50578/07/89
Ordinance No. 5057
AN ORDINANCE OF THE CITY OF ANAHEIM GRANTING
TO EMPIRE CABLE TELEVISION, INC. THE
NONEXCLUSIVE RIGHT, PRIVILEGE AND FRANCHISE TO
LAY AND USE LINES, WIRES, COAXIAL CABLE AND
APPURTENANCES FOR TRANSMITTING, RECEIVING,
DISTRIBUTING AND SUPPLYING RADIO, TELEVISION
AND OTHER CABLE COMMUNICATION SERVICES ALONG,
ACROSS AND UPON CERTAIN PORTIONS OF THE PUBLIC
STREETS, WAYS, ALLEYS, AND PLACES WITHIN
PORTIONS OF THE CITY OF ANAHEIM
THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS
FOLLOWS:
SECTION 1. FRANCHISE.
A nonexclusive franchise is hereby granted to Empire Cable
Television, Inc. ("Grantee") for the transmitting, receiving,
distributing and supplying radio, television, and other cable
communication services along, across and upon the public
streets, ways, alleys and places within those portions of the
City of Anaheim described in Exhibit A, which is attached
hereto and by this reference incorporated herein. The
portions described in Exhibit A are hereafter referred to as
the "Franchise Area."
SECTION 2. RULES OF CONSTRUCTION.
This Ordinance shall be construed liberally in order to
effectuate its purposes. Unless otherwise specifically
prescribed in this Ordinance, the following provisions shall
govern its interpretation and construction:
(a) When not inconsistent with the context, words used
in the present tense include the future, words in the plural
number including the singular number, and words in the
singular number include the plural number.
(b) Time is of the essence of this Ordinance. Grantee
shall not be relieved of its obligation to comply promptly
with any provision of this Ordinance by any failure of City
to enforce prompt compliance with any of its provisions. .
(c) Any right or power conferred, or duty imposed upon
any officer, employee, department or board of City is subject
to transfer by operation of law to any other officer,
employee, department or board of City.
(d) Grantee shall have no recourse whatsoever against
City for any loss, cost, expense or damage arising out of any
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provision or requirement of this Ordinance or the enforcement
thereof.
(e) This Ordinance does not relieve Grantee of any
requirement of the City Charter or of any Ordinance, rule,
regulation, or specification of City including, but not
limited to, any requirement relating to street work, street
excavation permits, undergrounding of utility facilities,
including cable system facilities, or the use, removal or
relocation of property in streets.
(f) Provisions of this Ordinance shall be construed in
accordance with Sections 1400, 1401, 1402, 1403, 1404, 1405
and 1406 of the Charter of the City of Anaheim.
SECTION 3. PURPOSE OF INTENT.
It is the purpose and intent of this Ordinance to grant a
franchise to engage in the business of operating a cable
communication system in the Franchise Area of the City of
Anaheim particularly described in Section 5 of this
Ordinance. It is the further purpose and intent of this
Ordinance that the Grantee of the franchise granted by this
Ordinance provide the citizens of the City of Anaheim the
best possible community cable communication services
consistent with the state of art and rates reasonable to both
Grantee and its subscribers.
SECTION 4. DEFINITIONS
Whenever in this Ordinance the following words or phrases are
used, they shall mean;
(a) "City" shall mean the City of Anaheim, a municipal
corporation in the State of California.
(b) "Council" shall mean the City Council of the City.
(c) "Franchise" shall mean the right and authority
granted by this Ordinance to Grantee to construct, maintain
and operate a cable communication system through use of the
public streets, other public rights of way or public places
in the City within the Franchise Area.
(d) "Franchise Property" shall mean all property owned,
installed or used under authority of this Ordinance by
Grantee.
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(e) "Grantee" shall mean Empire Cable Television, Inc.
(f) "Street" shall mean the surface, the air space
above the surface and the area below the surface of any
public street, other public right of way or public place.
(g) "Cable communication System" referred to in this
Ordinance as "Cabled System" shall mean the broadcast signal
reception, processing, and signal generation facilities and
the cable distribution system, as described in the
Specifications for construction, operation and maintenance of
the Cable Communication System for the City of Anaheim.
(h) "Subscriber" shall mean any person or entity
receiving for any purpose the cable service of Grantee.
(i) "Total Gross Receipts" shall mean any and all
compensation and other consideration collected or received or
in any manner gained or derived by Grantee from the operation
of its cable service within the corporate limits of the City
of Anaheim as such corporate limits now exist or may be
established hereafter. Total gross receipts shall include
regular monthly subscriber fees for both standard and
reconnect charges, and changes for use of access, origination
or private service channels in either service direction.
SECTION 5. NATURE AND EXTENT OF GRANT
The franchise granted by this Ordinance to Grantee
constitutes authority to use the public streets, other public
rights of way or public place in City, to engage in the
business of operating a cable communication system, as
defined herein, within the Franchise Area subject too all of
the terms and conditions contained in this Ordinance.
Pursuant to such authority, until lawfully revoked, Grantee
may construct, maintain and operate wires, cables, poles,
conduits, manholes or any other equipment which is a means of
transmitting and receiving signals.
Grantee shall not engage in the business of selling at
retail, leasing, renting, repairing or servicing television
sets or radios nor engage in the sale of parts for such
equipment.
