Ordinance Number 327431
ORDINANCE NO. 327
CABLE TELEVISION SYSTEMS
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, ESTABLISHING RULES AND REGULATIONS FOR
CABLE TELEVISION SYSTEMS
THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO DOES ORDAIN
AS FOLLOWS:
Sections:
1. Definitions
2. Franchise to install and operate
3. Designated service area
4. Cable television service
5. Use of utility poles and facilities
6. Location of property of grantee
7. Changes required by public improvements
8. Failure to perform street work
9. Franchise payments
10. Franchise terms: duration, renewal, renegotiation,
and termination
11. Application for franchise
12. Bonds: Indemnifications, insurance
13. Acceptance of franchise
14. Limitations of franchise; includes transfer
conditions
15. Rights reserved to City
16. Council to adopt rules and regulations
17. Permits and construction
18. Miscellaneous provisions
19. Removal and abandonment of property of grantee
20. Effect of annexations
21. Equal opportunity employment and affirmative
action plan
22. Violations
23. Severability
24. Effective date
25. Clerk's Certification
SECTION 1. Definitions
For the purposes of this Ordinance and the franchises
issued pursuant to it, the following terms, phrases, words,
abbreviations, and their derivations shall have the meaning
herein.
(A) "Cable Television System" or "CATV System" or
"CATV", for the purpose of this Ordinance means and includes any
facility that, in whole or in part, receives directly, or
indirectly over the air, and amplifies or otherwise modifies the
signals transmitting programs broadcast by one or more television
or radio stations and distributes such signals by wire or cable
to subscribing members of the public who pay for such service,
but such term shall not include (1) any such facility that
serves fewer than 50 subscribers, or (2) any such facility that
serves only the residents of one or more apartment dwellings
under common ownership, control, or management, and commercial
establishments located on the premises of such an apartment
house.
Any modified definition of a cable television system
approved by the Federal Communications Commission (hereinafter
"FCC") subsequent to the adoption of this Ordinance shall
immediately apply to all the terms and conditions of this
Ordinance and shall completely supersede all previous definitions
for the purpose of interpreting this Ordinance.
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(B) "City" shall mean the City of San Juan Capistrano,
a municipal corporation of the State of California, in its
present incorporated form or in any later reorganized,
consolidated, enlarged or re -incorporated form.
(C) "Council" shall mean the present governing body
of the City of San Juan Capistrano or any future board
constituting the legislative body of the City.
(D) "Chief Administrative officer" shall mean the
City Manager, City Administrator, or other designation of the
City's Chief Executive Officer, or any designee thereof.
(E) "Person" shall mean any natural person and all
domestic and foreign corporations, associations, syndicates,
joint stock corporations, partnerships of every kind, clubs,
business or common law trusts, and societies.
(F) "Grantee" shall mean the person, firm or
corporation granted a franchise by the Council under this
Ordinance, and the lawful successor, transferee or assignee of
said person, firm or corporation.
(G) "Street" shall mean the surface, the air space
above the surface and the area below the surface of any public
street, or other public right-of-way or public place, including
public utility easements.
(H) "Property of Grantee" shall mean all property
owned, installed, or used within the City by a Grantee in the
conduct of a cable television system business under the authority
of a franchise granted pursuant to this Ordinance.
(I) "Subscriber" or "User" shall mean any person or
entity receiving for any purpose any service of the Grantee's
cable television system including, but not limited to, the
conventional cable television system service of transmission of
television broadcast, radio signals, original cablecasting, and
the local government, education and public access channels; and
other services, such as leasing of channels, data and facsimile
transmission, pay television, and police, fire and similar
public service communications.
(J) "Gross Annual Receipts" shall mean any and all
compensation received directly or indirectly by the Grantee
including: installation fees; disconnect and reconnect fees;
rental fees (including but not limited to deposits accepted by
Grantee); fees for the transmission of broadcast signals and
access and origination channels, if any; per -program or
per -channel charges; leased channel revenues; or any other
income derived from the system. Gross Revenue shall exclude
all sales taxes and excise taxes payable by the Grantee to
Federal, State or County governments as a direct result of
operations under this Ordinance. Refunds and deposits shall be
deducted from current gross revenues upon return.
(K) "Gross Annual Subscriber Receipts" shall mean
only those revenues derived by the Grantee from the supplying
of regular subscription service and shall include: installation
fees; disconnect and reconnect fees; rental fees (including but
not limited to deposits accepted by Grantee); and fees for the
transmission of broadcast signals and access and origination
channels, if any.
Gross Annual Subscriber Receipts shall not
include revenues derived from per -program or per -channel charges,
leased channel revenues or other income derived from the
system. It shall exclude all sales taxes and excise taxes
payable by Grantee to Federal, State or County governments as
direct result of operations under this division. Refunds and
deposits shall be deducted from current Gross Subscriber
Revenues upon return.
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(L) "Gross Annual Advertising Receipts" shall mean
any income, compensation and other consideration received by
Grantee derived from any form of advertising.
(M) "Gross Annual Lease Receipts" shall mean any
fees or income received by Grantee for the lease or rental, and
compensation for any service in connection therewith, such as
studio and equipment rental and production costs, of any channel
permitted or designated by the Federal Communications
Commission to be so leased or rented.
(N) "Cable TV Board" shall mean a body of persons
acting under Council authority as established in this Ordinance.
SECTION 2. Franchise To Install and
(A) A non-exclusive franchise to install, construct,
operate, and maintain a cable television system on streets
within all or a specific portion of the City may be granted by
the Council to any person, whether operating under an existing
franchise, who or which offers to furnish and provide such
system under and pursuant to the terms and provisions of this
Ordinance.
(B) When and in the event that the Grantee of any
franchise granted hereunder uses in his cable television system
distribution channels furnished to the Grantee by a telephone
company pursuant to tariff or contract on file with a regulatory
body having jurisdiction and said Grantee makes no use of the
streets independent of such telephone company furnished facilities,
said Grantee shall be required to comply with all of the provisions
hereof as a "Licensee" and in such event whenever the term
"Grantee" is used herein it shall be deemed to mean and include
"Licensee."
SECTION 3. Designated Service Area
(A) The franchises granted by the City pursuant to
this Ordinance are non-exclusive and authorize the Grantee to
construct, operate and maintain a CATV system only within the
discreet area of San Juan Capistrano particularly described in
the franchises. Additions or deletions to the designated ser-
vice area will be made only upon the prior authorization of the
City Council, such authorization to be based on a technical
performance sheet, a copy of which will be attached to the
franchise as Exhibit "A."
(B) The Grantee is required to construct, operate
and maintain a CATV within the entire designated service area
as provided herein unless the City Council approves, as part of
the franchise, a policy of construction which requires less
than the complete wiring of the designated service area and
provided that such policy shall be adopted only after a full
public proceeding which includes specific notice of the
consideration of such a policy.
No provisions
construed as to require
opinion of the Council
grant it or to restrict
SECTION 4
of this Ordinance may be deemed or
the granting of a franchise when in the
it is in the public interest to decline to
the number of grantees.
Cable Television Service
(A) Prohibitions. Grantee shall not perform, nor
cause to be performed, any of the following acts without first
obtaining City Council approval:
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(1) Add, delete, or change received channels;
(2) Add, delete, or change distributed channels
or channel conversion;
(3) Change the location of the headend or
antenna site;
(4) Change location of center for origination
of programs and installation of bi-directional
facilities or additional lines to make
connections to headend;
(5) Interconnect with other cable systems;
(6) Add new ancillary services;
(7) Change subscriber billing practices;
(8) Grantee shall not relocate its office without
first notifying the City of San Juan
Capistrano.
This provision shall not apply in any instance where
the Grantee provides the City with an order of the Federal
Communications Commission requiring that the change be made
except that Grantee must then give the City thirty (30) days
advance notice.
(B) Basic Service. The cable television system
permitted to be installed and operated hereunder shall:
(1) Be operationally capable of relaying to
subscriber terminals those television and radio broadcast
signals for the carriage of which the Grantee is now or hereafter
authorized by the Federal Communications Commission;
(2) Be constructed with the potential of two-
way digital signal transmission;
(3) Distribute color television signals which
it receives in color;
(4) Provide as a minimum, the local access
channel capacity now and hereinafter required by the Federal
Communications Commission for systems operation in the top 100
markets. This shall not be less than one VHF channel for
composite use, including use by local government, educational
institutions, and the public;
(5) Have a minimum capacity of 20 channels;
(6) Include all necessary equipment and operational
capacity for the emergency transmission of audio and video
signals from the headend over all channels simultaneously;
however, the City shall provide the diode switchings and access
equipment.
