HomeMy WebLinkAboutOrd 1173ORDINANCE NO. 1113
AND ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF BURLINGAME RELATING TO THE CONSTRUCTION,
OPERATION, REGULATION AND CONTROL OF CABLE
TELEVISION SYSTEMS WITHIN THE CITY'S TERRI-
TORIAL LIMITS.
THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Short Title. This Ordinance shall be
known and may be cited as the "Burlingame Cable Television
Ordinance."
SECTION 2. Definitions. Whenever in this Ordinance
the words or phrases hereinafter in this section defined are
used, they shall have the respective meanings assigned to them
in the following definitions (unless, in the given instance,
the context wherein they are used shall clearly impart a differ-
ent meaning):
�a) The word "applicant" shall mean any person or
corporation submitting an application for a cable television,
sometimes referred to as "cable communications, franchise."
(b) The phrase "basic service" or "regular subscriber
service" is that service regularly provided to all subscribers.
It includes all broadcast signal carriage.
(c) The phrase "cable television system" or "CATV
system" shall mean a system employing antennae, microwave, wire,
wave -guides, coaxial cables, or other conductors, equipment or
facilities, designed, constructed or used for the purpose of:
(1) collecting and amplifying local and
distant broadcast television or radio signals and
tributing and transmitting them;
(2) transmitting original cablecast program-
ming not received through television broadcast signals;
(3) transmitting television pictures, film
and video-tape programs, not received through broadcast
television signals, whether or not encoded or processed
to permit reception by only selected receivers;
(4) transmitting and receiving all other
signals: digital, voice, audio-visual, or other forms
of electronic or electrical signals.
(d) The word "channel" means a six megahertz (MHz)
frequency band, which if capable of carrying either one standard
television signal, or a number of audio, digital or other non -
television signals.
(e) The word "City" shall mean the City of Burlingame,
a municipal corporation of the State of California, in its present
incorporated form or in any later reorganized, consolidated
enlarged or reincorporated form.
(f) The phrase "City Council" or word "Council shall
mean the legislative body of the City of Burlingame.
(g) The phrase "City Manager" shall mean the City
Manager of the City of Burlingame.
(h) The phrase "Federal Communications Commission,"
or "FCC" is the present federal agency of that name as constituted
by the Communications Act of 1934, or any successor agency created
by the United States Congress.
(i) The word "franchise" shall mean and include any
authorization granted hereunder in terms of a franchise,
privilege, permit or license to construct, operate and maintain
a cable television system within the City of Burlingame. Any
such authorization, in whatever form granted, shall not mean and
include any license or permit required for the privilege of
transacting and carrying on a business within the City as required
by other ordinances and laws of this City.
(j) The word "Grantee" is a holder of a cable tele-
vision franchise issued by the City.
(k)
The
word
"Grantor" means the City of Burlingame
acting through
its
City
Council.
(1) The phrase "gross revenues", as used in the
definitions set forth in subparagraphs (1) through (4) hereof,
mean any and all compensation in whatever form, directly or
indirectly received by a Grantee, from the source specified, not
including any taxes on services furnished by the Grantee, which
taxes are imposed directly on a subscriber or user by a City,
County, State or other governmental unit, and collected by the
Grantee for such entity.
(1} The phrase."gross annual basic subscriber
revenues" shall mean any and all compensation and other
consideration received directly or indirectly by the
Grantee from subscribers or users in payment of the
regularly furnished service of the cable television
system, in the transmission of broadcast television,
radio signals and original cablecast programming of the
Grantee.
(2) The phrase "gross annual non -basic service
revenues".shall mean any and all compensation and other
consideration received directly or indirectly by the
Grantee from subscribers or users in payment for the
transmission or receipt of signals other than broadcast
television, radio, or original cablecast programming of
the Grantee, whether for "pay television", data trans-
mission, facsimile transmission, "return" or "response"
communication, and whether or not transmitted encoded or
processed to permit reception by only selected sub-
scribers.
(3) The phrase "gross annual advertising
revenues" shall mean any income, compensation and other
consideration received by the Grantee derived from any
form of advertising.
(4) The phrase "gross annual lease revenues"
shall mean any fees or income received by the Grantee for
the lease or rental, and compensation for any service in
connection therewith, such as studio and equipment rental
and production costs, of any channel permitted or
designated by the Federal Communications Commission to be
so leased or rented.
(m) The word "institution" means a building or build -
here
service may be utilized in connection with a business,
trade, profession, public agency or service, school, or non-profit
organization.
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(n) The phrase "non -basic service" means any communi-
cations service in addition to "regular subscriber services
including but not limited to access channel carriage including
origination programming, pay television, burglar alarm service,
fire alarm service, data transmission, facsimile service, home
shopping service, etc.
(o) The word "street" is the surface of and the
space above and below any public street, avenue, highway, boule-
vard, concourse, driveway, bridge, tunnel, park, parkway, side-
walk, waterway, dock, bulkhead, wharf, pier, alley, right-of-way,
public utility easement, and any other public ground or water,
now or hereafter, within or belonging to said City.
(p) The word "subscriber" means any person or
institution that elects to subscribe to, for any purpose, a
service provided by the Grantee by means of or in connection
with the cable communications system whether or not a fee is
paid for such service.
SECTION 3. Franchise Necessary to Install and Operate.
(a) It shall be unlawful to commence or engage in the
construction, operation or maintenance of a cable television
system without a franchise issued under this Ordinance. The
City Council may, by resolution, award a franchise to construct,
operate and maintain a cable television system within all or any
portion of the City to any person, whether operating under an
existing franchise or not, who makes application for authority to
furnish a cable television system which complies with the terms
and conditions of this Ordinance. Provided, that this section
shall not be deemed to require the grant of a franchise to any
particular person or to prohibit the City Council from restrict-
ing the number of Grantees should it determine such a restriction
would be in the public interest.
(b) Any franchise granted pursuant to the provisions
of this Ordinance shall authorize and permit the Grantee to
engage in the business of operating and providing a cable -
television system in the City, and for that purpose to erect,
install, construct, repair, replace, reconstruct, maintain and
retain in, on, over, under, upon, across, and along any street,
such poles, wires, cable, conductors, ducts, conduit, vaults,
manholes, amplifiers, and appliances, attachments, and other
property as may be necessary and appurtenant to the cable tele-
vision system; and, in addition, so to use, operate, and provide
similar facilities, or properties rented or leased from other
persons, firms or corporations, including but not limited to any
public utility or other Grantee franchised or permitted to do
business in the City.
SECTION 4. Term of Franchise.
(a) Any franchise granted by the City Council shall be
for a term
of
fifteen years following the date such franchise is
accepted by the Grantee, and, upon application of the Grantee and
review of the performance of Grantee in a public proceeding, the
City Council may renew the franchise for successive fifteen -year
periods, with such modification of the terms as the City Council
may determine in each instance.
(b) The City Council may terminate any franchise
granted pursuant to the provisions of this Ordinance in the event
of the willful failure, refusal or neglect by Grantee to do or
comply with any material requirement or limitation contained in
this Ordinance, or any rule or regulation of the Council or City
Manager validly adopted pursuant to this Ordinance.
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(c) The City Manager may make written demand that
the Grantee comply with any such requirement, limitation, term,
condition, rule or regulation. If the failure, refusal or
neglect of the Grantee continues after notice for an unreason-
able period of time, determined as such by the City Manager,
following such written demand, the City Manager may place his
request for termination of the franchise upon the next regular
Council meeting agenda. The City Manager shall cause to be
served upon such Grantee, at least twenty (20) days prior to
the date of such Council meeting, a written notice of his
intent to request such termination, and the time and place of
the meeting.
(d) The Council shall consider the request of the
City Manager and shall hear any persons interested therein, and
shall determine, in its discretion, whether or not any failure,
refusal or neglect by the Grantee was with just cause.
