HomeMy Public PortalAboutTitle 04TABLE OF CONTENTS
TITLE 4 CABLE TV FRANCHISES AND LICENSES
SECTION 1 REPEAL
SECTION 2 ENACTMENT
SECTION 3 INTENT
3.1 Authority
3.2 Findings
SECTION 4 SHORT TITLE
SECTION 5 DEFINITIONS
5.1 Basic Cable Service
5.2 Cable Operator
5.3 Cable Service
5.4 Cable System or System
5.5 Channel or Cable Channel
5.6 Council
5.7 Franchise
5.8 Franchise Agreement
5.9 Franchise Fee
5.10 Grantee
5.11 Grantor or Town
5.12 Gross Annual Cable Service Revenues
5.13 Installation
5.14 Normal Operating Conditions
5.15 Person
5.16 Public, Education or Government Access Facilities or PEG Access Facilities
5.17 Section
5.18 Service Area or Franchise Area
5.19 Service Tier
5.20 State
5.21 Street or Public Way or Public Rights-of-Way
5.22 Subscriber or Customer or Consumer
SECTION 6 FRANCHISE TERMS AND CONDITIONS
6.1 Franchise Purposes
6.2 Franchise Required
6.3 Term of the Franchise
6.4 Franchise Territory
6.5 Federal or State Jurisdiction
6.6 Franchise Non-Transferable
6.7 Geographical Coverage
6.8 Nonexclusive Franchise
6.9 Multiple Franchises
6.10 Franchise Modification
SECTION 7 FRANCHISE APPLICATION AND RENEWAL
7.1 Filing of Applications
7.2 Applications- Contents
7.3 Consideration of Initial Applications
7.4 Franchise Renewal
SECTION 8 MINIMUM CONSUMER PROTECTION & SERVICE STANDARDS
8.1 Operational Standards
8.2 Service Standards
8.3 Billing and Information Standards
8.4 Verification of Compliance with Standards
8.5 Subscriber Complaints and Disputes
8.6 Other Requirements
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SECTION 9 FRANCHISE FEE & FENANCIAL REQUIREMENTS
9.1 Franchise Fee
9.2 Security Fund
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SECTION 10 CONSTRUCTION REQUIREMENTS
10.1 System Construction
10.2 Multiple Franchises
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SECTION 11 TECHNICAL STANDARDS
11.1 Applicable Technical Standards
11.2 Non-Compliance with Standards
113 Costs of Technical Assistance
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SECTION12LNDEMNIFICATIONANDINSURANCEREQUIREMENTS
12.1 Hold Harmless
12.2 Insurance
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SECTION 13 RECORDS AND REPORTS
13.1 Record Required
13.2 Additional Information
13.3 Annual Reports
13.4 Opinion Survey
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SECTION 14 REVIEW OF SYSTEM PERFORMANCE
14.1 Biannual Review
14.2 Special Review
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SECTION 15 FRANCHISE VIOLATION
15.1 Remedies for Violations
15.2 Procedure for Remedying Franchise Violations
153 Grantor's Power to Revoke
15.4 Appeal of Finding of Revocation
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SECTION 16 FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
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SECTION 17 ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY 30
17.1 Abandonment or Removal 30
17.2 Restoration by Grantor: Reimbursement of Costs
17.3 Extended Operation and Continuity of Services
17.4 Receivership and Foreclosure
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SECTION 18 GRANTOR, GRANTEE & SUBSCRIBER RIGHTS
18.1 Reservation of Grantor and Grantee RIghts
18.2 Waiver
183 Rights of Individuals
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SECTION 19 SEPARABILITY 34
TITLE 4 CABLE TV FRANCHISES & LICENSES
SECTION 1. REPEAL
Existing Nevada County Ordinance No. 1200 is hereby repealed in its entirety.
SECTION 2. ENACTMENT
Town of Truckee Ordinance No. 99-01 is hereby enacted to supersede Ordinance No. 1200.
SECTION 3. INTENT
3.1 Authority
The Town of Truckee, pursuant to applicable Federal and State law, is authorized to grant one or more
non-exclusive franchises to construct, operate, maintain and reconstruct Cable Systems within the Town
limits.
3.2 Findings
The Town Council finds that the development of Cable Systems has the potential of having great benefit
and impact upon the residents of the Town. Because of the complex and rapidly changing technology
associated with Cable Systems, the Town Council further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which should be vested in the Town
or such Persons as the Town may designate. It is the intent of this ordinance and subsequent
amendments to provide for and specify the means to attain the best possible Cable Service to the public
and any Franchises issued pursuant to this ordinance shall be deemed to include this as an integral
finding thereof. It is the further intent of this ordinance to establish regulatory provisions that perrrfit the
Town to regulate Cable System Franchises to the extent permitted by Federal and State law, including but
not limited to the Federal Cable Communications Policy Act of 1984, the Federal Cable Television
Consumer Protection and Competition Act of 1992, the Federal Telecommunications Act of 1996,
applicable Federal Communications Commission regulations and applicable California law.
SECTION 4. SHORT TITLE
This Ordinance shall constitute the "Cable System Regulatory ordinance" of the Town of Truckee and
may be referred to as such.
SECTION 5. DEFINITIONS
For the purposes of this ordinance, the following terms, phrases, words and their derivations shall have
the meaning given herein. Words used in the present tense include the future, words in the plural number
include the singular number, and words in the singular number include the plural number. Words not
defined shall be given their common and ordinary meaning.
5.1 Basic Cable Service
Means any service tier which includes the retransmission of local television broadcast signals.
5.2 Cable Operator
Means any Person or group of Persons who is a Grantee and who:
(a) provides Cable Service over a Cable System and directly or through one (1) or more
affiliates owns a significant interest in such Cable System; or
(b) otherwise controls or is responsible for, through any arrangement, the management and
operation of such Cable System.
5.3 Cable Service
(a) The one-way transmission to Subscribers of
(2)
(b)
video programming; or
other programming service; and
Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service.
5.4 Cable System or System
Means a facility, consisting of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscribers within a community, but such term does not
include:
(a) a facility that serves only to retransmit television signals of one (1) or more television
broadcast stations;
(b) a facility that serves Subscr/bers without using any Public Rights-of-Way;
(c)
(d)
a facility of a common carrier which is subject, in whole or in part, to the provisions of
Title ll of the Telecommunications Act of 1996, except that such facility shall be
considered a Cable System (other than for the purposes of Section 621(c)) to the extent
such facility is used in the transmission of video programming directly to Subscribers;
unless the extent of such use is solely to provide interactive on-demand services;
an open video system that complies with Section 653 of Title 6 of the
Telecommunications Act of 1996; or
(e) any facilities of any electric utility used solely for operating its electric utility system.
5.5 Channel or Cable Channel
Means a portion of the electromagnetic frequency spectrum which is used in a Cable System which is
capable of delivering a television channel as defined by the Federal Communications Commission.
5.6 Council
Means the Town Council of the Town of Truckee.
5.7 Franchise
Means an initial authorization, or renewal thereof, issued by the Council, whether such authorization is
designated as a franchise, p<mdt, license, resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a Cable System. Any such authorization, in whatever form
granted, shall not supersede the requirement to obtain any other license or pertnit required for the
privilege of transacfmg business wittfm the Town as required by the other ordinances and laws of the
Town. A Franchise is contractual, and the specific provisions of the Franchise shall be set forth in a
franchise enabling ordinance, and a related Franchise Agreement.
5.8 Franchise Agreement
Means the Franchise or a component of the Franchis~
5.9 Franchise Fee
Means any fee or assessment of any kind imposed by the Town on a Grantee as compensation for the
Grantee's use of the Public Rights-of-Way. The te~li "Franchise Fee" does not include:
(a)
any tax, fee or assessment of general applicability (including any such tax, fee, or
assessment imposed on both utilities and Cable Operators or their services, but not
including a tax, fee or assessment which is unduly discriminatory against Cable
Operators or Cable Subscribers);
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capital costs which are required by the Franchise to be incurred by Grantee for Public,
Educational, or Governmental Access Facilities;
(c)
requirements or charges incidental to the awarding or enforcing of the Franchise,
including payments for bonds, security fnnds, letters of credit, insurance,
indemnification, penalties, or liquidated damages; or
(d) any fee imposed under Title 17, United States Code.
