for special equi~-~nt.
"Pay-Cable" or "Pay-Television" means the delivery to subscribers, over
the Cable Cc~m~u%ications System, of television signals for a fee or
charge to subscribers over and above the charge for Basic Subscriber
Service, or a per program, per channel, or other subscription basis.
"Penetration" m~ans the result expressed in the percentage obtained by
dividing the to~al number of potential subscribers in the franchise
area into the number of subscribers receiving service.
"Person" m~ans an individual, partnership, association, corporation or
any lawful successor, transferee or assignee of said individual, part-
nership, association, organization or corporation.
"Private Channel," or "Closed-Circuit Channel" means any channel which
is available only to subscribers who are provided with special con-
verter or termiDal equitm~nt to receive signals on that channel.
"Progranmer" means a person or entity who or which produces or other-
wise provides program material or information for transmission by
video, audio, digital, or other signals, either live or frcm recorded
tapes or other storage media, to subscribers, by means of the Cable
Cc~manicat ions System.
"Public Access Channel" or "C~,,~mity Access Channel" means any channel
where any m~mber of the general public or any noncc~nercial organi-
zation may be a prograx~ner, without charge, on a first-ccme, first-
served, nondiscriminatory basis, in accordance with the terms of
the franchise agrc~ent.
"Reasonable Notice" shall be written notice addressed to the Grantee at
its principal office or such other office as the Grantee has designated
to the Grantor as the address to which notice should be transmitted to
it, which notice shall be certified and postmarked not less than four
(4) days prior to that day in which the party giving such notice shall
cu~,,~_nce any action which requires the giving of notice. In computing
said four (4) days, Saturdays, Sundays and holidays recognized by the
Grantor shall be excluded.
"Reasonable Order" shall be written orders not excessive or extr~ne as
to costs or time to cu~ly, governed by sound thinking.
Ordinance No. 129
Page 6
3.41 "Resident" m~ans any person residing in the City as otherwise defined
by applicable law.
3.42
"Residential Subscriber" means a subscriber who receives a service in
an individual dwelling unit, where the service is not to be utilized in
connection with a business, trade, or pr6fession.
3.43 "Sale" shall include any sale, exchange, barter or offer for sale.
3.44
"School" means any nonprofit educational institution including primary
and secondary schools, colleges and universities, both public and pri-
vate.
3.45 "Section" means any section, subsection, or provision of this franchise
ordinance.
3.46 "Service Area" m~ns the entire geographic area within the franchise
territory.
3.47 "State" me~ns the State of California.
3.48 "Street" sb~ll include each of the following which have b~n dedicated
to the public or hereafter 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, ease-
ments, rights-of-way and similar public property and areas that the
Grantor shall permit to be included within the definition of street
from time to time.
3.49
"Subscriber" means any person, firm, corporation, or other entity who
or which elects to subscribe to, for any purpose, a service provided by
the Grantee by means of or in connection with the Cable C~u'~nications
System.
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"Substantially Cc~pleted" means that sufficient distribution facilities
have been installed by the Grantee so as to permit the offering of full
network service to at lea~t ninety percent (90%) of the potential
subscribers in the service area.
S~CTION 4.
GRANT OF FRANCHISE
4.1
Grant. In the event that Grantor shall grant to the Grantee a
nonexclusive, revocable franchise to construct, operate, maintain, and
reconstruct, a Cable Cu¥~nications Systom within the franchise
area, said franchise shall constitute both a right and an obligation
to provide the services of a Cable Cu~,,~nications System as required
by the provisions of this ordinance and the franchise agreement. The
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Ordinance No. 129
Page 7
franchise agr~-~n~ent shall include those provisions of the Grantee's
"Application for Franchise" that are finally negotiated and accepted by
the Grantor and Grantee.
Any franchise granted under the terms and conditions contained herein
shall be consistent with general law and/or statutory requirements,
which are incorporated by this reference as if fully set forth herein.
In the event of conflict between the terms and conditions of the
franchise and the terms and conditions on which the Grantor can grant a
franchise, the general law and/or statutory requirements, shall,
without exception, control.
Any franchise granted is hereby rode subject to the general ordinance
provisions now in effect or hereafter made effective. Nothing in the
franchise shall be dc~-~med to waive the requirements of the various
codes and ordinances of the Grantor regarding permits, fees to be paid
or manner of construction.
Franchise Territory. The Grantor may grant a franchise for all or any
defined portion of the City. The service area shall be the entire
territory defined in the franchise agreement. The initial service area
shall be that portion of the franchise territory scheduled to receive
initial service, as stated in the franchise agr~-~ment.
Use of Public Streets and Ways. For the purpose of operating and main-
taining a Cable C~L,L~nications System in the franchise area, and sub-
ject to the provisions of Section 7.10 herein, the Grantee may erect,
'install, construct, repair, replace, reconstruct, and retain in, on,
over, under, upon, across, and along the public strccts and ways within
the franchise territory such wires, cables, conductors, ducts, con-
duits, vaults, manholes, amplifiers, appliances, pedestals, attach-
ments, and other property and equipment as are necessary and
appurtenant to the operation of the Cable C~,'~,~unications System. Prior
to construction or alteration, however, the Grantee shall in ~h case
file plans with the appropriate Grantor agencies and local utility ccm-
panies, and receive written approval before proceeding.
Duration. The term of any franchise and all rights, privileges, obli-
gations and restrictions pertaining thereto shall be fiftcc~n (15) y~rs
frem the effective date of the franchise unless terminated sooner as
hereinafter provided. The effective date of the franchise shall be the
date of adoption of the resolution by the Grantor approving the
franchise agrc~--~ent.
Franchise Nonexclusive. Any franchise granted shall be nonexclusive.
The Grantor specifically reserves the right to grant, at any time, such
additional franchises for a Cable Cum~nications System as it
appropriate.
Ordinance No. 129
Page 8
4.6 Transfer of Ownership or Control.
(a)
Transfer of Franchise. Any franchise granted hereunder shall be a
privilege to be held for the benefit of the public. Said
franchise cannot in any event be sold, transferred, leased,
assigned or disposed of, including but not limited to, by
forced or voluntary sale, merger, consolidation, receivership, or
other means without the prior consent of the Grantor, and then
only under such conditions as the Grantor may establish. Such
consent as required by the Grantor shall, however, not be unreaso-
nably withheld.
(b)
Ownership or Control. The Grantee shall prcmptly notify the
Grantor of any proposed change in, or transfer of, or acquisition
by any other party of, control of the Grantee. The word "control"
as used herein is not limited to major stockholders but includes
actual working control in whatever manner exercised. A rebuttable
presumption that a transfer of control has occurred shall arise
upon the acquisition or transfer by any person or group of persons
of thirty percent (30%) of the voting shares of the Grantee or
thirty-three percent (33%) of the voting shares of Grantee's
parent corporation, if any shall exist, during the period of the
franchise agr~-~-~_n, t. Every change, transfer, or acquisition of
control of the Grantee shall make the franchise subject to.
cancellation unless and until the Grantor shall have consented
thereto, which consent will not be unreasonably withheld. For the
purpose of determining whether it shall consent to such change,
transfer, or acquisition of control, the Grantor may inquire into
the qualifications of the prospective controlling party, and the
Grantee shall assist the Grantor in any such inquiry.
In seeking the Grantor's consent to any change in ownership or
control, the Grantee shall have the responsibility:
(1)
To show to the satisfaction of the Grantor whether the pro-
posed purchaser, transferee, or assignee (the "proposed
transferee"), which in the case of a corporation, shall
include all officers, directors, employees and all persons
having a legal or equitable interest in five percent (5%) or
more of its voting stock, or any of the proposed transferee's
principals:
Se
Has ever ~cn convicted or held liable for acts
involving moral turpitude including, but not limited to
any violation of federal, state or local law or regula-
tions, or is presently under an indictment, investiga-
tion or c~laint charging such acts;
(2)
(3)
Ordinance No. 129
Page 9
Has ever bad a judgment in an action for fraud, deceit
or misrepresentation entered against it, her, him, or
th~n by any court of c~-~etent jurisdiction; or
Has pending any legal claim, lawsuit or administrative
proceeding arising out of 'or involving a cable system.
To establish, to the satisfaction of the Grantor, the finan-
cial solvency of the proposed transferee by submitting all
current financial data for the proposed transferee which the
Grantee was required to s,,k~li.'t in its franchise application,
and such other data as the Grantor my request. Financial
statements shall be audited, certified and qualified by an
independent Certified Public ;%~coun~ant.
To establish to the satisfaction of the Grantor that the
financial and technical capability of the proposed transfercc
is such as shall enable it to maintain and operate the cable
system for the r~naining term of the franchise under the
existing franchise terms.
The Grantor agrees that any financial institution having
a pledge of the franchise or its assets for the advan-
cement of money for the construction and/or operation of
the franchise shall have the right to notify the Grantor
that it or its designee satisfactory to the Grantor will
take control and operate the Cable Cu~,~,onications
System, in the event of a Grantee default in its finan-
cial obligations. Further, said financial institution
shall also sukxnit a plan for such operation that will
ensure continued service and c~,~liance with all
franchise requirements during the term the financial
institution shall not exercise control over the system
for a period excc~ing one (1) year unless extended by
the Grantor in its discretion and during said period of
time it shall have the right to petition the Grantor to
transfer franchise to another Grantee. If the Grantor
finds that such transfer after considering the legal,
financial, character, technical and other public
interest qualities of the applicant are satisfactory,
the Grantor will transfer and assign the rights and
obligations of such franchise as in the public interest.
The consent of the Grantor to such transfer sba]l not be
unreasonably withheld.
(b)
The consent or approval of the Grantor to any transfer
of the Grantee shall not constitute a waiver or rele~_-~e
of the rights of the Grantor in and to the streets, and
any transfer sb~ll by its terms, be expressly subor-
dinate to the terms and conditions of any franchise.
· Ordinance No. 129
Page 10
4.7
(c)
In the absence of extraordinary circumstances, the
Grantor will not approve any transfer or assignment of
the franchise prior to substantial completion of
construction of the proposed system.
(d)
In no event shall a transfer of ownership of control be
approved without the successor in interest beccming a
signatory to the franchise agrc~.---~_nt and otherwise obli-
gated thereto to the satisfaction of Grantor.
Franchise Renewal. Nothing in any franchise agrc~--ment shall require
renewal by the Grantor after the term of the franchise has expired, nor
shall renewal be presumed as a matter of vested interest.
(a) Term. The renewal term of any franchise shall not be greater than
the initial term.
(b) Renewal Procedure.
(1)
Not later than eighteen (18) nor earlier than twenty-four
(24) months prior to the expiration of any franchise, a
Grantee may submit an application for renewal of such
franchise, on forms approved by the Grantor, with a nonrefun-
dahle application fee eseahlished by the Grantor in an amount
not to exceed the reasonable cost of processing the applica-
tion. The application shall set forth in detail the franchi-
see' s legal, character, financial and other pertinent
qualifications sufficient to make a determination to renew or
terminate such franchise.