When requested, Grantee shall receive and distribute access
programming signals from and to headend of other (third
party) communication service operators who are authorized by
the City to offer such services within the City. Signal
carriage shall be provided on cable system access channels by
Grantee at uniform rates approved by the City. Equipment and
installation required to bring the signals to and from the
cable system headend and to condition such signals for
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application to the cable system shall be provided by the
(third party) communication service operator.
SECTION G. TERRITORIAL AREA INVOLVED.
This franchise relates to the Franchise Area of the City.
Construction of Grantee's cable system shall be in accordance
with the provisions of Section 9 of this Ordinance.
SECTION 7. DURATION OF GRANT.
(a) The franchise shall become effective on the
thirtieth (30) day after the passage of this Ordinance
provided, prior to that date, Grantee has filed with the City
Clerk: (1) a written instrument addressed to the Council
accepting the franchise and agreeing to comply with all
provisions of this Ordinance; (2) a surety bond, cash deposit
or deposit in any federal or State of California chartered
bank or savings and loan association in accordance with the
provisions of Section 19 of this Ordinance.
(b) The term of the franchise granted hereunder shall
be fifteen (15) years commencing on the effective date of the
franchise as provided in Paragraph (a) of this section. The
franchise granted hereunder may be renewed upon application
by the Grantee pursuant to the provisions of applicable state
and federal law. City is under no obligation to grant such
renewal and such renewal is subject to the provisions of
Section 1400, 1401, 1402, 1404, 1405 and 1406 of the Charter
of the City of Anaheim except to the extent those Charter
provisions are preempted by federal or state law.
(c) In the event of purchase by the Grantor, or a
change of Grantee, the current Grantee shall cooperate with
the City, or with a representative appointed by the Grantor
to operate the System for a temporary period in maintaining
continuity of service to all subscribers.
RFC_TTON 8. LIMITATIONS UPON GRANT.
No privilege or exemption is granted or conferred by this
Ordinance except those specifically prescribed in it.
The franchise granted by this Ordinance is subordinate to any
existing public use or any existing franchise or lawful
occupancy or any public highway, street, road or other public
property for the purpose of erecting, operating and
maintaining poles, lines, conduits, cables, gas pipelines and
other necessary fixtures used in connection with the purpose
of existing franchises or any extension of them.
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The franchise granted by this Ordinance is a privilege
personal to the original Grantee. It cannot, in any event,
be sold, transferred, leased, assigned, or disposed of as a
whole, or in part, or otherwise, without prior consent of
City expressed by Ordinance, and then only under such
conditions as may be prescribed in the consenting Ordinance;
provided, however, that no such consent shall be required for
any transfer in trust, mortgage, or other hypothecation, as a
whole, to secure an indebtedness.
In the event that Grantee is a corporation, prior approval of
the City Council, expressed by Ordinance, shall be required
where ownership or control of more than thirty percent (30%)
of the voting stock of Grantee is acquired by a person or
group of thirty percent (30%) or more of the voting stock,
singularly or collectively. Any such acquisition occurring
without prior approval of the City Council shall constitute a
failure to comply with a material provision of this franchise
Ordinance.
SECTION 9. OPERATION OF SERVICE
(a) Within thirty (30) days after acceptance of the
franchise granted hereunder, the Grantee shall proceed with
due diligence to obtain all necessary permits and
authorizations which are required in the conduct of its
business including, but not limited to, any utility joint use
attachment agreements, microwave carrier licenses, and any
other permits, licenses and authorizations to be granted by
duly constituted regulatory agencies having jurisdiction over
the operation of cable television systems, associated
microwave transmission/reception facilities and/or satellite
communications facilities.
(b) Within ninety (90) days after obtaining all
necessary permits, licenses and authorizations, including
right of access to poles and conduits, Grantee shall commence
construction and installation of its cable television system
within the Franchise Area. The City acknowledges and agrees
that construction of Grantee's system in the aforesaid Area
shall proceed at approximately the same pace as the new
residential construction. Grantee, in turn, agrees to make
service available to each and every resident of aforesaid
Area not more than sixty (60) days from the date each
resident moves into his or her unit. subject only to the
Force Majeure provisions of Section 32 herein, and in the
case of multi -family housing, the Grantee's being able to
access the premises under reasonable terms and conditions.
(c) Failure on the part of the Grantee to commence and
diligently pursue each of the foregoing requirements and to
complete each of the matters set forth herein, shall be
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grounds for termination of such franchise. By resolution,
the Council, in its discretion, may extend the time for the
commencement and completion of installation and construction
for additional periods in the event the Grantee, acting in
good faith, experiences delays by reason of circumstances
beyond his control.
By acceptance of the franchise granted hereunder, Grantee
agrees that failure to comply with any timerequirements
referred to in Subsections (a), (b) and (c), or a
s extended
by the City Council, of this section will result in damage to
the City, and that it is and will be impracticable to
determine the actual amount of such damage in the event of
delay; and Grantee therefore agrees that it will pay to the
City the sum of Five Hundred Dollars ($500.00) per day for
each and every day's delay beyond the time prescribed, plus
authorized extensions thereof, for completion of any of the
acts required to be done by this Section.
SECTION 10. MINIMUM CABLE SERVICE REQUIREMENTS.
(a) As a minimum, the cable television system permitted
to be installed and operated hereunder shall:
(1) Be operationally capable of relaying to all
subscriber terminals those television and radio broadcast
signals for the carriage of which the Grantee is hereafter
authorized by the Federal, Communications Commission if such
authorization is required.
