HomeMy WebLinkAboutORD-23-95 Amend Ch. 13.80 Cable Television System FranchisesORDINANCE NO. 23-
95 AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF ORANGE AMENDING
CHAPTER 13.80 ET SEQ., OF THE ORANGE
MUNICIPAL CODE RELATING TO CABLE
TELEVISION SYSTEM
FRANCHISES.NOW, THEREFORE, The City Council of the City of Orange does
ordain as
follows:SECTION
I:Chapter 13.80 et seq., of the Orange Municipal Code shall be repealed
and replaced in its entirety with the
following:Chapter 13.
80 GENERAL
PROVISIONS 13.80.
010 13.80.
020 13.80.
030 13.80.
040 13.80.
050
Definitions.Federal
Regulation.Effect of Preemption or
Deregulation.Separability and
Severability.Publication
Costs.13.80.010 Defmitions. For the purposes of this article, the
following terms, phrases, words, abbreviations and their derivations shall have the
meaning given in this
section:A. BASIC CABLE SERVICE shall have the meaning provided
in federal and state law and Federal Communications Commission
regulations.B. SUBSCRIBER means any person or entity receiving any
service from grantee covered by this
ordinance.C. CABLE ACT means the Cable Communications Policy Act of
1984,as amended by the Cable Television Consumer Protection and Competition Act
of 1992, and as they may be subsequently
amended.D. CABLE SYSTEM means a system which includes, but is not
limited to, antennas, cables, wires, lines, towers, wireless links, cablecasting studios,
or any other conductors, converters, equipment or facilities, which are
designed,constructed or wired for the purpose of producing, receiving, amplifying,
processing or distributing by wire audio and/or visual and/or data signals to and
from persons, subscribers and locations in the City.
E. EXPANDED CATV SERVICE means any communications service
in addition to basic cable service provided by the grantee for an additional fee,
including, but not by way of limitation, pay TV, burglar alarm service, advertising,
data or other electronic transmission services, facsimile reproduction services,
meter reading services and home shopping services.
F. FCC means the Federal Communications Commission.
G. FRANCHISE means the non-exclusive authorization granted by
this ordinance to occupy or use the streets within the City for the
construction,operation and maintenance of a cable system within all of the geographic limits
of the
City.H. FRANCHISE AGREEMENT means a signed agreement
between City and grantee accepting and agreeing to all of the provisions of the
franchise and this ordinance, including referenced specifications, franchise applications
and other related
material.I. FRANCHISE AREA means the tenitory within the City in
which grantee shall be authorized to construct, maintain and operate its cable system
and shall include any additions
thereto.J. GRANTEE means the person, firm or corporation to which
a franchise is granted by the City Council under this ordinance, and their
lawful successor, transferee or
assignee.K. GROSS ANNUAL REVENUE means all revenue, as determined
in accordance with generally accepted accounting principles, including the
fair market value of any non-monetary compensation which is received,
directly or indirectly, by grantee from or in connection with the distribution of any
service on the cable system or the provision of any service related activity in
connection with the cable system, whether or not authorized by this franchise. It shall
also include any revenue received through any means which :is intended to have the
effect of avoiding the payment of compensation which would otherwise be paid to
the City for tlle franchise granted by this Agreement. It shall also include
any debt recovered and advertising revenue which is received directly or
indirectly by grantee, in connection with the cable system. Gross annual revenue
shall not include the revenue of any person to the extent the revenue is also included
in the gross annual revenue of grantee or taxes on subscribers which City is
required
to collect.L. PROPERTY OF GRANTEE means all property owned,
installed or used by a grantee in the conducting of its cable system business in the
City under the authority of a franchise granted pursuant to
this article.Ord.23-
95
M. STREET or PUBLIC STREET means a street, road, highway,
freeway, lane, path, alley, court, sidewalk, parkway, or drive which is owned by a
public entity in fee or as to which a public entity has an easement for street
purposes, and to which the City has a right to grant the use thereof for a franchise.
13.80.020 Federal Regulation. Any lawful modifications resulting from
the rules and regulations of the FCC are incorporated into this ordinance and any
franchise as of the date such modifications become obligatory under FCC
regulations; or in the event no obligatory date is established, within one year of
FCC adoption or at the time of franchise renewal, whichever occurs first.
13.80.030 Effect of Preemption or Deregulation. In the event the FCC
or the Public Utilities Commission of the State of California, or any other federal
or state body or agency, shall hereafter exercise any paramount jurisdiction over
the subject matter of any franchise, then to the extent such jurisdiction shall
preempt the exercise of the City's jurisdiction, the jurisdiction of the City shall to
the extent so preempted, cease and no longer exist; provided, however, that any
deregulation by any federal or state body or agency or the preemption or
preclusion of the exercise by the City of any of its police power shall not diminish,
impair, alter or affect any contractual obligation of the grantee under any
franchise. Any and all minimum standards governing the operation of grantee and
any and all maximum rates, ratios and charges specified herein or in any franchise
existing now and at any time in the future are declared by the City and by any
grantee accepting any franchise, to be contractual in nature and to be for the
benefit of the City. Grantee agrees to accept and conform to such standards, rates,
ratios and charges which are declared by the City and by any grantee to be
material and essential consideration for the granting of any franchise, the absence
of which, in whole or in part, would cause tht: City not to have granted such
franchise.
13.80.040 Seoarability and Severabiliv.:. If any material section of this
article or the franchise agreement, is held to be invalid or preempted by federal or
state regulations or laws, the City shall have the option to terminate or modify this
article or in the alternative, the franchise agreement as mutually agreed by grantee.
If any of the provisions of this article or its application is held invalid by a
competent judicial agency, such invalidity shall not affect other provisions or
applications of the article which can be given effect without the invalid provision
or application.
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13.80.050 Publication Costs. The grantee shall assume the cost of
publication of any franchise as such publication is required by law and such is
payable upon the grantee's filing of acceptance of this franchise.
Chaoter 13.82
FRANCmSE REGULATIONS
13.82.010
13.82.020
13.82.030
13.82.040
13.82.050
13.82.060
13.82.070
13.82.080
13.82.090
13.82.100
13.82.110
13.82.120
13.82.130
13.82.140
13.82.150
Granting--
Authority.Franchise Grant--
Required
Services.
Application--Contents.
Application--Fee.
Franchise
Non-exclusive.
Uses
Permitted.
Duration.
Franchise
Payments.Franchise--
Nontransferable.
Franchise--Renewal.Franchise--Revocation.Limitations.Franchise
Agreement.Receivership.Acceptance and Effective Date of Franchise.13.82.010
Granting--Authority. The City Council is empowered to grant by resolution,
consistent with the requirements of the FCC, a non-exclusive franchise to any
qualified person, firm or corporation to operate a cable system within the City limits. No
provision of this article may be deemed or construed as to require the granting of a franchise
when in the opinion of the City Council it is in the public interest to restrict the
number of grantees to one or more, or to refrain from granting
any franchise in all or any portion of the City.13.
82.020 Franchise Grant--Reauired Services. In the event that the City shall
grant a franchise to construct, operate, maintain and reconstruct a cable system, the franchise
shall constitute both a right and an obligation to provide the services as
required by the provisions
of this article and the franchise agreement.13.82.030 Aoplication--Contents.A. An
original application for a franchise
shall
with the City Clerk, and shall contain, but not be limited to, the following
information:
1. The name and address of the applicant. If the applicant is a
partnership, the name and address of each partner shall also be set forth. If the
applicant is a corporation, the application shall also state the names and addresses
of its directors, main officers, major stockholders and associates, and the names
and addresses of parent and subsidiary companies and the state of incorporation.
2. A statement and description of the cable system proposed by
the applicant, its proposed location and various components, the manner in which
it will be constructed, installed, maintained and operated and the extent and
manner in which existing or future poles or other facilities of other public utilities
will he used for the cable system.
3. A detailed description of the public streets and public places
within which applicant proposes to construct, install or maintain any cable system
equipment or facilities and a detailed description of the equipment or facilities
proposed to be constructed, installed or maintained and their location.
