Ordinance Number 872ORDINANCE NO. 872
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO ,
CALIFORNIA, RELATING TO FRANCHISES FOR CABLE
COMMUNICATIONS SYSTEMS (TITLE 7, CHAPTER 2)
THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 2 "Cable Television Systems" of Title 7 "Public Works" of the San
Juan Capistrano Municipal Code is amended in its entirety to read as follows:
CHAPTER 2.
CABLE COMMUNICATIONS FRANCHISES
Section 7-2.01 DEFINITIONS.
(a.) Forthe purposes of this Ordinance, the following words, terms, phrases, and
their derivations have the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, and words in the singular number
include the plural number.
"Additional Service" means any service not included in "Basic Service" or
"Institutional Service."
"Administrative Officer" means the City Manager or the City Manager's designee.
"Affiliated Person" or "Affiliates" means each Person who falls into one or more of
the following categories: (i) each Person having, directly or indirectly, a Controlling Interest
in Grantee; (ii) each Person in which Grantee has, directly or indirectly, a Controlling
Interest; (iii) each officer, director, general partner, limited partner holding an interest of five
percent (5%) or more, joint venturer, orjoint venture partner in Grantee's Cable System in
the City; and (iv) each Person, directly or indirectly, controlling, controlled by, or under
common Control with Grantee; provided that "Affiliated Person" excludes the Grantor, any
limited partner holding an interest of less than five percent (5%) in a Grantee, or any
creditor of Grantee, solely by virtue of its status as a creditor, and which is not otherwise
an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being
under common ownership, common management, or common Control with Grantee.
"Agency Subscriber" means a subscriber who receives a Service in a government
or public agency, school, or nonprofit corporation facility.
"Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the lowest
Service Tier which includes the retransmission of local television Broadcast Signals and
Public, Educational, and Governmental Access Channels.
"Broadcast Signal" means a signal transmitted over the air to a geographically
dispersed public audience and received by a Cable System.
"1984 Cable Act" means the Cable Communications Policy Act of 1984.
"1992 Cable Act" means the Cable Television Consumer Protection and Competition
Act of 1992.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992 and by the
Telecommunications Act of 1996.
"Cable Operator" means any Person or group of Persons (i) who provides Cable
Service over a Cable System in the City and, directly or through one or more Affiliates,
owns a significant interest in that Cable System; or (ii) who otherwise controls or is
responsible for, through any arrangement, the management and operation of a Cable
System in the City.
"Cable Service" means (i) the one-way transmission to Subscribers of video
programming or other programming service; and (ii) subscriber interaction which is required
for the selection of or use of such video programming or such other programming service.
"Cable System" or "Cable Communications System" or "System" means a facility,
consisting of a set of closed transmission paths and associated signal generation reception,
and control equipment that is designed to provide Cable Service, which includes video
programming, and which is provided to multiple Subscribers within the City; but this term
does not include: (i) a facility that serves only to retransmit the television signals of one or
more television broadcast stations; (ii) a facility that serves Subscribers without using any
public right-of-way; (iii) a facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of the Communications Act of 1934 (47 U.S.C. § 201 et seq.),
except that such facility shall be considered a Cable System (other than for purposes of
section 621(c) of the Cable Act) to the extent such facility is used in the transmission of
video programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on -demand services; (iv) an open video system that complies with
section 653 of the Cable Act; or (v) any facilities of any electric utility used solely for
operating its electric utility systems.
"Cablecast Signal" means a Non -Broadcast Signal that originates within the facilities
of the Cable System, whether from a live or recorded source.
"City" means the City of San Juan Capistrano, California.
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"Closed Circuit" or "Institutional Service" means services provided to institutional
users on an individual or collective basis. The information contained in such a service may
or may not be simultaneously available to other system Subscribers or users.
"Channel" means a frequency band capable of carrying a standard video signal or
some combination of video signals.
"Commercial Subscriber" means a Subscriber who receives a Cable Service in a
place other than a Residential Dwelling Unit.
"Complaint" means a dispute in which a Subscriber notifies Grantee of an outage
or degradation in picture quality, billing or other issue pertaining to the Subscriber's Cable
Service which is not corrected during the initial telephone or service call.
"Control" or "Controlling Interest" means actual working control in whatever manner
exercised, including, without limitation, working control through ownership, management,
debt instruments, or negative control, as the case may be, of the Cable System or a
Grantee. A rebuttable presumption of the existence of Control or a Controlling Interest
shall arise from the beneficial ownership, directly or indirectly, by any Person or group of
Persons acting in concert (other than underwriters during the period in which they are
offering securities to the public) of twenty percent (20%) or more of any Person (which
Person or group of Persons is referred to as "Controlling Person"), or being a party to a
management contract.
"Converter" or "Terminal" means a device located at a Subscriber's premises that
converts signals from one frequency to another or otherwise processes signals for use by
Subscribers.
"Drop" means the cable connecting the Cable System's plant to equipment at the
Subscriber's premises.
"Education Channel" means any channel capacity where non-profit, non-commercial
educational institutions are the primary designated Programmers.
"Facilities" shall mean any equipment located, in whole or in part, in, above, or below
Streets, Public Rights -of -Way, or other public property used by the Grantor in its System
including without limitation, conduits, cables, cabinets, Nodes, structures, headend
equipment, receive only earthstations, downlink equipment and antennas, electronics, fiber
cable, coaxial cable, drops and switching equipment.
"FCC" means the Federal Communications Commission or its designated
representatives.
"Franchise" means a written legal undertaking or action of the Grantor which
authorizes a specific Person to use the Grantor's streets and public ways for the purpose
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of installing, operating, maintaining, or reconstructing a Cable System to provide Cable
Service.
"Government Channel" means any channel capacity where local government
agencies are the primary designated Programmers, and programming is informational
programming regarding government activities and programs.
"Grantee" means the Person granted a Franchise to install, operate, maintain, or
reconstruct a Cable System and the lawful successors, transferees, or assignees of that
Person.
"Grantor" means the City, acting by and through its elected governing body, or such
representative as the governing body may designate to act on cable matters in its behalf.
"Gross Annual Revenue" or"Gross Annual Receipts" or"Gross Receipts" means all
revenue, as determined in accordance with Generally Accepted Accounting Principles,
which is received, directly or indirectly, by Grantee and by each Affiliated Person from or
in connection with the distribution of any Cable Service, and any other Service which may,
under now or then applicable federal law, be included in the Cable Act definition for the
purpose of calculating and collecting the maximum allowable franchise fee for operation of
the System, whether or not authorized by any Franchise, including, without limitation,
leased or access channel revenues received, directly or indirectly, from or in connection
with the distribution of any Cable Service. It is intended that all revenue collected by the
Grantee, and by each Affiliated Person, from the provision of Cable Service over the
System, whether or not authorized by the Franchise, be included in this definition. Gross
Annual Revenue also specifically includes: (i) the fair market value of any nonmonetary
(i.e., barter) transactions between Grantee and any Person, otherthan an Affiliated Person,
but not less than the customary prices paid in connection with equivalent transactions; (ii)
the fair market value of any nonmonetary (i.e., barter) transaction between Grantee and
any Affiliated Persons, but not less than the customary prices paid in connection with
equivalent transactions conducted with Persons who are not Affiliated Persons; (iii) any
revenues generated from the provision of Internet and/or broadband services which utilize
the Cable System for delivery and must not be excluded pursuant to applicable law; and
(iv) any revenue received, as reasonably determined from time to time by the Grantor,
through any means which is intended to have the effect of avoiding the payment of
compensation that would otherwise be paid to the Grantor for the Franchise granted.
Gross Annual Revenue also includes any bad debts recovered. Gross Annual Revenue
also includes all advertising revenue which is received directly or indirectly by Grantee, any
Affiliated Person, or any other Person from or in connection with the distribution of any
Service over the System or the provision of any Service -related activity in connection with
the System. Gross Annual Revenue does not include: (i) the revenue of any Person to the
extent that said revenue is also included in the Gross Annual Revenue of Grantee; (ii) taxes
imposed by law on Subscribers which Grantee is obligated to collect; and (iii) amounts
which must be excluded pursuant to applicable law.
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"Headend" means that central portion of the System where signals are introduced
into the System.
"Institutional Network" or 'Institutional System" means a System or portion of a
System intended primarily to service non-residential Subscribers.
"Lease Channel" means anychannel where someone otherthan Grantor or Grantee
is sold the rights to air programming.
"Local Origination Channel" means any channel where a Grantee is the primary
designated Programmer.
"Monitoring" or"Tapping" means observing or receiving a signal, where the observer
is neither the sending nor receiving party and is not authorized by the sending or receiving
party to observe said signal, whether the signal is observed or received by visual,
electronic,.or any other means whatsoever.
"Nodes" shall mean the cabinet or housing and equipment, power supply, fans, gas
generators, batteries and optical to electrical converters, which is the point where fiber
facilities and coaxial facilities are connected.
"Non -Broadcast Signal" means a signal that is not involved in over -the -air broadcast
for general public reception.
"Open Channel" means any channel that can be received by all Subscribers without
the use of special equipment not normally possessed by, or available to, anyone who may
become a Subscriber.
"Pay Cable," "Pay Service," "Premium -Service" or "Pay Television" means signals
for which there is a fee or charge to users over and above the charge for Basic Service,
including any tiers of service; provided, however, the sale or lease of studio facilities,
equipment, or tapes to local users shall not be deemed pay or premium services.
"Pedestal" shall mean an above -ground enclosure which houses active and/or
passive electronic equipment used to serve Subscribers.
"PEG Channel" means collectively, the channel capacity dedicated Public, Education
or Government channel.
"Person" means any corporation, partnership, proprietorship, individual, or
organization authorized to do business in the State of California.
"Plant" means the transmitting medium and related equipment which transmits
signals between the Headend and Subscribers, including Drops.
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"Pole Attachment Agreement" or "Attachment Agreement" means any agreement
with the Grantor, any other governmental entity, or any public utility relating to a Grantee's
use of any utility poles, ducts, or conduits.
"Program" or "Programming" means the information content of a signal and the act
or process of creating such content, whether that content is intended to be pictures and
sound, sound only, or any other form of information whatsoever.
"Programmer" means any Person who provides program material or information for
transmission by means of a System.