5.10 Grantee
Means any "person" receiving a Franchise pursuant to this Ordinance and under the granting Franchise
ordinance or agreement, and its lawful successor, transferee or assignee.
5.11 Grantor or Town
Means the Town of Truckee as represented by the Council or any delegate, acting within the scope of its
jurisdiction.
5.12 Gross Annual Cable Service Revenues
Means the annual gross revenues received by a Grantee from the operations of the Cable System within
the Town to provide Cable Service utilizing the Public Rights-of-Way for which a Franchise is required,
excluding refundable deposits, rebates or credits, and any sales, excise or other taxes or charges imposed
externally to the Franchise, and collected for direct pass-through to local, State or Federal government.
5.13 Installation
Means the connection of the System to Subscribers' terminals, and the provision of service.
5.14 Normal Operating Conditions
Means those service conditions which are within the control of Grantee. Those conditions which are not
within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances,
restrictions or delays imposed by utility pole owner, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily within the control of the
cable operator include, but are not limited to, special promotions, pay-per-view events rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
5.15 Person
Means an individual, partnership, association, joint stock company, trust, corporation or governmental
entity.
5.16 Public, Educational or Government Access Facilities or PEG Access Facilities
Means the total of the following:
(a) Channel capacity designated for noncommercial public, educational, or government use;
and
(b) facilities and equipment for the use of such Channel capacity.
5.17 Section
Means any section, subsection or provision of this Ordinance.
5.18 Service Area or Franchise Area
Means the entire geographic area within the municipal boundaries of the Town as it is now constituted or
may in the future be constituted, unless otherwise specified in the Franchise.
5.19 Service Tier
Means a category of Cable Service or other services provided by a Cable Operator and for which a
separate rate is charged.
5.20 State
Means the State of California.
5.21 Street or Public Way or Public Rights-of-Way
Means each of the following which have been dedicated to the public or the utility use, or are hereafter
dedicated to the public or utility use and maintained under public authority or by others and located
within the Service Area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, fights-
of-way and similar public or utility access property.
5.22 Subscriber or Customer or Consumer
Means any Person who or which elects to subscribe to, for any purpose, Cable Service provided by the
Grantee by means of or in connection with the Cable System, and who pays the charges therefor.
SECTION 6. FRANCHISE TERMS AND CONDITIONS
6.1 Franchise Purposes
A Franchise granted by the Town under the provisions of this Ordinance shall encompass the following
purposes:
(a)
to permit the Grantee to engage m the business of providing Cable Service, and such
other serv/ces as may be permitted by law which Grantee provides to Subscribers within
the designated Service Area.
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(c)
(d)
to permit the Grantee to erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, cable lines, related electronic equipment, supporting structures,
appurtenances, and other property in connection with the operation of the Cable System
in, on, over, under, upon, along and across streets or other public places, as well as other
locations allowed by law such as utility easement and other apportionable, compatible
easements within the designated Service Area.
to pcmfit the Grantee to maintain and operate said Franchise properties for the
origination, reception, transmission, amplification, and distribution of television and
radio signals and for the delivery of Cable Services, and such other services as may be
permitted by law.
To set forth the obligations of the Grantee and the Grantor under the Franchise.
6.2 Franchise Required
After the effective date of this Ordinance, it shall be tmlawful for any Person to construct, install or
operate a Cable System in the Town within any Public Way without a properly granted Franchise
awarded pursuant to the provisions of this Ordinance. This Ordinance shall not apply retroactively to
rights created by an existing Franchise.
6.3 Term of the Franchise
(a) A Franchise granted hereunder shall be for a term established in the Franchise
Agreement, commencing on the Grantor's adoption of an ordinance or resolution
authorizing the Franchise.
Co)
A Franchise granted hereunder may be renewed upon application by the Grantee pursuant
to the provisions of applicable State and Federal law.
6.4 Franchise Territory
Any Franchise shall be valid within all the municipal limits of the Town, and within any area added to the
Town during the term of the Franchise, unless otherwise specified in the Franchise Agreement.
6.5 Federal or State Jurisdiction
This Ordinance shall be construed in a manner consistent with all applicable Federal and State laws, and
shall apply to all Franchises granted or renewed after the effective date of this Ordinance to the extent
permitted by applicable law.
6.6 Franchise Non-Transferable
(a) Grantee shall not sell, transfer, lease, assign or dispose of, in whole or in part, either by forced or
involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the Franchise or any of the
rights or privileges therein granted, without the prior consent of the Council, which consent shall not be
unreasonably denied, withheld or delayed; provided, however, that the prior consent of the Council shall
not be required for an intracorporate or intracompany transfer from one wholly-owned subsidiary to
another wholly-owned subsidiary. Any attempt to sell, transfer, lease, assign or otherwise dispose of the
Franchise or any contmctural rights or obligations under any such franchise without the consent of the
Council shall be null and void. The granting of a security interest in any Grantee assets, or any mortgage
or other hypothecation or by assignment of any right, title or interest in the Cable System, or use of the
Cable System as collateral in order to secure indebtedness, shall not be considered a transfer for the
purposes of this section.
(b) The requirements of Subsection (a) shall apply to any change in control of Grantee. The word
"control" as used herein includes majority ownership, and actual working control in whatever manner
exercised. In the event that Grantee is a corporation, prior consent of the Council shall be required where
ownership or control of more than thirty-five percent (35%) of the voting stock of the Grantee is acquired
by a Person or group of Persons acting in concert, none of whom own or control the voting stock of the
Grantee as of the effective date of the Franchise, singularly or collectively.
(c) Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or more
than thirty-five percent (35%) of the Franchise property of the Grantee or upon the termination of any
lease or interest covering all or a thirty-five percent (35%) of said Franchise property. Such notification
shall be considered by Grantor as notice that a change in control or ownership of the Franchise has taken
place and the provisions under this Section governing the consent of Grantor to such change in control or
ownership shall apply.
(d) For the purpose of determining whether it shall consent to such change, transfer, or acquisition of
control, Grantor may inquire into legal technical and financial qualifications of the prospective transferee
or controlling party to operate the cable systems, and Grantee shall assist Grantor in such inquiry. In
seeking Grantor% consent to any change of ownership or control, Grantee shall have the responsibility of
insuring that the Grantee and/or the proposed transferee complete an application in accordance with
Federal Communications Commission Form 394 or equivalent. An application shall be submitted to
Grantor not less than one hundred twenty (120) days prior to the proposed date of transfer. The transferee
shall be required to establish that it possesses the legal, technical and financial qualifications to operate
and maintain the System and comply w/th all Franchise requirements for the remainder of the term of the
Franchise. If the Grantee is then in compliance with the material requirements of the Franchise, and the
legal, financial and technical qualifications of the applicant are satisfactory, the Grantor shall consent to
the transfer of the Franchise. If the Grantor has not taken action on the Grantee's request for transfer
within one hundred twenty (120) days after receiving such request, Grantor's consent to such transfer
shall be deemed given. The consent of the Grantor to such transfer shall not be unreasonably denied or
delayed.
(e) Any f'mancial institution having a pledge of the Grantee or its assets for the advancement of
money for the construction and/or operation of the Franchise shall have the right to notify the Grantor that
it or its designee satisfactory to the Grantor shall take control of and operate the Cable System, in the
event of a Grantee default of its financial obligations. Further, if said financial institution elects to take
control of and operate the Cable System, and if it does so, said financial institution shall also agree in
writing to continue Cable Service and comply with all Franchise requirements during the term the
financial institution exercises control over the System.
