Chapter 5.40
CABLE COMMUNICATION REGULATORY ORDINANCE
Sections:
5.40.010 Intent.
5.40.020 Short title.
5.40.030 Definitions.
5.40.040 Grant of franchise.
5.40.050 Regulation of franchise.
5.40.060 General financial and insurance provisions.
5.40.070 Design and construction provisions.
5.40.080 Service provisions.
5.40.090 Consumer protection.
5.40.100 Operation and maintenance.
5.40.110 Rights reserved to the grantor.
5.40.120 Rights reserved to the grantee.
5.40.130 Franchise violations.
5.40.140 Reports.
5.40.150 Miscellaneous provisions.
5.40.010 Intent.
The city finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of Benicia. Because of the complex and rapidly changing technology associated with cable television, the city further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the city or such persons as the city shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof. (Ord. 91-6 N.S. § 2, 1991).
5.40.020 Short title.
This chapter shall be known and may be cited as the "city of Benicia cable communications regulatory ordinance." (Ord. 91-6 N.S. § 2, 1991).
5.40.030 Definitions.
For the purpose of this chapter 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.
1. "Basic cable service" means any service tier which includes the retransmission of local television broadcast signals.
2. "Cable communications system" or "system," also referred to as "cable television system," "cable system," "CATV system," or "community antenna TV 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 the television signals of one or more television broadcast stations;
b. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public right-of-way;
c. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
d. Any facilities of any electric utility used solely for operating its electric utility system.
3. "Cablecast signal" means a nonbroadcast signal that originates within the facilities of the cable communications system.
4. "Cable service" means the total of the following:
a. The one-way transmission to subscribers of video programming or other programming service; and
b. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
5. "Channel" or "cable channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission.
6. "Commence construction" means that time and date when construction of the cable communication system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.
7. "Commence operation" means that time and date when operation of the cable communications system is considered to have commenced, which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to a dwelling unit located within the franchise area and such services are actually subscribed to by a resident of the franchise area.
8. "Commercial use channel(s)" means the channel capacity designated for commercial use as defined and required by federal law.
9. "Completion of construction" means that point in time when all distribution facilities specified in the franchise agreement have been installed by the grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, of any facilities required by the franchise agreement.
10. "Council" means the city council, the governing body of the city of Benicia.
11. "FCC" means the Federal Communications Commission and any legally appointed or elected successor.
12. "Franchise" means an initial authorization or renewal thereof issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
13. "Franchise agreement" means a franchise grant ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials.
14. "Franchise fees" means any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a grantee or cable subscribers, or both, solely because of their status as such. The term "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 grantee or cable subscribers);
b. 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 funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or
d. Any fee imposed under Title 17, United States Code.
15. "Grantee" means any "person" receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.
16. "Grantor" or "city" means the city of Benicia as represented by the city council or any delegate acting within the scope of its jurisdiction.
17. "Gross annual revenues" means the annual gross revenues received by the grantee from all sources of operations of the cable communications system in the franchise area, except that any sales, excise or other taxes collected for direct pass-through to local, state or federal government shall not be included.
18. "Initial service area" means the area of the city which will receive service initially, if such an area is set forth in the franchise agreement.
19. "Installation" means the connection of the system from feeder cable to subscribers’ terminals, and the provision of service.
20. "Pay-cable," "pay-television" or "pay-per-view" means the delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic cable service, on a per program, per channel, or other subscription basis.
21. "Person" means an individual, partnership, association, joint stock company, trust, corporation, or organizational entity.
22. "Programmer" means a person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the cable communications system.
23. "Public, educational or government access facilities" or "PEG access facilities" means the total of the following:
a. Channel capacity designated for public, educational, or governmental use; and
b. Facilities and equipment for the use of such channel capacity.
24. "Resident" means any person residing in the city as otherwise defined by applicable law.
25. "School" means any accredited nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private.
26. "Section" means any section, subsection, or provision of this franchise ordinance.
27. "Service area" or "franchise area" means the entire geographic area within the city designated in a franchise agreement to receive cable service.
28. "State" means the state of California.
29. "Street" means each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority and located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the grantor shall permit to be included within the definition of "street" from time to time.
30. "Subscriber" means any person, firm, corporation, or other entity who is authorized to receive a service provided by the grantee by means of or in connection with the cable communications system.
31. "Subscriber complaint" means any complaint by a subscriber to the grantee, either orally or in writing, alleging an inadequacy in service, and requesting the grantee to correct the inadequacy. (Ord. 91-6 N.S. § 2, 1991).
5.40.040 Grant of franchise.
A. Grant. In the event the grantor shall grant to a grantee a nonexclusive, revocable (pursuant to the provisions of subsections (N)(1)(a) through (N)(1)(e) of this section) franchise to construct, operate, maintain and reconstruct a cable communications system within the franchise area, or a renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement. Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and state laws and regulations. In the event of conflict between the franchise and such federal and/or state laws, the law and/or regulations shall, to the extent provided therein, control.
Any franchise granted by the grantor shall be subject to all applicable city ordinances now in effect or hereafter made effective, to the extent permitted by law; provided, however:
1. The applicability of any city ordinance adopted after the effective date of the ordinance codified in this section shall be subject to the rights of grantee under any such franchise, unless said later ordinance is adopted in accordance with, mandated by or permitted by any federal or state statutory law or any and all regulations promulgated thereunder in which case:
2. The applicability of any such later ordinance shall not be subject to the rights of grantee under any such franchise except to the extent as set forth in such franchise. Nothing in the franchise nor in this chapter shall be deemed to waive the requirements of the other codes and ordinances of the grantor regarding permits, fees to be paid thereunder, or the manner of construction.
This chapter shall apply to all franchises granted or renewed after the effective date of the ordinance codified in this chapter. It shall further apply to the extent permitted by applicable federal or state law to all existing franchises granted prior to the effective date of said ordinance.
B. Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise in accordance with the provisions of this chapter.
C. Establishment of Franchise Requirements. The grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of the art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, except as set forth in subsection (K) of this section, but shall become applicable when the franchise is renewed.
D. Authority to Grant Franchise. The grantor may grant a franchise for all or any defined portion of the city. The service area shall be the entire area defined in the franchise agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the franchise agreement.
E. Use of Public Streets and Ways. For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of BMC 5.40.070(J), the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate grantor agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable grantor construction codes and procedures. Approvals required by grantor agencies shall not be unreasonably delayed or withheld.
F. Duration. The term of any new franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided.
G. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights previously granted to any grantee.
H. New Franchise Applications. Applicants for a new franchise shall submit to the grantor written applications utilizing the format provided by the grantor for accepting applications, and including the application fees designated by grantor.
I. Grant Procedure. All franchise applications for a new franchise when filed shall be available for public inspection at places designated by the grantor. No later than 90 days after the final date for filing applications one or more public hearings shall be held on the applications. A decision shall be made by the grantor not later than 90 days after the conclusion of all such public hearings based upon an evaluation of the application(s), the hearings, and other information that the grantor may deem relevant. Grantor may grant one or more franchises, or may decline to grant any franchise.
J. Transfer of Ownership or Control.
1. Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means (hereinafter collectively called "transfer") without the prior written consent of the grantor, and then only under such reasonable conditions as the grantor may establish. Such consent as required by the grantor shall be given or denied no later than 90 days following any request, and shall not be unreasonably withheld;
2. Change of Ownership or Control. The grantee shall promptly notify, in writing, the grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition by or transfer to any person or group of persons of 10 percent or more of the "beneficial ownership" interest of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented in writing thereto, which consent shall be given or denied no later than 90 days following any request, and shall not be unreasonably withheld;
3. Approval Information. For the purpose of determining whether it shall consent (a) to such change, transfer or acquisition of control, or (b) to the transfer of the franchise, the grantor may inquire into the qualifications of the prospective controlling party and/or transferee, and the grantee shall assist the grantor in any such inquiry.
