Ordinance - 1563t
ORDINANCE NO. 1563
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 required 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.
t
(G) "STREET" shall mean the surface, the air space
above the surface a-Tthe 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 wit in t e 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 ) --sugs _RTRFR" or "usER" shall mean any person or
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 communi-
cation.
(J) "CABLE TELEVISION SYSTEM", "CATV", "CTV" and
"COMMUNITY ANTENNA" for the purpose of this Ordinance, are
terms describing a system employinq antennae, microwave, wires,
wave guides, coaxial cables, or other conductors, equipment or
facilities, designed, constructed or used for the purpose
of:
(1) Producing, receiving, amplifying and distributing
by coaxial cable, audio and/or visual radio, television,
electronic or electrical signals to and from persons, sub-
scribers and locations in the franchise area.
(2) Transmitting original cablecase 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 processed to permit reception
by only selected receivers;
(4) Transmitting or receiving two-way signals
or transmissions;
n
LJ
(5) Transmitting and receiving all 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
categories, 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 govern=
mental unit, and collected by a•Grantee for such entity.
(L) "GROSS ANNUAL BASIC SUBSCRIBER RECEIPTS" shall
mean any and all compensation and other consideration received
-2-
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, satellite delivered programming and original cablecast
programming of the Grantee designated as the "basic service".
(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 whether for "pay
television", "facsimile" transmission, "security services",
"return" or "response" communication, and whether or not
• transmitted encoded or processed to permit reception by only
selected subscribers, and designed as an optional service, or
non -basic service. '
(N) "GROSS ANNUAL ADVERTISING RECEIPTS", shall mean
any income, compensation and other consideration received by
Grantee from any advertising on the cable television system.
(0) "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 and air time,
of any channel permitted or designated by the Federal Communi-
cations 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 any person, whether
operating under an existing franchise, who or which offers to
furnish and provide such system under and pursuant to the terms
and provisions of this Ordinance.
•
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.
(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 SYSTEM STANDARDS
The cable television system permitted to be installed
and operated hereunder shall be designed and installed to meet
-3-
all of the standards and offers all of the services as expressly
set forth in this Section and, throughout this Chapter. Said
services shall be offered to all city subscribers in accordance
with the franchise agreement and the grantee shall not reduce
nor change the level of services provided without City Council
approval.
(A) Minimum Service Standards. As a minimum, the
system(s) shall be constructed and implemented to provide the
following:
(1) 52 channels on a subscriber network.
• (2) Programming services that include:
a. National and international news services
b. Financial and stock market information
C. Sports channels
d. Weather services
e. Children's programming
f. Movie channels
g. Pay cable services
h. Cultural programming
i. Foreign language programming
j. Programming for the handicapped
k. Processed FM stereo programming
1. Educational programming from local public schools
and higher education facilities.
(3) Interactive capabilities which shall be imple-
mented as provided in subsection (c) below.
(4) A separate institutional network with switching
capabilities between the subscriber network. The institutional
network shall be implemented as provided in sub -section (d)
below.
• (5) 7 local channels for educational, governmental,
library, religious, public and local origination use, with
provisions for future additional channel allocation based upon
usage and demand.
•
(6) A fully -equipped state-of-the-art local tele-
vision production studio located within the city limits pursuant
to the provisions of Section 11-18(G) herein.
(7) A dedicated mobile television production van.
(8) Free installation and services for all municipal
buildings (as designated by the City), public and private
schools, libraries and hospitals.
(9) The wiring and installation of dedicated tele-
vision origination equipment at City Hall for coverage of City
Council and other meetings and/or hearings.
(10) Sufficient quantities of TV receivers, portable
video cameras, recorders, and such ancillary equipment (i.e. a
"pool" of equipments which may be shared by public and institu-
tional users and may be "checked out" for use away from the
studio.)
QC
v
(11) Sufficient technical personnel to both operate
the studio and mobile van, and to provide assistance to community
users in the preparation, production, and broadcasting of local
Programming.
(12) An internship program in video production
serving the City's educational and municipal agencies.
(13) On -going financial support for the development,
operation, and promotion of the public access channels.
(14) Emergency override features.
• (15) Interconnection of subscriber and institutional
networks with those of adjacent communities, pursuant to the
provisions of Section 11-18(E) herein.
(16) Addressable converters and/or electronic
trapping shall be provided to all subscribers.
The term "dedicated" as used in this section, shall mean the
equipment which is dedicated is to be used solely for the
purpose specified and is not shared with any other cable system
owned or operated by the grantee(s).
(B) Other 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 through broadcast television
signals, whether or not encoded or processed to permit reception
by only selected receivers or subscribers.
(2) Transmitting and receiving all other signals;
digital, voice and audiovisual.
• (3) Transmit original cablecast programming not
received through television broadcast signals, on a pay -per -
view basis.
(4) Transmit any additional broadcast signals
permitted by the Federal Communications Commission.
(C) Interactive Capability. The CATV system shall
be constructed with full two-way capability (upstream and down-
stream transmission and reception) of both audio and video
signals. In year 3 of the franchise (Year 1 begins with
the acceptance of the franchise), and by not later than the
end of year 3, grantee shall submit to the City Manager,
for City Council approval, a plan for implementation of
the two-way energization of the subscriber network. Such a
plan shall include, as a minimum, all subscriber services
to be offered, the date of implementation and marketing of
those services, and the fees to be charged subscribers for each
and every service and/or level of service proposed. Following
City Council approval, grantee shall implement those two-way
services by no later than the end of year 4 of the franchise.
Failure to meet any of the provisions of this section shall
subject the grantee to a penalty payment of $1,000 per day for
each and every day's delay beyond the deadline(s) set forth
herein.
• (D) Institutional Network. 'The CATV system shall be
designed as a "switchable" network, between the subscriber
network, with full, two-way capability (upstream and downstream
-5-
transmission and reception) of both audio and video signals.
In year 3 of the franchise (year 1 begins with the acceptance
of the franchise) and by not later than the end of year 3,
grantee shall submit to the City Manager, for City Council
approval, a plan for the implementation of the Institutional
Network. Such a plan shall include as a minimum, all subscriber
services to be offered, the date for implementation and market-
ing of those services, and the fees to be charged subscribers
for each and every service and/or level of service proposed.
Following City Council approval, grantee shall implement those
services by no later than the end of year 4 of the franchise.
. Failure to meet any of the provisions of this section shall
subject the grantee to a penalty payment of $1,000 per day
for each and every day's delay beyond the deadline(s) set forth
herein.
(E) Interconnection of Services. The grantee shall
make all reasonable efforts to electrically interconnect the
West Covina CATV system with CATV systems in adjacent communi-
ties for the purposes of sharing locally originated subscriber
and institutional services. Such an interconnect shall be
effected by coaxial cable, fiber optic cable, microwave or
other bi-directional signal transportation means as appropriate
to permit services interchange in compliance with the technical
provisions of this chapter. Within three (3) years of the
acceptance date of the franchise, the grantee shall contact all
franchised operators in the communities adjacent to West Covina
for the purposes of exploring and securing a mutually acceptable
system interconnect agreement and report the results of said
activity to the West Covina City Manager. Said report shall
state each contacted operator's name, city, and response, list
all programming and services activity available to West Covina
subsribers via an interconnect agreement as well as list
programming and services to similarly be transmitted from West
Covina to the adjacent community(ies) and explain the substance
of the governing business agreement reached with the other
• operators.