(C) Non -Basic Services. The cable television system
permitted to be installed and operated hereunder, may also
engage in the business of:
(1) Transmitting original cablecast programming
not received through television broadcast
signals;
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(2) Transmitting television pictures, film and
videotape programs, not received through
broadcast television signals, whether or
not encoded or processed to permit reception
by only selected receivers or subscribers;
(3) Transmitting and receiving all other
signals; digital, voice and audio-visual.
(D) Municipal Service.
(1) With respect to the local access
channel, the Grantee shall provide, at the
request of the Chief Administrative Officer,
use of Grantee's studio, equipment and technical
services for production of live and video-tape
municipal programs, subject to scheduling
requirements of the Grantee.
(2) With respect to the basic television services,
the Grantee shall provide all subscriber
services and a tie-in connection without cost,
when the system passes such facilities and as
designated by Council, to
(i) public schools and community colleges
within the City, and
(ii) buildings owned and controlled by the
the City or County used for public
purposes and not for residential use.
(E) Extension of Services. It is the desire of the City
that cable television service be available to all residents of the
City, insofar as economically and technically possible. The franchise
granted under this Ordinance shall clearly delineate, on a map of
the franchise area, the City streets served by the cable and those
not served, indicating scheduled dates when cable will be installed
in unserved areas, and specifying penalties for failure to comply
with completion dates.
(F) Investigation And Resolution Of Complaints. In
addition to other service regulations adopted by the Council, the
following shall apply:
(1) The Grantee shall maintain a local office
which is no farther from San Juan Capistrano
than is the current office and which shall
be open during all normal business hours,
with toll-free telephone listed in the
directories of the telephone company
serving the City, and shall be so operated
that complaints and requests for repairs
may be received at any time of the day or
night, seven (7) days a week. All complaints
and inquiries will be investigated and
acted upon as promptly as practical, but
in no event longer than twenty-four (24)
hours after receipt and/or after next
normal shift_
(2) The following procedures shall be adopted
by the Grantee and the City for investigation
and resolution of complaints:
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(i) Grantee shall maintain a written
record or log of all complaints received
from indivudual subscribers, other
than complaints regarding substantial
system failure. The log shall show the
date and time of the complaint and the
name and address of the complainant, and
shall describe the nature of the complaint
and the action taken to resolve the
complaint.
(ii) Grantee shall maintain a separate written
record of substantial system failures,
showing the date and time of such failure,
describing the nature of the failure and
recording when and what action was taken
to resolve the failure.
(iii) Such records shall show the disposition
of the complaints or substantial system
failure and shall be maintained by the
Grantee for a period of three (3)
years from the date of notice to the
Grantee of the subscriber complaint
or of the substantial system failure.
A copy of any specific subscriber
complaint shall be submitted by Grantee
to the City within two (2) days
following receipt of a written request
by the City official designated to
handle complaints. The Grantee's
records of complaints and substantial
system failures shall be open to
inspection by the City during normal
working hours.
(3) The Grantee shall provide notice of the
procedures for reporting and resolving
complaints to each subscriber at the
time of initial subscription to the cable
system and to each current subscriber on an
annual basis.
(4) In the event of substantial system failure
or individual subscriber complaints where the
signal quality fails to meet the technical
standards established by the Federal
Communications Commission (except when caused
by circumstances outside of the Grantee's
control, such as fire, earthquake, riot, power
failure and other similar circumstances), the
Grantee shall credit or refund to the affected
subscribers an amount equal to one day's
service charges for each day of such system or
signal failure in excess of forty-eight (48)
consecutive hours beginning from the time such
failure is reported to the Grantee. Restoration
of service in cases of circumstance out of the
Grantee's control must be completed as soon as
possible.
(G) Compatibility. It is the desire of the City that
all cable television systems franchised hereunder shall, insofar as
financially and technically possible, be compatible one with
another and with systems adjacent to the City.
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(H) Uses Permitted. Any franchise granted pursuant to
the provisions of this Ordinance shall authorize and permit the
Grantee to engage in the business of operating and providing a
cable television system in the City, and for that purpose to
install, construct, repair, replace, reconstruct, maintain and
retain in, on, under, upon, across, and along any street, such
wires, cable, conductors, ducts, conduits, vaults, manholes,
amplifiers, and appliances, attachments, and other property as may
be necessary and appurtenant to the cable television system; and,
in addition, so to use, operate, and provide similar facilities or
properties rented or leased from other persons, firms or
corporations, including but not limited to any public utility or
other person franchised or permitted to do business in the City.
SECTION 5. Use of Utility Poles and Facilities
(A) When any portion of Grantee's CATV system is to be
installed on utility poles and facilities within public property or
right-of-way, a copy of the agreement for the use of poles and
facilities shall be filed with the Director of Public Works.
(B) Where the system is to be installed overhead on
existing utility facilities, no additional poles shall be installed
either by the Grantee or by the utility for the specific purpose of
supporting or extending the CATV system without the approval of the
Director of Public Works.
SECTION 6. Location of Property of Grantee
(A) Any poles, cable wires, conduits, or other
properties of the Grantee to be constructed or installed in
streets, shall be so constructed or installed only at such
locations and in such manner as shall be approved by the Director
of Public Works, acting in the exercise of his reasonable
discretion.
(B) The Grantee shall not install or erect any facilities
or apparatus in or on other public property, places or rights-of-
way, or within any privately -owned area within the City which has
not yet become a public street but is designated or delineated as a
proposed public street on any tentative subdivision map approved by
the City, except those installed or erected upon public utility
facilities now existing, without obtaining the prior written
approval of the Director of Public Works.
(C) In those areas and portions of the City where
the transmission or distribution facilities of both the public
utility providing telephone service and those of the utility
providing electric service are underground or hereafter may be
placed underground, then the Grantee shall likewise construct,
operate and maintain all of its transmission and distribution
facilities underground. For the purposes of this subsection,
"underground" shall include a partial underground system, e.g.
streamlining. Amplifiers and taps in Grantee's transmission and
distribution lines may be in appropriate housings upon the
surface of the ground as approved by the Director of Public
Works.
(D) Grantee shall give at least two days' notice on
cable burial and shall relocate, alter or otherwise conform to
the needs of the City when the City's underground service
facilities are involved.
(E) Where the system is to be undergrounded, the
cable shall be buried not less than eighteen inches from the
surface and crossings of arterial highways as shown on the
City's circulation element shall not be open -trenched unless
specific approval is given by the Director of Public Works.
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(F) The Grantee shall conform to all relevant provisions
of law of the Federal and State government and the City.
(G) The Grantee's CATV antenna shall be located at
the end of Talvera Drive in Laguna Niguel for Storer and the
end of Trabuco Creek Road for TM Cablevision.
SECTION 7. Changes Required by Public Improvements
The grantee shall at its expense, protect, support,
temporarily disconnect, relocate in the same street or public
place, or remove from the street or other public place, any
property of the Grantee when required by the Director of Public
Works by reason of traffic conditions, public safety, street
vacation, freeway and street construction, change or establishment
of street grade, installation of sewers, drains, water pipes,
power lines, signal lines, and tracks or any other type of
structures or improvements by public agencies; provided, however,
that the Grantee shall in all such cases have the privileges
and be subject to the obligations to abandon any property of
the Grantee in place, as provided in Section 17.
SECTION 8. Failure to Perform Street Work
Upon failure of the Grantee to commence, pursue, or
complete any work required by law or by the provisions of
Section 3(B) or by this Ordinance to be done in any street or
other public place, within the time prescribed, and to the
satisfaction of the Director of Public Works, the Director of
Public Works may at his option, cause such work to be done and
the Grantee shall pay to the City the cost thereof in the
itemized amounts reported by the Director of Public Works to
the Grantee within thirty (30) days after receipt of such
itemized report.