4. A map specifically showing and delineating the proposed
service area or areas within which the applicant proposes to provide cable system
services and for which a franchise is requested.
S. A statement or schedule of proposed rates and charges to
subscribers for installation and services, and a copy of proposed service agreement
between the grantee and its subscribers.
6. A copy of all existing contracts between the applicant and any
public utility providing for the use of any facilities of the public utility.
7. A statement setting forth all agreements and understandings,
whether written, oral or implied, existing between the applicant and any person,
firm or corporation with respect to the proposed franchise or the proposed cable
system operation. If a franchise is granted to a person, firm or corporation posing
as a front for the applicant and such information is not disclosed in the original
application, such franchise shall be void and of no force and effect.
8. A financial statement prepared by a certified public
accountant, showing applicant's financial status and financial ability to complete
the construction and installation of the proposed cable system.
9. A statement as to when construction of the cable system will
begin.
10. A statement indicating where other cable system franchises
are held and how many existing subscribers are serviced.
11. A statement of intent with regard to program origination and
acceptance of local advertising.
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95
12. The number and identification of channels proposed to be
carried on the cable system.
13. A proposed subscriber complaint processing and equipment
repair procedure.
14. A Jll"OJl'l>secl "proof of performance" description, listing tests
to be performed and equipment utilized.
B. Upon coosideration of. application, the City Council may refuse to
grant a franchise or the City Council may by resolution grant a franchise to any
applicant as may appear from the application to be in its opinion best qualified to
render proper and efficient cable service to Idscribers. The City Council's
decision in the matter shall be final. If accepted, the application shall constitute
and form part of the franchise granted.
C. The City may at any time demand, and the applicant shall provide,
such supplementary, additional or other information as the City may deem
reasonably necessary to determine whether the requested franchise should be
granted.
D. Any franchise granted pursuant to this article shall be used and
operated solely and exclusively for the purpose expressly authorized by City
ordinance and for no other purpose. This shall not be deemed to limit the
authority of the City to include any other reasonable condition, limitation or
restriction which it may deem necessary to impose pursuant to the authority
conferred by this article.
13.82.040 Application--Fee. Each application shall be accompanied
by an application fee in the sum of $2500 which shall be used by the City to cover
the costs of reviewing, investigating and processing the application. This fee is
not
refundable.13.82.050 Franchise Non-Exclusive. 1be franchise granted
herein is non-exclusive. The City specifically reserves the right to grant, at
any time, such additional franchises for a cable system as it deems appropriate.
Any new or renewed franchise shall contain terms and conditions which are
similar to the terms and conditions of
any existing Grantee.13.82.060 Uses Permitted. Any franchise granted
pursuant to the provisions of this article shall authorize and pemtit the grantee to
engage in the business of operating and providing a cable system in the City,
and for that purpose to erect, install, construct, repair, replace, reconstruct,
maintain and retain in, on, over, under, upon, across and along any public street,
such poles, wires,cable, conductors, ducts, conduit, vaults,
manholes, amplifiers, appliances,Ord. No.
23-
attachments, and other property as may be necessary and appurtenant to the cable
system; and in addition, so to use, operate, and provide similar facilities or
properties rented or leased from other persons, firms or corporations, including but
not limited to any public utility or other grantee franchised or permitted to do
business in the City.
13.82.070 Duration. No franchise granted by the City Council under
this article shall be for a term longer than 15 years following the date of
acceptance of such franchise by the grantee or the renewal thereof. Any such
franchise shall terminate in whole or proportionately if City acquires the cable
system property of the grantee or a portion thereof.
13.82.080 Franchise Fee Payments.
A. As compensation for the franchise to be granted and in consideration
of permission to use the streets and public ways of the City for the construction,
operation, maintenance, and reconstruction, of a cable television system, the
grantee shall pay to the City an annual amount equal to five percent (5%) of the
grantee's gross annual revenue. Such payment's will be made to the City
Treasurer.
B. Payments due the City under this provision shall be computed
quarterly, for the preceding quarter, as of March 31st, June 30th, September 30th
and December 31st. Each quarterly payment shall be due and payable no later
than. 60 days after the dates listed in the previous sentence. Each payment shall be
accompanied by a brief report showing the basis for the computation and such
other relevant facts as may be required by the City.
C. The City shall have the right to inspect the grantee's records showing
the gross receipts from which its franchise payments are computed and the right of
audit and recomputation of any and all amounts paid under this article. No
acceptance of any payments shall be construed as a release or as an accord and
satisfaction of any claim the City may have for fUrther or additional sums payable
under this article or for the performance of any other obligation hereunder.
D. In the event that the above payment is not received by the City
within the specified time, grantee shall pay to the City as penalty and interest at
the rate of 2 percent per month on the unpaid balance.
E. The grantee shall file with the City, within 90 days after the
expiration of any fiscal year of the franchise or portion thereof during which such
franchise is in force, a financial statement prepared by a certified public
accountant, or a certified financial statement prepared by an appropriate grantee
financial officer, showing in detail the gross annual revenue of grantee during the
preceding fiscal year or portion thereof. It shall be the duty of the grantee to pay
DAD:ld Ord. No. 23-
95
to the City, within ten days after the time for filing such statements any unpaid
balance due and owing.
F. In the event that federal regulatory authorities or the courts, in the
future, permit a higher franchise fee on total gross annual revenues of the cable
system than the 5 percent limit now in effect, a higher franchise fee may be
imposed by Resolution of the City Council.
13.82.090 Franchise--Nontransferable. A. Any franchise shall be
a privilege to be held in personal trust by the original grantee. It cannot in any
event be sold, transferred, leased, assigned or disposed of, in whole or in part, either
by forced or involuntary sale, or by voluntary sale, merger, consolidation
or otherwise, without the prior consent of the City Council expressed by
resolution,after receipt of any proposed contractual documents, including the
consideration,and then only under such conditions as may in the resolution be prescribed.
Any such transfer or assignment shall be made only by an instrument in writing, a
duly executed copy of which shall be filed in the office of the City Clerk within 30
days after any such transfer or assignment. The consent of the City Council may not
be arbitrarily refused. However, the proposed assignee must show
financial responsibility and must agree to comply with all provisions of this article and
of the franchise. A request for Council consent must be accompanied with a fee
of 500 to assist in defraying City investigation
expenses.B. Prior approval of the City Council shall be required when
ownership or control of more than 30 percent of the right of control of grantee is acquired
by a person or group of persons acting in concert, none of whom already own
or control 30 percent or more of such right of control, singularly or collectively
and as may otherwise be set forth in the franchise agreement. By its acceptance of
this franchise, the grantee specifically grants and agrees that any such
acquisition occurring without prior approval of the City Council shall constitute a
material violation of this franchise by the
grantee.13.82.100 Franchise--Renewal. Any franchise issued pursuant
to this article may be renewed if such renewal is submitted in compliance with
the Cable Act and applicable FCC regulations or as otherwise agreed by the
City
and grantee.13.82.
110 Franchise--Revocation.A. Any franchise issued hereunder may, after grantee
has been provided due notice and a reasonable opportunity to correct, be
revoked, altered, or suspended by the City Council after a public hearing on any
of the
following tp"OUIIds;DAD:ld
Ord.
1. For willful, false or misleading statements in, or material omission
from, any application;
2. For failure to file and maintain the bond, security or insurance, or
pay franchise fees required under this article;
3. For repeated failure, as determined by the City Council, to maintain
signal quality in accordance with this article and FCC standards;
4. For any sale, lease, assignment, or transfer of control of its franchise
without consent of the City Council;
S. For violation of material terms of this article or material terms of a
franchise agreement issued pursuant to this article such as, but not limited to, any
unreasonable delay in begimling construction or in meeting the construction
schedule or unreasonable delay in offering cable system service;
6. If the grantee becomes insolvent" unable or unwilling to pay its
debts, or is adjudged a bankrupt or all or part of grantee's facilities should be sold
under an instrument to secure a debt and are not redeemed by grantee within 30
days from the sale;
7. If the grantee attempts to or practices any fraud or deceit in its
conduct or relations under the franchise;
8. If the grantee fails to receive or to obtain all necessary pole right
agreements for any reason within one year after the effective date of the franchise
due to its own lack of diligence and effort;
9. If the grantee fails to meet any conditions established in a franchise
agreement or if the grantee fails to perform as required in areas designated as
grounds for revocation in the franchise agreement.