(e) If such failure, refusal or neglect by the
Grantee was with just cause, the Council shall direct the
Grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(f) If the Council shall determine such failure,
refusal or neglect by the Grantee was without just cause, then
the Council may, by resolution, declare that the franchise of
such Grantee shall be terminated and forfeited. In the event
of termination, the City agrees to purchase, or to require any
successor Grantee to purchase, Grantee's facilities at a cost
not to exceed its then fair market value, with a reduction for
uncompensated damages incurred by the City in connection with
Grantee's operation.
(g) The termination
and
forfeiture of
any Franchise
shall in no way affect any of
the
rights of the
City under
the franchise or any provision
of
law.
(h) In the event of any holding over after expiration
or other termination of any franchise granted hereunder, without
the prior consent of the City, expressed by resolution, the
Grantee shall pay to the City reasonable compensation and
damages, of not less than one hundred percent (100%) of its
gross revenue derived_from_all -sources -within _the _City during
said period.
SECTION 5. Limitations of Franchise
(a) Unless an exclusive franchise shall be expressly
granted, any franchise granted under this Ordinance shall be
non-exclusive and nothing herein shall be construed to prevent
the City from granting identical or similar franchises to more
than one person, within all or any portion of the City.
(b) A Grantee shall, at all times during the life of
its franchise, be subject to the lawful exercise of
the City's
police power and such reasonable regulations as the City Council
may subsequently promulgate thereunder.
(c) Nothing contained in this Ordinance shall be
deemed to prohibit in any way the right of the City to levy
non-discriminatory occupational license taxes on any activity
conducted by Grantee.
(d) No privilege or exemption shall be granted or
conferred by any franchise granted under this chapter except
those specifically prescribed herein, and/or in the Ordinance
granting the franchise.
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(e) Any privilege claimed under any such franchise by
the Grantee in any street shall be subordinate to City's use
thereof, and to any other prior lawful occupancy of the streets.
The City reserves the right to reasonably designate where a
Grantee's facilities are to be placed within the public ways.
(f) Transfer or assignment of franchise:
(1) Any such franchise shall be a privilege
to be held in personal trust by the Grantee. The
franchise shall not be sublet or assigned, nor shall
any of the rights or privileges therein granted or
authorized be leased, assigned, mortgaged, sold,
transferred, or disposed of, either in whole or in
part, either by forced or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise,
nor shall title thereto, either legal or equitable,
or any right, interest or property therein, pass to
or vest in any person(s), except the Grantee, either
Dy act of the Grantee or by operation of law, without
the consent of the City expressed by Ordinance. The
granting of such consent shall render unnecessary
any subsequent consent.
(2) The Grantee shall promptly notify the
City of any proposed change in, or transfer of, or
aquisition by, any other party of control of the
Grantee with respect to which the consent of the
Grantor is required, pursuant to subsection 5(f)(1)
above. Such change of control shall make this
franchise subject to revocation unless and until the
City Council shall have consented thereto.
(3) Consent of the City Council shall not
be granted until it has examined the proposed assignee°s
legal, financial, technical, character and other quali-
fications to construct, operate and maintain a cable
television system in the City and has afforded all
interested parties notice and an opportunity to be
heard on the question. The Grantee shall assist the
City in any such examination.
(4) The said consent of the Council may not
be unreasonably refused; provided, however, the pro-
posed assignee must show financial responsibility as
determined by the Council and must agree to comply with
all provisions of the franchise and of this Ordinance;
and provided, further, that no such consent shall be
required for a transfer in trust, mortgage, or other
hypothecation, in whole or in part, to secure an
indebtedness, except that when such hypothecation
shall exceed 500 of the market value of the property
used by the Grantee in the conduct of the cable tele-
vision system, prior consent of the Council shall be
required for such a transfer. Such consent shall not
be withheld unreasonably.
(5) In the event that Grantee is a corpora-
tion, prior approval of the City Council, shall be
required where there is an actual change in control or
where ownership of more than 50% of the voting stock
of Grantee is acquired by a person or group of persons
acting in concert, none of whom already own 50% or
more of the voting stock, singly or collectively. Any
such acquisition occurring without prior approval of
the City Council shall constitute a failure to comply
with a provision of this Ordinance within the meaning
of Section 4 of this Ordinance.
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(g) Any such transfer or assignment shall be made
only by an instrument in writing, which shall include an accep-
tance of all terms and conditions of the franchise by transfer
of a duly executed copy of which shall be filed with the City
Clerk within 30 days after any such transfer or assignment.
(h) Time shall be of the essence of any such
franchise granted hereunder. The Grantee shall not be relieved
of his obligation to comply promptly with any of the provisions
of this Ordinance by any failure of the City to enforce prompt
compliance.
(i) Any such franchise granted shall not relieve
the Grantee of any obligations involved in obtaining pole or
conduit space from any department of the City, utility company,
or from others maintaining utilities in streets.
(j) Any franchise granted hereunder, shall be in
lieu of any and all other rights, privileges, powers, immuni-
ties, and authorities owned, possessed, controlled, or
exercisable by Grantee, or any successor to any interest of
Grantee, of or pertaining to the construction, operation or
maintenance of any cable television system in the City; and
the acceptance of any franchise hereunder shall operate, as
between Grantee and the City, as an abandonment of any and all
of such rights, privileges, powers, immunities, and authorities,
within the City, to the effect that, as between Grantee and
the City, and all construction, operation and maintenance by
any Grantee of any cable television system in the City shall
be, and shall be deemed and construed in all instances and
respects to be, under and pursuant to said franchise, and not
under or pursuant to any other right, privilege, power,
immunity or authority whatsoever.
(k) No franchise shall authorize the use of any
public property other than public streets and public utility
easements owned by the City, unless such franchise or subse-
quent resolution of the City Council, expressly authorizes
such other public property.
(1) No franchise granted under this Ordinance shall
ever be given any value by any Court or other authority,
public or private, in any proceeding -of any nature or character,
wherein or whereby the City shall be a party or affected
therein or thereby.
(m) Grantee shall be subject to all provisions of
the other ordinances, rules, regulations, and specifications
of the City heretofore or hereafter adopted, including but not
limited to those pertaining to works and activities in, on,
over; under, and about streets.
Any privilege claimed under any franchise
granted pursuant to this Ordinance in any street or other
public property shall be subordinate to the public use and any
other lawful use thereof.
Grantee also shall be subject to the provisions
of general laws of the State of California, or as hereafter
amended, when applicable to the exercise of any privilege con-
tained in any franchise granted under this Ordinance, including
but not limited to those pertaining to works and activities in
and about State highways.
(n) Grantee shall be prohibited from directly or
indirectly doing any of the following:
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(1) engaging in the business of selling at
retail, leasing, renting, repairing or servicing of
television sets, radios, data terminals, facsimile
machines, and associated modems;
(2) imposing a fee or charge for any service
or repair to subscriber -owner receiving or transmitting
devices except for the connection of its service or for
the determination by Grantee of the quality of signal
reception and/or transmission;
(3) soliciting, referring, or causing or
permitting the solicitation or referral of any sub-
scriber to persons engaged in any business herein
prohibited to be engaged in by Grantee;
(4) providing information concerning the
viewing patterns of identifiable individual subscribers
to any person, group or organization for any purpose.
(o) If the Federal Communications Commission or the
Public Utilities Commission of the State of California or any
other Federal or State body or agency shall now or hereafter
exercise any paramount jurisdiction over the subject matter of
any paramount jurisdiction over the subject matter of any
franchise granted under this Ordinance, then to the extent such
jurisdiction shall preempt or preclude the exercise of like
jurisdiction by the City the jurisdiction of the City shall
cease and no longer exist.
The preemption or preclusion of the exercise by
the City of any of its police power shall not diminish, impair,
alter, or affect any contractual benefit to the City of Grantee
nor any contractual obligation of the Grantee under any fran-
chise issued hereunder.
Any and all minimum standards governing the
operation of Grantee and any and all maximum rates, ratios, and
charges specified herein or in any franchise issued hereunder,
existing now and at any time in the future, including such time
as any paramount jurisdiction shall preempt or preclude that of
the City, and any and all rights, powers, privileges, and
authorities of the City to determine, establish, or fix any of
the same, are each and all hereby declared by the City and by
any Grantee accepting any franchise hereunder to be contractual
in nature and to be for the benefit of the City.