SECTION 9. Franchise Payments
(A) In consideration of the granting and exercise of
a franchise to use the streets, as herein defined, for the
operation of a cable television system, any Grantee shall pay
to the City, quarterly, during the life of the franchise a
percentage of its Gross Annual Subscriber Receipts; and at
such time as the FCC shall change its rules to so allow, a
percentage of its Gross Annual Receipts and Gross Annual
Advertising Receipts and Gross Annual Lease Receipts.
(B) The percentage payments shall be made in the
manner, amounts and at times directed in said franchise or in a
Council resolution fixing franchise fees and adopting rules for
service and rate regulations.
(C) Financial statement. The Grantee shall file
with the City, within ninety (90) days after the expiration of
any calendar year during which such franchise is in force, a
financial statement certified by an officer of the Grantee or
a Certified Public Accountant at the discretion of the City
Council showing in detail its gross receipts in the City during
the preceding calendar year in accordance with subsection (A) of
this section. It shall be the duty of Grantee to pay to the
City, within ten (10) days after the time for filing such
statement, any unpaid balance for the calendar year covered by
such statement.
(D) Penalty payment. In the event that the unpaid
balance for any calendar year is not received by the City
within the time specified in subsection (C) of this section,
the Grantee shall pay to the City a penalty of two percent (2%)
per month on the unpaid balance in addition thereto until paid.
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(E) The City shall have the right to inspect the
Grantee's revenue records under the franchise and the right of
audit and recomputation of any and all amounts payable under
this Ordinance; the cost of said audit shall be borne by Grantee
when the same results in changing the Grantee's annual payment
to the City.
(F) No acceptance of any payment shall be construed
as a release or as an accord and satisfaction of any claim the
City may have for further or additional sums payable under this
Ordinance or for the performance of any other obligation hereunder.
SECTION 10. Franchise Terms: Duration, Renewal,
Renegotiation, and Termination
Due to the rapid changes occurring in the regulatory,
technical, financial, marketing and legal aspects of cable
communications, and in order to provide maximum flexibility for
the community as well as work toward an advanced and modern
cable TV system for San Juan Capistrano, provisions shall be
included in the franchise for franchise renewal and renegotiation.
(A) Duration and Renewal of Franchise
The franchise granted by the Council under this
Ordinance shall be for a term to be set in the franchise;
thereafter, after full public hearings, and in accordance with
the franchise -renewal procedure that follows, the franchise may
be renewed for a term not exceeding 12 years as in the opinion
of Council will serve the public interest.
(1) Procedure to consider franchise renewal:
(i) Thirteen months before expiration of
the franchise, the Cable TV Board
whose membership shall consist of
members from the community and/or
from City administrative staff may be
appointed by the Council to review the
performance of the Grantee and the
content of the Cable TV Ordinance.
(ii) After giving public notice, the Board
shall review the provisions of the
Ordinance and the franchise contract
as well as the performance of the
Grantee.
(iii) The Board shall complete and submit
its recommendations to the Council no
later than six months prior to the
expiration of the franchise.
(iv) If the Council finds the Grantee's
performance satisfactory, a new
franchise may be granted pursuant to
the Ordinance as amended.
(v) In the event the Grantee is determined
by Council to have performed
unsatisfactorily, then new applicants
shall be sought and evaluated and a
franchise award made by the Council
according to cable TV franchising
procedures herein provided.
(B) Renegotiation of Franchise Terms
The City and Grantee shall, upon the written request of
either party, meet in scheduled sessions for review or renegotiation
of any of the terms and conditions of the franchise, in accordance
with the following procedures:
(1) All sessions shall be scheduled at a mutually
convenient time and place, and shall be conducted
under an agenda setting forth the topics to be
discussed at each session. Either party may add
additional topics to the agenda by providing
prior written notice thereof to the other party.
(2) The sessions shall be scheduled at the earliest
convenient date for the parties. Unless otherwise
agreed to by both parties, the sessions shall
commence within ninety (90) days of the date of
the written request for such sessions.
(3) All scheduled sessions may be conducted informally,
unless a prior written request is made by either
party for a formal public session, in which event
such session shall be open to the public and public
notice shall be given of the session and the topics
to be discussed at least five (5) days prior to the
session.
(4) All scheduled sessions shall be conducted by the
Cable TV Board or the City Staff appointed by the
City Council, which shall prepare and file with the
Council a public report of the sessions and any
recommendations of change in the terms and
conditions of the franchise and the findings and
reasons therefor.
(5) Amendments to this Ordinance or to the franchise
shall be adopted in accordance with the procedures
provided in this Section.
(C) Termination of Franchise
The Council may terminate any franchise granted pursuant
to the provisions of this Ordinance in the event of the neglect,
willful failure, or refusal by the Grantee to do or comply with
any material requirements or limitation contained in this
Ordinance, or any material rule or regulation of the Council
validly adopted pursuant to this Ordinance. Such termination shall
be made only after full public hearing and in accordance with the
following procedures:
(1) The Council or Chief Administrative Officer may
make a written demand that the Grantee do or compl}
with any such requirement, limitation, term,
condition, rule or regulation contained in the
Ordinance. If the failure refusal, or neglect
of the Grantee continues for a period of thirty
(30) days following such written demand, the
Council or Chief Administrative Officer may place
his request for termination of the franchise upon
the next regular Council meeting agenda. The
Council or Chief Administrative Officer shall cause
to be served upon such Grantee at least ten (10)
days prior to the date of such Council meeting, a
written notice of intent to request such termination
and the time and place of the meeting, notice of
which shall be published by the City Clerk at least
ten (10) days before such meeting in a newspaper
of general circulation within the City.
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(2) The Council shall consider the request of the
Chief Administrative Officer and shall hear
any person interested therein, and shall
determine in its discretion, whether or not
any failure, refusal, or neglect by the
grantee was material and with just cause.
(3) If such failure, refusal or neglect by the
Grantee was with just cause, the Council
shall direct the Grantee to comply within
such time and manner and upon such terms
and conditions as are reasonable.
(4) If the Council shall determine such failure,
refusal or neglect by the Grantee was
without just cause, then the Council may,
by resolution declare that the franchise of
such Grantee shall be terminated and
forfeited unless there be compliance by
the Grantee within such period as the Council
may fix.
(5) Termination and forfeiture of any franchise
shall in no way affect the rights of the
City under the franchise or any provisions
of law.
(6) In the event of any holding over after
expiration or termination of any franchise
granted hereunder, without the prior consent
of the City, expressed by resolution, the
Grantee shall pay to the City compensation
and damages, of operating revenue during
said period.
(7) In the event of the bankruptcy or other
insolvency of the Grantee.
(D) Reporting Requirements
In addition to the financial statement filed with the
City in connection with the franchise payment, the Grantee shall
provide the following:
(1) Copies of all filings and reports to the
Federal Communications Commission at the time
of filing with the Commission;
(2) An annual report containing financial and
service information in content and form
specified in the franchise; and
(3) Interim reports as may be hereafter required
by the Council.
SECTION 11. Applications for Franchise
(A) Each application for a franchise to construct,
operate or maintain any cable television in this City shall be
filed with the City Clerk and shall, upon the request of the City
Manager, contain or be accompanied by the following:
(1) The name, address, and telephone number of the
applicant;
(2) A detailed statement of the corporate or other
business entity organization of the applicant,
including but not limited to, the following
items to whatever extent required by the City:
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(i) The names, residence and business addresses
of all officers, directors, and associates
of the applicant.
(ii) The names, residence and business addresses
of all officers, persons and entities
having, controlling, or being entitled to
have or control 5% or more of the ownership
of the applicant.
(iii) The names and addresses of any parent or
subsidiary of the applicant, (including
any other business entity owning or
controlling applicant in whole or in part
or owned or controlled in whole or part
by the applicant), and a statement
describing the nature of any such parent
or subsidiary business entity, including
but not limited to cable television
systems owned or controlled by the
applicant, its parent or subsidiary and
the areas served therby.
(iv) A detailed description of all previous
experience of the applicant in providing
television system service and in related
or similar fields.
(v) A detailed and complete financial statement
of the applicant, prepared by a certified
public accountant, for the fiscal year
next preceding the date of the application
hereunder, or a letter or other acceptable
evidence in writing from a recognized
lending institution or funding source,
addressed to both the applicant and the
Council, setting forth the basis for a study
performed by such lending institution or
funding source, and a clear statement of
its intent as a lending institution or
funding source to provide whatever capital
shall be required by the applicant to
construct and operate the proposed system
in the City, or a statement from a
certified public accountant, certifying
that the applicant has available sufficient
free, net and uncommitted cash resources
to construct and operate the proposed
system in this City.