In seeking the grantor consent to any change in, transfer of or acquisition of ownership or control or to any transfer, the grantee shall have the responsibility:
a. To show to the reasonable satisfaction of the grantor whether the proposed purchaser, transferee, or assignee (the "proposed transferee"), which, in the case of a corporation, shall include all directors and all persons having a legal or equitable interest in five percent or more of its voting stock:
i. Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to, any violation of federal, state or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts;
ii. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or
iii. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system;
b. To establish, to the reasonable satisfaction of the grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantee was required to submit in its franchise application, and such other data as the grantor may reasonably request. Financial statements shall be audited, certified and qualified by either a certified public accountant or a financial officer of the proposed transferee;
c. To establish to the reasonable satisfaction of the grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms;
4. The grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money of 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 and operate the cable communications system, in the event of a grantee’s default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee. If the grantor finds that such transfer, after considering the legal, financial, character, technical and other public interest qualities of the applicant, is satisfactory pursuant to subsection (J)(3) of this section, the grantor shall transfer and assign the rights and obligations of such franchise as is in the public interest. The consent of the grantor to such transfer shall be given or denied no less than 90 days after any request, and shall not be unreasonably withheld;
5. The consent or approval of the grantor to any transfer by the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of any franchise;
6. In the absence of extraordinary circumstances, the grantor shall not approve any change in ownership, control or transfer or assignment of the franchise prior to completion of any cable system construction required in the franchise agreement;
7. In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the franchise agreement and all liabilities of the grantee being assumed by the transferee or being discharged and satisfied at the time grantor approves the transfer.
K. Franchise Renewal. Franchise renewal shall be in accordance with Sections 626(a) through (h) of the Federal Cable Communications Policy Act of 1984, 47 U.S.C. Subsections 546(a) through (h), or with such applicable law as may exist at the time of said renewal.
L. Police Powers. In accepting a franchise, the grantee acknowledges that its rights hereunder are subject to the police powers of the grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and agrees to comply with all applicable general laws and ordinances enacted by the grantor pursuant to such power.
Any conflict between the provisions of this chapter and any lawful exercise of the grantor’s police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any cable communications system franchise which contains provisions inconsistent with this chapter shall prevail only if upon such exercise the grantor finds any emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.
M. Franchise Fee.
1. Annual Franchise Payment. A grantee of a franchise hereunder shall pay to the grantor an annual fee in an amount as designated in the franchise agreement. Such payment shall commence as of the effective date of the franchise or any renewal date. The grantor, on an annual basis, shall be furnished a statement within 60 days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by a financial officer of the grantee, reflecting the total amounts of gross annual revenues and all payments, deductions and computations for the period covered by the payment. Upon 10 days’ prior written notice, grantor shall have the right, during normal business hours, to conduct an independent audit of grantee’s records directly related to the franchise fee, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of two percent or more, the grantee shall assume all reasonable costs of such an audit.
2. Acceptance by Grantor. 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 chapter or for the performance of any other obligation of the grantee.
3. Failure to Make Required Payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation:
a. An interest charge, computed from such due date, at an annual rate equal to the average rate of return on invested funds of the city during the period for which payment was due.
b. If the payment is late by 45 days or more, a sum of money equal to five percent of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payments.
4. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.
5. Any grantee "pass through" or itemization of franchise fee costs on subscribers’ bills shall be in accordance with federal law.
N. Forfeiture or Revocation.
1. Grounds for Revocation. If the grantee has been given written notice and a reasonable opportunity to cure (in accordance with BMC 5.40.130(B)), the grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default under this chapter and a material breach of the franchise (sometimes collectively referred to as a "default") and subject to the provisions of subsection (N)(2) of this section.
a. If the grantee shall fail to perform any of its material obligations under this chapter or under such documents, agreements and other terms and provisions entered into by and between the grantor and the grantee, subject to the provisions of BMC 5.40.130(C).
b. If the grantee should fail to provide or maintain in full force and effect the liability and indemnification coverages or the security fund or bonds as required herein.
c. If the grantee ceases to provide all services for any reason within the control of the grantee over the cable communications system.
d. If the grantee violates any of the material provisions of this chapter or the franchise agreement or if found to have practiced any fraud or deceit upon the grantor.
e. If the grantor is adjudicated insolvent (both unable to meet its debts as they mature and liabilities in excess of assets, at fair market value) or upon listing of an order for relief in favor of grantee in a bankruptcy proceeding pursuant to subsection (P) of this section which is not vacated within 120 days.
2. Procedure Prior to Revocation.
a. In the event the grantor believes the grantee has committed an act of default as described in subsection (N)(1) of this section, the grantor shall give grantee written notice specifying the default and demanding that it be cured on pain of, among other things, having the franchise revoked. In the event the stated default is not reasonably curable within 30 days, the franchise shall not be terminated or revoked, or fines assessed, if the grantee provides within the said 30 days a written plan, reasonably satisfactory to the grantor, to remedy the default. If the default of the grantee continues for a period exceeding 30 days following giving to grantee of such written notice from the grantor, without the grantee having provided such plan, the grantor may place its request for termination and revocation of the franchise upon a regular council meeting agenda. The grantor shall cause notice to be served upon such grantee, at least 30 days prior to the date of such meeting, a written notice of this intent to request such termination and revocation, and the time and place of the meeting, notice of which shall be published at least once, 10 days before such meeting in a newspaper of general circulation within the franchise area.
b. The grantor shall hear any persons interested therein, and shall determine within 90 days of the close of revocation hearing, based upon the preponderance of the evidence, whether the grantee has committed an act of default.
c. If the grantor determines that the grantee has committed an act of default, then the grantor may, by resolution, declare that the franchise of such grantee shall be terminated and security funds and bonds forfeited, or the grantor may, at its option and if the default is capable of being cured by the grantee, direct the grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the grantor shall determine are reasonable under the circumstances.
d. Within 30 days of any resolution terminating a franchise, grantee may appeal any determination of grantor to an appropriate forum, and if a court of competent jurisdiction grants a temporary restraining order or a preliminary injunction restraining the terms of the franchise revocation resolution, the franchise shall not be terminated or revoked until a final order directing or permitting same is entered against the grantee.
O. Procedures in the Event of Termination or Expiration.
1. Disposition of Facilities. In the event a franchise expires, is revoked, or is otherwise terminated, the grantor may order the removal of the above-ground system facilities from the franchise area within a reasonable period of time as determined by the grantor or require the original grantee to maintain and operate its cable system for a period not to exceed 24 months as indicated in subsection (O)(4) of this section.
2. Restoration of Property. In removing its plant, structures, and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in substantially as good condition as that prevailing prior to the grantee’s removal of its equipment without affecting the electrical or telephone cable wires or attachments. The liability insurance, indemnification and the security funds and bonds provided by the grantee shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this section.
3. Restoration by Grantor, Reimbursement of Costs. In the event of a failure by the grantee to complete any work required by subsection (O)(1) and/or subsection (O)(2) of this section, or any other work required by grantor by law or ordinance, within a reasonable time after receipt of written notice, and to the reasonable satisfaction of the grantor, the grantor may cause such work to be done and the grantee shall reimburse the grantor the cost thereof within 30 days after receipt of an itemized list of such costs and/or the grantor may recover such costs through the security funds or bonds provided by grantee. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
4. Extended Operation. Upon either the expiration or revocation of a franchise, the grantor may require the grantee to continue to operate the cable communications system for a defined period of time not to exceed 24 months from the date of such expiration or revocation. The grantee shall, as trustee for its successor in interest, continue:
a. To operate the cable communications system under the terms and conditions of this chapter and the franchise agreement; and
b. To provide the regular cable service and any of the other services that the grantee was providing at the time of franchise expiration or of the time grantor first gave notice to grantee of the grounds upon which the revocation was later based, as the case may be.