(p) No person, institution, firm or corporation
within the service area of the Grantee, shall be refused service;
provided, however, that the Grantee shall not be required to
provide service to any subscriber who does not pay the appli-
cable connection fee or service charge.
(q) Before providing cable television service to
any subscriber, the Grantee shall provide a written notice to
the subscriber substantially as follows:
"Subscriber is hereby notified that in pro-
viding cable television service the Grantee
is making use of public rights-of-way within
the City of Burlingame, and that the con-
tinued use of such rights-of-way is in no
way guaranteed. In the event the continued
use of such rights-of-way is denied to
Grantee for any reason, Grantee will make
every reasonable effort to provide service
over alternate routes. By accepting cable
television service, subscriber agrees he will
make no claim nor undertake any action against
the City of Burlingame, its officers, or its
employees if the service to be provided here-
under, is interrupted or discontinued."
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(r) The form of the Grantee's contract with the
subscriber shall also be subject to approval of the City.
(s) It is not necessarily the City's intention to
prohibit the erection or continued use of individual television
antennas, and no one is or will be required to receive cable
television service or connect with a cable television system.
(t) Should the Grantee ever fail to pay any sum of
money to the City owing to the City under provisions of this
Ordinance and/or the franchise ordinance when such sum becomes
due and payable, Grantee shall pay interest to the City on the
delinquent sum, until it is fully paid at two (2) interest
points above the prime rate of interest charged in the San Mateo
area as calculated by the City.
(u) "The CATV system herein franchised shall be used
and operated solely and exclusively for the purpose expressly
authorized by ordinance of the City of Burlingame and no other
purpose whatever." Inclusion of the foregoing statement in
any such franchise shall not be deemed to limit the authority
of the City to include any other reasonable condition, limita-
tion or restriction which it may deem necessary to impose in
connection with such franchise pursuant to the authority con-
ferred by provisions of this Ordinance.
SECTION 6. Franchise Application Procedures.
(a) This Ordinance itself grants no authority to
operate a cable television system to any person(s). Such grants
are only made by the adoption of a separate ordinance awarding
a specific franchise to an applicant who has complied with the
provisions of this Ordinance.
(b) Each application for a franchise to construct,
operate, or maintain any cable television systems in this City
shall be filed with the City Clerk and shall contain or be
accompanied by the following:
(1) the name, address, and telephone number
of the applicant;
(2) a detailed statement of the corporate or
other business entity organization o£ the applicant,
including but not limited to, the following and to
whatever extent required by the City.
(i) The names,
addresses o£ all officers,
residence and business
directors, and associates
of the applicant.
(ii) The names, residence and business
addresses of all officers, persons and entities
having, controlling, or being entitled to have or
control of 5% or more of the ownership of the
applicant and the respective ownership share of
each such person or entity.
(iii) The names and addresses of any parent
or subsidiary of the applicant, namely, any other
business entity owning or controlling applicant in
whole or in part or owned and controlled in whole or
in part by the applicant, and a statement describing
the nature of any such parent or subsidiary business
entity, including but not limited to cable television
systems owned or controlled by the applicant, its
parent and subsidiary and the areas served thereby.
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(iv) A detailed description of all
previous experience of the applicant in providing
cable television system service and in related or
similar fields.
(v)
A
detailed and
complete financial
statement of
the
applicant.
(vi) A statement identifying, by place
and date, any other cable television franchises
awarded to the applicant, or its parent or sub-
sidiary; the status of said franchises with respect
to completion thereof; the total cost of completion
of such systems; and the amount of applicant's and
its parent's or subsidiary's resources committed to
the completion thereof.
(3) A thorough, detailed description of the
proposed cable television system and plan of operation of
the applicant which shall include, but not be limited to,
the following:
(i) A detailed map indicating all areas
proposed to be served, and a proposed time schedule
for the installation of all equipment necessary to
become operational throughout the entire area to be
served.
(ii) A detailed, informative and referenced
statement describing the actual equipment and opera-
tional standards proposed by the applicant. In no
event shall said operational and performance standards
be less than those adopted by the Rules and Regulations
of the Federal Communications Commission (contained
in Title 47, Subpart K, Sections 76.601 et. seg. 9),
and as augmented and modified by the CATV franchise
awarded.
(iii) A detailed estimate of the cost of
constructing the applicant's proposed system.
(iv) A copy of the form of any agreement,
undertaking or other instrument proposed to be entered
into between the applicant and any subscriber.
(v) A detailed statement setting forth in
its entirety any and all agreements and undertakings,
whether formal or informal, written, oral, or implied,
existing or proposed to exist between the applicant and
any person, firm or corporation which materially relate
or pertain to or depend upon the application and the
granting of the franchise.
(vi) A statement or schedule setting forth
all proposed classifications of rates and charges to
be made against subscribers and all rates and charges
as to each of said classifications, including installa-
tion charges and service charges.
(4) A copy of any agreement existing between the
applicant and any public utility subject to regulation by
the California Public Utilities Commission providing £or
the use of any facilities of the public utility, including
but not limited to poles, lines or conduits, within the
City and/or adjacent areas.
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(5) Any other details, statements, information
or references pertinent to the subject matter of such
application which shall be required or requested by the
Council, or by any provision of any other Ordinance of
the City.
(6) An application fee in a sum to be set by
the City Manager which shall be in the form of cash,
certified or cashier's check, money order, to pay the
costs of studying, investigating, and otherwise processing
such application, and which shall be in consideration
thereof and not returnable or refundable in whole or in
part, except to the extent that such fee exceeds the
actual costs incurred by the City in studying, investigat-
ing and otherwise processing the application; provided,
that any applicant who shall deliver to the City Clerk a
written withdrawal of or cancellation of any application
hereunder, not later than the seventh (7th) day next
following the day such application is received by the City
Clerk, shall be entitled to have returned and refunded the
sum of 500 of the fee less any actual costs or expenses
incurred by the City by reason of such application.
(c) The Council may, by advertisement or otherwise,
solicit for any other applications for cable television system
franchises, and may determine and fix any date upon or after
which the same shall be received by the City, or the date before
which the same shall not be received, and may make any other
determinations and specify any other times, terms, conditions
or limitations respecting the soliciting, calling for, making
and receiving of such applications.
(d) Upon receipt of any application for franchise,
the Council shall refer the same to the City Manager who shall
prepare a report and make his recommendations respecting such
application, and cause the same to be completed and filed with
the Council within ninety (90) days.
(e) In making any determination hereunder as to any
application the Council shall give due consideration to the
character and quality of the service proposed, rates to sub-
scriber, income to the City, experience, character, background,
and financial responsibility of any applicant, and its manage-
ment and owners, technical and performance quality of equipment,
willingness and ability to meet construction and physical
requirements, and to abide by policy conditions, franchise
limitations and requirements, and any other consideration
deemed pertinent by the Council for safeguarding the interest
of the City and the public. The Council, in its discretion,
shall determine the award of any franchise on the basis of such
considerations and without competitive bidding.
(f) If the Council shall determine to reject such
application, such determination shall be final and conclusive,
and the same shall be deemed rejected.
(g) If the Council shall determine to further consider
the application, the following shall be done:
(1) The Council shall decide and specify the
terms and conditions of any franchise to be granted
hereunder and as herein provided.
(2) The Council shall pass its resolution of
intention to consider the granting of such a franchise,
giving notice to receipt of the application(s), and
describing the character of the franchise desired,
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stating the name of the proposed Grantee, the character
of the franchise, the terms and conditions upon which
such franchise is proposed to be granted, including but
not limited to, the rates proposed to be charged; that
copies of the proposed franchise may be obtained at the
office of the City Clerk, fixing and setting forth a
time and public place certain when and where interested
parties may inspect all the bona fide applications,
fixing and setting forth a day, hour, and place certain
when and where any persons having any interest therein
or objection to the granting thereof may file written
protests and appear before the Council and be heard, and
directing the City Clerk to publish said resolution at
least once within ten (10) days of the passage thereof
in a newspaper of general circulation within the City.