"Property of Grantee" means all property owned or leased within the Franchise
Service Area by Grantee in the conduct of its System business under a Franchise.
"Public Channel," "Access Channel," "Community Service Channel" or"Community
Channel" means any channel capacity for which members of the public, or any community
organization, may provide non -advertiser supported programming; provided, however,
sponsorship identification fees may be paid and accepted to further community
programming.
"Public Right -of -Way" means any public street, public way, public place or rights-of-
way, now laid out or dedicated, and the space on, above or below it, and all extensions
thereof, and additions thereto, under the jurisdiction of Grantor.
"Pull Box" shall mean a flush mounted or above -ground housing which encloses
one or more conduit openings.
"Resident" means any person residing in the Franchise Service Area, or as
otherwise defined by applicable law.
"Residential Dwelling Unit" or "Dwelling Unit" means a home, mobile home,
condominium, apartment, cooperative unit, and any other individual dwelling unit.
"Residential Subscriber" means a Subscriber who receives a Service in a Dwelling
Unit
"Service" means any kind of service or type of benefit provided by Grantee, or any
group of related benefits obtained or made available to any person, involving the use of a
signal transmitted via a Cable Communications System, whether the signal and its content
constitute the entire service or comprise only a part of a service which involves other
elements of any number or kind.
"Service Area" or "Franchise Service Area" means the entirety of the City of San
Juan Capistrano.
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"Service Interruption" means the loss of picture or sound on one or more cable
channels.
"Service Tier' or "Tier" means a category of Cable Service or other Services
provided by a Cable Operator and for which a separate rate is charged by the Cable
Operator, other than per channel or per event programming or legitimate packages of per
channel or per event programming.
"Streets and Public Ways" means the surface of, and the space above and below,
any public street, sidewalk, alley, or other public way or right-of-way of any type
whatsoever.
"Subscriber" means any Person that lawfully subscribes to and receives, a Cable
Service provided by Grantee by means of or in connection with its Cable System.
"Tap" means the point of interconnection between that portion of the Cable System
located in the Public Rights -of -Way and a Drop.
"Telecommunications Act" means the Telecommunications Act of 1996.
"Unit" means a discrete place where System Services are used, such as a
residence, apartment, office, store, etc.
"User(s)" means any Person who either receives Services from a Cable System or
who accomplishes any purpose by, in part or in whole, transmitting or receiving information
via a Cable System, or who creates programming for that purpose, or who receives and
uses programming.
(b.) Terms Not Defined - Words, terms, or phrases not defined herein shall first
have the meaning as defined in the Cable Act, and then the special meanings or
connotations used in any industry, business, trade, or profession where they commonly
carry such special meanings. If those special meanings are not common, they will have
the standard definitions as set forth in commonly used and accepted dictionaries of the
English language.
Sec. 7-2.02 GRANT OF FRANCHISE.
(a.) Authority to Grant Franchises. The Grantor may grant a Franchise to provide
Cable Service to any Person who offers to provide a System pursuant to this Ordinance.
(b.) Form. A Franchise may, at Grantor's sole option, take the form of an
Ordinance, license, permit, contract, resolution, or any other form elected by Grantor.
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(c.) Grants Not Required. Consistent with applicable state and federal law, no
provision of this Ordinance requires the granting of a Franchise when, in the opinion of the
Grantor, it is in the public interest not to do so.
(d.) Purpose. The purpose of a Franchise is to identify and authorize the
operation of a Cable Communications System by a specific Grantee, and to identify and
specify those terms, conditions, definitions, itemizations, specifications and other particulars
of the agreement between the Grantor and a Grantee. In so doing, a Franchise may clarify,
extend, and interpret the provisions of this Ordinance. Where a Franchise and this
Ordinance conflict, both shall be liberally interpreted to achieve a common meaning or
requirement. In the event this is not possible within reasonable limits, the Franchise shall
prevail. Unless otherwise specifically stated, no provision of this Ordinance shall be
deemed to be contractually incorporated into any Franchise granted hereunder.
(e.) Compliance with Law. Neither this Ordinance nor Franchise granted under
it relieves 6 Grantee of any requirement of Grantor, or of any Ordinance, rule, regulation,
or specification of Grantor now or hereafter in effect pursuant to Grantor's police power,
including, but not limited to, the obtaining of a business license, and the payment of all
permit and inspection fees required from time to time by the Grantor.
(f.) Franchise Non -Exclusive. Grantor may, at its option, grant one or more
Franchises to construct, operate, maintain, and reconstruct a System. Said Franchises
shall constitute both a privilege and an obligation to provide the System and Services
required by this Ordinance and the Franchise.
(g.) Duration. The term of any Franchise, and all rights, privileges, obligations
and restrictions pertaining thereto, shall be specified in the Franchise. The effective date
of any Franchise shall be as specified in the Franchise.
(h.) Use of Public Streets and Rights -of -Way. For the purposes of operating and
maintaining a System in the franchised Service Area, a Grantee may place and maintain
within the public rights-of-way such property and equipment as are necessary and
appurtenant to the operation of the Cable Communications System. Prior to construction
or alteration of the Plant in public rights-of-way, a Grantee shall applyfor, pay all applicable
fees, and receive all necessary permits.
(i.) Use of Other Utilities. Any Person who provides a System or Services as
defined herein shall be deemed a Grantee and must obtain a Franchise. If such Grantee
uses distribution channels furnished by any telephone company, other public utility, or any
other entity which are functionally equivalent to those used by a Cable Operator, said
Grantee shall be required to comply with all of the provisions of this Ordinance.
Q.) Assignment, Transfer or Sale of Franchise.
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1. There shall be no assignment of a Franchise, in whole or in part, or any
change in Control of a Grantee, without the prior express written approval of the Grantor.
2. Any assignment or transfer, or any change in Control, without the
Grantor's prior written consent shall constitute a default which will cause a Franchise, to
terminate.
3. At least one hundred twenty (120) days before a proposed assignment
or change in Control of the Franchise is scheduled to become effective, a Grantee shall
request in writing the Grantor's written consent. A Grantee shall submit to the Grantor
(concurrently with the submission of its written request) an FCC 394 Form (or successor
form) together with: (i) any other information or documentation required by the State or
Federal government (including the FCC); (ii) the information referenced in subsection 7 of
this paragraph; (iii) unedited and unredacted copies of the sale or transfer documents with
all schedules and exhibits thereto; and (iv) information regarding the financial ability and
stability of the proposed assignee with respect to being able to perform all obligations of
the existing Franchise.
4. The Grantor shall not unreasonably withhold its consent to such an
assignment or Change in Control. However, in evaluating the request for assignment,
transfer, sale, or change in Control, the Grantor may, in its sole discretion and among other
things, undertake a technical inspection and audit of the System to determine whether the
System complies with all applicable technical and safety codes, this Ordinance, and the
Franchise.
5. If the Grantor determines (as a result of the technical inspection and
audit) that the System does not comply with federal, state, or local standards, then a
Grantee shall be provided with an opportunity to correct or cure the non-compliance either
prior to or after the transfer or change of control. In the alternative, the Grantor may work
with both the current and proposed Grantee to cure the non-compliance. The Grantor shall
be under no obligation to approve any transfer or assignment if a Grantee is in breach.
6. Before an assignment or change in Control is approved by the Grantor,
the proposed assignee, transferee, or buyer shall execute an affidavit acknowledging that
it has read, understood, and will abide by both this Ordinance and the applicable Franchise.
7. In the event of any approved assignment or change in Control, the
assignee or transferee shall assume all obligations and liabilities of the former Grantee
relating to the Franchise unless specifically relieved by the Grantor at the time the
assignment or change in Control is approved.
8. If the Grantor disapproves a request for consent, then a Grantee may
submit another request or an amended request for consent or seek whatever address is
permitted under applicable law. In such a situation, anew one hundred twenty (120) day
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time -frame begins to run from the date of the submission of the new, amended, or modified
request or application .
(k.) Reimbursement of Processing and Review Costs. Grantee shall reimburse
Grantor for Grantor's reasonable processing and review expenses in connection with a
transfer of the Franchise or a change in Control of the Franchise, including without
limitation, costs of administrative review, financial, legal, and technical evaluation of the
proposed transferee, costs of consultants (including technical and legal experts), notice and
publication costs, and document preparation expenses. A reasonable deposit in an amount
determined by the City may be required by the City. In addition, prior to any transfer or
change in Control, Grantee shall reimburse Grantor for all of Grantor's expenses in
connection with evaluating or negotiating a renewal of Grantee's franchise, whether or not
said renewal was ever finalized or granted. Grantor may send Grantee an itemized
description of all such charges, and Grantee shall pay such amount within twenty (20) days
after the receipt of such description.
(I.) Violation. If a Grantee violates any provision of subparagraph j of Section
1002, the Franchise shall automatically terminate. The procedures contained in Section
1012 of this Ordinance shall not apply to an unlawful transfer or change in Control, and the
Franchise shall automatically terminate upon the occurrence of that violation.
Sec. 7-2.03 RIGHTS RESERVED TO THE GRANTOR.
(a.) Reservation. Grantor reserves every right it may have in relation to its power
of eminent domain over Grantee's Franchise and property.
(b.) Non -waiver or Bar. Neitherthe granting of any Franchise, nor any provisions
of this Ordinance, shall constitute or be construed as a waiver or bar to the exercise of any
governmental right or power by Grantor.
(c.) Delegation of Powers. Any right or power in, or duty retained by or imposed
upon Grantor, or any commission, officer, employee, department, or board of Grantor, may
be delegated by Grantor to any officer, employee, department or board of Grantor, or to
such other person or entity as Grantor may designate to act on its behalf.
(d.) Right of Inspection of Construction. The Grantor shall have the right to
inspect and approve all construction, installation, or other physical work performed by
Grantee in the Public Rights -of -Way and on private property consistent with its generally
applicable building codes, so long as said inspection and testing does not unreasonably
interfere with Grantee's operations.
(e.) Right to Require Removal of Property. Consistent with applicable law, at the
expiration of the term or any renewal term or extension for which the Franchise is granted,
or upon its lawful revocation, expiration, or termination, the Grantor shall have the right to
require a Grantee to remove, at Grantee's expense, all portions of its System and any other
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property from all streets and public rights-of-way within the Franchise Service Area within
a reasonable period of time.