(2)
The application when filed shall be available for public
inspection at places designated by the Grantor. No later
than ninety (90) days after filing, a public b~a~ring shall be
held on the application. A decision shall be made by the
Grantor not later than ninety (90) days after such h~aring
based upon the application, the hearing the Grantee's record
of c~pliance with the franchise requirements, its record of
satisfactory service, and the terms and conditions proposed
for the franchise renewal period.
(3)
Based on the above criteria, Grantor may decide to renew the /
franchise under appropriate terms and conditions, or not to
renew the franchise.
(4)
If Grantor's decision is not to renew the franchise, Grantor
may initiate public solicitations for applications for a new
franchise. The original Grantee shall not be precluded fr~
sutmaitting such an application.
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Ordinance No. 129
Page 11
(5)
In any renewal or public solicitation, the Grantor ray
require additional services, systen upgrade or any other con-
ditions it de~ms feasible and appropriate in the light
of the accepted and proven state-of-the-art of the cable ccm-
munications industry at that time.
Police Powers. In accepting a franchise, the Grantee acknowledges that
its rights hereunder are subject to the police power of the Grantor to
adopt and enforce general ordinances necessary to the safety and
welfare of the public; and it agrees to cc~ply with all applicable
general laws and ordinances enacted by the Grantor purs~_~nt to such
Any conflict between the provisions of this ordinance and any other
present or future lawful exercise of the Grantor's police powers shall
be resolved in favor of the latter, e~x:ept that any such exercise that
is not of general application in the jurisdiction or applies e~lusi-
vely to any Grantee or Cable Cu,,,~nications Systems which contains pro-
visions inconsistent with this franchise shall prevail only if upon
such exercise, the Grantor finds any ~nergency exists constituting a
d_~_nger to health, safety, property or general welfare or such exercise
is mandated by law.
4.9 Franchise Fee.
(a)
Annual Franchise Pa~anent. A Grantee of a franchise hereunder
shall pay to the Grantor an annual fee in an amount as designated
in the franchise agreement. The amount shall be the maximum
amount allowed by the FCC or other applicable law and shall not
exceed five (5) percent or be less than three (3) per cent. Such
payment shall be in addition to any other palanents due the grantor
and cc~nence as of the effective date of the franchise. In the
event of a dispute, the Grantor, if it so requests shall be fur-
nished a statement, by a Certified Public Account, reflecting the
total amounts of annual gross revenues and all payments, deduc-
tions and ccm~utations for the period covered by the payment.
(b)
Acceptance by Grantor. No acceptance of any payment by the
Grantor sh~ll be construedas a release or as an accordandsetis-
faction of any claim the Grantor my have for further or addi-
tional sums payable as a franchise fee under this ordinance or for '
the performance of any other obligation of the Grantcc.
(c)
Failure to Make Required Pa~a~ent. In the event that any franchise
payment or reccmputed amount is not made on or before the dates
specified herein, Grantee shall pay as additional c~,-~ensation:
(1)
An interest charge, conputed frcm such due date, at the
annual rate equal to the ccamercial prime interest rate in
effect upon the due date.
Ordinance No. 129
Page 12
(2)
A sum of money equal to five percent (5%) of the amount due
in order to defray those additional expenses and costs
incurred by the Grantor by r~a-~on of delinquent payment.
(d)
An estimated quarterly payment shall be made for the first thrcc
quarters of the calendar year based' upon the Grantee's operation,
as of March 31, June 30, and September 30. W~ch of these payments
shall be due and payable no later than thirty (30) days after the
end of the c~arter. Each payment shall be accu~-~anied by a brief
report showing the basis for the estimated payment and such other
relevant facts as my be required by the Grantor. The payment for
the quarter ending December 31 shall be due and payable no later
then ninety (90) days after the end of the quarter. Said payment
shall reflect the actual payment due the Grantor frcm the previous
quarter plus an adjustment for any underpayment or overpayment
made during the previous three quarters. Said payment shall be
acccrapanied by a report showing the quarterly gross revenues, the
total annual revenues, the basis of the ccmputation and such other
relevant facts as may be required by the Grantor.
(e)
Following the issuance and acceptance of the franchise, the
Grantee shall initiate franchise fee payments to the Grantor at
the minimum rate specified in the franchise agreement. These
initial payments shall be credited against payments due in later
years of the franchise in as n~_~ch as they excc~ the actual
franchise payments due during any y~r.
4.10'Forfeiture or Revocation.
(a)
Grounds for Revocation. The Grantor reserves the right to revoke
any franchise granted hereunder and rescind all rights and privi-
leges associated with the franchise in the following circt~nstan-
ces, each of which shall represent a default and breach under this
ordinance and the franchise grant:
(1)
If the Grantee should default in the performance of any of
its obligations under this ordinance or under such documents,
agrc~--n~_nts and other terms and provisions entered into by and
between the Grantor and the Grantee.
(2)
If the Grantee should fail to provide or maintain in full
force and effect, the liability and indemnification coverages
or the security fund or bondsas required herein.
(3)
If any court of ccl~petent jurisdiction, or any federal or
state regulatory body by rules, decisions or other action
determines that any provision of the franchise documents,
including this ordinance, is invalid or unenforceable prior
to the ccmnencement of system construction.
Ordinance No. 129
Page 13
(4)
If the Grantee should willfully violate any orders or rulings
of any regulatory body having jurisdiction over the Grantee
relative to this franchise unless such orders or rulings are
being contested by the Grantee before an appropriate regula-
tory body or agency or in a court of cc~petent jurisdiction.
(5)
If the Grantee ceases to provide services for any reason
wi thin the control of the Grantee over the Cable
CuL,L~nications Syste~. The Grantee shall not be declared at
fault or be subject to any sanction under any provision of
this ordinance in any case in which performance of any such
provision is prevented for reasons beyond the Grantee's
control. A fault shall not be deemed to be beyond the
Grantee's control if committed by a corporation or other
business entity in which the Grantee holds a controlling
interest, whether held directly or indirectly.
(6)
If the Grantee attaints to evade any of the provisions of
this ordinance or the franchise agreement or practices any
fraud or deceit upon the Grantor.
(7)
If the Grantee's construction schedule is delayed for more
than eighteen (18) months later than the schedule contained
in the franchise agreement and Grantor finds that the delay
was not excusable.
(8) If the Grantee becc~es insolvent, up_able or unwilling to
pay its debts, or is adjudged bankrupt.
(b) Procedure Prior to Revocation.
(1)
The Grantor my make written d~mand that the Grantee do so
cc~ly with any such requirement, limitation, term condition,
rule or regulation or correct any action de~ed cause for
revocation. If the failure, refusal or neglect of the
Grantee continues for a period of thirty (30) days
following such written demand, the Grantor may place its
request for termination of the franchise upon a regular
Council meeting agenda. The Grantor shall cause notice to be
served upon such Grantee, at l~a~t ten (10) days prior to the
date of such m~_ting, a written notice of this intent to
request such termination, and the time and place of the
meeting, notice of which shall be published at least once,
ten (10) days before such ~m~cting in a newspaper of general
circulation within the franchise area.
0rdinanee No. 129
Page 14
(2)
The Grantor 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.
(3)
If such failure, refusal or nC~31ect by the Grantee was with
just cause, the Grantor shall direct the Grantee to cc~ply
within such time and manner and upon such terms and con-
ditions as are r~a.~onable.
(4)
If the Grantor shall determine such failure, refusal or
neglect by the Grantee was without just cause, then the
Grantor may, by resolution, declare that the franchise of
such Grantee sb~ll be terminated and security fund end bonds
forfeited unless there be a cuL~liance by the Grantee within
such period as the Grantor my fix.
(5)
The decision of Grantor shall be in writing; the reasons
stated therefore set forth with findings supported by evi-
dence within the record of proccc~ings.
4.11 Procedures in the Event of Termination or Expiration.
(a)
Disposition of Facilities. In the event a franchise expires, is.
revoked, or otherwise terminated, the Grantor my order the remo-
val of the system facilities frcm the franchise area reasonable
period of time as determined by the Grantor or may allow the
underground system facilities to be abandoned in place or require
the original Grantee to maintain and operate its network until a
subsequent Grantee is selected and a subsequent or modified cable
syste~ beccmes operational.
(b)
Restoration of Property. In r~uoving its plant, structures and
equi~nent, the Grantee sba31 refill, at its own expense, any exca-
vation that sba]l be made by it and shall leave all public ways
and places in as good condition as that prevailing prior to the
Grantee' s r~noval of its equi[m~nt and appliances without
affecting the electrical or telephone cable wires, or attachments.
The Grantor shall inspect and approve the condition of the public
ways and public places; and cables, wires, attachments and poles
after removal. The liability, indemnity and insurance, and the
security fund and bonds provided therein shall continue in full
force and effect during the period of r~noval and until full
compliance by the Grantee with the terms and conditions of this
Section.
Ordinance No. 129
Page 15
(c)
Restoration b~; Grantor, Reimbursement of Costs. In the event of a
failure by the Grantee to complete any work required by
Subsection (a) above and/or Subsection (b) above, or any other
work required by Grantor by law or ordinance within the time as
my be established and to the satisfaction of the Grantor, the
Grantor my cause such work to be done and the Grantee sb~ll reim-
burse the Grantor the cost thereof within thirty (30) days after
receipt of an itemized list of such costs or the Grantor my
recover such costs through the security fund or bonds provided by
Grantee. The Grantor shall be permitted to seek legal and
equitable relief to enforce the provisions of this Section.
(d)
Extended Operation. Upon either the expiration or revocation of a
franchise, the Grantor may require the Grantee to continue to
operate the Cable C~L,,,unications System for a defined period of
time not to exccc~d twenty-four (24) months frcm the date of such
expiration or revocation. The Grantcc shall, as trustee for its
successor in interest, continue to operate the Cable
Cu,,,~nications System under the terms and conditions of this ordi-
nance and the franchise agr~ent and to provide the regular
subscriber service and any and all of the services that may be
provided at that time. The Grantor shall be permitted to seek
legal and equitable relief to enforce the provisions of this
Section.
(e)
Grantor's Right Not Affected. The termination and forfeiture of
any franchise shall in no way affect any of the rights of the
Grantor under the franchise or any provision of law.
4.12 Receivership and Foreclosure.
(a)
Any franchise herein granted shall, at the option of the Grantor,
cease and terminate one hundred twenty (120) days after their
appointment of a receiver or receivers or trustee or trustees to
take over and conduct the business of the Grantee whether in a
receivership, reorganization, bankruptcy or other action or pro-
cc~ing unless such receivership or trusteeship shall have been
vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
(1)
Such receivers or trustees shall have, within one hundred
twenty (120) days after their election or appointment,
fully complied with all the terms end provisions of this
ordinance and the franchise granted pursuant hereto, and the
receivers or trustees within said one hundred twenty (120)
days shall have r~medied all defaults under the franchise;
and,
Ordinance No. 129
Page 16
4.13
4.14'
(2)
Such receivers or trustees shall, within said one hundred
twenty (120) days, execute an agrc~.---~nt duly approved by the
Court having jurisdiction in the premises, whereby such
receivers or trustees ass~ne and agree to be bound by each
and every term, provision and limitation of the franchise
agreement.