B. Upon determination by the City Manager that one or more of the
above grounds for revocation, alteration or suspension of the franchise exists, the
City shall notify the grantee of that determination and shall state the major causes
and reasons supporting the determination. The grantee shall be granted ten
working days to respond to the notification statement. The City shall consider the
response of the grantee, if any, and may terminate, postpone for a period, or
proceed with the revocation, alteration or suspension process. If the City proceeds
with the revocation, alteration or suspension process, or reactivates a postponed
proceeding, a statement of revocation, alteration or suspension shall be written
stating the principal reasons for such action and a copy of the statement shall be
sent by registered mail to the grantee at his principal place of business within the
City. This statement and a notice of public hearing shall be published in a
newspaper of general circulation and a public hearing shall be scheduled 30 days
after publication. The City Council shall take final action on the revocation,
alteration or suspension of the franchise after completion of the public hearing.
DAD:ld Ord. No. 23-
95
C. No such revocation shall be effective unless or until the City Council
shall have adopted a resolution setting forth the cause and reasons for the
revocation and the effective date thereof. In the event the revocation depends
upon a finding offact, such finding off act as made by the City Manager or other
designated City official and as approved by the City Council, shall be stated in
resolution.
D. Upon revocation of a franchise, the City may by resolution declare a
forfeiture, whereupon all of grantee's rights shall immediately be divested without
a further act upon the part of the City. The grantee shall forthwith remove its
structures or property from the streets and restore the streets to such condition as
the City may require and upon failure to do so, the City may perform the work and
collect the cost thereof from the grantee.
13.82.120 Limitations. A. No privilege or exemption shall be granted
or conferred by any franchise granted under this article except those specifically
prescribed herein.
B. Any privilege claimed under any franchise by the grantee in any
public street or other public property shall be subordinate to any prior or
subsequent lawful occupancy or use thereof by the City or any other governmental
entity, shall be subordinate to any prior lawful occupancy or use thereof by any
other person, and shall be subordinate to any easements created prior to the
granting of any franchise hereunder.
C. Time shall be of the essence of any franchise granted. The grantee
shall not be relieved of its obligation to comply promptly with any of the
provisions of this article or by any failure of the City to enforce prompt
compliance.
D. The grantee shall be subject to all requirements of City ordinance,
rules, regulations and specifications heretofore or hereafter enacted or established.
E. Any franchise shall be in lieu of allY and all other rights, privileges,
powers, immunities and authorities owned, possessed, controlled or exercisable by
grantee or any successor to any interest of grantee of or pertaining to the
construction, operation, or maintenance of any cable system in the City. As
between grantee and the City, any and all construction, operation and maintenance
by any grantee of any cable system in the City shall be, and shall be construed in
all instances pursuant to the franchise and this article.
F. The grantee shall comply with all provisions of existing and future
local, state and federal rules and regulations.
G. Any fixtures placed in any public way by the grantee shall be placed
in such a manner as not to interfere with the usual travel on such public way.
Ord. No. 23-95 DAD:
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13.82.130 Franchise Agreement. The franchise shall be evidenced by an
executed franchise agreement between the City and the grantee. The franchise
agreement shall incorporate the terms of this article and the grantee's franchise
application. Any conflict between the two shall be specifically resolved in the
franchise agreement.
13.82.140 Receivershio. A. Upon the foreclosure or other judicial sale
of all or a substantial part of the cable system, or upon the termination of any lease
covering all or a substantial part of the cable system, the grantee shall notify the
City Clerk of such fact, and such notification shall be treated as a notification that
a change in control of the grantee has taken place and the provisions of this article
governing the consent of the City Council to such change in control of the grantee
shall apply.
B. The City shall have the right to revoke the franchise 120 days after
the appointment of a receiver or trustee to take over and conduct the business of
the grantee, whether in receivership, reorganization, bankruptcy, or other action or
proceeding, unless such receivership or trusteeship shall have been vacated prior to
the expiration of the 120 days, or unless:
1. Within 120 days after election or appointment, such receiver or
trustee shall have fully complied with all the provisions of the franchise and
remedied all defaults thereunder; and
2. Such receiver or trustee, within the 120 days, shall have executed an
agreement, duly approved by a court of competent jurisdiction, whereby such
receiver or trustee assumes and agrees to be bound by each and every provision of
the franchise.
13.82.150 Acceotance and Effective Date of Franchise.
A. No franchise granted pursuant to the provisions of this article shall
become effective until the resolution granting same has become effective and, until
all things required by this article are done and completed, all of such things being
declared to be conditions precedent to the effectiveness of any such franchise. In
the event any of such things are not completed in the time and manner required,
the City Council may declare the franchise null and void.
B. Within 20 days after the effective date of the resolution awarding a
franchise, or within such extended period of time: as the City Manager may
authorize, the grantee shall file with the City Clerk its written acceptance of the
franchise, together with all bonds and insurance policies required by this article,
together with its agreement to be bound by and to comply with and to do all things
required by the provisions of this article and the franchise. Such acceptance and
DAD:ld Ord. No. 23-
95
agreement shall be acknowledged by the grantee before a notary public, and shall
be in a form and content satisfactory to and approved by the City Attorney.
SERVICES AND SERVICE AREA
13.84.010
13.84.020
13.84.030
13.84.040
13.84.050
13.84.060
Services.
Continuity of Service.
New Services.
Service Area.
Special Service Areas.
Effect of Annexations.
13.84.010 Services. A. Cable system services shall be offered to all City
residents in accordance with the provisions of the franchise agreement. The
Grantee shall not materially reduce the number of channels programmed without
permission of the City.
B. No person, firm or corporation in the existing service area of the
grantee shall be arbitrarily refused service.
13.84.020 Continuity of Service. It shall be the right of all subscribers
to receive all available services insofar as their financial and other obligations are
honored. In the event that the grantee elects to overbuild, rebuild, modify or sell
the system, or the City revokes or determines not to renew the franchise, the
grantee shall do everything in its power to ensure that all subscribers receive
continuous, uninterrupted service regardless of the circumstances during the
lifetime of the franchise. In the event of purchase by the City, or a change of
grantee, the current grantee shall cooperate with the City to operate the system for
a temporary period, during which time grantee shall receive fair and reasonable
compensation in maintaining continuity of service to all subscribers.
13.84.030 New Service. It shall be the policy of the City liberally to
amend this franchise, upon application of the grantee, when necessary to enable
the grantee to take advantage of any technological developments which will afford
it an opportunity to more effectively, efficiently, or economically serve its
subscribers. However, this section shall not be construed to require the City to
make any amendment or to prohibit it from unilaterally changing this policy.
13.84.040 Service Area. The present territorial limits of the City and
any area added thereto during the term of a franchise.
Ord. No. 23-95 DAD:
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13.84.050 Soecial Service Area. A. As defined in the franchise
agreement, the grantee shall be permitted to charge higher installation fees for
areas of low housing density, commercial areas lUld/or underground areas, that
require exceptionally high construction costs.
B. Upon petition by the grantee, the City Council may defer or
indefinitely suspend any expansion into such a special service area required by this
article after a showing by the grantee that such expansion would cause grantee
unreasonable financial hardship. The adequacy of such a showing shall be
determined and weighed against the public interest in cable system expansion in a
public hearing.
13.84.060 Effect of AmIexation. A. In the event any new territory shall
be annexed to the City which is contiguous to only one franchise area in the City,
such new territory shall become, by operation oflaw, a part of such franchise area
immediately upon the effective date of such annexation.
B. In the event any new territory shall become annexed to the City
which is contiguous to more than one franchise area in the City or is not
contiguous to any franchise area, then the City Council shall determine at a public
hearing which grantee or grantees, if any, shall serve such now territory.