(f.) Right of Intervention. The Grantor shall have the right of intervention in any
suit, proceeding orotherjudicial or administrative proceeding in which the Grantor has any
material interest, and to which a Grantee is party.
(g.) Place of Inspection. The Grantor shall have the right to inspect Grantee's
local premises, and to request copies of all relevant information that is reasonably
necessary for the exercise of Grantor's regulatory authority, upon reasonable notice at any
time during normal business hours. Any Grantee records kept at another place shall, within
ten (10) days of Grantor's request, be made available at Grantee's local premises within
the County of Orange for Grantor's inspection and copying. All reports and records
required pursuant to this Ordinance shall be furnished at the sole expense of Grantee,
except as otherwise provided in this Ordinance or the Franchise.
Sec. 7-2.04 RIGHTS OF SUBSCRIBERS.
(a.) Discriminatory Practices Prohibited. A Grantee shall not deny Cable Service
or otherwise discriminate against Subscribers or others on the basis of race, color, religion,
national origin, sex, age, handicap, or other protected classes. A Grantee shall strictly
adhere to the equal employment opportunity requirements of federal, state, or local
governments and shall comply with all applicable laws and executive and administrative
orders relating to non-discrimination.
(b.) Tapping and Monitoring. A Grantee shall not tap or monitor, or permit any
other person controlled by Grantee to tap or monitor, any cable, line, signal input device,
or subscriber outlet or receiver, for any purpose whatsoever without the express written
consent of the Subscriber or a court order therefor; provided, however, that a Grantee may
monitor customer service calls for quality control purposes and may conduct system -wide
or individually addressed "sweeps" forthe purpose of verifying system integrity, monitoring
signal levels, or checking for unauthorized connections to the Cable Television System,
service levels, or billing -for -pay services.
(c.) Data Collection.
1. Except for its own use, or in connection with the provision of Cable
Services or for release of data to the Grantor, the Grantee shall not permit its system to be
used for data collection purposes, nor shall it otherwise collect data which would reveal the
commercial product or other preferences or opinions of an individual Subscriber, members
of their families, or their guests, licensees or employees, unless the Grantee shall have
received the prior written consent of such Subscriber.
2. In any event, the Grantee shall not disclose or permit the release or
sale of data on individual Subscribers or groups thereof, but may disclose or permit the
release or sale of aggregate data only.
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3. Disclosure of Subscriber Lists. The Grantee shall not disclose, or sell,
or permit the disclosure or sale of its subscriber list without the prior written consent of each
Subscriber on such list; provided that Grantee may use its subscriber list as necessary for
the construction, marketing, and maintenance of the Grantee's services and facilities
authorized by a Franchise, and the billing of Subscribers for Cable Services; and provided
further, that consistent with applicable law, Grantor may use Grantee's subscriber list for
the purpose of communication with Subscribers in connection with matters relating to the
operation, management, and maintenance of the Cable System.
4. Grantee shall not disclose individual Subscriber preferences, viewing
habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency,
governmental unit, or investigating agency without court authority or the prior written
consent of the Subscriber.
(d.) Terms of Subscriber Consent
1. Any written consent, if given, shall be limited to a period of time not to
exceed one year, or a term agreed upon by the Grantee and the Subscriber.
2. The Grantee shall not condition the delivery or receipt of Cable
Services to any Subscriber on any such consent.
3. A Subscriber may at any time revoke, without penalty or cost, any
consent previously given by delivering to the Grantee in writing a statement of the
Subscriber's intent to so revoke.
(e.) Other Persons Affected. The prohibitions contained in paragraphs(a)through
(d), inclusive, of this Section 7-2.04 apply to Grantee, as well as to all of the following:
1. Officers, directors, employees, agents, and general and limited
partners of the Grantee;
2. Any person or combination of persons owning, holding, or controlling
any corporate stock or other ownership interests in the Grantee;
3. Any affiliated or subsidiary entity owned or controlled by Grantee, or
in which any officer, director, stockholder, general, or limited partner, or person or group
of persons owning, holding or controlling any ownership interest in the Grantee, shall own,
hold or control any corporate stock or other ownership interests; and
4. Any person, firm, or corporation acting or serving in the capacity of a
holding or controlling company of the Grantee.
(f.) Subscriber Bill of Rights. Grantee shall provide to all Subscribers, at the time
of initial connection and annually thereafter, a notice in a form previously approved by
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Grantor (which approval shall not be unreasonably withheld)describing, in understandable
language, the Subscriber's rights and obligations that are generally provided under the
Franchise and federal law, including a description of how to contact the Grantee and, if
necessary, the Grantor, in the event of an unresolved Subscriber complaint.
(g.) Notice to New Subscribers. Before providing Cable Service to .any
Subscriber, Grantee shall provide a written notice to the Subscriber containing substantially
the following information:
"Subscriber understands that Company uses public rights-of-way and other
facilities of the City of San Juan Capistrano in providing service and that this continued use
cannot be guaranteed. Subscriber agrees not to make any claims against the City of San
Juan Capistrano, or its officers or employees in the event that such use is denied for any
reason, and Company is unable, in its discretion, to provide service over alternate routes."
Sec. 7-2.05 FINANCE.
(a.) Payments to the Grantor
1. As compensation for any Franchise to be granted, and in consideration
of permission to use the Grantor's streets and public rights-of-way for the construction,
operation, maintenance, and reconstruction of a System, the Grantee shall pay to the
Grantor the amounts specified in the Franchise.
2. Payments due the Grantor shall be computed quarterly, and shall be
paid within thirty (30) days after the close of each calendar quarter. The payment shall be
accompanied by a report showing the basis for the computation and such other relevant
facts as may be required by the Grantor to determine the accuracy of the payment. A final
annual reconciliation, and payment if any, shall be delivered to Grantor by Grantee within
ninety (90) days after the end of each calendar year.
3. If any franchise payment or recomputed amount is not made on or
before the dates specified above in subsection 2, Grantee shall pay as additional
compensation the greater of the following:
(a) An interest charge, computed from the applicable due date, at
an annual rate equal to the prevailing commercial prime interest rate in effect upon the due
date, plus three percent (3%).
(b) A sum of money equal to $4,000 for each month, or part thereof,
of delay, which sum shall also bear interest from the due date at an annual rate equal to
the prevailing commercial prime interest rate in effect upon the due date, plus one percent
(1 %).
4. In addition to any late payment made pursuant to subsection 3 above,
if a payment is late by sixty (60) days or more, Grantee shall pay a sum of money equal to
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five percent (5%) of the amount due in order to defray additional expenses and costs
incurred by Grantor as a result of such delinquent payment.
5. No acceptance of any payment shall be construed as a release of, or
an accord, or satisfaction of, any claim that the Grantor might have for further or additional
sums payable under the terms of this Ordinance, or for any other performance by Grantee
of an obligation hereunder.
6. Payments of compensation made by a Grantee to the Grantor
pursuant to the provisions of this Ordinance are in addition to, and exclusive of, any and
all authorized taxes, business license fees, and other fees, levies, or assessments now in
effect, or subsequently adopted in accordance with state and federal law.
(b.) Security Fund.
1. Within thirty (30) days after the effective date of the Franchise, a
Grantee shall deposit into a bank account established by a Grantee, for the benefit of
Grantor, and shall maintain on deposit through the term of the Franchise, a sum specified
in the Franchise as security for the faithful performance by Grantee of all of the provisions
of the Franchise, and compliance with this Ordinance and with all orders, permits and
directions of the Grantor, or any designated representative of the Grantor having
jurisdiction over Grantee's acts or defaults under the Franchise or this Ordinance, and as
security for the payment by a Grantee of any claims, fees, liens, or taxes due the Grantor
which arise by reason of the construction, operation, maintenance or reconstruction of the
System pursuant to the Franchise or this Ordinance, and to satisfy any actual or liquidated
damages arising out of a Franchise breach.
2. Except as otherwise provided in the Franchise, if a Grantee fails, after
twenty (20) days written notice, to pay to the Grantor any fees that are due and unpaid, or
fails to repay within such twenty (20) days, any damages, costs or expenses which the
Grantor is compelled to pay by reason of any act or default of a Grantee in connection with
its Franchise; or if Grantee fails to comply with any provision of the Franchise or this
Ordinance and the Grantor determines that such failure was without just cause and, in a
manner consistent with the procedures specified in Section 7-2.13 of this Ordinance,
Grantor reasonably determines it can be remedied by a withdrawal from the security fund
or is nevertheless subject to liquidated damages, then, in any such event, the Grantor may
immediately withdraw the amount thereof from the security fund, with interest and any
liquidated damages. Upon such withdrawal, the Grantor shall notify a Grantee of the
amount and the date of withdrawal.
3. Within thirty (30) days after notice to Grantee that any amount has
been withdrawn by Grantor from the security fund, a Grantee shall deposit a sum of money
sufficient to restore such security fund to the original amount.
4. Grantee shall be entitled to the return of the security fund, or portion
thereof, with interest, that remains on deposit at the expiration or termination of the
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Franchise, once all amounts due to the Grantor have been paid. Grantee shall also retain
its right to challenge any withdrawal from such security fund.
5. The rights reserved to the Grantor with respect to the security fund are
in addition to all other rights of the Grantor, and no action, proceeding or exercise of a right
with respect to such security fund shall affect any other right the Grantor may have.. ,
(c.) Faithful Performance Bond. Within thirty (30) days after the effective date of
the Franchise, a Grantee shall furnish proof of the posting of a faithful performance bond
in favor of the Grantor, with corporate surety approved by the Grantor in the sum specified
in the Franchise and conditioned that a Grantee shall well and truly observe, fulfill, and
perform each term and condition of the Franchise; provided, however, that such bond shall
not be required after certification by Grantor of the completion of construction of Grantee's
Cable System. The corporate surety must be authorized to issue such bonds in the State
of California, and the bond must be obtained and secured through an authorized agent in
the County of Orange. During the course of construction, the amount of the bond may from
time to time be reduced, as provided in the Franchise. Written evidence of payment of
premiums shall be filed with the Grantor.
(d.) Letter of Credit.
