HomeMy WebLinkAboutOrd 1175-1995ORDINANCE NO. 1175-95
AN ORDINANCE REPEALINGAND REENACTING CHAPTER 6.76
OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE RELATED
TO COMMUNITY ANTENNA TELEVISION SYSTEMS
THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Chapter 6.76 is hereby repealed in its
entirety.
SECTION 2. Chapter 6.76 of the South San Francisco
Municipal Code is hereby added to read as follows:
CHAPTER 6.76 CABLE TELEVISION FRANCHISES
Sections:
6.76.010
6.76.020
6.76.030
6.76.040
6.76.050
6.76.060
6.76.070
6.76.080
6.76.090
6.76.100
6.76.110
6.76.120
6.76.130
6.76. 140
6.76.150
6.76.160
6.76.170
6.76.180
6.76.190
6.76.200
6.76.210
6.76.220
6.76.230
6.76.240
6.76.250
6.76.260
6.76.270
6.76.280
6.76.290
6.76.300
6.76.310
6.76.320
Intent
Definition
Franchise to Install and Operate
Franchise Required
Term of the Franchise
Franchise Territory
Federal or State Jurisdiction
Franchise Non-Transferable
Geographical Coverage
Nonexclusive Franchise
Multiple Franchise
Franchise Applications
Applications - Contents
Consideration of Initial Applications
Franchise Renewal
Minimum Consumer Protection and Service
Standards
Additional Service Standards
Franchise Fee
Security Fund
Design and Construction Requirements
Technical Standards
Hold Harmless
Insurance
Records Required and Grantor's Right to Inspect
Annual Reports
Copies of Federal and State Communications
Public Reports
Complaint Report and Opinion Survey
Reserved
Reports - General
Annual Review of System Performance
Special Review of System Performance
6.76.330
6.76.340
6.76.350
6.76.360
6.76.370
6.76.380
6.76.390
6.76.400
6.76.410
6.76.420
6.76.430
Special Evaluation Sessions
Remedies for Franchise Violations
Procedure for Remedying Franchise Violations
Grantor's Power to Revoke
Force Majeure: Grantee's Inability to Perform
Abandonment or Removal of Franchise Property
Restoration by Grantor: Reimbursement of Costs
Extended Operation and Continuity of Services
Receivership and Foreclosure
Rights Reserved to Grantor
Rights of Individuals
6.76.010 Intent
The City of South San Francisco, pursuant to applicable
Federal and State law, is authorized to grant one or more
non-exclusive Franchises to construct, operate, maintain and
reconstruct Cable Television Systems within the City limits.
The City Council finds that the development of cable
television and communications systems has the potential of having
great benefit and impact upon the residents of South San Francisco.
Because of the complex and rapidly changing technology associated
with cable television, the City Council further finds that the
public convenience, safety and general welfare can best be served
by establishing regulatory powers which should be vested in the
City or such Persons as the City may designate. It is the intent
of this Chapter and subsequent amendments to provide for and
specify the means to attain the best possible cable television
service to the public and any Franchises issued pursuant to the
Chapter shall be deemed to include this as an integral finding
thereof.
6.76.020 Definitions
For the purposes 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.
(a) "Basic Cable Service" means any Service Tier which
includes the retransmission of local television broadcast signals.
(b) "Cable Television System" or "System", also referred to
as "Cable Communications System" or "Cable 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:
(1) A facility that serves only to transmit television
signals of one (1) or more television broadcast stations.
(2) A facility that serves only Subscribers in one (1)
or more multiple unit dwellings under common ownership, control, or
management, unless such facility uses any public rights-of-way.
(3) 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
(4) Any facilities of any electric utility used solely
for operating its electric utility system.
(c) "Cable Service" means the total of the following:
(1) The one-way transmission to Subscribers of video
programming or other programming service or information; and
(2) Subscriber interaction, if any, which is involved in
the selection of or interaction with such video programming or
other programming service or information.
(d) "Channel" or "Cable Channel" means a portion of the
electromagnetic frequency spectrum which is used in a Cable System
which is capable of delivering a television channel as defined by
the Federal Communications Commission, whether in conventional or
digitally compressed form provided that applicable technical and
signal quality standards are met.
(e) "Council" means the City Council of the City of South San
Francisco.
(f) "Franchise" means an initial authorization, or renewal
thereof, issued by the City Council, 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.
(g) "Franchise Agreement" means a Franchise grant ordinance
or a contractual agreement, containing the specific provisions of
the Franchise granted, including references, specifications,
requirements and other related matters.
(h) "Franchise Fee" means any fee or assessment of any kind
imposed by a franchising authority on a Grantee as compensation for
the Grantee's use of the public rights-of-way. The term "Franchise
Fee" does not include:
(1) Any tax, fee or assessment of general applicability
(including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services, but not including
a tax, fee or assessment which is unduly discriminatory against
cable operators or cable Subscribers);
(2) Capital costs which are required by the Franchise to
be incurred by Grantee for public, educational, or governmental
access facilities;
(3) 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
(4) Any fee imposed under Title 17, United States Code.
(i) "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.
(j) "Grantor" or "City" means the City of South San Francisco
as represented by the Council or any delegate acting within the
scope of its jurisdiction.
(k) "Gross Annual Receipts" means the annual gross receipts
received by a Grantee from all sources of operations of the Cable
Television System within the City utilizing the public Streets and
rights-of-way for which a Franchise is required in order to deliver
such Cable Service, excluding refundable deposits, rebates or
credits, and any sales, excise or other taxes or charges collected
for direct pass-through to local, State or Federal government. The
City's cable television Franchise Fee. shall be included in Gross
Annual Receipts if allowed by applicable law.
(1) "Initial Service Area" means the area of the City which
will receive service initially, as set forth in any Franchise
Agreement.
(m) "Installation" means the connection of the System to
Subscribers' terminals, and the provision of service.
(n) "Person" means an individual, partnership, association,
joint stock company, trust, corporation or governmental entity.
(o) "Public. Educational or Government Access Facilities" or
"PEG Access Facilities" means the total of the following:
(1) Channel capacity designated for noncommercial
public, educational, or government use; and
(2) Facilities and equipment for the use of such Channel
capacity.
(p) "Section" means any section, subsection or provision
this Chapter.
(q) "Service Area" or "Franchise Area" means the entire
geographic area within the City as it is now constituted or may in
the future be constituted, unless otherwise specified in the
Franchise granting ordinance or agreement.
(r) "Service Tier" means a category of Cable Service or other
services provided by a Grantee and for which a separate rate is
charged by the Grantee.
(s) "State" means the State of California.
(t) "Street" means each of the following which have been
dedicated to the public or are hereafter dedicated to the public
and maintained under public authority or by others, or have been
designated for compatible uses, 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.
(u) "Subscriber" means any Person who or which elects to
subscribe to, for any purpose, a service provided by the Grantee by
means of or in connection with the Cable System, and who pays the
charges therefor.
6.76.030 Franchise to Install and Operate
A Franchise granted by the City under the provisions of this
chapter shall encompass the following purposes:
(a) To engage in the business of providing cable television
service, and such other services as may be permitted by law, which
Grantee chooses to provide, to Subscribers within the designated
Service Area.
(b) To erect, install, construct, locate and relocate,
repair, rebuild, reconstruct, replace, maintain, and retain, cable
lines, related electronic equipment, supporting structures,
appurtenances, and other property in connection with the operation
of the Cable System in, on, over, under, upon, along and across
Streets or other public places within the designated Service Area;
(c) To maintain and operate said Franchise properties for the
origination, reception, transmission, amplification, processing,
and distribution of television, radio and communications signals
and for the delivery or provision of Cable Services, and such other
services as may be permitted by law; and
(d) To set forth the obligations of a Grantee under the
Franchise.