(vi) A statement identifying, by place and date,
any other cable television franchise(s)
awarded to the applicant, its parent or
subsidiary; the status of said franchise(s)
with respect to completion of such system(s)
and the amount of applicant's and its
parent's or subsidiary's resources committed
to the completion thereof.
(3) A detailed description of the proposed plan of
operation of the applicant which shall include,
but not be limited to, the following:
(i) A detailed strand map indicating all areas
of the City proposed to be served, and a
proposed time schedule for the installation
of all equipment necessary for the system
to become operational throughout the entire
areas to be served. The map shall clearly
delineate any areas which will not be
served, if any.
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(ii) A statement or schedule setting forth
all proposed classifications of rates
and charges to be made against
subscribers and all rates and charges as
to each of said classifications, including
installation charges and service charges.
(iii) A detailed, informative, and referenced
statement describing the actual equipment
and operational standards proposed by
the applicant. In no event shall said
operational and performance standards be
less than those currently or hereafter
required by the Federal Communications
Commission or those hereafter adopted by
the Council.
(iv) A copy of the form of any agreement,
undertaking, or other instrument proposed
to be entered into between the applicant
and any subscriber.
(v) A detailed statement setting forth in its
entirety any and all agreements and
undertakings whether formal or informal,
written, oral, or implied, existing or
proposed to exist between the applicant
and any person, firm or corporation which
materially relate or pertain to or depend
upon the application and the granting of the
franchise.
(4) A copy of any agreement covering the franchise
area, if existing between the applicant and any
public utility subject to regulation by the
California Public Utilities Commission providing
for the use of any facilities of the public
utility, including but not limited to poles,
lines, or conduits.
(5) Any other details, statements, information of
references pertinent to the subject matter of
such application which shall be required or
requested by the Council, or by any provision
of any other ordinance of the City.
(B) The Council may, by advertisement or any other
means, solicit and call for applications for cable television
system franchises, and may determine and fix any date upon or after
which the same shall be received by the City, or the date before
which the same must be received, or the date after which the same
shall not be received, and may make any other determinations and
specify any other times, terms, conditions, or limitations respecting
the soliciting, calling for, making and receiving of such applications.
The Grantee shall pay the City a sum of money sufficient
to reimburse it for all publication expenses incurred by it in
connection with the granting of a franchise pursuant to the
provisions of this Ordinance. Such payment shall be made within
thirty (30) days after the City furnishes the Grantee with a written
statement of such expenses.
(C) Upon receipt of any application for franchise, the
Council may refer the same to the Cable TV Board which shall prepare
a report and make recommendations respecting such application, and
cause the same to be completed and filed with the Council within
thirty (30) days.
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(D) In making any determination hereunder as to any
application the Council may give due consideration to the quality
of the service proposed, rates to subscribers, income to the City,
extent of the franchise area proposed to be served by the cable,
experience, character, background, and financial responsibility of
any applicant and its management, and willingness and ability to
meet construction and physical requirements, and to abide by policy
conditions, franchise limitations and requirements, and any other
considerations deemed pertinent by the Council for safeguarding the
interests of the City and the public. The Council, in its discretion,
shall determine the award of any franchise on the basis of such
considerations and without competitive bidding.
If the Council shall determine to reject such application,
such determination shall be final and conclusive, and the same
shall be deemed rejected.
(E) If the Council shall determine to further consider
the application, the following shall be done:
(1) The Council shall decide and specify the terms
and conditions of any franchise to be granted
hereunder and as herein provided.
(2) The Council shall pass its resolution of
intention to consider the granting of such a
franchise, giving notice of receipt of the
application, and describing the character of
the franchise desired, stating the name of the
proposed Grantee, the character of the franchise,
the terms and conditions upon which franchise
is proposed to be granted, that copies of the
proposed franchise may be obtained at the
office of the City Clerk, fixing and setting
forth a day, hour and place certain when and
where any persons having any interest therein
or objection to the granting thereof may file
written protests and appear before the Council
and be heard, and directing the City Clerk to
publish said resolution at least once within
ten (10) days of the passage thereof in the
TV section of a newspaper of general circulation
within the City and to post said resolution
at the designated official posting places within
the City. The City Clerk may also be directed
by Council to arrange for airing of the
resolution on one local TV channel between the
hours of 7 PM and 9 PM for five (5) consecutive
days prior to the hearing.
(F) At the time set for the hearing, or at any
adjournment thereof, the Council shall proceed to
hear all oral or written protests. Thereafter, the
Council shall make one of the following determinations:
(1) That such franchise be denied; or
(2) That such franchise be granted upon the terms
and conditions as specified in the resolution
or intention to grant the same; or
(3) That such franchise be granted, but upon the
terms and conditions different from those
specified in the resolution of intent to grant
same.
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465
(G) If the Council shall determine that a franchise
be denied such determination shall be expressed by resolution
and shall be final and conclusive.
If the Council shall determine that a franchise be
granted upon the terms and conditions as specified in the
resolution of intention to consider granting the same, such
determination shall be expressed by ordinance granting a franchise
to the applicant.
If the Council shall determine upon granting a franchise
upon terms and conditions different from those specified in the
resolution of intention to consider granting the same, then such
determination shall be expressed by resolution adopted prior to
granting a franchise by ordinance.
SECTION 12. Bonds: Indemnification, Insurance
(A) Performance Bond to City. Upon being granted a
franchise, and upon the filing of the acceptance required under
Section 13 hereof, the Grantee shall file with the City Clerk
and shall thereafter, annually, during the entire term of such
franchise, maintain in full force and effect a corporate surety
bond or other adequate surety agreement in such amount and kind
as shall have been approved by the Council. The bond or
agreement shall be so conditioned that in the event that Grantee
shall fail to comply with any one or more of the provisions of
this Ordinance or of such franchise, then there shall be recoverable
jointly and severally from the principal and surety any damages
or loss, or costs suffered or incurred by the City as a result
thereof, including attorney's fees and costs of any action or
proceeding, and including the full amount of any compensation,
indemnification, cost of removal or abandonment of any property
or other costs which may be in default, up to the full principal
amount of such bond. Said condition shall be a continuing
obligation during the entire term of such franchise and thereafter
until Grantee shall have satisfied in full any and all obligations
to the City which arise out of or pertain to said franchise.
Neither the provisions of this section, nor any bond accepted by
the City pursuant hereto, nor any damages recovered by the City
thereunder shall be construed to excuse faithful performance by
the franchise issued pursuant to this Ordinance or for damages
either to the full amount of the bond, or otherwise.
(B) Performance Bond for Subscribers. Upon being
granted a franchise, and upon filing of the acceptance required
under Section 13 hereof, the Grantee shall file, annually, with
the City Clerk and shall thereafter during the entire term of
such franchise maintain in full force and effect a corporate
surety bond, or other adequate surety agreement, in the amount
as shall have been approved by the Council. The bond or
agreement shall be so conditioned that in the event such Grantee
shall fail to comply with any one or more of the provisions of
any agreement or undertaking made between Grantee and any sub-
scriber, then there shall be recoverable jointly and severally
from the principal and surety any damages or costs suffered or
incurred by any subscriber as a result thereof, including
reasonable attorney's fees and costs of any action or proceeding.
Said condition shall be a continuing obligation during the
entire term of such franchise and thereafter until Grantee shall
have satisfied in full any and all obligations to any subscriber
which arise out of or pertain to any such agreement or undertaking.
(C) Hold Harmless Agreement. Grantee shall indemnify
and hold harmless the City, its officers, boards, commissions,
agents, and employees, against and from any and all claims,
demand, causes of actions, actions, suits, proceedings, damages
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(including but not limited to damages to City property and
damages arising out of copyright infringements, and damages
arising out of any failure by Grantee to secure consents from
owners, authorized distributors or licensees of programs to be
delivered by Grantee's cable television system), costs or
liabilities (including costs or liabilities of the City with
respect to its employees), of every kind and nature whatsoever,
including but not limited to damages for injury or death or
damage to any person or property, and regardless of the merit of
any of the same, and against all liability to others, and against
any loss, cost, and expense resulting or arising out of any of
the same, including any attorney fees, accountant fees, expert
witness or consultant fees, court costs, per diem expense,
traveling and transportation expense, or other expense arising
out of or pertaining to the exercise or the enjoyment of any
franchise hereunder by Grantee or the granting thereof by the
City.