(f) Upon transfer, Grantee shall reimburse Grantor for Grantor's reasonable processing and review
expenses in connection with the transfer of the Franchise including without limitation, costs of
administrative review, fmancial, legal and technical evaluation of the proposed transferee, consultants
(including technical and legal experts and all costs incurred by such experts), notice and publication costs
and document preparation expenses. Any such reimbursement shall not be charged against any Franchise
Fee due to Grantor during the term of the Franchise. A Franchise Agreement may establish a limit on the
costs of such reimbursement.
6.7 Geographical Coverage
(a) Grantee shall design, construct and maintain the Cable System to have the capability to pass
every residential dwelling unit in the Service Area, subject to any Service Area line extension
requirements of the Franchise Agreement and the provisions of Section 6.1 Co).
After service has been established by activating trunk and/or distribution cables for any Service
Area, Grantee shall provide service to any requesting Subscriber within that Service Area within thirty
(30) days from the date of request, provided that the Grantee is able to secure all rights-of-way, pemiits
and landlord agreements necessary to extend service to such Subscriber within such thirty (30) day period
on reasonable terms and conditions.
6.8 Nonexclnsive Franchise
Any Franchise granted pursuant to this Ordinance shall be nonexclusive. The Grantor specifically
reserves the right to grant, at any time, such additional Franchises for a Cable System, as it deems
appropriate, subject to applicable State and Federal law, provided that if the Grantor grants an additional
Franchise, then the material provisions of any such additional Franchise shall be reasonably comparable
to the terms and conditions contained in the initial Grantee's Franchise, so that all Grantees are accorded
competitively neutral and nondiscriminatory treatment.
6.9 Multiple Franchises
(a) Grantor may grant any number of Franchises subject to applicable State or Federal law. Grantor
may limit the number of Franchises granted, based upon, but not necessarily limited to, the requirements
of applicable law and specific local considerations, such as:
(1) The capacity of the Public Rights-of-Way to accommodate multiple cables in
addition to the cables, conduits and pipes of the utility Systems, such as electrical
power, telephone, gas and sewerage.
(2) The benefits that may accrue to Subscribers as a result of Cable System
competition, such as lower rates and improved service.
(3) The disadvantages that may result from Cable System competition, such as the
requirement for multiple pedestals on residents' property, and the disruption arising
from numerous excavations of the Public Rights-of-Way.
Where electric and telephone utilities are to be placed underground in any proposed new
residential housing developments, the developer of such new residential housing shall give each Grantee
servicing the Franchise Area within which the new residential housing development is located at least ten
(10) days prior written notice of any intent to obtain subdivision approval, and cooperate with any
interested Grantee in designing and providing for installation of Grantee's cable facilities, which
installation shall be allowed as a condition of plan approval. The developer of any such new residential
housing shall also give the interested Grantees ten (10) days prior written notice of the date on which
open trenching will be available for the Grantee's installation of conduit, pedestals and vaults. On request
of the Grantor or developer, the Grantee shall provide specifications needed for trenching and said
trenching shall be done at developer's expense. Existing Grantees are permitted to install and own their
own conduit, pedestals, vaults and associated equipment. Developers of new residential housing with
underground utilities shall provide conduit to accommodate cables for at least two (2) new entrant Cable
Systems and dedicate the use of such conduit to the Town.
(c) Grantor may require that any new entrant, non-incumbent Grantee be responsible for its own
underground trenching and the costs associated therewith, if, in Grantor's opinion, the Public Rights-of-
Way in any particular area cannot feasibly and reasonably accommodate additional cables.
(d) To the extent permitted by law, Grantor shall require developers to permit Grantee access to trenches
on an equivalent basis with the public utilities serving that development.
6.10 Franchise Modification
Thc Grantee may be required to pay any costs incurred by the Grantor in processing a Grantee request for
Franchise modification, lease, hypothecation or trust of Franchise. Such costs may include the costs
incurred for hiring consultants to assist in evaluating the request. Such costs shall be paid by the Grantee
prior to final consideration of the request by the Grantor.
SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL
7.1 Filing of Applications
Any Person not holding an existing valid Franchise and desiring an initial Franchise for a Cable System
shall file an application with the Town. A reasonable nonrefundable initial application fee established by
the Town shall accompany the initial Franchise application to cover all validly documented reasonable
costs associated with processing and reviewing the application, including without limitation costs of
administrative review, financial, legal and technical evaluation of the applicant, consultants (including
technical and legal experts and all costs incurred by such experts), notice and publication requirements
with respect to the consideration of the application and document preparation expenses. In the event such
validly documented reasonable costs exceed the application fee, the selected applicant(s) shall pay the
difference to the Town within thirty (30) days following receipt of an itemized statement of such costs.
7.2. Applications - Contents
An application for an initial Franchise for a Cable System shall contain, where applicable:
(a)
A statement as to the proposed Franchise and Service Area;
Co) A resume of pr/or history of the applicant, including the expertise of applicant in the
Cable System field;
(c) A list of the partners, general and limited, of the applicant, if a partnership, or the
percentage of stock owned or controlled by each stockholder having a five percent (5%)
or greater interest, if a corporation;
(d) A list of officers, directors and managing employees of the applicant, together with a
description of the background of each such Person;
(e) The names and addresses of any parent or subsidiary of the applicant or any other
business entity owning or controlling the applicant in whole or in part, or owned or
controlled in whole or in part by the applicant;
(f) A current fmancial statement of the applicant verified by a Certified Public Accountant
audit or otherwise certified to be true, complete and correct to the reasonable satisfaction
of the Town;
(g) A proposed construction and service schedule;
(h) Any reasonable relevant additional information that the Town deems applicable.
7.3. Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise, the Town Manager or a delegate
shall prepare a report and make recommendations respecting such application to the
Council.
(b) A public hearing shall be set prior to any initial Franchise grant, at a time and date
approved by the Council. Within sixty (60) days after the close of the hearing, the
Council shall make a decision based upon the evidence received at the heating as to
whether or not the initial Franchise(s) should be granted, and, if granted, subject to what
conditions. The Council may grant one (1) or more Franchises, or may decline to grant
any Franchise.
7.4. Franchise Renewal
Franchise renewals shall be in accordance with applicable law. Grantor and Grantee, by mutual consent,
may enter into renewal negotiations at any time during the term of the Franchise.
SECTION 8. MINIMUM CONSUMER PROTECTION & SERVICE STANDARDS
8.1. Operational Standards
a) Except as otherwise provided in the Franchise Agreement, Grantee shall maintain the necessary
facilities, equipment and personnel to comply with the following Consumer protection and service
standards under normal conditions of operation:
(1) Sufficient toll-free telephone line capacity during normal business hours to assure that
telephone answer time by a customer service representative, including wait time, shall
not exceed thirty (30) seconds; and callers needing to be transferred shall not be
required to wait more than thirty (30) seconds before being connected to a service
representative. Under normal operating conditions, a caller shall receive a busy signal
less than three percent (3%) of the time.
(2) Emergency toll free telephone line capacity on a twenty-four (24) hour basis, including
weekends and holidays. After normal business hours, the telephone calls may be
answered by a service or an automated response system, including an answering
machine. Calls received after normal business hours must be responded to by a trained
company representative on the next business day. During periods when an answering
service or machine is used, Grantee shall provide on-call personnel who shall contact
the answering service or machine, at a minimum, every four hours to check on requests
for service or complaints.
(3) A conveniently located local business and service and/or payment office open during
normal business hours where Grantee provides adequate staffing to accept Subscriber
payments and respond to service requests and complaints. Normal business hours shall
include some evening hours, at least one (1) night per week, and/or some weekend
hours. The Grantee may petition the Grantor to reduce its business hours if the
extended hours are not justified by Subscriber demand, and Grantor may not
unreasonably deny the petition.
(4) An emergency System maintenance and repair staff, capable of responding to and
repairing major System malfunction on a twenty-four (24) hour per day basis.
(5) An installation staff, capable of installing service to any Subscriber requiring a Standard
Installation within seven (7) days after receipt ora request, in all areas where trunk and
feeder cable have been activated. "Standard Installations" shall be those that are
located up to one hundred twenty-five (125) feet from the existing distribution System,
unless otherwise defined in any Franchise Agreement.