6.76.040 Franchise Required
It shall be unlawful for any Person to construct, install or
operate a Cable Television System in the City within any public
Street without a properly granted Franchise awarded pursuant to the
provisions of this Chapter.
6.76.050 Term of the Franchise
(a) A Franchise granted hereunder shall be for a term
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established in the Franchise Agreement, commencing on the Grantor's
adoption of an ordinance or resolution authorizing the Franchise.
(b) A Franchise granted hereunder may be renewed upon
application by the Grantee pursuant to the provisions of applicable
State and Federal law and of this Chapter.
6.76.060 Franchise Territory
Any Franchise shall be valid within all the territorial limits
of the City, and within any area added to the City during the term
of the Franchise, unless otherwise specified in the Franchise
granting ordinance or agreement.
6.76.070 Federal or State Jurisdiction
This Chapter shall be construed in a manner consistent with
all applicable Federal and State laws, and shall apply to all
Franchises granted or renewed after the effective date of this
Chapter to the extent permitted by applicable law.
6.76.080 Franchise Non-Transferable
(a) Grantee shall not sell, transfer, lease, assign, sublet
or dispose of, in whole or in part, either by forced or involuntary
sale, or by ordinary sale, contract, consolidation or otherwise,
the Franchise or any of the rights or privileges therein granted,
without the prior consent of the Council and then only upon such
terms and conditions necessary to ensure compliance with the
Franchise as may be prescribed by the Council, which consent shall
not be unreasonably denied or delayed. Any attempt to sell,
transfer, lease, assign or otherwise dispose of the Franchise
without the consent of the Council shall be null and void. The
granting of a security interest in a Franchise or any other Grantee
assets, or any mortgage or other hypothecation, shall not be
considered a transfer for the purposes of this Section.
(b) The requirements of Subsection (a) shall apply to any
change in control of Grantee. The word "control" as used herein is
not limited to major stockholders or partnership interests, but
includes actual working control in whatever manner exercised. In
the event that Grantee is a corporation, prior authorization of the
Council shall be required where ownership or control of more than
twenty percent (20%) of the voting stock of Grantee is acquired by
a Person or group of Persons acting in concert, none of whom own or
control the voting stock of the Grantee as of the effective date of
the Franchise, singularly or collectively.
(c) Grantee shall notify Grantor in writing of any
foreclosure or any other judicial sale of all or a substantial part
of the Franchise property of the Grantee or upon the termination of
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any lease or interest covering all or a substantial part of said
Franchise property. Such notification shall be considered by
Grantor as notice that a change in control of ownership of the
Franchise has taken place and the procedures under this Section for
obtaining the consent of Grantor to such change in control of
ownership shall apply.
(d) For the purpose of determining whether it shall consent
to such change, transfer, or acquisition of control, Grantor may
inquire into the qualifications of the prospective transferee or
controlling party, and Grantee shall assist Grantor in such
inquiry. In seeking Grantor's consent to any change of ownership
or control, Grantee shall have the responsibility of insuring that
the transferee completes an application in form and substance
reasonably satisfactory to Grantor, which application shall include
the information required under Subsections (a) through (h) of
Section 6.76.130 of this Chapter. An application shall be
submitted to Grantor not less than one hundred twenty (120) days
prior to the date of transfer or within sixty (60) days after the
notice specified in subsection (c) herein. The transferee shall be
required to establish that it possesses the qualifications and
financial and technical capability to operate and maintain the
System and comply with all Franchise requirements for the remainder
of the term of the Franchise. If the legal, financial, character,
and technical qualifications of the applicant are satisfactory, the
Grantor shall consent to the transfer of the Franchise within 120
days after submission of the application in accordance with federal
law. The consent of the Grantor to such transfer shall not be
unreasonably denied or delayed.
(e) Any financial institution having a pledge of the Grantee
or its assets for the advancement of money for the construction
and/or operation of the Franchise shall have the right to notify
the Grantor that it or its designee satisfactory to the Grantor
shall take control of and operate the Cable Television System, in
the event of a Grantee default of its financial obligations.
Further, said financial institution shall also submit a plan for
such operation within thirty (30) days of assuming such control
that will insure 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 (1)
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.
(f) Upon transfer, Grantee shall reimburse Grantor for
Grantor's reasonable processing and review expenses in connection
with a transfer of the Franchise or of control of the Franchise,
including without limitation costs of administrative review,
financial, legal and technical evaluation of the proposed
transferee, consultants (including technical and legal experts and
all costs incurred by such experts), notice and publication costs
and document preparation expenses. A Franchise may provide a limit
on the amount of such reimbursement. Any such reimbursement shall
not be charged against any Franchise Fee due to Grantor during the
term of the Franchise.
6.76.090 Geographical Coverage
(a) Grantee shall design, construct and maintain the Cable
Television System to have the capability to pass every residential
dwelling unit in the City, subject to any Service Area line
extension requirements of the Franchise Agreement.
(b) After service has been established by activating trunk
and/or distribution cables for any Service Area, Grantee shall
provide service to any requesting Subscriber within that Service
Area within thirty (30) days from the date of request, provided
that the Grantee is able to secure all rights-of-way necessary to
extend service to such Subscriber within such thirty (30) day
period on reasonable terms and conditions.
6.76.100 Nonexclusive Franchise
Any Franchise granted shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such
additional Franchises for a Cable Television System or any
component thereof, as it deems appropriate, subject to applicable
State and Federal law, provided that if the Grantor grants an
additional Franchise for substantially similar services on terms
more favorable or less burdensome to the second Grantee (whether by
the grant of greater benefits or the imposition of lesser
obligations), then the initial Grantee shall have the right to
renegotiate its Franchise to incorporate the more favorable or less
burdensome terms.
6.76.110 Multiple Franchises
(a) Grantor may grant any number of Franchises subject to
applicable State or Federal law. Grantor may limit the number of
Franchises granted, based upon, but not necessarily limited to, the
requirements of applicable law and specific local considerations;
such as:
(1) The capacity of the public rights-of-way to
accommodate multiple cables in addition to the cables, conduits and
pipes of the utility systems, such as electrical power, telephone,
gas and sewerage;
(2) The benefits that may accrue to cable Subscribers as
a result of Cable System competition, such as lower rates and
improved service;
(3) The disadvantages that may result from Cable System
competition, such as the requirement for multiple pedestals on
residents' property, and the disruption arising from numerous
excavations of the rights-of-way.
(b) Each Grantee awarded a Franchise to serve the entire City
shall offer service to all lawful residences in the City, in
accordance with construction and service schedules mutually agreed
upon between Grantor and Grantee, and consistent with applicable
law.
(c) Developers of new residential housing with underground
utilities shall provide conduit to accommodate cables for at least
two (2) Cable Systems in accordance with the provisions of Section
6.76. 200 (m) .
(d) Grantor may require that any new Grantee be responsible
for its own underground trenching and the costs associated
therewith, if, in Grantor's opinion, the rights-of-way in any
particular area cannot feasibly and reasonably accommodate
additional cables.
(e) Any Franchise granted for substantially similar services
shall be no more favorable nor less burdensome to the franchisee
than any other cable television franchise then in effect, including
without limitation as to requirements for PEG Access Facilities,
Cable System improvements, capital commitments, service
requirements and operating standards, and applicable Franchise Fees
and local taxes, expenses, and assessments.
6.76.120 Franchise Applications
Any Person desiring an initial Franchise for a Cable
Television System shall file an application with the City. A
reasonable nonrefundable application fee established by the City
shall accompany the application to cover all costs associated with
processing and reviewing the application, including without
limitation costs of administrative review, financial, legal and
technical evaluation of the applicant, consultants (including
technical and legal experts and all costs incurred by such
experts), notice and publication requirements with respect to the
consideration of the application and document preparation expenses.