(2) Be constructed with the capacity for two-way
return communication. The Grantee shall provide return
communication within one hundred eighty (180) days of the
date City Council so directs and the same is economically
feasible.
(3) Have a minimum capacity of fifty-four (54)
television channels and twenty (20) FM channels to all
subscribers expressly providing to all subscribers any
required converters, cable selection switch(es) or other
devices required for the subscriber to receive all carried
standard channels.
(4) Grantee shall dedicate up to six (6) channels
for public, educational, and governmental use: three of the
channels shall be dedicated upon commencement of Grantee's
cable television service within the City (hereinafter
referred to as Commencement of Service"), and up to three
additional channels as needed. Such channels shall be
without charge to the City. One of these channels shall
employ a colorized alphanumeric character generator with
local display to be located at the direction of the City.
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(5) If the City's other cable television operator
provides an emergency alert system that can provide audio
broadcast of emergency announcements or information over
local access channels, Grantee shall either interconnect with
this system or provide its own emergency alert system, which
will enable audio broadcast of emergency announcements and
information to all cable subscribers throughout the City at
the same time.
(6) Within 180 days of the effective date of this
franchise, Grantee shall take all reasonable steps to
negotiate and enter into an agreement with the City's other
cable television operator, on reasonable terms and
conditions, to share access programming and allow
simultaneous cablecasting of such programming on both
systems. Grantee shall offer to pay a proportionate share of
the cost of producing such programming, including use of
studio facilities and equipment by all Anaheim residents.
Grantee shall build, at its own cost, a return line from the
closest point of the other cable operator's system to
Grantee's microwave hub site.
(7) In the event that Grantee is not able to
negotiate and enter into an agreement with the City's other
cable television operator that permits Grantee's Anaheim
system to receive and cablecast the other operator's live and
tape delayed access programming, Grantee shall provide the
following items:
(a) Grantee shall make available to Anaheim
residents a local origination and public, educational and
governmental access studio comparable to the studio and on
terms and conditions required by the other cable operator's
franchise with the City (Ordinance No. 4087 as amended by
Ordinance 4789) within the City of Anaheim or such other
location reasonably acceptable to the City.
(b) Within one (1) year of beginning
construction of its cable television system, Grantee shall
make available, at no cost to the city, a professional
quality color video camera, video tape recorder, and other
equipment necessary to video tape such events as the City may
determine in its discretion.
(c) Grantee shall cablecast public,
educational, governmental, or other local origination
programming produced by any Anaheim resident provided such
programming is made available to Grantee. Grantee shall
cablecast other access programming shown by the City's other
cable television operator provided such programming is made
available to Grantee. In addition, Grantee may select and
cablecast on its Anaheim cable system access programming from
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its cable systems in other cities, which it believes would be
of general interest to its Anaheim subscribers.
(d) Grantee shall construct a microwave link
between its Yorba Linda headend and Anaheim
heim civic Center ter that
will permit the live cablecasting cabevents,
asts
provided that the City's other cable r,operator(s)ossesses the
live from the Anaheim Civic Center,
activated capacity to do so.
(b) Grantee shall:
(1) Operate the cable system authorized
b ysthis
Ordinance twenty-four (24) hours per day, seven
per
week.
(2) Maintain an office within five (5) driving
miles of the Franchise Area, which office shall be open
during all the usual business hours, have a local telephone
number listed in the directories of the Pacific Telephone and
Telegraph Company for Anaheim extended areas, and be so
operated that complaints and requestsfor repairight, seven
or
adjustments may be received at anyda time, y
(7) days a week.
(3) offer efficient service, effecting repairs
promptly and interrupting service only for good cause and for
the shortest time possible; such interruptions insofar as
possible shall be preceded by notice given to subscribers
twenty-four (24) hours in advance and shall occur during
periods of minimum use of the system.
(4) Limit system failures to minimum time duration
by locating and correcting malfunctions promptly and if
possible not longer than twenty-four (24) hours after
occurrence, if reasonably possible, irrespective of holidays
or other nonbusiness hours. No charge shall be made to the
subscriber for this service. The remedies specified in
Section 12(d) of this Ordinance shall apply for interruptions
of greater than 24 hours.
(5) Establish procedures for receiving, acting
upon and resolving subscriber complaints to the satisfaction
of the City Manager. The Grantee shall furnish a notice of
such procedures to each subscriber at the time of initial
subscription to the system.
(6) Maintain a written record, or "log" listing
date and time of customer complaints, identifying the
subscriber and describing the nature of the complaints and
when and what action was taken by the Grantee in response
thereto; such eoperations
Grantee's
nperiodlocal
atfleast
reflecting pe at ons to date for a
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three (3) years, and shall be available for inspection during
regular business hours without further notice or demand by
A --h-- City Manager.
(c) In the event that a customer complaint is not
resolved to the mutual satisfaction of the customer or the
Grantee, either the customer or the Grantee may request that
the matter be presented to the City Manager for a hearing and
resolution.
When there have been similar complaints made or where there
exists other evidence which, in the judgment of the City
Manager casts doubt on the reliability or quality of cable
serviced, the City Manager shall have the right and authority
to compel the Grantee to test, analyze, and report on the
performance of that part of the system involved in the
problem. Such test or tests shall be made and the reports of
such test or tests shall be delivered to the City no later
than fourteen (14) days after the City formally notifies the
Grantee. Such report shall include the following
information: the nature of the complaint which precipitated
the special tests; what system component was tested; the
equipment used and procedures employed in said testing; the
results of such tests; what system component was tested; the
equipment used and procedures employed in said testing; the
results of such tests; and the method in which such
complaints were resolved. Any other information pertinent to
the special test shall also be recorded.
