HomeMy Public PortalAboutOrdinance 5291
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ORDINANCE NO. 529
AN ORDINANCE OF THE CITY OF BEAUMONT,
CALIFORNIA ESTABLISHING A PROCEDURE
FOR THE GRANTING OF
FRANCHISES FOR CABLE TELEVISION SYSTEMS
The City Council of the City of Beaumont does ordain as follows:
SECTION 1- Definitions. For the purpose 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 Beaumont, a
municipal corporation of the State of California, in its present
incorporated form or in any later reorganized, consolidated, en-
larged or re -incorporated form.
(b)"Council" shall mean the governing body of the
City of Beaumont or any future board constituting the legislative
body of the City.
(c) "Chief ADministrative Officer" Shall mean the
City Manager, City Administrator, or other designation of the
City's chief executive officer, or any designee thereof.
(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 cable
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 trans-
acting and carrying on a business within the Cit as required by
other ordinances and laws of this City. f
(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 corpor-
ation granted a franchise by the Council under this ordinance, and
the lawful successor, transferee or assignee of said person, firm
or corporation.
(g) "Street" shall mean the surface, the air space
above the surface and the area below the surface of any public
street, other public right of way or public place, including
public utility easements.
(h) "Property of Grantee" shall mean all property own
installed, or used within the City by a Grantee in the conduct of
a cable television system business under the authority of a fran-
chise granted pursuant to this ordinance.
(i) "Subscriber" or "User" shall mean any person or
entity receiving for any purpose any service of the Grantee's cable
television system including, but not limited to, the conventional
cable television system service of 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 trans-
mission, pay television, and police, fire and similar public
service communication.
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(j) "Cable television system;" "CATV;" and "CTV,"
for the purpose of this ordinance, are terms describing a system
employing antennae, microwave, wires, wave -guides, coaxial cables,
or other conductors, equipment or facilities, designed, constructe
or used for the purpose of:
(1) collecting and amplifying local and distant
broadcast television or radio signals and distri-
buting and transmitting them;
(2) transmitting original cablecast programming
not received through television broadcast signals;
(3) transmitting television pictures, film and
video-tape programs, not received through
broadcast television signals, whether or not en-
coded or processed to permit reception by only
selected receivers;
(4) transmitting and receiving all other signals:
digital, voice and audio-visual; provided, however
that any of the services, permitted hereunder to
be performed by the Grantee for subscribers, as
herein defined, in the operation of a cable tele-
vision or CATV system franchised by the City and
not otherwise.
Section 2 - Franchise to install and operate.
(A) A non-exclusive franchise to install, construct,
operate, and maintain a cable television system on streets within
all or a specific portion of the City may be granted by the Coun-
cil 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 compa.nv-furnished facilities
said Grantee shall be required to comply with all of the provi-
sions hereof as a "Licensee" and in such event whenever the term
"Grantee" is used herein 'i.t shall be deemed to mean and include
"Licensee."
Section 3 - Cable television service.
(A) Basic service. The cable television system
permitted to be installed and operated hereunder shall:
(1) be operationally capable of relaying to
subscriber terminals those television and radio
broadcast signals for the carriage of which the
Grantee is now or hereafter authorized by the
Federal Communications Commission;
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(2) be constructed with the potential of two-way
signal transmission;
(3) distribute color television signals which it
receives in color;
(4) provide at least one (1) channel, without
charge, for the exclusive use of the City.
(5) provide at least one (1) channel each for
those educational and public access uses.
(a) until such time as there is demand for
each channel full time for its designated use,
public, educational, government, and leased acces
channel programming may be combined on one or
more cable channels. To the extent time is avail-
able therefore, access channels may also be used
for other broadcast and nonbroadcast services
except that at least one channel shall be main-
tained exclusively for the presentation of access
programing as required by paragraph (7) of this
section.
(b) the operator of each such system shall
in any case, maintain at least one full channel
for shared access programing: Provided, however,
That, in the case of systems in operation on June
21, 1976, if insufficient activated channel cap-
ability is available to provide one full channel
for shared access programing the system operator
shall provide whatever portions of channels are
available for such purposes. In meeting its
access obligations, every operator of a cable
television system shall make reasonable efforts
in programing the system's bandwidth to avoid
the displacement of access service.
(c) whenever any of the channels described
in paragraphs (4), (5), or (5(b)) of this section
is in use during 80 percent of the weekdays
(Monday -Friday) for 80 percent of the time
during any consecutive three-hour period for six
consecutive weeks, the system operator shall have
six months in which to make a new channel avail-
able for the same purposes: Provided, however,
That the channel expansion mandated by this para-
graph shall not exceed the activated channel
capability of the system.
(6) the operator of each such system shall make
available all other unused channels, in addition
to those which are part of the system's activated
channel capability, for the purposes specified in
paragraph (4) and (5): Provided, however, That
in making available such additional channels the
system operator shall be under no obligation to
install converters.
(B) Non -Basic services. The cable television system
permitted to be installed and operated hereunder, may also engage
in the business of:
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(1) transmitting original cablecast programing
not received through television broadcast signals;
(2) transmitting television pictures, film and
video-tape programs, not received through broad-
cast television signals, whether or not encoded or
processed to permit reception by only selected
receivers or subscribers;
(3) transmitting and receiving all other signals:
digital, voice and audio-visual.