(b)
In the case of a foreclosure or other judical sale of the plant,
property and equil~aent of the Grantee, or any part thereof, the
Grantor may serve notice of termination upon the Grantee and the
successful bidder at such sale, in which event the franchise and
all rights and privileges of the Grantee hereunder shall c~.~e and
terminate thirty (30) days after service of such notice, unless:
(1)
The Grantor shall have approved the transfer of the
franchise, as and in the manner in this ordinance provided;
and,
(2)
Such successful bidder shall have covenanted and agreed with
the Grantor to assume and be bound by all the terms and con-
ditions of the franchise agre~nent.
Franchise Required. No Cable C~,,,unications System shall be allowed to
occupy or use the streets in the franchise territory or be allowed to
operate without a franchise in accorOance with the provisions of this
ordinance.
Establishment of Franchise Requirements. The Grantor my establish
appropriate requirements for new franchises or franchise renewals, and
may modify these requir~aents from time to time to reflect changing
conditions and state-of-the-art in the cable television industry. Such
requirements shall not be retroactive to franchises then in effect.
SBCTION 5.
Pd~%~ATION OF FRANCHISE
5.1
Regulatory Authority. The Grantor shall exercise appropriate regula-
tory authority under the provisions of this ordinance and applicable
law. If the franchise ares served by the Cable C~',,~%unications System
also serves other contiguous or neighboring ccmmunities, Grantor may,
at its sole option, participate in a joint regulatory agency, with
delegated responsibility in the area of cable and related ~
munications.
5.2
Regulatory Responsibility. The Grantor, acting alone or acting jointly
with other Grantors, may exercise or delegate the following regulatory
responsibility:
5.3
Ordinance No. 129
Page 17
(a) Administering and enforcing the provisions of the Cable
Cut~L~mications System franchise(s).
(b) Coordination of the operation of government and educational chan-
nels.
(c)
Providing technical, progranxning and operational support to public
agency users, such as government departments, schools and health
care institutions.
(d)
Establishing procedures and standards for use of channels dedi-
cated to public use and sharing of public facilities, if provided
for in any franchise agrc~nent.
(e) Planning expansion and growth of public benefit cable services.
(f) Analyzing the possibility of integrating cable cc~nunications with
other local, state or national telec~f~f~nications networks.
(g) Formulating and rec~,,t~_nding long-range telec(~,,~nication policy.
Public Usage of the Syst~n. If so specified in the franchise
agrc~--~ent, the Grantor may utilize a portion of the Cable
Cu~nications Syst6~n capacity, and associated facilities and resour-.
ces, to develop and provide cable services that will be in the public
interest. In furtherance of this purpose, the Grantor my establish a
cc~mission, public corporation, or other entity to receive and allocate
facilities, support funds and other considerations provided by the
Grantee, and/or others. Such an entity, if established, my be dele-
gated the following responsbilities:
(a)
Receive and utilize or reallocate for utilization, channel capa-
city, facilities, funding and other support provided specifically
for public usage of the Cable C~Lu~nications Systen.
(b) Review the status and progress of each service developed for
public benefit.
(c) Reallocate resources on a periodic basis to conform with changing
priorities and public
(d)
Report to the Grantor annually on the utilization of resources,
the new public services developed and the benefits achieved for
the City and its residents.
5.4
Ordinance No. 129
Page 18
Reservation byGrantor. The Grantor reserves the right, at its discre-
tion, frcm time to time, to determine if the entity described in
section 5.3 above is performing its purposes in a manner satisfactory
to the Grantor, and if it is not, the Grantor my receive and allocate
all or a portion of the channel capacity, operations, and capital
appropriation, including any facilities~and equipment purchased pre-
viously with such appropriation, to another entity. A new entity shall
be required to c~ly in all respects with the legal responsibilities
described in Section 5.3.
5.5 Initial Rates.
(a)
The Grantee shall establish initial rates that must be applied
fairly and uniformly to all subscribers in the franchise area for
its services in accordance with the rates contained in the
franchise agr~-~n~_nt. Ail rates shall be the maximum allowable
rate to be charged to the subscriber.
(b)
Initial basic subscriber rates shall be effective for a minimumof
t~ (2) years frcm the date cable service cu¥,~nces, or until
Grantee bas completed all construction proposed in its application
whichever is longer.
5.6 Rate Change Procedure.
(a) The Grantee may establish its own rates and charges for services
rendered to subscribers under this franchise.
(b)
The Grantor may recapture its rate-making authority at any time if
the Grantor, at its discretion, determines that the Grantee is
failing to m~ct FCC Technical Standards, is not properly providing
service for its subscribers, or, in the judgement of the Grantor,
the Grantee is not cc~plying with its franchise c~,,~Jtment.
(c)
When the Grantee elects to increase its rates it shall notify, in
writing, the Grantor, a minimum of ninety (90) calendar days
before the increase is scheduled to take effect. The Grantor my
challenge this increase within thirty (30) calendar days. If the
Grantor challenges an increase pursuant to this subsection, the
increase shall not becc~ effective until a b~?ing is held and
the increase is approved by the City Council.
(d)
Within sixty (60) days following the notification to the Grantee
that the Grantor wishes to challenge the rate increase, the
Grantor shall hold a public bearing to consider the proposed rate
change, at which h~aring all persons desiring to be heard,
including the Grantee, shall be b~rd on any rotter including, but
not limited to, the performance of its franchise, the Grantee's
service, and the proposed new rates.
(e)
(f)
Ordinance No. 129
Page 19
Upon notice of any public bM_ring as provided above, the Grantee
shall notify its subscribers of the time, place, and subject
matter of the public hearing by announcement on at least two (2)
channels of its system between the hours of 7:00 P.M. and 9:00
P.M., for at least five (5) consecutive days prior to the
hearing or by such suitable m~ns and messages as my be approved
by the Grantor.
Within ninety (90) days after said h~ring, the Grantor shall
render a written decision on the Grantee's petition, either
accepting, rejecting, modifying or deferring the same and reciting
the basis for its decision. The Grantor shall consider, but not
be limited to the following factors in approving or disapproving
the petition:
(1) Grantee's fulfillment of all requirements of the franchise.
(2)
Quality of service, as indicated by the number and type of
service complaints, Grantee's response to ccmplaints, and the
result of periodic syst~an performance tests and the annual
reviews specified in Section 5.7.
(3) Prevailing rates for comparable services in other cable
systems of similar size and c~plexity.
(4)
Bate of return on Grantee's equity, as c~ared to busineSses
of equivalent risk. For the purposes of this ordinance, the
rate of return on equity shall be defined as the net, after-
tax profit divided by the equity protion of Grantee's invest-
ment in tangible assets. The inveStment shall be defined as
the cumulative cost of tangible assets such as plant, pro-
perty and equipment, less the cumulative depreciation
charges, plus working capital, which shall be defined as
equivalent to three (3) months total operating expenses.
The rate of return shall be calculated on a cumulative basis
for all system revenues and costs including services such as
pay-cable that my be ex~,~at frcm local rate regulation.
Upon request of Grantor, Grantee shall prcmptly provide, frcm
the Grantee, its parent cc~pany and any subsidiary come,any,
all information as shall be reasonably necessary to determine
system revenues and costs.
(5)
Performance of Grantee in introducing new services and
expanding the cable system's capability, as c~npared to
other systems of similar size and ccx~lexity, and as eva-
luated by the system and services review specified in Section
5.8
(g)
Ordinance No. 129
Page 20
(h)
(i)
(6)
(7)
Tax benefits received by Grantee, its partners or sbmre-
holders, as the result of their investment in the system.
Cash flow derived from system services. The Grantor shall
not consider any valuation based upon the franchise or the
Grantee's goodwill and these items of value shall neither be
amortized as an expense nor shall a return be paid on them.
If the Grantor fails to render a written decision either
accepting, rejecting, modifying, or deferring Grantee's petition
within one hundred eighty (180) days of the Grantee's petition
pursuant to this Section, the Grantee shall ther~fter be entitled
to put its proposed new rates into effect.
The Grantee's request for a rate increase shall at the request of
the Grantor, include, but not be limited to, the following finan-
cial reports, which shall reflect the operations of the system:
(1) Balance sheet.
(2) Inccme sheet.
(3) Statement of sources and applications of funds.
(4) Detailed supporting schedules of expenses, incc~e, assets,
depreciation and other items as may be required.
(5) Statement of current and projected subscribers and penetra-
tion.
The Grantee's accounting records applicable to the system
shall be available for inspection by the Grantor at all
reasoDahle times. The Grantor shall have access to records
of financial transactions for the purpose of verifying burden
rates or other indirect costs prorated to the operation. The
documents listed above sbmll include sufficient detail and/or
footnotes as maybenecessarytoprovide the Grantor with the
information needed to make accurate determinations as to the
financial condition of the system. All financial stat~nents
shall be certified as accurate by a certified public accoun-
tant or officer of Grantee.
Schedule of Rates. The Grantee shall maintain and file with the
Grantor, a c~lete schedule of subscriber rates including all
fccs and charges for services not subject to regulation or appro-
val bythe Grantor.
Ordinance No. 129
Page 21
5.7
(j)
Disconnections. There shall be no charge for disconnection from
the system. However, if a subscriber has failed to pay properly
due monthly fees or if a subscriber disconnects for s~a.~onal
periods, the Grantee may require, in addition to full payment of
any delinquent fees, a reasonable fee for reconnection.
(k)
No Consideration Beyond Schedule. The Grantee shall receive no
consideration whatsoever for or in connection with its provision
of service to its subscribers other than as set forth in this
Section or as filed with and/or approved by the Grantor.
(1)
S,,k~uission of Rate Increase Requests. Grantee sb~311 not s,,h~it a
request for rate increases ~rlier than twelve (12) months after a
prior request.
(m)
Rate Increase Notice. The Grantee shall give notice to subscri-
bers at least thirty (30) days in advance of the implementation of
a rate increase, and no part of the increase shall be applicable
to any bills for service which have already bc~n sent to subscri-
bers.
Annual Review of Performance. At Grantor's sole option, within ninety
(90) days of the first anniversary of the effective date of each
franchise, and each year thereafter throughout the term of the
franchise, the Grantor and Grantee shall meet publicly to review the
performance, quality of service and rates of the cable cu,,~,unications
system. The reports required in Section 9 regarding subscriber
cc~01aints, the records of performance tests and the opinion survey
report shall be utilized as the basis for review. In addition, any
subscriber my sut~it cu~olaints during the review w~tings, either
orally or in writing, and these shall be considered.
(a)
Within thirty (30) days after the conclusion of the system perfor-
mance review m~ctings, Grantor shall issue findings with
respect to the adequacy of system performance and quality of ser-
vice. If inadequacies are found, Grantor may direct Grantee to
correct the inadequacies within a reasonable period of time.
(b)
Failure of Grantee, after due notice, to correct the inadequacies
shall be considered a material breach of the franchise, and
Grantor my, at its sole discretion, exercise any remedy within
the scope of this ordinance or state law considered appropriate.