(6) Grantee shall schedule, within a specified four (4) hour time period during normal
business hours, all appointments with Subscribers for installation of service, service
calls and other activities at the Subscriber location. Grantee may schedule installation
and service calls outside of normal business hours for the express convenience of the
customer. Grantee shall not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment. If a Grantee
representative is running late for an appointment with a customer and will not be able
to keep the appointment as scheduled, the customer shall be contacted and the
appointment rescheduled, as necessary, at a tune which is convenient for the customer.
(b) Under Normal Operating Conditions, the standards of paragraphs (a)(1)-(a)(2)above shall be met
not less than ninety percent (90%) of the time measured on a quarterly basis. The standards of paragraphs
(a)(4)-(6) above shall be met not less than ninety-five percent (95%) of the time measured on a quarterly
basis.
(c) Grantee shall not be required to acquire equipment or perform surveys to measure compliance with
the telephone answering standards above unless there is demonstrable evidence of complaints indicates a
clear failure to comply.
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8.2 Service Standards
(a) Grantee shall render efficient service, make repairs promptly, and interrupt service only for
good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be
preceded by notice and shall occur during a period of minimum use of the Cable System, preferably
between midnight and six A.M. (6:00 A.M.) local time.
(b) The Grantee shall maintain a repair force of technicians normally capable of responding to
Subscriber requests for service within the following time frames:
(1) For a System outage: Within two (2) hours, including weekends, of receiving
Subscriber calls or requests for service which by number identify a system outage of
sound or picture of one (1) or more channels, affecting at least ten percent (10%) of
the Subscribers of the System.
(2) For an isolated outage: Within twenty-four (24) hours, including weekends, of receiving
requests for service identifying an isolated outage of sound or picture for one (1) or
more channels that affects five (5) or more Subscribers. On weekends, an outage
affecting fewer than five (5) Subscribers shall result in a service call no later than the
next business day.
(3) For inferior signal quality: Within two (2) business days of receiving a request for
service identifying a problem concerning picture or sound quality.
(c) Grantee shall be deemed to have responded to a request for service under the provisions of
this Section when a technician arrives at the service location and begins work on the problem. In the case
of a Subscriber not being home when the technician arrives, the technician shall leave written notification
of arrival.
(d) Grantee shall not charge for the repair or replacement of defective or malfunctioning
equipment provided by Grantee to Subscribers, unless the defect was caused by the Subscriber, or the
equipment owned by the Subscriber requires repair or replacement.
(e) Unless excused, Grantee shall determine the nature of the problem resulting in a request for
service within two (2) business days of beginning work and resolve all Cable System related problems
within five (5) business days unless technically infeasible.
8.3 Billing and Information Standards
(a) Subscriber bills shall be clear, concise and understandable. Bills shall be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment charges.
Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates
and credits.
(b) In case of a billing dispute, the Grantee shall respond to a written complaint from a
Subscriber within thirty (30) days.
(c) Grantee shall automatically provide credits or refunds to such Subscribers whose service has
been interrupted for twenty four (24) consecutive hours or more, and upon request to Subscribers whose
service has been interrupted for two (2) or more hours.
Credits or refunds shall automatically be provided by Grantee on a pro rata basis to any
Subscriber(s) affected by interruption(s) of service for more than two (2) hours due to actions or outages
under the control of the Grantee, exclusive of scheduled repairs, maintenance or Franchise-required
11
construction that Grantee has provided advance written notice of to Subscribers. In cases where advance
written notice is provided to Subscribers, the time period detailed in said notice shall not exceed four (4)
hours in any twenty-four (24) hour period. In cases where said notice has been given to Subscribers and
the service interruption exceeds the period detailed in said notice, the provisions of this Section shall
apply.
In the event Grantee has improperly or inadvertently disconnected Cable Services to a Subscriber,
Grantee shall provide for restoration without charge to Subscriber as soon as possible, but no later than
within two (2) days of discovery of disconnection. Grantee shall credit or provide refunds to any
Subscriber improperly or inadvertently disconnected from receiving Cable Services for the period of time
without Cable Service.
All credits or refunds for service shall be issued no later than the customer's next billing cycle
following the determination that a credit is warranted. For Subscribers terminating service, refunds shall
be issued promptly, but no later than thirty (30) days after the remm of any Grantee-supplied equipment.
(d) Grantee shall provide written information on each of the following areas (i) at the time of
the installation of service, (ii) at least annually to all Subscribers, and (iii) at any time upon request: (1) Products and services offered; and
(2) Prices and options for programming services and conditions of subscription to
programming and other services; and
(3) Installation and service maintenance policies; and
(4) Instructions on how to use the Cable Service; and
(5) Channel positions of programming carried on the System; and
(6) Billing and co.~plaint procedures, including the address and telephone number of the
Grantor office designated for dealing with cable-related issues.
(e) Subscribers shall be notified of any changes in rates, programming services or channel
positions as soon as possible in writing and in accordance with State and Federal Law. Notice must be
given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the
control of the Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in advance of any
significant changes in the information required in paragraph 8.3(d) above.
8.4 Verification of Compliance with Standards
(a) Upon ten (10) days prior written notice, Grantee shall respond to a request for
information made by Grantor regarding Grantee's compliance with any or all of the standards required in
Sections 8.1, 8.2 and 8.3 above. Grantee shall provide sufficient documentation to perndt Grantor to
verify Grantee's compliance.
(b) A repeated and verifiable pattern of non-compliance with the consumer protection
standards of Sections 8.1 through 8.3 above, after Grantee's receipt of due notice and a reasonable
opporttmity to cure, may be deemed a material breach of the Franchise Agreement.
(c) In order to detera-dne whether sufficient telephone lines are provided, the Grantor may
require that a busy study, traffic study or other study be conducted, at Grantee's expense, if any, by the
local telephone company. Should Grantee have its own telephone equipment which can report on
telephone line(s) usage, the Grantee may subrmt such report from its own system. The Grantor, pursuant
to Section 8. l(c) of this Ordinance, may require Grantee to acquire equipment to determine compliance
with the telephone answering standards of this Section 8.
(d) Grantee shall take necessary steps to ensure that adequate telephone lines and/or staffmg
are available to permit Grantee to satisfy its obligations under this Ordinance and the Franchise.
12
Consideration shall be given for periods of promotional activities or outages. The monthly billing period
shall be considered as a normal, daily activity for purposes of determining the availability of adequate
telephone lines and/or staffing.
8.5 Subscriber Complaints and Disputes
(a) Grantee shall establish written procedures for receiving, acting upon and resolving
Subscriber complaints without intervention by the Grantor. The written procedures shall prescribe the
manner in which a Subscriber may submit a comlAaint either orally or in writing specifying the
Subscriber's grounds for dissatisfaction. Grantee shall file a copy of these procedures with Grantor. The
written procedures shall include a requirement that Grantee respond to any written complaint from a
Subscriber within thirty (30) days of receipt.
Co) Upon prior written request, Grantor shall have the right to review Grantee's response to
any Subscriber complaints in order to determine Grantee's compliance with the Franchise requirements,
subject to the Subscriber's right to privacy.
(c) Subject to applicable law, it shall be the right of all Subscribers to continue receiving
Cable Service insofar as their financial and other obligations to the Grantee are honored. In the event that
the Grantee elects to rebuild, modify, or sell the System, or the Grantor gives notice of intent to terminate
or not to renew the Franchise, the Grantee shall act so as to ensure that all Subscribers receive Cable
Service so long as the Franchise remains in force.
(d) In the event of a change of control of Grantee, or in the event a new operator acquires the
System, the original Grantee shall cooperate with the Grantor, new Grantee or operator in maintaining
continuity of service to all Subscribers. During such period, Grantee shall be entitled to the revenues for
any period during which it operates the System.