(C) Subscriber complaints. In addition to other servi
regulations adopted by the Coucnil, and excepting circumstances
beyond Grantee's control, such as Acts of God, riots and civil
disturbances, and in providing the foregoing services, the Grantee
shall:
(1) limit system failures to minimum time duration
by locating and correcting malfunctioning promptly
but in no event longer than twenty-four (24) hours
after occurrence, irrespective of holidays or
other non -business hours.
(2) upon complaint by a subscriber, make a demon-
stration satisfactory to the chief administrative
officer that a signal is being delivered which is
of sufficient strength and quality to meet the
standards set forth in the regulations of the
Federal Communications Commission;
(3) render efficient service, making repairs
promptly and interrupting service only for good
cause and for the shortest time possible. Planne
interruptions, insofar as possible, shall be pre-
ceded by notice given to subscribers twenty-four
(24) hours in advance and shall occur during
periods of minimum use of the system.
(4) maintain an office in the city, which office
shall be open during all the usual... business
hours, with its telephone listed in directories
of the telephone company serving the city, and be
so operated that complaints and requests for
repairs or adjustment may be received at any time,
day or night, seven days a week, or provide a
local telephone directory listing and "toll free"
telephone service maintained on a seven-day,
twenty-four (24) hour basis for the receipt of
consumer complaints;
(5) maintain a written record, or "log," listing
date of customer complaints, identifying the sub-
scriber and describing the nature of the complaint
and when and what action was taken by Grantee in
response thereto; said record shall be kept at
Grantee's local office, for a period of five (5)
years from the date of complaint, and shall be
available for inspection during regular business
hours without further notice or demand, by the
chief administrative officer..
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(D) Municipal service.
(1) With respect to the local government channel,
the Grantee shall provide, at the request of the
Chief Administrative officer, and upon City reim-
bursement of Grantee's actual cost, use of
Grantee's studio, equipment and technical service
for production of live and video-tape municipal
programs, subject to scheduling requirements of
the Grantee;
(2) With respect to the basic television services
the Grantee shall provide all subscriber services,
and a tie-in connection, without cost, when the
system possesses such facilities and as designated
by the Council, subject to the requirements of
federal law to:
(i) public schools and community colleges
with the City, and
(ii) buildings owned and controlled by the
City, used for public purposes and not for resi-
dential use (fire and police stations excepted.)
(E) Compatibility and connectibility.
(1) it is the desire of the City that all cable
television systems franchised hereunder shall,
insofar as financially and technically possible,
be compatible one with another and with systems
adjacent to the City.
(2) wherever it is financially and technically
feasible, the Grantee shall so construct, operate
and modify the system so as to tie the same into
all other systems within and adjacent to the City,
(F) Uses permitted. Any franchise granted pursuant
to the provisions of this ordinance shall authorize and permit the
Grantee to engage in the business of operating and providing a
cable television system in the City, and for that purpose to erect
install, construct, repair, replace, reconstruct, maintain and re-
tain in, on, over, under, upon, across and along any street, such
poles, wires, cable, conductors, ducts, conduit, vaults, manholes,
amplifiers, and appliances, attachments, and other property as may
be necessary and appurtenant to the cable television system; and,
in addition, so to use, operate, and provide similar facilities or
properties rented or leased from other persons, firms or corpora-
tions, including but not limited to any public utility or other
Grantee franchised or permitted to do business in the City.
Section 4 - Franchise Payments.
(A) In consideration of the granting and exercise of
a franchise to use the streets, as herein defined,
for the operation of a cable television system, any
Grantee shall pay to the City, during the life of the
franchise three (3) percent of the franchisee's
gross revenues per year from all cable services in
the community except that, to the extent that the
Federal Communications Commission, in its Rules and
Regulations, at some time in the future allows a
City to raise the franchise fee to five (5) percent
absent the showings currently required by Section
76.31 of the Rules and Regulations of the Federal
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Communications Commission, the City reserves the
right to increase the franchise fee to a level of 5%.
(B) The percentage payments shall be made in the
manner, and at times directed in said franchise or
in a Council resolution fixing franchise fees and
adopting rules for service and rate regulation.
(C) No acceptance of any payment shall be construed
as a release or as an accord and satisfaction of any
claim the City may have for further or additional
sums payable under this ordinance or for the perfor-
mance of any other obligation hereunder.
Section
- Franchise term: duration and termination.
(A) The franchise granted by the Council under this
ordinance shall be for a term of fifteen (15) years from the date
of its acceptance by the Grantee. During the fourteenth year of
the franchise, the Grantee may apply to the Council for a renewal
of the franchise. Permission to renew for additional terms of
fifteen (15 ) years shall not be unreasonably withheld if the
Grantee has substantially complied with the terms and conditions
of the existing franchise.
(B) 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 regulation of the Council or
chief administrative officer validly adopted pursuant to this
ordinance.
(C) The Chief administrative officer may make
written demand that the Grantee do or c_omply_, with any such requir
ment, 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 chief
administrative officer may place his request for termination of
the franchise upon the next regular Council meeting agenda. The
chief adminstra.tive officer shall cause to be served upon such
Grantee, at least ten (10 ) days prior to the date of such Council
Meeting, a written notice of his intent to request such terrninatior
and the time and place of the meeting, notice of which shall be
published by the City Clerk at least once ten (10) days before
such meeting in a newspaper of general circulation within the City.