Ordinance No. 129
Page 22
5.8
System and Services Review. To provide for technological, econcmic,
and regulatory cbzRnges in the proven and accepted state-of-the-art of
cable c~,~nicationsw to facilitate renewal proceduresw to prc~ote the
maximum degree of flexibility in the cable system, and to achieve a
continuing, advanced modern system, the Grantor and the Grantee shall
cc~ply with the following system and services review provisions and
the franchise agreement:
(a)
At Grantor's sole option, the Grantor and Grantee shall hold a
system and services review sessions; however, Grantor shall not
require such sessions more frequently than every three (3) years.
(b)
Sixty (60) days prior to the scheduled system and services review
session, Grantee shall sutmzit a report to Grantor indicating the
following:
(1) All cable systsm services referred to above that are known to
be in large metropolitmn areas.
(2)
A plan for provision of such services, or justification indi-
cating why such services are not feasible for the franchise
(c)
Topics for discussion and review at the system and services review
sessions shall include but shall not be limited to, services pro-
vided, rate structure, free or discounted services, application of
new technologies, system performance, progra~ning, subscriber
ccmplaints, user c~laints, rights of privacy, amendments to the
franchise, undergrounding processes, developments in the law, and
regulatory constraints.
(d) Either the Grantor or the Grantee may select additional topics for
discussion at any review session.
(e)
Not later than sixty (60) days after the conclusion of each system
and services review session, Grantor shall issue findings,
including specifically a listing of any cable services not then
being provided to the Grantor that are considered technically and
econcmtically feasible. Grantor may direct Grantee to provide such
services within a reasonable time, under reasonable rates and con-
ditions. Failure to provide such direct services may be con-
sidered a breach of the franchise, subject to remedies as provided
in this ordinance.
0rdinanceNo. 129
Page 23
5.9 ~cess Channel Management.
(a)
Intent. It is the intent of the Grantor to ensure that access and
c~,,nunity channels provided for in any franchise agrc~----aent,, shall
be managed in the best public interest, so that programming on
such channels will be free of censorship, open to all residents,
and available for all forms of public expression, cci~m~nity infor-
mation and debate of public issues. Pursnant to these objectives,
the Grantor may delegate the responsibility for non-regionally
oriented public access channel manag~m~_nt to a nonprofit entity
which may include, but not be limited to, any of the following:
(1) A nonprofit public corporation.
(2) An access management cc~mission or cc~anittee, appointed by
Grantor, and representing a broad spectrum of the c~L.,~nity.
(3) An established nonprofit entity with special cablecasting
capability, such as a local or regional C~L,LLunity college.
(b) Functions. The entity designated to manage the access channels
shall have the following functions:
(1)
Responsibility for program production for and management of
the public access channel and all other channels as my in
the franchise agrc~---nlent be designated for c~L,~.~nity-based
prograra~ing. Cc~ammity channels may include government and
educational access channels', as designated in the franchise
agrc~.---~ent.
(2)
To assure that the public access and cu,,,,unity cb~nnnels are
made available to all residents of the franchise area on a
nondiscriminatory, first-come, first-served basis.
(3)
To assure tb~t no censorship or control over program content
of the public access and C(~L,~Lunity channels exist, except as
necessary to cu~ly with FCC prohibition of material that is
obscene, or contains cc~mercial advertising, or conducts a
lottery.
(4)
TO devise, establish, and administer all rules, regulations,
and procedures pertaining to the use and scheduling of the
public access and community channels.
(5) To prepare, in conjunction with the Grantee, such regular or
special reports as may be required or desirable.
(6) To hire and supervise staff.
(c)
(d)
Ordinance No. 129
Page 24
(7) TO make all purchases of mterials and equipment that my be
required.
(8) To develop additional sources of funding, such as foundation
or federal or state grants, to further c~,,,unity programming.
(9) To perform such other functions relevant to the public and
c(~,,~nity channels as may be appropriate.
(10)
Establishment of budgets on an annual basis, and utilization
of funds and resources received frcm the Grantor or the
public usage entity designated in Section 5.3, for the pur-
pose of access progranming.
Access Rules. The access management entity shall c~lete a set
of rules for the use of'the access and cam~nity channels which
shall be prc~ptly forwarded to the Grantor. The rules shall be
prepared in cooperation with the Grantee, and confirmed by a
contractual agreement between the access management entity and the
Grantee. The rules shall, at a minimum, provide for:
(1) Access on a first-cc~e, first-served, nondiscriminatory basis
for all residents of the franchise area.
(2) Prohibition of advertising for c~m~rcial or political pur-
poses, as defined by the FCC.
(3) Prohibition of any presentation of lottery information, Or
obscene or indecent material.
(4) Public inspection of the log of producers, which shall be
retained by the Grantee for a period of two (2) y~ars.
(5) Procedures by which individuals or groups who violate any
rule mybeprevented frcmfurtheraccess tothe channel.
(6)
Free use of such r~a~onable amounts of channel time, cable-
casting facilities, and technical support as are provided for
in the agrc~aent between the access management entity and the
Grantee.
Access Management Entity Re~orts to Grantor. The access manage-
ment entity shall provide a report to the Grantor, at l~t
annually, indicating achievements in c~m~unity-based prograaming
and services, and also shall provide a special report each time
Grantee requests an increase in rates, indicating the level ana
quality o~ Grantee's support outing tne pez~oa elapsea slnce any
previous rate ~ncrease was nmp±emen~e~.
S~CTION 6.
Ordinance No. 129
Page 25
GI~AL FINANCIAL AND INSURANCE PROVISIONS
6.1 Construction Bond
(a)
(b)
(c)
(d)
Within thirty (30) days after the granting of a franchise and
prior to the cc~mencement of any construction work by the Grantee,
the Grantee shall file with the Grantor a construction bond in the
amount specified in the franchise agrc~--~ent in favor of the
Grantor and any other person who may claim damages as a result of
the breach of any duty by the Grantee assured by such bond.
Such bond as cont~,~lated herein shall be in the form approved by
the Grantor and shall, among other matters, cover the cost of
removal of any properties installed by the Grantee in the event
said Grantee shall default in the performance of its franchise
obligation.
In no event shall the amount of said bond be construed to limit
the liability of the Grantee for aamages.
Grantor, at its sole option, may waive this requirement, or permit
consolidation of the construction bond with the performance bond
and security fund specified, respectively in Section 6.2 and 6.3.
6.2 Performance Bond
(a)
In addition to the construction bond set forth above, the Grantee
shall, at least thirty (30) days prior to the cu,,~encement of
operation, file with the Grantor a performance bond in the amount
specified in the franchise agrc~.---nent in favor of the Grantor and
any other person who may be entitled to ~amages as a result of any
occurrence in the operation or termination of the Cable
Cu~,'manications System operated under the franchise agre~m~_nt, and
including the payments required to be made to the Grantor
hereunder.
(b)
Such bond as contemplated herein shall be in the form and with a
come, any approved by the Grantor and shall among other matters
cover the cost of removal of any properties installed by the
Grantee in the event said Grantee shall default in the performance
of its franchise obligation.
(c) In no event shall the amount of said bond be construed to the
liability of the Grantee for damages.
Ordinance No. 129
Page 26
6.3 Security Fund
(a)
Within thirty (30) days after the effective date of the franchise,
the Grantee shall deposit into a bank account, established by the
Grantor and mintain on deposit through the term of this
franchise, the sum specified in the franchise agr~-~lent, as
security for the faithful performance by it of all the provisions
of the franchise, and cc~pliance with all orders, permits and
directions of any agency of the Grantor having jurisdiction over
its act or defaults under this ordinance, and the payment by the
Grantee of any claims, liens and ~axes due the Grantor which arise
by reason of the construction, operation or maintenance of the
syst~.
The security fund my be assessed by the Grantor for purposes
including, but not limited to, the following:
(1) Failure of Grantee to pay Grantor s~ns due under the terms of
the franchise.
(2) Reimbursement of costs borne by the Grantor to correct
franchise violations not corrected by Grantee, after due
notice.
(3) Monetary remedies or penalties assessed against Grantee due
to default or violation of franchise requirements.
(b)
At Grantor's sole option, scmeportion of the security fund maybe
provided in the acceptable fom of an irrevocable letter of cre-
dit, in lieu of a cash deposit.
(c)
Within thirty (30) days after notice to it that any amount has
bc~n withdrawn by the Grantor frc~ the security fund pursuant to
Subsection (a) of this Section, the Grantee shall deposit a sum of
money sufficient to restore such security fund to the original
amount.
(d)
If the Grantee fails, after ten (10) days notice to pay to the
Grantor any franchise fee or ma_xes due and unpaid; or, fails to
pay to the Grantor within such ten (10) days, any damages, costs
or expenses which the Grantor shall be c~pelled to pay by re_~?on
of any act or default of the Grantee in connection with the
franchise; or fails, after thirty (30) days notice of such failure
by the Grantor to cc~ply with any provision of the franchise which
the Grantor r~a~onably determines can be remedied by an expen-
diture of the security fund, the Grantor may in~ediately withdraw
the amount thereof, with interest and any penalties, frcm the
security fund. Upon such withdrawal, the Grantor shall notify the
Grantee of the amount and date thereof.
Ordinance No. 129
Page 27
(e)
The security fund deposited pursuant to this Section shall beccme
the property of the Grantor in the event that the franchise is
revoked for cause by reason of the default of the Grantee in
accordance with the procedures of Section 4.10 above. The
Grantee, however, shall be entitled to the return of such security
fund, or portion thereof, as remains on deposit no later than
ninety (90) days after the expiration of the term of the
franchise, provided that there is then no outstanding default on
the part of the Grantee.
(f)
The rights reserved to the Grantor with respect to the security
fund are in addition to all other rights of the Grantor whether
reserved by this ordinance or authorized by law, and no action,
proccc~ing or exercise of a right with respect to such security
fund shall affect any other right the Grantor may have.
6.4 Indemnification
6.5
(a)
The Grantee shall by acceptance of the franchise granted
herein agrees to indemmify, defend and hold harmless the Grantor,
its officers, boards, c~ssions, agents, and ~loyees frcmany
and all claims, suits, judgments for damages in any way arising
out of or through or alleged to arise out of or through:
(1) The act of the Grantor in granting this franchise; and
(2) The acts or c~uissions of Grantee, its servants, ~loyees, or
agents, except for acts of negligence of the Grantor.
Both such ind~unifications sb~ll cover such claims arising in tort,
contracts, violations of statutes, ordinances or regulations or other-
wise.
(b)
In the event any such claims shall arise, the Grantor shall tender
the defense thereof to the Grantee, provided, however, that the
Grantor in its sole discretion my participate in the defense of
such claims at its expense.
Insurance
(a) The Grantcc shall maintain throughout the tern of the franchise
insurance in amounts at le_mmt as follows:
(1)
Worker's Cu~oensation Insurance. In such coverage as may be
required by the worker's cuupensation insurance and safety
laws of the State of California and amendments thereto.
