Rolling Hills Municipal Code Art. III Franchise Requirements

Standards for minimum service and standards governing consumer protection, including grantee's response to subscriber complaints, which standards are not otherwise provided for in this chapter, may be specified in the franchise agreement. Grantee shall comply with all such standards in the operation of the cable television system.

(Ord. 224 § 1(part), 1990).

A. Following the issuance and acceptance of the franchise, grantee shall pay to the City a franchise fee of five percent of the annual gross receipts, as defined herein, at such times and in accordance with such procedures as may be set forth in the franchise agreement.

B. The grantee shall file with the City's Director of Finance, at a time specified in the franchise agreement but not later than ninety days after the expiration of any calendar year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant, or other qualified person satisfactory to the City, setting forth in detail the annual gross receipts of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the City, within fifteen days after the time for filing such financial statement, the sum hereinabove prescribed or any such unpaid balance thereof for the calendar year or portion thereof covered by such statement.

C. The City shall have the right to inspect the grantee's records showing the annual gross receipts on which its franchise fee is computed and the right of audit and recomputation of any and all amounts paid under this chapter. 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 chapter or for the performance of any other obligation hereunder.

D. Upon any holding over after expiration or other termination of any franchise granted hereunder, without the express written consent of the City, the grantee shall pay to the City reasonable compensation and damages of not less than one hundred percent of its total gross profits attributable to all operations of the cable television system within the franchise service area during said period.

(Ord. 224 § 1(part), 1990).

The franchise agreement between the City and the grantee of a cable television system franchise may include terms and provisions relating to one or more, or any combination of, the following forms of security to guarantee performance of the grantee's obligations:

A. Security Fund.

1. The City may require grantee to deposit into an interest-bearing bank account, established or approved by the City, a sum established by the City as a security fund. This sum shall be maintained on deposit throughout the term of the franchise, and all interest thereon shall be payable to grantee.

2. The security fund shall be available to City to satisfy any and all claims, penalties, liens, fees, payments, costs, damages, or taxes due City from grantee which arise by reason of construction, operation, or maintenance of the cable television system.

3. Grantee may withdraw any interest accrued on the security fund at any time. However, during the existence of the security fund, grantee shall not withdraw any part of the principal amount without the prior written consent of the City.

4. Subject to City approval, these security fund requirements may be satisfied by an irrevocable letter of credit in favor of the City and in a form approved by City.

5. After notice and hearing requirements specified in this chapter have been satisfied, if the grantee fails or refuses to pay to the City any amounts due under the terms and provisions of this chapter or the franchise agreement, the City may thereafter withdraw from the security fund the amount thereof, plus accrued interest and penalties. Upon such withdrawal, the City shall give written notice to grantee of the amount and date of withdrawal.

6. Within thirty days after receipt of written notice from the City to grantee that any amount has been withdrawn from the security fund by the City to satisfy any of grantee's obligations specified in subdivision (2) above, the grantee shall deposit sufficient moneys to restore the security fund to the amount required by the franchise agreement.

7. Any security fund established by a franchise agreement shall become the property of the City if the franchise is revoked for cause by reason of any violation of the grantee as specified in Section 5.08.300(B) (6). Within ninety days after expiration of the term of the franchise, grantee shall be entitled to the proceeds of the security fund then on deposit, provided, however, that grantee is not then in default of its obligations under the franchise agreement.

8. The rights reserved to the City with respect to the security fund shall be in addition to all other rights of the City pursuant to this chapter and the franchise agreement; and the City's exercise of rights with respect to the security fund shall not constitute an election of remedies or a waiver of any other rights the City may have.

B. Performance Bond.

1. Concurrently with grantee's acceptance of the grant of a new franchise, or the renewal of an existing franchise, either of which requires significant construction or reconstruction of the cable television system, and prior to the commencement by grantee of any such work, the City may require the grantee to file with the City Clerk a performance bond in such form and in such amount as may be specified in the franchise agreement.