(h) At the time set for the hearing, or at any
adjournment thereof, the Council shall proceed to hear all
written protests. Thereafter, the Council shall make one of
the following determinations:
(1) That such franchise be denied; or
(2) That such franchise be granted upon
such conditions as the Council deems appropriate,
which conditions may include, on a not to exceed
basis, where in accordance with appliable FCC
regulations and State laws:
(i) charges for installation;
(ii) subscriber rates;
service rates for separate classi-
fications of service such as additional connections.
(i) I£ the Council shall
determine
that a franchise be
deniedI such determination shall
be
expressed
by resolution; if
the Council shall determine that
franchise
be
granted, such
determination shall be expressed
by
ordinance
granting a franchise
to the applicant. The action of
the
Council
shall be final and
conclusive.
SECTION 7. Applications for Franchise Renewal.
(a) Any franchise may be renewed for a term not to
exceed fifteen (15) years, at any time prior to the expiration
of the same. An application therefore shall be submitted to the
City Manager containing the following information:
(1)
(j) The Grantee
shall pay to the
City a sum of money
sufficient
to reimburse it
for all expenses
incurred by the
provisions
of this Ordinance.
Such payment
shall be made within
thirty (30)
days after the
City furnishes the Grantee with a
written statement of such
expenses.
SECTION 7. Applications for Franchise Renewal.
(a) Any franchise may be renewed for a term not to
exceed fifteen (15) years, at any time prior to the expiration
of the same. An application therefore shall be submitted to the
City Manager containing the following information:
(1)
the information
required
pursuant to
Section 6 (b)
(1) and (2) hereof;
area;
(2) a
map of
the area
proposed to be included
in the franchise
service
area;
(3) a schedule of rates and charges proposed;
(4) a narrative and/or pictorial description
of the facilities in place, and a narrative description
of proposed additions and/or replacements thereto, if any.
-11-
(b) Upon receipt of such an application the City
Manager shall review the same and forward to the City Council a
report containing the recommendation as to whether the renewal
franchise should be granted or not. Upon receipt of such a
report, the City Council shall conduct a public hearing, noticed
as is provided in subsection 6 (g) (2) hereof. At the time of
such hearing, or continuance thereof, the City Council shall,
based upon the application, report, and relevant evidence
received, determine whether the public interest, convenience
and necessity require the issuance of such franchise. If the
City Council determines to deny the application for renewal,
it shall do so by resolution. If it determines that the said
franchise should be granted, it shall do so in the manner
provided in subsection 6 (h) (2) hereof. In the event of non-
renewal or termination of a franchise, the City hereby agrees
to purchase, or to require any successor Grantee to purchase,
Grantee's facilities at a cost not to exceed its then fair
market value, with a reduction for any uncompensated damages
incurred by the City in connection with the Grantee's operation.
If such fair market value cannot be agreed upon by the parties,
it shall be determined by a three-member Arbitration Panel, one
member to be selected by the City Council, one by the franchisee,
and the third member by the two members first named. The parties
shall divide expenses of arbitration evenly among themselves.
SECTION 8. Acceptance of the Franchise.
(a) No franchise granted under this Ordinance shall
become effective for any purpose unless and until written
acceptance thereof shall have been filed with the City Clerk.
Written acceptance, which shall be in the form and substance
approved by the City Attorney, shall also be and operate as an
acceptance of each and every term and condition and limitation
contained in this Ordinance, or in such franchise, or otherwise
specified as herein provided.
(b) The written acceptance shall be filed by the
Grantee not Later than 12:01 o'clock P.M. of the fortieth (40th)day
nextfollowing the effective date of the ordinance granting such
franchise.
(c) In default of the filing of such written accep-
tance as herein required, the Grantee shall be deemed to have
rejected and repudiated the franchise. Thereafter, the accep-
tance of the Grantee shall not be received nor filed by the
City Clerk. The Grantee shall have no rights, remedies, or
redress in the premises, unless and until the Council, by
resolution, shall determine that such acceptance be received
or filed, and then upon such terms and conditions as the Council
may impose.
(d) In any case, and in any instance, all rights,
remedies and redress in these premises which may or shall be
available to the City, shall at all times be available to the
City, and shall be preserved and maintained and shall continu-
ously exist in and to the City, and shall not be in any manner
or means modified, abridged, altered, restricted, or impaired
by reason of any of these premises, or otherwise.
(e) Any franchise granted and accepted under this
Ordinance shall be in lieu of any and all other rights, privi-
leges, powers, immunities, and authorities owned, possessed,
controlled, or exercisable by the Grantee, of or pertaining to
the construction, operation, or maintenance of any cable
television systems, in the City.
-12-
SECTION 9
Cable Television Service.
(a) Basic Service. The cable television system, to
be installed and operated pursuant to a franchise granted
hereunder shall:
(1) be operationally capable of relaying to
subscriber terminals those television and radio broadcast
signals for the carriage of what the Grantee is now or
thereafter authorized by the Federal Communications
Commission; and
(2) distribute color television signals
which it received in color; and
(3) provide channel capacity and basic
equipment for program production in cablecasting for
educational and public access uses, and for use of the
City. Until there is demand for full channel -time use,
such may be combined on one or more channels;
(4) have a minimum capacity of 35 channels;
(5) as a minimum, have the capability of being
converted at any time to provide full reverse trans-
mission (two-way transmission) in any portion of the
system or trunk by adding appropriate reverse amplifier
modules. Further, the two-way capability shall be fully
activated from production facilities in those schools
specified in the franchise ordinance(s) granted hereunder.
(b) Non -basic Services. The cabletelevisionsystem
.
permitted to be installed and operated hereunder, may also
engage in the business of:
(1) transmitting original cablecast programming
not received through television broadcast signals;
(2) transmitting television pictures, film
and video-tape programs, not received through broadcast
television signals, whether or not encoded or processed -
to permit reception by only selected receivers or
subscribers;
(3) transmitting and receiving all other
signals: digital, voice and audio-visual, etc.
(c) Public Service. With respect to both the basic
and non -basic services, the Grantee shall provide all basic
subscriber services, those non -basic services so stipulated in
the franchise granted, and a tie-in connection;
(1) without costs, to public schools within
the City; and
(2) without costs, as designated by the City
Council, to buildings owned and controlled by the City,
used for public purposes but not for residential use
(fire and police stations excepted for basic subscriber
services); and
(d) Emergency Service. The Grantee shall design and
construct the system to provide for a restricted audio override
o£ all audio channels during emergencies. An emergency power
source shall be provided by the Grantee at the headend of the
system.
-13-
SECTION 10. Technical Requirements.
(a) The CATV system to be constructed by the Grantee
shall be installed, maintained, and operated at all times in
full compliance with the technical and channel capacity standards
of the FCC, as augmented and modified by the CATV franchise
awarded. The results of annual performance tests conducted in
accordance with Section 76.601 (c), FCC Rules (or such other
section of the Rules as shall incorporate its substance) shall
be retained for at least 5 years and available for inspection by
the City.
(b) It is the desire of the City that all cable
television systems franchised hereunder shall, insofar as
financially and technically possible, be compatible one with
another and with systems adjacent to the City.
SECTION 11. Service Standards
(a) Throughout the life of its franchise, and in
addition to other service regulations adopted by the Council,
and excepting circumstances beyond Grantee's control, such as
Acts of God, riots and civil disturbances, and in providing the
foregoing services, the Grantee shall:
(1) Maintain all parts of its system in good
condition and in accordance with standards generally
observed by the cable television industry. Sufficient
employees shall be retained to provide safe, adequate
and prompt service for all its facilities.
(2) Limit system failures to minimum time
duration by locating and correcting malfunctioning as
promptly as is reasonably possible, irrespective of
holidays or other non -business hours;
(3) Maintain a conveniently located business
office and service center to which subscribers may
telephone without incurring added message units or toll
charges. This office shall be open during all usual
business hours, with its telephone listed in directories
of the telephone company serving the City, and be so
operated that complaints and requests for repairs or
adjustments may be received by telephone at any time
when any television signals are being broadcast.