C. In the event any portion of the unincorporated territory covered by
an existing franchise or license is annexed to the City prior to the time that the
grantee of such franchise or license has commenced installation of a cable system
within the territory, all rights acquired by the grantee under its franchise or license
shall terminate by operation of law on the date on which the annexation to the City
becomes effective.
D. In the event any portion of unincorporated territory covered by an
existing franchise or license is annexed to thl: City after the grantee has
commenced or completed construction and installation of a cable system within
the territory, the rights reserved under such franchise or license, shall inure to the
benefit of the City and all regulatory provisions of this article and any other rules
and regulations applicable to cable systems operating within the City, whether then
in effect or subsequently adopted" shall be applicable to and binding upon the
grantee. In addition, the grantee shall be obligated to pay annually to the City the
percentage of the gross receipts established in the franchise or license which are
derived from its operations within the annexed territory.
Chaoter 13.86
INSTALLATION AND CONSTRUCTION
13.86.010 Permits, Installation and Service.
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13
13.86.020 Underground Construction.
13.86.030 Removal and Abandonment of Property.
13.86.040 Street Vacation or Abandonment
13.86.050 Changes Required by Public Improvements.
13.86.060 Movement of Facilities.
13.86.070 Removal of Facilities Upon Request.
13.86.080 Erection of Poles Prohibited.
13.86.090 Tree Trimming or Removal.
13.86.100 Repair of Public Ways.
13.86.110 Safety Requirements.
13.86.120 Emergency Work.
13.86.010 Permits. Installation and Service. A. Within 60 days after
acceptance of any franchise, the grantee shall proceed with due diligence to obtain
all necessary permits and authorizations which are required in the conduct of its
business, including but not limited to, any utility joint use attachment agreements,
microwave carrier licenses, and any other permits, license and authorizations by
regulatory agencies having jurisdiction over the operation of cable systems or
associated facilities.
B. In the event that the City permits overhead cable installation, within
150 days after obtaining the necessary pole agreements, the grantee shall
commence construction and installation of the cable system. In the event that
underground cables are required, within 150 days after obtaining permits for
installation in the public right-of-way, the grantee shall
commence construction and installation of the
cable system.C. Within 120 days after the commencement of
construction and installation of the system, the grantee shall proceed to render service
to subscribers and the completion of the construction and installation shall be
pursued with reasonable
diligence thereafter.D. Failure on the part of the grantee to commence and
diligently pursue each of the foregoing requirements shall be grounds for termination of
a franchise.The City Council may, in its discretion, extend the time for
the commencement and completion of construction and installation in the event the
City Council determines that grantee, acting in good faith, experiences delays by
reason of circumstances beyond
its control.E. By acceptance of a franchise, grantee agrees that failure
to comply with any time requirements referred to in Subsections A, B, C and D
of this section will result in damage to the City, and that it is and will be
impracticable to Ord. No. 23-
95
determine the actual amount of such damage in the event of delay. Grantee
therefore agrees that, in addition to any other damage suffered by City, it will pay
to City the sum of $250 per day for each and every day's delay beyond the time
prescribed, plus authorized-extensions thereof, for completion of any of the
acts required to be done by this
section.F. Grantor shall complete installation of the cable system within
three years after granting of the
franchise.G. The grantee shall schedule its construction activities to
coordinate with the City's construction activities on the streets, so as to avoid
unnecessary inconvenience to the
public.H. A franchise issued by the City may require faster construction
than established above if deemed prudent by the
City.I. The City may, at its sole option, reducf: the duration of the
franchise on a month-for-month basis for each month delay in
system construction within the
grantee's control.13.86.020 Underground Construction. In all areas of
the City where electric utility and communications facilities are underground,
the grantee shall place its cables and distribution equipment underground.
When existing aerial utilities in any City area are converted to underground construction,
such that both electric and communications utilities are underground" the
grantee shall replace aerial facilities with underground facilities concurrently and
in cooperation with similar programs of the telephone and power utilities. All
underground wires or cable of grantee shall be placed in condnits or other material
approved by the Director of Public Works. Amplifiers in grantee's
transmission and distribution lines may be placed in appropriate pedestals provided that
approval has been obtained from the Director of Public Works
prior to excavation.13.86.030 Removal and Abandonment ofPropertv. A. In
the event that the use of any part of the cable system is discontinued for any
reason for a continuous period of three months, or in th.e event the cable
system has been installed in any street or public place without complying with the
franchise or this article or the franchise has been terminated or expired, the
grantee shall promptly,upon ten days' notice from the Director of Public Works, remove
all cable system property other than that which the Director of Public Works may
permit to be abandoned in place. In the event of removal, the grantee shall
promptly restore the street or other area to as good as a condition as existed prior
to the removal.B. Any property of the grantee remaining in place 90
days after the termination or expiration of the franchise shall be at the option of
the City Council DAD:k1
Ont.
deemed abandoned. The Director of Public Works may extend such time for no
more than 30 days.
C. Any property of the grantee permitted to be abandoned in place shall
be abandoned in a manner as the Director of Public Works may prescribe. At the
discretion of the City Council, such property shall become the property of the City
and the grantee shall submit an instrument in writing, approved by the City
Attorney, transferring ownership of all such property.
13.86.040 Street Vacation or Abandonment. In the event any street or
portion thereof shall be vacated by City or the use thereof discontinued by grantee,
the grantee shall remove its facilities within 90 days of notification by City, unless
permitted by City to continue the same. Upon removal, grantee shall restore,
repair or reconstruct any disturbed area in a condition as may be required by City.
In the eyent grantee fails to repair or maintain such street portion, the City may do
such work by its own forces or by contract and the cost thereof shall be paid by
grantee within 30 days of invoicing.
13.86.050 Changes Reauired bv Public Imorovements. The grantee
shall from time to time protect, support, temporarily dislocate, temporarily or
permanently as may be required, remove or relocate, without expense to the City
or any other governmental entity, any facilities installed, used and maintained
under the franchise if and when made necessary by any lawful change of grades,
alignment or width of any public street, including the construction of any subway
or viaduct, by the City or any other governmental entity, or made necessary by any
other public improvement or alteration of any public street or other public
property.
13.86.060 Movement of Facilities. In the event it is necessary to
temporarily move or remove any of the grantee's cable system placed pursuant to
the franchise, in order lawfully to move a large object, vehicle, building or other
structure, the grantee upon reasonable notice, shall move the necessary facilities at
the expense of the person requesting the temporary removal.
13.86.070 Removal of Facilities Upon Reauest Upon termination of
service to any subscriber, the grantee shall promptly remove all its facilities and
equipment from the premises of such subscriber upon request.
13.86.080 Erection of Poles Prohibited. The grantee is expected to
make use of existing aerial poles where available upon reasonable terms.
However, the grantee shall have the right to erect poles if written permission is
Ord. No. 23-95 DAD:
ld
obtained from the City, which shall not be unreasonably withheld and if such
request does not violate any existing City codes or regulations. Except as may be
permitted, the grantee shall lease pole space from existing owners for all
construction.
13.
86.090 Tree Trimminl;! orRemoval. The grantee shall not remove any
tree or trim any portion, either above, at, or below ground level, of any tree within
any public place without the prior consent of the City. The City shall have the
right to do the work with the actual cost thereof to be paid by the grantee. If such
trimming in not performed by City the grantee shall be responsible, for any and
all damages to any tree as a result of trimming, or to the land surrounding any tree,
whether such tree is trimmed or removed.13.
86.100 Revair of Streets and Public Wavs. Whenever the grantee disturbs
the surface of any street, alley, public highway or ground for any purpose mentioned
in this article, it shall restore the same to the condition in which it was prior
to such disturbance. When any opening is made by the grantee in any hard surface
pavement in any street, alley or public highway, the grantee shall promptly refill
the opening and restore the pavement. The grantor may refill and/orrepave in
case of neglect of the grantee. The cost thereof, including the cost of inspection and
supervision, shall be paid by the grantee. All excavations made by the grantee in
the street, alley and public highways shall be properly safeguarded for the prevention
of accidents. The work required shall be done in strict compliance with City
rules, regulations and ordinances.13.