(1) If an adjacent operator(s) "IS" responsive to the
grantee's inquiry for interconnect, the City Council regulating
the franchise of the adjacent operator(s), and the City Council
of West Covina must first mutually approve all details, plans
and other agreements before implementation of the interconnect.
Pursuant to the provisions of Section 11-27 herein the Council
may adopt such an agreement by resolution.
(2) If an adjacent operator(s) "IS NOT" responsive
to the Grantee's inquiry, a letter report, stating that
reasonable attempts to gain an interconnect agreement were made
but unsuccessfully, shall similarly be filed with the City.
(3) In the case of adjacent new CATV systems con-
structed in communities after the West Covina system, the
Grantee shall have six (6) months after the new system becomes
operational to make the required inquiries and attempt at an
interconnect agreement.
(4) In the case of adjacent CATV systems operated by
the Grantee, the Grantee shall have three (3) years from
acceptance of this franchise in which to provide a plan to
interconnect with the West Covina system, the implementation of
which shall be mutually accepted and agreed to by the Cities
where such franchises operated by the Grantee exist.
.Z:i
(F) Systems Construction Standards.
(1) General Construction Schedule.
(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,
microwave carrier licenses, and other permits, licenses and
authorizations to be granted by duly constituted regulatory
agencies having jurisdiction over the operation of cable
television systems, associated microwave transmission/reception
facilities and/or satellite communications facilities.
(b) Within one -hundred twenty (120) days after
award of franchise, Grantee shall commence construction and
installation of the cable television system.
(c) As part of its proposal to the City of West
Covina, the franchise applicant shall indicate a proposed
construction schedule for the completion of the installation of
the cable television system throughout the entire City of West
Covina. Service to the areas prescribed in that proposal and
approved by the Council, shall be provided within the period
stated and failure on the part of the Grantee to complete each
of the matters set forth therein, shall be grounds for termina-
tion of the franchise. The proposed construction schedule
shall not, in any event, exceed two (2) years, except that, by
resolution, pursuant to subsection (d) of this Section, the
Council, in its direction, may extend the time for the commence-
ment and completion of installation and construction for
additional periods in the event the Grantee, acting in good
faith, experiences delays by reason of circumstances beyond his
control. Any limitations on system extension, or exclusions,
shall be referenced as part of the Grantee's proposal and
approved by Council.
• (d) Any requests for extensions of the proposed
construction deadlines proposed by Grantee, due to acts of God,
acts of the public enemy fires, floods, epidemics, quarantine
restrictions strikes, lockouts, freight embargoes, unusually
severe weather, or from any other cause beyond the reasonable
control of Grantee and/or its employees, agents or contractors,
must be requested from the City Manager in writing within
fourteen (14) days after the cause for such delay first occurs.
Such request must specify the exact reason for the delay and
the total number of extension days requested. Whenever or
wherever possible, Grantee shall provide written material such
as newspaper articles, letters from vendors, sub -contractors or
other justifiable material that supports such a request.
Within fourteen (14) days of receipt of the Grantee's request
for an extension the City Manager will respond to the Grantee
with approval of, partial approval of, or denial of the request
for extension.
•
(e) By acceptance of the franchise granted hereunder,
Grantee agrees that failure to comply with any time requirements
referred to in Sub -sections (a), (b), and (c), of this section,
or as may be extended by Council, Grantee agrees that in
addition to all other penalty provisions specified in this
Article, Grantee will pay to the City the sum of One Thousand
Dollars ($1,000) per day for each and every day's delay beyond
�C
the time prescribed, plus authorized extensions thereof, for
completion of any of the acts required to be done by this
sub -section.
(2) Use of Poles. Notwithstanding the provisions of
Section 23-273 of the West Covina Municipal Code, Grantee shall
be authorized to utilize existing poles, conduits, and other
facilities and shall not construct or install any new, different,
or additional poles, whether on public or privately -owned property.
(3) Undergrounding of System. 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, or whenever -the City shall undertake a program
designed to cause such facilities to be located beneath the
surface of the streets in any area or throughout the City, the
Grantee shall likewise construct, place or replace, operate and
maintain all of its transmission and distribution system under-
ground at no cost to the City, with the exception of "active
electronic" equipment which may be placed above ground. The
Grantee shall have the option of sharing or not sharing
utility trenches, however at no time shall Grantee place
cable underground without appropriate conduit.
(4) Required Approvals. The design of all surface
or above ground mounted equipments shall be approved by the
= City Engineer and located so as not to endanger the public
safety or welfare, nor physically detract from the surroundings.
The method of underground construction to be utilized by the
Grantee, whether by trenching, boring, cutting or other method
and the restoration of streets, parkways, alleys, and other
City right-of-ways utilized for the placement of the Grantee's
conduits and/or ancillary equipment, must first be submitted to
the City Engineer for approval. The construction methods
approved will be subject to the required permit fees and City
inspection as may be required by 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.
(5) Submission of Drawings. Grantee shall furnish
the City with as -built drawings of the entire cable television
system. Within thirty (30) days of completion of construction
of five (5) miles of city streets, and for each five (5) miles
thereafter until the system is completed, or annually if less
than five (5) miles was constructed during the previous twelve
(12) months, Grantee shall file as -built drawings with the City
Engineer. In the event Grantee desires to make any changes or
modifications to the cable system that would alter the City's
as -built plans, Grantee shall first obtain such approval from
the City Engineer- and then file revised plans which reflect the
changes within thirty (30) days of completion of same.
(6) City Use of Facilities. The City shall have the
right, free of charge, to make additional use, for any public
or municipal purpose, whether governmental or proprietary, of
any facilities erected, controlled, or maintained exclusively
by or for the Grantee, provided such use does not interfere
with the use by the Grantee.
(7) Identification Required. Grantee agrees to
provide a method of employee/sub-contractor identification,
• acceptable to the City, for all such individuals who may make
personal contact with West Covina residents for the purposes of
construction, marketing, or other services of the cable televi-
sion system.
(8) Maintenance, Removal, Abandonment. The Grantee
at its expense shall protect, support, temporarily disconnect,
relocate or remove any property of Grantee when, in the opinion
of the City Engineer, the same is required by reason of traffic
conditions public safety, street vacation, freeway or street
construction, change or establishment of street grade, instal-
lation of sewers, drains, water pipes, power lines, signal
lines, transportation facilities tracks or other types of
• structures or improvements by governmental agencies whether
acting in a governmental or a proprietary capacity, or any
other structure or public improvement, including but not
limited to movement of buildings, urban renewal, and redevelop-
ment. 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.
(a) 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.
(b) In the event that:
(i) The use of any part of the system of Grantee is
discontinued per any reason for a continuous period of thirty
(30) days, without prior written notice to and approval by the
• City; or
(ii) Any part of such system has been installed
in any street or other area without complying with the require-
ments hereof; or
•
(iii) 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 areas from which such property has been
removed to such condition as the City Engineer shall approve,
and the Council may, upon written application thereof by
the Grantee, approve the abandonment of any of such property in
place by Grantee and under such terms and conditions as the
Council may prescribe. Upon abandonment of any such property
in place, Grantee shall cause to be executed, acknowledge
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.
(G) Technical Performance and Maintenance Standards.