1. At the option of the Grantor, a Grantee may be authorized, in lieu of
creating a Security Fund or obtaining a Faithful Performance Bond, to post an irrevocable
letter of credit, issued by a bank approved by the Grantor, in the amount specified in the
Franchise. Said letter of credit shall incorporate wording approved by the Grantor enabling
it to draw from time to time such funds as the Grantor may determine to be necessary to
satisfy any material defaults of Grantee or to make any payments due Grantor under or in
connection with this Ordinance or Grantee's Franchise, upon not more than ten (10) days
written notice to the issuer of the letter of credit. Said letter of credit shall further provide
for sixty (60) days written notice by certified mail from its issuer to Grantor of any pending
expiration or cancellation, and said notice shall without further cause constitute reason for
the Grantor to draw the full sum to be held in its own accounts until such letter of credit is
reestablished in a form satisfactory to Grantor.
2. If Grantor requires such a letter of credit, Grantee shall pay all fees or
other charges required to keep it in force and shall, within thirty (30) days of any draw by
Grantor, restore its face value to the original amount.
3. All provisions herein applicable to bonds or security funds shall also
apply to letters of credit.
Sec. 7-2.06 SERVICES.
(a.) Services to be Provided. A Cable System shall provide, as a minimum, the
broad programming categories specified in the Franchise.
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(b.) Changes in Services. Grantee shall inform Grantor and its Subscribers at
least thirty (30) days in advance of making any change in a Cable Service, or in the rates
charged therefor.
(c.) Non-discrimination. Grantee shall not discriminate between or among
Subscribers within one type or class in the availability of services, at either standard or
differential rates according to published rate schedules, except as otherwise authorized by
law. No charges may be made for services except as listed in published schedules which
are available for inspection by anyone at Grantee's office, quoted by Grantee on the
telephone, and displayed or communicated to all potential Subscribers.
(d.) Prepayment. Grantee may not charge Subscribers for services more than
one (1) month in advance unless an individual Subscriber requests a longer period. Bills
may be due and payable upon mailing but shall not be delinquent, and no late charge
penalties shall be assessed, until the later of: (i) twenty-two (22) days from postmark; or (ii)
service has actually been provided forthe billed period. All bills and billing statements shall
clearly indicate the billing period, the actual due date, and the delinquent or late payment
or assessment.
(e.) Disconnect for Cause. Grantee may disconnect a Subscriber only for cause,
which shall include, without limitation, the following:
Payment delinquency in excess of forty-five (45) days.
Willful or negligent damage to or misappropriation of Grantee's
property.
3. Monitoring, tapping, or tampering with Grantee's system, signals, or
service.
4. Threats of violence to Grantee's employees or property.
(f.) Reconnection. Grantee shall, upon Subscriber's written request, reconnect
service which has been disconnected for payment delinquency when payment has
removed the delinquency. If authorized by applicable law, a published standard charge
may be made for reconnection. Grantee shall not be required to make more than three (3)
reconnections for the same subscriber if the disconnections involved were caused by
payment delinquency within any previous twenty-four (24) month period. Reconnection for
disconnects covered by Section 7-2.06(e)(2), (3), and (4)shall be at Grantee's sole
discretion.
(g.) Installations.
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I . Grantee shall promptly provide and maintain service as specified in the
Franchise to the residential, commercial, and industrial structures in the Franchise Service
Area, as defined in the Franchise, upon request of the lawful occupant or owner.
2. Where a new Drop is required to provide service, Grantee shall advise
each Subscriber that the Subscriber has the right to require that installation be done over
any route on the Subscriber's property, and in any manner the Subscriber may elect which
is technically feasible and consistent with proper construction practices. If the Subscriber
requests installation otherthan a standard installation, then the Subscriber may be required
to pay a reasonable fee for the time and materials occasioned by that installation.
3. For purposes of this paragraph, a standard installation shall include
installation of drop cable with fittings up to one hundred and fifty feet (150) feet from the
CATV distribution system measured along the cable from the center line of the street or
utility easement through the house wall or, at the Subscriber's option, through the floorfrom
a house vent or crawl space directly to the Subscriber's television set with five feet of cable
from the wall or floor entry to the TV set. Also included as part of a standard installation
is the grounding cable, fine tuning of the television set, and the provision by the Grantee
of the appropriate literature and information.
4. After Cable Service has been established by activating trunk or
distribution cables for any area, Grantee shall provide Service to any person requesting
Service in that area within seven days from the date of request, provided that the Grantee
is able to secure all access rights necessary to extend service to that potential Subscriber
within that seven (7) day period on reasonable terms and conditions.
(h.) Non -Standard Installations. For each non-standard installation, a Grantee
may charge the Subscriber for the cost of material and labor in excess of that required for
a Standard Installation. Grantee shall provide each Subscriber a written estimate of all
charges for a non-standard installation prior to installation and obtain Subscriber's written
authorization in advance for all nonstandard installation charges.
(i.) Converters/Terminals. At such time as a converter or terminal is required for
Subscribers to have access to all services on its System, Grantee shall make them
available to Subscribers for a fee. Grantee may require each Subscriber who elects to
install a converter or terminal to furnish a security deposit therefor.
1. Each converter or terminal device shall be and remain the property of
the Grantee unless Grantor approves or requires its sale to the Subscriber. Grantee shall
be responsible for maintenance and repair of all equipment owned by Grantee and may
replace it as Grantee may from time -to -time elect, except that Subscriber shall be
responsible for loss of or damage to any such device while in the Subscriber's possession.
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2. Upon termination or cancellation of Subscriber's service, Subscriber
shall promptly return Grantee's property to Grantee in the same condition as received,
reasonable wear and tear excepted.
3. Grantee may apply the security deposit against any sum due from
Subscriberfor loss of or damage to such converter orterminal exceeding reasonable wear
and tear. In the event that no security deposit has been required, the Grantee may charge
the Subscriber for any such damage exceeding reasonable wear and tear.
4. If Grantee has no claim against the Subscriber's security deposit,
Grantee shall return it, or the balance, to the Subscriber within twenty (20) days of return
of the converter or terminal.
Sec. 7-2.07 DESIGN AND CONSTRUCTION.
(a.) System Construction. The System shall be constructed in accordance with
the provisions of the Franchise.
(b.) Construction Components and Techniques. Construction components and
techniques shall be in accordance with the Franchise and all applicable law.
(c.) Construction Notice. Grantee shall give at least forty-eight (48) hours
advance notice to all property owners and to the Grantor prior to installing any above-
ground or underground structures upon easements located on private property. Grantee
shall be a member of Underground Service Alert ("USA"). Grantor shall not modify its
construction requirements subsequent to the completion of construction so as to require
reconstruction or retrofit unless the public health and safety so requires.
(d.) System Construction.
1. The Grantee shall begin to offer Cable Service and any other service
authorized by the Franchise no later than the date specified in the Franchise.
2. A Grantee shall provide a detailed construction plan including an
estimated progress schedule, area construction or reconstruction maps, a System Testing
Plan, and projected dates for offering service to Subscribers.
3. A Grantee shall remove or relocate, at the request of the Grantor and
without expense to the Grantor, any facilities installed, used and maintained under any
franchise if and when made necessary by any lawful change of grade, alignment or width
of any public street, way, alley or place, including the construction of any subway or viaduct
by the Grantor.
4. The City Engineer shall be authorized to direct a Grantee to locate any
conduits and appurtenances as may be reasonably necessary to avoid sewers, waterpipes,
M
conduits or other structures lawfully in or under the streets; and before the work of
constructing any pipes and appurtenances is commenced, the Grantee shall file with said
Engineer plans showing the location thereof, which shall be subject to the approval of said
Engineer; and all such construction shall be subject to the inspection of said Engineer and
done to his reasonable satisfaction. All street coverings or openings of traps, vaults, and
manholes shall at all times be kept flush with the surface of the streets; provided, however,
that vents for underground traps, vaults and manholes may extend above the surface of
the streets when said vents are located in parkways, between the curb and property lines.
5. If any portion of any street shall be damaged by reason of defects in
any of the conduits and appurtenances maintained or constructed pursuant to a franchise,
or by reason of any other cause arising from the operation or existence of any pipes and
appurtenances constructed or maintained under any other grant, said Grantee shall, at its
own cost and expense, immediately repair any such damage and restore such street, or
portion of street, to as good condition as existed before such defect or other cause of
damage occurred, such work to be done under the direction of the City Engineer, and to
his or her satisfaction.
6. A Grantee shall guarantee the integrity, durability and structural
integrity of any street cut repairs necessary for the installation or repair of grantee's facilities
for the life of the street. Grantee shall repair or replace, at no expense to the City, any
failed street cut completed by Grantee or Grantee's subcontractor, as determined by the
City Engineer.
(e.) Geographical Coverage. A Grantee shall construct the Cable System so that
it is capable of providing Cable Service to every Residential Dwelling Unit and other
structures specified in the Franchise within the Franchise Service Area. A Grantee shall
take reasonable steps to accommodate future annexations to the Franchise Service Area
(as defined and provided by the Franchise), with any exceptions requiring specific Grantor
approval. Service shall be provided to Subscribers in accordance with the schedules
specified in the Franchise. The route of separate cables serving institutional subscribers
shall be as approved by Grantor and specified in the Franchise.
(f.) Construction Default. Upon the failure, refusal or neglect of Grantee to cause
any construction, repair, or the terms of any construction permit, or other necessary work
to comply with the terms of the Franchise, thereby creating an adverse impact upon public
safety, Grantor may (but shall not be required to) cause such work to be completed in
whole or in part, and upon so doing shall submit to Grantee an itemized statement of costs.
Grantee shall be given reasonable advance notice of Grantor's intent to exercise this
power, and fifteen (15) days to cure the default. Grantee shall, within thirty (30) days of
billing, pay to Grantor the actual costs incurred.
(g.) Vacation or Abandonment. In the event any street, alley, public highway, or
portion thereof used by a Grantee shall be vacated by the Grantor, or the use thereof
discontinued by a Grantee, upon written notice a Grantee shall forthwith remove its facilities
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therefrom unless specifically permitted to continue the same. On the removal thereof,
Grantee shall restore, repair or reconstruct the area where such removal has occurred, to
such condition as may be required by the Grantor. In the event of any failure, neglect or
refusal of a Grantee, after thirty (30) days' notice by the Grantor, to do such work, Grantor
may cause it to be done, and Grantee shall, within thirty (30) days of billing, pay to Grantor
the actual costs incurred.