(D) Defenseof Litigation. Grantee shall at the sole
risk and expense of the Grantee, upon demand of the City, made
by and through the City Attorney, appear in and defend any and
all suits, actions, and other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative, or otherwise brought
or instituted or had by third persons, or duly constituted
authorities, against or affecting the City, its officers, boards,
commissions, agents, or employees, and arising out of or pertaining
to the exercise or the enjoyment of such franchise, or the
granting thereof by the City.
Grantee shall pay and satisfy or cause to be paid and
satisfied any judgment, decree, order, directive, or demand
rendered, made or issued against Grantee, the City, its officers,
boards, commissions, agents, or employees arising out of or
pertaining to the granting or exercise of such franchise; and
such payment or satisfaction shall exist and continue without
reference to or limitation by the amount of any bond, policy or
insurance, deposit, undertaking or other assurance required
hereunder, or otherwise; provided, that neither Grantee nor City
shall make or enter into any compromise or settlement of any
claim, demand, cause of action, action, suit, or other proceeding
arising out of or pertaining to the granting or exercise of such
franchise, without first obtaining the written consent of the
other.
(E) Insurance Required. Upon being granted a franchise,
and upon the filing of the acceptance required under Section 13
hereof, the Grantee shall file with the City Clerk and shall
thereafter during the entire term of such franchise maintain in
full force and effect at its own cost and expense the following
policies of insurance:
General Comprehensive Liability Insurance in the
amount of $1,000,000 together with Bodily Injury Liability
Insurance in an amount not less than $500,000 for injuries
including accidental death, to any one person, and subject to
the same limit for each person in an amount not less than $1,000,000
on account of any one occurrence, and Property Damage Liability
Insurance in an amount not less than $1,000,000 resulting from
any one occurrence; provided, however, as follows:
(1) The City shall be named as an additional insured
in any of said insurance policies; and
(2) Where such insurance is provided by a policy which
also covers Grantee or any other entity or person,
it shall contain the standard cross -liability
endorsement.
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467
SECTION 13. Acceptance of the Franchise
(A) No franchise granted under this Ordinance shall
become effective for any purpose unless and until written acceptance
therof shall have been filed with the City Clerk. Written
acceptance, which shall be in the form and substance approved by
the City Attorney, shall also be and operate as an acceptance of
each and every term and condition and limitation contained in
this Ordinance, or in such franchise, or otherwise specified as
herein provided.
(B) The written acceptance shall be filed by the
Grantee not later than 12:01 PM of the fortieth (40th) day next
following the effective date of the ordinance granting such
franchise.
(C) In default of the filing of such written acceptance
as herein required, the Grantee shall be deemed to have rejected
and repudiated the franchise. Thereafter, the acceptance of the
Grantee shall not be received nor filed by the City Clerk. The
Grantee shall have no rights, remedies, or redress in the premises,
unless and until the Council, by resolution, shall determine
that such acceptance be received or filed, and then upon such
terms and conditions as the Council may impose.
(D) In any case, and in any instance, all rights,
remedies and redress in these premises which may or shall be
available to the City, shall at all times be available to the
City, and shall be preserved and maintained and shall continuously
exist in and to the City, and shall not be in any manner or
means modified, abridged, altered, restricted, or impaired by
reason of any of these premises, or otherwise.
(E) Any franchise granted and accepted under this
chapter shall be in lieu of any and all other rights, privileges,
powers, immunities, and authorities owned, possessed, controlled,
or exercisable by the Grantee, of or pertaining to the construction,
operation, or maintenance of any cable television systems in the
City.
SECTION 14. Limitations of Franchise: Includes
Transfer Conditions
(A) Every franchise granted under this Ordinance
shall be non-exclusive.
(B) No privileges or exemption shall be granted or
conferred by any franchise granted under this Ordinance except
those specifically prescribed herein.
(C) Any privilege claimed under any such franchise by
the Grantee in any street or other public property shall be
subordinate to any prior lawful occupancy of the streets or
other public property.
(D) Any such franchise shall be a privilege to be
held in personal trust by the original Grantee. It cannot in
any event be sold, transferred, leased, assigned or disposed of,
in whole or in part, either by forced or involuntary sale,
merger, consolidation or otherwise, without prior consent of the
Council expressed by resolution following at least one public
hearing, and then only under such conditions as may therein be
prescribed. Any such transfer of assignment shall be made only
by an instrument in writing, such as a bill of sale, or similar
document, a duly executed copy of which shall be filed in the
office of the City Clerk within thirty (30) days after any such
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transfer or assignment. The said consent of the Council may not
be unreasonably refused; provided, however, the proposed assignee
must show financial responsibility as determined by the Council
and must agree further, that no such consent shall be required
for a transfer in trust, mortgage, or other hypothecation, in
whole or in part, to secure an indebtedness, except that when
such hypothecation shall exceed 508 of the market value of the
property used by the Grantee in the conduct of the cable television
system, prior consent of the Council shall be required for such
a transfer. Such consent shall not be withheld unreasonably.
In the event that Grantee is a corporation, prior
approval of the City Council, expressed by ordinance, shall be
required where there is an actual change in control or where
ownership of more than 508 of the voting stock of Grantee is
acquired by a person or group of persons acting in concert, none
of whom already own 508 or more of the voting stock, singly or
collectively. Any such acquisition occurring without prior
approval of the City Council shall constitute a failure to
comply with a provision of this Ordinance within the meaning of
Section 10(C) of this Ordinance.
(E) Time shall be of the essence of any such franchise
granted hereunder. The Grantee shall not be relieved of his
obligation to comply promptly with any of the provisions of this
Ordinance by any failure of the City to enforce prompt compliance.
(F) Any right or power in, or duty impressed upon,
any officer, employee, department, or board of the City shall be
subject to transfer by the City to any other officer, employee,
department, or board of the City.
(G) The Grantee shall have no recourse whatsoever
against the City for any loss, cost, expense, or damage arising
out of any provision or requirement of this ordinance or of any
franchise issued hereunder or because of its enforcement.
(H) The Grantee shall be subject to all requirements
of City laws, rules, regulations, and specifications heretofore
or hereafter enacted or established.
(I) Any such franchise granted shall not relieve the
Grantee of any obligations involved in obtaining conduit space
from any department of the City, utility company, or from others
maintaining utilities in streets.
(J) Any franchise granted hereunder shall be in lieu
of any and all other rights, privileges, powers, immunities, and
authorities owned, possessed, controlled or exercisable by
Grantee, or any successor to any interest of Grantee,of or
pertaining to the construction, operation, or maintenance of any
cable television system in the City; and the acceptance of any
franchise hereunder shall operate, as between Grantee and the
City, as an abandonment by Grantee of any and all of such rights,
privileges, powers, immunities, and authorities within the City;
and all construction, operation and maintenance by any Grantee
of any cable television system in the City shall be, and shall
be deemed and construed in all instances and respects to be,
under and pursuant to said franchise, and not under or pursuant
to any other right, privilege, power, immunity, or authority
whatsoever.
SECTION 15. Rights Reserved to the City
(A) Nothing herein shall be deemed or construed to
impair or affect, in any way, to any extent, the right of the
City to acquire the property of the Grantee, either by purchase
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or through the exercise of the right of eminent domain, at a
fair and just value, which shall not include any amount for the
franchise itself or for any of the rights or privileges granted,
and nothing herein contained shall be construed to contract away
or to modify or abridge, whether for a term or in perpetuity,
the City's right of eminent domain.
(B) There is hereby reserved to the City every right
and power which is required to be herein reserved or provided by
any law, and the Grantee, by its acceptance of the franchise,
agrees to be bound thereby and to comply with any action or
requirements of the City in its exercise of such rights or
power, heretofore or hereafter enacted or established.