The City's right under this provision shall be limited to
requiring tests, analyses, and reports covering specific
subjects and characteristics based on said complaints or
other evidence when and under such circumstances as the City
has reasonable grounds to believe that the complaints or
other evidence require that tests be performed to protect the
public against substandard cable service.
(d) The cable television system permitted to be
installed and operated hereunder may also engage in the
business of:
(1) Transmitting original cablecast programming
not received through television broadcast signals;
(2) Transmitting television pictures, film and
videotape programs not received through broadcast television
signals, whether or not encoded or processed to permit
reception by only selected receivers or subscribers;
(3) Transmitting and receiving all other signals:
digital, voice and video.
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(e) The Grantee shall provide one (1) subscriber
connection without cost and, as designated by the Council,
when the system passes within five hundred (500) feet of the
lot line or boundary of any of the following facilities:
(1) Public schools and community colleges within
the City.
(2) Buildings owned
used for public purposes (fire
and not solely for residential
and controlled by the City
and police stations included)
use.
(f) When service is within five hundred (500) feet of
the lot line or boundary of the Anaheim Convention Center,
Civic Center, Stadium and such public facilities as
designated by the City Manager, the Grantee shall provide
both one (1) subscriber connection and an origination
connection capability at said facility. Said origination
capability shall be limited to:
(1) Installation of a television modulator or
equivalent device capable of utilizing standard audio and
video baseband signals.
(2) The necessary cable distribution system
upstream or equivalent transmission capacity.
(3) The necessary system headend equipment
required to distribute Convention Center, Civic Center,
Stadium and such public facilities, as designated by the City
Manager, upstream to all subscribers.
SECTION 11.
TECHNICAL PERFORMANCE STANDARDS.
The CATV system shall be designed, installed, maintained and
tested in accordance with best CATV industry practice and, as
a minimum, shall conform with the technical performance
standards contained herein. In addition, should the Federal
Communications Commission (FCC) or other State or Federal
authority having jurisdiction impose CATV system technical
performance standards either outside the scope of the
technical performance standards contained herein, or
requiring a higher level of CATV system performance, those
standards are hereby incorporated herein by reference.
If, for any reason, the referenced FCC or other technical
standards shall become reduced in the regional scope or
service level, the more stringent standards herein shall
remain in effect.
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(a) Performance of the CATV system as measured at any
subscriber terminal with matched 75 ohm termination shall be
as follows?:
(1) The frequency boundaries of cable television
channels delivered to subscriber terminals shall conform to
those set forth in FCC 73.603(a) or subsequent FCC standard.
(2) If no frequency converter is supplied to the
subscriber, the visual carrier frequency shall be maintained
1.25 MHz+25 kH2 above the lower frequency boundary of the
cable television channel. If a frequency converter is
supplied to the subscriber by the cable television system,
the following requirement shall be applied at the interface
between the converter and the subscriber's terminal
equipment: when the visual carrier or the output of the
converter has been tuned to a frequency 1.25MHz above the
owner frequency boundary of a cable television channel with
the converter stabilized at an ambient temperature between 20
and 25 C, the frequency of the visual temperature between 20
C and 25 C, the frequency of the visual carrier shall not
vary more than +250 kHz for a period of at least three (3)
hours, during which period the ambient temperature may vary
+5 C above the initial ambient temperature.
(3) The aural center frequency of the aural
carrier shall be 4.5 MHz +1 kHz above the frequency of the
visual carrier.
(4) The visual signal level across a 75 ohm
terminating impedance as viewed from subscriber terminals
shall not be less than 1500 microvolts (=3.5 deBmV) at each
subscribers outlet.
(5) The visual signal level on each channel shall
be maintained within:
(i) 3 decibels of the visual signal level of
any visual carrier within 6 MHz nominal frequency separation,
and
(ii) 12 decibels of the visual signal level on
any other channel, and
degradation due
not occur, and
period.
(iii) a maximum level such that signal level
to overload in the subscriber's receiver does
(iv) 12 decibels
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over any twenty-four (24)
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(6) The rms voltage of the aural signal shall be
maintained between 13 and 17 decibels below the associated
visual signal level.
(7) The peak -to -peak variation in visual signal
level caused by undesired low frequency disturbances (hum or
repetitive transients) generated within the system, or by
inadequate low frequency response, shall not exceed five
percent (5%) of the visual signal level.
(8) The amplitude characteristic shall be within a
range of +2 decibels from 0.75 MHz to 5.0 MHz above the lower
boundary frequency of the cable television channel,
referenced to the average of the highest and lowest
amplitudes within these frequency boundaries.
(9) The ratio of visual signal level to system
noise shall be not less than 42 decibels.
(10) The ratio of visual signal level to any
undesired co -channel television signal operating on proper
offset assignment shall be not less than 36 decibels.
(11) The ratio of visual signal level to the rms
amplitude of any coherent disturbances such as
intermodulation products or discrete -frequency interfering
signals not operating on proper offset assignments shall not
be less than 46 decibels.
(12) The terminal isolation provided each
subscriber shall be not less than 18 decibels but, in any
event, shall be sufficient to prevent reflections caused by
open -circulated or short-circuited subscriber terminals from
producing visible picture impairments at any other subscriber
terminal.