86.110 Safety Requirements. A. The grantee shall at all times employ
ordinary care and shall install and maintain in use commonly accepted methods
and devices for preventing failures and accidents which are likely to cause
damage, injuries or nuisances to the public.B.
The grantee shall install and maintain its wires, cables, fixtures and other
equipment in accordance with the requirements of the National Electrical Code,.
as it now exists or hereafter may be amended, and in such manner that they will
not interfere with any installations of the City or of a public utility serving the City.
C.
All structures lines, equipment and connections in and upon the streets,
sidewalks, alleys and public ways or places of the City, wherever situated or
located, shall at all times be kept and maintained ill a safe condition and in good order
and repair.DAD:
ld Ord. No. 23-95
17
D. The grantee shall strictly adhere to all building and zoning codes
currently or hereafter in force. The grantee shall arrange its lines, cables and other
appurtenances on both public and private property in such a manner as to cause no
unreasonable interference with the use of the public or private property by any
person.
13.86.120 Emergency Work. The City reserves the right to remove any
portion of the grantee's equipment and facilities as may be required in any
emergency as determined by the City without liability for interruption of service
and City shall not be obligated to restore service or to pay the costs of expenses of
restoring service.
Chaoter 13.88
RATES AND CHARGES
13.88.010
13.88.020
13.88.030
13.88.040
Basic Cable Service.
Cable Programming Service.
Rate Increase-Council
Approval.Limitations or
Charges.13.88.010 Basic Cable Service. Grantee shall submit all proposed
rate increases for the basic cable service and related equipment to the City in
accord-ance with FCC regulations or as may be prescribed by the City to the
extent permitted by FCC
regulations.13.88.020 Cable PrOgramming Service. Grantee shall notify the City
of any proposed increase in rates for any cable programming service, as defined
by FCC regulations, 30 days in advance of any proposed
increase.13.88.030 Rate Increase--Council Approval. Basic service
rates and charges shall not be increased except in accordance with applicable
law and regulations and without limitation to the extent legally required by approval
of the
City Council.13.88.040 Limitation on Charges. A. If, in the future, the
State of California or any other public agency regulates the rates of the grantee
for any service provided for in the franchise, this section shall be of no effect
during such regulation to the extent of
any conflict.B. The grantee shall credit or refund to the subscriber in
an amount Ord. No. 23-
95
equal to one day's service charge for each day service is interrupted whenever
service is not provided for a period of two consecutive days, beginning from the
time such outage is reported to the grantee.
Chapter 13.89
CUSTOMER SERVICE STANDARDS
13.89.010 Definitions.
13.89.020 Technical Standards.
13.89.030 Telephone Availability, Office Hours and Complaint Log.
13.89.040 Installation and Service Interruptions.
13.89.050 Communication, Bills, Refunds and Late Charges.
13.89.060 Lock Boxes.
13.89.070 Harmful Matter.
13.89.080 Grantee Standards.
13.89.090 Enforcement.
13.89.010 Definitions. A. Material Breach means any substantial and
repeated failure to comply with the service standards set forth in this Ordinance.
B. Normal Business Hours means those hours during which similar
service- oriented businesses within the City are open to serve customers. This
shall. include some evening hours at least one night per week and/or some weekend
hours.
C. Normal Operating Conditions means those service conditions within
the control of the grantee. Conditions not in the control of the grantee include
natural disasters, civil disturbances, power outages, telephone network outages and
severe weather. Conditions which are ordinarily in control of the grantee include,
but are not limited to, special promotions, pay-per-view event,
rate increases,regular peak or seasonal demand periods, and maintenance or upgrade of
the
cable system.D. Service Interruption means the loss of picture or sound on
one or more channels, whether partial
or complete.13.89.020 Technical Standards. Each grantee shall construct,
install and maintain its cable system in a manner consistent with and in compliance
with all applicable laws, ordinances, construction standards,
governmental requirements and technical standards equivalent to those established by the
franchise agreement DAD:ld Old
No.
and/or by the FCC. Each grantee shall provide, upon request, written reports of
the grantee's annual proof of performance tests conducted pursuant to FCC
standards and requirements. Upon complaint to the City by a subscriber and upon
City request, grantee shall make a demonstrable showing that it is meeting the
technical standards required by this section.
13.89.030 Teleohone Availability. Office Hours and Comolaints.
A. Telephone Availability. The grantee shall maintain a local toll-
free telephone access line which is available 24 hours per day, 7 days per week.
The number of this access line shall be listed in the most widely circulated
telephone directory in the City. Trained company representatives shall be available
to respond to telephone inquiries during normal business hours. After
normal business hours, the access line may be answered by a service or an
automated response system, including an answering machine. Inquiries received after
normal business hours must be responded to by a trained company representative on
the next business
day.Under normal operating conditions, telephone answer time by a
subscriber representative, including wait time, shall not exceed 30 seconds from when
the connection is made. If the call needs to be transferred, transfer time shall
not exceed 30 seconds. Under normal operating conditions, the caller shall receive
a busy signal less than 3% of the time. These standards shall be met no less
than 90010 of the time, measured on a quarterly
basis.B. Office Hours and Location. Customer service center and
bill payment locations will be open at least during normal business hours and will
be conveniently located. The grantee shall maintain an office within the City.
Such office shall be open during normal business hours for the purpose of
receiving,investigating and responding to complaints regarding the quality of
service,equipment malfunctions and other similar matters pertaining to the cable
system.C. Service Log. Grantee shall maintain a written record or log
which lists the
following:1. Date of subscriber
complaint;2. Identity of
subscriber;3. Description of the nature of the
complaint;4. Action taken by the grantee to resolve the
complaint.This written record shall be maintained in the grantee's office and shall
be available for inspection during normal business hours by the
City.D. Response to Complaints. The grantee shall maintain a repair
force of technicians capable of responding to service calls or requests for service
the next business day, or such other reasonable time period as determined by the
City Ord. No. 23-95
DAD:
Manager, after receipt of a written complaint, except in the case of natural disaster,
in which case the grantee shall use its best efforts. Charges for service calls will
be in accordance with FCC regulations.
The City shall ensure that all subscribers, programmers and members of the
general public have recourse to a satisfactory hearing of any complaints, where
there is evidence that the grantee has not settled the complaint to the satisfaction of
the person initiating the complaint. The City shall establish procedures for
handling and settling complaints.
E. Penalties for failing to respond to Complaints. A subscriber whose
complaints have not been satisfied shall have the right to file a complaint in
writing with the City.
If a subscriber files a written complaint with the City for a service problem
which is preventable and reasonably within the grantee's control, as determined by
the City Manager and if the grantee fails within 24 hours or such other reasonable
time period as determined by the City Manager, following receipt of such written
to remedy the problem, the City Manager may levy II civil penalty up to $500 for
any occurrence or series of related occurrences. Such civil penalties may be
collected by the City from the security fund. If the frlIDchisee objects to the fine in
writing to the City Manager, the grantee and City may conduct arbitration in
accordance with the rules of the American Arbitration Association.
13.89.040 Installations. Service Intenuptions and Termination of
Service. Under normal operating conditions, each of the following five standards
shall be met no less than 95% of the time as measured on a quarterly basis:
A. Installation: Standard installation shall be performed within seven
7) business days after an order has been placed. "Standard Installations" are those
that are located within 125 feet from the existing cable system.
B. Service Interruptions: Excluding conditions beyond the control of
the grantee, the grantee shall begin working on servi,;e interruptions promptly and
in no event later than 24 hours after the interruption becomes known. The grantee
shall begin actions to correct other service problems the next business day after
notification of the service problem. Any scheduled service interruptions shall be
preceded by notice and shall be for as brief a period as possible. Such
interruptions shall be scheduled during those times when the cable system is being
the least utilized by subscribers.
C. Appointments for Installation: The: appointment window for
installations, service calls and other installation activities will be either a specific
DAD:1d Ord. No. 23-
95
time or, at a maximum, a four-hour time block during normal business hours.