(e) Grantee response to Subscriber complaints, as well as complaints made by Subscribers to
Grantor and provided by Grantor to Grantee, shall be initiated within one (1) business day of receipt by
Grantor. The resolution of Subscriber complaints shall be effected by Grantee not later than three (3)
business days after receipt of the complaint. Should a Grantee supervisor not be available when requested
by a Subscriber, a supervisor shall respond to the Subscriber's complaint at the earliest possible time, and
in no event later than the end of the next business day. For complaints received by Grantor and provided
by Grantor to Grantee, Grantee shall notify Grantor of Grantee's progress in responding to, and resolving,
said complaints.
(f) In the event a subscriber complaint is not successfully resolved under Section (e) above,
and the dollar amount at issue in any such complaint is Five Thousand Dollars ($5,000) or less or seeks a
non-monetary remedy, the Grantee shall provide for review of the subscriber complaint by a senior
management official of the Grantee who shall act as an "ombudsman" for purposes of obtaining mutually
acceptable resolution of the dispute. Any actions undertaken by the ombudsman shall be completed
within five (5) business days.
If the subscriber complaint remains unresolved at that time, the subscriber may request the
appointment of a heating officer selected by the Town Manager or his/her designee. The hearing officer
shall conduct an informal proceeding, with the subscriber and Grantee both having the opportunity to
present written and oral statements. Upon conclusion of the proceeding, the hearing officer shall issue a
written decision. That decision shall be final and binding on both the subscriber and Grantee. Grantee
shall pay any sum awarded within five (5) working days after the written decision is issued. If Grantee
does not timely pay any such award, that sum shall be deducted from the security fund created by this
13
ordinance and paid to the subscriber. Grantee shall then be required to replenish the fund. The costs of
hearing, if any shall be paid by Grantee.
8.6. Other Requirements
(a) In the event Grantee fails to operate the System for seven (7) consecutive days other than
for reasons beyond the control of Grantee, without prior approval or subsequent excuse of the Grantor, the
Grantor may, at its sole option, operate the System or designate an operator until such time as Grantee
restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the
Grantor should fulfill this obligation for the Grantee, then during such period as the Grantor fulfills such
obligation, the Grantor shall be entitled to collect all revenues from the System, and the Grantee shall
reimburse the Grantor for all reasonable costs or damages in excess of the revenues collected by Grantor
that are the result of Grantee's failure to perform.
(b) All officers, agents or employees of Grantee or its contractors or subcontractors who, in
the normal course of work come into contact with members of the public or who require entry onto
Subscribers' premises shall carry a photo-identification card in a form approved by Grantor. Grantee shall
account for all identification cards at all times. Every vehicle of the Grantee or its major subcontractors
shall be clearly identified as working for Grantee.
(c) Additional service standards and standards governing Consumer protection and response
by Grantee to Subscriber complaints not otherwise provided for in this Ordinance may be established in
the Franchise Agreement or by separate ordinance. Where there is demonstrable evidence of repeated and
substantial noncompliance may be deemed a mater/al breach of the Franchise, provided that Grantee shall
receive due process, including prior written notification and a reasonable opportunity to cure, prior to any
sanction being imposed.
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SECTION 9. FRANCHISE FEE & FINANCIAL REQUIREMENTS
9.1 Franchise Fee
(a) Following the issuance and acceptance of the Franchise, the Grantee shall pay to the
Grantor a Franchise Fee on Gross Annual Revenues in the amount and at the times set forth in the
Franchise Agreement, to the extent allowed by federal and State law.
(b) The Grantor, on an annual basis, shall be furnished a statement within one hundred
twenty (120) days of the close of the calendar year, either audited and certified by an independent
certified public accountant or certified by an officer of the Grantee, reflecting the total amounts of gross
revenues and all payments, deductions and computations for the per/od covered by the payment. Upon
thirty (30) days prior written notice, Grantor shall have the fight to conduct an independent financial audit
of Grantee's Gross Annual Revenue and Franchise Fee records, in accordance with Generally Accepted
Accounting Procedures (GAAP), and if such audit indicates a Franchise Fee underpayment of two percent
(2%) or more, the Grantee shall assume all reasonable documented costs of such audit.
(c) Except as otherwise provided by law, no acceptance of any payment by the Grantor shall
be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or
additional sums payable as a Franchise Fee under this Ordinance or for the performance of any other
obligation of the Grantee.
(d) In the event that any Franchise Fee payment or payment of any adjustment to any
Franchise Fee is not made on or before the dates specified in the Franchise Agreement, unless otherwise
excused, Grantee shall pay:
(1) an interest charge, computed from such due date, at an annual rate equal to the
highest of the most recently published prime lending rate of any of the five (5)
largest member banks of the New York Clearing House Association, plus one
percent (1%) during the period for which payment was due; and
(2) if the payment is late by thirty (30) days or more, a sum of money equal to five
percent (5%) of the amount due in order to defray those additional expenses and
costs incurred by the Grantor due to Grantee's delinquent payment.
(e) Franchise fee payments shall be made in accordance with the schedule indicated in the
Franchise Agreement.
9.2 Security Fund
(a) Grantor may require Grantee to provide a security fund, in an amount and form
established in the Franchise Agreement. The amount of the security fund shall be established based on
the extent of the Grantee's obligations under the terms of the Franchise.
(b) The security fund shall be available to Grantor to satisfy all claims, liens and/or taxes due
Grantor from Grantee which arise by reason of construction, operation, or maintenance of the System, and
to satisfy any actual or liquidated damages ar/sing out of a material breach of the Franchise Agreement,
subject to the procedures and amounts designated in the Franchise Agreement.
(c) If the security fund is drawn upon by Grantor in accordance with the procedures
established in this Ordinance and the Franchise Agreement, Grantee shall cause the security fund to be
replenished to the original amount no later than thirty (30) days after receiving written confu-mation from
the bank where such security fund is deposited that Grantor has made a draw against the security fund.
Failure to replenish the security fund shall be deemed a material breach of the Franchise.
15
SECTION 10. CONSTRUCTION REQUIREMENTS
10.1 System Construction
(a) Grantee shall not construct any Cable System facilities until Grantee has secured the
necessary permits from Grantor, or other responsible public agencies. The Grantee shall be subject to all
existing pc,mit and bonding requirements applicable to contractors working within the Public Rights-of-
Way. No provision of this Ordinance or the Franchise Agreement shall be deemed a waiver of the
obligation ora Grantee to pay Grantor for the issuance of a permit.
(b) In those areas of the Town where transmission lines or distribution facilities of the public
utilities providing telephone and electric power service are underground, the Grantee likewise shall
construct, operate and maintain its transmission and distribution facilities underground.
(c) In those areas of the Town where the Grantee's cables are located on the above-ground
transmission or distribution facilities of the public and/or municipal utility providing telephone or electric
power service, and in the event that the facilities of both the telephone and electric power utilities
subsequently are placed underground, then the Grantee likewise shall reconstruct, operate and maintain its
transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment,
such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue
to remain in above-ground enclosures, unless otherwise provided in the Franchise Agreement.
(d) Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults,
laterals or other fixtures and equipment (herein referred to as "Structures"), or the construction of any
additional Structures, in, upon, along, across, under or over the Streets, alleys and Public Ways shall
require notification of the Town Public Works Director or a designee. Any change normally requiting a
permit from the Grantor shall not be made until a permit has been issued. If any change conforms with
California Public Utilities Commission General Order 95 (underground) and/or General Order 128
(underground) then additional permitting shall not be required. The height above public thoroughfares of
all aerial wires shall conform to the requirements of the California regulatory body having jurisdiction
thereof.
(1) All transmission and distribution structures, lines and equipment erected by the
Grantee shall be located so as not to interfere with the proper use of the Public Rights-of-Way, and to
cause minimum interference with the rights or reasonable convenience of property owners who adjoin any
of the said Public Rights-of-Way, and not to materially interfere with existing public and municipal utility
installations.