(13) As an exception to the general provision
requiring measurements to be made at subscriber terminals,
and without regard to the class of cable television channel
involved, radiation from a cable television shall be measured
in accordance with procedure outlined in FCC regulations, and
shall be limited as follows:
as follows:
Distance
Frequencies
(feet)
Up to and including 54 MHz
100
Over 54 up to and including 216 MHz
10
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Radiation Limit
(Microvolts/Meter)
15
20
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Over 216 MHz 15
100
(14) The CATV system shall be rated for continuous
twenty-four hour per day operation.
(15) The FM signal level across a 75 ohm
terminating impedance as viewed from subscribers' terminals
shall be not less than 100 microvolts (-20 dBmV) nor greater
than the highest permitted channel 6 aural signal level.
(16) The FM signal level on each channel shall be
maintained within:
(i) 3 decibels of the FM signal level of any
FM signal on an adjacent (200 kHz spacing) channel, and
(ii) 6 decibels of the FM signal level of any
other FM signal carried on the system.
(17) Grantee's CATV system shall, as a minimum, be
operational in full compliance with the applicable
specifications contained herein, over the radio frequency
spectrum from 50 to 300 MHz inclusive. Further, the system
shall be designed such that thirty-two (32) channel operation
is possible from the outset utilizing the 50 to 300 MHz
spectrum.
(18) The CATV system shall, as a minimum, be
capable of operating in full compliance with the applicable
specifications herein, a return signal capacity in all
portions of the system, over the frequency range of 5 to 30
MHz inclusive.
(19) The Grantee shall, at all times during the
term of franchise, properly install and maintain adequate
shielding, filtering and grounding at affected installations
within the CATV system to eliminate system interference from
local radio/television broadcast stations, commercial,
government and aeronautical radio station sand/or from
fundamental frequency overload by radio amateur or citizen's
radio service transmissions which are in compliance with
Federal Communications Commission regulations.
(b) Nonbroadcast signals carried on the CATV system
shall meet the following baseband requirements. The RF
modulated signals associated with these baseband signals
shall meet all requirements of Subsection (a) above.
(1) Overall baseband system video frequency
response shall be +2 decibels over a DC to 4.2 MHz bandwidth.
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(2) Baseband video tilt shall not exceed two
percent (2%) as measured at the vertical or horizontal rate.
(3) overall baseband system video signal-to-noise
ratio shall be not less than 42 decibels over a DC to 4.2 MHz
bandwidth.
(4) Video synchronizing wave form shall comply
with the following applicable standard (latest edition or its
equivalent):
(i) 2.1 Interlace monochrome - EIA RS -330.
(ii) Full Interlace monochrome - IA RS -170.
(iii) Color - FCC 73.699 Figure 6.
(5) Where applicable, minimum television camera
(live and film) performance shall be:
(i) Resolution (luminance) - 350 line center
(vertical); 600 line center, 400 line corners (horizontal).
(ii) Scan linearity - two percent (2%) maximum
error (horizontal and vertical).
(iii) Registration (color only) - two
tenths percent (0.2%) in centered circle of 0.8 picture
height; four -tenths percent (0.4% overall.
(iv) Video tilt - two percent (2% maximum
(horizontal rate).
(6) Overall audio system frequency response shall
be + 3 decibels over the frequency ranger 30 to 10,000 Hz.
(7) Overall audio system signal-to-noise ratio
shall be not less than 50 decibels over the frequency range
50 to 10,000 Hz.
(8) Overall audio system harmonic distortion shall
not exceed two percent (2%) at any frequency from 50 to
10,OOOHz.
(c) Any local origination studio provided by the
Grantee shall meet the following minimum requirements:
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(1) 600 square feet (net) space minimum.
(2) 12 -foot ceiling height minimum.
(3) 3200 degree K tungsten halogen professional TV
production lighting system (200 foot candles minimum
capability).
(4) Acoustical noise level under normal studio
operating conditions not to exceed NO 25
(5) Minimum complement of production equipment to
include the following or approved equivalent:
Two (2) studio cameras.
At lease two (2) color video tape recorders
with insert/assemble editor and capstan serve.
At least one (1) digital video time base
connector for use with the color video tape
recorders during both editing and on -cable
playback.
Video production switching capability with
special effects.
Video picture and waveform monitoring
equipment.
Audio mixing and monitoring capability.
(d) On the last regular working day of each of the
first three (3) operating quarters of each calendar year, the
Grantee shall submit to the City Manager system performance
data taken within the previous seven (7) days. Measurements
of said data shall be taken at the same test points selected
to satisfy Subsection (a) below during the last annual system
performance test that data has been submitted to the City.
Quarterly test data shall be:
(1) Visual signal level for all channels carried.
(2) Visual signal-to-noise measurements on one
active lowband and one active highband VHF channel.
(3) Visual hum modulation on one channel or pilot
carrier.
(4) Measurement locations for system compliance
with Subsection (a) above, except those requirements
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regarding twenty-four (24) hour visual signal amplitude and
channel amplitude characteristics, shall include:
(i) End of each system major trunk, and
(ii) End of each system trunk branch four (4)
or more trunk amplifiers deep.
Actual test locations shall be selected to measure
performance of the system in the franchise area and shall be
(or as closely as possible simulate) actual subscriber
locations.