The CATV system shall be designed, installed, maintained and
tested in accordance with the highest and best CATV industry
practice and, as a minimum, shall conform with the technical
cm
performance standards contained, herein. In addition,
should the Federal Communications Commission (FCC), or other
State or Federal authority having jurisdiction, impose CATV
system technical performance standards either outside the
scope of the technical performance standards contained
herein, or requiring a higher level of CATV system perform-
ance, those standards are hereby incorporated herein by
reference.
If, for any reason, said FCC or other technical
standards shall become reduced in scope or service level, the
more stringent standards herein shall remain in effect.
• (1) Performance Standards. Performance of the CATV
system as measured at the input to any subscriber terminal
with matched 75 ohm termination shall be as follows:
(a) The frequency boundaries of cable television
channels delivered to the input of the subscriber terminals
shall conform to those set forth in FCC 73.603(a), or subsequent
FCC standard.
(b) If no frequency converter is supplied to the
subscriber, the visual carrier frequency shall be maintained
1.25 MHz +25 KHz above the lower frequency boundary of the
cable television channel. If a frequency converter is supplied
to the subscriber by the Grantee the following requirement
shall be applied at the interface between the converter
and the subscriber's terminal equipment: when the visual
carrier at the output of the converter has been tuned to a
frequency 1.25 MHz above the lower frequency boundary of a
cable television channel with the converter stabilized at an
ambient temperature between 200C and 25°C, the frequency of the
visual carrier shall not vary more than +2500 KHz for a period
of at least three (3) hours, during which period the ambient
temperature may vary +5°C about the initial ambient temperature.
. (c) The aural center frequency of the aural carrier
shall be 4.5MHz +/-1 KHz above the frequency of the visual
carrier.
(d) The visual signal level across a 75-ohm termi-
nating impedance as viewed from subscriber terminals shall
not be less than 1500 microvolts (+3.5dBnv) at each subscribers
outlet.
(e) The visual signal level on each channel shall be
maintained within:
(i) 3 decibels of the visual signal level of
any visual carrier within 6 MHz nominal frequency separation,
and,
(ii) 12 decibels of the visual signal level on
any other channel, and,
(iii) a maximum level such that signal level degrada-
tion due to overload in the subscriber's receiver does not
occur, and,
period.
•
(iv) 12 decibels over any twenty-four (24) hour
-10-
0
(f) The rms voltage of the aural signal shall be
maintained between 13 and 17 decibels below the associated
visual signal level.
(g) The peak -to -peak variation in visual signal
level caused by undesired low frequency disturbances (hum or,
repetitive transients) generated within the system or by
inadequate low frequency response, shall not exceed five -percent
(5%) of the visual signal level.
(h) The amplitude characteristic shall be within a
range of +/-2 decibels from 0.75 MHz to 5.0 MHz above the lower
boundary frequency of the cable television channel, referenced
isto the average of the highest and lowest amplitudes within
these frequency boundaries.
(i) The ratio of visual signal level to system noise
shall be not less than 42 decibels.
(j) The ratio of visual signal level to any undesired
co -channel television signal operating on proper offset assign-
ment shall be not less than 36 decibels.
(k) The ratio of visual signal level to the rms
amplitude of any coherent disturbances such as intermodulation
products or discrete -frequency interfering signals not operating
on proper offset assignments shall not be less than 46 decibels.
(1) The terminal isolation provided each subscriber
shall not be less than 18 decibels, but, in any event, shall
be sufficient to prevent reflections caused by open -circuited
or short-circuited subscriber terminals from producing visible
picture impairments at any other subscriber terminal.
(m) As an exception to the general provision requir-
ing measurements to be made at subscriber terminals, and
without regard to the class of cable television channels
involved, radiation from a cable television shall be measured
• in accordance with procedures outlined in FCC regulations, and
shall be limited as follows:
FREQUENCIES RADIATION LIMIT DISTANCE
(microvolts/meter) (feet)
Up to and including 54 MHz 15 100
Over 54 up to and including
216 MHz 20 10
Over 216 MHz 15 100
(n) The CATV system shall be rated for continouous,
twenty-four (24) hour per day operation.
(o) The FM signal level across a 75 ohm terminating
impedance as viewed from subscriber's terminals shall be not
less than 100 microvolts (-20 dBmV) nor greater than the
highest permitted Channel 6 aural signal level.
(p) The FM signal on each channel shall be maintained
within:
(i) 3 decibels of the FM signal of any FM signal
on an adjacent (200 MHz spacing) channel, and,
-11-
(ii) 6 decibels of the FM signal level of any
other FM signal carried on the system.
(q) The CATV system shall, as a minimum, be opera-
tional in full compliance with the applicable specifications
contained herein, over the radio frequency spectrum from 50 to
400 MHz inclusive. Further, the system shall be designed such
that fifty-two (52) channel operation is possible from the
outset utilizing the 50 to 400 MHz spectrum.
(r) The CATV system shall, as a minimum, be capable
of operating in full compliance with the applicable specifica-
is
tions herein, a return signal capacity in all portions of the
system, over the frequency range of 5 to 30 MHz.
(s) The Grantee shall, at all times during the
franchise, properly install and maintain adequate shielding,
filtering and grounding at affected installations within the
CATV system to eliminate system interference from local radio/
television broadcast stations, commercial, government and
aeronautical radio stations and/or from fundamental frequency
overload by radio amateur or citizen's radio service transmis-
sions which are in compliance with the Federal Communications
Commission regulations.
(2) Broadband Requirements. Nonbroadcast signals
carried on the CATV system shall meet the following broadband
requirements. The RF modulated signals associated with these
baseband signals shall meet all requirements of Subsection 1,
above.
(a) Overall baseband system video frequency response
shall be +/-2 decibels over a DC to 4.2 MHz bandwidth.
(b) Baseband video tilt shall not exceed two -percent
(2%) at the vertical or horizontal rate.
. (c)
ratio shall be
bandwidth.
(d)
the following
equivalent):
Overall baseband system video signal-to-noise
not less than 42 decibels over a DC to 4.2 MHz
Video synchronizing waveform shall comply with
applicable standard (latest edition or its
(i) 2: 1 Interlace monochrome - EIA RS-330
(ii) full interlace monochrome - EIA RS-170
(iii) color - FCC 73.699 Figure 6
(e) Where applicable, minimum television camera,
(live and film) performance shall be:
(i) Resolution ( luminance) - 350 line center
(vertical); 500 line center, 400 line corners
(horizontal)
(ii) Scan linearity - two percent (2%) maximum
error (horizontal and vertical)
(iii) Registration (color only) two tenths percent
(0.2%) in centered circle of 0.8 picture
• height; four tenths percent (.4%) overall.
-12-
(iv) Video tilt - two percent (2%) maximum
(horizontal rate).
(f) Overall audio system frequency response shall be
+/-3 decibels over the frequency range 50 to 10,000 Hz.
(g) Overall audio system signal-to-noise ratio shall
be not less than 50 decibels over the frequency range 50 to
10,000 Hz.
(h) Overall audio system harmonic distortion shall
not exceed two percent (2%) at any frequency from 50 to 10,000
• Hz.
(3) Local Origination Studio. The local origination
studio(s) provided by the Grantee shall meet the following
minimum requirements:
(a) 600 square -foot (net) space minimum
(b) 12 foot ceiling height minimum
(c) 3200°-Kelvin tungsten halogen professional
television production lighting: system with a
minimum of 200 foot-candles luminance.