(2) In the event that any property or improvement of the Grantor in the Public
Rights-of-Way is disturbed or damaged by the Grantee or any of its contractors, agents or employees in
connection with undertaking any and all work pursuant to the rights granted to the Grantee pursuant to
this Ordinance and the Franchise Agreement, the Grantee shall promptly, at the Grantee's sole cost and
expense, restore to the Grantor's satisfaction said property or improvement which was so disturbed or
damaged. If such property or improvement shall within two (2) years (or in the case of street
improvement, until the street is resurfaced if resurfaced prior to the expiration of the two (2) years) of the
date the restoration was completed, become uneven, unsettled or otherwise require additional restorative
work, repair or replacement because of the ini. tial disturbance or damage to the property by the Grantee,
then the Grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from the
Grantor and at the Grantee's sole cost and expense, restore to the Grantor's satisfaction said property or
improvement which was disturbed or damaged. Any such restoration by the Grantee shall be made in
accordance with such materials and specifications as may, from time to time, be established by the
Grantor.
16
(3) Prior to commencing any work on the System in the Public Rights-of-Way, the
Grantee shall obtain any and all permits, licenses and authorizations lawfully required for such work. If
emergency work on the System in the Public Right-of-Way is required, the Grantee shall with all due
diligence, seek to obtain any and all such required permits, licenses and authorizations within three (3)
working days after commencing such emergency work. Prior to performing any work in the Public
Right-of-Way, Grantee shall give appropriate notice to the "Underground Service Alert" ("USA"), or any
similar type service provider as designated by the Grantor.
(4) There shall be no unreasonable or unnecessary obstruction of the Public Rights-
of-Way by the Grantee in connection with any of the work provided for herein. The Grantee shall
maintain any barriers, signs and warning signals during any work performed on or about the Public
Rights-of-Way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and
property.
(5) If the Grantor lawfully elects to alter or change the grade or location of any
Public Right-of-Way, the Grantee shall, upon reasonable notice by the Grantor, and in a timely manner,
remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at it
own expense.
(6) The Grantee shall not place poles, conduits or other fixtures above or below
ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other
utility, and all such poles, conduits or other fixtures placed in any street shall be so placed as to comply
with all ordinances of the Grantor.
(7) In accordance with applicable law, the Grantee or any utility user of the Public
Rights-of-Way may be required by the Grantor to permit joint use of its poles and/or conduit located in
the Public Rights-of-Way, insofar as such joint use may be reasonably practicable and upon payment of a
reasonable rental fee for such usage. In the absence of agreement regarding such joint use, each party
shall be entitled to exercise any fights and defenses provided by applicable law.
(8) The Grantee, on request of any Person holding a moving permit issued by the
Grantor, shall temporarily raise or lower its wires or fixtures to permit the moving of buildings. The
expense of such temporary raising or lowering of wires or fixtures shall be paid by the Person requesting
the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall
be given not less than five (5) business days prior written notice to arrange for the temporary wire or
equipment changes.
(9) The Grantee shall have the authority to trim any trees or other natural growth
overhang/ng the Public Rights-of-Way so as to prevent the branches of such trees or other natural growth
from coming in contact with the Grantee's wires, cables and other equipment. The Crrantor may require
all trimming of trees and natural growth to be done under its supervision and direction.
10.2 Multiple Franchises
(a) Subject to applicable law, in the event that more than one (1) Franchise is awarded, the
Grantor reserves the right to limit the number of drop cables per residence, or to require that the drop
cable(s) be utilized only by the Cable Operator selected by the resident to provide service.
(b) The Grantor reserves the fight to grant an encroachment permit to a Cable Franchisee
applicant to install conduit and/or cable in anticipation of the granting of a Franchise. Such installations
shall be at the applicant's risk, with no recourse against the Grantor in the event the pending Franchise
17
application is not granted. The Grantor may require an applicant to provide a separate trench for its
conduit and/or cable, at the applicant's cost.
(c) If the Grantor authorizes or permits another Cable System to operate within the municipal
limits of the Town, it shall do so on conditions that such new Cable System entrant indemnify and hold
harmless and reimburse the Grantee from and against all costs and expenses incurred in strengthening
poles, replacing poles, rearranging attachments, placing underground facilities and all other costs
including those of Grantee, the Town and utilities, incident to inspections, make ready, and construction
of an additional Cable System in the Franchise Area; and Grantee shall be designated a third party
beneficiary of such conditions as are incorporated into the authorization(s) granted to such new entrant
Cable System.
18
SECTION 11. TECHNICAL STANDARDS
11.1 Applicable Technical Standards
(a) The Grantee shall construct, install, operate and maintain its Cable System in a manner
consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC
technical standards, and any detailed standards set forth in its Franchise Agreement. In addition, the
Grantee shall provide to the Grantor, upon written request, a written report of the results of the Grantee's
periodic proof of performance tests conducted pursuant to FCC and Franchise standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the Grantee shall make and
submit such proof of performance tests and reports in response to a written request fi.om the Grantor.
Such report shall be submitted to the Grantor within thirty (30) days of issuance of the Grantor request.
Requests shall be limited to no more often than twice per calendar year.
(c) Any time the signal provided on Grantee's Cable System does not meet FCC technical
standards or the technical standards of Grantee's Franchise application and/or Grantee's Franchise
Agreement, the Grantee shall make a pro rata rebate, in money or services, to each Subscriber based upon
the percentage by which the signal falls below the most stringent technical standard and upon the length
of time that such condition has existed. Such rebate shall be made to the satisfaction of each Subscriber,
or of the Grantor, if agreement with the Subscriber cannot be reached.
11.2 Non-Compliance with Standards
Demonstrable evidence of failure to maintain specified technical standards shall constitute a material
breach of the Franchise.
11.3 Costs of Technical Assistance
The Grantee shall pay the costs incurred by the Grantor for obtaining any technical assistance deemed
necessary by the Grantor for obtaining independent verification of technical compliance with all
Franchise-imposed standards. Any such payment by Grantee shall not be credited against any Franchise
Fees due to the Grantor.
19
SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS
12.1 Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its officers, agents and employees harmless from any
liability, claims, damages, costs or expenses, to the extent provided in the Franchise Agreement.
12.2 Insurance
(a) On or before commencement of Franchise operations, the Grantee shall furnish to Grantor Certificates
of Insurance for liability, Workers' Compensation and property insurance from appropriately qualified
insurance COmlJanies, which shall be "admitted" in the State of California. The Certificates of Insurance
shall provide that the insurance is in force and will not be cancelled or modified without thirty (30) days
prior written notice to Grantor. The Certificates of Insurance shall be in a form satisfactory to Grantor.
The Grantee shall maintain at its cost throughout the term of the Franchise, the insurance required herein
and in any Franchise Agreement.
(b) The policy of liability insurance shall:
(1) Be endorsed to name Grantor, its officers, agents and employees as additional
insureds;
(2) Indemnify all liability for personal and bodily injury, death and damage to property
arising fi'om activities conducted and premises used pursuant to this Ordinance by
providing coverage therefor, including but not limited to:
Negligent acts or omissions of Grantee, and its agents, servants
and employees, committed in the conduct of Franchise operations,
and/or
- Use of motor vehicles,
(3) For any claims relating to this agreement the Grantee's insurance coverage shall
be primary as respects the Grantor, its agents, officers and employees. Any
insurance or self-insurance maintained by the Grantor shall be excess of the
Grantee's insurance and shall not contribute to it.
(4) Provide a combined single limit for comprehensive general liability and
comprehensive automobile liability insurance in the amount provided for in the
Franchise Agreement.
(c) The policy of Workers' Compensation Insurance shall comply with the laws of the State of California.
(d) The policy of property insurance shall provide fire insurance with extended coverage on the Franchise
property used by Grantee in the conduct of Franchise operations in an amount adequate to enable Grantee
to resume Franchise operations following the occurrence of any risk covered by this insurance.
The Certificates of Insurance and/or endorsements shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and the date upon which it will
expire;
(3) The names of the primary insureds and any additional insured required by the
Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
(6) The amount or limit of coverage provided by the insurance.