(D) The Council shall consider the request of the
chief administrative officer 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.
(E) 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 con-
ditions as are reasonable.
(F) If the Council shall determine such failure,
refusal or neglect by the Grantee was without just cause, then
the Council may, be resolution, declare that the franchise of such
Grantee shall be terminated and forfeited unless there be compli-
ance by the Grantee within such period as the Council may fix.
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(G) The termination and forfeiture of any franchise
shall in no way effect any of the rights of the City under the
franchise or any provision of law.
(H) In the event of any holding over after expiration
of any franchise granted hereunder, without the prior consent of
the City, expressed by resolution, the Grantee shall pay to the Cit
reasonable compensation and damages, of not less than one hundred
(100%) percent of its gross revenue during said period.
Section 6 - Applications for franchise.
(A) Each application for a franchise to construct,
operate, or maintain any cable television systems in this City shal
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 appli-
cant, including but not limited to, the followin
and to whatever extent required by the City:
(i) the names, residence and business
addresses of all officers, directors, and assoc-
iates of the applicant.
(ii) the names, residence and business
addresses of all officers, persons and entities
having, controlling, or being entitled to have
or control 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 paren
or subsidiary of the applicant, namely, any othe
business entity owning or controlling applicant
in whole or in part by the applicant, and a stat
ment describing the nature of any such parent
or subsidiary business entity, including but not
limited to cable television systems owned or con
trolled by the applicant, its parent and subsi-
diaryand the area served thereby.
(iv) a detailed description of all pre-
vious 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 certi-
fied public accountant, for the fiscal year next
preceding the date of the application hereunder,
or a letter or other acceptable evidence in
writing from a recognized lending institution or
funding source, addressed to both the applicant
and the Council, setting forth the basis for a
study performed by such lending institution or
funding source, and a clear statement of its in-
tent 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
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a certified public accountant, certifying that
the applicant has available sufficient free, net
and uncommitted cash resources to construct and
operate the proposed system in this City.
(vi) a statement identifying, by place
and date, any other cable television franchise(s)
awarded to the applicant, its parent or subsidi-
ary; the status of said franchise(s) with
respect to completion thereof; the total cost
of completion of such sYtem(s); and the amount of
applicant's and its parent's or subsidiary's
resources committed to the completion thereof.
(B) A detailed description of the proposed plan of
operation of the applicant which shall include, but not be limited
to the following:
(1) a detailed map indicating all areas pro-
posed 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.
(2) a statement or schedule setting forth all
propsoed classifications of rates and charges to
be made against subscribers and all rates and
charges as to each of said classifications, in-
cluding installation charges and service charges.
(3) a detailed, informative, and referenced
statement describing the actual equipment and
operational standards proposed by the applicant
and that such standards of operations are in
compliance with those contained in Title 47,
Subpart K (Section 76.601 et seq.), of the Rules
and Regulations of the Federal Communications
Commission.
(4) a copy of the form of any agreement, under-
taking , or other instrucment proposed to be
entered into between the applicant and any .
subscriber.
(5) a detailed statement setting forth in its
entirety any and all agreements and undertakings
whether formal or informal, written, oral, or
implied, existing or proposed to exist between
the applicant and any person, firm, or corpor-
ation which materially relate or pertain to or
depend upon the application and the granting of
the franchise.
(C) 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 Commissio
providing for the use of any facilities of the public utility,
including but not limited to poles, lines, or conduits.
(D) 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.
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(E) An application fee in the sum of $2,000
(two thousand dollars), which shall be in the form of cash, certi-
fied or cashier's check, or money order, to pay the costs of
studying, investigating, and otherwise processing such application,
and which shall be in consideration therof and not returnable or
refundable in whole or in part, except to the extent that such fee
exceeds the actual costs incurred by the City in studying, investi-
gating and otherwise processing, the application; provided, that
any applicant who shall deliver to the City Clerk a written with-
drawal of or cancellation of any application hereunder, not later
than the seventh (7th) day next following the day such application_
is received by the City Clerk, shall be entitled to have returned
and refunded the sum of $1,500 (one thousand five hundred dollars),'
less any actual costs or expenses incurred by the City by reason o
such application_.
(F) 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 afte
which the same shall be received by the City, or the date before
which the same must be received, or the date after which the same
shall not be received, and may make any other determinations and
specify any other times, terms, conditions, or limitations respect -1
ing the soliciting, calling for, making and receiving of such
applications.
The Grantee shall pay to the City a sum of money sufficient to re-
imburse it for all publication expenses incurred by it in connect-
ion with the granting of a franchise pursuant to the provisions
of this ordinance. Such payment shall be made within thirty (30)
days after the City furnishes the Grantee with a written statement
of such expense.
(G) Upon receipt of any application for franchise,
the Council shall refer the same to the chief administrative
officer who shall prepare a report and make his recommendations
respecting such application, and cause the same to be completed
and filed with the Council within sixty (60) days.
(H) 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, and financial responsi-
bility of any applicant, and its management and owners, technical
and performance quality of equipment, willingness and ability to
meet construction and physical requirements, and to abide by
policy conditions, franchise limitations and requirements, and any
other considerations deemed pertinenet by the Council for safe-
guarding the interests of the City and the public. The Council,
in its discretion, shall determine the award of anv franchise on
the, basis of such considerations and without competitive bidding.