In the event such costs exceed the application fee, the selected
applicant(s) shall pay the difference to the City within thirty
(30) days following receipt of an itemized statement of such costs.
6.76.130 Applications - Contents
An application for an initial Franchise for a Cable Television
System shall contain, where applicable:
(a) A statement as to the proposed Franchise and Service
Area;
(b) Resume of prior history of applicant, including the
expertise of applicant in the cable television field;
(c) List of the partners, general and limited, of the
applicant, if a partnership, or the percentage of stock owned or
controlled by each stockholder, if a corporation;
(d) List of officers, directors and managing employees of
applicant, together with a description of the background of each
such Person;
(e) The names and addresses of any parent or subsidiary of
applicant or any other business entity owning or controlling
applicant in whole or in part, or owned or controlled in whole or
in part by applicant;
(f) A current financial statement of applicant verified by a
certified Public Accountant audit or otherwise certified to be
true, complete and correct to the reasonable satisfaction of the
City;
(g) Proposed construction and service schedule;
(h) Any reasonable additional information necessary to ensure
Franchise compliance that the City deems applicable.
6.76.140 Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise,
the City Manager shall prepare a report and make recommendations
respecting such application to the City Council.
(b) A public hearing shall be set prior to any initial
Franchise grant, at a time and date approved by the Council.
Within thirty (30) days after the close of the hearing, the Council
shall make a decision based upon the evidence received at the
hearing as to whether or not the Franchises should be granted, and,
if granted, subject to what conditions. The Council may grant one
(1) or more Franchises, or may decline to grant any Franchise.
6.76.150 Franchise Renewal
Franchise renewals shall be in accordance with applicable law.
Grantor and Grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the Franchise. Upon
mutual execution of a franchise renewal agreement, Grantee shall
reimburse Grantor for costs incidental to the franchise renewal
award, not to exceed any maximum specified in the agreement. Any
such reimbursement shall not be charged against any Franchise Fee
due to the Grantor during the term of the Franchise.
6.76.160 Minimum Consumer Protection and Service Standards
(a) Except as otherwise provided in the Franchise Agreement,
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Grantee shall maintain a local office or offices to provide the
necessary facilities, equipment and personnel to comply with the
following consumer protection and service standards under normal
conditions of operation:
(1) Sufficient toll-free telephone line capacity during
normal business hours to assure that a minimum of ninety-five
percent (95%) of all calls will be answered before the fourth (4th)
ring and ninety percent (90%) of all callers for service will not
be required to wait more than thirty (30) seconds before being
connected to a service representative;
(2) Emergency telephone line capacity on a twenty-four
(24) hour basis, including weekends and holidays;
(3) A local business and service office open during
normal business hours at least eight (8) hours daily, and at least
two (2) hours weekly on evenings or weekends, plus additional
weekend and evening hours as reasonably needed for special events
and Subscriber needs, 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 twenty-four (24) hour per day basis;
(5) An Installation staff, capable of installing service
to any Subscriber within seven (7) days after receipt of a request,
in all areas where trunk and feeder cable have been activated.
(b) At the Subscriber's request, Grantee shall schedule,
within a specified four (4) hour time period, all appointments with
Subscribers for installation of service.
(c) Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the
shortest time possible. Scheduled interruptions, insofar as
possible, shall be preceded by notice and shall occur during a
period of minimum use of the Cable System, preferably between
midnight and 6:00 A.M.
(d) The Grantee shall maintain a repair force of technicians
normally capable of responding to Subscriber requests for service
within the following time frames:
(1) For a System outage: Within two (2) hours, including
weekends, of receiving Subscriber calls or requests for service
which by number identify a System outage of sound or picture of one
(1) or more Channels, affecting at least ten percent (10%) of the
Subscribers of the System;
(2) For an isolated outage: Within twenty-four (24)
hours, including weekends, of receiving requests for service
identifying an isolated outage of sound or picture for one (1) or
more Channels that affects three (3) or more Subscribers. On
weekends, an outage affecting fewer than three (3) Subscribers
shall result in a service call no later than the following Monday
morning;
(3) For inferior signal quality: Within forty-eight
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(48) hours, including weekends, of receiving a request for service
identifying a problem concerning picture or sound quality.
(e) Grantee shall be deemed to have responded to a request
for service under the provisions of this Section when a technician
arrives at the service location and begins work on the problem. In
the case of a Subscriber not being home when the technician
arrives, the technician shall leave written notification of
arrival. Three (3) successive Subscriber failures to be present at
an appointed time shall excuse Grantee of the duty to respond.
Grantee shall notcharge for the repair or replacement of defective
equipment provided by Grantee to Subscribers.
(f) Unless excused, Grantee shall determine the nature of the
problem within forty-eight (48) hours of beginning work and resolve
all Cable System related problems within five (5) business days
unless technically infeasible.
(g) Upon request, Grantee shall provide appropriate rebates
to Subscribers whose service has been interrupted for four (4) or
more hours.
(h) Upon five (5) days notice, Grantee shall establish its
compliance with any or all of the standards required above.
Grantee shall provide sufficient documentation to permit Grantor to
verify the compliance.
(i) A repeated and verifiable pattern of noncompliance with
the consumer protection standards of (a) through (h) above, after
Grantee's receipt of due notice and an opportunity to cure, may be
deemed a material breach of the Franchise Agreement.
(j) 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 specifying the Subscriber's grounds for
dissatisfaction. Grantee shall file a copy of these procedures
with Grantor.
(k) Grantor shall have the right to review Grantee's response
to Subscriber complaints in order to determine Grantee's compliance
with the Franchise requirements, subject to the Subscriber's right
to privacy.
(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 rebuild, modify, or sell the System, or the Grantor gives notice
of intent to terminate or not to renew the Franchise, the Grantee
shall act so as to ensure that all valid Subscribers receive
service so long as the Franchise remains in force.
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(m) In the event of a change of control of Grantee, or in the
event a new operator acquires the System, the original Grantee
shall cooperate with the Grantor, new Grantee or operator in
maintaining continuity of service to all Subscribers. During such
period, Grantee shall be entitled to recover its actual [and
verifiable] costs and damages from the revenues collected by the
System.
(n) In the event Grantee fails to operate the System for
seven (7) consecutive days without prior approval or subsequent
excusal of the Grantor, the Grantor may, at its sole option,
operate the System or designate an operator until such time as
Grantee restores service under conditions acceptable to the Grantor
or a permanent operator is selected. If the Grantor should fulfill
this obligation for the Grantee, then during such period as the
Grantor fulfills such obligation, the Grantor shall be entitled to
recover its actual costs and damages from the revenues collected by
the System, and the Grantee shall indemnify the Grantor against any
damages Grantor may suffer as a result of such failure.
(o) Ail officers, agents or employees of Grantee or its
contractors or subcontractors who, in the normal course of work
come into contact with members of the public or who require entry
onto Subscribers' premises shall carry a photo-identification card
in a form approved by Grantor. Grantee shall account for all its
identification cards at all times. Every vehicle of the Grantee or
its major subcontractors shall be clearly identified as such.
6.76.170 Additional Service Standards
Additional service standards and standards governing consumer
protection and response by Grantee to Subscriber complaints not
otherwise provided for in this Chapter may be established in the
Franchise Agreement, and Grantee shall comply with such standards
in the operations of the Cable Television System. The incremental
expense of satisfying such additional standards may be recovered in
Grantee's regulated rates to the extent provided by applicable law.
A verified and continuing pattern of noncompliance may be deemed a
material breach of the Franchise, provided that Grantee shall
receive due process, including written notification and an
opportunity to cure, prior to any sanction being imposed.
6.76.180 Franchise Fee
(a) Following the issuance and acceptance of the Franchise,
the Grantee shall pay to the Grantor a Franchise Fee in the amount
set forth in the Franchise Agreement.