The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section. During any such period of extended operation, grantee shall be entitled to revenues generated from the operation of the cable system subject to the terms of the franchise agreement.
5. Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor or the grantee under any provision of law.
P. Receivership and Foreclosure.
1. Any franchise granted shall, at the option of the grantor, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
a. Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under the franchise; and
b. Such receivers or trustees shall, within said 120 days, execute an agreement with the grantor duly approved by the court having jurisdiction, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement.
2. In the case of a foreclosure or other involuntary sale of the plant, property and equipment of the grantee, or any part thereof, the grantor may serve notice of termination upon the grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of the grantee hereunder shall cease and terminate 30 days after service of such notice, unless:
a. The grantor shall have approved the transfer of the franchise, as and in the manner in this chapter provided; and
b. Such successful purchaser shall have covenanted and agreed with the grantor to assume and be bound by all the terms and conditions of the franchise agreement.
Q. Franchise Processing Costs. For either a new franchise award, franchise renewal or transfer, costs to be borne by the grantee that receives the new franchise award, renewal or transfer, unless otherwise agreed to by the parties, shall include, but shall not be limited to, all costs of publication of notices prior to any public meeting provided for pursuant to a franchise, development and publication of relevant ordinances and franchise agreements, and any cost not covered by the application fees, incurred by the grantor in its study, preparation of proposal solicitation documents, evaluation of all applications, including, but not limited to, consultant and attorney fees.
These franchise processing costs are exclusive of the construction inspection and permit fees specified in BMC 5.40.070(K)(1)(a) and the franchise fee specified in subsection (M) of this section. (Ord. 93-8 N.S. § 1, 1993; Ord. 91-6 N.S. § 2, 1991).
5.40.050 Regulation of franchise.
A. Regulatory Authority. The grantor shall exercise regulatory authority under the provisions of this chapter and applicable law. If the franchised cable communications system also serves other contiguous or neighboring communities, grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.
B. Regulatory Responsibility. The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:
1. Administering and enforcing the provisions of the cable communications system franchise(s).
2. Coordinating the operation of any government access channel(s) and facilities.
3. Providing technical, programming and operational support to public agency users, such as government departments and schools.
4. Establishing jointly with the grantee, or as otherwise specified in the franchise agreement, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement.
5. Planning expansion and growth of public benefit cable services.
6. Analyzing the possibility of integrating cable communication with other local, state or national telecommunications networks.
7. Formulating and recommending long-range public telecommunications policy.
C. Public Usage of the System. If so specified in the franchise agreement, the grantor may utilize a portion of the cable communications system capacity, and associated facilities and resources, to develop and provide noncommercial cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a commission, public corporation, or other entity to receive and allocate facilities, support funds and other considerations provided by the grantor, the grantee, and/or others. Such an entity, if established, may be delegated responsibilities including, but not limited to, the following:
1. Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable communications system.
2. Review the status and progress of each service developed for public benefit.
3. Reallocate resources jointly with the grantee on a periodic basis to conform with changing priorities and public needs.
4. Report to the grantor and the grantee annually on the utilization of resources, the new public services developed and the benefits achieved for the grantor and its residents.
D. PEG Access Facility Management.
1. Intent. It is the intent of the grantor to ensure that PEG access facilities provided for in any franchise agreement shall be managed in the best public interest so that programming using such facilities will be open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the grantor may delegate the responsibility for PEG access facility management to a nonprofit entity which may include, but not be limited to, any of the following:
a. A nonprofit public corporation;
b. A PEG access facility management commission or committee, appointed by grantor, and representing a broad spectrum of the community;
c. An established nonprofit entity with special cablecasting capability, such as a local or regional community college.
2. Functions. The entity designated to manage the PEG access facilities shall have the following functions:
a. Responsibility for program production for and management of the public access facilities as may in the franchise agreement be designated for community-based programming. Community channels may include public, educational and government access channels, as designated in the franchise agreement;
b. To assure that the PEG access facilities are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis;
c. To assure that no censorship or control over program content of the PEG access facilities exists except as necessary to comply with federal prohibition of material that is illegal;
d. To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the PEG access facilities;
e. To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable;
f. To hire and supervise staff;
g. To make all purchases of materials and equipment that may be required;
h. To develop sources of funding, such as foundation or federal or state grants, to further community programming;
i. To perform such other functions relevant to the PEG access facilities as may be appropriate;
j. Establishment of budgets on an annual basis, and utilization of funds and resources received from the grantor or the public usage entity designated in BMC 5.40.050(C) for the purpose of PEG access programming.
3. Access Rules. The PEG access facility management entity shall complete a set of rules for the use of the PEG access facilities which shall be promptly forwarded to the grantor. The files shall be prepared in cooperation with the grantee, and confirmed by agreement between the PEG access facility management entity and the grantee. The rules shall, at a minimum, provide for:
a. Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise area;
b. Prohibition of commercial use by public access programming procedures;
c. Prohibition of any presentation of obscene material;
d. Public inspection of the log of producers, which shall be retained by the PEG access facility management entity for a period of four years;
e. Procedures by which individuals or groups who violate any rule may be prevented from further access to the facilities;
f. Free use of such reasonable amounts of channel time, cablecasting facilities, and technical support as are provided for in the agreement between the PEG access facility management entity and the grantee.
4. PEG Access Facility Management Entity Reports to Grantor. The PEG access facility management entity shall provide a report to the grantor and the grantee, at least annually, indicating achievements in community-based programming and services.
E. Reservation by Grantor. The grantor reserves the right, at its discretion, from time to time, to determine if the entities described in subsections (C) and (D) of this section are performing their purposes in a manner satisfactory to the grantor, and if they are not, the grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in subsections (C) and (D) of this section.
F. Rates. The grantee shall establish rates for its services that must be applied fairly and uniformly to all categories of subscribers in the franchise area. Grantor is authorized to regulate grantee’s rates for services in accordance with the franchise agreement.
G. Annual Review of Performance and Quality of Service. At grantor’s sole option, within 90 days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, the grantor may hold a public hearing at which the grantee shall be present and shall participate, to review the performance and quality of service of the cable communications system. The reports required in BMC 5.40.140 regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meeting, either orally or in writing, and these shall be considered.
1. Within 30 days after the conclusion of the public hearing, grantor shall issue a report with respect to system performance and quality of service with regard to the material requirements of any franchise. If noncompliance is found, grantor may direct grantee to correct the noncompliance within a reasonable period of time.
2. Failure of grantee, after due notice, to correct the noncompliance shall be considered a material breach of the franchise, and grantor may, at its sole discretion, exercise any remedy within the scope of this chapter considered appropriate, including assessment of damages as provided in any franchise agreement.
H. System and Services Review. To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established:
1. At grantor’s sole option, the grantor may hold a public hearing on or about the third anniversary date of the franchise agreement, at which the grantee shall be present and shall participate, to review the cable communications system and services. Subsequent system and services review hearings may be scheduled by the grantor each three years thereafter. Said public hearing shall be held concurrent with any public hearing held under subsection (G) of this section.
2. Sixty days prior to the scheduled system and services review hearing, grantee shall submit a report to grantor indicating the following:
a. All cable services reported in cable industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstrations, to communities in the United States with comparable populations, that are not provided to the grantor.
b. All cable system services which are being provided in communities adjacent to or in general proximity of the city, including, but not limited to, the cities of Vallejo, Fairfield, Vacaville, Napa, Martinez and Concord.
c. Any specific plans for provision of such new services by the grantee, or a justification indicating why grantee believes such services are not feasible for the franchise area.
d. An estimated cost to subscribers for any new services indicated in subsections (H)(2)(a) and (H)(2)(b) of this section.
3. Topics for discussion and review at the system and services review hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments in the law, and regulatory constraints.