If the Council shall determine to reject such application, such
determination shall be final and conclusive, and the same shall be
deemed rejected.
(I) If the Council shall determine to further consider
the application, the following shall be done:
(1) the Council shall decide and specify the
terms and conditions of any franchise to be granted hereunder and
as herein provided;
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(2) the Council shall pass its resolution of
intention to consider the granting of such a
franchise, giving notice of receipt of the
application, and describing the character of
the franchise desired, stating the name of the
proposed Grantee, the character of the franchise,
the terms and conditions upon which such fran-
chise is proposed to be granted, that copies of
the proposed franchise may be obtained at the
Office of the City Clerk, fixing and setting
forth a day, hour, and place certain when and
where any persons having any interest therein or
objection to the granting thereof may file
written protests and appear before the Council
and be heard, and directing the City Clerk to
publish said resolution at least once within
ten (10) days of the passage thereof in a news-
paper in general circulation within the City.
(J) At the time set for the hearing, or at any ad-
journment thereof, the Council shall proceed to hear all written
protests. Thereafter, the Council shall make one of the following
determinations:
(1) that such franchise be denied; or
(2) that such franchise be granted upon the
terms and conditions as specified in the resolu-
tion of intention to grant the same; or
(3) that such franchise be granted, but upon
the terms and conditions different from those
specified in the resolution of intention to grant
the same.
(K) If the Council shall determine that a franchise
be denied such determination shall be expressed by resolution and
shall be final and conclusive.
If the Council shall determine that a franchise be granted upon
the terms and conditions as specified in the resolution of intent-
ion to consider granting the same, such determination shall be
expressed by ordinance granting a franchise to the applicant.
If the Council shall determine upon granting a franchise upon
terms and conditions different from those specified in the resol-
ution of intention to consider granting the same, then such deter-
mination shall be expressed by resolution adopted prior to grantin
a franchise by ordinance.
Section 7 - Deposits; bonds, indemnifications;
insurance.
(A) Performance deposit to City.
The Grantee, shall concurrently with the filling of an acceptance
of award of the franchise granted under this chapter, deposit in a
financial institution selected by the City the sum of $50,000
(fifty thousand dollars) in a joint account with the grantee and
the City as cosignators. This sum shall be maintained in an
interest-bearing joint -account during the period of construction
of the cable television system within_ the city limits, but in no
event in excess of two (2) years. The return of the sum plus
interest to the grantee shall be conditioned upon the faithful
performance of the grantee, and upon the further condition that in
the event grantee shall fail to comply with any one or more of the
provisions of this Chapter or of the franchise issued to the
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grantee hereunder, there shall be recoverable from this sum any
damages or loss suffered by the city as a result thereof, includ-
ing the full amount of any compensation, indemnification, or cost
of removal or abandonment of any property of the grantee as
prescribed herein which may be in default, plus a reasonable
allowance for the attorney's fees and cost up to the full amount
of the account.
(B) Performance Bond for Subsribers. Upon being
granted a franchise, and upon filing of the acceptance required
under Section 8 hereof, the Grantee shall file, annually, with the
City Clerk and shall thereafter during the entire term of such
franchise maintain in full force and effect a corporate surety
bond, or other adeauate surety agreement, in the amount as shall
have been approved by the Council. The bond or agreement shall
be so conditioned that in the event such Grantee shall fail to
comply with any one or more of the provisions of any agreement or
undertaking made between Grantee and any subscriber, then there
shall be recoverable jointly and severally from the principal and
surety any damages or costs suffered or incurred by any subscriber
as a result thereof, including reasonable attorneys' fees and cost
of any action or proceeding. Said condition shall be a continuing
obligation_ during the entire term of such franchise and thereafte
until Grantee shall have satisfied in full any and all obligations
to any subscriber which arise out of or pertain to any such agree-
ment or undertaking.
(C) Hold Harmless Agreement. Grantee shall
indemnify and hold harmless the City, its officers, boards, comm-
issions, agents, and employees, against and from any and all claims.
demands, causes of actions, actions, suits, proceedings, damages
(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, author-
ized distributors or licensesse of programs to be delivered by
Grantee's cable television system), costs or liabilities (includ-
ing costs or liabilities of the City with respect to its employees)
of every kind and nature whatsoever, including but not limited to
damages for injury or death or damage to person or property, and
regardless of the merit of any of the same, and against all lia-
bility to others, and against any loss, cost,and expense resulting
or arising out of any of the same, including any attorney fees,
accountant fees, expert witness or consultant fees, court costs,
per diem expense, traveling and transportation expense, or other
costs or expenses arising out of or pertaining to the exercise or
the enjoyment of any franchise hereunder by Grantee, or the grant-
ing thereof by the City.
(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, and arising out of or pertaining to the
exercise or the enjoyment of such franchise or the granting
thereof by the City.
Grantee shall pay and satisfy and shall cause to be paid and sat-
isfied any judgment, 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
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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 Cityshallmake or enter into
any conpromise or settlement of any claim, demand, cause of
action, action, suit, or other proceeding, without first obtain-
ing the written consent of the other.