(b) The Grantor, on an annual basis, shall be furnished a
statement within sixty (60) days of the close of the calendar year,
either audited and certified by an independent Certified Public
Accountant or certified by an officer of the Grantee, reflecting
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the total amounts of gross receipts and all payments, deductions
and computations for the period covered by the payment. Upon
thirty (30) days prior written notice, Grantor shall have the right
to conduct an independent audit of Grantee's records, in accordance
with Generally Accepted Accounting Procedures, and if such audit
indicates a Franchise Fee underpayment of three percent (3%) or
more, the Grantee shall assume all reasonable costs of such an
audit.
(c) Except as otherwise provided by law, no acceptance of any
payment by the Grantor shall be construed as a release or as an
accord and satisfaction of any claim the Grantor may have for
further or additional sums payable as a Franchise Fee under this
ordinance or for the performance of any other obligation of the
Grantee.
(d) In the event that any franchise payment or recomputed
amount is not made on or before the dates specified in the
Franchise Agreement, Grantee shall pay as additional compensation:
(1) An interest charge, computed from such due date, at
an annual rate equal to the then applicable prime lending rate
published The Wall Street Journal plus one percent (1%) during the
period for which payment was due; and
(2) If the payment is late by forty-five (45) days or
more, a sum of money equal to five percent (5%) of the amount due
in order to defray those additional expenses and costs incurred by
the Grantor by reason of delinquent payment.
(e) Franchise fee payments shall be made in accordance with
the schedule indicated in the Franchise Agreement.
6.76.190 Security Fund
Grantor may require Grantee to provide a security fund, in an
amount and form established in the Franchise Agreement. The amount
of the security fund shall be established based on the extent of
the Grantee's obligations under the terms of the Franchise.
The security fund shall be available to Grantor as provided in
Section 6.76.340 to satisfy all claims, liens and/or taxes due
Grantor from Grantee which arise by reason of construction,
operation, or maintenance of the System, and to satisfy any actual
or liquidated damages arising out of a Franchise breach, subject to
the procedures and amounts designated in the Franchise Agreement.
If the security fund is drawn upon by Grantor in accordance
with the procedures established in this ordinance and the Franchise
Agreement, Grantee shall cause the security fund to be replenished
to the original amount no later than thirty (30) days after each
withdrawal by Grantor. Failure to replenish the security fund
shall be deemed a material breach of the Franchise.
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6.76.200 Design and Construction Requirements
(a) Grantee shall not construct any Cable System facilities
until Grantee has secured the necessary permits from Grantor, or
other cognizant public agencies.
(b) In those areas of the City where transmission lines or
distribution facilities of the public utilities providing telephone
and electric power service are underground, the Grantee likewise
shall construct, operate and maintain its transmission and
distribution facilities therein underground.
(c) In those areas of the City where the Grantee's cables are
located on the above-ground transmission or distribution facilities
of the public utility providing telephone or electric power
service, and in the event that the facilities of both such public
utilities subsequently are placed underground, then the Grantee
likewise shall, upon receiving timely notice of utility trench
opening, reconstruct, operate and maintain its transmission and
distribution facilities underground, at Grantee's cost, or at the
developer or other initiating party's cost if the undergrounding is
required as a result of such party's activities. Certain of
Grantee's equipment, such as pedestals, amplifiers and power
supplies, which normally are placed above ground, may continue to
remain in above-ground enclosures, unless otherwise provided in the
Franchise Agreement.
(d) Any changes in or extensions of any poles, anchors,
wires, cables, conduits, vaults, laterals or other fixtures and
equipment (herein referred to as "structures"), or the construction
of any additional structures, in, upon, along, across, under or
over the Streets, alleys and public ways shall be made under the
direction of Grantor's City Engineer or.a designee, who shall, if
the proposed change, extension or construction conforms to the
provisions hereof, issue written permits therefor. The height
above public thoroughfares of all aerial wires shall conform to the
requirements of the California Public Utilities Commission or other
regulatory body having jurisdiction thereof.
(e) Ail transmission and distribution structures, lines and
equipment erected by the Grantee shall be located in conformity
with all applicable City codes and ordinances and any City permits
issued to Grantee so as not to interfere with the proper use of
Streets, alleys and other public ways and places, and to cause
minimum interference with the rights or reasonable convenience of
property owners who adjoin any of the said Streets, alleys or other
public ways and places, and not to interfere with existing public
utility installations.
(f) In the event that any property or improvement of the
Grantor in the public rights of way is disturbed or damaged by the
Grantee or any of its contractors, agents or employees in
15
connection with undertaking any and all work pursuant to the right
granted to the Grantee pursuant to the Franchise, the Grantee shall
promptly, at the Grantee's sole cost and expense, restore as nearly
as practicable to their former condition said property or
improvement which was so disturbed or damaged, and in the event
that any such property or improvement shall at any later time
become uneven, unsettled or otherwise require restoration, repair
or replacement because of such disturbance or damage by the
Grantee, then the Grantee, as soon as reasonably possible, shall,
promptly upon receipt of notice from the Grantor and at the
Grantee's sole cost and expense, restore as nearly as practicable
to their former condition said property or improvement which was
disturbed or damaged. Any such restoration by the Grantee shall be
made in accordance with such materials and specifications as may,
from time to time, be then provided for by Grantor ordinances.
(g) Prior to commencing any work in the public rights of way,
the Grantee shall obtain any and all permits lawfully required by
such Grantor codes and ordinances of general application for such
work. In the event that emergency work may be required by the
Grantee, however, the Grantee shall obtain any and all such permits
within three (3) business days after the beginning of such
emergency work.
There shall be no unreasonable or unnecessary obstruction
of the public rights of way by the Grantee in connection with any
of the work herein provided for, and the Grantee shall maintain
such barriers, signs and warning signals during any such work
performed on or about the public rights of way or adjacent thereto
as may be necessary to reasonably avoid injury or damage to life
and property.
(h) If at any time during the period of this Franchise the
Grantor shall lawfully elect to alter or change the grade or
location of any Street, alley or other public rights of way, the
Grantee shall, upon reasonable notice and request by the Grantor,
remove, relay and relocate its poles, wires, cables, underground
conduits, manholes and other fixtures at it own expense, and in
each instance comply with the requirements of the Grantor.
(i) The Grantee shall not place poles, conduits or other
fixtures above or below ground where the same will interfere with
any gas, electric, telephone fixtures, water hydrants or other
utility, and all such poles, conduits or other fixtures placed in
any Street shall be so placed as to comply with all ordinances of
the Grantor.
(j) The Grantee may be required by the Grantor to permit
joint use of its property and appurtenances located in the Streets,
alleys or other public rights of way, by utilities insofar as such
joint use may be reasonably practicable and upon payment of
reasonable rental therefor; provided that in the absence of
agreement regarding such joint use, each party shall be entitled to
16
exercise any rights and defenses provided by applicable law.
(k) The Grantee shall, on request of any Person holding a
moving permit issued by the Grantor, temporarily move its wires or
fixtures to permit the moving of buildings, the expense of such
temporary removal to be paid in advance by the Person requesting
the same, and the Grantee shall be given not less than five (5)
business days advance notice to arrange for such temporary changes.
(1) The Grantee shall have the authority, except when in
conflict with existing Grantor ordinances, to trim any trees upon
and overhanging the Streets, alleys, sidewalks and public places 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 Grantor after prior written notice to Grantee, such trimming
may be done by it, or under its supervision and direction, at the
expense of the Grantee.