20
If the Certificates of Insurance do not provide all of the above information, Grantor reserves the fight to
inspect the relevant insurance policies.
(e) The commencement of Franchise operations shall not begin until Grantee has complied with the
aforementioned provisions of this Section.
(f) In the event Grantee fails to maintain any of the above-described policies in full force and effect,
Grantor shall, upon forty-eight (48) hours notice to Grantee, have the right to procure the required
insurance and recover the cost thereof fi:om Grantee. Grantor shall also have the right to suspend the
Franchise during any period that Grantee fails to maintain said policies in full force and effect. In order to
account for increases in consumer prices, no more than once during any five (5) year period, Grantor shall
have the fight to order Grantee to increase the amounts of the insurance provided in the Franchise
Agreement. Such order may be made by Grantor after conducting a duly noticed public heating.
Increases in insurance coverage shall be based upon current prudent business practices of like enterprises
involv/ng the same or similar risks.
21
SECTION 13. RECORDS AND REPORTS
13.1 Records Required
(a) Grantee shall at all times maintain:
(1) A written or computer-stored record of all service calls and interruptions or degradation
of service experienced for the preceding two (2) years, provided that such complaints
result in or require a service call, subject to the Subscriber's right of privacy.
(2) A full and complete set of plans and record drawings showing the locations of the Cable
System components installed or in use in the Town, exclusive of Subscriber service drops
and equipment provided in Subscriber's homes.
(3) If requested by Grantor, a summary of service calls, identifying the number, general
nature and disposition of such calls, shall be submitted to Grantor. The summary shall be
submitted to the Grantor on a one-time basis within thirty (30) days following any written
request by Grantor, or may be required by Grantor to be submitted monthly, in a form
reasonably acceptable to the Grantor.
(4) If requested by Grantor, a complaint record shall be submitted which shall contain a
semi-annual (through June 30th and December 31st) breakdown indicating the total
number of complaints received for the preceding reporting period, and shall indicate the
classifications of complaints in the form normally maintained by the Grantee.
(5) A full and complete record of rates for programming services, equipment, installations
and other Subscriber charges shall be submitted by Grantee to Grantor on a current
ongoing basis. This information shall include, but not be limited to, rates for the Basic
Service Tier, Tiers of service beyond the Basic Tier, premium service, pay-per-view
services, late fees, additional outlets, converters, remote controls and any charges for
installation or service at the Subscriber premises.
13.2 Additional Information
(a) The Grantor may impose requests for additional information, records and documents from
Grantee, provided they reasonably relate to the scope of the Town's rights and regulatory responsibilities
under this Ordinance or the Grantee's Franchise Agreement.
(b) Upon reasonable notice, and during normal business hours, Grantee shall permit examination by any
duly authorized representative of the Grantor of all Franchise property and facilities, together with any
appurtenant property and facilities of Grantee situated within the Service Area.
13.3 Annual Reports
(a) If requested by the Grantor in writing, within ninety (90) days after the end of the calendar year,
Grantee shall submit a written report to Grantor with respect to the preceding calendar year in a form
approved by Grantor, including, but not limited to, the following information:
(1) A summary of the previous year's (or in the case of the initial reporting year, the initial
year's) activities in development of the Cable System, including but not limited to,
services begun or discontinued during the reporting year;
(2) A list of Grantee's officers and members of its board of directors;
(3) A list of stockholders or other equity investors holding five percent (5%) or more of the
voting interest in Grantee;
(4) An indication of any residences in Grantee's Service Area where service is not available,
and a schedule for providing service;
(5) Information as to
(i) the number of homes passed;
(ii) total Subscribers; and
(iii) the number of Basic and Pay Subscribers.
22
(6) A full and complete set of plans and record drawings showing the locations of the Cable
System installed or in use in the Town, exclusive of Subscriber service drops and
equipment provided in Subscriber's homes. It is the intent of this Section that the Grantor
have a complete set of plans and records drawings. After the initial submission of a
complete set of drawings, the Grantee may satisfy the provisions of this Section by
providing updated portions of those sections of the drawings which have changed.
(7) Any other information relevant to Franchise regulation which the Grantor shall
reasonably request, and which is relevant to its regulatory responsibilities.
(b) Upon request, Grantee shall submit to Grantor copies of all pleadings, applications and reports
submitted by Grantee to any Federal, State or local court, regulatory agency, or other governmental body
as well as copies of all decisions issued in response to such pleadings, applications and reports, which are
non-routine in nature and which will materially affect its Cable System within the Franchise Area.
(c) Information otherwise confidential by law and so designated by Grantee, which is submitted to
Grantor, shall be retained in confidence by Grantor and its authorized agents and shall not be made
available for public inspection. Notwithstanding the foregoing, Grantee shall have no obligation to
provide copies of documents to Grantor which contain lxade secrets of Grantee or which are otherwise of
a confidential or proprietary nature to Grantee unless it receives satisfactory assurances from Grantor that
such information can and will he held in strictest confidence and protected by the Grantor. To the extent
possible, Grantee may prov/de Grantor with summaries of any required documents or copies thereof with
trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on Grantee to
establish the confidential nature of any information submitted, to the reasonable satisfaction of the
Grantor.
(d) If Grantee is publicly held, a copy of each Grantee's annual and other periodic reports and those of its
parent, shall be submitted to Grantor within forty-five (45) days of the publication of such reports.
(e) Upon Grantor's request, but no more than annually, Grantee shall submit to Grantor a privacy report
indicating the degree of compliance with the provisions contained in Section 18.3(c), (d) and (f) herein
and all steps taken to assure that the privacy rights of individuals have been protected.
(f) All reports required under this Ordinance, except those required by law to be kept confidential, shall
be available for public inspection in the Grantor's offices during normal business hours.
(g) All reports and records required to be delivered to Grantor under this Ordinance shall be furnished at
the sole expense of Grantee, except as otherwise provided in the Franchise Agreement.
(h) The willful refusal, failure, or willful negligence of Grantee to file any of the reports required as and
when due under this Ordinance, may be deemed a material breach of the Franchise Agreement if such
reports are not provided to Grantor within thirty (30) days after written request therefor, and may subject
the Grantee to all remedies, legal or equitable, which are available to Grantor under this Ordinance or the
Franchise Agreement.
(i) Any materially false or misleading statement or representation made knowingly and willfully by the
Grantee in any report required under this Ordinance or under the Franchise Agreement may be deemed a
material breach of the Franchise and may subject Grantee to all remedies, legal or equitable, which are
available to Grantor.
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13.4 Opinion Survey
Upon written request of the Grantor, but not more than once every two (2) years, the Grantee shall
conduct a Subscriber satisfaction survey pertaining to quality of service, which may be transmitted to
Subscribers in Grantee's invoice for Cable Services. The results of such survey shall be provided to the
Grantor on a timely basis. The cost of such survey shall be borne by the Grantee.
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SECTION 14. REVIEW OF SYSTEM PERFORMANCE
14.1 Biannual Review
(a) Every two (2) years throughout the term of the Franchise, if reasonably requested by prior written
notice fi.om the Grantor, Grantor and Grantee shall meet publicly to review System performance and
quality of service. The various reports required pursuant to this Ordinance, results of technical
performance tests, the record of Subscriber complaints and Grantee's response to those cocnplaints, and
the information acquired in any Subscriber surveys, shall be utilized as the basis for review. In addition,
any Subscriber may submit comments or complaints during the review meetings, either orally or in
writing, and these shall be considered. Within thirty (30) days after the conclusion of such a review
meeting, Grantor may issue findings with respect to the Cable System's Franchise compliance and quality
of service.