4. Either the grantor or the grantee may select additional topics for discussion at any review hearing.
5. Not later than 60 days after the conclusion of each system and service review hearing, grantor shall issue a report including specifically a listing of any cable services not then being provided to the grantor that are considered technically and economically feasible. Grantor may request grantee to provide such services within a reasonable time, under reasonable rates and conditions, with the understanding that grantee is not obligated to comply with any such requests unless otherwise provided in any franchise agreement.
I. Preemption. If any area of local regulatory control is preempted by state or federal law, and that preemption subsequently is discontinued, grantor reserves the right to regulate in that area to the extent permitted by law subject to the provisions of BMC 5.40.040(A).
In the event that provisions of the Cable Communications Policy Act of 1984, or any other federal law, regulation or policy and/or case law pertaining to the regulation of cable television systems are modified, enacted, promulgated or decided, respectively, to permit any form of such regulation by local franchising authorities, grantor shall, as of the effective date of such legislation, regulation, policy or case law and to the extent authorized by same, have the authority to regulate in accordance with such legislation, regulation, policy and/or case law subject to the provisions of BMC 5.40.040(A). (Ord. 93-8 N.S. §§ 2, 3, 1993; Ord. 91-6 N.S. § 2, 1991).
5.40.060 General financial and insurance provisions.
A. Construction Bonds.
1. The grantee may be required, within 30 days after the granting of a new franchise or a renewal which requires significant system construction, and prior to the commencement of any construction work by the grantee, to file with the grantor performance and payment bonds in the amount specified in the franchise agreement or each bond in an amount equal to 100 percent of the estimated costs of completing such construction. Such bonds shall be written to run in favor of the grantor and any other persons who may claim damages as a result of the breach of any duty by the grantee assured by such bonds.
2. Such bonds as contemplated herein shall be in such reasonable form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.
3. In no event shall the amount of said bonds be construed to limit the liability of the grantee for damages.
4. Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bonds with the performance bond and security fund specified, respectively, in subsections (B) and (C) of this section.
5. Upon completion of construction, and the completion of all works of improvement, and the curing of all construction-related defects, and the passage of the appropriate lien period without the filing of any lien claims, the bonds then in force shall be released.
B. Performance Bond.
1. In addition to the construction bonds set forth above, the grantee may be required, at the time specified in the franchise agreement pursuant to the provisions in the franchise agreement, to file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the cable communications system operated under the franchise agreement and including payments required to be made to the grantor hereunder.
2. Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.
3. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.
4. Grantor, at its sole option, may waive this requirement, or permit consolidation of the performance bond with the construction bond and security fund specified, respectively, in subsections (A) and (C) of this section.
C. Security Fund.
1. Within 30 days after the effective date of the resolution adopting the franchise, the grantee shall deposit cash into a bank account established by the grantor, and maintain on deposit throughout the term of any franchise, the sum specified in the franchise agreement, as security for the faithful performance by it of all the material provisions of the franchise, in compliance with all material orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under this chapter, and the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.
Subject to the provisions of subsection (C)(4) of this section, the security fund may be assessed by the grantor for purposes including, but not limited to, the following:
a. Failure of grantee to pay grantor sums due under the terms of the franchise;
b. Reimbursement of costs borne by the grantor to correct material franchise violations not corrected by grantee, after due notice;
c. Monetary remedies or damages assessed against grantee due to material default or material violation of franchise requirements.
2. At grantor’s sole option, some portion of the security fund may be provided in an acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.
3. Within 30 days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection (C)(1) of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the franchise agreement.
4. If the grantee fails, after 30 days’ written notice, to pay to the grantor any franchise fee or taxes due and unpaid; or, fails to pay to the grantor, after 30 days’ written notice, any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or fails, after 30 days’ notice of such failure by the grantor, to comply with any material provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor may thereafter withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.
5. The security fund deposited pursuant to this section shall become the property of the grantor in the event that the franchise is revoked for cause by reason of the default of the grantee in accordance with the procedures of BMC 5.40.040(N). The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than 90 days after the expiration of the term of the franchise; provided, that there is then no outstanding default on the part of the grantee.
6. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right the grantor may have.
D. Indemnification.
1. The grantee shall, by acceptance of any franchise granted, indemnify, defend and hold harmless the grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages or other relief, costs and attorneys’ fees in any way arising out of or through or alleged to arise out of or through:
a. The act of the grantor in granting the franchise; and
b. The acts or omissions of grantee, its servants, employees, or agents including, but not limited to, any failure or refusal by grantee, its servants, employees or agents to comply with any obligation or duty imposed on grantee by this chapter or the franchise agreement; and
c. The exercise by grantee of any right or privilege granted or permitted by this chapter or the franchise agreement.
Such indemnification shall include, but not be limited to, all claims arising in tort; contracts; infringements of copyright, violations of statutes, ordinances or regulations; or otherwise.
2. In the event any such claims shall arise, the grantor or any other indemnified party shall tender the defense thereof to the grantee; provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense, and in such event, grantee shall not agree to any settlement of claims without grantor approval, which approval shall not be unreasonably withheld.
3. The grantor shall hold harmless the grantee for any acts of the grantor or the PEG access entity described in BMC 5.40.050(D) in utilizing any PEG access channels, equipment or facilities.
E. Insurance.
1. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:
a. Worker’s Compensation Insurance. In such coverage as may be required by the worker’s compensation insurance and safety laws of the state of California and amendments thereto.
b. Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement.
c. Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, nonownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement.
2. The grantee shall furnish the grantor with copies of such insurance policies or certificates of insurance.
3. Such insurance policies provided for herein shall name the grantor, its officers, boards, commissions, agents, and employees as additional insureds, and shall be primary to any insurance carried by grantor, and shall contain the endorsements required in the franchise agreement.
4. The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued hereunder to the amounts of such insurance.
5. All insurance carriers providing coverage under subsection (E)(1) of this section shall be duly licensed to operate in the state. (Ord. 93-8 N.S. §§ 4, 5, 1993; Ord. 91-6 N.S. § 2, 1991).
5.40.070 Design and construction provisions.
A. System Design. The cable communications system shall be constructed in accordance with the design requirements contained in the franchise agreement.
B. Geographical Coverage. The grantee shall design and construct the cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school and public agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. Cable system construction and provision of service shall be nondiscriminatory, and grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference.
C. Cablecasting Facilities. The grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement.
D. System Construction Schedule.
1. The grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement.
2. The grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the grantee shall update this information on a monthly basis by submitting to the grantor a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reasons for any delay.
E. Remedies for Delay in Construction. The grantor may, at its sole option, apply any or all of the remedies in connection with delays in system construction as specified in BMC 5.40.130.
F. Provision of Service. After service has been established by activating trunk and distribution cables for any area, the grantee shall provide service to any requesting subscriber within that area within 30 days from the date of request or such other date the subscriber may request or agree to.
G. Undergrounding of Cable. The undergrounding of cable is encouraged. In any event, cables shall be installed underground at grantee’s cost where utilities are already underground, or where required by law. At grantee’s cost, previously installed aerial cable shall be undergrounded and relocated in concert with other utilities, when such other utilities convert from aerial to underground construction or when the grantor establishes an underground district requiring undergrounding of all utilities and communications services.
H. New Development Undergrounding. In cases of new construction or property development where utilities are to be placed underground, upon request by the grantee, the developer or property owner shall give grantee at least 72 hours’ notice of the particular date on which open trenching will be available for grantee’s installation of conduit, pedestals and/or vaults to be provided at grantee’s expense. Grantee shall also provide specifications as needed for trenching.
Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if grantee fails to install its conduit, pedestals and/or vaults within five working days of the date the trenches are available, as designated in the notice given by the developer or property owner, and new trenches are closed after the five-day period, the cost of new trenching is to be borne by grantee.
I. Underground at Multiple-Dwelling Units. In cases of multiple dwelling units service by aerial utilities, grantee shall make every reasonable effort to minimize the number of individual aerial drop cables, giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit.