(h.) Abandonment in Place. Grantor may, upon written application by Grantee,
approve the abandonment of any property in place by Grantee, under such terms and
conditions as Grantor may approve. Upon Grantor -approved abandonment of any property
in place, Grantee shall cause to be executed, acknowledged, and delivered to Grantor such
instruments as Grantor shall prescribe and approve, transferring and conveying the
ownership of such property to Grantor.
(i.) Removal of System Facilities. In the event that Grantee's Plant is deactivated
for a continuous period of thirty (30) days, without prior written notice to and approval by
Grantor, then Grantee shall, at Grantor's option and demand, and at the sole expense of
Grantee, promptly remove from any streets or other areas all property of Grantee. Grantee
shall promptly restore the streets or other areas from which such property has been
removed to its condition existing priorto Grantee's use thereof; provided that Grantee shall
not be required to remove conduit from underground, where Grantor has determined that
no damage to the surface of any structures will result from such nonremoval.
Movement of Facilities. In the event it is necessary, at Grantor's discretion,
to temporarily move or remove any of a Grantee's property for a public purpose, Grantee,
upon reasonable notice, shall move, at the expense of Grantee, its property as may be
required to facilitate such public purpose. No such movement shall be deemed a taking
of Grantee's property. Nothing herein shall limit the right of Grantee to seek reimbursement
from any party other than Grantor.
(k.) Undergrounding of Cable. Cables shall be installed underground at Grantee's
cost. Previously installed aerial cable shall be installed underground at Grantee's pro rata
cost in concert with other utilities, when those other utilities convert from aerial to
underground construction.
(I.) Facility Agreements. No Franchise shall relieve Grantee of any obligations
involved in obtaining pole or conduit space from any department of Grantor, any utility
company, or from others maintaining utilities in Grantor's streets.
(m.) Extension of Franchise Service Area. If Grantor elects to grant one or more
Franchises hereunder, and if thereafter one or more of the Franchises expires or is
otherwise terminated, Grantor may, if it so elects, require a remaining Grantee, or more
than one, to extend its System to provide service to the Franchise Service Area previously
served under the terminated Franchise, unless Grantee demonstrates to Grantor's
reasonable satisfaction that it is not commercially practicable to do so. The terms and
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requirements of such extension shall not exceed those contained in this Ordinance or in
Grantee's Franchise.
(n.) Repair of Streets and Public Ways. Any and all streets and public ways, and
improvements located within such streets and public ways, disturbed or damaged by a
Grantee or its contractors during the construction, operation, maintenance;:, or
reconstruction of the System, shall be restored at Grantee's expense, and within the time
frame and limits specified by Grantor, to their original condition unless otherwise authorized
in writing by Grantor.
(o.) Erection of Poles Prohibited. Grantee shall noterectany pole on oralong any
street or public way. If additional poles in an existing aerial route are required, Grantee
shall negotiate with the public utility for their installation. Any such installation shall require
the advance written approval of the Grantor. Subject to applicable federal and state law,
a Grantee shall negotiate the lease of pole space and facilities from the existing pole
owners for all aerial construction, under mutually acceptable terms and conditions.
(p.) Reservation of Street Rights. Nothing in a Franchise shall prevent the
Grantor from constructing, repairing, or altering any public work. All such work shall be
done, insofar as practicable, in such manner as not to unnecessarily obstruct, injure or
prevent the free use and operation of any Property of Grantee. However, if any Property
of Grantee shall interfere with the construction, maintenance, or repair of any public
improvement, that property shall be removed or replaced in such manner as directed by
Grantor so that the same shall not interfere with the public work, and such removal or
replacement shall be at the expense of a Grantee.
(q.) No Interference.
Grantee shall not place equipment where it will interfere with existing and future uses
of the streets, public right-of-way, or public property, with the rights of private property
owners, with gas, electric, or telephone fixtures, with water hydrants or mains, with
wastewater stations, with any traffic control system, or any other service or facility that
benefits the Grantor's or its residents' health, safety or welfare.
(r.) Protection of Streets.
Grantee, at its own expense, shall protect streets and public rights -of -ways,
easements, and support or temporarily disconnect or relocate at its sole cost in the same
street or other street or public right-of-way, any property of such Grantee when
necessitated by reason of:
Traffic conditions;
2. Public safety;
3. Temporary or permanent street closing;
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4. Street construction or resurfacing;
5. A change or establishment of street grade;
6. Installation of sewers, drains, water pipes, storm drains, lift stations,
force mains, power or signal lines, and any traffic control system; or
7. Any improvement, construction or repair or any improvement related
to the Grantor's residents' health, safety or welfare.
(s.) Marking of Facilities.
It shall be the responsibility of a Grantee to locate and mark or otherwise visibly
indicate and alert others to the location of its underground cable before employees, agents,
of independent contractors of any entity perform work in the marked -off area. A Grantee
shall participate in and adhere to the practices of Underground Services Alert ("USA") and
provide at least forty-eight (48) hours prior notice to USA prior to any excavation.
(t.) Construction Standards.
1. All construction, installation, maintenance and repair shall treat the
aesthetics of the property as a priority, shall not substantially affect the appearance or the
integrity of the structure, and shall not be installed private property without the property
owner's permission subject to Section 621 of the Cable Act.
2. All underground drops shall follow (to the greatest extent possible)
property lines, and cross property only at right angles unless otherwise permitted by the
property owner, or required due to the physical characteristics of the subsurface, or
required under applicable law. The Grantor may, either by way of a generally applicable
resolution or through the imposition of routing conditions in any Franchise determine the
routing or placement of cable, conduit, Nodes, pedestals, power supplies, vaults, and other
equipment relating to the System.
3. All construction shall be accomplished between the hours specified by
the Grantor in the approved permit or ordinances.
(u.) Payment of Fees.
1. Grantee shall obtain, at its own expense, all permits and licenses
required by local law, rule, regulation or applicable ordinance.
2. As a condition of obtaining all necessary permits and licenses, the
Grantee shall pay all applicable permit fees and, in addition, all of the Grantor's direct labor
and supervisory costs, including customary and reasonable overhead (the "Labor
Payment"). The City Council may, from time to time by resolution, establish the amount of
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said permit fees. To the extent not inconsistent with applicable law, the permit fees shall
be sufficientto reimburse the Grantor for its costs, including the costs of staff, independent
consultants, and related overhead, to review the proposed project, processing permits, plan
check, inspecting the project including the costs of an outside inspector and, where
applicable, the costs of an outside soils engineer or compaction testing expert, and the
costs of any required testing to ensure that the construction adheres to standards of -this
Ordinance, any Franchise, any permit, and any other requirement of the Grantor.
3. Both Grantee and Grantor may hire contractors, at Grantee's sole
expense, to carry out any work under this Agreement. Grantee shall make payment within
ten (10) days of billing from the Grantor. Grantee shall be responsible for any damage
caused by the construction including, but not limited to, damage to the public right-of-way,
private property, streets, existing utilities, curbs, gutters and sidewalks. Grantee shall pay
the Grantor any costs incurred as a result of such damages including repairs made by the
Grantor except for costs incurred as a result of the Grantor's sole negligence or its
employees' and agents' sole negligence. Grantee shall complete restoration of or repairs
to any damage caused by the construction within ten (10) days from the date of written
notice from the Grantor.
4. In lieu of the inspection portion of the Labor Payment or permit fees
described above, at the Grantor's sole option, the Grantor may require Grantee at
Grantee's sole expense, to hire a consultant, who is acceptable to and under the
supervision of the Grantor ("Consultant"), to inspectthe installation of the facilities on behalf
of the Grantor, or provide other services as mutually agreed to by the parties.
(v.) Progress of the Construction.
Grantee, with the Grantor's assistance, shall develop a construction schedule
and submit it to the Grantor at least ninety (90) days prior to the start of work. Prior to the
under -ground construction of any of the Facilities or the installation of any of the Nodes or
Power Supplies, unless otherwise agreed to, Grantee shall furnish detailed plans of the
proposed construction and changes thereto to the Grantor. The proposed node sites must
be approved by the Grantor prior to construction of the underground plant. Depending on
health and safety issues, and input from residents, the Grantor, at its sole discretion, may
require proposed node sites to be relocated by Grantee. In the installation of the Facilities,
Nodes or Power Supplies, Grantee shall comply with the Grantor's standard construction
requirements relating to telephone facilities and other comparable utility installations.
(w.) Construction Notification.
1. Construction Plan. Unless otherwise governed by Grantor's
construction regulations and Ordinances, at least one hundred eighty (180) days prior to
any construction, and from time to time thereafter, Grantee shall file with the City Manager
or other designated employees of the City, a general construction plan describing in detail
the Facilities construction plans, areas to be served, and an estimated time schedule for
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such construction ("Construction Plan"). Grantee reserves the right to modify or change
its Construction Plans at any time in its sole discretion, provided Grantee provides written
notice to the Grantor. Any modifications to construction plans must be reviewed and
approved by the Grantor before modifications can be implemented by Grantee.
2. Notice to the Grantor. The Grantor shall have thirty (30)days following
receipt of the Construction Plan, or changes thereto, to approve or disapprove the
Construction Plan.
3. Notice to Other Providers. Grantee shall provide the Grantor with
general engineering base maps identifying existing underground and aerial utility routes,
streets, parcels, poles, and construction needs including points of connections for existing
residences, potential trench routes, and potential locations for Nodes, amplifiers, and Taps
at least four (4) months in advance of any underground construction, unless otherwise
agreed to, which may be reviewed in advance by any interested party for the purpose of
reducing the impact on the Grantor's infrastructure and for the public's convenience and
shall be approved or disapproved by the Grantor within sixty (60) days of receipt.
4. Traffic Control Plans. Grantee shall furnish detailed traffic control
plans, which shall include site-specific hours of construction, to the City Engineer no later
than thirty (30) days prior to the commencement of any construction activities which may
affect or impact traffic (the "Traffic Control Plan"). The City Engineer shall provide (if any)
comments to Grantee within ten (10) business days of receipt. No construction related
activities may be conducted in the Public Right -of -Way without an approved Traffic Control
Plan.
5. Telephone Contact. During construction, Grantee shall provide the
Grantor a telephone contact number, and staff it during regular business hours, to enable
the Grantor to report any concerns regarding construction of the Facilities. After business
hours such calls will be routed to an on-call supervisor. In the event that the Grantor
reports any concerns to Grantee, Grantee shall respond in a timely manner. Grantee shall
correct within two (2) business days any adverse impact to the Grantors use or operations
or the use or operations of a third party caused by Grantee's construction activities in the
Public Right -of -Way at no cost to the Grantor.