(5) Measurements regarding twenty-four (24) hour
visual signal level and channel amplitude characteristic
shall be made as required by the FCC.
(6) Measurement for system compliance with
Subsection (b) above shall be made where practical on all
origination equipment employed in the system.
(7) Measurement techniques shall be either (i)
those suggested by the FCC or (ii) those mutually developed
by the Grantee and the City and agreed to in writing prior to
system testing. If agreement cannot be reached, the City
shall prescribe acceptable methods of measurement.
Quarterly tests shall be performed on a scheduled basis. A
representative of the City shall be permitted to accompany
the Grantee during quarterly measurement activities. The
Grantee shall not be permitted to make any system adjustments
during quarterly measurement activities without noting such
adjustments on the test data form.
(e) The Grantee shall, during the last month of the
fourth operating quarter of each calendar year, perform
annual CATV system performance tests.
(1) Such tests shall be in full compliance with
FCC regulations.
(2) Such tests shall be independently witnessed
and the resultant data analyzed by a representative of the
City if directed by the City Manager.
(3) All necessary test instrumentation shall be
supplied by the Grantee. A current certificate of
calibration by an independent calibration laboratory shall be
supplied for each test instrument. All costs for
instrumentation and calibration shall be borne by the
Grantee.
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(4) Concurrent with annual performance tests, the
City representative shall inspect all system headend
facilities and outside plant for adherence to best industry
installation, workmanship and safety practice.
(5) Measurement techniques shall be those mutually
developed by the Grantee and the City and agreed to in
writing prior to system testing. If agreement cannot be
reached, the City shall prescribe acceptable methods of
measurement.
(f) The Grantee shall maintain the system so it
consistently operates within the substantial compliance of
the technical standards herein; substantial compliance being
defined as ninety-five percent (95%) of the channels received
shall meet all applicable technical standards simultaneously
at the time of measurement.
SECTION 12. SPECIAL PROVISIONS.
(a) System Maps and Layout. The Grantee shall have at
all time up-to-date route maps of suitable scale showing all
transmitting and receiving pickup locations and the location
of all amplifiers and trunk and distribution lines. Liens to
individual home and business outlets within the public right
of way shall be shown. Maps shall be annotated so that a
failure or malfunction in the transmission lines and assorted
equipment can be evaluated in terms of service area receiving
less than full service. The scale of the maps shall be
sufficient to clearly show details to include horizontal and
vertical dimensions and in a size and shall be drawn to a
scale approved by the City Engineer. Grantee shall provide
City current copies of said maps. At the beginning of
construction and every six (6) months after, Grantee shall
indicate to the City its plans for installation and
engineering during the next six (6) months.
(b) System Construction and Equipment Standards. The
system shall be installed and maintained in accordance with
standard good engineering practices and shall conform when
applicable with the National Electrical Safety Code ; Rules
for Overhead Line Construction (General Order No. 95) of the
California Public Utilities Commission; Rules for Underground
Construction of Lines (general Order No. 128); the California
Administrative Code, Title 24, Part 3; the City of Anaheim
Municipal Code; Federal Communications Commission Rules and
Regulations Parts 15, 73, 74, 76 and new parts as they may
apply and ANSI standard Y32.21 (latest edition).
(c) Preferential or Discriminatory Practices
Prohibited. The Grantee shall not, as to rates, charges,
service, services, facilities, rules regulations, or in any
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other respect, make or grant any undue preference or
advantage to any person, nor subject any person to any
prejudice or disadvantage.
(d) Remedies for Inadequate Service.
(1) In the event that its service to any
subscriber is interrupted for twenty-four (24) consecutive
hours as measured from the time the Subscriber first notifies
Grantee of the interruption, except for acts of God, acts
beyond the control of Grantee and except in circumstances for
which prior approval of the interruption is obtained from the
City Manager, Grantee shall provide a ten percent (10%)
rebate of the monthly fees to the affected subscriber.
(2) In the event that its service to any
subscriber is interrupted for forty-eight (48) or more
consecutive hours, as measured from the time the Subscriber
first notifies Grantee of the interruption, except for acts
of God, and except in circumstances for which the prior
approval of the interruption is obtained from the City
Manager, Grantee shall provide a twenty percent (20%) rebate
of the monthly fees to the affected subscriber.
(3) In the event that the system fails to meet any
performance standards for a full three (3) month period,
Grantee shall pay the City a penalty of two hundred fifty
dollars ($250.00) per day for every day after the end of the
three month period that the standards are not met. The City
Manager shall notify the Grantee during the first month of
the three (3) month period that the system has failed to meet
performance standards. The penalty provided by this Section
shall increase automatically at the rate of 5% per annum.
(4) In the event that the system fails to meet any
performance standards for a full three (3) month period,
Grantee shall reduce all subscribers' fees by twenty-five
percent (25%) until all performance standards are met. The
City Manager shall notify the Grantee during the first month
of the three ( 3 ) month period that the system has failed to
meet performance standards.
(5) For failure to commence construction in
accordance with Section 9 of this Ordinance, unless the
Council approves the delay because of reasons beyond the
control of the franchisee, the franchise term shall be
reduced four (4) days for each day of delay.
(6) For failure to begin service to subscribers or
complete construction and installation of the system as
provided for in Section 9 of this Ordinance, unless the
Council approves the delay because of reasons beyond the
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control of the franchisee, the franchise term shall be
reduced (4) days for each day of delay.
