Ordinance - 1506r
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ORDINANCE NO. 1506
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF WEST COVINA, CALIFORNIA
AMENDING ARTICLE II OF CHAPTER 11
RELATING TO FRANCHISES FOR COMMUNITY
ANTENNA TELEVISION SYSTEMS.
The City Council of the City of West Covina, Cali-
fornia, does ordain as follows:
SECTION 1: Article II of Chapter 11 of the West
Covina Municipal Code relating to franchises for Community
Antenna Television Systems is hereby amended to read as follows:
Article II Community Antenna Television Systems
SECTION 11-16 DEFINITIONS
For the purposes of this ordinance, the following
terms, phrases, words, abbreviations, and their derivations
shall have the meaning given herein. When not inconsistent
with the context, words used in the present tense include the
future tense, words in the plural number include the singular
number, and words in the singular number include the plural
number.
(a) "CITY" shall mean the City of West Covina, a
municipal corporation of the State of California, in its
present incorporated form or in any later reorganized, consoli-
dated, enlarged or reincorporated ;Form.
(b) "COUNCIL" shall mean the present governing body
of the City of West Covina or any future board constituting the
legislative body of the City.
(c) "CITY MANAGER" shall mean the city manager of the
City of West Covina or his designee.
(d) "FRANCHISE" shall mean and include any authoriza-
tion granted hereunder in terms of a franchise, privilege,
permit, license or otherwise to construct, operate and maintain
a community antenna television system within all or a specified
area in the City. Any such authorization, in whatever form
granted, shall not mean and include any license or permit
required for the privilege of transacting and carrying on a
business within the City as req}pired by other_ ordinances and
laws of this City.
(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 corpora-
tion 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, other public right of way or public place, including
public utility easements.
(h) "PROPERTY OR GRANTEE" shall mean all property
owned, installed, or used within the City by a Grantee in the
conduct of a community antenna television system business under
the authority of a franchise granted pursuant to this Ordinance.
(i) "SUBSCRIBER or "USER" shall mean any person or
10 entity receiving for any purpose any service of the Grantee's
community antenna television system including, but not limited
to the conventional community antenna television system service
of retransmission of television broadcast, radio signals,
Grantee's 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
communication.
(j) "CABLE TELEVISION SYSTEM","CATV","CTV" and
"COMMUNITY ANTENNA" for the purpose of this Ordinance, are
terms describing a system employing antennae, microwave, wires,
wave guides, coaxial cables, or other conductors, equipment or
facilities, designed, constructed or used for the purpose
of:
(1) Collecting and amplifying local and distant
broadcast television or radio signals and distributing and
transmitting them;
(2) Transmitting original cablecast programming not
received through television broadcast signals; -
(3) Transmitting television pictures, film and
• videotape programs, not received through broadcast television
signals, whether or not encoded or, rocessed to permit recep-
tion by only selected receivers;
(4) Transmitting or receiving two-way signals or
transmissions;
(5) Transmitting and receiving Aall other signals;
digital voice, and audiovisual;
provided however, that any of the services, permitted hereunder
to be performed, as described above, shall be those performed
by the Grantee for subscribers, as herein defined, in the
operation of a cable television or CATV system franchised by
the City and not otherwise.
(k) "GROSS RECEIPTS" as used in the following cate-
gories, shall mean any and all compensation, in whatever form,
grant, subsidy, exchange, or otherwise, directly or indirectly
received by a Grantee not including any taxes or services
furnished by the Grantee imposed indirectly on any subscriber
or users by a city, county, state or other governmental unit,
and collected by a Grantee for such entity.
(1) "GROSS ANNUAL BASIC SUBSCRIBER RECEIPTS" shall
mean any and all compensation and other consideration received
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directly or indirectly by the Grantee from subscribers in
payment of the regularly furnished service of the cable televi-
sion system in the transmission of broadcast television, radio
signals and original cablecast programming of the Grantee.
(m) "GROSS ANNUAL NON -BASIC SERVICE RECEIPTS" shall
mean any and all compensation and other consideration received
directly or indirectly by the Grantee from subscribers or users
in payment for the receipt of signals other than broadcast
television, radio, or original cablecast programming of the
Grantee, whether for "pay television," "facsimile" transmi-s-.
sion, "return" or "response" communication, and whether or not
transmitted, encoded or processed to permit reception by only
selected subscribers.
(n) "GROSS ANNUAL ADVERTISING RECEIPTS" shall mean
any income, compensation and other consideration received by
Grantee derived from any form of advertising.
(o) "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.
(p) "SPECIAL SERVICE AREA" shall mean any areas of
the City designated by the Council, if it so elects, in the
franchise agreement, where the franchisee may charge different
rates, or provide different services, than in the remainder of
the City.
SECTION 11-17. FRANCHISE TO INSTALL AND OPERATE
(a) A non-exclusive franchise to install, construct,
operate, and maintain a cable television system in, on, above,
or under streets.within all or a specific portion of the City
. may be granted by the Council to and person, whether operating
under an existing franchise, who aY which offers to furnish and
provide such system under and pursuant to the terms and provi-
sions of this Ordinance.
No provision of this Ordinance may be deemed or
construed as to require the granting of a%franchise.when in the
opinion of the Council it is in the public interest to restrict
the number of Grantees to one or more.
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(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 facili-
ties, and Grantee shall be required to comply with all 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 11-18. CABLE TELEVISION SERVICE
(a) Basic Service. The cable television system
permitted to be installed and operated hereunder shall:
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(1) Be operationally capable of relaying to sub-
scriber terminals all those television and radio broadcast
signals for the carriage of which the Grantee is now or here-
after authorized by the Federal Communications Commission;
(2) Be constructed with two-way operational digital
signal transmission from the date of system initiation.
(3) Distribute color television signals which it
receives in color;
(4) Provide free of charge at least one (1) channel
• each for those local government, educational, and leased
channel access uses. A single -channel for the combined use of
the apove and for the exclusive use of the City will be accept-
able until increased usage requires a greater number of channels
as determined by the City.
(5) Provide a Community Service Channel Program as
defined by Government Code Section 53066.1, as amended, subject
to any additional requirements which the Council may, from time
to time, impose;
(6) Provide local origination, cablecasting, and at a
minimum, fully equipped permanent programming facilities
within the City limits, for public and municipal use, plus such
other mobile and portable studios and facilities as are, from
time to time necessary.
•
(7) Be operationally capable of relaying a minimum
capacity of 30 channels in all portions of the systems con-
structed after adoption of this Ordinance.
(b) Non -Basic Services. The cable television system
permitted to be installed and operated hereunder may also
engage in the business of:
(1) Transmitting television pictures, film and
videotape programs, not received ttxough broadcast ".television
signals, whether or not encoded or processed to permit recep-
tion by only selected receivers or subscribers.
(2) Transmitting and receiving all other signals;
digital, voice and audiovisual.
(3) Transmit original cable cast programming not
received through television broadcast signals.
(4) Transmit any additional broadcast signals permit-
ted by the -Federal Communications Commission.
(c) Service Policies.
(1) System Extension - The Grantee shall extend
installation and completion of his cable television system
throughout the designated service area as provided in the
Franchise with reasonable diligence. After acceptance of any
franchise, Grantee shall proceed to equitably and reasonably
extend energized trunk cable to at least thirty percent
(30a) of the franchise area each year thereafter, but under no
circumstances is this construction schedule to extend beyond a
three-year period at which time Grantee shall have completed
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construction of the entire City unless a shorter construction
schedule is set forth in the Franchise.