(d) Acoustical noise level under normal studio
operating conditions not to exceed NC-25.
(e) A minimum complement of television production
equipment to include the following, or approved
equivalent:
(i) three (3) 3-tube color television cameras
with full remote control and ENG portable
capability.
• (ii) all necessary studio lighting to meet the
specifications noted above and with indivi-
dual light dimming capability.
•
(iii) a video switcher with chroma key, special
effects and downstream capability.
(iv) a character generator with multiple font
sizes, automatic vertical and horizontal
scroll.
(v) one time base corrector (TBC) for signal
processing of videotape recorders during
editing.
(vi) one time base corrector (TBC) for on -cable
playback of videotape players.
(vii) a 3/4" videotape editing system with
multiple source capability and SMPTE time
code features.
(viii) two designated 3/4" videotape players.
(ix) one 3/4" portable videotape recorder/player
with rechargeable batteries.
-13-
(x) an audio mixing board with a minimum of
four -channel input/output capability, two
turntables, one two -channel tape recorder,
one cassette tape recorder, four lapel
microphones, two cardiod studio mics.
(xi) a sync generator.
(xii) a multiplexer, to include, one 16mm and one
8mm sound projector, and two 35mm slide
projector capability.
• (xiii) one vectorscope.
(xiv) two waveform monitors.
(xv) all necessary video and audio monitors.
(xvi) all necessary mounting racks and consoles.
(xvii) all wiring, amplifier, terminal and processing
equipment.
(xvii) all necessary test and maintenance equipment.
(xix) a supply of spare parts to keep all equip-
ment in a continual state of operation.
(4) Maintenance of System. The Grantee shall
maintain the system so it consistently operates within the
substantial compliance of the technical standards herein;
substantial compliance being defined as ninety-five percent
(95%) of the channels to be received shall meet all applicable
technical standards simultaneously at the time of measurement,
and one -hundred percent (100%) of the local origination equip-
ment shall meet all applicable technical standards specified
. herein".
(H) New Developments. The Grantee shall continue to
upgrade its facilities, equipment and service so that its
system is as advanced as the current state of the technology
will allow. The Grantee shall install additional channel
capacity as required to keep channel capacity in excess of the
reasonable demand therof by users. At all times the cable
system shall be no less advanced than any other system of
comparable size, excepting only systems which are experimental,
pilot, or demonstration.
Upon determination by the City that additional
channel capacity or current technological upgrading is required,
the City and Grantee shall meet and jointly establish a schedule
and conditions for implementation of the required changes to
the CATV system. Failure on the part of the Grantee to comply
to either the agreed upon schedule or conditions shall be
cause for a penalty of $1,000 per day for each and every day
beond the time prescribed for completion and/or implementation.
By resolution, and in accord with Section 11-27 of
this Ordinance, the Council, in its discretion, may extend the
time for the commencement and completion of the terms of this
section for additional periods in the event the Grantee,
acting in good faith, experiences delays by reason of circum-
stances beyond his control.
-14-
(I) Local Business Office. Grantee agrees to
maintain a local business office within the City of West Covina
for the purpose of conducting its local activities. Grantee
further agrees to maintain a 24-hour toll -free answering
service for service related problem calls, as well as separate
toll -free telephone numbers for the System Manager, the Sales/
Marketing Department, and Service Department. A minimum of
three lines shall be maintained for service and sales, and, in
the event the City determines through subscriber complaints
that those are insufficient to meet current demands, Grantee
agrees to add such additional lines as may be necessary to
• provide prompt, efficient response to subscriber inquiries.
All such telephone numbers indicated above shall
be 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 (7) days a week. All complaints shall be acknowl-
edged within twenty-four (24) hours of receipt.
(J) Complaint Procedure and Remedies for Inadequate
Service.
(1) Complaint Procedure. Pursuant to FCC Rules, the
following procedure shall be adhered to in the event of sub-
scriber complaints or complaints by City residents:
(a) As part of the franchise proposal grantee
shall submit to City written procedures for receiving,
acting upon and resolving subscriber complaints to the
satisfaction of the City Council. The Grantee shall
furnish a notice of such procedure to each subscriber at
the time of initial subscription to the system.
(b) Maintain a written record, or "log" listing
date and time of customer complaints, identifying the sub-
scriber and determining the nature of the complaints
and when and what action was taken by the'Grantee in
response thereto; such record shall be kept at Grantee's
local office, reflecting the operations to date for a
period of a least three (3) years, and shall be avail-
able for inspection during regular business hours without
further notice or demand by the City Manager.
(c) In the event that a customer complaint is
not resolved to the mutual satisfaction of the customer or
the Grantee, either customer or the Grantee may request
the assistance of the City Manager in resolving the
matter.
(d) When there have been similar complaints
made or where there exists other evidence which, in the
judgment of the City Manager, casts doubt on the reliabil-
ity or quality of cable service, or the Grantee's ability
to meet the technical standards herein adopted, the City
Manager shall have the right and authority to compel the
Grantee to test, analyze, and report on the performance of
that part of the system involved in the problem. Such
test or tests shall be made and the reports of such test
or tests shall be delivered to the City no later than
fourteen (14) days after the City formally notifies the
Grantee. Such report shall include the following
• information:
-15-
(i) the nature of the complaint which precipitated
the special test.
(ii) what system component was tested.
(iii) the equipment used and procedures employed
in such testing.
(iv) the names of the individuals performing and
witnessing the testing.
(v) the date, time, and location of testing.
• (vi) the results of such test.
(vii) the method in which such complaints were
resolved.
Any other information pertinent to the special test shall
also be recorded. The resultant report shall be submitted
to the City Manager.
If, in the judgment of the City Manager and/or
City Council, the resultant tests indicate the service
problem(s) are preventable and within the Grantee's
control, the City Manager shall file such a written notice
to the Grantee to remedy the problem within a reasonable
period, agreed to by both the City and Grantee. If within
this time period Grantee fails to remedy the problem(s),
the City may impose a penalty of up to Five Hundred
Dollars ($500) for each occurrence or series of related
occurrences, for each and every day the problem(s) remains
uncorrected.
(2) Remedies for Inadequate Service. The following
• remedies and penalties for inadequate or untimely service to
subscribers or system installation delays are hereby established:
•
(a) In the event that service to any subscriber
is interrupted for twenty-four (24) consecutive hours,
except for acts of God, and except in circumstances for
which prior approval of the interruption is obtained from
the City Council, Grantee shall provide a twenty percent
(20%) rebate of the monthly fees during which the interrup-
tion occurs, to all affected subscribers.
(b) In the event that the system fails to meet
any performance standards specified herein for a full
three (3) month period, Grantee shall reduce all subscriber's
fees by twenty-five percent (25%) until all performance
standards are met. The City Manager shall notify the
Grantee in writing during the first month of the three (3)
month period that the system has failed to meet performance
standards.
(c) For failure to commence construction
pursuant to Section 11-18(F) herein, unless the Council
approves the delay because of reasons beyond the control
of the Grantee, the franchise term shall be reduced four
(4) days for each day of delay.