J. Street Occupancy.
1. Grantee shall utilize existing poles, conduits and other facilities whenever possible and economically feasible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities, excluding customer service drops, whether on public property or on privately owned property until the written approval of the grantor is obtained, which approval shall not be unreasonably withheld.
2. Grantee shall notify the grantor at least 10 days prior to the intention of the grantee to commence any construction in any streets. The grantor shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinance of the grantor.
3. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners, and at all times shall be kept and maintained in a safe condition and in good order and repair. The grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.
4. Grantee shall, at its own expense, and in a manner approved by the grantor (grantor’s approval not to be unreasonably withheld), restore to grantor’s standards and specifications, any damage or disturbance caused to the public right-of-way easement as a result of grantee’s operations or construction on its behalf.
5. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor in the exercise of its police powers to remove any of the grantee’s facilities, no charge shall be made by the grantee against the grantor for restoration and repair.
6. Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor.
7. Upon receipt of 30 days’ written notice, the grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of grantee when, in the reasonable judgment of the grantor in the exercise of its police powers, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, separation or realignment, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, movement of buildings, redevelopment, or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing hereunder shall be deemed a taking of the property of grantee and grantee shall be entitled to no surcharge by reason of anything hereunder.
8. After the giving to grantee of at least 30 days’ written notice and upon failure of grantee to commence or pursue to complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed in said notice and to the reasonable satisfaction of the grantor, the grantor may, at its option, cause such work to be done and the grantee shall pay to the grantor the cost thereof in the itemized amounts reported by the grantor to grantee within 30 days after receipt of such itemized report.
9. The grantee shall make no paving cuts or curb cuts unless necessary, and only after written permission by permit has been given by the grantor, such permission not to be unreasonably withheld.
10. Grantor reserves the right to require, at grantee’s sole cost, conduit for underground cabling in special areas, which may include, but not be limited to, street crossings and newly paved areas.
K. Construction and Technical Standards.
1. Construction Standards.
a. Grantor Codes and Permits. Grantee shall comply with all applicable grantor construction codes and permits procedures. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction of the cable system.
b. Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of federal and state occupational safety and health acts and any amendments thereto as well as all state and local codes where applicable.
c. Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended, and all applicable state and local codes.
d. Antennas and Towers. Antenna-supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Associations’ R.S. 222-A specifications, and provisions of the Uniform Building Code, as modified.
e. Compliance with Aviation Requirements. Antenna-supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations.
f. Construction Standards and Requirements. All of the grantee’s plant and equipment, including, but not limited to, the antenna site, head-end and distribution system towers, house connections, structures, poles, wires, cables, coaxial cables, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.
g. Safety, Nuisance, Requirements. The grantee shall at all times employ professional care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.
2. Technical Standards. The cable communications system shall meet all technical and performance standards contained in the franchise agreement.
3. Test and Compliance Procedure. The grantee shall submit, within 60 days after the effective date of the franchise agreement, a detailed test plan describing the methods and schedules for testing the cable communications system on an ongoing basis to determine compliance with the provisions of the franchise agreement. The tests for basic cable services shall be performed at intervals no greater than 12 months. The tests may be witnessed by representatives of the grantor, and written test reports shall be submitted to the grantor. If more than 10 percent of the locations tested fail to meet the performance standards, the grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. A second failure of more than 10 percent may result, at the grantor’s option, in appropriate remedies.
4. Special Tests. At any time after commencement of service to subscribers the grantor may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber’s terminal. Requests for such additional tests will be made on the basis of complaints received or other credible evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The grantor shall make every reasonable effort to arrange its requests for such special tests so as to minimize hardship or inconvenience to grantee or to the subscriber. Copies of all such credible evidence and complaints shall be given to grantee, and if oral, the substance therefor shall be given to grantee.
5. Cost of Tests. The cost of all tests required by subsections (K)(3) and (4) of this section, and retesting as necessary, shall be borne by the grantee.
L. Areawide Interconnection.
1. Interconnection. The grantor may request grantee to interconnect public usage channels of the cable communications system with any or all other cable systems in adjacent areas. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.
2. Interconnection Procedure. Upon receiving the request of the grantor to interconnect, the grantee shall immediately initiate negotiations with the other affected system or systems, and shall report to the grantor the results of such negotiation no later than 60 days after initiation.
3. Relief. Grantee may be granted reasonable extensions of time to interconnect or the grantor may rescind its request to interconnect upon petition by the grantee to the grantor, if the grantor finds that the grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.
4. Cooperation Required. The grantee shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise area.
5. Initial Technical Requirements to Assure Future Interconnection Capability.
a. Every grantee receiving a franchise to operate a cable communications system within the franchise area shall use the same frequency allocations for commonly provided television signals so far as it is technically and economically feasible.
b. Grantee shall make a reasonable effort to provide local origination and access equipment that is compatible throughout the area served by the cable system. (Ord. 91-6 N.S. § 2, 1991).
5.40.080 Service provisions.
A. Services to Be Provided. The grantee shall initially provide, as a minimum, the programming services listed in the franchise agreement. Programming services shall not be reduced without prior notification to grantor.
B. Basic Cable Service. The "basic cable service" shall include any service tier which includes the retransmission of local television signals. This service shall be provided to all subscribers at the established monthly subscription rates.
C. Local Origination Channel(s). If local origination programming is provided, the grantee shall operate any cablecasting studios on a high-quality, professional basis for comparable operations for the purpose of providing cablecast programming responsive to local needs and interest.
D. Cable Channel for Commercial Use. The grantee shall designate channel capacity for commercial use as required by applicable law. (Ord. 91-6 N.S. § 2, 1991).
5.40.090 Consumer protection.
A. Consumer Service Standards. The grantee shall maintain a local office to provide the necessary facilities, equipment and personnel to comply with the following consumer standards under normal conditions of operation:
1. Sufficient toll-free telephone line capacity during normal business hours to assure that a minimum of 90 percent of all callers for service will not be required to wait more than one minute before being connected to a service representative.
2. Emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays.
3. A business and service office, within the city, open during normal business hours at least nine hours daily and at least four hours on Saturdays, and adequately staffed to accept subscriber payments and respond to service requests and complaints.
4. An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunction on a 24-hour basis.
5. An installation staff, capable of installing service to any subscriber within seven days after receipt of a request, subject to grantee’s receipt of all required easements, in all areas where trunk and feeder cables have been activated.
6. Grantee shall schedule, within a specified four-hour time period, all appointments with subscribers for installation or service. Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If grantee’s 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. The appointment shall be rescheduled, as necessary, at a time which is convenient for the customer.
B. Requests for Cable Service and Repairs.
1. The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, whether for routine maintenance or system upgrading, insofar as practically feasible shall be preceded by notice and shall occur during the period of minimum use of the system, preferably between midnight and 6:00 a.m. A written log or an equivalent stored in computer memory and capable of access and reproduction shall be maintained for all service interruptions and requests for cable service as required by BMC 5.40.140(E).
2. The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:
a. System Outage. Within two hours, including weekends, of receiving subscriber calls which by number identify a system outage of sound or picture of one or more channels, affecting at least 10 percent of the subscribers of the system;
b. Isolated Outage. Within 24 hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels;
c. Inferior Reception Quality. Within 48 hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality.
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, response shall be deemed to have taken place if the technician leaves written notification of arrival. No charge shall be made to the subscriber(s) for any service call which is related to repair or maintenance of the cable systems trunk, feeder cable or drop cable up to the ground block unless such repair or maintenance is necessary due to the actions of such subscriber(s). Subscribers may, however, be charged for service calls related to repair or maintenance of equipment located within the subscriber’s residence.
C. Verification of Standards. Upon reasonable notice, the grantee shall provide records indicating compliance with any or all of the standards required in subsections (A) and (B) of this section. The grantee shall provide sufficient detail by written record or computer memory equivalent to permit the grantor to verify the extent of compliance.