2. Any performance bond so filed shall be in a form approved by the City Attorney and may be reduced in principal amount or exonerated upon completion and City approval of all work of construction or reconstruction required by the franchise agreement.

(Ord. 224 § 1(part), 1990).

A. In connection with any franchise granted, City shall have the right to establish a commission, committee, association, corporation or other entity to receive and allocate support funds, facilities, equipment or other consideration to be provided by grantee or other sources to develop, provide and manage public, educational and governmental access facilities.

B. Grantee's obligations to support or promote PEG access facilities, or to provide channel capacity, cabling, interface equipment or other technical assistance, shall be specified in the franchise agreement.

(Ord. 224 § 1(part), 1990).

A. The property of grantee to be constructed and operated under the franchise shall be constructed of first-class materials in good and workmanlike manner and shall be maintained at all times in good working condition.

B. Unless otherwise provided in the franchise agreement, grantee shall design and construct the cable television system to pass every single-family dwelling unit, school and governmental building within the designated franchise service area.

C. After activating trunk cables to establish service for any area, grantee shall provide cable service to any requesting subscriber within that area not later than thirty days from the date of request.

D. The grantee shall not deny access to cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which the group resides; provided, however, that grantee shall not be required to build a line extension to a residence if grantee reasonably demonstrates that it is too remote and that the cost to wire is substantially above the average cost of providing cable television service in the City.

E. Grantee shall not construct or install any poles, conduits or other system facilities within City streets until the grantee has secured all necessary permits, approvals or other authorization from the City, and has obtained any required consent from the Federal Aviation Administration to erect and maintain antenna for the operation of the cable television system.

F. No poles or attachments thereto shall be erected or maintained by grantee in any public street or private easement in which there then exists or is being erected a pole line of any public or private entity engaged in service to the public as an electric or telephone utility, and such pole line is or will be reasonably available for use by the grantee pursuant to a pole line rental agreement.

G. In those areas of the City where transmission or distribution facilities of any public utility providing telephone or electric power service are underground, the grantee shall likewise construct and maintain its transmission or distribution facilities underground.

H. In those areas of the City where grantee's cables are located on the above-ground transmission or distribution facilities of a public utility providing telephone or electric power service, and if such public utility facilities or any part thereof are subsequently placed underground, then the grantee shall likewise reconstruct, operate and maintain its transmission or distribution facilities underground.

I. Amplifiers and other electrical facilities to service underground cables may be pad-mounted.

J. If any portion of a street is damaged by reason of the installation or maintenance of any facility constructed under a franchise, the grantee shall, at its sole expense, immediately following written or oral notification thereof, repair such damage and put such street in as good condition as it was before such damage, to the satisfaction of the City Manager or his designee. Verbal notification will be confirmed by the City in writing within forty-eight hours.

K. Grantee shall maintain and upgrade the cable television system and cable services to reflect those technological and economic advancements during the term of the franchise which will benefit the public in terms of new and more effective and efficient service.

L. The grantee of the cable television system franchise shall make lockboxes available to subscribers without charge.

M. Grantee shall neither remove any tree, nor trim any portion of a tree, either above, at or below ground level, on public property without the prior consent of City. City shall have the right to undertake any tree removal or tree trimming requested by grantee at grantee's expense.

N. Grantee shall comply with all applicable building codes and permit procedures of the City. City shall be entitled to charge reasonable permit and inspection fees to recover all inspection costs attributable to construction or reconstruction of the cable television system.

O. Grantee shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any City street or public place any property of the grantee when so directed by the Director of Public Works by reason of traffic conditions, public safety, street vacation, freeway and street construction or realignment, grade separation, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signals, tracks or any other structures, facilities or improvements undertaken or authorized by the City or other public agencies having jurisdiction; provided, however, that in all such cases grantee shall have the right to abandon its property in place, in accordance with the applicable provisions of Section 5.08.320.