-16-
(d) For failure to begin service to subscribers
or complete construction and installation of the system
pursuant to Section 11-18(F) herein, unless the Council
approves the delay because of reasons beyond the control
of the Grantee, the franchise term shall be reduced four
(4) days for each day of delay.
(K) Periodic Testing and Reporting. The CATV system
shall be tested, and the results reported to the City, on a
scheduled basis as specified below:
• (1) Quarterly System Tests. On the last regular
working day of each of the first three (3) operating quarters
of each year, the Grantee shall submit to the City Manager
system performance data taken within the previous seven (7)
days. Measurements for said data shall be taken at the same
test points selected to satisfy Sub -section (2) below, during
the last annual system performance test that the data has been
submitted to the City. Quarterly test data shall consist
of:
(a) Visual signal level for all channels
carried.
(b) Visual signal-to-noise measurements on one
active lowband and one active highband VHF channel.
(c) Visual hum modulation on one channel or
pilot carrier.
A representative of the City shall be permitted to accompany
the Grantee during quarterly measurement activities. The
Grantee shall not be permitted to make any system adjustments
during quarterly measurement activities without noting such
adjustments on the test data form.
(2) Annual System Tests. During the last month of
• the fourth operating quarter of each year, the Grantee shall
Perform annual performance tests of the system.
0
(a) Such tests shall be in full compliance with
FCC regulations.
(b) Such tests shall be independently witnessed
and the resultant date analyzed by a representative of
the City if directed by the City Manager.
(c) All necessary test instrumentation shall be
supplied by the Grantee. A current certificate of calibra-
tion by an independent calibration laboratory shall be
supplied for each test instrument. All costs for instru-
mentation and calibration shall be borne by Grantee.
(d) Measurement locations for system compliance
with Sub -section (1) above, except those requirements
regarding twenty-four (24) hour visual signal amplitude
and channel amplitude characteristics, shall include:
(i) end of each system major trunk, and,
(ii) end of each system truck branch four (4)
or more truck amplifiers deep.
-17-
Actual test locations shall be selected to measure
performance of the system inthe franchise area and
shall be (or as closely as possible to simulate) actual
subscriber locations.
(e) Measurements regarding twenty-four (24)
hour visual signal level and channel amplitude character-
istics shall be made as required by the FCC.
(f) Measurement for system compliance with
Sub -section (1) above, shall be made where practical on
all origination equipment employed in the system.
• (g) Measurement techniques shall be either (i)
those suggested by the FCC, or, (ii) those developed and
mutually agreed to in writing by the City and the Grantee
prior to system testing. If such agreement is not reached
prior to testing, the City shall prescribe acceptable
methods of measurements.
(h) Concurrent with annual performance tests,
the City representative shall inspect all system headend
facilities and outside plant for adherence to best industry
installation, workmanship and safety practice.
(i) If said proof of performance tests, or
construction standards show that the cable television
system is below the performance standards outlined in this
franchise, the City shall give notice thereof to Grantee
and Grantee shall have thirty (30) days to correct said
deficiency. Grantee will notify the City when such
correction has been made and the engineering firm employed
in the previous test will retest to ensure compliance. In
the event the resultant tests .reveal Grantee has failed
to correct said deficiency(s), or if thirty (30) days
has elapsed and Grantee has not corrected the deficiency,
the City may request mutually agreed upon independent
• engineers to demonstrate, at the Grantee's cost, the
appropriate correction to the Grantee. Grantee shall then
have sixty (60) days or other approved reasonable time
required, to correct deficiency. If at the end of the
approved time the deficiency still has not been corrected,
the City shall have the option of implementing a penalty
of Two Thousand Dollars ($2,000) per day for each and
every day the deficiency exists.
(3) Annual Service Report. The following information
shall be reported to the City on an annual basis and the report
shall be submitted to the City manager by not later than March
1 of the following year.
(a) Existing Service Area. An outline of the
existing service area with comments on small areas not
actually served, 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.
0
(c) Proposed Service Area. An indication on
the map of those areas where service is planned,and a
schedule describing 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 unit sub-
scribers, commercial subscribers, additional television
outlets, and saturation (total subscribers divided by
total dwelling units passed.)
(f) Statisitcs 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, informa-
tive, 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 11-19 PROPOSAL
This Ordinance shall be incorporated by reference in
any franchise award(s) and any and every provision of said
Ordinance shall be incorporated as though the same were set out
in full, and all provisions shall be binding upon Grantee.
SECTION 11-20 FRANCHISE FEE
• (A) Franchise Fee Amount and Payment. Any Grantee
granted a franchise under this Ordinance shall pay to the City,
during the life of such franchise, a sum equal to five percent
(5%) of the annual total gross receipts and in addition thereto,
such other sums as may be provided for elsewhere in this
ordinance. If, during any part of the franchise term, a
Federal or State limitation is imposed on the amount of the
franchise fee percentage, such limitation shall apply only for
the time period such limitation is legally operational.
Franchise fee payment by the Grantee to the City shall be made
semi-annually on June 30th, and December 30th, by delivery of
the same to the City Treasurer. Franchise payments required
hereunder shall be in lieu of any business licenses, occupation
tax or similar levy.
The Grantee shall file with the City Finance
Director, within ninety (90) days after the expiration of
the Grantee's fiscal year or portion thereof during which
such franchise is in force, a balance sheet and statement of
profit and loss prepared in accordance with generally
accepted accounting standards and practices and certified by
an independent Certified Public Accountant (CPA), showing in
detail the gross receipts, as defined herein, of Grantee
during the preceding fiscal year, or portion thereof. It shall
be the duty of the Grantee to pay to the City, within fifteen
(15) days after the time for filing such statements, the sum
hereinabove prescribed
-19-
or any unpaid balance thereof for the fiscal year or portion
thereof covered by such statements.
(B) Inspection of Records. The City shall have the
right to inspect and audit the Grantee's fiscal records. If
any independent audit of the Grantee's records directed by the
City show a franchise fee error in excess of two percent (2%)
in the City's favor, the Grantee shall assume all reasonable
costs for said audit. 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 additional sums payable
under this Section or for the performance of any other obliga-
tion hereunder.
In the event the above payments are not received by
the City within the specified time, Grantee shall pay to the
City liquidated damages of two -percent (2%) per month on the
unpaid balance in addition thereto.
SECTION 11-21. 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 City.
(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.
(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 accpetable evidence in writing
=010
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 fudning 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 contruct 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.
(iv) A copy of the form of any agreement, undertaking,
or other instrument proposed to be entered into between the
applicant and any subscriber.
(v) A detailed statement setting forth in its
entirety any and all agreements and undertakings, whether
formal or informal, written 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.
-21-
(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) A non-refundable application fee which shall be
in form of a certified or cashier's check or a money order in
the amount of Seven -Thousand Five Hundred ($7,500.00) Dollars.
(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 deter-
minations and specify any other times, terms, conditions, or
limitations respecting the soliciting, calling for, making and
receiving of such applications.
(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(s)
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 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.
- 22-
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
intention to consider granting the same, then such determina-
tions 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.
•
SECTION 11-22. FRANCHISE TERM: DURATION, TERMINA-
TION, PERIODIC REVIEW AND RENEWAL.
(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.
-23-
(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
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 and place 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 than 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 City 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
-24-
a public hearing. The City Clerk shall publish a notice of any
such hearing, setting forth a time and place when and where
any person 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) Renewal. Any franchise granted under this
• Ordinance is renewable at the application of the Grantee, in
the same manner and upon terms and conditions mutually accepta-
ble to the City Council and Grantee.