The grantee may schedule service calls and other installation activities outside
of normal business hours for the express convenience of the
subscriber.D. Subscriber Appointments: The grantee may not cancel a
scheduled appointment with a subscriber after the close of business on the business day
prior to such scheduled
appointment.E. Rescheduling Appointments: If the grantee representative is late
for an appointment with a subscriber and will not be able to keep the appointed
time as scheduled, the subscriber shall be contacted and notified when the
grantee representative will arrive. The appointment shall be rescheduled, at
the subscriber's option, to a specific time when the grantee representative will arrive
or to a specific time that is convenient for the
subscriber.13.89.050 Communications. Bills. Refunds and Late
Charges.A. Communications: At the time of installation of any service, at
least annually to all subscribers, and at any time upon request, the grantee shall
provide written information in each of the following
areas:1. Products and services
offered;2. Prices and options for programming Services and conditions
of subsc,ription to programming and other
services;3. Installation and service maintenance
policies;4. Instructions on how to use the cable
service;S. Channel positions of programming carried on the cable
system;6. Billing and complaint procedures, including name, address
and telephone number of the City as the franchising authority;
and 7. Procedures for blocking or deleting unwanted
channels.The grantee shall notify customers of any changes in rates,
programming services or channel positions as soon aspossib\(~ through announcements on
the cable system and in writing. Written notice must be given to customers at
least thirty (30) days in advance of such changes if the changes are within control of
the grantee. In addition, the grantee shall notify customers thirty (30) days in
advance of any significant changes in the other information required by this section. If
the change is not within the control of the grantee, the grantee shall provide
written notice to all customers as soon as
possible.B. Customer Invoices: Invoices shall be clear, accurate, concise
and understandable. Invoices must be fully itemized, with itemizations including,
but not limited to, basic and premium service charges and equipment
charges.Invoices shall also clearly delineate all activity during the billing period,
including optional charges, rebates and credits. In case of a billing dispute, the grantee
must respond to a written complaint from a customer within thirty (30) days.
Any unresolved complaint shall be referred promptly by the grantee to the
City.Ord. No. 23-95
DAD:
C. Refund Checks: Refund checks shall be issued promptly, but no
later than either: (I) the subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier; or (2) if service is terminated, the
return of equipment supplied by the grantee.
D. Credits: Credits for service shall be issued no later than the
customer's next billing cycle following determination that a credit is warranted.
E. Billing Period: The grantee must allow all subscribers who pay their
bills directly to the grantee at least fifteen (15) days from the date the bill is
mailed, to pay the listed charges unless otherwise agreed to pursuant to a
residential rental agreement establishing tenancy. Subscriber payment shall be
posted promptly.
F. Delinquent Payments and Termination of Service: The grantee may
not terminate residential service of a delinquent account unless the grantee has
furnished notice to the subscriber of the delinquency and impending termination at
least fifteen (15) days prior to the proposed termination. Such notice shall be
mailed, postage prepaid, to the subscriber to whom the service is billed. Such
notice shall not be mailed until the 16th day after the date the bill for services was
mailed to the subscriber. The notice of delinquency and impending termination
may be part of a billing statement. The grantee may not assess a late charge, as
prescribed in this section, any earlier than the 22m) day after the bill for service
has been mailed. Every notice of termination of service shall include all of the
following information:
1. The name and address of the subscriber whose account is delinquent;
2. The amount of the delinquency;
3. The date on which payment is required in order to avoid termination
of service; and
4. The telephone number of a grantee representative who can provide
additional information and handle complaints or initiate an investigation
concerning the service and charges in question.
Service may only be terminated on days in which the customer can reach a
grantee representative either in person or by telephone.
Any service terminated without good cause shall be restored without charge
for the service restoration. Good cause includes, but is not limited to, failure to
pay, payment by check for which there are insufficient funds, theft of service,
abuse of equipment or system personnel, or other similar subscriber actions.
Upon termination of service to any subscriber, the grantee shall promptly
remove all of its facilities and equipment from the premises of such subscriber
upon the subscriber's request, without any charge to the subscriber for such
removal.
DAD:ld Ord. No. 23-
95
G. Late Charges. The grantee may impose a late charge of 1-1/2 percent
per month, or the maximum rate permitted by
law.13.89.060 Lock Boxes. The grantee shall offer lock boxes to
each
subscriber.13.89.070 Harmful Matter. The grantee shall, at no cost to
the subsc:riber, insure that programming, which constitutes "harmful matter",
as defined in California Penal code Section 313, or indecent programming, as
defined by federal law and FCC regulations, is effectively blocked unless a customer,
age 18 or older, has specifically requested such
programming.13.89.080 Franchise Standards. The standards set forth herein
are minimum standards that shall be met by the grantee. The grantee is free
to establish policies and take actions which exceed the standards set forth
herein.Those standards and policies set by the grantee which exceed the standards
set forth in this Ordinance shall not be subject to enforcement by the City,
unless otherwise set forth by federal, state or local law or pursuant to an
agreement between the grantee and the
City.13.89.090 Enforcement. Within ten (10) business days of a
written request from the City, grantee shall provide suffic:ient documentation to enable
the City to determine if the grantee has complied with the customer service
standards set forth in this
Chapter.In addition to those additional penalties and remedies provided for by
law,Section 13.89.020 of this Code, or pursuant to an agreement, between the
grantee and the City, the City may, at its option, impose monetary penalties against
the grantee for material breaches of this Chapter. A material breach shall be
any substantial and repeated failure to comply with those customer service
standards which are set forth in both this Chapter 13.89 and the Video Customer
Service Act, California Government Code Sections 53088 .et seq. The grantee shall
be subject to the following monetary penalties for any material
breach:1) $200 per day not to exceed $600 for the first material
breach;2) $400 per day not to exceed $1,200 for a subsequent material
breach of the same nature which occurs within a 12-
month period;3) $1,000 per day not to exceed $3,000 for any
additional material breach of the same nature which occurs within th(: same
12-month period.No monetary penalties shall be assessed until the City
has provided the grantee with written notice of the material breach. The grantee
responsible for the Ord. No.
23-
material breach shall be given thirty (30) days from receipt of the notice to cure
the specified breach. The written notice shall be: provided by first-class
mail,postage prepaid and shall be deemed received within three (3) days of deposit
into the United States Mail. For the purpose of assessing penalties under this
Section,penalties shall be deemed to have occurred for each day, following the
expiration of the 30-day period, that the material breach has not been remedied
by the Grantee. Monetary penalties for material breaches occurring after
the first material breach shall only be imposed if the City gave notice of
the previous material breach(es) and penalties were assessed in
each instance.Chaoter
13.90
MISCELLANEOUS PROVISIONS 13.
90.010 13.
90.020 13.
90.030 Use of
Telephone Facilities
Filing Procedure Mailing
of Notices 13.90.010 Use of Teleohone Facilities. When and in
the event that the grantee of any franchise uses in its cable system
distribution channels furnished to the grantee by a telephone company pursuant to tariff or
contract on file with a regulatory body having jurisdiction, and the grantee makes no use
of the street independent of such telephone company furnished facilities,
the grantee shall be required to comply with all of the provisions hereof as a "
permittee", and in such event whenever the term "grantee" is used in this article, it shall
be deemed to mean and
include "permittee".13.90.020 Filing Procedure. When not otherwise prescribed
in this article, all matters herein required to be filed with lhe City shall be filed
with the
City Manager.13.90.030 Mailing of Notices. All notices which the City may
give to the grantee or which the grantee may give to the Cily shall be given in
writing and may be given by first class mail, postage prepaid, addressed to the grantee'
s most recent address on file with the City, and addressed to the City at City
Hall. Such notices shall be deemed given one day after deposit in the United States mails
if so deposited in Orange County or Los Angeles County; otherwise, they
shall be deemed given
uponreceipt.DAD:ld Ord.
No.
Chaoter 13.92
RIGHTS AND OBLIGA nONS
13.92.010
13.92.020
13.92.030
Rights Reserved to the Grantee.
Rights Reserved to the City.
Rights of Individuals Protected.