(m) New Developments. Extension of the System to furnish the
service within a new single-family and/or multi-family residential
development will be made by Grantee in advance of receipt of
request for service in accordance with the following provisions:
(1) General. Grantee will construct, own, operate and
maintain an underground cable television distribution system only
along public Streets, roads and highways which Grantee has the
legal right to occupy, and on public lands and private property
across which rights-of-way and easements satisfactory to Grantee
may be obtained without cost to Grantee;
(2) Installation.
(i) Grantee will install the cable television
distribution system in trench, conduit and substructure provided
by, or at the cost of, the developer of the subdivision or
development according to City standards and the technical
requirements of the cable television distribution system.
(ii) Grantee will complete at its own expense:
A. The installation of the distribution
cables, amplifiers and all other equipment necessary for the
construction and operation of the underground distribution system,
as described in this section. Underground service connections will
be made on the basis of the actual costs of time and materials.
B. That portion of the System extension which
may extend beyond the boundaries of the subdivision or development,
to the existing distribution system main trunk cable, that is not
in excess of 200 feet.
C. That portion of the required extension of
the System in excess of 200 feet outside the boundaries of the
subdivision or development will be constructed underground or
overhead as is required by the City of South San Francisco Rules
and Regulations applicable to CATV and will be charged to the
developer according to the provisions of Subsection 1.20(E) (3)
below.
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(3) Advances by the DeveloDer.
(i) The developer shall pay or shall promise to
pay, to Grantee before the start of construction, the cost of
extending the System beyond the boundaries of the subdivision or
development, to the existing System main trunk cable of the
distribution system to the extent that such extension is in excess
of 200 feet from said main trunk cable.
(ii) Extension of the System in excess of 200 feet
will require a written agreement specifying the terms under which
Grantee will install the extension and then the developer will pay
the costs. These costs are intended to be non-refundable.
However, it is recognized that extensions made might later be used
to provide service to other Subscribers along that extension or to
other Subscribers of future or existing development beyond the
subject subdivision or development. Therefore, the refundable
status of the costs paid by the developer, for the extensions of
the System beyond the boundaries of the subdivision or development
in excess of 200 feet, shall be as stated in the written agreement
between Grantee and the developer.
(n) In the event of multiple franchisees desiring to serve
new residential developments in which the electric power
and telephone utilities are underground, the following
procedure shall apply with respect to access to and utilization of
underground easements.
(1) The developer shall be responsible for contacting
and surveying all franchised cable operators to ascertain which
operators desire to provide cable television service to that
development. The developer may establish a reasonable deadline to
receive cable operator responses. The final development map shall
indicate the cable operators that have agreed to serve the
development;
(2) If one (1) or two (2) cable operators wish to
provide service, they shall be accommodated in the joint utilities
trench on a nondiscriminatory shared cost basis. If fewer than two
(2) operators indicate interest, the developer shall provide
conduit to accommodate two (2) sets of cable television cables and
dedicate to the City any initially unoccupied conduit. The
developer shall be entitled to recover the costs of such initially
unoccupied conduit in the event that Grantor subsequently leases or
sells occupancy or use rights to any Grantee;
(3) The developer shall provide at least ten (10)
working days notice of the date that utility trenches will be open
to the cable operators that have agreed to serve the development.
When the trenches are open, cable operators shall have two (2)
working days to begin the installation of their cables, and five
(5) working days after beginning installation to complete
installation;
(4) The final development map shall not be approved
until the developer submits evidence that:
(i) It has notified each Grantee that underground
utility trenches are to be open as of an estimated date, and that
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each Grantee will be allowed access to such trenches, including
trenches from proposed Streets to individual homes or home sites,
on specified nondiscriminatory terms and conditions; and
(ii) It has received a written notification from
each Grantee that the Grantee intends to install its facilities
during the open trench period on the specified terms and
conditions, or such other terms and conditions as are mutually
agreeable to the developer and the Grantee, or has received no
reply from a Grantee within ten (10) days after its notification to
such Grantee, in which case the Grantee will be deemed to have
waived its opportunity to install its facilities during the open
trench period.
(5) Sharing the joint utilities trench shall be subject
to compliance with State regulatory agency and utility standards.
If such compliance is not possible, the developer shall provide a
separate trench for the cable television cables, with the entire
cost shared among the participating operators. With the
concurrence of the developer, the affected utilities and the cable
operators, alternative installation procedures, such as the use of
deeper trenches, may be utilized, subject to applicable law;
(6) Any cable operator wishing to serve an area where
the trenches have been closed shall be responsible for its own
trenching and associated costs;
(7) In the event that more than one (1) franchise is
awarded, the City reserves the right to limit the number of drop
cables per residence;
(8) The city reserves the right to grant an encroachment
permit to a cable franchisee applicant to install conduit and/or
cable in anticipation of the granting of a Franchise. Such
installations shall be at the applicant's risk, with no recourse
against the City in the event the pending franchise application is
not granted. The City may require an applicant to provide a
separate trench for its conduit and/or cable, at the applicant's
cost. The construction of such separate trench, if provided, shall
be coordinated with, and subject to, the developer's overall
construction schedule.
6.76.210 Technical Standards
(a) The Grantee shall construct, install, operate and
maintain its System in a manner consistent with all applicable
laws, ordinances, construction standards, governmental
requirements, FCC technical standards, and any detailed standards
set forth in its Franchise Agreement. In addition, the Grantee
shall provide to the Grantor, upon request, a written report of the
results of the Grantee's periodic proof of performance tests
conducted pursuant to FCC and Franchise standards and guidelines.
(b) Repeated and verified failure to maintain specified
technical standards shall constitute a material breach of the
franchise.
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6.76.220 Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its
officers, agents and employees harmless from any liability, claims,
damages, costs or expenses, to the extent provided in the Franchise
Agreement.
6.76.230 Insurance
(a) On or before commencement of Franchise operations, the
Grantee shall obtain policies of liability, Workers' compensation
and property insurance from appropriately qualified insurance
companies; provided that Grantee may self-insure in lieu of one or
more coverages specified in this Section 6.76.230 upon prior
written notice to and consent of the Grantor.
(b) The policy of liability insurance shall:
(1) Be issued to Grantee and name Grantor, its officers,
agents and employees as additional insureds;
Indemnify for all liability for personal and bodily
injury, death and damage to property arising from activities
conducted and premises used pursuant to this Chapter by providing
coverage therefor, including but not limited for:
(i) Negligent acts or omissions of Grantee and its
agents, servants and employees, committed in the conduct of
Franchise operations, and/or
(ii) Use of motor vehicles;
(3) Provide a combined single limit for comprehensive
general liability and comprehensive automobile liability insurance
in the amount provided for in the Franchise Agreement. Such
insurance coverage as evidenced by certificate(s) of insurance
shall be subject to review by Grantor's legal counsel; and
(4) Be noncancellable without thirty (30) days prior
written notice thereof directed to Grantor.
(c) The policy of Workers' Compensation Insurance shall
comply with the laws of the State of California.
(d) The policy of property insurance shall provide fire
insurance with extended coverage on the Franchise property used by
Grantee in the conduct of Franchise operations in an amount
adequate to enable Grantee to resume Franchise operations following
the occurrence of any risk covered by this insurance.
(e) Grantee shall file with Grantor prior to commencement of
Franchise operations a certificate of insurance for each of the
required policies executed by the company issuing the policy or by
a broker authorized to issue such a certificate, certifying that
the policy is in force and providing the following information with
respect to said policy:
(1) The policy number;
(2) The date upon which the policy will become effective
20
and the date upon which it will expire;
(3) The names of the named insureds and any additional
insured required by the Franchise Agreement; (4) The subject of the insurance;
(5) The type of coverage provided by the
insurance; and
(6) The amount or limit of coverage provided by the
insurance.
If the certificate of insurance does not provide all of the
above information, Grantor reserves the right to inspect the
relevant insurance policies.