D. Noncompliance with Standards. A repeated and verifiable pattern of noncompliance with the consumer protection standards of subsections (A) and (B) of this section, after grantee receipt of due notice and an opportunity to cure, may be termed a breach of the franchise, subject to any and all remedies as prescribed in BMC 5.40.040(N) and 5.40.130(A) and applicable law.
E. Complaints Procedure.
1. Complaints to Grantee. 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 complaint either orally or in writing that grantee has violated any provision of this chapter, or the terms and conditions of the subscriber’s written contract with grantee. At the conclusion of grantee’s investigation of a subscriber complaint, but in no event more than 10 business days after receiving the complaint, grantee shall notify the subscriber and the grantor in writing of the results of the investigation and its proposed action or resolution, if any. The grantee shall also notify the subscriber of the subscriber’s right to file a complaint with the grantor in the event the subscriber is dissatisfied with the grantee’s decision. Grantee’s procedures shall be filed with the grantor. No other proceedings to resolve subscriber complaints shall be undertaken until the procedure established by this section has been exhausted.
2. Complaints to Grantor. A subscriber who is dissatisfied with grantee’s proposed decision or who was not sent a written decision within the 10-day period shall be entitled to have the complaint reviewed by the grantor. The subscriber shall initiate the review by filing a written complaint together with the grantee’s written decision, if any, with the grantor and by the grantor notifying the grantee of the filing. The subscriber shall make such filing and notification within 20 days of receipt of grantee’s decision or, if no grantee decision has been provided, within 30 days after filing the original complaint with grantee. The grantor may extend these time limits for reasonable cause, not to exceed an additional 10 days unless otherwise mutually agreed to by the parties.
3. Payment During Disputes. In the event that a subscriber disputes a portion of the monthly service charge, the subscriber shall continue to pay the undisputed portion during the pendency of any complaint submitted under this section. Grantee shall not discontinue service during the pendency of such a complaint.
F. Review by the Grantor. The grantor shall determine, solely upon a review of a subscriber complaint and the grantee’s decision, if any, whether further action is warranted. In the event the grantor does not initiate further proceedings within 15 days of the filing of the complaint, the grantee’s proposed action or resolution shall be final. If the grantor decides to initiate further investigation, the grantor shall require the grantee and subscriber to submit, within 10 days of notice thereof, a written statement of the facts and arguments in support of their respective positions. The grantee or the subscriber may request in such statement that a hearing be conducted by the grantor. A hearing, if requested, shall be conducted by the grantor following notice in writing specifying the time and place for such hearing. The hearing shall be conducted informally, and the parties may offer any evidence pertinent to the dispute. The parties shall produce any additional evidence, including testing reports from the grantee, which the grantor may deem necessary to an understanding and determination of the dispute. The grantor shall issue a written decision within 15 days of receipt of the written statements or, if a hearing is requested, within 15 days of the conclusion of the hearing, setting forth the basis of the decision. Within 60 days of receipt by subscriber or grantee of grantor’s written decision, the decision may be appealed by the subscriber or the grantee, as the case may be, to the city council. The council’s decision shall be final, subject to grantee’s and the subscriber’s right to appeal to the courts.
G. Remedies for Violation. The grantor may, as a part of a subscriber complaint decision issued under the provisions of this chapter, impose damages on the grantee as specified in this chapter and/or the franchise agreement, and in accordance with BMC 5.40.130(A) and (B). In the event grantor does not enforce grantee’s decision, the subscriber benefitted by said decision shall have a private right to enforce the grantor’s decision.
H. Notices.
1. Operating Policies. As subscribers are connected or reconnected to the cable system, and at least once annually thereafter, the grantee shall provide each subscriber with written information on each of the following areas:
a. Products and services offered;
b. Prices and options for programming and other services;
c. Installation and service maintenance policies;
d. Instructions on how to use the cable service;
e. Channel positions of programming carried on the system;
f. Billing and complaint procedures including the address and telephone number of grantee’s office;
g. Grantee’s business hours, legal holidays and procedures for responding to inquiries after normal business hours.
Grantee shall provide all subscribers and the grantor written notice no less than 30 days prior to any proposed change in these policies.
2. Rates and Services. The grantee shall provide all subscribers and the grantor with at least 30 days’ written notice prior to the implementation of any change in rates, programming services and/or service tiers.
3. Copies to Grantor. Copies of all notices provided to all subscribers shall be filed concurrently with the grantor.
I. Quality of Service. The overall quality of service provided by grantee to subscribers may be subject to evaluation by grantor, not less often than once annually, in conjunction with the annual review set forth in BMC 5.40.050(G). In addition, grantor may evaluate the quality of service at any time, based upon the number of subscriber complaints received by the grantee and the grantor, and grantee’s response to those complaints. Grantor’s evaluation that service quality is inadequate may lead to direction to grantee to cure the inadequacies. Grantee shall commence corrective action within 30 days after receipt of written notice. Failure to do so shall be deemed to be a breach of the franchise and subject to the remedies prescribed in BMC 5.40.130. Grantor, after due process, may utilize the performance bond and/or security fund of BMC 5.40.060(B) and (C), respectively, to remedy any such franchise breach.
J. Tenant Rights. It is grantor’s intent that tenants not be discriminated against in the ability to subscribe to cable services. Grantee shall be required to provide service to tenants in individual units of a multiple-housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by grantee, to the following:
1. To grantee’s providing the service to units of the facility;
2. To reasonable conditions and time for installation, maintenance, inspection and marketing of the system on the facility premises;
3. To reasonable conditions promulgated by grantee to protect grantee’s equipment and to encourage widespread use of the system; and
4. To not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not.
K. Grantee Rules and Regulations. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under the franchise, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable state and federal laws, rules and regulations.
L. Rights of Individuals.
1. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, PEG access channel users, or general citizens on the basis of income, race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, and all lawful and applicable federal, state and local executive and administrative orders relating to nondiscrimination.
2. Grantee shall provide subscribers with at least 10 days’ written notice of intent prior to disconnecting service. A subscriber shall not be charged by grantee for disconnection or downgrading of service.
3. Grantee shall strictly adhere to the equal employment opportunity requirements of federal, state and local law and regulations in effect on the date of the franchise grant, and as amended from time to time.
4. The grantee’s policy with regard to privacy and personally identifiable information shall be consistent with federal law.
5. Fairness and Accessibility. The entire system of the grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies and other entities having a legitimate use for the system, and no one shall be arbitrarily excluded from its use.
M. Continuity of Service Mandatory.
1. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or fails to renew this franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service.
In the event of a change 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, and shall be entitled to reasonable costs for its services when it no longer operates the system.
2. In the event grantee fails to operate the system for seven consecutive days without prior approval of the grantor or without just cause, the grantor may, at its 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 is required to 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 the grantor that are the result of the grantee’s failure to perform.
N. Identification of Employees. Every employee of the grantee or its contractors or subcontractors shall be clearly identified on sight to the public as a representative of the grantee. Every vehicle of the grantee or its contractors or subcontractors shall be similarly identified.
O. Notice of System Outages. Grantee shall notify grantor of any outage or interruption in service that affects at least five percent of the system subscribers and lasts at least four hours. (Ord. 93-8 N.S. §§ 6, 7, 8, 1993; Ord. 91-6 N.S. § 2, 1991).
5.40.100 Operation and maintenance.
A. Books and Records. The grantor, upon reasonable notice, shall have the right to inspect at any time during normal business hours all books, records, maps, plans, service complaint logs, performance test results and other like materials of the grantee which directly relate to the grantee’s compliance with its franchise obligations and are maintained at the local office required by BMC 5.40.090(A); provided, that the grantor shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee; and provided further, that records shall be exempt from inspection pursuant to this section to the extent required by applicable law regarding subscriber privacy and to the extent such records are protected by law against discovery in civil litigation.
If any of such books or records are not kept in the local office, or upon reasonable request made available to the grantor, and if the grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of grantor’s duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by grantee.