(1) Within two (2) years of the expiration date of
this franchise, Grantee shall file notice of request for
renewal of the franchise. Such request shall, at the minimum,
specify the following:
(i) Justification, based on prior experience,
for the extension.
(ii) Number of years of the requested franchise
extension.
(iii) Changes, modifications, improvements, such
as an increase in channel capacity, services provided, or other
additions/deletions Grantee is proposing to provide during the
term of the requested extension.
(iv) Proposed rate schedules for all services and
level of services proposed.
(v) Any and all other information Grantee shall
deem relevant to the request.
• (2) Within ninety (90) days of receipt of the
Grantee's application for franchise renewal, the City shall
schedule hearings on the request with Grantee. A final deci-
sion and agreement between Grantee and the City shall be
resolved at the earliest possible date, but in no event, later
than eighteen (18) months prior to the expiration of the
existing franchise. In the event agreement is not concluded
prior to that time, notice shall be extended to the Grantee of
the City's intent to reopen the franchise to interested appli-
cants.
0
SECTION 11 -23. BONDS, INDEMNIFICATIONS, INSURANCE
(A) Security Fund.
(1) Within thirty (30) days after written notificaton
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 one
hundred fifty thousand dollars ($150,000) in cash as security
-25-
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 one hundred fifty thousand dollars ($150,000).
(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
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 11-22 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 11-24 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 the amount of seven
million dollars ($7,000,000).
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,
-26-
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 and all obligations to the
City which arise out of or pertain to said franchise. Neither
the provisions of this Section, nor any bond accepted by the
• City 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.
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,
brought 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 our 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.
-27-
(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. Grantee shall, concurrently,
with the filing of an acceptance of award of any franchise
granted under this Ordinance, furnish to the City and file
with the City Clerk, and at all times during the existence of
• any franchise granted hereunder, maintain in full force and
effect, at its own cost and expense a general comprehensive
liability insurance policy, including coverage for, premises -
operations, explosion and collapse hazard, underground hazard,
contractual insurance, broad form property damage, independent
contractors and personal injury and automobile liability
comprehensive form, in protection to the City, its officers,
boards, commissions, agents and employees, in a company approved
by the City Manager and a form satisfactory to the City Attorney,
protecting the City and all persons against liability for loss
or damage for personal injury, death and liability for loss or
damage for personal injury, death and property damage occasioned
by the operations of Grantee under such franchise, with minimum
liability limits of Two Million Dollars ($2,000,000) for
personal injury or death of any one person or Five Million
Dollars ($5,000,000) for personal injury or death of two or
more persons in any one occurrence, and Two Million Dollars
($2,000,000) for damage to property resulting from any one
occurrence.
The City shall be named as an additional insured in
all of said insurance policies. Where such insurance is
provided by a policy which also covers Grantee or any other
entity or persons, it shall contain the standard cross -liability
endorsement. Such policies shall contain a provision that a
• written notice of cancellation or reduction in coverage of said
policy shall be delivered to the City Clerk ninety (90) days in
advance of the effective date thereof.
•
Said insurance policy shall contain the following
endorsements:
1. The naming of an additional insured as herein
provided shall not affect any recovery to which such additional
insured would be entitled under this policy if not named as
such additional insured, and
2. The additonal insured named herein shall not be
held liable for any premium or expense of any nature on this
policy or any extension thereof, and
3. The additional insured named herein shall not by
reason of being so named be considered a member of any mutual
insurance company for any purpose whatsoever, and
4. The provisions of the policy will not be changed,
suspended, cancelled or otherwise terminated as to the interest
of the additional insured named herein without first giving
such additional insured ninety (90) days written notice.
Q►4:10
5. Any other insurance held by the additional
insured shall not be required to contribute anything toward any
loss or expense covered by the insurance which is referred to
by this certificate.
Grantee shall also, concurrently, with the filing of
an acceptance of the award of any franchise granted under this
Ordinance, furnish to the City and file with the City Clerk a
certificate of Workmen's Compensation Insurance and at all
times during the existence of any franchise granted hereunder,
maintain in full force and effect, at its own cost and expense
• a policy of Worker's Compensation Insurance.
•
SECTION 11-24. 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 twenty-fifth
(25th) 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 granted and accepted under this
ordinance shall be in lieu of any and all other rights, privi-
leges, powers, immunities, and authorities owned, possessed,
controlled, or exercisable by the Grantee, of or pertaining to
the contruction, operation or maintenance of any cable televi-
sion systems in the City.
SECTION 11-25. LIMITATIONS OF FRANCHISE
(A) Every franchise granted under this chapter shall
be non-exclusive. Neither the granting of any franchise
hereunder nor any of the provisions contained herein shall be
construed to prevent the City from granting any identical or
similar franchise to any other person, firm, or corporation,
within all or any portion of the City.
=29-
(B) No privilege or exemption is granted or con=
ferred 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 event 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 pre-
scribed. The said consent of the Council may not be reasonably
refused; provided however, the proposed assignee shows financial
responsibility as determined by the Council and agrees to
comply with all provisions of the chapter; and provided further,
should the Council so elect, that the original grantee agrees
to continue to be bound by the security fund, performance bond,
insurance, hold harmless, and indemnification provisions of
Section 11-23 hereof. 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. Any sale, transfer, assignment
or other disposition as described above 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.
In the event the Grantee is a corporation, prior
approval of the City Council, expressed by resolution, shall be
required where there are actual changes in control or where
ownership of more than 5% 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 constitute failure to
comply with a material requirement of this Ordinance within
the meaning of Section 11-22(B) herein. The entry into a
"Close Corporation" management agreement by the corporation
and/or its stockholders shall be deemed a sale, transfer, or
assignment within the meaning of this section.
(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
-30-
conduit space from any department of the City, utility company,
or from others 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
City, 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 in this franchise shall be deemed or
construed to impair or affect, in any way, to any extent, the
right of the City to acquire any property of the Grantee,
either by direct purchase or through the exercise'of the right
of eminent domain, at a fair and just value, which shall not
include any amount for this franchise itself or for any of
• the rights or privileges granted by this franchise, and nothing
herein contained shall be construed to contract away or to
modify or abridge, either for a term or in perpetuity, the
City's right of eminent domain. In the event the City wishes
to acquire part or all of the cable system either by purchase
or through the exercise of the right of eminent domain, City
and Grantee will each appoint one appraiser to establish the
value of the equipment to be acquired by City. The two
appraisers will select a third appraiser who wlil be chairman
of the appraisal board. The board will by majority vote,
determine the value of the system to be acquired by City. This
value will be final and binding on both City and Grantee and
will be used as the purchase price of just compensation in an
eminent domain proceeding between City and Grantee.
In the event of purchase by the City, or a change
of Grantee, the current Grantee shall cooperate with the City,
or with a representative appointed by the City, to operate the
system for a temporary period in maintaining continuity of
service to all subscribers.
(B) There is hereby reserved to the City every right
and power which is required to be herein reserved or provided
by any Ordinance of the City, and the Grantee by its acceptance
of this franchise, agrees to be bound thereby and to comply with
any action or requirement of the City in its exercise of such
• rights or power, heretofore or hereafter enacted or established,
provided that such requirements are not inconsistent with the
terms of this Ordinance.