P. All transmission lines, equipment and structures shall be installed and located so as to minimize interference with the rights and convenience of property owners. The grantee shall, at all times, use ordinary care and shall utilize commonly accepted methods and devices to prevent failures and accidents which may cause damage, injuries or nuisances to the public. Suitable barricades, flags, lights, flares and other devices shall be used at such times and places as are reasonably required for the safety of the public. Poles or other fixtures placed in any street or public way by the grantee shall be placed so as not to interfere with normal pedestrian and vehicular traffic.

Q. City shall have the right to inspect grantee's property, and all construction and installation work performed by grantee, and to perform such tests as it may deem necessary in order to ensure compliance with the terms and provisions of the franchise agreement, this chapter, and other applicable laws, ordinances and regulations.

(Ord. 224 § 1(part), 1990).

A. Grantee shall construct, operate and maintain its cable television system in compliance with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any other detailed standards submitted by the grantee as part of its application and approved by the City. Any modification of FCC technical standards shall, to the extent applicable, deemed a part of the franchise as of the effective date of the modification.

B. During the term of the franchise, grantee shall maintain FCC technical standards and quality of service as set forth in this chapter and the franchise agreement. Should the City determine that the grantee has failed to maintain FCC technical standards and quality of service, and should the City specifically identify improvements to be made, the grantee shall make such improvements. Failure to make such improvements shall constitute a material breach of the franchise, as provided in Section 5.08.270.

C. The franchise agreement entered into by City and grantee may contain technical and signal quality standards exceeding the standards required by the FCC. If it becomes necessary to do by virtue of preemption by the FCC or otherwise, grantee shall cooperate with City and execute all documents necessary to obtain a waiver of FCC technical standards so as to facilitate implementation of agreed-upon standards.

(Ord. 224 § 1(part), 1990).

A. If federal laws or regulations are hereafter amended so as to permit City to regulate the grantee's rates and charges for service to subscribers, City reserves the right and authority to regulate and control such rates and charges and to amend this chapter to set forth a procedure for reviewing and approving requests for increases in rates and charges.

B. Grantee shall provide all subscribers and the City with not less than thirty days' prior written notice of any proposed changes in rates and charges and any proposed reduction or augmentation of programming services.

(Ord. 224 § 1(part), 1990).

Grantee shall indemnify, defend and hold harmless City, its officers, agents and employees, from any liability, claims, damages, costs or expenses, including reasonable attorney's fees, arising from injury to persons or damages to property proximately caused by any conduct undertaken by the grantee, its agents, employees, or subcontractors, by reason of the franchise. Grantee shall at its sole cost and expense, upon demand of City, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, instituted by third persons or duly constituted authorities, against or affecting City, its officers, agents or employees, and arising out of or pertaining to the exercise of rights arising under the franchise.

(Ord. 224 § 1(part), 1990).

A. On or before the commencement of franchise operations, the grantee shall obtain policies of liability, workers' compensation and property insurance from companies authorized to transact business in this state by the California Insurance Commissioner.

B. The policy of liability insurance shall:

1. Be issued to grantee and name City, its officers, agents and employees, as additional insureds;

2. Indemnify City against all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to the franchise agreement by providing coverage therefor, including the following:

a. Negligent acts or omissions of grantee or its agents, servants and employees, committed in the conduct of franchise operations, and

b. 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;

4. Be subject to the review and approval of the City Attorney.

C. The policy of Workers' Compensation Insurance shall be in such amount and shall provide such coverage as may be required by the applicable provisions of the California Labor Code.

D. The policy of property insurance shall provide fire insurance with extended coverage, as well as burglary and theft insurance, on the inventory, trade fixtures, furnishings and equipment to be used by grantee in the conduct of franchise operations in an amount specified in the franchise agreement which is adequate to enable grantee to resume franchise operations following the occurrence of any of the risks covered by said insurance.