B. Records Required.
1. In any event the grantee shall at all times maintain in the local office:
a. The complaint file required by BMC 5.40.140(E);
b. A full and complete set of plans, records and "as-built" maps showing the exact location of all cable communications system equipment installed or in use in the franchise area;
c. A full and complete record of services offered and rates charged throughout the term of the franchise.
2. Grantee shall furnish to the grantor one full and complete set of plans, records and "as-built" maps showing the exact location of all cable communications system equipment installed or in use in the franchise area. Grantee shall furnish to the grantor within 30 days of completion of work all changes and "as-built" maps so that an updated set of maps of the complete system is maintained throughout the term of the franchise in the office of the public works director.
3. Upon the reasonable request of the grantor, the grantee shall furnish additional copies of any plan, record or "as-built" map to the office of the public works director within a reasonable period of time. (Ord. 91-6 N.S. § 2, 1991).
5.40.110 Rights reserved to the grantor.
A. Right of Inspection of Construction. The grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this chapter and other pertinent provisions of law. (Ord. 91-6 N.S. § 2, 1991).
5.40.120 Rights reserved to the grantee.
A. Right of Grantee. In the event of any dispute between grantee and grantor over this chapter or the franchise agreement, or with respect to any rights or obligations arising therefrom, grantee shall first pursue and exhaust all available administrative remedies. Thereafter grantee may pursue any appropriate legal action.
B. Reservation of Rights. Nothing in this chapter or in any franchise agreement shall diminish any rights of grantee under applicable law, unless grantee has, in writing, expressly waived such rights, in whole or in part. (Ord. 91-6 N.S. § 2, 1991).
5.40.130 Franchise violations.
A. Remedies for Franchise Violations. If the grantee fails to perform any material obligation under the franchise agreement and/or this chapter or fails to comply with any material provision of this chapter and/or its franchise agreement in a timely manner (sometimes hereinafter collectively referred to as "failure"), the grantor may at its option, and in its sole discretion:
1. Assess fines of up to the greatest of $100.00 per day or per incident or the maximum amount permitted by applicable state or federal law or regulations. Said fine may, in the discretion of the grantor, be levied against the security fund, hereinabove provided, and collected by grantor after completion of the procedures specified in subsection (B) of this section. Such fine shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise and/or this chapter. This provision for assessment of fines is intended by the parties to be separate and apart from grantor’s right to enforce the provisions of the construction and performance bonds provided for in BMC 5.40.060;
2. Require grantee to provide compensation to grantor and/or subscribers for actual damages;
3. Require grantee to provide rebates to subscribers when services contracted and paid for have not been received; and/or
4. Terminate the franchise, only for any of the causes stated in BMC 5.40.040(N).
No remedies provided in subsection (A) of this section shall be imposed by grantor against grantee without grantee being afforded due process of law, as provided for in subsection (B) of this section and all violations of substantially identical nature occurring on the same day will be deemed as one violation or incident.
Grantor may impose any or all of the above enumerated remedies against grantee, which shall be in addition to any and all other legal or equitable remedies grantor has under the franchise agreement, this chapter or under any applicable law.
B. Procedure for Remedying Franchise Violations. If the grantee fails to perform any material obligation under the franchise agreement and/or this chapter or fails to comply with any material provisions of this chapter and/or its franchise agreement in a timely manner, the grantor shall give grantee written notice specifying the failure and demanding grantee remedy such failure. In the event that the failure is not reasonably curable within 30 days after the grantor delivers said notice to grantee, no remedial action shall be taken by the grantor against grantee if grantee, within said 30-day period, provides a written plan to the grantor that is reasonably satisfactory to the grantor to remedy the failure. If the failure is not remedied or in the process of being remedied to the satisfaction of the grantor within 30 days following delivery of such notice, the grantor shall determine whether or not such violation by the grantee was excusable or inexcusable, within the meaning of subsection (C) of this section, in accordance with the following procedure:
1. An administrative hearing shall be held to review the alleged failure. At the option of the grantee’s receipt of the grantor’s notice of the holding of said administrative hearing, the administrative hearing officer shall be mutually selected by grantor and grantee; provided, that in the event, after negotiating such selection for no more than 10 days, grantor and grantee do not agree upon the individual to be selected as such hearing officer, the same shall be selected by the then presiding judge of the Solano County superior court. The grantee shall pay for all costs charged by the hearing officer so selected or made necessary by his/her selection (e.g., travel, lodging, conference, etc.). In the event grantee does not exercise its said option, the city manager or his designee shall be the administrative hearing officer. If the alleged failure is not satisfactorily resolved, grantee may request in writing a hearing before the city council within 10 days’ receipt of written notice of the administrative hearing officer’s determination. The council hearing shall be set on a date determined by the grantor. The grantor shall cause notice to be served upon the grantee at least 30 days prior to the hearing, informing grantee of the time and place of the hearing and the allegations of such failure. Notice of this hearing shall be published at least once, 10 days before the hearing takes place, in a newspaper of general circulation within the franchise area.
2. If, after notice is given and a city council public hearing is held, the grantor determines that such a failure by the grantee was excusable as provided in subsection (C) of this section, the grantor shall direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may reasonably direct.
3. If, after notice is given and a city council public hearing is held, the grantor determines that such a failure was inexcusable, then the grantor may impose a remedy in accordance with subsection (A) of this section.
4. The council’s decision shall be final, subject to the grantee’s right to appeal to the courts.
C. Force Majeure – Grantee’s Inability to Perform. In the event grantee’s performance of any of the terms, conditions, obligations or requirements of the franchise or this chapter is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified grantor in writing within 60 days of its discovery of the occurrence of such an event. Such causes beyond grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies.
Grantor and grantee, in the franchise agreement, may mutually define those conditions deemed subject to force majeure application. (Ord. 93-8 N.S. §§ 9, 10, 11, 1993; Ord. 91-6 N.S. § 2, 1991).
5.40.140 Reports.
A. Annual Reports. Within 120 days after the close of grantee’s fiscal year, the grantee may be required to submit a written annual report, in a form requested by the grantor, including, but not limited to, the following information:
1. A summary of the previous year’s (or, in the case of the initial report 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, and the number of subscribers for each class of service;
2. A revenue statement, audited by an independent certified public accountant, or certified by an officer of the grantee;
3. An annual summary of the monthly summaries of service requests required in subsection (E)(1) of this section;
4. A statement of projected construction, if any, for the next two years;
5. A list of grantee’s officers, members of its board of directors, and other principals of grantee;
6. A list of stockholders or other equity investors holding five percent or more of the voting interest in the grantee and its parent corporation(s), if any, unless the parent is a public corporation whose annual reports are publicly available, and a copy of said annual report is provided to the grantor.
B. Plant Survey Report. At the grantor’s written request, grantee shall submit to the grantor an annual plant survey report which shall be a complete survey of the grantee’s plans and a full report thereon. Said report shall include, but not be limited to, a description and "as-built" maps of the portions of the franchise area that have been cabled and have all services available, and an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such reasonable requirements, including supervision, as the grantor may prescribe. Said report shall enable the grantor to ascertain that the service requirements and technical standards of the franchise are achieved and maintained. If grantor has reason to believe that portions or all of the system do not meet the technical standards incorporated into the franchise agreement, at grantor’s request, but no more often than once per three years, the grantee and the grantor shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable system. The cost of such evaluation shall be borne equally by the grantee and the grantor.
C. Copies of Federal and State Reports. The grantee may be required to submit to the grantor copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state and local courts, regulatory agencies and other government bodies relating to its cable television operations within the franchise area. Grantee shall submit such documents to the grantor no later than 30 days after receipt of a grantor request. The grantee hereby waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of federal or state agencies. Such confidential data exempt from public disclosure shall be retained in confidence by the grantor and its authorized agents and shall not be made available for public inspection.