(C) There is hereby reserved to the City the power to
amend any section of this Ordinance so as to require additional
or greater standards of construction, operation, maintenance or
otherwise, on the part of the Grantee to reflect technical and
economic changes occurring during the franchise term, and to
enable the City and the Grantee to take advantage of new developments
in the cable television industry so as to more effectively,
efficiently and economically serve the public.
(D) Neither the granting of any franchise nor any
provision hereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
(E) The Council may do all things which are necessary
and convenient in the exercise of its jurisdiction under this
Ordinance and may determine any question of fact which may arise
during the existence of any franchise granted hereunder. The
Chief Administrative Officer is hereby authorized and empowered
to adjust, settle, or compromise any controversy or charge
arising from the operations of any Grantee under this Ordinance,
either on behalf of the City, the Grantee, or any subscriber, in
the best interest of the public. Either the Grantee or any
member of the public who may be dissatisfied with the decision
made may within thirty (30) days thereof appeal the matter to
the Council for hearing and determination. The Council may
accept, reject or modify or cancel any charge arising from the
operations of the Grantee or from any provision of this Ordinance.
SECTION 16. Council to Adopt Rules and Regulations
(A) The Council shall have continuing regulatory
jurisdiction and supervision over the operation of any franchise
granted hereunder and may from time to time adopt such reasonable
rules and regulations as it deems necessary for the conduct of
the cable television system.
(1) The Council may adopt administrative
procedures to ensure compliance with the
terms of the franchise and may assess
penalties for non-compliance which may be
specified in the franchise.
(2) The Council may appoint a Cable TV Board
whose composition, powers, and responsibilities,
pursuant to this Ordinance, and shall be
hereafter determined by the Council.
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470
(B) Standards of Operation
(1) Any cable television system in the City shall
meet the technical performance standards now
or hereafter required by the Federal
Communications Commission and the installation
and maintenance standards now or hereafter
required by the City.
(2) Any cable television system in the City and all
equipment of such system shall be rated
for 24-hour per day continuous operation.
(3) Provided the same do not materially alter the
content of the franchise without consent of the
Grantee, the Council may at any time adopt new
rules and regulations or standards, or may
amend, modify, delete, or otherwise change its
respective rules or regulations or standards
previously adopted, in the following manner:
The Council shall pass its resolution of
intention stating or describing the rules or
regulations or standards to be adopted, amended,
modified, deleted, or otherwise changed, and
fixing and setting forth a day, hour, and
place certain when and where any persons
having any interest therein or objection
thereto may appear before the Council and be
heard. Such resolution shall direct the City
Clerk to publish the same at least once within
ten (10) days of the passage thereof in a
newspaper of general circulation within the City
and to mail a copy of the same to any Grantee
or applicant for a franchise, not more than
thirty (30) days nor less than fifteen (15)
days prior to the time fixed for hearing
thereon.
At the time set for such hearing, or at any
adjournment thereof, the Council shall proceed
to hear and pass upon such comments as may be
presented. Thereafter, the Council, by its
resolution, may adopt, amend, modify, delete,
or otherwise change its respective rules,
regulations, and standards. Such determination
by the Council shall be final and conclusive.
Any rule or regulation or standard as adopted,
amended, modified, deleted, or otherwise changed
by the Council shall become effective upon the
tenth (10th) day following the adoption of such
resolution, unless a longer period shall be
otherwise provided in such resolution.
(C) Grantee -Subscriber Contract Form. The City's Chief
Officer shall review Grantee's form of any agreement, undertaking,
or other instrument proposed to be entered into between the Grantee
and any subscriber and make a finding that such instrument is in
conformance with the provisions of this Ordinance and contains full
disclosure of the subscriber's rights and obligations under this
Ordinance including the number of channels guaranteed and a
listing of said channels and table of rate structure to be provided
to subscriber upon execution of agreement, the complaint procedure
simply described in clear and legible type; City official
responsible for receiving and acting on complaints may be registered
and billing procedures including those for delinquency procedures.
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(D) Rates
(1) Establishment and approval of rates. Prior to
granting any franchise hereunder the Council
after noticed public hearings as provided
herein, by resolution shall establish and fix
all rates and charges for the Basic Service,
herein defined, allowable to Grantee, including,
but not limited to:
(i) Charges for installation; connection or
reconnection;
(ii) Special installation charges for problem
sites;
(iii) General subscriber rates;
(iv) Service charges for separate
classifications of service (e.g., FM
radio broadcast, additional connections,
etc.);
(v) Preferential basic service rates;
(vi) Advance payments.
Once established, such rates or charges shall
become part of the franchising agreement and
shall not be changed at any time after granting
of a franchise, except after due notice and
hearing as provided herein. Any charges for
additional service or equipment, such as
converters, must be approved by the City
Council.
(2) At such time as the Federal Communictions
Commission shall permit, rates and charges for
services other than Basic Service shall also be
approved by Council by resolution, after due
notice and hearings as provided herein.
(3) Council shall review the Grantee's proposed
billing practices as they affect subscriber
rates or advance payment, and once established,
such billing practices shall not be changed
without prior consent of Council in a public
proceeding.
(4) Request for Rate Changes
(i) The City or Grantee may request rate
increases or decreases at any time during
the term of the franchise granted under
this ordinance. Such consideration
shall constitute a renegotiation of the
terms of the franchise and shall observe
the same procedures herein provided.
(ii) The Council shall approve or disapprove
any increase or decrease of the basic
service rates or establish additional
basic service areas on the basis of what is
fair to the subscriber and to the Grantee
and may include the following
considerations (this section does not
apply to promotional sales campaigns which
offer reduced rates):
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472
(a) Value of the service or services;
(b) Rates for comparable service or
services in surrounding communities;
(c) Faithfulness of Grantee in abiding
by the terms of the Ordinance and
franchise;
(d) Quality of service;
(e) Efficiency of Grantee's management;
(f) Depreciated original cost of the
cable plant and associated equipment.
All intangible assets for which costs
have not actually been expended,
such as the value of the franchise,
goodwill, and the value of the going
concern shall not be amortized
as an expense, and a return shall
not be paid on any of these values.
Actual costs, such as the purchase
of a system above net book value,
may be amortized over a period of not
less than 12 years, but the amortized
portion shall not be included in any
rate base or rate of return
calculations; and
(g) A fair rate of return on Grantee's
investment compared to investments
having corresponding risk.
(5) Conduct of Proceedings on Rate Changes. In
connection with any proposed change of any rates
or charges of Grantee to subscribers, or the
approval of rates for additional services, at
any time after the granting of a franchise, the
Council may direct the Cable TV Board of the
City to conduct a preliminary hearing into
the matter. If so directed by the Council,
the board shall issue a written notice fixing
and setting forth the day, hour and place certain
when and where any persons having any interest
therein may appear and be heard.
The City Clerk shall cause such notice to be
published in the TV section of a newspaper of
general circulation within the City and shall
cause such notice to be posted at the
designated official posting places within the
City. The City Clerk also shall cause a copy
of such notice to be mailed to any Grantee at
least ten (10) days prior to the date specified
for the hearing, as well as to civic and
community organizations. At the time set for
such hearing, or at any adjournment thereof,
the Cable TV Board shall proceed to hear the
matter. Following the close of such hearing, the
Board shall prepare and file with the Council
a report of the hearing, the Board findings,
and an opinion containing Board recommendations
and the reasons therefor. After the expiration
of ten (10) days following receipt of the report
and opinion, and if no objection has been filed
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4'73
thereto, the Council shall determine whether
to adopt the opinion or to hold a further
hearing, and shall pass its resolution of
intention to do so, describing and stating
any rates or charges to be changed, the
reasons of the Council therefor, fixing and
setting forth a day, hour and place certain when
and where any persons having any interest
therein may appear before the Council and be
heard. Such resolution shall direct the City
Clerk to publish the same resolution at least
once within ten (10) days of the passage thereof
in the TV section of a newspaper of general
circulation within the City and to post said
resolution at the designated official posting
places within the City. The City Clerk may
also be directed by Council to arrange for airing
of the resolution on one local community TV
channel between the hours of 7 PM and 9 PM for
five (5) consecutive days prior to the hearing.
In addition, the City Clerk also shall cause
a copy of such resolution to be mailed to the
Grantee and to community and civic organizations
in the City at least ten (10) days prior to
the date specified for hearing thereon.