SECTION 13. LOCATION OF PROPERTY OF GRANTEE.
The Grantee shall make such arrangements to install the cable
system with the owner of the property or easement where such
cable system is to be located as may be appropriate. Grantee
shall furnish City with evidence of such arrangements.
All street work will require an excavation permit. Any
poles, wires, cable lines, conduits or other properties of
the Grantee to be constructed or installed in streets, alleys
or other rights of way shall be so constructed or installed
only at such locations and in such manner as shall be
approved by the City acting in the exercise of its reasonable
discretion.
The Grantee must post a cash bond with the City in an amount
to determined by the City Engineer during and until
completion satisfactory to the City of said work and
restoration of street and alleys including proper
barricading, signing and temporary paving if required.
The Grantee shall not install or erect any facilities or
apparatus in or on other public property, places, or rights-
of-way, or within any privately -owned areas within the City
which has not yet become a public street but is designated or
delineated as a proposed public street on any tentative
subdivision map approved by the City, except those installed
or erected upon public utility facilities now existing,
without obtaining the prior written approval of the Public
Works Executive Director or designated staff.
In those areas and portion of the City where the transmission
or distribution facilities of either the public utility
providing telephone service or those of the utility providing
electric service are underground or hereafter may be placed
underground, then the Grantee shall likewise construct,
operate and maintain all of its transmission and distribution
facilities or other means of transmitting signals
underground. For the purposes of this subsection,
"underground" shall include a partial underground system,
e.g. streamlining. The City shall not in any manner be
responsible for any costs incurred by the Grantee in placing
Grantee's facilities underground.
The entire distribution system of the Grantee, including
poles, posts, wires, cables, appurtenances and facilities
shall be located or relocated and so erected as not to
interfere with travel over, in , on or under any public way
and with reasonable ingress and egress to abutting property.
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SECTION 14. REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY.
In the event that (1) the use of any material part of the
franchise property is discontinued for any reason for a
Continuous period of twelve (12) months, (2) franchise
property has been installed in any street or other dedicated
public right of way without complying with the requirements
of this Ordinance, or the franchise has been terminated,
cancelled or has expired, Grantee, at its expense, shall at
the demand of the City remove promptly from the street all
franchise property other than any which the Public Works
Executive Director may permit to be abandoned in place. In
the event of any such removal, Grantee shall promptly restore
to a condition satisfactory to the Public Works Executive
Director the street or other dedicated public right of way or
other public places in City from which the franchise property
has been removed.
Franchise property to be abandoned in place shall be
abandoned in the manner prescribed by the Public Works
Executive Director. Upon permanent abandonment of any
franchise property in place, Grantee shall submit to the City
Manager an instrument, satisfactory in form to the City
Attorney, transferring to City the ownership of the franchise
property abandoned.
SECTION 15. CHARGES REQUIRED BY PUBLIC IMPROVEMENTS.
Grantee shall, at its expense, protect, support, temporarily
disconnect, relocate in the same street, alley, or public
place, or remove from any street, alley or public place, any
franchise property when required by the Public Works
Executive Directory by reason of traffic conditions, public
safety, street vacation, freeway and street construction,
change or establishment of street grade, installation of
sewers, drains, and tracks or any other type of structures or
improvements including, but not limited to, placing such
structures and improvements underground by governmental
agencies when acting in a governmental or proprietary
capacity, or any other structures or public improvements;
provided, however, that Grantee shall in all such cases have
the privileges and be subject to the obligations to abandon
franchise property in place, as provided in Section 14
herein.
SECTION 16. FAILURE TO PERFORM STREET WORK.
Upon failure of Grantee to commence, pursue or complete any
work required by law or by the provision of this Ordinance to
be done in any street, within the time prescribed and to the
satisfaction of the Public Works Executive Director, the
Director may, at its option, cause such work to be done and
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the Grantee shall pay to the City the reasonable costs
thereof in the itemized amounts reported by the Director to
Grantee, within thirty (30) days after receipt of such
itemized report.
SECTION 17. Franchise Fee.
Any grantee granted a franchise under this Ordinance shall
pay to the City, during the life of such franchise, a sum
equal to five percent (5%) of the annual total gross receipts
and in addition thereto such other sums as may be provided
for elsewhere in this Ordinance. If, during any part of the
franchise term, there is in effect a federal or state limit
regulating the franchise fee percentage to a lesser amount,
such limitation shall apply but only for that time period
such limit is legally operational. Franchise fee payment by
the Grantee to the City shall be made annually by delivery of
the same to the City Treasurer. Franchise payments required
hereunder shall in lieu of any business license, occupation
tax or similar levy.
The Grantee shall file with the City Auditor within ninety
(90) days after the expiration of the Grantee's fiscal year
or portion thereof during which such franchise is in force,
statement of profit and loss certified to by a certified
public accountant, or person otherwise satisfactory to the
City Auditor, showing in detail the gross subscriber
receipts, as defined herein, of Grantee during the preceding
fiscal year or portion thereof. It shall be the duty of the
Grantee to pay to the City, within fifteen (15) days after
the time for filing such statements, the sum hereinabove
prescribed or any unpaid balance thereof for the fiscal year
or portion thereof covered by such statements.
The City shall have the right to inspect and audit the
Grantee's fiscal records. If any independent audit of the
Grantee's records directed by the City shows a franchise fee
error resulting in the underpayment of franchise fees by
Grantee in excess of two percent (2%) of the amount actually
due, the Grantee shall assume all reasonable costs for said
audit. 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 additional sums payable under this
section or for the performance of any other obligation
hereunder.