6. Daily Notice. Every working day during construction, Grantee shall
notify the designated Grantor staff member of the location of that next day's construction
activities. The number of concurrent construction locations may be limited by the Grantor.
7. Project Overview.
No later than one hundred and fifty (150) days prior to commencement of
construction, Grantee shall file with the City Manager or other designated employee of the
Grantor a Project Overview which shall contain an assessment of the operation of the
Nodes and Power Supplies, including without limitation, a noise study prepared by a
licensed engineer approved by the Grantor documenting noise generated from the Nodes.
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Once the project has been satisfactorily defined by Grantee as determined
by the Grantor, the Grantor will conduct an initial study to determine the appropriate level
of environmental review. Grantee will submit the final engineering plans to the Grantor for
review and approval prior to the issuance of any permits.
8. Public Communication Plans.
(a) Grantee agrees to develop a public communication plan
("Communication Plan") and submit it to the Grantor for the Grantor's review at least one
hundred and twenty (120) days prior to commencement of construction. The Grantor shall
approve or disapprove the Communication Plan within thirty (30) business days of its
receipt. The Communication Plan shall include the following:
(i) A written notification of property owners adjacent
to Nodes, Power Supplies, amplifiers and taps not less than sixty (60) days prior to the
installation, indicating the proposed location, a photograph of all above -ground Pedestals
and other visible equipment from which their size must be apparent, and a detailed
description of the equipment included within the node including: the electronic
components, natural gas generator, electrical fans, and the anticipated noise levels during
winter and summer months and emergency backup operations. Grantee will provide its
non -toll telephone number and a telephone number of the Grantor which may be called if
the property owner is concerned about the installation.
(ii) A mailing to all residents in a construction area
thirty (30) days in advance of construction activity.
(iii) The hanging of door hangers on all residences in
the construction area seven (7) days prior to immediate construction activity.
(iv) A second written notice to the adjacent property
owner(s) not less than fifteen (15) days prior to installation of such Node, Amplifiers and
Taps which shall have the same information as setforth in subparagraph 9(i) above as well
as the actual date of the installation of such Node, Amplifiers, Power Supplies and Taps.
(b) Grantee shall furnish the Grantor with the specific locations of
the Nodes, Amplifiers and Power Supplies at least sixty (60) days in advance of the
installation of the Nodes. The Grantor will provide notice to property owners at Grantee's
expense. Grantee agrees to participate in any public hearings or meetings scheduled by
the Grantor and will be prepared to answer questions concerning Grantee's proposed
construction of the Facilities. Grantee shall have available at such meetings visual aids as
appropriate such as slides, maps and diagrams. The proposed Node locations in the City
must be approved by the Grantor prior to construction of the underground cable plant.
Depending upon health and safety issues, and input from residents, the Grantor, at its sole
discretion, may require proposed Node, Amplifiers and Power Supply sites be relocated by
Grantee.
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9. Maps and Plans.
Grantee shall maintain accurate maps and improvement plans of the
Facilities, in a manner consistent with telecommunications industry standards and which
can be integrated into the Grantor's Geographic Information System ("GIS"). Grantee sfrall
furnish to the Grantortwo complete sets of as -built construction drawings and a copy of the
drawings in AUTOCAD usable format within sixty (60) days of completion of the
construction of the Facilities. Maps and improvement drawings shall be furnished to the
Grantor and other parties interested in performing work within the Public Right -of -Way,
upon request, at no cost to the Grantor. Grantee shall pothole its Facilities, at its expense,
within fifteen (15) days of receipt of a written request from the Grantor unless Grantee can
certify, with an associated indemnity approved by the City Attorney, the exact location and
depth of the Facilities at the location where potholing is requested.
Sec. 7-2.08 OPERATIONS AND MAINTENANCE.
a. Customer Service.
1. A Grantee shall maintain an office in the Franchise Service Area, or
at such other location as is approved by the Grantor in writing, or as described in the
Franchise. That office must be open during all usual business hours, but in no case less
than forty eight (48) hours per week, including during at least one weekend day per week.
Grantor shall have a publicly listed, non -long -distance -charge telephone number that is in
operation to receive Subscriber Complaints and requests on a 24-hour basis. Current
information shall be maintained of all Complaints and their disposition, and a summary
thereof shall be submitted to Grantor.
2. The Grantee shall respond to requests as follows: (i) within eight (8)
hours after receipt of a request for repairs relating to a Service Interruption affecting at least
ten (10) percent of the Subscribers of the System; (ii) within twenty-four (24) hours after
receipt of requests for service related to all other Service Interruptions; (iii) and within forty-
eight (48) hours for all other complaints and requests for repair. All Cable System related
problems shall be resolved within five (5) business days unless technically infeasible. No
charge shall be made to a Subscriber for such service or repairs, except that Grantee may
charge for service calls not related to its Cable System, or that are caused by the
Subscriber or members of its household, or the Subscriber's agents or guests.
3. The Grantee shall provide a telephone service system to receive all
construction and service complaints. A sufficient number of customer service
representatives shall be provided so that callers are not required to wait more than thirty
(30) seconds before being connected to a customer service representative ninety percent
(90%) of the time, measured quarterly, or to receive busy signals more than three (3)
percent of the time, measured quarterly. The telephone number of the local office shall be
listed in the telephone directory serving the City of San Juan Capistrano. The telephone
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service system shall accept complaints twenty-four (24) hours a day, seven (7) days a
week. The telephone service system shall be capable of generating reports relating to
answer times, response times, hold times, and abandoned calls.
4. Customer service personnel shall identify themselves by first names
immediately.
5. Customers shall have the right to speak with a supervisor, and if none
is available, a supervisor shall return the customer's call within one working day.
6. All officers, agents, or employees of the Grantee, including its
contractors or subcontractors, who come into contactwith members of the public shall wear
on their outer clothing a photo -identification card in a form reasonably acceptable to
Grantor. Grantee shall account for all identification cards at all times. Every vehicle of
Grantee, or its major subcontractors, shall be clearly identifiable as working for Grantee.
7. Grantee shall provide Subscribers with the option of scheduling a four
(4) hour period, either in the morning or afternoon, in which a service call will be made.
8. If a Grantee representative is running late for an appointment with a
customer, or will not be able to keep the appointment as scheduled, the customer will be
contacted and the appointment will be rescheduled, as necessary, at a time which is
convenient forthe customer. The customer has the option of rescheduling the appointment
within a specified two (2) hour period.
(b.) Remedies for Inadequate Performance. Except for rebuild or planned Service
Interruptions for which Grantee receives prior approval from the Grantor, in the event that
one-third or more of its service to any Subscriber is interrupted for six (6) consecutive
hours, or fora total of twelve (12) nonconsecutive hours within any thirty (30) day period,
and Subscriber notifies Grantee of said Service Interruption within twenty-four (24) hours
of Subscriber discovery thereof, Grantee shall provide a ten percent (10%) rebate of the
monthlyfees to affected Subscribers foreach such consecutive six-houror nonconsecutive
twelve-hour Service Interruption period. Grantor shall provide a fifty percent (50%) rebate
of the monthly fees to all affected Subscribers for each failure to make a service call within
the specified four (4) hour period. In no case shall such rebate exceed the monthly fee
charged to the Subscriber.
(c.) Biennial Audit of Performance.
1. Grantor may require, at its option, that performance audits of the
System be conducted every two (2) years by an independent technical consultant selected
and employed by Grantor to verify that the System complies with all technical standards
and other specifications of the Franchise.
2. Upon completion of a performance audit, the Grantor and Grantee
shall meet to review the performance of the Cable System. The reports required by this
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Ordinance regarding Subscriber complaints, the records of performance audits and tests,
and the opinion survey report shall be utilized as the basis for review. In addition, any
Subscriber may submit complaints prior to or during the review meetings, either orally or
in writing, and these shall also be considered.
3. Within thirty (30) days afterthe conclusion of the System performance
review meetings, Grantor shall issue findings with respect to the adequacy of System
performance and quality of service. If areas of non-compliance are found, Grantor may
direct Grantee to correct the non-compliance within such period of time as Grantor
determines is reasonable.
4. Participation by the Grantor and the Grantee in this process shall not
waive any rights they may possess under applicable federal or state law.
5. In addition to the Biennial Audit described above, Grantor may conduct
an annual audit of the same or lesser magnitude, at its sole expense, when and if
determined necessary or appropriate by Grantor.
(d.) System Technical Data. Grantee shall provide Grantor with a computer disk
or other data storage device requested by Grantor, in format approved by Grantor, which
details and documents all of Grantee's equipment and facilities and their geographic
location in the City. Such computer disk or other device shall be in a format specified by
the City and data shall be updated annually and whenever there have been significant
changes in the location of Grantee's equipment and facilities. In addition, Grantee shall
maintain in its local office, a complete and up-to-date set of as -built system maps upon
completion of construction or reconstruction, equipment specification and maintenance
publications, and signal level diagrams for each active piece of electronic equipment in the
system. As -built drawings shall show all lines and installed equipment, and tap values and
spigots. The scale of maps and drawings shall be sufficient to show the required details
in easily readable form and size. Technical data at the local office shall also include
approved pole applications, details and documentation of satellite and microwave
equipment, mobile radio units, heavy construction vehicles and equipment, and video and
audio equipment normally used in the operation of the system. If Grantor requires use of
technical data in its own offices, it may make copies of any items at Grantor's expense.
(e.) Availability of Technical Data. All technical data reasonably necessary to
demonstrate a Grantee's compliance with FCC regulations and the Franchise shall be
available for Grantor's inspection during normal business hours upon two (2) business days
notice. In the event of System failure or other operating emergency, the technical data will
be made available at any time, so long as the provision of said data does not unreasonably
interfere with Grantee's operations.
(f.) Emergency Repair Capability. It shall be Grantee's responsibility to assure
that its personnel, qualified to make repairs, are available at all reasonable times and that
they are supplied with keys, equipment location instructions, and technical information
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necessary to begin repairs upon notification of the need to maintain or restore continuous
service to the System.
(g.) Customer Service Standards and Procedures.