(E) Insurance Required. Upong being granted a
franchise, and upon the filing of the acceptance required under
Section 8 hereof, the Grantee shall file with the City Clerk and
shall thereafter during the entire term of such franchise main-
tain in full force and effect at its own cost and expense each of
the following policies of insurance:
(1) General Comprehensive Liability Insurance
in the amount of $1,000,000 (one million dollars)
together with Bodily Injury Liability Insurance
in an amount not less than $1,000,.000, (one
million dollars) for injuries including acciden-
tal death, to any one person, and subject to the
same limit for each person in an amount not less
than $1,000,000. on account of any one occurence,
and Property Damage Liability Insurance in an
amount not less than $50,000. (fifty thousand)
resulting from any one occurrence; provided,
however, as follows:
(i) the City shall be named as an
additional insured in any of said insurance
policies; and
(ii) where such insurance is provided by
a policy which also covers Grantee or any other
entity or person, it shall contain the standard
cross -liability endorsement.
Section 8 - Acceptance of the Franchise.
(A) No franchise granted under this ordinance shall
become effective for any purpose unless and until written accept-
ance thereof shall have been filed with the City Clerk. Written
acceptance, which shall be in the form and substance approved by
the City Attorney, shall also be and operate as an acceptance of
each and every term and condition and limitation contained in this
ordinance, or in such franchise, or otherwise specified as herein
provided.
(B) The written acceptance shall be filed by the
Grantee not later than 12:01 o'clock P.M. of the fortieth (40th)
day next following the effective date of the ordinance granting
such franchise.
(C) In default of the filing of such written accep-
tance as herein required, the Grantee shall be deemed to have re-
jected and repudiated the franchise. Thereafter, the acceptance
of the Grantee shall not be received nor filed by the City Clerk.
The Grantee shall have no rights, remedies, or redress in the
premises, unless and until the Council, by resolution, shall deter-
mine that such acceptance be received nor filed, and then upon such
terms and conditions as the Council may impose.
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(E) Time shall be of the essence of any such fran-
chise granted hereunder. The Grantee shall be relieved of his
obligation to comply promptly with any of the provisions of this
ordinance by any failure of the City to enforce prompt compliance.
(F) Any right or power in, or duty impressed upon,
any officer, employee, department, or board of the City shall be
subject to transfer by the City to any other officer, employee,
department,or board of the City.
(G) The Grantee shall have no recourse whatsoever
against the City for any loss, cost, expense, or damage arising
out of any provision or requirement of this ordinance or of any
franchise issued hereunder or because of its enforcement.
(H) The Grantee shall be subject to all requirements
of City laws, rules, regulations, and specifications heretofore
or hereafter enacted or established.
(I) Any such franchise granted shall not relieve
the Grantee of any obligations involved in obtaining pole or
conduit space from any department of the City, utlity company, or
from others maintaining utilities in streets.
(J) Any franchise granted hereunder, shall be in
lieu of any and all other rights, privileges, powers, immunities,
and authorities owned, possessed, controlled, or exercisable by
the 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, oper-
ation 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 10 - Rights reserved to the City. The City
reserves the power to adopt and enforce requirements and regula-
tions on any or all of the following matters, if and when deemed
necessary and proper in the public interest in the discretion of
the City Council and is consistent with Rules and Regulations of
the Federal Communications Commission:
(A) Procedures for the periodic fixing of reasonable
rates and service charges to be charged to subscribers by the
Grantee, and provisions for the enforcement thereof.
(B) Operational standards pertaining to the quality
of audio-visual reception by subscribers.
(C) Channel capacity requirements.
(D) Requirements for carriage of specified televisior
signals, radio signals, and supplementary signal carriage services.
(E) Requirements for the provision of equipment and
channnels for local production and presentation of cablecast pro-
grams, and regulations pertaining thereto.
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(F) Requirements and regulations pertaining to
minimum service requirements and fair business practices by the
Grantee.
(G) Public safety requirements pertaining to the
installation and use of all CATV equipment.
(H) Procedures for the investigation and resolution
of all complaints by subscribers regarding Grantee's CATV opera-
tions, including implementation thereof by designated City officers
employees, or agents.
(I) There is hereby reserved to the City every right
and power which is required to be herein reserved or provided by
any law and the Grantee, by its acceptance of the franchise, agrees
to be bound thereby and to comply with any action or requirements
of the City in its exercise of such rights or power, heretofore
or hereafter enacted or established.
(J) Nothing herein shall be deemed or construed to
impair or affect, in any way, to any extent, the right of the
City to acquire the property of the Grantee, either by purchase or
through the exercise of the right or eminent domain, at a fair and
just value, which shall not include any amount for the franchise
itself or for any of the rights or privileges granted, and nothing
herein contained shall be construed to contract away or to modify
or abridge, whether for a term or in perpetuity, the City's right
of eminent domain.
(K) Neither the granting of any franchise nor any
provision hereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
(L) The Council may do all things which are necessary
and convenient in the exercise of its jurisdiction under this ordi-
nance and may determine any question of fact which may arise
during the existence of any franchise granted hereunder. The
chief administrative officer, with the approval of the City
Attorney, is hereby authorized and empowered to adjust, settle,
or compromise any controversy or charge arising from the operations
of any Grantee under this ordinance, either on behalf of the City,
the Grantee, or any subscriber, in the best interest of the public.