(2) System Extension, Existing and New Developments -
(i) To the extent not otherwise provided for in the
franchise and for the purposes of determining compliance with
the provisions of subparagraph (1) above, and to provide for a
reasonable policy requiring extension of energized trunk lines
of the cable system within the franchise area, grantee at a
minimum shall extend cable television service to any existing
and new development or group of residences at the standard rate
if the existing or new development or group of residences to be
• served has a density of at least fifty (50) residences per
strand mile or trunk line cable installed and any development
or group of residences not meeting any or all of the above
requirements may be served at Grantee's discretion.
(3) System Extension, Isolated Subscribers -
(i) To the extent not otherwise provided for in the
Franchise Grantee at a minimum shall extend cable television
services to any isolated residence at the standard rate if:
(a) The resident requests the service extension;
(b) The service connection to the isolated residence
would require no more than a standard two hundred fifty (250)
foot drop.
(ii) Grantee shall extend cable television services
to any isolated residence requiring more than a standard two
hundred fifty (250) foot drop at a. premiuminstallation rate if
such service has been requested by the resident directly or
through the City Manager. The premium installation rate
charged shall be the actual cost for the distance exceeding two
hundred fifty (250) feet. Grantee may request advance payment
for such installation. If any additional residences are
• subsequently connected to the system using this same cable
extension, there shall be a prorated return of this installa-
tion fee in accordance with a reimbursement agreement in the
form of which shall be approved by the City Manager.
•
(4) System Extension - Limitation -
(i) Unless otherwise provided for in the franchise,
Grantee shall not, be required to extend in any twelve (12)
month period, trunk line cable to more than thirty percent
(300) of that portion of the franchise area not having cable at
the time of the adoption of this ordinance. If more than one
Grantee exists, this limitation shall be divided, on a pro-rata
basis according to the size of each cable television system (as
measured in miles of cable), and applied to each Grantee.
Requests for system extension in excess of this limitation may
be deferred, at Grantee's option, to the next twelve (12) month
period. Should Grantee elect to extend the system in excess of
this limitation, credit for such extension shall be made
against extension requirements in the next (12) month period.
(ii) The Council may defer or indefinitely suspend
any expansion required by this Ordinance after a showing by
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Grantee that such expansion would cause unreasDnable financial
hardship to Grantee. Such a showing shall be made by the
Council after a public hearing. The City Clerk shall publish a
notice of any such hearing, setting forth a time and place when
and where any persons having any interest therein may appear
before the Council and be heard, at least ten (10) days prior
to the hearing in a newspaper of general circulation within
the City. The City Clerk shall also cause a copy of such
notice to be.mailed to Grantee at least ten (10) days prior to
the hearing.
(5) Undergrounding of the System - The cable system
• shall be placed underground in localities where both telephone
and power lines are underground. The Grantee at its sole cost
shall replace aerial facilities with underground facilities
concurrently and in cooperation with similar programs of the
telephone and power utilities. At no time shall the cable
system be the only aerial facility. Where undergrounding is
required, the Grantee shall have the option of sharing or not
sharing utility trenches. At no time shall Grantee place cable
underground without appropriate conduit.
(d) Subscriber Complaints and Customer Relations.
In addition to other service regulations adopted by the Council,
and excepting circumstances beyond Grantee's control, such as
Acts of God, riots and civic disturbances (including labor
disturbances), and in providing the foregoing services, the
following conditions shall be met:
(1) Correcting Malfunctions - The Grantee shall limit
system failures to minimum time duration by locating and .
correcting malfunctioning promptly, but in no event longer than
twenty-four (24) hours after occurrence, irrespective of
holidays or other nonbusiness hours.
(2) Demonstrating Signal Strengths - The Grantee
shall, upon complaint by a subscriber and request of the City
Manager, make a demonstration satisfactory to the City Manager
that a signal is being delivered w..iich is of sufficient strength
and quality to meet the standards set forth in the regulations
of the Federal Communications Commission.
(3) Prompt Repairs - The Grantee shall render effi-
cient service, making repairs promptly and,, interrupting service
only for good cause and for the shortest time possible.
Planned interruptions insofar as possible, shall be preceded by
notice given to subscribers twenty-four (24) hours in advance
and shall occur during periods of minimum use of the system.
(4) Processing Complaints - The Grantee shall main-
tain an office in the City which shall be open during all the
usual business hours and to which toll -free telephone access
shall be available during all the usual business hours,. with
its telephone listed in directories of the telephone company
serving the City, and be so operated that complaints and
requests for repairs or adjustments may be received at any
time, day or night, seven days a week. All complaints shall be
acknowledged within twenty-four (24) hours.
The City Manager or his
shall be responsible for assisting
consumer complaints. Citizens, or
• service.
om
designated representative
in the resolution of any
Grantee may call upon this
Grantee shall advise call new subscribers of this
complaint process in writing.
(5) Complaint Log - The Grantee -shall maintain a
written record, or "log", listing date of customer complaints,
identifying the subscriber and describing the nature of the
complaint, and when and what action was taken by Grantee in
response thereto: said record shall be kept on file at Grantee's
local office for a period of two (2) years and shall be avail-
able for inspection during regular business hours, without
further notice or demand, by the City Manager.
. (6) Property Damage - Any physical damage caused by
employees or subcontractors of the Grantee to property shall be
repaired or replaced, provided, however, this provision shall
not be construed to expand the scope of Grantee's liability for
property damage.
(7) Subcontractors - The Grantee shall be directly
responsible for the actions of all Grantee subcontractors in
connection with their performances of Grantee's obligations
under this Ordinance and shall take positive steps to insure
that all applicable franchise provisions are met.
(e) Community Service.
(1) With respect to the local government and educa-
tional channels, the Grantee shall provide, at the request of
the City Manager, use of Grantee's studio, equipment and
technical services for production of live and videotape com-
munity service programs, subject to scheduling requirements of
the Grantee. The use of technical facilities for programming
shall not exceed the requirements of the Federal Communication
Commission.
(2) With respect the the basic television services,
the Grantee shall provide all subscriber services, and a tie-in
• connection, without cost, when the ,system passes the following
facilities.
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(i) Public schools and community colleges within the
City;
(ii) Buildings owned and controlled by the City, used
for public purposes;
Council. (iii) Other public facilities as designated by the
(3) Grantee shall assist in training City and School
District employees for TV production programming for the
purpose of coordinating TV production between the City and
Grantee.
SECTION 11-19. PERIODIC REPORTING
The following information shall be reported -to the
City on annual basis and the report shall be received by the
City Manager on or before the first day of April of each
year.
(a)'.Existing Service Area - An outline of the existing
• service area with comments on small areas not actually served,
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areas where certain services are not yet available, or areas
where special conditions exist. All special rate areas or
isolated subscribers shall be indicated.
(b) Work in Progress - An.indication on the map of
areas where system construction or reconstruction is in progress
plus a comment on the present status and anticipated schedule
of completion of the work in each area.
(c) Proposed Service Area - An indication on the map
of those areas where service is planned and a schedule describ-
ing the planned implementation..
• (d) Special Service Points - Maps or lists indicating
where any type of special service is available.
(e) Statistics on Subscribers - The following numbers
shall be supplied : single-family homes passed, single-family
subscribers, multiple -dwelling units passed, multiple -dwelling
unit subscribers, commercial subscribers, additional television
outlets, and saturation (total subscribers divided by total
dwelling units passed.)