-31-
•
(C) Neither the granting of this franchise nor
any provision hereof shall constitute a waiver or bar to the
exercise of any governmental right or power of the City.
(D) The Council may do all things which are necessary
and convenient in the exercise of its jurisdiction, and may
determine any question of fact which may arise by reason of
the existence of this franchise. The City Manager is hereby
authorized and empowered to adjust, settle or compromise any
controversy, or charge arising from the operations of the
Grantee under this franchise, either on behalf of the City, the
Grantee, or any subscriber, in the best interest of the public.
SECTION 11-27. COUNCIL TO ADOPT RULES AND REGULATIONS
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:
(A) The Council shall pass its resolutions of
intention of stating or describing the rules or regulations or
standards to be adopted, amended, modified deleted, or otherwise
changed, and fixing and setting forth a day, hour and place
certain when and where any persons having any interest therein
or objection thereto may appear before the Council and be
heard.
(B) 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.
(C) At the time set for such hearing, or at any
adjournment thereof, the Council shall proceed to hear and pass
upon such comments as may be presented. Thereafter, the Council,
• by its resolution, may adopt, amend, modify, delete or otherwise
change its respective rules, regulations, and standards. Such
determination by the Council shall be final and conclusive.
(D) Any rule or regulation or standard as adopted,
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, CHARGES AND RATE INCREASES.
The service rates and installation and connection
charges for CATV system use, as contained in the Grantee's
proposal, and as adopted or amended by Council, may be changed
from time to time by resolution of the City Council, pursuant to
this Section.
All such rates and charges shall remain in effect
with no increase for the period of time indicated in Grantee's
proposal, or such time as is adopted or amended by City Council.
In no event shall that term be less than three (3) years from
award of franchise. All rate and charge increase requests
submitted or proposed by Grantee after said time period shall
be based upon the following criteria which shall be considered
and evaluated by the City Council:
•
-32-
(A) The initial rates as hereinabove set may be
adjusted after the initial three (3) year period and at such
time thereafter as hereunder specified, based upon the Consumer
Price Index (CPI), Urban Wage Earners, prepared by the Bureau
of Labor Statistics of the United States Department of Labor,
relating to all items, Series A for the Los Angeles/Long Beach
area (1967=100), or some substantially similar index in the
event the Consumer Price Index is discontinued, in accordance
with the following formula:
(1) The Grantee shall submit to the City by September 1
of each year a report of the most recent CPI information for
• the twelve (12) month period preceding the report.
(2) The number of points of increase or decrease in
the CPI for said twelve (12) month period, divided by the index
base of one hundred (100) shall be used as the total annual
percentage increase in the CPI. °
(3) The Grantee may request and the City shall
thereon grant, a rate increase in the amounts requested by
Grantee, provided that:
a. the amount of such rate adjustment divided
by the current subscriber rates shall not exceed seventy-five
percent (75%) of the total annual percentage increase in the CPI
as determined under subparagraph (2) above, and
b. The Grantee provides the City with written
financial statements showing that the rate adjustment is
justified by increased expenses incurred by the Grantee in the
operation of its CATV system.
(4) Any application by the Grantee for a rate
increase shall be accomplished and supported by the following
information:
• a. Copies of financial reports and income statements
prepared in accordance with generally accepted accounting
standards and practices and certified by an independent certi-
fied public accountant (CPA) for at least the preceding three
(3) years. If the Grantee is a subsidiary of another firm,
similar financial data shall be furnished for the parent
corporation.
0
b. An itemization of capital assets, both tangible
and intangible, the accounting basis for depreciation and the
depreciation schedule. If intangible assets such as goodwill
are being amortized, the amortization period shall be stated.
C. A detailed breakdown of operating, marketing
and general and administrative costs by category for each of
the three (3) preceding years.
d. The number of subscribers for "basic cable
service" and "premium cable service" for each of the three (3)
preceding years.
-3 3-
e. The number of cable plant -miles and dwelling
units passed by the cable plant for each of the three (3)
preceding years.
f. A statement as to any allocation of funds to
parent company overhead or operating costs, and the basis for
such allocation.
(B) Upon receipt of a rate increase request, accom-
panied by all of the supporting information of (a) above, it
shall be the obligation of the City Council to act upon this
request within a period of sixty (60) days from the date upon
• which all supporting materials have been submitted in adequate
form. Prior to taking action on the request at least one (1)
noticed public hearing shall be held upon the rate increase.
The Council shall approve, partially approve, or disapprove,
any increase of rates or rates for additional services on the
basis of the following consideration.
(1) Performance of the Grantee in abiding by the
terms and conditions of this Ordinance.
(2) Whether the Grantee has adquately served or
serviced the subscribers in the City and the community in
general.
(3) Rates for comparable CATV service(s) in surrounding
communities.
(4) Revenue and profits from services offered.
(5) Operating and construction expenses of the
system.
(6) Completeness of the information submitted by
Grantee in support of the request for increases.
• (7). Other such evidence or testimony as may arise
during the public hearing.
•
The decision by the City Council approving, partially approving,
or disapproving the request for increase shall not be unreason-
able withheld and such decision shall be in resolution form,
which shall contain finding indicating the basis for the
decision and any new rates or charges thereby approved and
adopted. Any increase in rates or charges thereby approved
shall become effective thirty (30) days after the date of
approval of the resolution.
(C) In the event a rate increase is granted as
requested, the Grantee shall refrain from applying for further
increases for a period of fifteen (15) months from the effective
date of the prior increase. If the rate request is denied, or
a lesser increase than requested is approved, the Grantee shall
refrain from applying for further increases for a period of six
(6) months from the date of the resolution denying the request
or approving the lesser request.
In accepting the franchise granted hereby, Grantee shall
be deemed to have knowingly, intentionally, and permanently
waived and relinquished any and all of its rights to elect to
be exempt from the City's regulation and control of its rates
charged to subscribers within the City of West Covina, pursuant
-34-
to the provisions of California Government Code Section 53066.1
(Assembly Bill 699), any successor provision or provisions
thereto or any other provision or provisions of law.
SECTION 11-29. Right to Privacy of Subscribers
As used in this section, "valid authorization" shall
mean written approval from the subscriber for a period of time
not to exceed one year.
(A) Each franchise shall strictly observe and
protect the rights of privacy and of property of subscribers
• and users at all times. Information on individual sub-
scribers, individual subscriber preferences of any kind,
viewing habits, political, social or economic philosophies,
beliefs, creeds, religions or names, addresses or telephone
numbers shall not be revealed to any person, governmental unit,
police department, investigating agency, company, other agency
or entity, unless upon the authority of a court of law, or,
upon prior written permission of the subscriber. The request
for permission must be contained in a separate document
with a prominent statement that the subscriber is authorizing
the permission in full knowledge of its provision. Such
authorization shall not in any event be required as a condition
of receiving service.
(B) A Grantee may release the number of its sub-
scribers but only as a total number and as a percentage of
the potential subscribers throughout the City. When indicating
the number of subscribers viewing a particular channel at a
particular time, franchisee shall indicate only the total
number of subscribers viewing during the relevant time and the
percentage of all subscribers which they represent, but never
the identity of a particular subscriber.
(C) A Grantee may maintain such information as is
necessary to bill subscribers for the purchase of any system
• service.