Ordinance No. 129
Page 28
(b)
(c)
(d)
(2)
Comprehensive General Liability. Cc~prehensive autcmo
bile liability including, but not limited to, nonownership
and hired car coverage as well as owned vehicles wi th
coverage for bodily injury and property damage shall be min-
tained at the sum(s) specified in the franchise agr~-~a~nt.
The Grantee shall furnish the Grantor with certificates of
insurance.
Such insurance certificates provided for herein shall name the
Grantor, its officers, boards, cc~nissions, agents, and ~oloyees
as additional insureds and shall contain the following endor-
sement:
"It is hereby understood and agrc~ that this insurance policy may
not be cancelled by the surety or the intention not to renew be
stated by the surety until thirty (30) days after receipt by the
City by registered mail written notice of such intention to cancel
or not renew."
The minimum amounts set forth in the franchise agr~-~a~ent for such
insurance shall not be construed to limit the liability of the
Grantee to the Grantor under the franchise issued hereunder to the
amounts of such insurance.
SECTION 7.
DESIGN AND CONSTRUCTION pROVISIONS
7.1
System Design. The Cable Cu~,LLunications Syst~n shall be construed in
accordance with the design requirements contained in the franchise
agreement.
7.2
Geographical Coveraqe. The Grantee shall design and construct the
cable syst~n in such a manner as to have the eventual capability to
pass by every single-family dwelling unit, multiple-family dwelling
until, school and public agency within the area of the franchise.
Service shall be provided to subscribers in accordance with the schedu-
les and line extension policies specified in the franchise agrc---~ent.
Cable system construction and provision of service shall be non-
discriminatory, and Grantee shall not delay or defer service to any
section of the franchise area on the grounds of econc~ic preference.
7.3 Cahlecastinq Facilities. The Grantee shall provide cablecasting faci-
lities in accordance with the requirenents of the franchise agrc~.---~nt.
7.4
System Construction Schedule
(a) The Grantee shall cu,~ly with the requirenents of the system
construction schedule contained in the franchise agrc~.---~nt.
7.5
7.6
7.7
7.8
Ordinance No. 129
Page 29
(b)
The Grantee shall provide a detailed construction plan indicating
progress schedule, area construction maps, test plan, and pro-
jected dates for offering service. In addition, the Grantee shall
update this information on a monthly basis, showing specifically
whether schedules are being met and the reasons for any delay.
Remedies for Delay in Construction. The Grantor may at its sole
option, apply any or all of the following remedies in connection with
delays in system construction:
(a) Reduction in the duration of the franchise on a month-for-month
basis for each month of delay exceeding six (6) months.
(b)
Forfeiture of construction bonds and/or assessment of menefary
damages up to the maximum limit specified in the franchise
agreement, levied against the security fund for delays excc~ing
one (1) year.
(c)
Termination of the franchise within one (1) year after award of
the franchise if the Grantee has failed to initiate system
construction.
(d) Termination of the franchise for other delays excc~ing eighteen
( 18 ) months.
Any remedies applied shall be in accordmnce with the procedures con-
tained in Section 12 herein.
Provision of Service. After service has been established by activating
trunk cables for any area, the Grantee shall provide service to any
requesting subscriber within that area within thirty (30) days frcm the
date of request.
Undergroundin9 of Cable. The undergrounding of cable is encouraged.
In any event, cables shall be installed underground at Grantee's cost
where existing utilities are already underground. Previously installed
aerial cable shall be undergrounded and relocated in concert, and on a
cost-sbmring basis, with other utilities, when such other utilities my
convert frem aerial to underground construction.
New Development Underqroundinq. In cases of new construction or pro-
perty development where utilities are to be placed underground, upon
request by the Grantee, the developer or property owner shall give
Grantee r~.~omable notice of the particular date on which open
trenching will be available for Grantee's installation of conduit,
pedestals and/or vaults, and laterals to be provided at Grantee's
expense. Grantee shall also provide specifications as needed for
trenching.
7.9
Ordinance No. 129
Page 30
Cost of trenching and ~s~ments required to bring service to the deve-
lopment shall be borne by the developer or property owner; except that
if Grantee fails to install its conduit, pedestals and/or vaults, and
laterals within five (5) working days of the date the trenches are
available, as designated in the notice given by the developer or pro-
perty owner, then should the trenches be closed after the five (5) day
period, the cost of new trenching is to be borne by Grantee.
Underground at M~ltiple-Dwelling Units. In cases of multiple dwelling
units serviced by aerial utilities, Grantee shall make every effort to
minimize the number of individual aerial drop cables giving preference
to undergrounding of multiple drop cables between the pole and the
dwelling unit. The burden of proof shall be upon the Grantee to
demonstrate why undergrounding of drop cables is technically or econo-
mically unf~_~ible.
7.10 Street Occupancy
(a)
(b)
(c)
Grantee shall utilize existing poles, conduits and other facili-
ties 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 until a
permit or the written approval of the Grantor is obtained.
However, no location of any pole or wire holding structure of the
Grantee shall be a vested interest and such poles or structures
shall be removed or modified by the Grantee at its own expense
whenever the Grantor determines that the public convenience would
be enhanced thereby.
Grantee shall notify the Grantor at lea-~t ten (10) days prior to
the intention of the Grantee to cu,¥L~nce any construction in any
streets except in case of a bonafide ~mergency. The Grantor shall
cooperate with the Grantee in granting any permits required, pro-
viding such grant and subsequent construction by the Grantee shall
not unduly interfere with the use of such right-of-way and that
proposed construction shall be done in accordance with the per-
tinent provisions of the ordinances of the Grantor.
All transmission lines, equipment and structures shall be so
installed and located as to cause minimum interference with the
rights and reasonable convenience of property owners and at all
times, shall be kept and maintained in a safe, adequate and
subseantial condition, and in good order and repair. The Grantee
shall, at all times, employ ordinary care and shall install and
maintain in use cc~only accepted methods and devices for pre-
venting failures and accidents which are likely to cause damage,
injuries, or nuisances to the public. Suitehle barricades, flags,
(d)
(e)
(f)
(g)
(h)
(i)
Ordinance No. 129
Page 31
lights, flares or other devices shall be used at such times and
places as are reasonably required for the safety of all members of
the public. Any poles or other fixtures placed in any public
right-of-way by the Grantee shall be placed in such a manner as
not to interfere with the usual travel on such public right-of-
way.
Grantee shall, at its own expense, and in a manner approved by the
Grantor, restore to Grantor standards and specifications any
~amage or disturbance caused to the public right-of-way as a
result of its operations or construction on its behalf.
Whenever, in case of fire or other disaster, it becc~es necessary
in the judgment of the Grantor to remove any of the Grantee's
facilities, no cb~arge sba]l be made by the Grantee against the
Grantor for restoration and repair.
Grantee shall have the authority to trim trees on public property
at its own expense as may be necessary to protect its wires and
facilities, subject to the supervision and direction of the
Grantor. Tr~.,.~.ing of trees on private property shall require
written consent of the property owner.
The Grantee at its expense shall protect, support, temporarily
disconnect, relocate, or remove any property of Grantee when, in
the opinion of the Grantor the' san~ is required by reason of traf-
fic conditions, public safety, street vacation, freeway or street
grade, installation of sewers, drains, waterpipes, power line,
signal line, transportation facilities, tracks, or any other types
of structure or improvements by governmental agencies, or any
other structure or public improvement, including but not limited
to movement of buildings, redevelotmnent, or any general program
under which the Grantor shall undertake to cause any such proper-
ties to be located beneath the surface of the ground. Nothing
hereunder shall be deemed a taking of the property of Grantee and
Grantee shall be entitled to no surcharge by reason of anything
hereunder.
Upon failure of Grantee to c~'Lk%~nce, pursue or complete any work
required by law or by the provisions of this ordinance to be done
in any street, within the time prescribed and to the satisfaction
of the Grantor, the Grantor my, at its option, cause such work to
be done and the Grantee sb~] 1 pay to the Grantor the cost thereof
in the itemized amounts reported by the Grantor to Grantee within
thirty (30) days after receipt of such itemized report.
The Grantee shall make no paving cuts or curb cuts unless absolu-
tely necessary, and only after written permission has b~n given
by the Grantor.
0rdinanceNo. 129
Page 32
(j) Grantor reserves the right to require conduit for underground
cabling as determined bythe superintendent of streets.
7.11 Construction and Technical Standards
(a) Construction Standards.
(1)
C~t~liance with Safety Codes. All construction practices
shall be in accordance with all applicable sections of the
Occupational Safety and Health Act of 1970 and any amendments
thereto as well as all state and local codes where appli-
cable.
(2)
C~%~liance with Electrical Codes. All installation of
electronic equipment shall be of a permanent nature, durable
and installed in accordance with the provisions of the
National Electrical Cede as amended, and all applicable state
and local codes.
(3)
Antennas and Towers. Antenna supporting structures (towers)
shall be designed for the proper loading as specified in
Electronics Industry Association's R.S.-222-A specifications.
(4)
Ccmpliance with Aviation Requirements. Antennas supporting
structures (tower) shall be painted, lighted, erected and
maintained in accordance with all applicable rules and regu-
lations of the Federal Aviation Administration and all other
applicable state or local codes and regulations.
(5)
Construction Standards and Requirements. All of the
Grantee's plant and equipment, including but not limited to
the antenna site, head-end and distribution syst~n towers,
house connections, structures, poles, wire, cable, coaxial
cable, fixtures and appurtenances shall be installed,
located, erected, constructed, reconstructed, replaced,
removed, repaired, maintained and operated in accordance with
good engineering practices, performed by experienced main-
tenance and construction personnel so as not to endanger or
interfere with improvements the Grantor may deem proper to
make, or to interfere in any manner with the r~a~onable
rights of any property owner, or to unnecessarily hinder or
obstruct pedestrian or vehicular traffic.
(6)
Safety, Nuisance, Requir~nents. The Grantcc shall at all
time~ employ ordinary care and shall install and maintain in
use cc~am~nly accepted methods and devices preventing failures
and accidents which are likely to cause damage, injury or
nuisance to the public.
Ordinance No. 129
Page 33
(b)
Technical Standards. The Cable C~,,~Lonications System shall ~wcct
all technical and performance standards contained in the franchise
agr~--~_nt.
(c)
Test and Ccmpliance Procedure. The Grantee shall sukmit, within
sixty (60) days after the effective date of the franchise
agrc~---ment, a detailed test plan describing the methods and schedu-
les for testing the Cable Cc~unications System on an ongoing
basis to determine cca~liance with the provisions of the franchise
agr~n~-nt. The tests for basic subscriber television services
shall be performed at intervals no greater than every six (6)
months, on a minimum of twenty (20) subscriber line service con-
nections, located throughout the service area. At least eight (8)
of these locations shall be at the far end of the distribution
trunk cables. The tests may be witnessed by representatives of
the Grantor, and written' test reports shall be suk~itted to the
Grantor. If more than ten percent (10%) of the locations tested
fail to ~t the performance standards, the Grantee shall be
required to indicate what corrective measures have been taken, and
the entire test my be repeated for at least twenty (20) different
locations at the discretion of the Grantor. A second failure of
more than ten percent (10%) my result, at the Grantor's option,
in remedies, including but not limited to an order to reduce
subscriber rates due to degraded service.