(f) Statistics on System Expansion - A listing of any
expansion of the cable system including a measure, in miles of
cable, of such expansion. Designations shall be included to
identify expansions to new developments.
(g) Technical Standards - A detailed, informative,
and referenced statement describing the actual equipment and
operationals standards of the Grantee and the corresponding
standards required by this Ordinance. Such statement shall be
certified by a third party for accuracy.
(h) Subscriber Agreements - Copies of new or revised
subscriber agreements, if any.
.. SECTION 11-20. 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 may be
required to pay to the City, during the life of the franchise
and on all of the following: 4
(1) A percentage of its Gross Annual Basis Subscriber
Receipts as authorized by the Federal Communications Commission;
(2) A percentage of its Gross Annual Non -Basic
Subscriber Receipts as authorized by the Federal Communications
Commission; and
(3) A percentage of any other receipts as authorized
by the Federal Communications Commission may be levied by the
City.
(b) The percentage payments shall be made in lawful
money of the United States on or before the first day of April
of each year for operations during the preceding calendar year;
or, as otherwise required by a Council resolution.
(c) 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 increasing, by more than five
percent (5%), the Grantee's annual payment to the City. An
accounting rendered to the City, and to which no exception is
made within three (3) years after receipt by the City, shall be
deemed to be accurate and shall not thereafter by subject
to question or made the basis of any claim by City against
Grantee.
(d) 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.
(e) In the events the above payments are not received
by the City within the specified time, grantee shall pay to the
City liquidated damages of two (2) percent per month on the
unpaid balance in addition thereto.
(f) The City shall have the right to increase said
franchise payments only after a public hearing. The City Clerk
shall publish a notice of any such hearing, setting forth a
time and place when and where any persons having any interest
therein may appear before the City Council and be heard, at
least ten (10) days prior to the hearing in a newspaper of
general circulation within the City. The City Clerk shall also
cause a copy of such notice to be mailed to Grantee at least
ten (10) days prior to the hearing. In no event, however,
shall said franchise payment be increased beyond that permitted
by California Government Code Section 53066, or the regulations
of the Federal Communications Commission.
(g) None of the provisions herein shall exempt
Grantee from obtaining a City business license in accordance
with the provisions of the West Covina Municipal Code.
• SECTION 11 - 21. FRANC11_YSE TERM: DURATION, TERMINA-
TION, PERIODIC REVIEW AND RENEWAL'.
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(a) Duration. The franchise granted under this
Ordinance shall be for a term not to exceed fifteen (15) years,
from the date of its acceptance by the Grantee, as determined
by the City Council.
(b) Termination.
(1) The City may terminate any franchise granted
pursuant to the provisions of this Ordinance in the event of
the willful failure, refusal or neglect by Grantee to do or
comply with any material requirement or limitation contained in
this Ordinance, or any material rule or regulations of the
Council or City Manager validly adopted pursuant to this
Ordinance.
(2) The City Manager may make written demand that the
Grantee do or comply with any such requirement, limitation,
term, condition, rule or regulation. If the failure, refusal
or neglect of the Grantee continues for a period of thirty (30)
days following such written demand, the City Manager may place.
his request for termination of the franchise upon the next
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regular Council meeting agenda. The Council shall hold a
public hearing to consider the City Manager's request. The
City Clerk shall cause to be served upon such Grantee, at least
thirty (30) days prior to the date of such Council meeting, a
written notice of his intent to request such termination, and
the time andplace of the meeting. The City Clerk shall also
publish a notice of such a hearing, setting forth a time and
place when and where any persons having any interest therein
may appear before the Council and .be heard, at least ten (10)
days prior to the hearing in a newspaper of general circulation
within the City.
• (3) The Council shall consider the request of the
City Manager and shall hear any persons interested therein, and
shall determine, in its discretion, whether or not any failure,
refusal or neglect by the Grantee was with just cause.
(4) 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.
(5) 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 by
compliance by the Grantee within such period as the Council may
fix, or reduce the length of the franchise by a period of time
up to the duration of the failure and/or violation.
(6) The termination and forfeiture of any franchise
shall in no way affect any of the rights of the City under the
franchise or any provision of law.
(7) In the event of any holding over after expiration
or other termination of any franchise granted hereunder,
• without the prior consent of the City, expressed by resolution,
the Grantee shall pay to the City reasonable compensation,
damages and penalties of not less 'han one hundred"percent
(100%) of all gross receipts during said period, unless an
application for franchise renewal is pending before the Council.
(c) Periodic Review. Every five (5) years, commencing
with the date of franchise adoption, the % ty may review any
existing franchise and adopt, by resolution, any modifications
that may be deemed reasonably necessary for the public health,
safety or welfare. Such resolution shall only be adopted after
a public hearing. The City Clerk shall publish a notice of any
such hearing, setting forth a time and place when and where
any persons having any interest therein may appear before the
Council and be heard, at least ten (10) days prior to the
hearing in a newspaper of general circulation within the City.
The City Clerk shall also cause a copy of such notice to be
mailed to Grantee at least ten (10) days prior to the hearing.
No modifications to the existing franchise may be made which
will substantially amend the existing contractual rights and
obligations of the Grantee without Grantee's consent.
(d) Annual System Review. Every year, commencing
with the acceptance of the franchise specified, the City
shall review the progress of cable television services as
specified in Section 3 and the respective implementation
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schedules to determine the extent of compliance to the terms of
the franchise. The City Manager shall submit a report to the
City Council prior to June 1st of each year with recommenda-
tions for modification of the term of the franchise if necessary.
The City Council shall consider this report and may call for a
public hearing as specified in Section 6 (b). The City Council
may, at the conclusion of this review or public hearing, reduce
the term of the franchise for failure of the Grantee to comply
with the implementation schedules specified in the franchise
according to the following:
Days Beyond Implementation Date
•
Less than
thirty
days
(30)
More than
thirty
days
(30)
Each thirty days (30) thereafter
Amount of Reduction
0
30 days
30 days
For the purpose of this provision, a thirty (30) day
period beyond the implementation date shall be more than
fifteen (15) days up to thirty (30) days.
(e) Renewal. Any franchise granted under this
Ordinance is renewable at the application of the Grantee, in
the same manner and upon the same terms and conditions as.
required herein for obtaining the original franchise, except
those which are by their terms expressly inapplicable, provided,
however, that the Council may waive compliance with any and all
of those requirements. The Council may give preference to a
Grantee having provided satisfactory service and an upgraded
cable system during his franchise term. Grantee shall make
application for franchise renewal at least one (1) year prior
to franchise expiration.
SECTION 11-22. APPLICATIONS FOR FRANCHISE
(a) Each application for a franchise to construct,
operate, or maintain any cable television systems in this City
shall be filed with the City Clerk/"and shall 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 and to whatever extent required
by the C i ty .
(i) The names and business addresses of all officers
and directors of the applicant. If the applicant is a partner-
ship or other unincorporated association, the name and address
of each member, whether active or inactive shall be set forth,
and if one or more partners are corporations, the names addres-
ses and occupations of such corporation's officers, directors
and major stockholders shall also be stated.
(ii) The names and business addresses of all officers,
persons and entities having, controlling or being entitled to
have or control of 5% or more of the ownership of the applicant
and the respective ownership share of each such person or
entity.