(4) Dispatch personnel to investigate all
service complaints and equipment malfunctions within
24 hours and strive to render efficient service to
resolve such complaints as promptly as possible.
Planned interruption of service shall be only for good
cause. Insofar as possible, planned service interrup-
tions shall be preceded by notice, be of brief duration -
and occur during minimum viewing hours.
(5) Maintain a complete list of all complaints
received and the measures taken to resolve them in form
to be approved by City Manager. This list shall be
available to the City Manager upon request.
(6) Upon recurring or unresolved complaint
by subscriber(s), make a demonstration satisfactory to
the City Manager that a signal is being delivered which
is of sufficient strength and quality to meet the
standards set forth in the regulations of the Federal
Communications Commission and as augmented and modified
by the CATV franchise, or in regulations hereafter
adopted by the City;
-14-
(7) Permit the City Engineer of his designated
representative to inspect and test the system's technical
equipment and facilities upon reasonable (12-24 hours')
notice.
(8) Upon termination of service to any sub-
scriber, a Grantee shall promptly remove all its facili-
ties and equipment from the premises of such subscriber
upon his request._
(b) Responsibility for the administration of any
franchise granted hereunder and for the resolution of all
complaints against a Grantee regarding the quality of service,
equipment malfunctions, and similar matters, is hereby delegated
to the City Manager who is empowered, among other things, to
adjust, settle, or compromise any controversy arising from
operations of the Grantee either on behalf of the City, the
Grantee, or any subscriber, in accordance with the best interest
of the public; provided that any person aggrieved by a decision
of the City Manager may appeal the matter to the City Council
for hearing and determination. The City Council may accept,
reject, or modify the decision of the City Manager, and may
adjust, settle, or compromise any controversy arising from the
operations of the Grantee under any franchise granted pursuant
to this Ordinance. No adjustment, settlement, or compromise,
whether instituted by the City Manager or by the City Council
shall be contrary to the provisions of this Ordinance or of the
franchise agreement, and neither the City Manager nor the City
Council, in the adjustment, settlement, or compromise of any
controversy shall have the right or authority to add to, modify,
or delete any provision of this Ordinance or of the franchise.
The Grantee shall notify subscribers at the time of initial
subscription to the system of the procedure for reporting and
resolving complaints by delivering to each subscriber a notice
in form approved by the City Manager.
SECTION 12. Safety Requirements.
A Grantee shall, at all times:
(a) Install and maintain its wires, cables, fixtures
and other equipment in accordance with the requirements of the
City's Building Code and Electrical Safety Ordinances, and in
such manner that they will not interfere with any installations
of the City.
(b) Keep and maintain in a safe, suitable, substantial
condition, and in good order and repair, all its structures,
lines, equipment, and connections in, over, under, and upon the
streets, sidewalks, alleys, and public ways or places of the
City, wherever situated or located.
SECTION 13. Conditions on Street Occupancy.
(a) Any pavements, sidewalks, curbing or other paved
area taken up or any excavations made by a Grantee shall be done
under permits issued for the work by the proper officials of the
City, and under their supervision and direction, and shall be
done in such manner as to give the least inconvenience to the
inhabitants of the City. A Grantee shall, at its own cost and
expense, and in a manner approved by the proper City officials,
replace and restore any such pavements, sidewalks, curbing or
other paved areas in as good a condition as before the work
involving such disturbance was done, and shall also make and
keep full and complete plats, maps and records showing the exact
locations of its facilities located within the public streets,
ways, and easements of the City. These maps shall be available
for inspection at any time during business hours by City officials.
-15-
(b) A Grantee shall, at its expense, protect, support,
temporarily disconnect, relocate, or remove, any of its property
when required by the City by reason of traffic conditions,
public safety, road construction, change of street grade,
installation of sewers, drains, water pipes, power lines, signal
lines, tracks, or any other type of municipal improvements;
provided, however, that the Grantee shall, in all cases, have
the privilege of abandoning any property in place. If the City
requests substantial relocating, it shall compensate Grantee in
the amount of its relocation costs.
(c) A Grantee shall, on the request of any person
holding a building moving permit issued by the City, temporarily
raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal or raising or lowering of
wires shall be paid by the person requesting same, and the
Grantee shall have the authority to require such payment in
advance. The Grantee shall be given not less than 48 hours'
advance notice to arrange for such temporary wire changes.
(d) A Grantee shall have authority'to trim the trees
upon and overhanging the public streets so as to prevent the
branches of such trees from coming in contact with the wires
and cables of the Grantee, except that, at the option of the
City Council, such trimming may be done by it or under its
supervision and direction at the expense of the Grantee.
(e) In all sections of the City where the cable,
wires, or other similar facilities of public utilities are
placed underground, the Grantee shall place its cables, wires
or other like facilities underground to the maximum extent that
existing technology reasonably permits the Grantee to do so.
(f) In all sections of the City where wires, cables,
and other system appurtenances are mounted above ground, every
reasonable effort shall be made to minimize obstruction of the
view of residents, and every reasonable effort shall be made to
preclude an unsightly system installation.
SECTION 14. Indemnifications.
(a) Upon being granted a franchise, and upon filing
of the acceptance required, the Grantee shall, at his sole
expense, obtain, file with the City Clerk, and thereafter
maintain during the full term of such franchise or any renewal
thereof plus an additional six months thereafter, a corporate
surety bond or other adequate surety agreement in such form and
amount, not to exceed the penal sum of Five Hundred Thousand
($500,000) Dollars, as shall have been approved by the City
Manager.
(b) Within thirty (30) days after the effective date
of any franchise, the Grantee shall deposit into a bank account,
established by the City Manager, and maintain on deposit through
the term of the franchise, a security fund of not less than
fifty Thousand ($50,000) Dollars, as security of faithful
performance by it of all provisions of the franchise, and com-
pliance with all orders, permits and directions of any agency
of the Grantor having jurisdiction over its acts or defaults
under the contract, and 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. The
Grantee shall be entitled to all interest earned on such account.
-16-
(1) Within thirty (30) days after notice to
it that any amount has been withdrawn by the City from
the security fund pursuant to subdivision (b) of this _
Section, the Grantee shall deposit a sum of money
sufficient to restore such security fund to the original
amount of Thousand ) Dollars.
(2) If the Grantee fails, after ten (10) days'
notice to pay to the City any taxes due and unpaid; or,
fails to repay to the City within such ten (10) days,
any damages, costs or expenses which the City shall be
compelled to pay by reason of any act or default of the
Grantee in connection with the franchise; or, fails,
after thirty (30) days' notice of such failure by the
Grantor to comply with any provision of the franchise
which the Grantor reasonably determines can be remedied
Dy an expenditure of the security, the City Manager may
immediately withdraw the amount thereof, with interest
and any penalties, from the security fund. Upon such
withdrawal, the City Manager shall notify the Grantee of
the amount and date thereof.
(3) The security £und deposited pursuant to
this section shall become the property of the City in
the event that the franchise is cancelled by reason of
default of the Grantee or revoked for cause. The Grantee,
however, shall be entitled to the return of such security
fund, or portion thereof, as remains on deposit at the
expiration of the term of the franchise, or upon termina-
tion of the franchise at an earlier date, provided that
there is then no outstanding default on the part of the
Grantee.
(4} 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 ordinance,
the franchise, or authorized by law, and no action, pro-
ceeding or exercise of a right with respect to such
security fund shall affect any other right the Grantor
may have.
(c) By accepting a franchise, each Grantee shall be
deemed to have agreed to indemnify and hold harmless the City,
its officers, boards, commissions, agents, and/or employees
against and from any and all claims, demands, causes of actions,
actions, suits, proceedings, damages (including but not limited
to, damages to City property and damages arising out of copy-
right infringements, and damages arising out of any failure by
Grantee to secure consents from the owners, authorized distri-
butors or licensees of programs to be delivered by Grantee's
cable television system), costs or liabilities (including costs
or liabilities of the City with respect to its employees), of
every kind and nature whatsoever, including but not limited to
damages for injury or death or damage to person or property,
and regardless of the merit of any of the same, and against all
liability to others, and against any loss, cost, and expense
resulting or arising out of any of the same, including any
attorney fees, accountant fees, expert witness or consultant
fees, court costs, per diem expense, traveling and transportation
expense, or other costs or expense arising out of or pertaining
to the exercise or the enjoyment of any franchise hereunder by
Grantee, or the granting thereof by the City.