Either the Grantee or any member of the public who may be dis-
satisfied with the decision of the chief administrative officer
may appeal the matter to the Council for hearing and determination.
The Council may accept, reject or modify the decision of the
chief administrative officer, and the Council may adjust, settle,
or compromise any controversy or cancel any charge arising from
the operations of the Grantee or from any provision of this ordi-
nance.
Section 11 - Council to adopt rules and regulations.
(A) Standards of Operation
(1) Prior to receiving any applications for
franchises, the Council may adopt rules, regula-
tions and standards governing the operation of
cable television systems in the City. Such rules
regulations and standards shall apply to and
shall govern the operations of the Grantee of
any franchise hereunder, and are expressly
declared a part of any franchise hereunder.
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(2) Rules, regulations and standards not
adopted prior to receiving any application for
a franchise shall be adopted by the Council at
the first meeting of the Council next following
the effective date of this ordinance, by resolu-
tion which shall become effective upon adoption
and shall be applicable to any application for
a franchise previously received.
(3) The standards adopted pursuant to these
procedures shall be exclusively in those area
not either expressly or impliedly preempted by
the Federal Communications Commission at the tim
adoption.
(4) Provided the same do not materially alter
the content of the franchise without consent of
the Grantee, the Council may at any time adopt
new rules or regulations or standards, or may
amend, modify, delete, or otherwise change its
respective rules or regulations or standards pre-
viously adopted, in the following manner: The
Council shall pass its resolution of intention
stating or describing the rules or regulations
or standards to be adopted, amended, modified,
deleted, or otherwise changed, and fixing and
setting forth a day, hour, and place certain
when and where any persons having any interest
therein or objection thereto may appear before
the Council and be heard. Such resolution shall
direct the City Clerk to publish the same at
least once within ten (10) days of the passage
thereof in a newspaper of general circulation
within the City, and to mail a copy of the same
to any Grantee or applicant for a franchise, not
more than thirty (30) days nor less than fifteen
(15) days prior to the time fixed for hearing
thereon.
At the time set for such hearing, or at any
adjournment thereof, the Council shall proceed
to hear and pass upon such comments as may be
presented. Thereafter the Council, by its reso-
lution, may adopt, amend, modify, delete, or
otherwise change its respective rules, regulation
and standards. Such determination by the Council
shall be final and conclusive.
Any rule or regulation or standard as adopted,
amended, modified, deleted, or otherwise changed
by the Council shall become effective upon the
tenth (10th) day following the adoption of such
resolution, unless a longer period shall be
otherwise provided in such resolution.
(B) Rates. Unless and until the City Council adopts
an ordinance establishing procedures for the periodic fixing of
reasonable rates pursuant to Section.10, the following limitations
shall apply to the rates chargea to subscribers by Grantee:
(1) No increase in rates beyond those represent-
ed to a subscriber at the time of initiation of
service to such subscriber shall be applied to
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such subscriber for a period of not less than one
year thereafter, except for such additional in-
stallations or services as may be requested by
such subscriber durina such period.
(2) NO increase in rates shall be imposed upon
subscribers except after thirty days prior
notice to subscribers.
(3) No charge shall be imposed upon any sub-
scriber for termination of CATV service or re-
moval of CATV apparatus upon termination of
such service. No rate or charge of any type
shall be imposed on a subscriber after receipt
of notice of termination from such subscriber,
unless such subscriber withdraws such notice
prior to actual termination of service.
(4) No charge shall be made to any subscriber
by reason of the maintenance, repair, removal,
or replacement of any CATV apparatus, or property
of Grantee, unless the same was caused by the
deliberate or negligent act of said subscriber.
(5) Except as otherwise provided by paragraph
(1) hereinabove, Grantee shall not charge
different rates to subscribers within the same
class of service, nor shall there be any differ-
ence in the services or facilities or in any
other respect between subscribers within the
same class, except that installation charges may
vary according to the costs of installation. No
Grantee shall make or grant any preference to
any corporation or person as to rates, charges,
services, facilities, or rebates, or in any
other respect, nor subject any corporation or
person to any prejudice or disadvantage.
Section 12 - Permits and construction.
(A) Within thirty (30) days after acceptance of
any franchise, the Grantee shall proceed with due diligence to
obtain all necessary permits and authorizations which are required
in the conduct of its business including, but not limited to,
any utility joint use attachment agreements, microwave carrier
licenses and any other permits, licenses and authorizations to be
granted by duly constiutued regulatory agencies having juridic -
tion over the operation of the cable television systems, or
associated micro -wave transmission facilities.
In connection therewith, copies of all petitions, applications and
communications submitted by the Grantee to the Federal Communica-
tions Commission, Securities and Exchange Commission, or any other
federal or state regulatory commission or agency having jurisdic-
tion in respect to any matters affecting Grantee's cable televi-
sion operations, shall also be submitted simultaneously to the
chief administrative officer.
(B) Within ninety (90) days after obtaining all
necessary permits, licenses and authorizations, including richt
of access to poles and conduits, Grantee shall commence construc-
tion and installation of the cable television system.