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(iii) The names and addresses of any parent or
subsidiary of the applicant, namely, any other business entity
owning or controlling applicant in whole or part or owned or
controlled in whole or in part by the applicant, and such a
statement describing the nature of any such parent or subsidiary
and the areas served thereby.
(iv) A detailed description of all previous experience
of the applicant in providing cable 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 such lending instuti-
tion 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 along
with a statement setting forth the minimum amount of cash
resources to be committed to the construction and operation of
the proposed system in the City.
(vi) A statement identifying by name, place, address,
telephone number any other cable television franchise(s)
awarded to the applicant, its parent or subsidiary; the status
of said franchise(s) with respect to completion thereof; and
the amount of applicants and its parents 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 map indicating all areas proposed to
be served, and a proposed time schedule for the installation of
all equipment necessary to become operational throughout the
entire area to be served.
(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 state-
ment describing the actual equipment and operational standards
proposed by the applicant. In no event shall said operational
and performance standards be less than those contained in Title
47, Subpart K (Section 76-601 et seq.); Rules and Regulations,
Federal Communications Commission, adopted February 2, 1972,
and as amended.
(v) A copy of the form of any agreement, undertaking,
or other instrument proposed to be entered into between.the
applicant and any subscriber.
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(vi) A detailed statement setting forth in its
entirety any and all agreements and undertakings, -whether
formal or informal, written or oral, or implied, existing or
proposed to exist between the applicant and any person, firm,
or corporation which materially relate to, materially pertain
to, or materially 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 or
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.
(6) An application fee which shall be in form of a
certified or cashier's check or a money order in the amount of
three thousand dollars ($3,000). Said fee will be used to fund
the studying, investigating and other processing of such
application. If, in the opinion of the City Manager, the
processing costs exceeds that required to complete the proces-
sing, the applicants shall deposit an amount specified by the
City Manager, to fund the completion of the processing. The
City shall provide each franchise applicant with a written
statement of such expenses within thirty (30) days after
completion of the application.process. The first one thousand
dollars.($1,000) shall not be returnable or refundable in whole
or in part. Refunds for the fund balance over the expenses and
the first one thousand dollars ($1,000) will be made at the
same time as the written statement of expenses is issued.
(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 determi-
nations and specify any other times; terms, conditions, or
limitations respecting the soliciting, cal4ing for, making and
receiving of such applications.
U
(c) Upon receipt of any application for franchise,
the Council shall refer the same to the City Manager who shall
prepare a report and make his recommendations respecting such
applications, and cause the same to be completed and filed with
the Council and the franchise applicants within ninety (90)
days unless otherwise extended for additional period of time by
the City Council.
(d) Upon receipt of said report and recommendations
of the City Manager the Council shall:
(1) Decide and specify the terms and conditions of
any franchise to be granted hereunder and as herein provided.
(2) Adopt a resolution of intention to consider the
granting of such a franchise, and schedule a public hearing for
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such consideration, giving notice of receipt of the applica-
tions, and describing the character of the franchise desired,
the character of the franchise, the terms and conditions upon
which such 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 of
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 in a newspaper
of general circulation within the City at least ten (10) days
prior to said hearing.
' (e) At the time set for the hearing, or at any
adjournment thereof, the Council shall proceed to hear all
interested persons and any objections or protests to the
granting of a franchise..
In making any determination hereunder as to any
application, the Council may give due consideration to the
quality of the service proposed, rates to subscriber, income to
the City, experience, character, background, financial responsi-
bility of any applicant, and its management and owners, techni-
cal and performance quality of equipment, willingness and
ability to meet construction and physical requirements, and to
abide by policy conditions, franchise limitations and require-
ments, and any other considerations deemed pertinent by the
'Council for safeguarding the interests of the City and public.
The Council, at its discretion, shall determine the award of
any franchise on the basis of such considerations and without
competitive bidding.
(f) After the public hearing the Council shall make
one of the following determinations:
(1) That one or more of said applications for a
franchise be denied which determination shall be final and
• conclusive; or
(2) That one or more of'said applications for a
franchise be granted upon the terms and conditions as specified
in the resolution of intention to grant the same; or
(3) That one or more of said applications for a
franchise be granted, but upon the terms and conditions differ-
ent from those specified in the resolution of intention to
grant the same.
•
(g) If the Council shall determine that an applica-
tion or applications for a franchise be denied, such determi-
nation shall be expressed by resolution and shall be final and
conclusive.
If the Council shall determine that an application or
applications for a franchise be granted upon the terms and
conditions as specified in the resolution of intention to con-
sider granting the same, such determination. shall be expressed
by ordinance granting a franchise to the applicant or applicants.
If the Council shall determine upon granting an
application or applications for a franchise upon terms and
conditions different from those specified in the resolution of
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intention to consider granting the same, then such determina-
tions the same, then such determinations shall be expressed by
resolution adopted prior to granting a franchise by ordinance.
(h) The Council may reject any and all applications
and may, if it so desires, request new and/or additional
proposals. The Council may at any time demand and applicant(s)
shall provide such supplementary, additional or other informa-
tion as the Council may deem reasonably necessary to determine
whether the requested franchise should be granted.
' (i) Any Grantee, upon the effective date of its
franchise, shall be required to reimburse City for its esti-
mated engineering, administrative, publication and legal
expenses incurred in connection with the processing, evalua-
tion, and preparation of documents relating to such franchise,
as such shall be established in the franchise agreement
in a total amount not to exceed Fifteen Thousand Dollars
($15,000)
SECTION 11 -23. BONDS, INDEMNIFICATIONS, INSURANCE
(a) Security Fund.
(1) Within thirty (30) days after written notification
of the award of a franchise by the City, the selected applicant
shall deposit with the City and maintain on deposit throughout
the term of the franchise a security fund in the. sum of fifty
thousand dollars ($50,000) in cash as security for the faithful
performance by grantee of all provisions of this Chapter and
the franchise and compliance with all orders, permits and
directions of any agency or department of the City having
jurisdiction over grantee's operations.
(2) Within fifteen (15) days after written notice to
grantee by the City that the City has withdrawn any amount from
• the security fund, grantee shall deposit or pay to the City a
sum of money sufficient to restore''such security fund to the
original amount of fifty thousand dollars ($50,000).
(3) If grantee fails to pay the City any monies due
within the time fixed in this Chapter or the franchise or fails
after ten (10) days' written notice to pay to the City any
taxes due and unpaid; or fails to repay to the City within ten
(10) days' written notice, any damages, penalties, costs or
expenses which the City may be compelled to pay by reason of
any act, omission or default of grantee; or fails after ten
(10) days' written notice to comply with any provision of
this'Chapter or the franchise which the City_ reasonably deter-
mines can be remedied or partially cured by an expenditure from
the security fund, the City may immediately withdraw the amount
thereof, with interest and any penalties, from the security
fund. Upon such withdrawal, the City shall in writing notify
grantee of the amount and date thereof. In the event the
security fund is insufficient to pay the City for any compensa-
tion, damages,'penalties, costs of expenses owing to the City
pursuant to this Chapter or the franchise, the performance bond
may be drawn upon by the City for any amount due the City over
and above the amount held in the security fund.
(4) The
security fund, including
any
interest
that
may have accrued,
shall become the property
of
the City
in the
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event that a franchise is terminated by the City by reason of a
violation of this Chapter or breach of the franchise pursuant
to the provisions of Section 6 hereof.
(5) Upon application to the City, grantee shall be.
entitled to the return of all monies remaining in the security
fund, including accrued interest, at the expiration of the
franchise or any renewal thereof, provided there is then no
outstanding default of monies owing on the part of grantee to
the City.