(d)
Special Tests. At any time after cc~Lmencement of service to
subscribers the Grantor may reqUire additional tests, full or par-
tial repeat tests, different test procedures, or tests involving
a specific subscriber's terminal. Requests for such additional
tests will be made on the basis of ccr~laints received or other
evidence indicating an unresolved controversy or significant non-
ccm~pliance, and such tests shall be limited to the particular
matter in controversy. The Grantor sh~]l endeavor to so arrange
its requests for such special tests so as to minimize hardship or
inconvenience to Grantee or to the subscriber.
7.12 Areawide Interconnection.
(a)
Interconnection Required. The Grantee shall interconnect public
usage channels of the Cable C~L~nications System with any or all
other cable systems in adjacent areas, upon the directive of the
Grantor. Interconnection of systems shall permit interactive
transmission and reception of program material, and may be done by
direct cable connection, microwave link, satellite, or other
appropriate method.
Ordinance No. 129
Page 34
(b)
Interconnection Procedure. Upon receiving the directive of the
Grantor to interconnect, the Grantee sba!l inmediately initiate
negotiations with the other affected systsm or systems. The cost
shall be borne by both Grantees, in the proportion of number of
channels received to total number of channels transmitted and
received, under the assumption that benefits accrue primarily
through receipt of additional channels.
In the case of regional or state-wide interconnection, the same prin-
ciple shall apply.
(c)
Relief. The Grantee may be granted r~.~onable extensions of time
to interconnect or the Grantor may rescind its order to intercon-
nect upon petition by the Grantee to the Grantor. The Grantor my
grant said request if it finds that the Grantee ba.~ negotiated in
good faith and has failed' to obtain an approval frc~n the system or
syst~ns of the proposed interconnection, or that the cost of the
interconnection would cause an unreasonable or unacceptable
increase in subscriber rates.
(d)
Cooperation Required. The Grantee shall cooperate with any inter-
connection corporation, regional interconnection authority or
city, county, state, and federal regulatory agency which my be
hereafter established for the purpose of regulating, financing, or
otherwise providing for the interconnection of cable systems
beyond the boundaries of the franchise territory.
(e) Initial Technical Requirements to Assure Future Interconnection'
Capability.
(1)
All Cable C~m~nications Systems receiving franchises to
operate within the franchise territory shall use the same
frequency allocations for commonly provided television
signals so far as is technically and econcmically feasible.
(2)
Grantee shall provide local origination and access equi[muent
that is cu~atible throughout the area so that videocassettes
or videotapes can be shared by various syst~ns.
S~CTION 8.
SERVICE PROVISIONS
8.1
Services to be Provided. The Grantee shall provide, as a minimum, the
services listed in the franchise agre~p~nt. Services shall not be
reduced without prior approval of Grantor.
8.2
8.3
8.4
8.5
8.6
8.7
8.8
Ordinance No. 129
Page 35
Poway Required Basic Television Service (PRBTS). The "Poway Required
Basic Television Service" shall include the FCC required services, the
distant television broadcast signals, the imported nonbroadcast
signals, and the provision of all other cablecast open-channel signals.
This service shall be provided to all s~ubscribers at the established
PRBTS monthly subscription rates.
Basic Subscriber Radio Service (BSRS). The "Basic Subscriber Radio
Service" shall include the provision of all audio services designated
in the franchise agrc~-~aent, including broadcast FM radio, and cablecast
FM signals. This service shall be provided to all subscribers at the
established BSRS monthly subscription rates.
Institutional Service (IS). If specified in the franchise agr~-~a~nt,
the "Institutional Service" shall include the provision of transmission
and/or reception services to institutional users, on a leased channel
basis at established IS rates. Services may include the distribution
of video or nonvideo signals.
Additional Subscriber Services. "Additional Subscriber Services," not
included in the PRBTS and BSRS services specified above, may be pro-
vided, either within the basic subscription rates, or on a pr~ini~m~
basis, subject to applicable FCC regulations.
Local Origination Channel(s). The Grantee shall operate the cable-
casting studios on a high-c~a]ity, professional basis for the purpose
of providing cablecast progra~ning response to local needs and
interests. The emphasis for the Local Origination Channel(s) shall be
on providing progra~ning that is unavailable to viewers on broadcast
television channels.
Government A~cess Channel(s). The Grantee shall provide the number of
channels specified in the franchise agreement, including all necessary
interface equi~aent and cabling to permit operation, for the use of the
Grantor at no charge to the Grantor. The Grantee shall make every
effort to provide advice and technical expertise to aid in the utiliza-
tion of these channels.
Education Access Channel(s). The Grantee shall provide the number of
channels specified in the franchise agre~nent including all necessary
interface equipment and cabling to permit operation, for the use of the
local educational institutions at no charge. The Grantee shall make
every effort to provide advice and technical expertise to aid in the
utilization of these channels.
Ordinance No. 129
Page 36
8.9
Public Access Channel(s). The Grantee shall provide the number of
channels specified in the franchise agr~-~J~_n, t including all necessary
interface equitanent and cabling to permit operation, to be available to
the public at no charge. The Public Access Channel (s) shall be managed
and operated by the access managem~ent entity, as described in Section
5. The Grantee shall make available for progranwaers of the public
access channel the facilities and support listed in the franchise
agrc~--aent.
8.10
Public Access(s) (Closed-Circuit). If the Cable Culu~nications System
includes a closed-circuit institutional network, the Grantee shall make
at least three (3) two-way channels available for local government
programs, educational programs, and public service programs use at no
charge.
The Public Access two-way channels shall be managed and operated by the
access management entity.
8.11
Leased A~cess Channel. Grantee shall make available on a non-
discriminatory basis, the number of channels specified in the franchise
agrc~,---~nt. All leased channel service revenues sba1 1 be included in
gross revenues subject to the franchise fee.
8.12 Universal Connection. The Grantor may require that all dwelling units.
within the franchise area, where it is econcmically f~_?ible, to be
connected physically to the cable system by the Grantee by m~ans of
.drop cables terminating at each d~elling unit, whether or not the
d~lling unit's occupants desire to subscribe to cable service. The
cost and charges shall be determined by the Grantor at the time such
connection is required. Grantee sb~ll be entitled to recover the
incremental cost of providing a universal connection.
S~CTION 9.
OPERATION AND MA1/FfENANCE
9.1
Open Books and Records. The Grantee shall manage all of its operations
in accordance with a policy of totally open books and records. The
Grantor shall have the right to inspect at any time during normal busi-
ness hours, all books, records, maps, plans, financial statements, ser-
vice ccmplaint logs, performance test results and other like materials
of the Grantee which relate to the operation of the franchise and are
maintained at the office within the franchise territory.
If any of such books or records are not kept in the local office, or
upon reasonable request made available to the Grantor, and if the
Grantor shall determine that an examination of such. records is
necessary or appropriate to the performance of any of Grantor's duties,
then all r~a-~onable travel and maintenance expense necessarily incurred
in making such examination shall be paid by Grantee.
Ordinance No. 129
Page 37
9.2 Records Required.
(a) In any event the Grantee shall at all times maintain:
(1)
A record of all cu,~laints received and interruptions or
degradation of service experienced for the preceding three
(3) y~rs.
(2)
A full and c~-EJlete set of plans, records and "as-builts"
maps showing the exact location of all Cable C~,,Lunications
System equiE~_nt installed or in use in the franchise terri-
tory, exclusive of subscriber service drops.
9.3 Maintenance and Complaints
(a)
(b)
(c)
The Grantee shall maintain an office in the franchise territory
which shall be open during all usual business hours, have a
publicly listed toll-free telephone, and be so operated to receive
subscriber c<~plaints and requests for repairs or adjustments on a
twenty-four (24) hour a day basis. A written log shall be main-
tained listing all ccmplaints and their disposition.
The Grantee shall render efficient service, make repairs prc~tly,
and interrupt service only for good cause and for the shortest
time possible. Such interruptions, insofar as possible, shall be
preceded by notice and shall occur during period of minimum use of
the system. A written log shall be maintained for all service
interruptions.
The Grantee shall maintain a repair force of technicians capable
of responding to subscriber complaints or requests for service
within twenty-four (24) hours after receipt of the complaint or
request. No charge shall be made to the subscriber for this ser-
vice.
(d)
The Grantee shal 1 furnish each subscriber at the time service is
installed, written instructions that clearly set forth procedures,
furnish information concerning the procedures for making inquiries
or complaints, including the name, address and local telephone
number of the ~EJloyee or ~Y~loyees or agent to whom such
inquiries or complaints are to be addressed, and furnish infor-
mation concerning the Grantor's office responsible for administra-
tion of the franchise with the address and telephone number of the
office.
9.4 Rights of Individnals
(a)
Grantee shall not deny service, deny access, or otherwise discri-
minate against subscribers, channel users, or general citizens on
the basis of race, color, religion, national origin, age or sex.
(b)
(c)
Ordinance No. 129
Page 38
(d)
(e)
Grantee shall ccmply at all times with all other applicable
federal, state and local laws and regulations, and all executive
and administrative orders relating to nondiscrimination which are
hereby incorporated and made part of this ordinance by reference.
Grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC, state and local regulations, and as
amended frcm time to time.
No signals of a Class IV cable ccxm%~nications channel shall be
transmitted frc~ a subscriber terminal for purposes of monitoring
individual viewing patterns or practices without the express writ-
ten permission of the subscriber. The request for such permission
shall be contained in a separate document with a prcminent state-
ment that the subscriber document is authorizing the permission in
full knowledge of its provisions. Such written permission shall
be for a limited period of time not to exceed one (1) year, which
shall be renewable at the option of the subscriber. No penalty
shall be invoked for a subscriber's failure to provide or renew
such an authorization. The authorization shall be revokable at
any time by the subscriber without penalty of any kind whatsoever.
Such authorization is required for each type or classification of
Class IV cable television activity planned; provided however, that
the Grantee sb~%ll be entitled to conduct syste~ide or indivi-
dually addressed "sweeps" for the purpose of verifying system
integrity, controlling return-path transmission, ensuring
technical standards compliance, securing the cable system,
verifying basic service custcmers or billing for pay services.
The Grantee, or any of its agents or ~,~loyees, shall not, without
the specific written authorization of the subscriber involved,
sell, or otherwise make available to any party:
(1) Lists of names and addresses of such subscribers, or
(2) Any list which identifies the viewing habits of individual
subscribers.
Fairness of Accessibility. The entire system of the Grantee shall
be operated in a manner consistent with the principle of fairness
and equal accessibility of its facilities, equi~w~_nt, channels,
studios and other services to all citizens, businesses, public
agencies and other entities having a legitimate use for the net-
work, and no one shall be arbitrarily excluded frem its use.
Allocation of use of said facilities shall be made according to
the rules or decisions of the Grantee and any regulatory agencies
affecting the same.
9.5 Continuity of Service Mandatory
9.6
Ordinance No. 129
Page 39
9.7
(a)
It shall be the right of all subscribers to continue receiving
service 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 Grantor
gives notice of intent to terminate or fails to renew this
franchise, the Grantee shall act so as to ensure that all subscri-
bers receive continuous, uninterrupted service regardless of the
circ~stances.