(d)
The Grantee
shall at
the sole
risk and expense
of Grantee, upon demand of
the City,
made by
and through the
City Attorney,
appear in and
defend
any and
all suits, actions,
or other legal
proceedings,
whether
judicial,
quasi-judicial,
-17-
administrative, legislative, or otherwise brought or instituted
or had by third persons or duly constituted authorities,
against or affecting the City, its officers, boards, commissions,
agents, or employees, and arising out of or pertaining to the
exercise or the enjoyment of such franchise, or the granting
thereof by the City.
(1)
Alternatively, in the discretion
of the
City Manager,
the City may, on
behalf of itself,
and/or
any of its officers,
agents or
employees, elect
to employ,
at Grantee's
expense, attorneys
to appear and defend
such
actions.
(2) The Grantee shall pay and satisfy and
shall cause to be paid and satisfied any judgment, decree,
order, directive, or demand rendered, made or issued
against Grantee, the City, its officers, boards, commis-
sions, agents, or employees in any of these premises;
and such indemnity shall exist and continue without
reference to or limitation by the amount of any bond,
policy of insurance, security deposit, undertaking or
other assurance required hereunder, or otherwise; pro-
vided, that neither Grantee nor City shall make or enter
into any compromise or settlement of any claim, demand,
cause of action, action, suit or other proceedings,
without first obtaining the written consent of the other.
(e) Upon being granted a franchise, and upon the
filing of the acceptance required under Section 8 hereof, the
Grantee shall file with the City Clerk and shall thereafter,
during the entire term of such franchise, maintain in full
force and effect each of the following policies of insurance:
(1) General Comprehensive Liability Insurance
in a form satisfactory to and an amount approved by the
City Attorney, together with Bodily Injury and property
damage liability insurance with such limits as may be
required by the City Council but not less than One
Million Dollars ($1,000,000) for each person injured,
and Two Million Dollars ($2,000,000) aggregate per single
accident or occurrence, and One Million Dollars ($1,000,000)
for property damage. The City shall be named as an addi-
tional insured on all -such insurance policies and such
policies shall provide they cannot be cancelled unless at
least thirty (30) days prior written notice of intent to
terminate or cancel has been given to the City.
(i) The City shall be named as an addi-
tional insured in any of said insurance policies.
(ii) Where such insurance is provided by
a policy which also covers Grantee or any other
entity or person, it shall contain the standard
cross -liability endorsement.
(2) Workers Compensation Insurance coverage in
at least the minimum amounts required by law. If a Grantee
fails to obtain or maintain such required insurance cover-
age, the City may without notice to Grantee, obtain, at
Grantee's sole expense, such coverage, or forthwith
terminate, without prior notice, the franchise as granted.
SECTION 15. Franchise Payments.
(a) In consideration of the granting and exercise of
a franchise to use the streets, as herein defined, for the
operation of a cable television system, any Grantee shall pay
to the City, during the life of the franchise the following:
-18.
(1) a percentage of its Gross Annual Basic
Subscriber Revenues;
(2) a percentage of its Gross Annual Non -
basic Service Revenues;
(3) a percentage of its Gross Annual
Advertising Revenues;
(4) a percentage of its Gross Annual Lease
Revenues.
(b) The percentage payments shall be made in the
manner, amounts and at times directed in said franchise or in a
Council resolution fixing franchise fees and adopting rules for
service and rate regulation.
(c) At the discretion of the City Council, a percen-
tage or portion of the Franchise Payments may be ear -marked to
assist in the funding of certain non -basic services, e.g., local
and educational access, etc.
(d) A Grantee shall file with the City Clerk, within
90 days after the expiration of any calendar year or portion
thereof during which its franchise is in force, a financial
statement certified by a responsible officer of the Grantee,
showing in detail the Gross Subscriber Revenues, as defined
herein, of the Grantee during the preceding calendar year or
portion thereof. Additionally, Grantee shall submit to the
City copies of all FCC Form 325 and 326 reports (and any future
revisions or replacements thereof) within ten days after sub-
mission to the FCC.
(e) The City shall have the right to inspect the
Grantee's local records to determine if proper payments have
been made to the City. The cost of such audits shall be borne
by Grantee if the same results in increasing, by more than 2%,
the Grantee's annual payment to the City.
(f) No acceptance of any payment shall be construed
as a release or as an accord and satisfaction of any claim the
City may have for further or additional sums payable under
this Ordinance or for the performance of any other obligation
hereunder.
SECTION 16. Rates and Charges. Except when and as
preempted by FCC Regulations and State laws, the following
stipulations and procedures apply to the rates and charges
associated with the providing of services under a franchise
granted in accordance with the provisions of this Ordinance.
(a) The initial schedule of rates and charges to be
utilized by the Grantee shall be those in the Grantee's franchise
application, and shall be firm for a period o£ at least one year
following delivery of service. Once established, no rate or
charge shall be increased at any time after granting of a
franchise, without prior approval of the City Council. In
addition to the power to regulate rates and charges, the City
hereby reserves the right to adopt regulations governing
Grantee's connection and reconnection charges, policies and
procedures, and the availability of refunds.
(b) Should
the Grantee desire to change any
rate or
charge, it shall file
a petition with the
City Council
at least
ninety (90) days prior
to the proposed date
of change.
The
petition shall detail
the proposed changes
and set forth
the
reason changes are desired.
The petition
shall include
system
historical financial
data (balance sheets
and detailed
profit
and loss statements)
for the period since
commencement
of
system operations or
the previous five (5)
years, whichever
is
the lesser.
-19-
(c) Council determination of proper rates and charges
shall be based on factors considered important by Council, which
shall include, but not limited to: the quality of signal
delivered to subscribers, the quality of service provided to
subscribers, channel capacity, number and quality of programming
sources, and underlying economics of the system (system cash
flow, Grantee return on investment, etc.). In this regard, the
City reserves the right to inspect all of the Grantee's property
and records in adjudging the merits of a request for increase
in rates and/or charges.
(d) In connection with any proposed increase in any
rate or charge, the Council may direct the City Manager to
conduct a hearing on the matter. If so directed, the City
Manager shall set the day, hour, and place certain when and
where any person having any interest therein may appear and be
heard. This hearing should normally be conducted within sixty
(60) days from date of receipt of petition. The notice of a
public hearing on the matter should be published at least ten
(10) days before the date of the hearing in a newspaper of
general circulation within the City.
(e) At the time set for such hearing, or at any
adjournment thereof, the City Manager shall hear the matter.
Following the close of such hearing, the City Manager shall
prepare and file with the City Council a report of the hearing,
and his recommendations and the reasons therefore. After receipt
of the City Manager's report, the Council shall determine
whether to adopt the report or to hold a further hearing. If
the Council elects to adopt the recommendations of the City
Manager, it shall do so by resolution. If it elects to conduct
a hearing thereon, it shall adopt a resolution of _intention to
do so, describing and stating the proposed increase or decrease
in rates or charges; fixing and setting forth a day, hour, and
place certain when and where any persons having any interest
therein may appear before the Council and be heard. Such reso-
lution shall direct the City Clerk to publish the same resolution
at least once within ten (10) days of the passage thereof in a
newspaper of general circulation within the City. The City Clerk
also shall cause a copy of such resolution to be mailed to the
Grantee at least ten (10) days prior to the date specified for
hearing thereon. At the time set for such hearing, or at any
adjournment thereof, the Council shall hear and decide the matter.
(£) No rate established shall afford any undue pre-
ference or advantage among subscribers, but separate rates may
be established for separate classes of subscribers and rates
may reflect the increased cost of providing service to isolated
or sparsely populated areas.