13.92.010 Rights Reserved to the Grantee. Should the grantee become
dissatisfied with any material decision or ruling of the City Manager or staff
pertaining to cable communication matters, the grantee may appeal the matter to
the City Council. The City Council may accept, reject, or modify the decision of
its City Manager or staff. If the grantee is dissatisfied with the results of such
appeal, the grantee may pursue such other remedies as are available, including the
bringing of action in any court of competent jurisdiction.
13.92.020 Rights Reserved to the City. A. Upon the revocation of the
franchise, or the expiration without renewal of the terms thereof: and upon
payment by the City to the grantee of the fair market value of the grantee's cable
systeIn, the City may purchase, acquire, takeover, or hold the system. For
purposes of this section, "fair market value" shall be determined by valning the
grantee's system as a going concern. No value shall be assigned to the franchise.
Immediately upon a determination of revocation or expiration of the franchise, the
City and grantee shall attempt to mutually agree upon the fair market value of the
system. However, if within a reasonable period of time they cannot agree upon
the fair market value, then the valuation shall be determined by a three-
member board of appraisers, one selected by the City, one selected by the grantee, and
one selected by the appraisers themselves. The cost of the appraisal shall be
borne equally by the City and the grantee. The determination of the appraisers shall
be subject to review and/or appeal by a court of competent jurisdiction and
nothing herein shall prevent either party from seeking such review and/or
appeal.B. There is reserved to the City every right and power which is
required to be reserved or provided by an ordinance of the City, and the grantee, by
its acceptance of any franchise, agrees to be bound thereby and to comply with
any action or requirements of the City in its exercise of such rights or
power,heretofore or hereafter enacted or
established.C. Neither the granting of any franchise, nor any of the
provisions contained herein shall be construed to prevent the City from granting any
identical,or similar, franchise to any other person, firm, or corporation within all or
any portion of the City on similar terms or conditions to the extent authorized by
law.Ord. No. 23-95
DAD:
D. Neither the granting of any franchise nor any provision thereof shall
constitute a waiver or bar to the exercise of any governmental right or power of the
City, now existing or hereafter granted.
E. The City Council may do all things which are necessary and
convenient in the exercise of its jurisdiction and may determine any question of
fact which may arise during the existence of any franchise granted hereunder. The
City Manager is authorized and empowered to adjust, settle, or compromise any
controversy or charge arising from the operations of any grantee under this article,
either on behalf of the City, the grantee or any subscriber, in the best interest of
the public. Either the grantee or any member of the public who may be
dissatisfied with the decision of the City Manager may appeal the matter to the
City Council for hearing and determination. The City Council may accept, reject
or modify the decision of the City Manager and the City Council may adjust, settle
or compromise any controversy or cancel any charge arising from the operations of
any grantee or from any provision of this article. All actions by the City Council
under this subsection shall be after hearing, upon ten days advance written notice
to grantee at its address on file with the City.
F. The City 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 oflaw.
G. At the expiration of the term for which a franchise is granted without
renewal and upon its revocation or expiration, the City shall have the right to
require the grantee to remove, at its own expense, all portions of the cable system
from all streets and public ways within the City.
13.92.030 Rights of Individuals Protected.
A. Discriminatory Practices Prohibited. The grantee shall not deny
service, deny access, or otherwise discriminate against subscribers, progranuners,
or general citizens on the basis of race, color, religion, national origin, sex or age.
The grantee shall comply at all times with all other applicable federal, state, or
City laws, and all executive and administrative orders relating to
nondiscrimination.
B. Subliminal Transmission Prohibited. No subliminal transmission
shall be utilized at any time for any purposes whatsoever.
C. Privacy and Other Human Rights. The grantee and the City shall
maintain constant vigilance with regard to possible abuses of the right of privacy
or other human rights of any subscriber, progranuner, or general citizen resulting
from any device or signal associated with the cable system. The grantee shall not
place in any private residence any equipment capable of two-way
communications DAD:Jd Ord. No.
23-
95
27
without the written consent of the residents, and will not utilize the two-
way communications capability of the system for unauthorized subscriber
surveillance of any
kind.D. Permission of Property owner Required. No cable, line,
wire,amplifier, converter, or other piece of equipment owned by the grantee shall
be installed by the grantee without first securing the written permission of the
owner of any property involved, except as authorized by law. If such permission is
later revoked, whether by the original or subsequent owner, the grantee shall
promptly remove its equipment which is both visible and movable and promptly restore
the property to its original
condition.Chaoter 13.
94
RECORDKEEPING 13.94.
010 13.94.
020 13.94.
030 Annual
Report.Communications with Regulatory
Agencies.Record Keeping
Generally.13.94.010 Annual Report. No later than April 15th of each year,
the grantee shall present a written report to the City which shall
include:A. A certified financial report for the previous calendar year,
including gross revenues from all sources, gross subscriber revenues from each category
of
semce.B. A summary of the previous year's activities including, but not
limited to, subscriber totals and new
services;C. A summary of complaints received and handled;
and D. Projected plans for the
future.13.94.020 Communications with Regulatory Agencies. Copies of
all petitions, applications, communications and reports submitted by the grantee to
the FCC, Security and Exchange Commission, or any other federal or state
regulatory body having jurisdiction with respect to any matters materially affecting
cable communications authorized by a franchise, shall also be submitted within
twenty days to the City. Copies of responses from the regulatory agencies to the
grantee shall likewise be furnished within twenty days to the
City.13.94.030 Record keeoing Generallv. A. The grantee shall
maintain an office within the City and manage all of its operations in accordance with
the Ord. No. 23-95
DAD:
franchise agreement. The City shall have the right to inspect at any time during
normal business hours, all books, records, maps, plans, income tax returns,
financial statements, service complaint logs, performance test results and other like
materials of the grantee which relate to the operation of the franchise. Access to
the aforementioned records shall not be denied by the grantee on the basis that said
records contain "proprietary" information.
B. The grantee shall at all times make and keep in the City full and
complete plans and records showing the exact location of all cable system
equipment installed or in use in streets and other public places in the City.
C. The grantee shall file with the Director of Public Works a current
map or set of maps drawn to scale, showing all cable system equipment installed
and in place in streets and other public places of the City within 30 days of the
granting of a franchise and shall update such maps at the end of each calendar
year, if necessary. The City shall maintain the confidentiality of information
identified by Grantee as confidential to the extent permitted by law. The City will
advise Grantee of any third party request for such confidential information to
enable Grantee to take the steps necessary to protect the confidentiality of the
information.
Chaoter 13.96
FINANCIAL OBLIGATIONS
13.96.010
13.96.020
13.96.030
13.96.040
13.96.050
13.96.060
Faithful Performance Bond.
Security Fund.
Comprehensive Liability Insurance.
Indemnification.
Recourse Against City for Losses or Expenses.
Financial Interest Prohibited.
13.96.010 Faithful Performance Bond. A. The grantee shall,
concurrently with the filing of and acceptance of award of any franchise, file with
the City Clerk, and at all times maintain in full force and effect for the term of
such franchise or any renewal thereof, at grantee's sole expense, a corporate surety
bond from a company and in form and content approved by the City Attorney.
The bond shall be in the minin1um amount of $500,000, renewable annually, and
conditioned upon the faithful performance by the grantee of all obligations
imposed by the franchise and this article and all applicable laws, including the full
amount of any compensation, indemnifications, or cost of removal or abandonment
DAD:ld Ord. No. 23-
95
of any property of the grantee, plus a reasonable aUowance for attorneys' fees and
costs, up to the full amount of the bond, and specifically including the payment of
the annual franchise fees. In the alternative the grantee shall deposit and maintain
a minimum of an additional $100,000 in the security fund, as set forth in Section
13.96.020, for a total of at least $115,000 in the security fund.
B. Neither the provisions of this section, nor any bond accepted by the
City, nor any damages recovered by the City thereunder, shall be construed to
excuse faithful performance by the grantee or limit the liability of the grantee
under any franchise or for damages, either to the full amount of the bond or
otherwise.
C. The bond shall provide that thirty days prior written notice of
intention not to renew, cancellation, or material change, be given to the City, in
which event the grantee shall provide a substitute bond complying with this
section in form and content approved by the City Attorney.