In the event of a change of franchiscc, or in the event a new
operator acquires the system, the Grantee shall cooperate with the
Grantor, new franchisee or operator in maintaining continuity of
service to all subscribers. During such period, Grantee shall be
entitled to the revenues for any period during which it operates
the system, and shall be entitled to reasonable costs for its ser-
vices when it no longer operates the system.
(b)
In the event Grantee fails to operate the system for seven (7)
consecutive days without prior approval of the Grantor or without
just cause, the Grantor may, at its option, operate the system or
designate an operator until such time as Grantee restores service
under conditions acceptable to the Grantor or a permanent operator
is selected. If the Grantor is required to fulfill this obliga-
tion for the Grantee, the Grantee shall reimburse the Grantor for
all reasonable costs or damages in excess of revenues frcm the
system received by the Grantor that are the result of the
Grantee's failure to perform.
Grantee Rules and Requlations. The Grantee shall have the authority to
prcmulgate such rules, regulations, terms and conditions governing the
conduct of its business as shall be reasonably necessary to enable the
Grantee to exercise its rights and perform its obligations under this
franchise, and to assure an uninterrupted service to each and all of
its custouers. Provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof or
applicable state and federal laws, rules and regulations.
Tenant Rights. Grantee shall be required to provide service to tenants
in individual units of a rmlltiple housing facility with all services
offered to other dwelling units within the franchise area, so long as
the owner of the facility consents in writing, if requested by Grantee,
to the following:
(a) To Grantee's providing of the service to units of the facility;
(b) To reasonable conditions and times for installation, maintenance,
and inspection of the system on the facility pr~uises;
(c)
(d)
SECTION 10.
10.1
10.2
Ordinance No. 129
Page 40
To reasonable conditions promulgated by Grantee to protect
Grantee's equipment and to encourage widespread use of the syst~n;
and
To not discriminate in rental charges, or otherwise, between
tenants who receive cable service and those who do not.
Rights to Purchase the Syst~u. The Grantor my in any lawful manner
and upon the payment of a fair valuation lawfully ascertain, purchase,
condemn, acquire, take over and hold the property and plant of the
Grantee in whole or in part. If such purchase or taking over be upon
revocation of the franchise or at the expiration of the term of the
franchise such valuation shall only include the current fair mrket
value of physical assets of cable television system, and not include
any s~u for the value of the franchise, the present or future subscri-
bers, or the grant under which such plant and property is being
operated.
Right of Inspection of Records. The Grantee shall provide such infor-
mation which shall show the following in such fora as may be required
by the Grantor.
' (a)
The true and entire cost of construction equipment, of mintenance
and of the administration and operation thereof; the amount of
stock issued, if any; the amount of cash paid in, the number of
par value of shares, the amount and character of indebtedness, if
any; the rate of Waxes, the dividends declared; the character and
amount of all fixed charges; the allowance, if any, for interest,
for wear and t~r or depreciation; all amounts and sources of
inccme.
(b)
The amount collected annually frcm the Grantor tr~mury and
the character and extent of the service rendered therefor to the
Grantor.
(c) The amount collected annually frem other users of service and the -
character and extent of the service rendered therefor to them.
(d)
The Grantor shall have the right to inspect all books, records,
maps, plans, inccme tax returns, financial statements, and other
like mterials of the Grantee during normm] business hours. The
Grantor may inspect all such records required in this section at
the offices of the Grantee and the Grantee shall make the herebe-
fore mentioned records available to the Grantor. If the Grantor
needs copies of such information in order to ccmplete its examina-
tion of the Grantee's operation, the Grantee may make available
Ordinance No. 129
Page 41
10.3
10.4
10.5
such copies of the books and reports that the Grantor is
requesting in order to c~lete the Grantor's examination of the
Grantee's operation. I~nediately upon c~letion of such review,
the Grantor shall return all such materials to the Grantee.
Right of Inspection of Construction. The Grantor shall have the right
to inspect all construction or installation work performed subject to
the provisions of the franchise and to make such tests as it shall find
necessary to ensure compliance with the terms of this franchise and
other pertinent provisions of law.
Right of Intervention. The Grantor shall have the right of interven-
tion in any suit or proceeding to which the Grant~ is party, and to
which the outcone might materially affect cable service in the City of
Poway, and the Grantee shall not oppose such intervention by the
Grantor.
Right to Require R~noval of Property. At the expiration of the term
for which the franchise is granted, or upon its revocation or expira-
tion, as provided for herein, the Grantor shall have the right to
require the Grantee to r~move, at its own expense, all portions of the
Cable C~,,,mlnications System frem all streets and public ways within the
franchise area.
S~CTION 11.
11.1
Right of Grantee. In any material dispute, the Grantee may pursue such
other remedies as are available, including the bringing of action in
any court of conpetent jurisdiction.
S~CTION 12. FRANCHISE VIOLATIONS
12.1
Remedies for Franchise Violations. If the Grantee fails to performany
obligation under the franchise, or fails to do so in a timely manner,
the Grantor may at its option, and in its sole discretion;
(a)
Assess against the Grantee mone~mry dmmages up to the limits
established in the franchise agrc~---ment for material franchise
violations, which the Grantee hereby agrees to pay, said
assessment to be levied against the security fund, hereinabove
provided, and collected by Grantor inmediately upon said
assessment. Such assessment shall not constitute a waiver by the
Grantor of any other right or remedy it may have under the
franchise or under applicable law, including without limitation,
its right to recover frem Grantee such damages, losses, costs and
expenses, including actual attorney fees, as may have been suf-
fered or incurred by Grantor by r~mmon of or arising out of such
breach of the franchise. This provision for assessment of damages
12.2
Ordinance No. 129
Page 42
is intended bytheparties to be separate and apart frcm Grantor's
right to enforce the provisions of the construction end perfor-
mance bonds provided for in Section 6, and is intended to provide
cca~ensation to Grantor for actual damages.
(b)
For violations considered by Grantor to have degraded the quality
of service, order and direct Grantee to issue rebates or reduce
its rates and/or charges to subscribers, in an amount solely
determined by Grantor to provide mone~ry relief substantially
equal to the reduced quality of service resulting from Grantee's
failure to perform.
(c)
Require Grantee to cure all defaults and breaches of its obliga-
tions hereunder before Grantee is entitled to increase any rate or
charge to subscribers hereunder.
(d)
Terminate or shorten the franchise period, for any of the causes
stated in Section 4, above or otherwise contained within this
ordinance or the franchise agre~uent.
(e)
No remedy shall be imposed by Grantor against Grantee for any
violation of this franchise without Grantee being afforded due
process of law, as provided for in 12.2 below.
Grantor may, in its sole judgment and discretion, impose any of
all of the above enumeratedmeasures against Grantee, which shall
be in addition to anyandall other legal or equitable remedies it
has under this franchise or under any applicable law.
Procedures for Remedyin~ Franchise Violations. In the event that the
Grantor determines that the Grantee has violated any provision of the
franchise, any rule or regulation promulgated purs,~nt hereto or any
applicable federal, state, or local law, the Grantor maymake a written
d~and on the Grantee that it remedy such violation. If the violation,
breach, failure, refusal, or neglect is not r~e~ied to the satisfac-
tion of the Grantor within thirty (30) days following such demand, the
Grantor shall determine whether or not such violation, breach, failure,
refusal, or neglect by the Grantee was excusable or inexcusable, in
accordance with the following procedure:
(a) A public hearing shall be held and the Grantee shall be provided
with an opportunity to be beard upon thirty (30) days written
notice to the Grantee of the time and the place of the bearing
provided and the allegations of franchise violations.
(b) If, after notice is given and, at the Grantcc's option, a full
public proceeding is held, the Grantor determines that such viola-
tion, breach, failure, refusal, or neglect by the Grantee was
excusable as provided in Section 12.3 below, the Grantor shall
Ordinance No. 129
Page 43
12.3
12.4
direct the Grantee to correct or remedy the same within such addi-
tional time, in such manner and upon such terms and conditions as
the Grantor may direct.
(c)
If, after notice is given and, at the Grantee's option, a full
public proceeding is held, the Grantor determines that such viola-
tion, breach, failure, refusal or neglect was inexcusable, then
the Grantor may assess a penalty or remedy in accordance with
Section 12.1 above.
Force Majeure: Grantee's Inability to Perform. In the event Grantee's
performance of any of the terms, conditions, obligations, or require-
ments of the franchise is prevented or impaired due to any cause beyond
its reasonable control or not reasonably foresee~_hle, such inability to
perform shall be deemed to be excused and no penalties or sanctions
shall be imposed as a result thereof, provided Grantee has notified
Grantor in writing within thirty (30) days of its discovery of the
occurrence of such an event. Such causes beyond Grantee's reasoDahle
control or not reasonably foreseeable sb~ll include, but shall not be
limited to, Acts of God and civil emergencies.
Findings and Conclusions. Any conclusion by Grantor, pursn~nt to this
section shall bemade in writing and supported bywritten findings sup-
ported byevidencewithin the record of said proc~ings.
SECTION 13.
13.1
Annual Re~orts. At Grantor's sole option, within ninety (90) days
after the close of Grantee's fiscal y~ar, the Grantee shall s,,frait a
written annual report, in a form approved by the Grantor, including,
but not limited to, the following information:
(a)
A s~,,~ry of the previous year's (or, in the case of the initial
report year, the initial y~ar's) activities in develo~ment of the
cable system, including, but not limited to, services begun or
discontinued during the reporting year, and the number of subscri-
bers for each class of service;
(b)
A financial statement, or a Securities Exchange Cu~,,Hssion 10K
report audited by, an independent certified public accountant, or
certified by an officer of the Grantee, including a statement of
inccme, revenues, operating expenses, value of plant, annual capi-
tal expenditures, depreciation with an attached depreciation sche-
dule, interest paid, ~axes paid, balance sheets, and a stat~]~e~nt
of sources and application of funds;
(c) A current statement of costs of construction by cc~ponent cate-
gories;
13.2
13.3
Ordinance No. 129
Page 44
(d) A projected income statement and statement of projected construc-
tion for the next two (2) years;
(e) A list of Grantee's officers, members of its board of directors,
and other principals of Grantcc;
(f)
A list of stockholders or other equity investors holding five per-
cent (5%) or more of the voting interest in the Grantee and its
parent, subsidiary and affiliated corporations and other entities,
if any;
(g)
To the extent that money, other than profits, is paid to a parent,
subsidiary, or other person affiliated with the Grantee, the
amounts of such payments and the basis for cu,~utation of such
amounts (e.g., the basis for ccmputing any manag~flent fees or
share of "hc~e office" overhead).
(h)
The aforementioned reports and information shall be made available
to the Grantor at the offices of the Grantee as requested by the
Grantor. Such information shall be available for review by the
grantor during normal business hours. However, if additional
information and research may be nc~ed, the grantor my request
and the Grantee shall provide copies of any of the aforementioned
information for use in its review of the Grantee's c~pliance with
its franchise and shall return it to the Grantee at the earliest
possible m~ent after the review-has ~n ccmpleted.