SECTION 17. Permits and Construction.
(a) Wn thirty (30) days after acceptance of
franchise, the Grantee shall proceed with due diligence to
obtain all necessary permits and authorizations which are
required in the conduct of its business, including, but not
limited to, any utility joint use attachment agreements,
encroachment permits, microwave carrier licenses, and any other
permits, licenses and authorizations to be granted by duly
constituted regulatory agencies having jurisdiction over the
operation of cable television systems, or associated microwave
transmission facilities.
In connection therewith, copies of all petitions,
applications and communications submitted by the Grantee to
the Federal Communications Commission, Securities and Exchange
Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affect-
ing Grantee's cable television operations, shall also be
-20-
submitted simultaneously to the City Manager.
(b) Within sixty (60) days after obtaining all
necessary permits, licenses and authorizations, including
right of access to poles and conduits, Grantee shall commence
construction and installation of the cable television system.
(c) Within one hundred eighty (180) days after the
commencement of construction and installation of the system,
Grantee shall proceed to render service to subscribers, -and -the
completion of the installation and construction shall be pur-
sued with reasonable diligence thereafter, so that service to
all of the areas designated and scheduled on the map and plan
of construction made part of the franchise shall be provided
as set forth therein.
(d) Failure on the part of the Grantee to commence
and diligently pursue each of the foregoing requirements and to
complete each of the matters set forth herein, shall be grounds
for termination of such franchise. By resolution, the Council,
in its discretion, may extend the time for the commencement and
completion of installation and construction for additional
periods in the event the Grantee, acting in good faith, experi-
ences delays by reason of circumstances beyond his control.
(e)
The Grantor
may, at its
sole option, apply any of
the following
penalties in
connection
with delays in system
construction,
provided that no penalty
may be imposed for delays
that are the
result of causes beyond the
control and without the
fault or negligence
of the
Grantee; in
any case, the Grantor
shall be the
sole judge as
to the cause,
fault or negligence
involved:
(1) Reduction in the duration of the franchise
period on a two-month-for-cne-month basis -for each -month --
of delay exceeding twenty (20) percent of the construc-
tion time proposed by the Grantee and accepted by the
Grantor in the award of the franchise.
(f) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and shall not construct
or install any new, different, or additional poles, conduits,
or other facilities whether on public property or on privately -
owned property unless and until first securing the written
approval of the City Manager.
Whenever Grantee shall not utilize existing poles,
conduits and other facilities, or whenever existing conduits and
other facilities shall be located beneath the surface of the
streets, or whenever the City shall undertake a program desig-
nated to cause all conduits and other facilities to be located
beneath the surface of the streets in any area or throughout
the City, in the exercise of its police power or pursuant to
the terms hereof, upon reasonable notice to Grantee, the City
may require any such to be constructed, installed, placed, or
replaced beneath the surface of the streets. Any construction,
installation, placement, replacement, or changes which may be
so required shall be made at the expense of Grantee, whose
costs shall be determined as in the case of public utilities.
(g) The City shall have the right, free of charge, to
make additional use, for any public or municipal purpose, whether
governmental or proprietary, of any poles, conduits, or other
similar facilities erected, controlled, or maintained exclusively
-21-
(2)
Forfeiture
of performance bonds
for delays
exceeding
six
months.
(f) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and shall not construct
or install any new, different, or additional poles, conduits,
or other facilities whether on public property or on privately -
owned property unless and until first securing the written
approval of the City Manager.
Whenever Grantee shall not utilize existing poles,
conduits and other facilities, or whenever existing conduits and
other facilities shall be located beneath the surface of the
streets, or whenever the City shall undertake a program desig-
nated to cause all conduits and other facilities to be located
beneath the surface of the streets in any area or throughout
the City, in the exercise of its police power or pursuant to
the terms hereof, upon reasonable notice to Grantee, the City
may require any such to be constructed, installed, placed, or
replaced beneath the surface of the streets. Any construction,
installation, placement, replacement, or changes which may be
so required shall be made at the expense of Grantee, whose
costs shall be determined as in the case of public utilities.
(g) The City shall have the right, free of charge, to
make additional use, for any public or municipal purpose, whether
governmental or proprietary, of any poles, conduits, or other
similar facilities erected, controlled, or maintained exclusively
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(3)
Termination of the
franchise for delays
exceeding
one
year.
(f) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and shall not construct
or install any new, different, or additional poles, conduits,
or other facilities whether on public property or on privately -
owned property unless and until first securing the written
approval of the City Manager.
Whenever Grantee shall not utilize existing poles,
conduits and other facilities, or whenever existing conduits and
other facilities shall be located beneath the surface of the
streets, or whenever the City shall undertake a program desig-
nated to cause all conduits and other facilities to be located
beneath the surface of the streets in any area or throughout
the City, in the exercise of its police power or pursuant to
the terms hereof, upon reasonable notice to Grantee, the City
may require any such to be constructed, installed, placed, or
replaced beneath the surface of the streets. Any construction,
installation, placement, replacement, or changes which may be
so required shall be made at the expense of Grantee, whose
costs shall be determined as in the case of public utilities.
(g) The City shall have the right, free of charge, to
make additional use, for any public or municipal purpose, whether
governmental or proprietary, of any poles, conduits, or other
similar facilities erected, controlled, or maintained exclusively
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by or for Grantee in any street, provided such use by City does
not interfere with the use by Grantee.
(h) In those areas of the City where the transmission
or distribution facilities of the respective public utilities
providing telephone, communication and electric services are
underground, or hereafter are placed underground, the Grantee
likewise shall construct, operate and maintain all of his
transmission and distribution facilities underground. When
directed by the City, as a result of the Council designating an
underground utility/CATV district in accordance with Chapter 28
of the City Code, previously installed aerial cable shall be
undergrounded in concert, and on a cost-sharing basis, with the
utility companies involved pursuant to the general ordinances
of the City or applicable State laws.
The term '°underground" shall include a partial
underground system; provided, that upon obtaining the written
approval of the City Manager, amplifiers in the Grantee's
transmission and distribution lines may be placed in appropriate
housing upon the surface of the ground.
(i) The Grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of
Grantee when, in the opinion of the City Manager the same is
required by reason of traffic conditions, public safety, street
vacation, freeway or street construction; change or establishment
of street grade, 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 of public improvement, including
but not limited to movement of buildings, urban renewal and
redevelopment, and any general program under which the City shall
undertake to cause all such properties to be located beneath the
surface of the ground. The Grantee shall in all cases have the
privilege, subject to the corresponding obligations, to abandon
any property of Grantee in place, as herein provided. Nothing
hereunder shall be deemed a taking of the property of Grantee,
and Grantee shall be entitled to no surcharge by reason of
anything hereunder.
(j) Upon the failure, refusal, or neglect of Grantee
to cause any work or other act required by law or hereunder to
be properly completed in, on, over, or under any street within
any time prescribed therefore, or upon notice given, where no
time is prescribed, the City Manager may cause such work or other
act to be completed in whole or in part, and upon so doing shall
submit to Grantee an itemized statement of the costs thereof.
The Grantee shall, within thirty (30) days after receipt of such
statement, pay to the City the entire amount thereof.
k) In the event that,
(1) the use of any part of the system of
Grantee is discontinued for any reason for a continuous
reriod of thirty (30) days, without prior written
notice to and approval by the City; or
(2)
any part of
such
system has been
installed in
any street or
other
area without comply-
ing with the
requirements
hereof;
or
(3) any franchise shall be terminated,
cancelled or shall expire, then the Grantee shall, at
the option of the City, and at the expense of Grantee
and at no expense to the City, and upon demand of the
City, promptly remove from any streets or other area
all property of Grantee, and Grantee shall promptly
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restore the street or other area from which such
property has been removed to such condition as the
City Manager shall approve;
the Council may, upon written application therefore by Grantee,
approve the abandonment of any of such property in place by
Grantee. Upon abandonment of any such property in place, Grantee
shall cause to be executed, acknowledged, and delivered to the
City such instruments as the City Attorney shall prescribe and
approve, transferring and conveying the ownership of such property
to the City.