(.6) The rights reserved to the City with respect to
the security fund are in addition to all other rights. of the
City, whether reserved by this Chapter or authorized by law,
and no action, proceeding or exercise of a right with respect
to such security fund shall affect any other right the City may
have.
(b) Performance Bond to City. Upon being granted a
franchise, and upon the filing of the acceptance required under
Section 9 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 recoverably jointly and severally from the
principal and surety any damages of 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 continuing obligation during the
• entire term of such franchise and thereafter until..Grantee
shall have satisfied in full any acid 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 thereunder shall be construed to excuse faithful perform-
ance by the Grantee , or limit the liability of the Grantee
under any franchise issued pursuant to this ordinance or for
damages either to the full amount of the bond, or otherwise.
•
(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,
demands, causes of action, actions, suits, proceedings, damage
(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
the owners of authorized distributors or licensees of programs
delivered by Grantee's cable television system), costs or
liabilities of every kind and nature whatsoever, including
but not limited to damages for injury or death or -damage to
person or property, caused solely by the. negligent act or
omission of Grantee, its officers, agents, and employees in the
exercise of any of its rights or privileges under its franchise
hereunder.
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•
The term "costs or liabilities" includes but is not
limited to, reasonable attorney's fees, reasonable accountant's
fees, reasonable expert witness or consultant fees,.reasonable
per diem expenses and travelling expenses for witnesses, and
court costs of any trial.
(d) Defense of Litigation. Grantee shall at the
sole risk and expense of Grantee, upon demand of the City, made
by and through the City Attorney, appear in and defend any and
all suits, actions, or other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative, or otherwise,
brough or instituted or had by third persons or duly constituted
authorities, against or affecting the City, its officers,
boards, commissions, agents, or employees, or 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 shall cause to be
paid and satisfied any judgement, decree, order, directive, or
demand rendered, made or issued against Grantee, the City, its
officers, boards, commissions, agents, or employees, in any of
these premises; and such indemnity shall exist and continue
without reference to or limitation by the amount of any bond,
policy of 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 without first obtaining the written
consent of the other.
(e) Expenses of Litigation. In the event of any
legal action between Grantee and the City arising out of any
.alleged breach by Grantee of any term of condition or provi-
sions of this franchise, the successful party shall be entitled
to reasonable attorney's fees, and court costs related to the
litigation, in addition to any other judgment or order by the
court of competent jurisdiction.
(f) Insurance Required.f upon being granted a fran-
chise and upon the filing of the accpetance required under
Section 9 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
each of the following policies of insurances:
(1) General Comprehensive Liability Insurance in the
amount of $1,000,000, together with Bodily Injury Liability
Insurance in an amount not less than $1,000,000, 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 $500,000,
resulting from any one occurrence; provided, however, as
follows:
(i) The City shall be named as an additional insured
in any of said insurance policies; and
(ii) 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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t, -
SECTION ll - 24. ACCEPTANCE OF THE FRANCHISE
(a) No franchise granted under this Ordinance shall
become effective for any purpose unless and until written
acceptance thereof 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 o'clock p.m. of the fortieth
(40th) day following the effective date of the resolution
granting such franchise.
(c) In default of the filing of such written accept-
ance as herein required, the Grantee shall be deemed to have
rejected and repudiated the franchise. Thereafter, the accept-
ance of the Grantee shall not be received nor filed by the City
Clerk. The Grantee shall have no rights, remedies, or redress
under that franchise unless and until the Council, by resolu-
tion, 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 continu-
ously 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
ordinance shall be in lieu
leges, powers, immunities,
controlled, or exercisable
the contruction, operation
sion systems in the City.
granted and accepted under this
of any and all other rights, priv i-
and authorities owned, possessed,
by the Grantee, of or pertaining to
or_maintenance"of any cable televi-
SECTION 11 - 25. LIMITATIONS OF FRANCHISE
(a) Every franchise granted under,r.this chapter shall
be non-exclusive.
(b) No privilege or exemption is granted or conferred
by any franchise granted under this chapter except those
specifically described 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 even be sold, transferred, leased, assigned or disposed of,
in whole or in part, either by force or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise, without
prior consent of the Council expressed by resolution, and then
only under such conditions, as may therein be prescribed. Any
0
such transfer or 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 transfer or
assignment The said consent of the Council may not be
unreasonably refused; provided, however, the proposed assignee
must show financial responsbility as determined by the Council
and must agree to comply with all provisions of this Ordinance;
and provided, 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 25% of the market value of the
property used by the franchise 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 the Grantee is a corporation, prior
approval of the City Council, expressed by resolution, shall be
required where there is an actual changes in control or where
ownership of more than 25% of the voting stock of Grantee is
acquired by a person or group .of persons acting in concert,
none of whom already own 50% or more of the voting stock,
single or collectively. Any such acquisition occurring without
prior approval of the City Council shall constitue failure to
comply with a provision of this Ordinance within the meaning
of Section 6 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) Any such franchise granted shall not relieve the
Grantee of any obligations involved in obtaining pole or
conduit space from any department of the City, utility company,
or from other who maintain utilities in the streets.
(h) 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.
(i) The Grantee shall be subject to all requirements
of City laws, rules, regulations, and specifications heretofore,
or hereafter enacted or established.
(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 of any and all of such rights,
privileges, powers, immunities, and authorities within the
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Citr, to the effect that, as between Grantee and 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 hereunder or
pursuant to any other right, privilege, power, immunity, or
authority whatsoever.
SECTION 11 - 26. RIGHTS RESERVED TO THE CITY
(a) Nothing herein shall be deemed on 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
or through the exercise of the right of eminent domain, at a
fair and just value, and nothing herein contained shall be
construed to contract away or to modify or abridge, whether for
a term of 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 including, but not limited to the police power.
(c) Neither the granting of any franchise nor any
provision hereof shall constitute a waiver or bar to the
exercise of any governmental right of power of the City.
(d) 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 City Manager, with the concurrence of the City Attorney, 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 of the City Manager may
appeal the matter to the Council fox hearing and determination.
The Council may accept, reject or modify the decision of the
City Manager, and the Council may adjust, settle or compromise
any controversy or cancel any charge arising from the operations
of the Grantee or from any provision of this Ordinance.
No adjustment, settlement or compromise whether
instituted by the City Manager or by the Council, shall be
contrary to the provisions of this Ordinance or of the franchise
agreement, and neither the City Manager nor the Council in the
adjustment, settlement or compromise of any controversy shall
have the right or authority to add to, modify or delete any
provision of the franchise agreement.
SECTION 11- 27. RULES AND REGULATIONS
(a) Rules and Regulations. The Council may adopt
procedural rules, regulations and standards for the purpose of
carrying out the provisions of this Ordinance. The City there-
fore reserves the power to adopt and enforce requirements and
regulations on any or all of the following matters, if and when
deemed necessary and proper in the public interest by the City
Council and are consistent with Rules and Regulations of the
Federal Communications Commission:
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I
(i) Procedures for the periodic fixing of reasonable
rates and.service charges to be charged to subscribers by
Grantee, and provisions for the enforcement thereof.
(ii) Channel capacity requirements.
(iii) Operational standards pertaining to the quality
of audio-visual reception by subscribers.
(iv) Requirements for carriage of specified television
signals, radio signals, and supplementary signal carriage
services.