Information to Customers. The Grantee shall, at the time service is
initiated, provide each new Subscriber with written information covering:
(a) The time allowed to pay outstanding bills.
(b) Grounds for termination of service.
(c) The steps the Grantee must take before terminating service.
(d) How the customer can resolve billing disputes.
(e) The steps necessary to have service reconnected after
involuntary termination.
(f) The fact that customer service personnel must identify
themselves by first names immediately.
(g) The fact that Subscribers have the right to speak with a
supervisor, and if none is available, a supervisor shall return the Subscriber's call within
one (1) working day.
(h) The appropriate regulatory authority with which to register a
complaint and how to contact that authority.
In addition, at least once each calendar year, Grantee shall notify each Subscriber
that information is available upon request concerning items (a) through (h) above.
2. Written Notices.
Written notice of all terms of the customer agreement, the name, address and
telephone number of the Cable Operator, all equipment and fee options, the availability of
A/B switches, the availability of parental control devices, any reduced rates for seniors or
other Subscribers, company billing and credit practices, company practices with respect
to privacy of Subscribers, the telephone numbers for customer complaints, the telephone
number of the Grantor, and other relevant information, shall be made by Grantee to
Subscribers before service is commenced, at least once each calendar year, at any time
upon the request of the Subscriber, and whenever changes to such policies are made.
3. Advance Notice of Changes.
Except as otherwise provided by applicable law, advance notice of increases
in fees or charges, and changes in channel lineup of stations or services, shall be sent to
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Grantor and to Subscribers at least thirty (30) days before the changes are made, except
for changes not known sufficiently in advance by Grantee and not under Grantee's control,
or where Grantor's waiver is obtained. Notices must be clearly identified and in print large
enough to be easily readable.
4. Billing.
(a) Billing Frequency and Format. Bills for service shall be
rendered monthly unless service is rendered for a period less than one (1) month. All bills
shall contain a telephone number and a mailing address for billing inquiries or disputes and
shall clearly delineate all changes and the basis for those changes.
(b) Disputed Bills.
(1) In the event of a dispute between a Subscriber and the
Grantee regarding the bill, the Grantee shall promptly make such investigation as is
required by the particular case and report the results to the Subscriber. If the dispute is not
resolved to the satisfaction of both parties, the Grantee shall inform the Subscriber of the
Grantee's complaint procedures. If the Subscriber wishes to obtain the benefits of
subparagraphs (2) and (3) of this subparagraph (b), notification of the disputed bill must be
given by the Subscriber to the Grantee in writing within thirty (30) days after the bill date.
(2) The Subscriber shall not be required to paythe disputed
portion of the bill until the earlier of the following:
(i) Resolution of the dispute; or
(ii) Expiration of the forty-five (45) day period
beginning on the date of the Subscriber's written notification, provided that the procedures
established in subparagraph (1) above have been followed.
5. Suspension of Collection Efforts. Pending resolution of the billing
dispute, Grantee shall ensure that no termination notices are issued for the disputed
portions of the bill, and that no other collection procedures are initiated for the disputed
amount. Any such activity may be interpreted as an attempt to avoid the provisions of
these rules and may constitute a violation of these rules.
6. Referral of Accounts to Collection Agencies.
(a) Uncollected accounts may be referred to private collection
agencies for appropriate action if the bill has not been paid by the earlier of (i) thirty (30)
days following date of involuntary termination; or (ii) the sixty-first (61 st) day following the
billing date of the original uncollected amount, provided that no notification of a billing
dispute has been made.
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(b) If the account was voluntarily terminated by Subscriber, for any
reason, the account may not be referred to a private collection agency until at least thirty
(30) days following submission of the final bill. If notification of a billing dispute is made,
all collection procedures shall be delayed as required in subsection 4(b) entitled "Disputed
Bills" Referral to a collection agent shall then occur no sooner than the ninety-first (91st)
day following the billing date of the original uncollected amount.
7. Termination for Non -Payment.
Bills shall not be delinquent earlier than twenty-two (22) days from the date
of the bill, which must be mailed to Subscribers within five (5) working days prior to the
stated due date. Subscribers must be notified in writing of a proposed disconnection for
non-payment at least fifteen (15) days prior to disconnection.
(h.) Refund. When a Subscriber voluntarily discontinues service, Grantee shall
refund, within 20 days of the discontinuance of service, the unused portion of any advance
payments after deducting any charges currently due through the date of such
discontinuance. Unused payment portions shall be the percentage of time for which
Subscriber has paid for service and will not receive it because of the Subscriber's
discontinuation of service.
Sec. 7-2.09 VIOLATIONS.
(a.) Use of Public Streets. From and after the effective date of this Ordinance,
it shall be unlawful for any person to construct, install, or maintain in any public place within
Grantor's territory, or upon any easement owned or controlled by a public utility, or within
any other public property of Grantor, or within any privately -owned area within Grantor's
jurisdiction which is not yet, but is designated as, a proposed public place on a tentative
subdivision map approved by Grantor, any equipment, Facilities, or System for distributing
signals or services through a cable television system, unless a Franchise has first been
obtained hereunder, and is in full force and effect.
(b.) Unauthorized Connections. It shall be unlawful for any person to make or use
any unauthorized connection to, or to monitor, Tap, receive or send any signal or service
via a franchised System, or to enable any Person to receive or use any service, television
or radio signal, picture, program, or sound, or any other signal without payment to the
owner of said System.
(c.) Tampering with Facilities. It shall be unlawful, without the consent of the
owner, to willfully attach to, tamper with, modify, remove or injure any physical part of or
signals on a franchised Cable Television System.
Sec. 7-2.10 TERMINATION AND FORFEITURE.
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(a.) Revocation. Consistent with applicable law, and in addition to any rights set
out elsewhere in this Ordinance, the Grantor reserves the right to revoke a Franchise,
subject to the procedural guidelines set forth in Section 7-2.13 of this Ordinance, in the
event that:
1. A Grantee willfully or negligently, on a repeated basis, violates any
material provision of this Ordinance or its Franchise.
2. A Grantee's construction schedule, as set forth in any Franchise, is
materially delayed, and such delay is within the control of Grantee.
(b.) Forfeiture. Upon failure of a Grantee to comply with any material term of this
ordinance or its Franchise, the Grantor may, subject to the procedural guidelines set forth
in Section 7-2.13 of this Ordinance, declare a forfeiture. A Grantee may be required to
remove its structures or property from the Grantor's streets and to restore those streets to
their prior condition within a reasonable period of time. Upon failure to do so, the Grantor
may perform the work and collect all costs, including direct and indirect costs, from a
Grantee. At Grantor's discretion, the cost thereof may be placed as a lien upon all plant,
property, or other assets of a Grantee.
Sec. 7-2.11 FRANCHISE APPLICATIONS.
Applicants for a Franchise shall submit to the Grantor, or to its designated
representative, written application in a format provided by the Grantor, at the time and
place specified by the Grantor for accepting applications, and accompanied by the
designated application fee. A nonrefundable application fee, established by resolution of
the Grantor, shall accompany the application to cover all costs associated with processing
the application, including without limitation, costs of administrative review, financial, legal
and technical evaluation of the applicant, the costs of consultants (including technical and
legal experts), notice and publication requirements, and document preparation expenses.
In the event such costs exceed the application fee, the applicant shall pay the difference
to Grantor within twenty (20) days following receipt of an itemized statement of such costs.
This provision is procedural and shall not constitute the grant of any right to a Grantee.
Sec. 7-2.11 RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT; EXPERTS.
(a.) Grantee to Provide Records. All reports and records required under this
Section shall be furnished at the sole expense of Grantee.
(b.) Records. Grantor must maintain in its local offices, and make available for
inspection during normal business hours, a separate and complete set of business records
for the Franchise. The Grantee shall provide that information in such form as may be
required by the Grantor, as well as copies of any records of Grantee upon Grantor's
request, so long as said information is directly or indirectly related to the scope of Grantor's
rights under this Ordinance, the Franchise, or Grantor's regulatory functions.
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(c.) Maintenance and Inspection of Records. Grantee shall keep true and
accurate books and records in conformity with generally accepted accounting principles,
consistently applied, located in the Franchise Area that reasonably demonstrate a
Grantee's compliance with the obligations set forth in its Franchise. Grantor shall, upon two
(2) business days notice, have the right to inspect said records and receive copies thereof
to the extent said information is reasonably related to the scope of the Grantor's rights
under this Ordinance, the Franchise, or the Grantor's regulatory functions. Any Grantee
records kept at another place shall, within ten (10) days of Grantor's request, be made
available at Grantee's local premises within the County of Orange.
(d.) Reports of Financial and Operating Activity.
1. No later than ninety (90) days after the close of Grantee's fiscal year,
Grantee shall submit an audited written report to the Grantor which shall include:
(a) A financial report, audited and certified by a financial officer of
Grantee, for all Cable System activity during the previous fiscal year, including gross
receipts from all sources and gross subscriber revenues from each service. The report
must set out separately all gross receipts from all sources in the City and gross subscriber
revenues from each service in the City, and all payments, deductions, and computations
of franchise fees.
(b) A summary of the previous year's activities, including, but not
limited to, subscriber totals and new services offered and System construction activity.
(c) A current list of Grantee's officers, directors, and other principals
if there has been any change in the previous year.
(d) A list of stockholders or other equity investors holding five
percent (5%) or more of the voting interests in Grantee if there has been any change in the
previous year.
(e) Asummaryof complaints received and remedial actionstaken.
2. Performance Tests and Compliance Reports. No later than April 15
of each year, the Grantee shall provide a written report of any FCC or other performance
tests required or conducted. In addition, the Grantee shall provide reports of the test and
compliance procedures required by its Franchise, or by this Ordinance, no laterthan thirty
(30) days after the completion of those tests and compliance procedures.
3. Additional Reports. The Grantee shall prepare and furnish to the
Grantor in writing, at the times and in the form prescribed by Grantor, such additional
reports or information as Grantor may reasonably require to confirm and verify Grantee's
compliance with the provisions of its Franchise and this Ordinance.
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(e.) Examination of Facilities. Upon two (2) business days notice, and during
normal business hours, Grantee shall permit examination, by any duly authorized
representative of Grantor, of all Franchise property and facilities, together with any
appurtenant property and facilities of Grantee situated within the Public Rights -of -Way
which are directly or indirectly related to the Cable System. 1.