(f) Conduct of Franchise operations shall not commence until
Grantee has complied with the aforementioned provisions of this
Section.
(g) In the event Grantee fails to maintain any of the
above-described policies in full force and effect, Grantor shall,
upon forty-eight (48) hours notice to Grantee, have the right to
procure the required insurance and recover the cost thereof from
Grantee. Grantee shall also have the right to suspend the
Franchise during any period that Grantee fails to maintain said
policies in full force and effect. In order to account for
increases in consumer prices, no more than once during any five (5)
year period, Grantor shall have the right to order Grantee to
increase the amounts of the insurance provided in the Franchise
Agreement. Such order may be made by Grantor after conducting a
duly noticed public hearing. Increases in insurance coverage shall
be based upon current prudent business practices of like
enterprises involving the same or similar risks.
6.76.240 Records Required and Grantor's Right to Inspect
(a) Grantee shall at all times maintain:
(1) A record of all service calls and interruptions D
degradation of service experienced for the preceding two (2) years,
provided that such complaints result in or require a service call,
subject to the Subscriber's right of privacy;
(2) A full and complete set of plans, records and
"as-built" maps showing the locations of the Cable Television
System installed or in use in the City, exclusive of Subscriber
service drops and equipment provided in Subscriber's homes;
(3) If requested by Grantor, a summary of service calls,
identifying the number, general nature and disposition of such
calls, on a monthly basis. A summary of such service calls shall
be submitted to the Grantor within thirty (30) days following any
Grantor request, in a mutually agreeable form.
(b) The Grantor may impose reasonable requests for additional
information, records and documents from time to time, to the extent
provided by applicable law, provided they reasonably relate to the
scope of the City's rights under this Chapter or the Grantee's
21
Franchise Agreement.
(c) Upon reasonable notice, and during normal business hours,
Grantee shall permit examination by any duly authorized
representative of the Grantor, of all Franchise property and
facilities, together with any appurtenant property and facilities
of Grantee situated within or without the City, and all records
relating to the Franchise, provided they are necessary to enable
the Grantor to carry out its regulatory responsibilities under this
Chapter or the Franchise Agreement. Grantee shall have the right
to be present at any such examination.
6.76.250 Annual Reports
Within ninety (90) days after the end of the calendar year,
Grantee shall submit a written annual report to Grantor, upon
written request, with respect to the preceding calendar year in a
form approved by Grantor, including, but not limited to, the
following information:
(a) A summary of the previous year's (or in the case of the
initial reporting year, the initial year's) activities in
development of the Cable System, including but not limited to,
services begun or discontinued during the reporting year;
(b) A list of Grantee's officers, members of its board of
directors, and other principals of Grantee;
(c) A list of stockholders or other equity investors holding
ten percent (10%) or more of the voting interest in Grantee;
(d) An indication of any residences in Grantee's Service Area
where service is not available, and a schedule for providing
service;
(e) Information as to the number of homes passed,
Subscribers, and the number of basic and pay Subscribers.
(f) Any other information relevant to Franchise regulation
which the Grantor shall reasonably request to the extent authorized
by applicable law, and which is relevant to its regulatory
responsibilities.
6.76.260 Copies of Federal and State Communications
(a) Upon request, Grantee shall submit to Grantor copies of
all pleadings, applications and reports submitted by Grantee to, as
well as copies of all decisions, correspondence and actions by, any
Federal, State or local court, regulatory agency, or other
governmental body which are non-routine in nature and which will
materially 'affect its cable television operations within the
Franchise Area. Information otherwise confidential by law and so
22
designated by Grantee, which is submitted to Grantor, shall be
retained in confidence by Grantor and its authorized agents and
shall not be made available for public inspection.
(b) Notwithstanding the foregoing, Grantee shall have no
obligation to provide copies of documents to Grantor which contain
trade secrets of Grantee or which are otherwise of a confidential
or proprietary nature to Grantee unless it receives satisfactory
assurances from Grantor that such information can and will be held
in strictest confidence by the Grantor. To the extent possible,
Grantee will provide Grantor with summaries of any required
documents or copies thereof with trade secrets and proprietary
matters deleted therefrom. The burden of proof shall be on Grantee
to establish the confidential nature of any information submitted,
to the reasonable satisfaction of the Grantor.
6.76.270 Public Reports
If Grantee is publicly held, upon written request a copy of
each Grantee's annual and other periodic reports and those of its
parent, shall be submitted to Grantor within forty-five (45) days
of its issuance.
6.76.280 Complaint Report and Opinion Survey
Upon request of the Grantor, based on Grantor having
substantiated to its satisfaction a good faith belief that service
quality concerns or Subscriber complaints are widespread, the
Grantee shall conduct a Subscriber satisfaction survey pertaining
to quality of service, which may be transmitted to Subscribers in
Grantee's invoice for Cable Services. The results of such survey
shall be provided to the Grantor on a timely basis. The cost of
such survey shall be borne by the Grantee.
6.76.290 Reserved
6.76.300 Reports - General
(a) Ail reports required under this Chapter, except those
required by law to be kept confidential, shall be available for
public inspection in the Grantor's offices during normal business
hours.
(b) Ail reports and records required under this Chapter shall
be furnished at the sole expense of Grantee, except as otherwise
provided in this Chapter or the Franchise Agreement.
(c) The willful refusal, failure, or neglect of Grantee to
file any of the reports required as and when due under this
Chapter, may be deemed a material breach of the Franchise Agreement
if such reports are not provided to Grantor within thirty (30) days
23
after written request therefor, and may subject the Grantee to all
remedies, legal or equitable, which are available to Grantor under
the Franchise or otherwise.
(d) Any materially false or misleading statement or
representation made knowingly and willfully by the Grantee in any
report required under this Chapter or under the Franchise Agreement
may be deemed a material breach of the Franchise and may subject
Grantee to all remedies, legal or equitable, which are available to
Grantor under the Franchise or otherwise.
6.76.310 Annual Review of System Performance
(a) Each year throughout the term of the Franchise, if
requested by the Grantor, Grantor and Grantee shall meet publicly
to review System performance and quality of service.
(b) The various reports required pursuant to this Chapter,
results of technical performance tests, the record of Subscriber
complaints and Grantee's response to complaints, and the
information acquired in any Subscriber surveys, shall be utilized
as the basis for review. In addition, any Subscriber may submit
comments or complaints during the review meetings, either orally or
in writing, and these shall be considered. Within thirty (30) days
after conclusion of System performance review meeting, Grantor may
issue findings with respect to the Cable System's Franchise
compliance and quality of service.
(c) If Grantor determines that Grantee is not in material
compliance with the requirements of this Chapter or the Grantee's
Franchise, Grantor may direct Grantee to correct the areas of
material noncompliance within a reasonable period of time. Failure
of Grantee, after due notice, to correct the areas of noncompliance
within the period specified therefor or to commence compliance
within such period and diligently achieve compliance thereafter,
shall be considered a material breach of the Franchise, and Grantor
may exercise any remedy within the scope of this Chapter and the
Franchise Agreement considered appropriate.
6.76.320 Special Review of System Performance
When there have been widespread complaints made to Grantor or
where there exists other substantial evidence which, in the
judgment of the Grantor, casts reasonable doubt on the reliability
or quality of Cable Service to the effect that the Grantee may not
be in compliance with the requirements of this Chapter or its
Franchise, the Grantor shall have the right to compel the Grantee
to test, analyze and report on the performance of the System in
order to protect the public against substandard Cable Service.
Grantor may not compel Grantee to provide such tests or reports
unless and until Grantor has provided Grantee with at least thirty
(30) days notice of its intention to exercise its rights under this
24
Section and has provided Grantee with an opportunity to be heard
prior to its exercise of such rights. Such test or tests shall be
made and the report shall be delivered to the Grantor no later than
thirty (30) days after the Grantor notifies the Grantee that it is
exercising such right, and shall be made at Grantee's sole cost.