At the time set for any further hearing,
or at any adjournment thereon, the Council
shall proceed to hear the matter. If upon
receipt of report and opinion, and the expiration
of said ten (10) days without objection, or
following the holding of a further hearing, if
the Council determines to do so, the Council
shall find that the changing of any rates or
charges of Grantee to subscribers will be
fair to the system operator and not detrimental
or injurious to the best interests and
welfare of the subcribers and users, and of the
City, then the Council, by resolution, shall
authorize the change of rates or charges of
Grantee to subscribers and users as determined.
Such resolution shall thereupon become and shall
be a part of any franchise granted hereunder
and affected thereby.
(6) Obligations of the Council. Notwithstanding this
or any other ordinance to the contrary, the
Grantee shall be entitled to file a request for
rate change, accompanied by financial
information, in the form specified in the
franchise and current within the last operating
quarter which said request shall be finally
acted upon within a period of 180 days. If no
final decision has been made by the Council
within said period, the request shall be deemed
granted.
Any action taken by the Council shall include
detailed and specific findings. In the event
a rate increase is granted as requested, the
Grantee shall refrain from applying for further
increases for a period of twenty-four (24)
months from the date of the granted increase.
If the rate application is not granted as
requested, the grantee may file succeeding
requests at any time.
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474
SECTION 17. Permits and Construction
(A) Within thirty (30) days after acceptance of any
franchise, the Grantee shall proceed with due diligence to
obtain all necessary permits and authorizations which are required
in the conduct of its business, including, but not limited to,
any utility joint use attachment agreements, micro -wave carrier
licenses, and any other permits, licenses and authorizations to
be granted by duly constituted regulatory agencies having
jurisdiction over the operation of cable television systems, or
associated micro -wave transmission facilities.
In connection therewith, copies of all petitions,
applications, and communications submitted by the Grantee to the
Federal Communications Commission, Securites and Exchange
Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting
Grantee's cable television operations, shall also be submitted
simultaneously to the Chief Administrative Officer.
(B) Within ninety (90) days after obtaining all
necessary permits, licenses and authorizations, including right -
o£ -access to poles and conduits, Grantee shall commence construction
and installation of the cable television system.
(C) Within one hundred eighty (180) days after the
commencement of construction and installation of the system,
Grantee shall proceed to render service to subscribers, and the
completion of the installation and construction shall be pursued
with reasonable diligence thereafter, so that service to all of
the areas designated and scheduled on the map and plan of con-
struction made part of the franchise shall be provided as set
forth therein.
(D) Failure on the part of the Grantee to commence
and diligently pursue each of the foregoing requirements and to
complete each of the matters set forth herein shall be grounds
for termination of such franchise. By resolution, the Council,
in its discretion, may extend the time for the commencement and
completion of installation and construction for additional
periods in the event the Grantee, acting in good faith, experiences
delays by reason of the circumstances beyond his control.
By acceptance of the franchise granted hereunder,
Grantee agrees that failure to comply with any time requirements
referred to in subsections (A), (B), and (C) of this section
will result in damage to the City, and that it is and will be
impracticable to determine the actual amount of such damage in
the event of delay; and Grantee therefore agrees that, in addition
to any other damage suffered by the City, he will pay the City
an amount to be specified in the franchise for each and every
day's delay beyond the time prescribed, plus authorized extensions
thereof, for completion of any of the acts required to be done
by this section.
(E) Grantee shall utilize existing conduits and other
facilities whenever possible, and shall not construct or install
any new, different, or additional conduits or other facilities
whether on public property or on privately -owned property unless
and until first securing the written approval of the Chief
Administrative Officer.
(F) The City shall have the right, free of charge, to
make additional use, for any public or municipal purpose, whether
governmental or proprietary, of any conduits or other similar
facilities erected, controlled, or maintained exclusively by or
for Grantee in any street, provided such use by City does not
interfere with the use by Grantee.
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(G) In those areas of the City where the transmission
or distribution facilities of the respective public utilities
providing telephone, communication and electric services are
underground, or hereafter are placed underground, the Grantee
likewise shall construct, operate and maintain all of his transmission
and distribution facilities underground. The term "underground"
shall include a partial underground system; provided that upon
obtaining the written approval of the Chief Administrative
Officer, amplifiers in the Grantee's transmission and distribution
lines may be placed in appropriate housings upon the surface of
the ground.
(H) The Grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of
Grantee when, in the opinion of the Chief Administrative Officer
the same is required by reason of traffic conditions, public
safety, street vacation, freeway or street construction, change
or establishment of street grade, installation of sewers, drains,
waterpipes, power line, signal line, transportation facilities,
tracks, or any other types of structure or improvements by
governmental agencies whether acting in a governmental or a
proprietary capacity; or any other structure or public improvement,
including but not limited to movement of buildings, urban renewal
and redevelopment, and any general program under which the City
shall undertake to cause all such properties to be located
beneath the surface of the ground. The Grantee shall in all
cases have the privilege subject to the corresponding obligations,
to abandon any property of Grantee in place, as herein provided.
Nothing hereunder shall be deemed a taking of the property of
Grantee, and Grantee shall be entitled to no surcharge by reason
of anything hereunder.
(I) Upon the failure, refusal, or neglect of Grantee
to cause any work or other act required by law or hereunder to
be properly completed in, on, over, or under any street within
any time prescribed therefor, or upon notice given, where no
time is prescribed, the Chief Administrative Officer may cause
such work or other act to be completed in whole or in part, and
upon so doing shall submit to Grantee an itemized statement of
the costs thereof. The Grantee shall, within thirty (30) days
after receipt of such statement, pay to the City the entire
amount thereof.
(J) In the event that,
(1) the use of any part of the system of Grantee
is discontinued for any reason for a continuous
period of thirty (30) days, without prior
written notice to and approved by the City; or
(2) Any part of such system has been installed in any
street or other area without complying with the
requirements hereof; or
(3) Any franchise shall be terminated, cancelled,
or shall expire, then the Grantee shall, at
the option of the City, and at the expense
of the Grantee and at no expense to the City,
and upon demand of the City, promptly remove
from any street or other area all property
of Grantee, and Grantee shall promptly
restore the street or other area from which
such property has been removed to such
condition as the Chief Administrative Officer
shall approve.
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476
The Council may, upon written application
therefor by Grantee, approve the abandonment
of any of such property in place by Grantee
and under such terms and conditions as the
Council may prescribe. Upon abandonment of
any such property in place, Grantee shall
cause to be executed, acknowledged, and
delivered to the City such instruments as
the City Attorney shall prescribe and approve,
transferring and conveying the ownership of
such property to the City.
SECTION 18. Miscellaneous Provisions
(A) A franchise granted to provide service within the
City shall authorize and permit the Grantee to solicit, sell,
distribute, and make a charge to subscribers within the City for
connection to the cable television system of Grantee, and shall
also authorize and permit the Grantee to traverse any portion of
the City in order to provide service outside the City.
(B) A franchise, easement, license or other permit
granted to anyone other than the Grantee to traverse any portion
of the City in order to provide service outside the City shall
not authorize nor permit said person to solicit, sell, distribute,
or make any charge to subscribers within the City, nor to render
any service or connect any subscriber within the City to the
cable television system of Grantee.
(C) No franchise granted under this ordinance shall
ever be given any value by any court or other authority, public
or private, in any proceeding of any nature or character, wherein
or whereby the City shall be a party or affected therein or
thereby.
(D) Grantee shall be subject to all provisions of the
other ordinances, rules, regulations, and specifications of the
City heretofore or hereafter adopted, including but not limited
to those pertaining to works and activities in, on, over, and
under and about streets.
Any privilege claimed under any franchise granted
pursuant to this Ordinance in any street or other public property
shall be subordinate to any prior lawful occupancy of the streets
or other public property.
Grantee also shall be subject to the provisions of
general laws of the State of California, or as hereafter amended,
when applicable to the exercise of any privilege contained in
any franchise granted under this Ordinance, including but not
limited to those pertaining to works and activities in and about
state highways.