(D) Neither a Grantee nor any other person shall
initiate in any form, the discovery of any information on or
about a subscribers premises without prior valid authorization
from the subscriber potentially affected.
n
U
(E) A subscriber may, at any time, revoke any
authorization previously made, by delivering to franchisee in
writing, by mail or otherwise, his/her decision to so revoke.
Any such revocation shall be effective upon receipt by fran-
chisee.
(F) No monitoring of any subscriber terminal shall
take place without specific prior valid authorization by the
user of the terminal in question, provided, however, the
franchisee may conduct systemwide or individually addressed
"sweeps" for the purpose of verifying system integrity, security
monitoring, and/or other addressable premium service implementa-
tion or verification which the subscriber has contracted for.
In no event shall residential aural or visual monitoring of any
kind take place without a clear indication to the subscriber
that such monitoring is taking place.
(G) A Grantee may, without prior subscriber approval,
monitor those subscriber terminals which are connected to
-35-
utility monitoring devices which measure utility usage and
which have been first approved by the City Council.
(H) Prior to implementation of any interactive
subscriber response mechanism, the Grantee must first demon-
strate to the City Manager that such a system can operate
effectively and provide absolute protection against any
invasion of privacy.
(I) A Grantee shall not tabulate any test results,
nor permit the use of the system for such tabulation, which
would reveal the commercial product preferences or opinions
• of subscribers, members of, their families or their invitees,
licensees or employees, without prior valid authorization of
the subcriber.
C� J
•
(J) Each compilation, publication, tabulation or
other dissemination of each piece of information made or
permitted to be made in violation of this Section shall be
considered a separate violation and subject to a fine of Five
Thousand Dollars ($5,000).
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.
(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
-36-
•
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
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. COSTS TO BE BORNE BY GRANTEE.
(A) As required by Section 11-22(a)(6) all franchise
applicants shall submit a non-refundable application fee of
seventy five hundred dollars ($7500). Such fees will serve to
recover all expenses incurred by the City in the preparation
and granting of the franchise and regulation of the franchise
pursuant to this chapter. Said expenses shall include, but not
limited to, all publication costs, consultant's expenses, and
the reasonable value of serviced performed by the City's
employees, agents, or contractors.
(B) In the event that expenses exceed the total
amount of filing fees collected from the applicants, the
Grantee shall pay to the City (pro rata in the event that there
-37-
is more than one grantee) the excess amount. Upon award of the
franchise, the City will present Grantee an itemization of all
such expenses and indicate the total application fees received.
Upon acceptance of the franchise as specified by Section 11-24,
Grantee shall pay to the City by certified or cashier's check,
the excess of expenses less fees received.
(C) Notwithstanding any other payment required by
this chapter, including all fees related to construction (i.e.
construction and excavation fees and permits, inspection fees,
etc.) when necessary to aid in the analysis of matters relating
to the franchise, including, but not limited to, rate investiga-
tion and regulation, technical standards, construction supervision
or market surveys in the City, the City shall be entitled to
employ the services of a consultant. All reasonable fees of
hte consultant incurred by the City in this regard shall be
shared equally by Grantee and the City, regardless of the
nature or outcome of any specific matter under consideration.
The terms of this section shall not apply to any research cost
incurred by the City in connection with the right of the City
to purchase the system.
SECTION 11-35. 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 -
is 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 11-36. AUTHORITY OF CITY TO TERMINATE IN
THE EVENT OF CONDEMNATION
In order to preserve the right of the City under the
franchise provided for, and its right to acquire the property
of the Grantee by 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 property 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.
CKM
SECTION 11-37. 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 11-38. FINANCIAL DISCLOSURE OF INDEPENDENT
CONSULTANT
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 :
(A) 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.
(B) 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
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 11-39. MISCELLANEOUS PROVISIONS
(A) A franchise granted to provide service within the
. City shall authorize and permit the Grantee to solicit, sell,
-39-
•
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 solicitation or referral of any subscriber to
persons engaged in any business herein prohibited to
be engaged in by Grantee;
(F) If the Federal Communications Commission or the
Public Commission of the Sate 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 jurisdic-
tion shall preempt or preclude the exercise of like jurisdic-
tion by the City the jurisdiction of the City shall cease and
no longer exist. The premption or preclusion of the exercise
-40-
of the City or any of its police power shall not diminish,
impair, alter or affect any contractual benefit to the City or
Grantee nor any contractual obligation of the Grantee under any
franchise issued hereunder.
Any and all minimum standards governing the operation
of Grantee and any and all maximum rates, ratios and charges
specified herein or in any franchise issued hereunder existing
now and at any time in the future, including such time as any
paramount jurisdiction shall preempt or preclude that of the
City to determine, establish, or fix any of the same, are each
and all hereby declared by the City and by a Grantee accepting
• any franchise hereunder to be contractual in nature and to be
for the benefit of the City.
(G) When not otherwise prescribed herein, all
matters herein required to be filed with the City shall be
filed with the City Clerk.
(H) No person, firm or corporation within the
service area of the Grantee, and where distribution lines are
in place, shall be refused service; provided however, that the
Grantee shall not be required to provide service to any sub-
scriber who does not pay the applicable connection fee or
service charge.
(I) Before providing cable television service to any
subscriber, the Grantee shall provide a written notice to the
subscriber substantially as follows:.
"Subscriber is hereby notified that in
providing cable television service (name of
company) is making use of public rights -of -
way within the City of West Covina and that
the continued use of such rights -of -way is
in no way guaranteed. In the event the
continued use of such rights -of -way is
denied to (name of company) for any reason,
• (name of company) will make every reasonable
effort to provide service over alternate
routes. By accepting cable television
service, subscriber agrees he will make no
claim nor undertake any action against the
City of West Covina, its officers, or its
employees if the service to be provided
hereunder is interrupted or discontinued."
•
(J) Grantee shall make available to all subscribers,
upon demand and at no charge, parental control devices to
control the viewing of programming.
SECTION 11-40. 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, age, 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
-41-
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, age 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.
SECTION 11-41. 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, inductively 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.
SECTION 11-42. SEVERABILITY
If any section, subsection, sentence clause or phrase
of this Ordinance is for any reason held illegal, invalid or
unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of
the remaining portions hereof. The Council hereby declares
that it would have passed this Ordinance and each section,
subsection, sentence, clause, and phrase hereof, irrespective
•
-42-
`f
,OF
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 11-43. 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 11-44.
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.
October
PASSED _AND APPROVED and ADOPTED this 25th day of
1982.
2�12;f_ r
Mayor
ATTEST:
• x�4tx
City Clerk
State of California )
County of Los Angeles ) ss
City of West Covina )
I► HelpnP M_ Monna _, City Clerk of the City of
West Covina do hereby certi y that the foregoing Ordinance No.
1563 was regularly introduced and placed upon its first
reading at a regular meeting of the City Council on the •12th day of October,
1982. That, thereafter, said Ordinance was duly adopted and passed at a regular
meeting of the City Council on the 25th day of October, 1982, by the following
vote to wit:
AYES: Councilmen:
NOES: Councilmen:
ABSENT: Councilmen:
0 APPROVED AS TO FORM:
e4. P.
City Attorney
Bacon, Shearer, Tice
None
Tennant, Chappell
—43—
" Cit C e k