(v) Requirements for the provision of equipment and
channels for local production and presentation of cablecast
programs, and regulations pertaining thereto.
(vi) Requirements and regulations pertaining to
minimum service requirements and fair business practices by the
Grantee.
(vii) Public safety requirements pertaining to the
installation and use of all CATV equipment.
(viii) Procedures for the investigation and resolution
of all complaints by subscribers regarding Grantee's CATV
operations, including implementation thereof be designated City
officer, employees, or agents.
(xi) Public access channels, equipment and facilities.
(x) In the event that the Federal Communications
Commission elects to deregulate any area of cable communication
over which it currently exercises jurisdiction, or grant
authority to municipalities to regulate in these areas, any
franchise issued pursuant to this ordinance shall be automati-
cally amended, without any additional act by any party to it,
to reflect these new municipal regglatory powers, and the City
may, if it so elects, adopt rules.''and regulations,". in these
areas.
(b) Technical Standards. The Grantee shall install,
operate, and maintain the cable television system in accordance
with all established technical standards adopted by the Federal
Communications Commission.
(c) Standards of Operation.
(1.) Prior to receiving any applications for fran-
chises, the Council may adopt rules, regulations and standards
governing the operation of cable television systems in the
City. Such rules, regulations and standards shall apply to and
shall govern the operations of the Grantee of any franchise
hereunder, and are expressly declared a part of any franchise
hereunder.
(2) Rules,'regulations and standards governing the
operation not adopted prior to receiving any application
for a franchise shall be adopted by the Council at the first
regular meeting of the Council next following the effective
date of this ordinance, by resolution which shall become
effective upon adoption and shall be applicable to any applica-
tion for a franchise previously received.
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(3) The standards adopted pursuant to these procedures
shall be exclusively in those areas not preempted by the
Federal Communications Commission at the time of adoption.
(4) The Council may at any time adopt new rules or
regulations or standards, or may amend, modify, delete, or
otherwise change its respective rules or regulations or stan-
dards previously adopted, in the following manner: The Council
shall pass its resolution of intention stating or describing
the rules of regulations or standards to be adopted, amended,
modified, deleted, or otherwise changed, and.fixing and setting
forth a day, hours, and place cer.ta�in 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 adjourn-
ment thereof, the Council shall proceed to hear and pass upon
such comments as 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.
The rules and regulations as amended, modified, deleted, or
otherwise changed by the Council shall become effective upon
the tenth (loth) day following the adoption of such resolution,
unless a longer period shall be otherwise provided in such
resolution.
SECTION 11-28. RATES
(a) The provisions contained herein relating to rates
shall apply to any grantee during the first year following the
date of delivery of service pursuant to the initial grant of a
franchise hereunder pursuant to thee''provisions of ,government
Code Section 53066.1 (a) and shall continue to be .applicable to
any grantee beyond said first year unless said grantee makes
the necessary election and files the necessary declaration of
exemption with the City, all in accordance with the require-
ments of Government Code section 53066.1.,
A
(b) At the time of the granting of any franchise
hereunder, the Council shall establish and fix all rates and
charges for the Basic Service, herein defined, allowable to
Grantee, such as:
(1) Charges for installation.
(2) Subscriber rates
(3) Service charges forseparate classifications of
service (e.g. additional connections, etc.).
(4) Once established, such rates or charges shall not
be increased at any time after granting of a franchise, except
after due notice and hearing as provided herein or as, otherwise
provided in subparagraph (a) above.
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(c) Rates and charges for services, other than the
Basic Service, shall also.be approved by the Council by resolu-
tion, after due notice and hearing as provided herein to the
extent authorized by the Federal Communications Commission and
State Law.
(d) Prior approval of the Council is required before
the Grantee may increase any rates or charges to subscribers,
or make new rates for additional services, to the extent
authorized by Federal and State law.
(1) In the event that Grantee desires to change any
. rate or rates it shall file a petition with the Council at
least ninety (90) days prior to the proposed date of rate
change. Said petition shall set forth the proposed changes and
the reason as upon which said changes are based. Upon receipt
of said petition for rate change the Council may direct the
City Manager to conduct a study and make recommendations
concerning said rate change request. Following receipt of said
report and recommendation the Council shall hold a public
hearing on the rate change request. Notice of.any such hearing
shall describe any rates or charges to be fixed or changed, the
reasons therefor, and setting forth the time and place when and
where any persons having any interest therein may appear before
the Council and be heard. The City Clerk shall publish the
notice at least ten (10) days before the hearing in a newspaper
of general -circulation within the City. The City Clerk shall
also cause a copy of such notice to be mailed to the Grantee at
least ten (10) days prior to the date specified for the
hearing.
(2) Following said public hearing, the Council may
establish and fix rates or charges so as to provide a rate of
return reasonable and fair to the Grantee and the public.
(3) The Council shall adopt a resolution approving,
disapproving or modifying the proposed rate change request
which resolution shall establish and fix any new rates or
charges therein. Such resolution shall hereupon b2-part of any
franchise granted under this Ordinance. In addition, said
resolution shall set forth findings of fact and conclusions to
support said determination of.the Council in connection with
said rate change request.
(4) The Council shall render its'decision within
ninety (90) days after receipt fo the petition for change of
rate except that said period may be extended for an additional
thirty days upon motion of the Council or upon written request
by the Grantee. In the event that the Council does not make a
decision within the time periods heretofore mentioned, Grantee
may institute the proposed rate changes upon an interim basis.
Rates charged on an interim basis shall be conformed to,the
decision of the Council when rendered. Upon request by.the
Council, Grantee shall post a security bond on an acceptable
surety company to guarantee any adjustments or refunds that may
be required pursuant to the decision of the Council.
(5) The Council on its own motion may direct the City
Manager to conduct a study of the Grantee's rates at.any time,
and make recommendations concerning the same. Following
receipt of the City Manager's report and recommendation, the
Council shall hold a public hearing prior to changing any
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6
existing rate or approving any new rate or charge. Notice of
any such hearing shall describe any rates or charges to be
fixed or changed, the reasons therefor, and setting forth a
time and place when and where any persons having any interest
therein may appear before the Council and be heard. The
City Clerk shall publish the notice at least thirty (30) days
before the hearing in a newspaper of general circulation within
the City. The City Clerk shall also cause a copy of such
notice to be mailed to the Grantee at least thirty (30) days
priorUto the date specified for the hearing. Following said
public hearing, the.decision of the Council shall be made in
accordance with the provisions of subsection (3) set forth
above.
(d) Franchisee shall keep and maintain records of
investment and operational expense and make same available to
the City upon reasonable notice and demand.
(e) Neither the Council not the Grantee shall, as to
rates, charges, service, service facilities, rules regulations,
or in any other respect, make or grant any preference or advan-
tage to any person, not subject any person to prejudice or
disadvantage.
(f) In the event that Federal.or State law precludes
the City from regulating rates, the Grantee shall notify the
City of their intent to increase or otherwise revise their
rates. Said notification shall be made in writing ninety (90)
days prior to the proposed date for implementation of the new
rates.
SECTION 11 - 29. 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 microwave transmission
facilitites.
(b) Within ninety (90) days after obtaining all
necessary.permits, licenses and authorization, including right
of access to poles and conduits, Grantee shall commence con-
struction 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 serviceto 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 construction made part of the franchise shall be
provided as set forth therein and in compliance with section 3
(c) herein.
(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
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•
for. termination of such franchise. By resolution, the Council,
at 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, experi-
ences delays by reason of circumstances beyond his control.