(E) Grantee shall be prohibited from directly or
indirectly doing any of the following:
(1) engaging in the business of selling at
retail, leasing, renting, repairing, or
servicing of television sets or radios;
(2) imposing a fee or charge for any service or
repair to subscriber -owned receiving devices
except for the connection of its service;
neither should any fee or charge be imposed
by Grantee for determination of the quality
of its signal to the receipients thereof;
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(3) soliciting, referring, or causing or permitting
the solicitation or referral of any subscriber
to persons engaged in any business herein
prohibited to be engaged in by Grantee;
(4) providing information concerning the viewing
patterns of identifiable individual subscribers
to any person, group, or organization for any
purpose. When two-way cable services are
offered, activation of the return service must
always be at the subscriber's option. The
subscriber shall not be required to provide
automatic readout information as a condition
of receiving basic services.
(F) If the Federal Communications Commission or the
Public Utilities Commission of the State of California or any other
federal or state body or agency shall now or hereafter exercise any
paramount jurisdiction over the subject matter of any franchise
granted under this Ordinance, then to the extent such jurisdiction
shall preempt or preclude the exercise of like jurisdiction by the
City, the jurisdiction of the City shall cease and no
longer exist.
The preemption or preclusion of the exercise by the City
of any of its police power shall not diminish, impair, alter, or
affect any contractual benefit to the City or Grantee or any
contractual obligation of the Grantee under any franchise issued
hereunder.
Any and all minimum standards governing the operation of
Grantee and any and all maximum rates, ratios, and charges specified
herein or in any franchise issued hereunder, existing now and at any
time in the future, including such time as any paramount jurisdiction
shall preempt or preclude that of the City, and any and all rights,
powers, privileges, and authorities of the City determine, establish,
or fix any of the same, are each and all hereby declared by the City
and by any Grantee accepting any franchise hereunder to be
contractual in nature and to be for the benefit of the City.
(G) When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be filed with the
City Clerk.
(H) No person, firm or corporation within the service
area of the Grantee, and where trunk lines are in place, shall be
refused service; provided, however, that the Grantee shall not be
required to provide service to any subscriber who does not pay the
applicable connection fee or service charge; nor could they be
refused service where trunk lines are not in place and provided the
applicant for service consents to defray excessive costs of such
extension, as in exceptionally difficult terrain or remote areas, as
defined in the franchise.
(I) Before providing cable television service to any
subscriber, the Grantee shall provide a written notice to the
subscriber substantially as follows;
"Subscriber is hereby notified that in providing cable
television service the Grantee is making use of public
rights-of-way within the City of San Juan Capistrano and
that the continued use of such rights-of-way is in no way
guaranteed."
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"In the event the continued use of such rights-of-way is
denied to Grantee for any reason, Grantee will make every
reasonable effort to provide service over alternate routes.
By accepting cable television service, subscriber agrees
he will make no claim nor undertake any action against the
City of San Juan Capistrano, its officers, or its employees
if the service to be provided hereunder is interrupted or
discontinued."
SECTION 19. Removal and Abandonment of Property of Grantee
(A) In the event that the use of any part of the CATV
system is discontinued for any reason for a continuous period of
twelve months, or in the event such system or property has been
installed in any street or public place without complying with the
requirements of this franchise or Ordinance or this franchise has
been terminated, cancelled or has expired, the Grantee shall
promptly, upon being given fifteen days notice, remove from the
streets or public places all such property and poles of such system
other than any which the Director of Public Works may permit or
require to be abandoned in place to the City. In the event of such
removal, the Grantee shall promptly restore the street or other area
from which such property has been removed to a condition satisfactory
to the Director of Public Works.
(B) Any property of the Grantee remaining in place thirty
days after the termination or expiration of this franchise shall be
considered permanently abandoned to the City. The City Manager may
extend such time not to exceed an additional thirty days.
(C) Any property of the Grantee to be abandoned in place
shall be abandoned to the City in such a manner as the Director of
Public Works shall prescribe. Upon permanent abandonment of the
property of the Grantee in place, the property shall become that of
the City, and the Grantee shall submit to the Director of Public
Works an instrument in writing, to be approved by the City Attorney,
transferring to the City the ownership of such property.
SECTION 20. Effect of Annexations
(A) In the event any new territory shall become annexed
to the City then the Council shall determine at a public hearing,
which Grantee or Grantees, if any, shall serve such new territory.
(B) Whenever any territory shall become a part of a
franchise area by reason of annexation as provided in this section,
Council shall hold a public hearing to determine a time schedule for
the installation of all equipment necessary for cable television to
become operational throughout that territory. The time schedule
shall provide for construction of cable television facilities in
said territory on a reasonable and equitable basis as determined by
the Council.
(C) The Chief Administrative Officer shall send notice of
any public hearing provided for in this section to any Grantee whose
rights or franchise area may be affected thereby, by mail, postage
prepaid, not less than seven (7) days prior to such hearing.
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479
(D) Whenever any territory which is covered by an
existing franchise granted by the County of Orange is annexed to the
City after the effective date of this Ordinance, the rights reserved
under said franchise to the County of Orange or to any officer
thereof shall inure to the benefit of the City of San Juan
Capistrano.
SECTION 21. Equal Opportunity Employment and
Affirmative Action Plan
(A) In the carrying out of the construction, maintenance
and operation of the cable television system, the Grantee shall not
discriminate against any employee or applicant for employment
because of race, creed, color, sex, or national origin.
(B) The Grantee shall take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, creed, color, sex, or
national origin. Such affirmative action shall include, but not be
limited to, the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship.
(C) The Grantee shall post in conspicuous places,
available to employees and applicants for employment, notice setting
forth the provisions of this non-discrimination clause.
(D) The Grantee shall, in all solicitations or
advertisements for employees placed by or on behalf of the Grantee,
state that all qualified applicants will receive consideration for
employment without regard to race, creed, color, sex or national
origin.
SECTION 22. Violtations
(A) From and after the effective date of this Ordinance,
it shall be unlawful for any person to construct, install or maintain
within any public street in the City, or within any other public
property of City, or within any privately -owned area within the City
which has not yet become a public street but is designated or
delineated as a proposed public street on any tentative subdivision
map approved by the City, any equipment or facilities for distributing
any television signals or radio signals through a cable television
system, unless a franchise authorizing such use of such street or
property or area has first been obtained pursuant to the provisions
of this Ordinance, and unless such franchise is in full force and
effect.
(B) It shall be unlawful for any person, firm or
corporation to make or use any unauthorized connection, whether
physically, electrically, accoustically, inductively, or
otherwise, with any part of a frachised cable television system
within this City for the purpose of enabling himself or others
to receive or use any television signal, radio signal, picture,
program or sound, without payment to the owner of said system.
(C) It shall be unlawful for any person, without the
consent of the owner, to willfully tamper with, remove or injure
any cables, wires or equipment used for distribution of
television signals, radio signals, pictures, programs or sound.
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SECTION 23. Severability
If any section, subsection, sentence, clause or phrase of
this Ordinance is for any reason held illegal, invalid, or
unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions hereof. The Council hereby declares that it would
have passed this Ordinance, and each section, subsection, sentence,
clause, and phrase hereof, irrespective of the fact that any one
or more sections, subsections, sentences, clauses or phrases be
declared illegal, invalid, or unconstitutional. The invalidity
of any portion of this Ordinance shall not abate, reduce or otherwise
affect any consideration or other obligation required of the Grantee
of any franchise granted hereunder.
SECTION 24. Effective Date This Ordinance shall take
effect and be in force 30 days after its passage.
SECTION 25. Clerk's Certification The City Clerk shall
certify to the adoption of this Ordinance and shall cause the same
to be posted in the duly designated posting places within the
City of San Juan Capistrano within 15 days after its passage.
PASSED, APPROVED AND ADOPTED, this 3rd day of
August , 1977, by the following vote, to wit:
AYES: Councilmen Sweeney, McDowell, Friess, Nash,
and Mayor Heckscher
NOES: None
ABSENT: None
L �
V N O. HECKSCHER, MAYOR
ATTEST:
CITY CLE7.1 ' _
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARY ANN HANOVER, City Clerk of the City of San Juan
Capistrano, California, DO HEREBY CERTIFY that the foregoing is a
true and correct copy of Ordinance No. 327 , which was
introduced at a meeting of the City Council of the City of San Juan
Capistrano, California, held on July 20 , 1977 , and adopted at
a meeting held on August 3 . 1977 -
(SEAL) ,/� //�j,ip2 `L'�
MARY ANN NOVER, CITY CLERK
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