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(C) Within one hundred eighty (180) days after
the commencment of construction and installation of the system,
Grantee shall proceed to render service to subscribers, and the
completion of the installation and construction shall be pursued
with reasonable diligence thereafter, so that service to all of th
areas designated and scheduled on the map and plan of construction
made part of the franchise shall be provided as set forth therein.
(D) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and shall not construct
or install any new, different, or additional poles, conduits, or
other facilities whether on public property or on privately -owned
property unless and until first securing the written approval
of the chief administrative officer.
Whenever Grantee shall not utilize existing poles, conduits and
other facilities, or whenever existing conduits and other facili-
ties shall be located beneath the surface of the streets, or when-
ever the City shall undertake a program designed to cause all
conduits and other fatilit.ies to be located beneath the surface of
the streets in any area or throughout the City, in the exercise of
its police power or pursuant to the terms hereof, upon reasonable
notice to Grantee, any such conduits or other facilities of
Grantee shall be constructed, installed, placed, or replaced be-
neath the surface of the streets. Any construction, installation,
placement, replacement, or changes which may be so required shall
be made at the expense of Grantee, whose costs shall be determined
as in the case of public utilities.
(E) 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 poles, conduits, or
other similar facilities erected, controlled, or maintained ex-
clusively by or for Grantee in any street, provided such use by
City does not interfere with the use by Grantee.
(F) In_ those areas of the City where the transmission
or distribution facilities of the respective public utilities
providing telephone, communication and electric services are under-
ground or hereafter are placed underground, the Grantee likewise
shall construct, operate and maintain all of his transmission and
distribution facilities underground. The term "underground" shall
include a partial underground system; provided, that upon obtain-
ing the written approval of the chief administrative officer,
amplifiers in the Grantee's transmission and distribution lines may
be placed in appropriate housings upon the surface of the around.
(G) The Grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of Grantee
when, in the opinion of the chief administrative officer the same
is required by reason of traffic conditions, public safety, street
vacation, freeway or street construction, change or establishment
of street grade, installation of sewers, drains, waterpipes,
power line, signal line, transportation facilities, tracks, or any
other types of structure or improvements or governmental agencies
whether acting in a governmental or a proprietary capacity, or any
other structure or public improvement, including but not limited to
ovement of buildings, urban renewal and redevelopment, and any
general program under which the City shall undertake to cause all
such properties to be located beneath the surface of the ground.
he Grantee shall in all cases have the privilege, subject to the
orresponding obligations, to abandon any property of Grantee in
lace, as herein provided. Nothina hereunder shall be deemed a
aking of the property of Grantee, and Grantee shall be entitled to
o surcharge by reason of anything hereunder.
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(H) 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 presecribed therefore, or upon notice given, where no time
is prescribed, the chief administrative officer may cause such
work or other act to be completed in whole or in part, and upon
so doing shall submit to Grantee an itemized statement of the
costs thereof. The Grantee shall, within thirty (30) days after
receipt of such statement, pay to the City the entire amount
thereof.
(1) In the event that,
(1) the use of any part of the system of
Grantee is discontinued for any reason for a
continuous period of thirty (30) days, without
prior written notice to and approval by the City;
or
(2) any part of such system has been installed
in any street or other area without complying
with the requirements hereof; or
(3) any franchise shall be terminated, cancell-
ed, or shall expire, then the Grantee shall, at
the option of the City, and at the expense of
Grantee and at no expense to the City, and upon
demand of the City, promptly remove from any
streets or other area all property of Grantee,
and Grantee shall promptly restore the street
or other area from which such property has been
removed to such condition as the chief administrar
tive officer shall approve.
The Council may, upon written application there-
for by Grantee, approve the abandonment of any
such property in place by Grantee and under such
terms and conditions as the Council may prescribe.
Upon abandonment of any such property in place,
Grantee shall cause to be executed, acknowledged,
and delivered to the City such instruments as
the City Attorney shall prescribe and approve,
transferring and conveying the ownership of such
property to the City.
Section 13 - Technical Standards.
(A) The performance of Grantee's cable television
system shall meet the technical standards as set forth in Section
76.605 or any successor section of the Federal Communication
Commissions and Rules, as those standards may exist from time to
time
(B) Grantee shall conduct Performance tests in accord
ance with the requirements of Section 76.601 or any successor
section of the Federal Communication Commission's Rules, as these
requirements may apply or be extended from time to time.
Section 14 - Miscellaneous Provisions
(A) A franchise granted to provide service within the
City shall authorize and permit the Grantee to solicit, sell,
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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 franhcise, easement, license or other permit
granted to anyone other than the Grantee to traverse any portion
of the City in order to provide service outside the City shall
not authorize nor permit said person to solicit, sell, distribute,
or make any charge to subscribers within the City nor to render
any service or connect any subscriber within the City to the
cable television service system of Grantee,
(C) No franchise granted under this ordinance shall
ever be given any value by any Court or other authority, public
or private, in any proceeding of any nature or character, wherein
or whereby the City shall be a party or affected therein or
thereby.
(D) Grantee shall be subject to all provisions of
the other ordinances, rules, regulations, and specifications of
the City heretofore or hereafter adopted, including but not limit-
ed 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 sub-
ordinate to any prior lawful occupancy of the streets or other
Public property.
Grantee also shall be subject to the provisions of general laws
of the State of California, or as hereafter amended, when applic-
able to the exercise of any privilege contained in any franchise
granted under this ordinance, including but not limited to those
pertaining to works and activities in and about State Highways.