If Grantor determines that Grantee is not in compliance with the requirements of this Ordinance
or the Grantee's Franchise Agreement, Grantor shall provide Grantee, in the form of written f'mdings, the
specific details of each alleged noncompliance. Grantor may then direct Grantee to correct the areas of
noncompliance within a reasonable period of time. Failure of the Grantee, after due notice, to: (1) correct the area(s) of noncompliance within the period specified therefor; or
(2) commence compliance within such period and diligently achieve compliance thereafter;
or
(3) demonstrate that the allegations of noncompliance are incorrect;
shall be considered a material breach of the Franchise, and Grantor may exercise any
remedy within the scope of this Ordinance and the Franchise Agreement considered
appropriate under the circumstances.
14.2 Special Review
When there have been extensive complaints made or where there exists other demonstrative evidence
which, in the reasonable judgment of the Grantor, casts reasonable doubt on the reliability or quality of
Cable Service to the effect that the Grantee is not in compliance with the requirements of this Ordinance
or its Franchise, the Grantor shall have the right to require the Grantee to test, analyze and report on the
performance of the Cable System in order to protect the public against substandard Cable Service.
Grantor may not compel Grantee to provide such tests or reports unless and until Grantor has provided
Grantee with at least thirty (30) days prior written notice of its intention to exercise its rights under this
Section 14.2 and has provided Grantee with an opportunity to be heard prior to its exercise of such rights.
Such test or tests shall be made and the report shall be delivered to the Grantor no later than thirty (30)
days after the Grantor notifies the Grantee in writing that it is exercising such right, and shall be made at
Grantee's sole cost. Such report shall include the following information: The nature of the complaints
which precipitated the special tests, what System component was tested, the equipment used and
procedures employed in said testing, the results of such tests, and the method by which such complaints
were resolved. Any other information pertinent to the special test shall be recorded.
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SECTION 15. FRANCHISE VIOLATIONS
15.1 Remedies for Violations
If Grantee fails to perform in a timely manner any material obligation required by this Ordinance or a
Franchise granted hereunder, following reasonable written notice from the Grantor and a reasonable
opportunity to cure such nonperformance in accordance with the provisions of Section 15 of this
Ordinance and thc Franchise, Grantor may at its option and in its sole discretion:
(a) Cure the violation and recover the actual cost thereof from the security fund established in the
Franchise Agreement if such violation is not cured within thirty (30) days after written notice to the
Grantee of Grantor's intention to cure and draw upon the security fund;
(b) Assess against Grantee liquidated damages in an amount set forth in the Franchise Agreement for any
such violations(s) if such violation is not cured, or if Grantee has not commenced a cure, on a schedule
reasonably acceptable to Grantor, within thirty (30) days after written notice to the Grantee of Grantor's
intention to assess liquidated damages. Such assessment may be withdrawn from the security fund, and
shall not constitute a waiver by Grantor of any other right or remedy it may have under the Franchise or
applicable law, including without limitation, its tight to recover from Grantee such additional damages,
losses, costs and expenses, including actual attomey's fees, as may have been suffered or incurred by
Grantor by reason of or arising our of such material breach of the Franchise.
15.2 Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee specified in this Ordinance, Grantor shall
give Grantee notice and opportunity to be heard on the matter, in accordance with the following
procedures:
(a) Grantor shall first notify Grantee of the alleged violation in writing by personal delivery or registered
or certified mail, and demand correction, or evidence of non-violation, within a reasonable time, which
shall not be less than fifteen (15) business days in the case of the failure of the Grantee to pay any sum or
other amount due the Grantor under this Ordinance or the Grantee's Franchise and thirty (30) business
days in all other cases. If Grantee fails to:
(1) correct the alleged violation within the time prescribed; or
(2) commence correction of the alleged violation within the time prescribed and
diligently remedy such alleged violation thereafter; or
(3) provide evidence that there is no violation.
The Grantor shall then give, by personal delivery or registered or certified mail written notice of
not less than thirty (30) days of an administrative hearing to be held before a hearing officer designated by
the Council. Said notice shall set forth in detail each of the violations alleged to have occurred.
The hearing officer shall have suitable qualifications and experience in cable television franchise issues.
The hearing officer selected by the Council shall, if possible, be mutually acceptable to Grantor and
Grantee. If agreement cannot be reached, the heating officer shall be selected by majority vote of the
Town Council. Any hearing held shall be open to the public.
Once appointed, the hearing officer shall issu~ a notice of setting forth in detail the violations alleged to
have occurred and establish the procedures to be used in conducting the heating, which shall be informal
and shall not require the use of rules of evidence or sworn testimony.
The hearing officer shall consider all relevant evidence and thereafter render a written decision which
shall be a public record. If the Grantee has corrected the alleged violation, has diligently commenced
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correction with a guaranteed date of correction, or the hearing officer finds that no violation has occurred,
the proceedings shall terminate and no penalty shall be imposed.
If the hearing officer finds that a material violation exists and the violation remains uncorrected despite
written notice and opportunity to do so, then the hearing officer may impose one (1) or more of the
remedies provided in this ordinance and the franchise agreement.
Any decision of the hearing officer may be appealed to the Town Council. The Council shall determine,
by majority vote, whether it wishes to hear the appeal or to uphold the decision of the hearing officer
without further proceedings. If the Council elects to hear the appeal, the hearing shall be conducted in a
manner consistent with this ordinance, the franchise agreement, and other applicable law.
15.3 Grantor's Power to Revoke
(a) Grantor may revoke any Franchise granted pursuant to this Ordinance and rescind all rights and
privileges associated with it in the following circumstances, each of which shall represent a default by
Grantee and a material breach under the Franchise:
(1)
(2)
(3)
(4)
(5)
If Grantee fails to perform any of its material obligations under this Ordinance or
the Franchise Agreement and continues such failure to perform after receipt of
due notice and a reasonable oppommity to cure;
If Grantee fails to provide or maintain in full force and effect the insurance
coverage or security fund as required in the Franchise Agreement;
If Grantee violates any order or ruling of any regulatory body having jurisdiction
over the Grantee relative to the Grantee's Franchise, unless such order or ruling is
being contested by Grantee in good faith in an appropriate proceeding;
If Grantee knowingly practices any material fraud upon Grantor;
If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged
a bankrupt.
(b) After completing the procedures set forth in Section 15.2 above, the Town Council may make a
formal request before the Council that the Grantee's Franchise be revoked. The Council shall cause to be
served on the Grantee written notice of its intent to consider revoking Grantee's Franchise. Such notice
shall be served on Grantee at least thirty (30) days prior to the date of the hearing on the issue. The notice
shall contain the time and place of the hearing and shall be published at least once in a newspaper of
general circulation within the Franchise area ten (10) days prior to the heating date.
(c) The Council shall hear any Person(s) interested in the revocation and within ninety (90) days after
the date of the hearing shall make its determination, based on a preponderance of the evidence, whether
the Grantee has committed a material breach of the Franchise.
(d) If the Grantor determines that the Grantee has committed a material breach, then the Grantor
may:
(1) Declare the Franchise revoked and any security fund and bonds forfeited; or
(2) If the material breach is curable by the Grantee, direct the Grantee to take appropriate
remedial action within the time and manner and under the terms and conditions reasonably specified by
the Grantor.
The terx,dnation and forfeiture of the Grantee's Franchise shall in no way affect any right of Grantor to
pursue any remedy under the Franchise or any provision of law.
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SECTION 16. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms, conditions or obligations required by this
Ordinance or a Franchise granted hereunder is prevented by a cause or event not within Grantee's control,
such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a
result thereof; provided, however, that such inability to perform shall not relieve a Grantee from the
obligations imposed by Section 8.3.(c). pertaining to refunds and credits for interruptions in service. For
the purpose of this Section, causes or events not within the control of Grantee shall include without
limitation acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, undue restrictions
or delays imposed by utility pole owners, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires,
but shall not include financial inability of the Grantee to perform or failure of the Grantee to obtain any
necessary permits or licenses from other governmental agencies or the right to use the facilities of any
public utility where such failure is due solely to the acts or omissions of Grantee, or the failure of the
Grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or
repair of the Cable System where the Grantee has failed to exercise reasonable diligence to secure such
supplies, semces or equipment.
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