D. Funds represented by the bond and/or in the security fund shall be
recoverable by the City in case of noncompliance by the grantee, its assignees,
vendees, lessees, or successors in interest.
13.96.020 Security Fund. A. Within thirty days after the effective date
of the franchise, the grantee shall deposit into a bank account of the City,
established by the City, and maintain on deposit throughout the term of this
franchise, the sum of not less than $15,000 as security for the faithful performance
of all the provisions of the franchise and the payment by the grantee of any claims,
liens, taxes or franchise fees due the City which arise by reason of the
construction, operation or maintenance of the cable system. The grantee shall
have the right to earn interest on funds deposited in the security fund.
B. Within thirty days after notice to it that any amount has been
withdrawn by the City from the security fund, the grantee shall deposit a sum of
money sufficient to restore such security fund to the original amount.
C. If the grantee fails after ten days notice to pay to the City any
overdue franchise fee or fails to repay to the City within such ten days any
damages, costs or expenses which the City is compelled to pay by reason of any
act or default of the grantee in connection with this franchise; or fails after thirty
days' notice of such failure by the City to comply with any provision of the
franchise which the City reasonably determines can be remedied by an expenditure
of the security, the City may immediately withdraw the amount thereof, with
interest and any penalties, from the security fund. The City shall notify the
grantee of the amount and date of any withdrawal.
D. The security fund shall become the property of the City in the event
that the franchise is canceled by reason of the default of the grantee or revoked for
Ord. No. 23-95 DAD:
ld
cause up to the amount of any damages suffered by the City. The grantee shall be
entitled to the return of such security fund, or portion thereof, as remains on
deposit at the expiration or termination of the franchise if there are no outstanding
defaults on the part of the grantee.
E. The rights reserved to the City with respect to the security fund are
in addition to all other rights of the City whether reserved by this article or
authorized by law. No action, proceeding or exercise of a right to such security
fund shall affect any other right the City may have.
13.96.030 Comorehensive Liability Insurance. A. Upon acceptance of
a franchise, the grantee shall file with the City Clerk and shall, during the entire
term of the franchise, maintain in full force and effect, a general comprehensive
liability insurance policy or policies provided by a company authorized to do
busirless in the State of California. The insurance shall be written in a form
approved by the City Attorney, and shall name tlle City, its City Council, boards,
commissions, members thereof, and all officers, employees and agents, as
additional insureds, which shall be evidenced by an endorsement to that affect.
The insurance shall be written on an occurrence basis and provide for minimum
liability limits of $2,000,000 for bodily injury, death and property damage.
B. The policy or policies shall contain a provision that a written notice
of any cancellation, modification or reduction in coverage of the policy be
delivered to the City Clerk thirty days in advan.ce of the effective date thereof.
Such insurance shall be primary insurance and not contributing to any insurance
held by the City. No franchise granted under this chapter shall be effective unless
and lmtil each of the foregoing policies of insurance as required in this section has
been delivered to the City Clerk and approved by the City Attorney. Any
substitute policy or policies shall be subject to the same approvals and shall
comply with all of the provisions of this subsection.
13.96.040 Indemnification. The grantee shall defend, indemnify and
hold harmless the City, its officers, boards, commissions, agents and employees,
and each of them, against and from any and all claims, demands, actions, suits,
liabilities and judgments of every kind and nature, and regardless of the merit of
the same, arising out of or related to the exercise or enjoyment of any cable
franchise granted pursuant to the provisions of this article, including costs of
investigations, attorney's fees and court costs in the defense of any actions, to the
extent that such claims or demands are alleged to be the result of an error,
omission, intentional act or negligent act of grantee or any persons employed by or
contracting with grantee, even if that grantee: f:mployee is in error or by
misinformation alleged to be a City employee.
DAD:ld Ord. No. 23-
95
13.96.050 Recourse Against City for Losses or Exoenses. To the extent
provided by law, the grantee shall have no recourse whatsoever against the City or
any of its officers or employees for any loss, costs, expense or damages arising out
of any provision or requirement of this chapter, or the franchise or from any
attempt at enforcement or clarification of any provision or requirement of this
chapter, or the resolution granting the franchise, or the enforcement of this article
or the franchise. Any franchise granted under this article shall not relieve the
grantee of any obligation involved in obtaining pole space from any department of
the City, the utility companies, or from others maintaining poles in streets, as
herein defined, or other public easements or public properties. Nothing in this
article is to be construed as granting to the grantee the right to cross or trespass
upon, in any way, property which is not public property or within a suitable right-
of-
way.13.96.060 Financial Interest Prohibited. The grantee shall have no
financial interest, directly or indirectly, nor shall any of its officers, shareholders
or employees, in any TV or radio sales or repair business; nor shall the grantee or
any of such persons accept or receive referral fees or gratuities from any such sales
or repair business. Any violation of this section" unknown to the grantee, by
an employee of the grantee who is not an officer shall not constitute a breach of
this section, unless the grantee should fail to institute prompt remedial action
upon discovery
thereof.Chapter 13.
98 UNLAWFUL
ACTS 13.98.
010 13.98.
020 13.98.
030 13.98.
040 Operation Without
Franchise.Use of Private
Street.Unauthorized
Connection.Tampering, Removal or Injury of
Equipment.13.98.010 Operation Without Franchise. It is unlawful for any person
to establish, operate or to carry on the business of distributing to any persons in
this City any television signals or radio signals by means of a cable system unless
a franchise therefor has first been obtained pursuant to the provision of this
article,and unless such franchise is in full force and
effect.13.98.020 Use of Private Street. It is unlawful for any person
to construct, install or maintain within any public street in the City, or within
any Ord. No. 23-95
DAD:
other public property of the City, or within any privately-owned area within
the City which has not yet become a public street, but is designated or delineated as
a proposed public street on any tentative subdivision map approved by the City,
any equipment or facilities for distributing any television signals or radio
signals through a cable system, unless a franchise authorizing such use of such street
or property or area has first been obtained and unless such franchise is in full
force and
effect.13.98.030 Unauthorized Connection. A. It is unlawful for any
person,firm or corporation to make any unauthorized connection, or to knowingly
utilize an unauthorized connection, whether physically, electrically,
acoustically,inductively or otherwise with any part of a franchised cable system within the
City for the purpose of taking or receiving television signals, radio signals,
pictures,programs or
sound.13.98.040 Tamoering. Removal or Inimy of Equioment. It is
unlawful for any person, without the consent of the owner to willfully tamper with,
remove or injure any cables, wires or equipment used in a cable
system.SECTION
II:A sununary of this Ordinance shall be published and a certified copy of
the full text of this Ordinance shall be posted in the Office of the City Clerk at
least five (5) days prior to the City Council meeting at which this Ordinance is
adopted.A summary of this Ordinance shall also be published once within fifteen (15)
days after this Ordinance's passage in a newspaper of general circulation, published,
and circulated in the City of Orange. The City Clerk shall post in the Office of
the City Clerk a certified copy of the full text of such adopted Ordinance along
with the ruunes of those City Council members voting for and against the Ordinance
in accordance with Government Code Section 36933. This Ordinance shall
take effect thirty (30) days from and after the date of its final
passage.Adopted this 9 th day of January
1996.
ATTEST:
7AI.t:UJ/J1"a Cb.~/'-d/f.-;C
City Clerk of City of Orange
l
or
of the City of Orange J DAD:
ld Ord. No. 23-95
33
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
CITY OF ORANGE )
I, CASSANDRA 1. CATHCART, City Clerk of the City of Orange,
California, do hereby certify that the foregoing Ordinance was introduced at the
regular meeting of the City Council held on the 12th day of
December , 1995, and thereafter at a regular meeting of said City
Council duly held on the 9th day of January . 1996, was duly
passed and adopted by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCIL MEMBERS: MURPHY, BARRERA, MAYOR COONTZ, SPURGEON,
COUNCIL MEMBERS: NONE SLATER
COUNCIL MEMBERS: NONE
COUNCIL MEMBERS: NONE
I ~fk1i4{1A1/J/f.4'.u - ';.C.,1/1":/-City Clerk
oftJ.\l Cityof Orange Ord. No.
23-95 DAD:ld 34