(E) Grantee shall be prohibited from directly or
indirectly doing any of the following:
(1) engaging in the business of selling at
retail, leasing, renting, repairing or servicing
of television sets or radios;
(2) imposing a fee or charge for any service
or repair to subscriber -owned receiving devices
except for the connection of its service or for
the determination by Grantee of the quality of
its signal to the recipients thereof.
(3) soliciting, referring, or causing or per-
mitting the solicitation or referral of any
subscriber to persons engaged in any business
herein prohibited to be engaged in by Grantee.
(4) providing information concerning the view-
ing patterns of identifiable individual subscrib-
ers to any person, group or organization for any
purpose.
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(F) If the Federal Communication Commission or the
Public Utilities Commission of the State of California or any
other Federal or State body or agency shall now or hereafter
exercise any paramount jurisdiction over the subject matter of
any franchise granted under this ordinance, then to the extent
such jurisdiction shall preempt or preclude the exercise of like
jursidiction by the City the jurisdiction of the City shall cease
and no longer exist.
(G) When not otherwise prescribed herein, all
matters herein required to be filed with the City shall be filed
with the City Clerk.
(H) No person, firm or corporation within the
service area of the Grantee, and where trunk lines are in place,
shall be refused service; provided, however, that the Grantee
shall not be required to provide service to any subscriber who
does not pay the applicable connection fee or service charge.
(I) Before providing cable television service to any
subscriber, the Grantee shall provide a written notice to the
subscriber substantially as follows:
"Subscriber is hereby notified that in providing
cable television service the Grantee is making use
of public rights-of-way within the City of Beaumont
and that the continued use of such rights-of-way is i.
no way guaranteed. In the event the continued use of
such rights-of-way is denied to Grantee for any
reason, Grantee will make every reasonable effort to
provide service over alternate routes. By accepting
cable television so,-T=cie, subscriber agrees he will
make no claim nor undertake any action against the
City of Beaumont, its officers, or its employees if ff
the service to be provided hereunder is interrupted or
discontinued."
(J) The form of the Grantee's contract with the sub-
scriber shall also be subject t approval of the City.
Section 15- Equal opportunity employment and affirma-
tive action plan. In the carrying out of construction, mainten-
ance and operation of the cable television system, the Grantee
shall not discriminate against any employee or applicant for
employment because of race, creed, color, sex or national origin.
The Grantee shall take affirmative action to ensure that appli-
cants are employed, and that employees are treated during employ-
ment, without regard to their race, creed, color sex, or national
origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruit-
ment or recruitment advertising, layoff or termination, rates of
nay or other forms of compensation, and selection of training,
including apprenticeship.
The Grantee shall post in conspicuous places, available to employ-
ees and applicants for employment, notices setting forth the
provisions of this non-discrimination clause.
The Grantee shall, in all solicitations, or advertisements for
employees placed by or on behalf of the Grantee, state that all
qualified applicants shall receive consideration for employment
without regard to race, creed, color, sex, or national origin.
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The Grantee shall incorporate the foregoing requirements 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 for such work to incorporate such
requirements in all subcontracts for such work.
Section 16 - Violations.
(A) From and after the effective date of this ordi-
nance, 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 ielineated 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 signal
through a cable television s_ -stem, unless a franchise authorizing
such use of such street or property or area has first been obtain-
ed pursuant to the provisions of this ordinance, and unless such
franchise is in full force and effect.
(B) It shall be unlawful for any person, firm or
corporation to make or use any unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise,
with any part of a franchised cable television system within this
City for the purpose of enabling himself or others to receive
or use any television signal, radio signal, picture, program or
sound, without payment to the owner of said system.
(C) It shall be unlawful for any person, without the
consent of the owner, to wilfully tamper with, remove or injure
any cables, wires, or equipment used for distribution of television
signals, radio signals, pictures, programs or sound.
Section 17 - Severability. If any section, sub-
section sentence, clause or phrase of this ordinance is for any
reason held illegal, invalid or unconstitutional by the decision
of any court of competent jursidiction, 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, sub -section, sentence, clause, and phrase hereof, irresp-
ective of the fact that any one or more sections, sub -sections,
sentences, clauses, or phrases be declared illegal, invalid or
unconstitutional. The invalidity of any portion of this ordinance
shall not abate, reduce or otherwise affect any consideration or
other obligation required of the Grantee of any franchise granted
hereunder.
Section 18 - Repealing Ordinance 402.
Ordinance 402, and all other ordinances or parts of ordinances in
conflict herewith are hereby repealed.
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Section 19 - Effective Date.
This ordinance shall become effective thirty (30) days from and
after its passage.
MOVED, PASSED AND ADOPTED this 27th day of October , 1981
by the following vote:
AYES: Councilmen May, Shaw, Hammel, Lowry and Mayor Thompson
NOES: None.
ABSENT: None.
ABSTAIN: None.
/ MAYOR OF THE CITY OF BEAUMONT
ATTEST:
CITY CLERK
CERTIFICATION
The foregoing is certified to be a true copy of Ordinance 529
duly adopted by the said City Council of the City of Beaumont
on the date herein set forth. LL
CITY CLERK, CITY OF BEAUMONe