By acceptance of the franchise granted hereunder,
Grantee agrees that failure to comply with any time require-
ments referred to in subsections (a), (b), (c) and (d) of this
section will result in damage to the City, and that it is and
will be impracticable to determine the actual amount of such
damage in the event of delay.
(e) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and.shall not construct
or install any new, different, or additional poles, conduits or
other facilities whether on public property or on privately
owned property unless and until first securing the written
approval of the City Manager. Whenever the Grantee shall not
utilize existing poles, conduits and other facilities, or
whenever existing conduits and other facilities shall be
located beneath the surface of the streets,or whenever the City
shall undertake a program designed to cause all conduits and
other facilities to be located beneath the surface of the
streets in any area or throughout the City, in the exercise of
its police power or pursuant to the terms hereof, upon reason-
able notice to Grantee, any such conduits or other facilities
of Grantee shall be constructed, installed, placed or replaced
beneath the surface of the streets. Any construction, instal-
lation,.placement, replacement or changes which may be required
shall be made at the expense of the Grantee.
(f) The City shall have.the right to make additional
use, for any public or municipal purpose, whether governmental
or proprietary, of any poles or conduits controlled or main-
tained exclusively by or for Grantee in any street, provided
such use by City does not interfere with the use by Grantee.
(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 undOrground system;
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 City Manager, the same is
required by reason of traffic conditions, public safety, street
vacation, freeway or street construction, change or establish-
ment of street grade, installation of sewers, drains, water
pipes, 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 improve-
ment, 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
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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 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, the City Manager 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 approval 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 streets or other area from
which such property has been removed to such condi-
tion as the City Manager shall approve. 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 presc�"ibe. 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. p
SECTION 11 - 30. RIGHT OF INTERVENTION
The City may intervene in any suit or proceeding in
which the Grantee is a party, provided that the City interests
are not adequately represented by the existing parties, and
provided further, that the disposition of each suit or proceed-
ing without the Grantor's participation may, as a practical
matter, impair or impede the City's ability to protect those
interests.
SECTION 11 - 31. EFFECT OF ANNEXATIONS
(a) In the event any new territory shall be annexed
to the City which is contiguous to only one franchise area in
the City, such new territory shall become, by operation of law,
a part of such franchise area immediately upon the effective
date of such annexation.
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(b) In the event any new territory shall become
annexed to the City.which is contiguous to more than one
franchise area in the City or is not contiguous to any fran-
chise area, then the Council shall determine at a public
hearing, which Grantee or Grantees, if any, shall serve such
new territory.
(c) In the event any portion of the unincorporated
territory covered by an existing franchise or license granted
by the. County of Los Angeles is annexed to the City prior to
the time that the Grantee of such County franchise or license
has commenced installation of a CATV system within said terri-
tory, all rights acquired by said Grantee under its County
franchise or license shall terminate by operation of law as of
the date on which the annexation to the City becomes effective.
(d) In the event any portion of unincorporated
territory covered by an existing franchise or license granted
by the County of Los Angeles is annexed to the City after the
Grantee thereof has commenced or completed construction and
installation of a CATV system within said territory, the rights
reserved under such franchise or license to the County of Los
Angeles or to any officer thereof, shall inure to the benefit
of the City and all regulatory provisions of this Ordinance and
any other rules and regulations applicable to CATV systems
operating within the City, whether then in effect or subse-
quently adopted, shall be applicable to and binding upon said
Grantee. In addition, the Grantee shall be obligated to pay
annually to the City, the percentage of the gross receipts
established by the County of Los Angeles in said franchise or
license which are derived from its operations within the
annexed territory for five years or upon termination of the
franchise, whichever is of the shorter time duration, at which
time the Council may establish the percentage of gross receipts
to be paid to the City.
• SECTION 11 - 32. SAFETY REQUIREMENTS
(a) The Grantee shall at" all times employ ordinary
care and shall install and maintain in use commonly accepted
methods and devices for preventing failures and accidents which
are likely to cause damage, injuries, or nuisances to the
public.
(b) The Grantee shall install and maintain its wires,
cables, fixtures, and other equipment in accordance with the
requirements of the National Electrical Code, as it now exists
or hereafter may be amended and in such manner that they will
not interfere with any installations of the City or of a public
utility serving the City.
(c) All structures and all lines, equipment, and
connections in, over, under, and upon the streets, sidewalks,
alleys, and public ways or places of the City, wherever situated
or located, shall at all times be kept and maintained in a
safe, suitable substantial condition, and in good order and
repair.
(d) The Grantee shall strictly adhere to all building
and zoning codes currently or hereafter in force. The Grantee
shall arrange its lines, cables, and other appurtenances on
both public and private property, in such a manner as to cause
•
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no unreasonable intereference with the use of said public or
private property by any person.
SECTION 11 - 33. REMOVAL OF FACILITIES UPON REQUEST
Upon termination of service to any subscriber, the
Grantee shall promptly remove all its facilities and equipment
from the premises of such subscriber upon his request.
SECTION 11 - 34. REPAIR OF STREETS AND PUBLIC WAYS
Any and all streets and public ways which are dis-
turbed or damaged during the construction, operation, mainten-
ance, or reconstruction of the Cable Television System, shall
be promptly repaired by the Grantee, at its expense, to the
satisfaction of the City.
SECTION 11 - 35. SERVICES
Services shall be offered to all City residents in
accordance with the provisions of the franchise agreement. The
Grantee shall not materially reduce the level of service
without permission of the City, but may at its discretion
substitute programming to offer subscribers an equal or better
array of services.
SECTION 11 - 36. RECEIVERSHIP
Upon the foreclosure of other judicial sale of all or
a substantial part of the CATV System, or upon the termination
of any lease covering all or a substantial part of the CATV
system, the Grantee shall notify the City Clerk of such fact,
and such notification shall be treated as a notification that a
change in control of the Grantee has taken place and the
provisions of this ordinance governing the consent of the
Council to such change in control of the Grantee shall apply.
• The City shall have the,right to revoke the franchise
one hundred and twenty (120) days after the appointment of a
receiver, or trustee, to take over and conduct the business of
the Grantee, whether in receivership, reorganization , bank-
ruptcy, or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration
of said one hundred and twenty (120) days, or unless:
(a) Within one hundred and twenty (120) days after
his election or appointment, such receiver or trustee shall
have fully complied with all the provisions of the franchise
and remedied all defaults thereunder; and
(b) Such receiver or trustee, within said one hundred
and twenty (120) days shall have executed an agreement, duly
approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound
by each and every provision of the franchise.
SECTION 11 - 37. AUTHORITY OF CITY TO TERMINATE IN
THE EVENT OF CONDEMNATION
In order
franchise provided
of the Grantee by
to preserve the right of the City under the
for, and its right to acquire the property
purchase or by eminent domain proceedings at
its then fair market value, at any time during the existence of
the franchise, it is especially provided that if at any time
the franchise or the -roperty of the Grantee under the fran-
chise shall become the subject of eminent domain proceedings by
the City, the City reserves and shall have the right at the
time such proceedings are commenced, or at any time thereafter,
to terminate said franchise by resolution.
SECTION 11 - 38. CONTINUITY OF SERVICE MANDATORY
It shall be the right of all subscribers to receive
all available services insofar as their financial and other
. obligations to the Grantee are honored. In the event that the
Grantee elects to overbuild, rebuild, modify, or sell the
system, or the City revokes or fails to renew the franchise,
the Grantee shall do everything in it power to ensure that all
subscribers receive continuous, uninterrupted service regard-
less of the circumstances during the lifetime of the franchise.