Plant Survey Re~ort. At Grantor's sole option, Grantee shall suhnit to
the Grantor an annual plant survey report which shall be a ccmplete
survey of the Grantee's plant and a full report thereon. Said report
shall include, but not be limited to, a description and "as-built" maps
of the portions of the franchisee area that have been cabled and have
all services available, an appropriate engineering evaluation including
suitable electronic measurements conducted in conformity with such
requirements, including supervision, as the Grantor may prescribe.
Said report shall be in sufficient detail to e, able the Grantor to
ascertain that the service requirements and technical s~an~rds of the
FCC and/or the franchise are achieved and mintained. At Grantor's
request, but no more often than once per three (3) years, the Grantee
and the Grantor shall agree upon the appointment of a qualified inde-
pendent engineer to evaluate and verify the technical performance of
the cable system. The cost of such evaluation shall be borne equally
by the Grantee and the Grantor.
Copies of Federal and State Reports. The Grantee shall suhnit to the
Grantor copies of all initial pleadings, applications, reports, sub-
mitted by the Grantee to any federal, state and regulatory agencies and
other government bodies materially relating to its cable television
13.4
13.5
13.6
13.7
13.8
Ordinance No. 129
Page 45
operations within the franchise area. Grantee shall su~uit such docu-
ments to the Grantor simultaneously with their submission to such
courts, agencies and bodies.
Public Reports. A copy of each of Grantee's annual and other periodic
public reports and those of its parent, subsidiary and affiliated cor-
porations and other entities, as the Grantor requests and is reasonably
appropriate, shall be submitted to the Grantor within five (5) days of
its iss~ance.
Cc~plaint File and Reports. An accurate and cc~prehensive file shall
be kept by the Grantee of any and all cu~olaints regarding the cable
system. A procedure shall be established by the Grantee by the time of
installation of the cable system to remedy cc~plaints quickly and
reasonably to the satisfaction of the Grantor. C~,~lete records of
Grantee's actions in response to all complaints shall be kept. These
files and records shall r~main open to the public during normal busi-
ness hours:
(a)
A st,,,,~y of cc~plaints, identifying the number and nature of
c~,~laints and their disposition, in a form approved by the
Grantor, shall be cu,~leted for each month and sutx~itted to the
Grantor by the tenth day of the succeeding month.
(b)
The results of an annual opinion survey report which identifies
satisfaction of dissatisfaction among subscribers with cable ~
munications services offered by the Grantee shall be submitted to
the Grantor no later than two (2) months after the end of
Grantee's fiscal year. The surveys required to make said report
shall be in a format approved by the Grantor and may be in a form
that can be transmitted to subscribers with one (1) or more bills
for service. The Grantee my utilize focus groups, telephone,
personal surveys, or other valid randem surveys to achieve the
intent of this section, if so approved by the Grantor.
Miscellaneous Reports. Grantee shall su _P~it to the Grantor such other
information or reports in such forms and at such times as the Grantor
may reasonably request or require.
Inccme Tax Returns. If not incorporated with parent c~any returns,
the Grantee sb~]l submit to the Grantor copies of all inccme ~
returns and reports which are filed with the local, state or federal
governments pertaining to its cable system in the franchise area within
five (5) days of the date on which such reports are filed.
Inspection of Facilities. The Grantee shall allow the Grantor to make
inspections of any of the Grantee's facilities and equipment at any
time upon reasonable notice, or, in case of ~ergency, upon d~mand
without prior notice, to allow Grantee to verify the accuracy of any
s,,P~i. ' tted report.
Ordinance No. 129
Page 46
13.9 Business Office and Files. The Grantee shall maintain an office within
the franchise area. The Grantee shall keep complete and accurate books
and records. The Grantor shall have the right to inspect at any time
during normal business hours all books, records, maps, plans, income
tax returns, financial statements, service cucplaint logs, performance
test results and other like materials of the Grantee which relate to
the operation of the cable syst~. ~cess to the aforementioned
records shall not be denied by the Grantee on the basis that said
records contain confidential, privileged, or proprietary information.
13.10 Public Inspection. All reports subject to public disclosure,
shall be available for public inspection at a designated Grantor
office during normal business hours.
13.11 Failure to Report. The refusal, failure, or neglect of the
Grantee to file any of the reports required, or such other reports
as the Grantor reasonably may request, shall be deemed a material
breach of franchise, and shall subject the Grantee to all reme-
dies, legal or equitable, which are available to the Grantor under
the franchise or otherwise.
13.12 False Statements. Any materially false or misleading statement
or representation made knowingly by the Grantee in any report
required under the franchise, shall subject the Grantee to all
remedies, legal or equitable, which are available to the Grantor
under the franchise or otherwise.
13.13'Cost of Reports All reports and records required under this or
any other section shall be furnished at the sole expense of the
Grantee.
S~CTION 14. MISC~LrANq~US PROVISIONS
14.1 Cu~liance with State and Federal Laws. Notwithstanding any other pro-
visions of the franchise to the contrary, the Grantee shall at all
times cc~ply with all laws and regulations of the state and federal
government or any administrative agencies thereof. Provided, however,
if any such state or federal law or regulation shall require the
Grantee to perform any service, or shall permit the Grantee to perform
any service, or shall prohibit the Grantee frc~ performing any service,
in conflict with the terms of the franchise or any law or regulation of
the Grantor, then as soon as possible following knowledge thereof, the
Grantee shall notify the Grantor of the point of conflict believed to
exist between such regulation or law and the laws or regulations of the
Grantor or the franchise.
14.2
14.3
14.4
14.5
Ordinance No. 129
Page 47
Separability Nonmaterial Provisions. If any provision of this ordi-
nance or any related agreements is held by any court or by any federal,
state, or local agency of cu~etent jurisdiction to be invalid as
conflicting with any federal, state, or local law, rule or regulation
now or hereafter in effect, or is held by such court or agency to be
modified in any way in order to conform to the requirements of any such
law, rule or regulation, and if said provision is considered non-
material by the Grantor, said provision shall be considered a separate,
distinct and independent part of this ordinance, and such holding shall
not affect the validity and enforc~bility of all other provisions
hereof. In the event that such law, rule or regulation is subsequently
repealed, rescinded, amended or otherwise changed, so that the provi-
sion hereof or thereof which has been held invalid or modified is no
longer in conflict with the law, rules and regulations then in effect,
said provision shall thereupon return to full force and effect and
shall thereafter be binding on the parties hereto, provided that the
Grantor shall give the Grantee thirty (30) days written notice of such
change before requiring ccmpliance with said provision.
Separability-Material Provisions. If any material section of this
ordinance, as determined by the Grantor, is held to be invalid or
prc~--mpted by federal, state or county regulations or laws, the Grantor
shall negotiate with Grantee appropriate modifications to the franchise
to provide reasonable relief frc~a such invalidity or prc~aption,
including the payment of liquidated damages. If the parties are unable
to reach agreement on such modifications, then the dispute shall be
suP~litted to a mutually agreeable arbitrator, in accordance with state
law, who shall determine what modifications and/or liquidated damages
are appropriate. The arbitrator's decision shall be binding on the
parties, provided, that no decision of the arbitrator shall require the
Grantor or Grantee to be in violation of any federal or state law or
regulation. If an arbitrator cannot be agrc~ upon, then each party
sb~ll select an arbitrator of his choice and each selected arbitrator
shall agrcc upon a third. Said panel of three arbitrators shall render
a majority decision herein.
Notices. Grantee shall maintain within the franchise area or the
County of San Diego throughout the term of the franchise, an address
for service of notices by mail. Grantee shall also maintain within the
franchise area, a local office telephone number or toll free number for
the conduct of matters related to this franchise during normal business
hours.
Captions. The captions to sections throughout this ordinance are
intended solely to facilitate reading and reference. Such captions
shall not affect the m~aning or interpretation of this ordinance.
Ordinance No. 129
Page 48
14.6
14.7
14.8
No Recourse A~ainst the Grantor. The Grantee shall have no recourse
whatsoever against the Grantor or its officials, boards, cu,,,,~ssions,
agents, or e~ployees for any loss, costs, expense, or damage arising
out of any provision or r.e~uir~nent of the franchise or because of
the enforcement of the franchise except any acts of negligence.
Nonenforcement b~; the Grantor. The Grantee shall not be relieved of
its obligation to ccmply with any of the provisions of this ordinance
by reason of any failure of the Grantor to enforce prompt ccmpliance.
Acknowledgments. Except as expressly provided in this franchise, the
Grantee herein shall have no recourse whatsoever against the Grantor
for any loss, cost, or expense, for damage arising out of the provi-
sions or requirenents of this franchise or because of the enforcement
thereof by the Grantor, nor for the failure of the Grantor to have the
authority to grant all or any part of this franchise excepting any acts
of negligence. The Grantee expressly acknowledges that upon accepting
this franchise, it does so voluntarily and in reliance upon its own
investigation and understanding of the power and authority of the
Grantor to grant this franchise. The Grantee by acceptance of this
franchise acknowledges that it has not ~n induced to enter into this
franchise by any understanding or prcmise, or other statement, whether
verbal or written, by or on behalf of the Grantor or by any other third
person concerning any term or condition of this franchise not expressed
herein. The Grantee acknowledges that it was not coerced or
unlawfully induced into accepting this franchise and that any offers
which it made for services or benefits under this franchise were made
as a matter of its own volition without any coercion from the Grantor
or any agent thereof. The Grantee further acknowledges by acceptance
of this franchise that it has carefully read the terms and conditions
hereof and is willing to and does accept all the risks of the m~aning
of such terms and conditions and agrees that, in the event of any ambi-
guity therein or in the event of any other dispute over the meaning
thereof, the same shall be construed strictly against the Grantee
and in favor of the Grantor.
S~CTION 15.
FRANCHISE APPLICATIONS
15.1
Franchise Applications. Applicants for a franchise shall sukmit to the
Grantor written applications utilizing the standardized format provided
by the Grantor, at the time and place designated by the Grantor for
accepting applications, and including the designated application fee.
Ordinance No. 129
Page 49
S~CTION 16.
Sections 21.1601-21.1668 of the
Ordinances are hereby rescinded.
San Diego County Code of Regulatory
S~CTION 17.
This ordinance shall take effect and be in force thirty (30) days after the
date of its passage; and the City Clerk of the City of Poway is hereby
authorized to use s%a,,,ery publication procedures pursuant to Government Code
Section 36933 utilizing the Poway News-Chieftain, a newspaper of general
circulation published in the City of Poway.
Introduced and first read at a regular meeting of the City Council of the
City of Poway held the 29th day Of May, 1984, and thereafter P~SED AND
ADOPTED at a regular m~eting of said City Council held the 12 day of
June , 1984, by the following roll call vote:
AYES: COUNC~: EMERY, KRUSE, ORAVEC, SHEPARDSON, TARZY
NOES: COUNCII~I~MBERS: NONE
ABSENT: COUNCI~RRS: NONE
AT~EST:
Marjorie ~. Wahlsten, City Clerk