E. Concurrently with grantee's acceptance of the grant of a new franchise, or the renewal of an existing franchise, grantee shall file with the City Clerk either certified copies of said policies, executed by the insurance carrier, and certifying that the policy is in force. The following shall be provided with respect to each such policy:

1. The named insured and any additional insureds;

2. The policy number;

3. The date upon which the policy became or will become effective and the date upon which it will expire;

4. The type and amount or limits of coverage provided by the insurance;

5. A description of all endorsements that form a part of the policy;

6. An endorsement providing that written notice shall be given to City at least thirty calendar days prior to termination, cancellation or reduction in coverage of the policy.

F. If grantee fails to maintain any of the above- described policies in full force and effect, City shall have the right to procure the required insurance and recover the cost thereof from grantee. City shall also have the right to terminate and revoke the franchise.

G. The requirements as to the types and limits of insurance to be maintained by grantee are not intended to and shall not in any manner limit or qualify grantee's liabilities and obligations under the franchise agreement or this chapter.

(Ord. 224 § 1(part), 1990).

A. Consummation of the following transactions related to any franchise granted by the Council, or involving any grantee of a franchise, shall require the prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed:

1. The sale, transfer, lease, assignment or other disposition of the franchise, in whole or in part, whether voluntary or involuntary; provided, however, that such consent shall not be required for a transfer in trust, mortgage or other hypothecation for the purpose of securing an indebtedness of the grantee relating to the construction, reconstruction, operation or maintenance of the cable television system. A transfer, assignment or other disposition of a franchise shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Clerk within thirty days after Council adoption of the resolution consenting to such transfer, assignment or other disposition;

2. Any merger, consolidation, reorganization, business combination, or other transaction wherein or whereby fifty percent or more of the ownership interests in the change or be subject to change. As used herein, "control" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the grantee. A duly executed copy of any written instrument evidencing the closing and consummation of any such transaction shall be filed in the office of the City Clerk within thirty days after Council adoption of the resolution consenting to such transaction.

B. In determining whether it shall consent to any transfer, assignment or other disposition of the franchise, or to any transaction affecting the control of the Grantee, the City may evaluate the financial, technical, legal and other qualifications of the proposed transferee or controlling person. Grantee shall ensure that the proposed transferee or controlling person submits an application, in the form required of an initial franchise applicant, not less than sixty days prior to the closing date of the proposed transaction. After considering the financial, technical, legal and other qualifications of the proposed transferee or controlling person, the Council may by resolution authorize the proposed transaction, subject to such conditions as may be in the public interest. City's consent to any such transaction shall not be unreasonably denied or delayed.

C. Grantee and its proposed transferee or controlling person shall be jointly and severally responsible for reimbursement to the City of all costs and expenses reasonably incurred in processing and evaluating the application related to the proposed transaction, as provided for in Section 5.08.070 of this chapter.

(Ord. 224 § 1(part), 1990).

A. Grantee shall provide to the City a copy of the written report of the results of all annual proof of performance tests conducted pursuant to FCC standards and requirements.

B. Within ninety days after the end of each calendar year, grantee shall submit a written annual report in a form approved by the City. Said annual report shall include, without limitation, the following information:

1. A summary of the previous year's activities in development of the cable television system, including, but not limited to, cable services commenced or discontinued during the previous year, and data concerning subscriber participation in each class or category of service;

2. A statement of construction costs incurred for component categories of the cable television system;

3. A list of grantee's current officers, directors, and principal management personnel;

4. A list of those stockholders or other equity investors who each own ten percent or more of the grantee's voting stock;

5. A map of those areas where additional cable television service is planned and a schedule describing the anticipated implementation;

6. Maps or lists indicating where any type of special cable service is available;

7. The numbers of single-family homes passed, single-family subscribers, multiple-dwelling units passed, multiple-dwelling unit subscribers, commercial subscribers, additional cable television outlets, and saturation;

8. A description of any expansion of the cable television system during the previous year, including a measure, in miles of cable, of such expansion. Expansions to new developments shall be identified;

9. Copies of blank forms of current subscriber agreements;

10. Steps taken to ensure that the privacy rights of individuals are being protected, as required by the provisions of this chapter;

11. An opinion survey report which identifies subscribers' satisfaction or dissatisfaction with services offered by grantee. The surveys required to prepare said report shall be conducted by grantee in conformity with such requirements, including supervision, as City may prescribe.