In the event of purchase by the City or a change of Grantee,
the current Grantee shall cooperate with the City to operate
the system for a temporary period, in maintaining continuity of
service to all subscribers.
SECTION 11 - 39.
CONSULTANT
FINANCIAL DISCLOSURE OF INDEPENDENT
Any individual, partnership or corporation employed
by the City for the purposes of advising the City, its council,
its commissions city manager, or staff, on matters relating to
cable television, or reviewing and evaluating, or assisting the
City in reivewing and evaluating, proposals for the construc-
tion and operation of a cable television system (s), or regu-
lating, or assisting the City in regulating, a cable television
system, shall, as a term condition of their employment, file
with ten (10) days of the date of employment with the City
Clerk, a statement containing:
• (1) A listing and description of any financial and/or
ownership held by the consultant in'any cable television
company, any subsidiary of affiliate of any cable television
company, any company which is a supplier or customer of any
cable television company, or in other company which owns stock
or has any interest in any of those types of companies which
are described in this section. If the consultant is a partner-
ship, the financial and/or ownership interests in cable tele-
vision companies affiliates, subsidiaries, suppliers, and
customers of any partner must be disclosed. If the consultant
is a corporation, the financial and/or ownership interests in
cable television companies, affiliates, subsidiaries, suppliers,
and customers of any shareholder, officer or directors must be
disclosed.
(2) A listing and description of any cable television
company, affiliate, subsidiary, supplier or.customer which the
consultant has represented, on a compensated or non -compensated
basis, within the last fifteen (15) years.
.The statement filed pursuant to this section shall be
a public document open'to inspection by any person. Failure to
file this statement, or the inclusion of a material misrepre-
sentation or omission within the statement, shall constitute
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grounds for the.City's termination of the employment contract.
This provision shall not apply to individuals who are subject
to the reporting requirements of the "Political Reform Act of
1974" (California Government Code Sections 81008 et seq.) under
the local Conflict of Interest Code if the disclosures required
by.the Code are substantially similar to those of this section.
SECTION 11 - 40. 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 a 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, distri-
bute, 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 service system of Grantee.
(c) No franchise granted under this Ordinance shall
ever by given any value by any Court or other public authority
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 provision 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, 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 shall also 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 tele-
vision sets or radios;
(2) Imposing a fee or charge for repair to subscriber -
owned receiving devices except for the connection of
its service or for the determination by Grantee of
the quality of his signal to the recipients thereof;
• (3) Soliciting, referring, or causing or permitting
the solitication or.referral of any subscriber to
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.•
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.
(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.
(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 distribution 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,
In connection herewith, no person, firm or corporation shall be
required by Grantee to receive and pay for basic service in
order to receive non -basic services such as "pay television".
SECTION 11 - 41. EQUAL OPPORTUNITY EMPLOYMENT AND
AFFIRMATIVE ACTION PLAN
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 employ-
ment because of race, creed, color, sex, or national origin.
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 action shall include, but not be
limited to, the following: employment, upgrading, demotion or
termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship.
The Grantee shall post in conspicuous places, avail-
able to employees and applicants for employment, notices
setting forth the provisions of this non-discrimination clause.
The Grantee shall, in all solicitations or advertise-
ments for employees placed by on or behalf of the.Grantee,
state that all qualified applicants will receive consideration
for employment without regard to race creed, color, sex, or
national origin.
The Grantee shall incorporate the.foregoing require-
ments in all of its contracts for work.relative to construction,
maintenance and operation of the cable television system, other
than contracts for standard commercial supplies or raw materials,
and shall require all of its contractors other than those
contractors or subcontractors employing less than five (5)
employees for such work to incorporate such requirements in all
subcontracts for such work.
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SECTION 11 - 42. VIOLATIONS
(a) From and after the effective date of this Ordin-
ance, 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 the City, or within any privately
owned area within the City which has not yet become a public
street but is designated or delineated as a proposed public
street on any tentative subdivision map approved by the City,
any equipment or facilities for distributing any television
signals or radio signals, through a cable 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; or, unless specifically permitted by the
Council as expressed by resolution.
(b) It shall be unlawful for any person, firm, or
corporation to make or use any unauthorized connection, whether
physically, electrically, acoustically, indictively or otherwise
within this City for the purpose of enabling himself or others
to receive or use any television signals, radio signals,
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 Grantee, to willfully tamper with, remove or
injure any cables, wires, or equipment used for distribution of
television signals, radio signals, pictures, programs or
sound.
(d) If a subscriber files in writing with the fran-
chisor a complaint for a service problem which is preventable
and reasonably within the franchisee's or licensee's control,
and if such franchisee of licensee fails within a reaonsable
period following receipt of written notice by the franchisor to
. remedy the problem, the franchisor may levy a penalty of up to
Five Hundred Dollars ($500.00) for -'any occurrence ,.or series of
related occurrences, unless the franchisee or licensee has
fewer than five thousand (5,000) subscribers, in which case the
penalty shall not exceed Two Hundred Dollars ($200.00). If
the franchisee or licensee objects to the penalty in writing to
the franchisor, the franchisee or licensee and franchisor shall
conduct arbitration in accordance with the rules of the American
Arbitration Association. The decision of the arbitrator shall
be final.
The franchisee of licensee shall provide written
notice to each subscriber at intervals of not more than one (1)
year, of the sanctions provided in this section and of the
procedure for reporting and resolving subscriber complaints,
including the subscriber's right to complain in writing to the
franchisor of the franchisee's failure to resolve a service
complaint which is preventable and reasonably within the
franchisee's or licensee's control. The proper address of the
franchisor or licensor to which complaints may be directed
shall be included in such notice.
SECTION 11 - 43. SEVERABILITY
If any section, subsection, sentence clause or phrase
of this Ordinance is for any reason held illegal, invalid or
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14
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, sen-
tences, 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 11 - 44. EFFECTIVE DATE
This Ordinance shall go into effect and be in full
force and effect from and after thirty days (30) after its
final passage and adoption.
SECTION 11 - 45.
The City Clerk shall certify to the passage and
adoption of this Ordinance; shall enter the same in the book of
original ordinances of said City; shall make a minute of the
passage and adoption thereof in the records of the proceedings
of the City Council, at which the same is passed and adopted;
and shall within fifteen (15) days from the passage and adop-
tion thereof cause the same to be published once in the West
Covina News, a weekly newspaper of general circulation,
published and circulated within said City of West Covina, .and
which is hereby designated for that'purpose.
PASSED AND APPROVED and ADOPTED this 9th day of
M a rc h ,.19 81
• f�M6,or
ATTEST:
City Clerk
State of California )
County of Los Angeles ) ss
City of West Covina )
I, Helene M Mooney , City Clerk of the City of
West Covina do hereby certify that the foregoing Ordinance No.
1506 was regularly introduced and placed upon its first
reading at a Regular Meeting held February 73, 1981. That
thereafter said ordinance was duly adopted and passed at a. Regular
Meeting of the City Council on the 9th day of March, 1981, by the
following vote of Council, to wit:
AYES: Councilmen: Tennant, Chappell, Tice, Shearer
NOES: Councilmen: None
ABSENT: Councilmen: Bacon
APPROVED AS TO FORM City Clerk
City Attorney
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