SECTION 18. Rights Reserved to the City.
(a) Nothing herein shall be deemed or construed to
impair or affect, in any way, to any extent, the right of the
City to acquire the property of the Grantee, either by purchase
or through the exercise of the right of eminent domain, at a
fair and just value, which shall not include any amount for the
franchise itself or for any of the rights or privileges granted
thereby, and nothing herein contained shall be construed to
contract away or to modify or abridge, whether for a term or
in perpetuity, the City's right of eminent domain.
(b) There is hereby reserved to the City every right
and power which is required to be herein reserved or provided
by any law, and the Grantee, by its acceptance of the franchise,
agrees to be bound thereby and to comply with any action or
agreements of the City in its exercise of such rights or power,
heretofore, or hereafter enacted or established.
(c) Neither the granting of any franchise nor any
provision hereof shall constitute a waiver or bar to the
exercise of any governmental right or power of the City.
(d) The City hereby reserves to itself the right to
intervene in any suit, action, or proceeding involving any
provision of this Ordinance. The Council may do all things
which are necessary and convenient in the exercise of its
jurisdiction under this Ordinance and may determine any question
of fact which may arise during the existence of any franchise
granted hereunder. The City Manager, with the approval of the
City Attorney, is hereby authorized and empowered to adjust,
settle, or compromise any controversy or charge arising from
the operations of any Grantee under this Ordinance, either on
behalf of the City, the Grantee, or any subscriber, in the
best interest of the public.
(e) The City at its option, when for sufficient cause
as deemed by the City Manager, may require that the annual per-
formance test, addressed in Section 10 (a), supra, be conducted
or observed by a qualified member of the City's staff or its
designated representative. The City reserves the right to have
the measurements, associated with City observed performance
tests, conducted at City selected test points and to a greater
number of test points than the minimum required by Section
76.6011 FCC Rules. Additionally, the Grantee shall reimburse
the City for all expenses incurred by it in connection with the
City conducting or observing the annual performance tests, when
the results of those tests are deemed by the City to fall below
a 900 level of compliance with the minimum technical standards
set forth by Section 76.605 of FCC Rules, as augmented and
modified in the CATV franchise awarded.
(f) Any delegable right, power or duty of the City
Council, the City, or any officials of the City may be trans-
ferred or delegated by resolution to an appropriate officer,
employee, or department of the City.
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SECTION 19. Rules and Regulations. The Council shall
adopt rules and regulations relating to standards of operation.
(a) At any time, the Council may adopt reasonable
rules, regulations and standards governing the operation of
cable television systems in the City; consistent with the
provisions of this Ordinance, and the franchise. Such rules,
regulations and standards shall apply to and shall govern the
operations of the Grantee of any franchise hereunder, and are
expressly declared to be a part of any franchise hereunder.
(b) Prior to adopting any such rule, regulation or
standard, the City Council shall conduct a duly noticed hearing
thereon. At the time set for such hearing, or at any adjourn-
ment thereof, the Council shall proceed to hear any relevant
evidence relating to the matter. Thereafter, the Council, by
its resolution, may adopt, amend or modify such rules and
regulations.
(c) The standards adopted may govern the engineering,
construction, installation, service, and maintenance of all
cable television systems in the City, including but not limited
to standards governing carrier levels, signal-to-noise ratios,
hum modulation, distortion levels, channel interactions and
inter -reactions.
SECTION 20. Amendment of Ordinance and Franchise.
The City Council shall amend this Ordinance, and any
franchise issued hereunder, upon its own motion or the application
of a Grantee whenever amendment is necessary to enable a Grantee
to utilize new developments in television or radio signal trans-
mission which would improve and update cable television service
in the City, or to comply with any modifications in the Rules of
the FCC. Amendments to Section 76.31 of the FCC Rules will be
incorporated into this Ordinance within 1 year of their adoption
or at the time of franchise renewal, whichever comes first. No
amendment shall be adopted except after full, open public hearing
affording due process, and no amendment substantially amending
the existing rights and obligations of the Grantee shall be
adopted without Grantee's consent.
SECTION 21. Miscellaneous Provisions.
(a) A franchise granted to provide service within the
City shall authorize .and permit the Grantee to solicit, sell,
distribute, and make a charge to subscribers within the City for
connection to the cable television system of Grantee, and shall
also authorize and permit the Grantee to traverse any portion of
the City in order to provide service outside the City.
(b) A franchise, easement, license or other permit to
anyone other than a Grantee to traverse any portion of the City
in order to provide service outside the City shall not authorize
nor permit said person to solicit, sell, distribute, or make any
charge to subscribers within the City, nor to render any service
or connect any subscriber within the City to the cable television
service system of Grantee.
(c) When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be filed with
the City Clerk.
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SECTION
22. Equal
Opportunity
Employment and
Affirmative Action
Plan.
(a) In the carrying out of the construction, main-
tenance and operation of the cable television system, the
Grantee shall not discriminate against any employee or applicant
for employment because of race, creed, color, sex, or national
origin.
(b) The Grantee shall take affirmative action to
ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, creed,
color, sex, or national origin. Such action shall include, but
not be limited to, the following: employment upgrading,
demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rate of pay or other form of compensation,
and selection for training, including apprenticeship.
(c) The Grantee shall post in conspicuous places
available to employees and applicants for employment, notices
setting forth the provisions of this non -discriminating clause.
(d) The Grantee shall, in all solicitations or
advertisements for employees placed by or on behalf of the
Grantee state that all qualified applicants will receive compen-
sation for employment without regard to race, creed, color, sex,
or national origin.
(e) The Grantee shall incorporate the foregoing
requirements in all of its contracts for work relative to con-
struction, maintenance and operation of the cable television
system, other than contracts for standard commercial supplies
or raw materials, and shall -require all of its contractors for
such work to incorporate such reqirements in all subcontracts
for such work.
SECTION 23. Violations.
(a) From and after the effective date of this Ordinance,
it shall be unlawful for any person to construct, install or main-
tain within any public street in the City, or within any other
public property of the City, or within any privately -owned area
within the City which has not yet become a public street but is
designated or delineated as a proposed public street on any ten-
tative subdivision map approved by the City, any equipment or
facilities for distributing any television signals or radio
signals through a cable television system, unless a franchise
authorizing such use of such street or property or area has first
been obtained pursuant to the provisions of this Ordinance, and
unless such franchise is in full force and effect.
(b) It shall be unlawful for any person, firm or
corporation to make or use any unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise,
with any part of a franchised cable television system within
this City for the purpose of enabling himself or others to
receive or use any television signal, radio signal, picture,
program, sound, or other system service without payment to the
owner of said system.
(c) It shall be unlawful for any person, without the
consent of the owner, to willfully tamper with, remove or injure
any cables, wires or equipment used for distribution of televi-
sion signals, radio signals, pictures, programs, sound, or other
system service.
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SECTION 24. Severabili
If any section, subsection, sentence, clause or phrase
of this Ordinance is for any reason held illegal, invalid or
unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions hereof. The Council hereby declares that it
would have passed this Ordinance and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that
any one or more sections, subsections, sentences, clauses or
phrases be declared illegal, invalid or unconstitutional. The
invalidity of any portion of this Ordinance shall not abate,
reduce or otherwise affect any consideration or other obligation
required of the Grantee of any franchise granted hereunder.
SECTION 25. Notices.
Every direction, notice, or order to be served upon
a Grantee shall be sent to the local office described in Section
11 (a) (3), supra. Every notice to be served upon the City
shall be delivered, or sent by certified mail to the City Clerk
at: City Hall, 501 Primrose Road, Burlingame, California 94010.
The delivery of such notice shall be deemed to have been at the
time of receipt.
SECTION 26. Effective Date.
The City Clerk shall cause this Ordinance to be pub-
lished in the manner prescribed by law. This ordinance shall
become effective thirty (30) days from and after its passage.
PASSED AND APPROVED this 3rd day of March ; 1980
ATTEST:
r tt
City Clerk
s e_
MAYOR OF TH CIT OF BURLINGAME
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