(f.) Right to Audit.
1. In addition to any other inspection rights under this Ordinance or the
Franchise, upon thirty (30) days prior written notice, Grantor shall have the right to inspect,
examine, or audit, during normal business hours, all documents pertaining to a Grantee or
any Affiliated Person which are reasonably necessaryto ascertain a Grantee's compliance
with its Franchise or this Ordinance. Grantor may not exercise said right more frequently
than once in any twelve (12) month period. All such documents shall be made available
at the local office of a Grantee. All such documents pertaining to financial matters which
may be the subject of an audit by the Grantor as set forth herein shall be retained by a
Grantee for a minimum of five (5) years during the term of and following the termination of
a Franchise. Access by the Grantor to any of the documents covered by this paragraph
g shall not be denied by the Grantee on grounds that such documents are alleged by the
Grantee to contain proprietary information.
2. Grantor may require written certification by a Grantee's directors,
officers, or other employees with respect to all documents referred to in this paragraph g.
3. Any audit conducted by the Grantor pursuant to this paragraph g shall
be conducted at the sole expense of the Grantor, and the Grantor shall prepare a written
report containing its findings, a copy of which shall be mailed to a Grantee; provided,
however, that a Grantee shall reimburse the Grantor for the expense of any such audit if,
as the result of said audit, it is determined that there is a shortfall of more than two percent
(2%) in the amount of franchise fees or other payments which have been made or will be
made by a Grantee to the Grantor pursuant to the terms of the Franchise.
(h.) Retention of Experts. In the exercise of its rights under this Ordinance, the
Grantor shall have the further right to retain technical experts and other consultants on a
periodic basis for the purpose of monitoring, testing, and inspecting any construction,
operation, maintenance or reconstruction of the System, and all parts thereof, or to ensure
compliance with and enforcement of the provisions of this Ordinance and the Franchise.
The Grantor shall bear the cost of retaining such experts, provided that the Grantee shall
reimburse the Grantor for all expenses related to the retention of said experts where this
Ordinance or the Franchise so provide, or under either of the following circumstances:
1. The Grantee has initiated proceedings which would normally require
the Grantor to retain such experts, such as the filing of a request for approval of a transfer
or change in Control, renewal to the extent allowed by law, expansion of the Franchise
Service Area, or the modification or amendment of the Franchise; or
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2. The reports of such experts submitted to the Grantor reveal that the
Grantee has failed to substantially comply with the terms and conditions of this Ordinance
or of the Franchise.
If Grantee is required to reimburse Grantor pursuant to this paragraph h, Grantor
shall send Grantee an itemized description of such charges, and Grantee shall pay such
amount within twenty (20) days after the receipt of such description.
Sec. 7-2.13 ENFORCEMENT MECHANISM.
(a.) Notice and Hearing for Franchise Default.
1. Unless otherwise provided in this Ordinance or in the Franchise, prior
to formal consideration by Grantor of termination, revocation, or forfeiture of Grantee's
Franchise, or any other penalty or administrative remedy available to the Grantor, including
liquidated damages, attributable to Grantee's failure, willful, negligent, or otherwise, to
adhere to the terms and conditions of the Franchise or this Ordinance, Grantor shall make
written demand on Grantee to correct the alleged default. Such written demand shall
identify with specificity the alleged default, including the provision of the Franchise,
Ordinance, or regulation that is being violated, and the necessary action to cure the default.
Grantor and Grantee shall expeditiously meet to discuss the alleged default, at which time
Grantee shall indicate, in writing, the amount of time necessary to resolve the alleged
problem. Giving due consideration to Grantee's request, Grantor shall, in writing, state the
amount of time Grantor will allow Grantee to resolve the problem. During this time period,
but in no event less than ten (10) days before the final date for correction, Grantee may
request additional time to correct the problem, and Grantor shall grant said request if
Grantor determines, in the exercise of its discretion, that such time is necessary due to
delays beyond Grantee's control. If the default continues for a period of ten (10) days
following the deadline for corrections, plus any extension thereof, a hearing before the
legislative body of the Grantor shall be scheduled by Grantor on such Franchise
termination, revocation, forfeiture, or any other penalty or administrative remedy.
2. The Grantor shall provide written notice of such hearing, to a Grantee
no less than ten (10) days before the hearing on the matter. Within five (5) days after the
receipt of said notice, Grantee shall file any written objections to said notice. Any
objections not raised within said five (5) day periods shall be deemed waived. At the
hearing, Grantor shall hear Grantee, and any person interested in the matter, and shall
determine, at that or subsequent public meetings, an appropriate course of action for
enforcement or termination of Grantee's Franchise.
(b.) Delegation of Enforcement Mechanisms. Such liquidated damages as
Grantor may assess against Grantee pursuant to a Grantee's Franchise which do not
include loss of the Franchise may, at Grantor's option, be determined by an officer or
agency of the Grantor to which it may delegate such administrative decisions, subject to
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due process and the criteria contained in this Ordinance and the Franchise, and subject to
appeal to the City Council.
Sec. 7-2.14 MISCELLANEOUS PROVISIONS.
(a.) Captions. The section, subsection, paragraph, and subparagraph numbers
and letters, and the captions throughout this Ordinance, are intended to facilitate reading
and reference. Such numbers, letters, and captions shall not affect the meaning or
interpretation of any part of this Ordinance.
(b.) Franchise References. A Franchise which cites, refers to, or otherwise
incorporates this Ordinance, or portions thereof, shall be deemed to be a Franchise issued
under and subject to this Ordinance.
(c.) Filing. When not otherwise specified in this Ordinance, all documents
required to be filed with Grantor shall be filed with the Grantor's representative as
designated by Grantor.
(d.) Non -enforcement by the Grantor. A Grantee shall not be relieved of its
obligation to comply with all provisions of this Ordinance, and of its Franchise, and all laws
and regulations, by reason of any failure of the Grantor to demand prompt compliance.
(e.) Continuity of Service. It is the right of all Subscribers to receive Cable
Services so long as their financial and other obligations to a Grantee are honored. In the
event that a Grantee elects to rebuild, modify, or sell the System, a Grantee shall use due
diligence and reasonable care to ensure that all Subscribers receive continuous,
uninterrupted service. In the event of a transfer of the System by Grantee, the current
Grantee shall cooperate with the Grantor or new Grantee to operate the System for a
temporary period, in order to maintain continuity of service to all Subscribers. In the event
that Grantee, through its own fault, discontinues system -wide service for seventy-two (72)
continuous hours, and Grantee is in material default of its Franchise, or if the Franchise is
revoked by Grantor (but not if Grantor fails to renew the Franchise), Grantor may, by
resolution, when it deems reasonable cause to exist, assume operation of the System for
the purpose of maintaining continuity of service. Grantor's operation of the System may
continue until the circumstances which, in the judgment of the Grantor, threaten the
continuity of service are resolved to Grantor's satisfaction. Grantor shall be entitled to the
revenues for any period during which it operates the System.
(f.) Operation By Grantor. During any period when the System is being operated
by Grantor pursuant to paragraph a above, Grantor shall, as it may deem necessary, make
any changes in any aspect of operations that, in Grantor's sole judgment, are required for
the preservation of quality of service and its continuity.
(g.) Management By Grantor. Grantor may, upon assuming operation of a
System franchised hereunder, appoint a manager to act for it in conducting the System's
affairs. Such manager shall have such authority as may be delegated by Grantor and shall
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be solely responsible to Grantor for management of the System. Grantee shall reimburse
Grantor for all its reasonable costs, in excess of System revenues, incurred during
Grantor's operation if the Franchise is in full force and effect during the period of Grantor's
operation.
(h.) Notices. All notices and other communications to Grantee shall be addressed
to it at the local address at which Grantee conducts its business or as otherwise set forth
in the Franchise. All notices and other communications to Grantor shall be addressed to
32400 Paseo Adelanto, San Juan Capistrano, City Hall, or such other address as may be
designated by Grantor.
(i.) Force Majeure; Grantee's Inability to Perform. In the event Grantee's
performance of any of the terms, conditions, obligations, or requirements of this Ordinance,
or any Franchise granted hereunder, is prevented or impaired due to any cause beyond its
reasonable control and not reasonably foreseeable, such inability to perform shall be
deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof.
Such causes beyond Grantee's reasonable control and not reasonably foreseeable shall
include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes, utility
interruptions, inability to obtain access to an individual's property on reasonable terms, and
any inability of a Grantee to secure all required authorizations or permits to utilize
necessary poles or conduits, so long as Grantee uses due diligence to timely obtain said
authorization or permits.
Q.) Application. All of the provisions of this Ordinance shall be applicable to all
Cable Operators and Cable Systems to the greatest extent permissible under applicable
law.
(k.) Severability. If any provision of this Ordinance is determined to be void or
invalid by any administrative or judicial tribunal, said provision shall be deemed severable
and such invalidation shall not invalidate the entirety of this Ordinance or any other
provision thereof.
SECTION 2. City Clerk's Certification.
The City Clerk shall certify to the adoption of this Ordinance and cause the
same to be posted at the duly designated posting places within the City and published once
within fifteen (15) days after passage and adoption as required by law; or, in the alternative,
the City Clerk may cause to be published a summary of this Ordinance and a certified copy
of the text of this Ordinance shall be posted in the Office of the City Clerk five (5) days prior
to the date of adoption of this Ordinance; and, within fifteen (15) days after adoption, the
City Clerk shall cause to be published the aforementioned summary and shall post a
certified copy of this Ordinance, together with the vote for and against the same, in the
Office of the City Clerk.
PASSED, APPROVED AND ADOPTED this 21 st day of January 2003.
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JOH S. G F-, MAYOR
--
ATTEST:
AREMAR CARET R. MONAHAN, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do
hereby certify that the foregoing is a true and correct copy of Ordinance No. 872 which was
regularly introduced and placed upon its first reading at the Regular Meeting of the City
Council on the 7th day of January 2003 and that thereafter, said Ordinance was duly adopted
and passed at a Regular Meeting of the City Council on the 21st day of January 2003 by the
following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES COUNCIL MEMBERS:
ABSENT: COUNCI MEMBERS:
Hart, Bathgate, Swerdlin, Soto and Mayor Gelff
None
None
City Clerk
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