C. Concurrently with the submission of the annual report, grantee shall also submit to City an annual plant survey report. Said report shall include, but not be limited to, an engineering evaluation, including suitable electronic measurements, conducted in conformity with such requirements, including supervision, as City may prescribe. Said report shall be in sufficient detail to enable City to ascertain that the FCC technical standards and those of the franchise are achieved and maintained. Should City determine that reasonable grounds exist for concluding that the technical performance of the cable television system is inadequate, then, at City's request, grantee and City shall agree upon the appointment of a qualified independent engineer to evaluate the technical performance of the cable television system. The cost of such evaluation shall be borne by grantee.

D. Grantee shall submit to City 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 related to grantee's cable television operations within the franchise service area. Grantee shall submit such documents to City simultaneously with their submission to such court, agency or body, or within five days after their receipt from such court, agency or body. Information protected by law from disclosure and so designated by grantee, which is submitted to City, shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection.

E. During the term of the franchise, grantee shall submit to City a quarterly summary of all complaints received in the previous calendar quarter, identifying the number and nature of complaints and their disposition.

F. Grantee shall at all times maintain a complete set of plans and "as-built" maps showing the exact location of all cable television system facilities and equipment installed or in use in the City, excluding subscriber service drops and equipment provided in subscribers' homes. Said plans and maps shall be available to the City for inspection and copying during regular business hours.

G. Grantee shall prepare and submit to City such other information or reports with respect to its operations, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or its officers in connection with the franchise. Such information or reports shall be in such form and submitted at such times as City may reasonably request.

H. All documents and reports submitted to the city pursuant to this section, except those protected by law from disclosure, shall be available for public inspection in the City's offices during normal business hours.

I. All documents and reports required under this section or any provisions of this chapter shall be prepared and submitted at the sole expense of grantee.

(Ord. 224 § 1(part), 1990).

A. Each year during the term of the franchise, if requested by the City, grantee and the City shall meet publicly to review system performance and quality of service.

B. Reports submitted by grantee pursuant to the provisions of this chapter shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during any review meeting, either orally or in writing, and these shall be considered. Within thirty days after the conclusion of a system performance review meeting, City may issue findings with respect to the adequacy of system performance and quality of service.

C. If inadequacies are identified, City may direct grantee to correct the inadequacies within a reasonable period of time. Failure of grantee, after due notice, to correct the inadequacies shall be considered a material breach of the franchise, and City may impose any appropriate penalty authorized by this chapter or the franchise agreement.

(Ord. 224 § 1(part), 1990).

A. When numerous subscriber complaints are received, or where there exists other evidence which, in the judgment of the City, casts reasonable doubt on the reliability or quality of the cable television service, the City 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. Such test or tests shall be made and the report thereof shall be delivered to the City no later than fourteen days after the City notifies the grantee that it is exercising such right. 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 procedures by which such complaints were resolved. Any other information pertinent to the test or tests shall be set forth.

B. If so requested by the City, said tests and analyses shall be supervised, at the expense of the grantee, by a professional engineer who is not affiliated with the grantee. The engineer shall sign all records of such tests and forward such records to the City with a report interpreting the results of the tests and recommending actions to be taken.

(Ord. 224 § 1(part), 1990).

The City may hold special evaluation sessions at any time during the term of the franchise. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions shall be open to the public and advertised in a newspaper of general circulation at least fifteen days prior to the scheduled date.

(Ord. 224 § 1(part), 1990).