Such report shall include the following information: The nature of
the complaints which precipitated the special tests, what System
component was tested, the equipment used and procedures employed in
said testing, the results of such tests, and the method by 'which
such complaints were resolved. Any other information pertinent to
the special test shall be recorded.
6.76.330 Special Evaluation Sessions
The Grantor may hold special evaluation sessions at any time
during the term of a Franchise, provided such sessions are held no
more often than once every three (3) years. The Grantee shall be
notified of the place, time and date thereof and the topics to be
discussed, such sessions may be open to the public and advertised
in a newspaper of general circulation at least thirty (30) days
before each session. The sessions may include an evaluation of any
items considered relevant to the Cable System, the Subscribers and
the City. Either the Grantor or the Grantee may propose items for
discussion or evaluation.
6.76.340 Remedies for Franchise Violations
If Grantee fails to perform in a timely manner any material
obligation required by this Chapter or a Franchise granted
hereunder, following notice from the Grantor and an opportunity to
cure such nonperformance in accordance with the provisions of
Section 6.76.350 of this Chapter and the Franchise, Grantor may at
its option and in its sole discretion:
(a) Cure the violation and recover the actual cost thereof
from the security fund established herein if such violation is not
cured, or Grantee has not commenced and continued a cure on a
reasonable schedule, within thirty (30) days after written notice
to the Grantee of Grantor's intention to cure and draw upon the
security fund;
(b) Assess against Grantee liquidated damages in an amount
set forth in the Franchise Agreement for any such violations(s) if
such violation is not cured, or if Grantee has not commenced a cure
on a reasonable schedule, within thirty (30) days after written
notice to the Grantee of Grantor's intention to assess liquidated
damages. Such assessment may be withdrawn from the security fund,
and shall not constitute a waiver by Grantor of any other right or
remedy it may have under the Franchise or applicable law, including
without limitation, its right to recover from Grantee such
additional damages, losses, costs and expenses, including actual
attorney's fees, as may have been suffered or incurred by Grantor
25
by reason of or arising out of such breach of the Franchise.
6.76.350 Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee
specified in this Chapter, Grantor shall give Grantee notice and
opportunity to be heard on the matter, in accordance with the
following procedures:
(a) Grantor shall first notify Grantee of the violation ~
writing by personal delivery or registered or certified mail,
and demand correction within a reasonable time, which shall not be
less than five (5) days in the case of the failure of the Grantee
to pay any undisputed sum or other amount due the Grantor under
this Chapter or the Grantee's Franchise and thirty (30) days in all
other cases. If Grantee fails to correct the violation within the
time prescribed or if Grantee fails to commence correction of the
violation within the time prescribed and diligently remedy such
violation thereafter, the Grantor shall then give written notice of
not less than twenty (20) days of a public hearing to be held
before the Council. Said notice shall specify the violations
alleged to have occurred.
(b) At the public hearing, the Council shall hear and
consider all relevant evidence, and thereafter render findings and
its decision.
(c) In the event the Council finds that the Grantee has
corrected the violation or has diligently commenced correction of
such violation after notice thereof from Grantor and is diligently
proceeding to fully remedy such violation, or that no material
violation has occurred, the proceedings shall terminate and no
penalty or other sanction shall be imposed.
(d) In the event the Council finds that material violations
exist and that Grantee has not corrected the same in a satisfactory
manner or has not diligently commenced correction of such violation
after notice thereof from Grantor and is not diligently proceeding
to fully remedy such violation, the Council may impose one (1) or
more of the remedies provided in this ordinance and the Franchise
Agreement as it, in its discretion, deems appropriate under the
circumstances.
6.76.360 Grantor's Power to Revoke
Grantor reserves the right to revoke any Franchise granted
pursuant to this Chapter and rescind all rights and privileges
associated with it in the following circumstances, each of which
shall represent a default by Grantee and a material breach under
the Franchise grant:
(a) If Grantee shall default in the performance of its
26
material obligations under this Chapter or the Franchise Agreement
and shall continue such default after receipt of due notice and
reasonable opportunity to cure the default;
(b) If Grantee shall fail to provide or maintain in full
force and effect the insurance coverage or security fund as
required in the Franchise Agreement;
(c) If Grantee shall violate any order or ruling of any
regulatory body having jurisdiction over the Grantee relative to
the Grantee's Franchise, unless such order or ruling is being
contested by Grantee by appropriate proceedings conducted in good
faith;
(d) If Grantee practices any fraud or deceit upon Grantor;
(e) If Grantee becomes insolvent, unable or unwilling to pay
its debts, or is adjudged a bankrupt.
The termination and forfeiture of the Grantee's Franchise
shall in no way affect any right of Grantor to pursue any remedy
under the Franchise or any provision of law.
6.76.370 Force Majeure: Grantee's Inability to Perform
In the event Grantee's performance of any of the terms,
conditions or obligations required by this Chapter or a Franchise
granted hereunder is prevented by a cause or event not within
Grantee's control, such inability to perform shall be deemed
excused and no penalties or sanctions shall be imposed as a result
thereof; provided, however, that such inability to perform shall
not relieve a Grantee from the obligations imposed by Section
6.76.160 pertaining to refunds and credits for interruptions in
service. For the purpose of this Section, causes or events not
within the control of Grantee shall include without limitation acts
of God, strikes, sabotage, riots or civil disturbances, restraints
imposed by order of a governmental agency or court, explosions,
acts of public enemies, and natural disasters such as floods,
earthquakes, landslides, and fires, but shall not include financial
inability of the Grantee to perform or failure of the Grantee to
obtain any necessary permits or licenses from other governmental
agencies or the right to use the facilities of any public utility
where such failure is due solely to the acts or omissions of
Grantee, or the failure of the Grantee to secure supplies, services
or equipment necessary for the installation, operation, maintenance
or repair of the Cable Communications System where the Grantee has
failed to exercise reasonable diligence to secure such supplies,
services or equipment.
6.76.380 Abandonment or Removal of Franchise Property
(a) In the event that the use of any property of Grantee
within the public rights of way is discontinued for a continuous
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period of twelve (12) months, Grantee shall be deemed to have
abandoned that Franchise property. Any part of the Cable System
that is parallel or redundant to other parts of the System and is
intended for use only when needed as a backup for the System or a
part thereof, shall not be deemed to have been abandoned because of
its lack of use.
(b) Grantor, upon such terms as Grantor may impose, may give
Grantee permission to abandon, without removing, any System
facility or equipment laid, directly constructed, operated or
maintained under the Franchise. Unless such permission is granted
or unless otherwise provided in this Chapter, the Grantee shall
remove all abandoned above-ground facilities and equipment upon
receipt of written notice from Grantor and shall restore any
affected Street to its former state at the time such facilities and
equipment were installed, so as not to impair its usefulness. In
removing its plant, structures and equipment, Grantee shall refill,
at its own expense, any excavation that shall be made by it and
shall leave all public ways and places in as good condition as that
prevailing prior to such removal without materially interfering
with any electrical or telephone cable or other utility wires,
poles, or attachments. Grantor shall have the right to inspect and
approve the condition of the pubic ways, public places, cables,
wires, attachments and poles prior to and after removal. The
liability, indemnity and insurance provisions of this Chapter and
the security fund as provided herein shall continue in full force
and effect during the period of removal and until full compliance
by Grantee with the terms and conditions of this Section.
(c) Upon abandonment of any Franchise property in place, the
Grantee, if required by the Grantor, shall submit to the Grantor an
instrument, satisfactory in form to the Grantor, transferring to
the Grantor the ownership of the Franchise property abandoned.