D. Public Reports. If public reports are published, a copy of each of grantee’s annual reports and those of its parent corporation, as the grantor requests, shall be submitted to the grantor within 30 days after receipt of a written request.
E. Complaint File and Reports. An accurate and comprehensive file shall be kept by the grantee of any and all complaints regarding the cable system. A procedure shall be established by the grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the reasonable satisfaction of the grantor. Complete records of grantee’s actions in response to all complaints shall be kept. These files and records shall remain open to the public during normal business hours, so that individuals are able to inspect their own files.
1. A summary of service requests, identifying the number and nature of the requests and their disposition, upon grantor request, shall be completed for each month and submitted to the grantor by the tenth day of the succeeding month.
2. A log and summary of all service interruptions.
3. If requested by the grantor in writing, the results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with cable communications services offered by the grantee shall be submitted to the grantor no later than two months after the end of the grantee’s fiscal year. The surveys required to make said report shall be in a form that can be transmitted to subscribers with one or more bills for service, such as postage-paid self-addressed postcards. At the grantor’s option, the grantor may prepare the survey form and request its inclusion with a monthly bill to subscribers. If the grantor selects the option of preparing the survey, costs of said preparation shall be borne by the grantor.
F. Miscellaneous Reports. Grantee shall submit to the grantor such other relevant information or reports in such forms and at such times as the grantor may reasonably request or require as related to its compliance with the franchise agreement.
G. Inspection of Facilities. The grantee shall allow the grantor to make inspections of any of the grantee’s facilities and equipment at any time during business hours, upon at least 10 days’ written notice, or, in case of emergency, upon demand without prior notice, to allow grantor to verify the accuracy of any submitted report.
H. Public Inspection. All reports subject to public disclosure shall be available for public inspection at a designated grantor office during normal business hours.
I. Failure to Report. The wilful refusal, failure, or neglect of the grantee to file any of the reports reasonably required, or such other reports as the grantor reasonably may request pursuant to subsection (F) of this section may be deemed a material breach of the franchise, and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise.
J. False Statements. Any materially false or materially misleading statement or representation made knowingly and wilfully by the grantee in any report required under the franchise may be deemed a material breach of the franchise and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise.
K. Cost of Reports. One copy of all reports and records required under this or any other section shall be furnished at the sole expense of the grantee. (Ord. 91-6 N.S. § 2, 1991).
5.40.150 Miscellaneous provisions.
A. Compliance with State and Federal Laws. Notwithstanding any other provisions of the franchise to the contrary, the grantee shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof; provided, however, if any such state or federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise.
B. Separability – Nonmaterial Provisions. If any provision of this chapter or any related agreement is held by any court or by any federal, state, or local agency of competent jurisdiction to be invalid as conflicting with any federal, state or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is not material, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto; provided, that the grantor shall give the grantee 30 days’ written notice of such change before requiring compliance with said provision.
C. Separability – Material Provisions.
1. If any material section of this chapter is held to be invalid or preempted by federal, state or county regulations or laws, resulting in a material adverse consequence to either party, the grantor and grantee shall attempt to negotiate appropriate modifications to the franchise (pursuant to subsection (C)(3) of this section) to provide reasonable relief to the grantor or grantee from such invalidity or preemption, including the payment of damages to the grantor. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to arbitration in accordance with the procedures set forth below, and the arbitrators shall determine what modifications and/or damages are appropriate subject to the provisions of subsection (F) of this section.
2. Location. Any dispute between the parties arising under or relating to this subsection (C) shall be settled by arbitration in San Francisco, California, or such other place the arbitrators agree upon, in accordance with the procedures set forth below and, to the extent not inconsistent with such procedures, the rules of the American Arbitration Association; provided, however, with respect to any dispute arising from the events described in this subsection (C) which, in either the grantor’s or grantee’s reasonable judgment, create an emergency condition requiring immediate and decisive action by one or both for its resolution, then either the grantor, the grantee or both may take such action, including filing court action as any of them deems reasonably necessary to preserve such party’s rights under the franchise agreement or this chapter, without first subjecting such dispute to arbitration under this subsection (C). During the pendency of any arbitration proceeding, the time for (a) performance of any obligation, (b) exercise of any right and (c) cure of any default, arising under or by virtue of this chapter or the franchise agreement, which is the subject of or directly relates to the matter being arbitrated in such proceeding, shall be tolled, and extended for a period equal to the amount of time consumed by the arbitration process, and ending 10 business days after rendering of the written final decision in the arbitration proceeding as to such matters, as described in this subsection (C).
3. Triggering of Arbitration Procedure – Appointment of Arbitrators. With respect to any dispute subject to arbitration under this subsection (C), before commencing the arbitration procedure described herein the grantor and grantee shall be obligated to meet in person with each other within five days after notice of the dispute from the other party and negotiate in good faith in an effort to resolve such dispute without arbitration. If within the later to occur of (a) five days after such meeting or (b) 10 days after the initial notice of dispute (if the parties have been unwilling or unable to meet in person to discuss the matter), the dispute remains unresolved, any party ("initiating party") may give notice of such party’s demand for arbitration of such dispute to the other party ("other party"), stating in such notice the initiating party’s appointment of an arbitrator to serve in such arbitration proceeding. The other party shall appoint a second arbitrator and notify the initiating party of such appointment within 14 days after receipt of the initiating party’s notice of demand and appointment. Within 10 days after the initiating party’s receipt of the other party’s notice of appointment, the two arbitrators so selected shall appoint a third arbitrator.
4. Awards – Time for Decisions. The three arbitrators appointed and selected as described above shall render their decision and make an award as to the matter in dispute within 60 days after the date of selection of the third arbitrator, and any such decision and award shall be made according to the agreement of any two of the three arbitrators.
5. Limited Discovery. In any arbitration proceeding conducted under this subsection (C), each party shall have the right to the following limited discovery from any other party to the proceeding: (a) two depositions, (b) 35 interrogatories, whether "specially prepared" or in "official form," as such terms are used in California Code of Civil Procedure ("CCP") Section 2030, and (c) the right to obtain and review any documents relevant to the subject matter of the arbitration proceeding held by any other party which are not subject to a claim of attorney-client or attorney work-product privilege. The parties’ other rights and obligations with respect to the discovery process shall be governed by CCP Sections 2016, 2036, 1282.6, 1283, 1283.05 (except subsection (e) thereof) and 1283.2 as from time to time amended; provided, that nothing in such sections shall apply to expand or increase any party’s limited rights of discovery as to another party as set forth in this subsection.
6. Arbitrators’ Powers. The arbitrators appointed and selected pursuant to this subsection (C) shall have the rights and powers set forth in CCP Sections 1283.05(b), (c), and (d), which shall be applicable to any disputes arbitrated pursuant to this chapter.
7. Conclusiveness. To the extent authorized by applicable law, any award shall be a conclusive determination of the matter and shall be binding upon the grantor and grantee and shall not be contested by any of them as long as such award does not require the grantor or grantee to be in violation of any federal or state law or regulation. Upon receipt of an award in writing by the arbitrators, the losing party shall make payment in the amount, if any, set forth in such award to the prevailing party.
8. Fees and Expenses. The grantor and grantee each shall bear its own costs (including the fees and expenses of its appointed arbitrator and its respective attorneys) incurred in connection with the resolution of disputes under this subsection (C) and each shall bear one-half of the fees and expenses of any third arbitrator.
D. Notices. Grantee shall maintain throughout the term of the franchise a local address for service of notices by mail.
E. Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter.
F. No Recourse Against the Grantor. The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damage arising out of any lawful provision or requirement of the franchise or because of the lawful enforcement of the franchise.
G. Nonenforcement by the Grantor. The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance, but having failed to enforce a provision promptly, grantor shall give grantee written notice that the particular provision is thereafter to be enforced, in reasonable time to comply therewith. (Ord. 91-6 N.S. § 2, 1991).