(d) At the expiration of the term for which the Franchise is
granted, or upon its revocation or earlier expiration, as provided
herein, in any such case without renewal, extension or transfer in
process, the Grantor shall have the right to require Grantee to
remove, at its own expense, all above-ground portions of the Cable
Television System from all Streets and public ways within the City
within a reasonable period of time, which shall not be less than
one hundred eighty (180) days.
(e) Notwithstanding anything to the contrary set forth in
this Chapter, the Grantee may abandon any underground Franchise
property in place so long as it does not materially interfere with
the use of the Street or public rights-of-way in which such
property is located or with the use thereof by any public utility
or other cable Grantee.
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6.76.390 Restoration by Grantor: Reimbursement of Costs
In the event of a failure by Grantee to complete any work
required herein or by any other law or ordinance, and if such work
is not completed within thirty (30) days after receipt of written
notice thereof from Grantor or, if more than thirty (30) days are
reasonably required therefor, if Grantee does not commence such
work within such thirty (30) days period and diligently complete
the work thereafter (except in cases of emergency constituting a
threat to public health, safety or welfare), Grantor may cause such
work to be done and Grantee shall reimburse Grantor the costs
thereof within thirty (30) days after receipt of an itemized list
of such costs, or Grantor may recover such costs through the
security fund provided by Grantee.
6.76.400 Extended Operation and Continuity of Services
Upon expiration or revocation of the Franchise, the Grantor
shall have the discretion to permit Grantee to continue to operate
the Cable Television System for an extended period of time.
Grantee shall continue to operate the System under the terms and
conditions of this Chapter and the Franchise and to provide the
regular Subscriber service and any and all of the services that may
be provided at that time. It shall be the right of all Subscribers
to continue to receive all available services provided that
financial and other obligations to Grantee are honored. The
Grantee shall use reasonable efforts to provide continuous,
uninterrupted service to its Subscribers, including operation of
the System during transition periods following Franchise expiration
or termination.
6.76.410 Receivership and Foreclosure
(a) A Franchise granted hereunder shall, at the option of
Grantor, cease and terminate one hundred twenty (120) days after
appointment of a receiver or receivers, or trustee or trustees, to
take over and conduct the business of 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 one hundred twenty (120)
days, or unless: (1) such receivers or trustees shall have, within
one hundred twenty (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 receivership or
trustees within said one hundred twenty (120) days shall have
remedied all the faults under the Franchise or provided a plan for
the remedy of such faults which is satisfactory to the Grantor; and
(2) such receivers or trustees shall, within said one hundred
twenty (120) days, execute an agreement duly approved by the court
having jurisdiction in the premises whereby such receivers or
trustees assume and agree to be bound by each and every term,
provision and limitation of the Franchise granted.
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(b) In the case of a foreclosure or other judicial sale of
the Franchise property, or any material part thereof, Grantor may
serve notice of termination upon Grantee and the successful bidder
at such sale, in which event the Franchise granted and all rights
and privileges of the Grantee hereunder shall cease and terminate
thirty (30) days after service of such notice, unless: (1) Grantor
shall have approved the transfer of the Franchise, as and in the
manner that this Chapter provides; and (2) such successful bidder
shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
6.76.420 Rights Reserved to Grantor
(a) In addition to any rights specifically reserved to the
Grantor by this Chapter, the Grantor reserves to itself every right
and power which is required to be reserved by a provision of any
ordinance or under the Franchise.
(b) The Grantor shall have the right to waive any provision
of the Franchise or its enforcement, except those required by
Federal or State regulation, if the Grantor determines (1) that it
is in the public interest to do so, and (2) that the enforcement of
such provision will impose an undue hardship on the Grantee or the
Subscribers. To be effective, such waiver shall be evidenced by a
statement in writing signed by a duly authorized representative of
the Grantor. Waiver of any provision in one (1) instance shall not
be deemed a waiver of such provision subsequent to such instance
nor be deemed a waiver of any other provision of the Franchise
unless the statement to recites.
6.76.430 Rights of Individuals
(a) Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, Channel users, or general
citizens on the basis of race, color, religion, national origin,
age (except as to minors) or sex. Grantee shall comply at all
times with all other applicable Federal, State and local laws and
regulations relating to nondiscrimination.
(b) Grantee shall adhere to the applicable equal employment
opportunity requirements of Federal, State and local regulations,
as now written or as amended from time to time.
(c) Neither Grantee, nor any Person, agency, or entity shall,
without the Subscriber's consent, tap, or arrange for the tapping,
of any cable, line, signal input device, or Subscriber outlet or
receiver for any purpose except routine maintenance of the System,
detection of unauthorized service, polling with audience
participating, or audience viewing surveys to support advertising
research regarding viewers where individual viewing behavior cannot
be identified, or for law enforcement purposes in accordance with
applicable law.
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(d) In the conduct of providing its services or in pursuit of
any collateral commercial enterprise resulting therefrom, Grantee
shall take reasonable steps to avoid the invasion of a Subscriber's
or general citizen's right of privacy or other personal rights
through the use of the System as such rights are delineated or
defined by applicable law. Grantee shall not without lawful court
order or other applicable valid legal authority utilize the
System's interactive two-way equipment or capability for
unauthorized personal surveillance of any Subscriber or general
citizen.
(e) No cable line, wire amplifier, converter, or other piece
of equipment owned by Grantee shall be installed by Grantee in the
Subscriber's premises, other than in appropriate easements, without
first securing any required consent. If a Subscriber requests
service, permission to install upon Subscriber's property shall be
presumed.
(f) The Grantee, or any of its agents or employees, shall not
sell, or otherwise make available to any party without consent of
the Subscriber pursuant to State and Federal privacy laws:
(1) Any list of the names and addresses of Subscribers
containing the names and addresses of Subscribers who request in
writing to be removed from such list; and
(2) Any list which identifies the viewing habits of
individual Subscribers, without the prior written consent of such
Subscribers. This does not prohibit the Grantee from providing
composite ratings of Subscriber viewing to any party.
SECTION 2.
SEVERABILITY
If any provision of this ordinance is held by any court or by
any Federal or State agency of competent jurisdiction, to be
invalid as conflicting with any Federal or State 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, such 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 thereof which
had been held invalid or modified is no longer in conflict with
such law, rule or regulation, said provision shall thereupon return
to full force and effect and shall thereafter be binding on Grantor
and Grantee, provided that Grantor shall give Grantee thirty (30)
days written notice of such change before requiring compliance with
said provision or such longer period of time as may be reasonably
required for Grantee to comply with such provision.
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SECTION 3.
PUBLICATION AND EFFECTIVE DATE
Pursuant to the provisions of Government Code § 36933, a
Summary of this Ordinance shall be prepared by the City Attorney.
At least five (5) days prior to the Council Meeting at which this
Ordinance is scheduled to be adopted, the City Clerk shall (1)
publish the Summary and (2) post in the City Clerk's office a
certified copy of this Ordinance. Within fifteen (15) days after
the adoption of this Ordinance, the City Clerk shall (1) publish
the Summary and (2) post in the City Clerk's office a certified
copy of the full text of this Ordinance along with the names of
those City Councilmembers voting for or against this Ordinance or
otherwise voting.
Introduced at a re§u]ar meeting of the City Council of
the City of South San Francisco, held the 25th day of 0ctober
, 1995.
Adopted as an Ordinance of the City of South San Francisco at
a requ]ar meeting of the City Council of the City of South
San Francisco, held the 8th day of November , 1995, by
following vote:
AYES:
Councilmembers Jack Drago, Joseph A. Fernekes, John R. Penna,
Roberta Cerri Teglia and Mayor Robert Yee
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST:~city
As Mayor of the City of South San Francisco, I do hereby
approve the foregooing Ordinance this 8th day of November ,
1995. , ~
C~bI~.TV
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