Any neglect, omission or refusal by the Grantee to file said
verified statement, or to pay said percentage in full, at the
time or in the manner hereinbefore provided, which neglect,
omission or refusal shall continue for more than fifteen (15)
days following notice thereof to the Grantee from the City
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shall be grounds for the termination of this franchise as
provided for in Section 21 hereof.
SECTION 18. FAITHFUL PERFORMANCE BOND.
Grantee shall, upon the acceptance of this franchise, file
and maintain in full force and effect an acceptable corporate
surety bond or such other security acceptable to the City in
the amount of One Hundred Thousand Dollars ($100,000.00) or
such other amount as is reasonably agreed upon between
Grantee and the City, and conditional that in the event
Grantee shall fail to comply with any one or more of the
provisions of this Ordinance, then there shall be recoverable
jointly and several from the principal and surety of such
bond or other security any damages, suffered by City as a
result thereof, including the full amount of any
compensation, indemnification, or cost of removal or
abandonment of property as prescribed by this Ordinance which
may be in default, up to the full amount of the bond or other
security, the condition to be a continuing obligation for the
duration of the franchise granted by this Ordinance and
thereafter until Grantee has liquidated all of its
obligations with City that may have arisen from the
acceptance of the franchise by Grantee or from its exercise
of any privilege herein granted. In lieu of said bond or
other security, Grantee may deposit cash with the City of
Anaheim or in a federal or State of California bank or
savings and loan association in the name of the City of
Anaheim, but with interest reserved to the Grantee, on terms
and conditions approved by the City Attorney.
Neither the provisions of this Section, and any bond or other
security accepted by the City pursuant thereto nor any
damages recovered by City thereunder, nor any withdrawal from
any cash deposit shall be construed to excuse faithful
performance by Grantee or to limit the liability of Grantee
under this Ordinance or for damages, either to the full
amount of the bond or other security or otherwise.
SECTION 19. LIABILITY AND INDEMNIFICATION.
The provisions of this Section 19 are in addition to and
amplification of Grantee's duties under Section 1405 of the
City Charter. The Grantee shall pay all damages and
penalties which the City may legally be required to pay as a
result of passage of this Ordinance. These damages or
penalties shall include damages arising out of the
installation, development, operation, maintenance or
expansion of the cable system authorized herein, whether or
not any act or omission complained of is authorized, allowed,
or prohibited by this Ordinance.
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The Grantee shall pay all expenses incurred by the City in
defending itself with regard to all damages and penalties
mentioned above. The expenses shall include all out-of-
pocket expenses, such as attorney fees, and shall also
include the reasonable value of any services rendered by the
City Attorney or his assistants or by any employees of the
City or by any attorney retained by the City for its defense.
The Grantee shall maintain and pay for comprehensive auto and
general liability insurance insuring the City and the Grantee
with regard to damages charged against the City and/or the
Grantee resulting from the development, installation,
operation, maintenance or expansion of the cable system
authorized by this ordinance in the amount of Five Million
Dollars ($5,000,000.00) combined single limit per occurrence.
Said insurance should contain coverage for:
(1) blanket contractual liability
(2) explosion
(3) underground hazard
(4) collapse
The Grantee shall, concurrently with the filing of an
acceptance of award of any franchise granted under this
chapter, file with the City Clerk either a copy of such
policy or a certificate of insurance evidencing the same in a
form satisfactory to the City Attorney. Such policy of
insurance, and any certificate evidencing the same, shall
contain a contractual liability endorsement specifically
extending the policy to cover the liability assumed by
Grantee under this subsection, and shall also contain a
provision that such policy may not be cancelled except after
thirty (30) days' notice in writing to be given to the City
Clerk.
City would incur no potential liability to Grantee or
Grantee's employees of the negligence of City or City's
employees of the condition of City's property, streets or
easements of this franchise were not granted. Grantee's hold
harmless and indemnification duties arising pursuant to
subsection (c) of Section 1405 of the City Charter shall
extend to and include all claims, liabilities, and actions of
all persons, including Grantee and Grantee's agents and
employees, arising from the negligence of City or City's
employees or the condition of City's property, streets or
easements, including any claims for inverse condemnation
based on damage to Grantee's system.
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SECTION 20. FILING AND INSPECTION OF PROPERTY AND RECORDS.
At all reasonable times Grantee shall permit examination by
any duly authorized representative of the City Manager,
Public Works Executive Director or the City Auditor of all
franchise property, together with any appurtenant property of
Grantee situated within or without the City. Grantee shall
also permit any duly authorized representative of the City
Manager, Public Works Executive Director of the City Auditor
to examine and transcribe any and all maps and other records
kept or maintained by Grantee or under its control concerning
the operations, affairs, transactions or property of Grantee.
If any of such maps or records are not kept in the City, or
upon reasonable request made available in the City, and if
the City Manager, Public Works Executive Director or the City
Auditor shall determine that an examination of such maps or
records is necessary or appropriate to the performance of any
of their duties, then all travel and maintenance expense
necessarily incurred in making such examination shall be paid
by Grantee.
The Grantee shall prepare and furnish to the Public Works
Executive Director and the City Auditor at the times and in
the form approved by either of said officer, such reports
with respect to its operations, affairs, 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 any of its offers in connection with the
franchise. Such reports shall include a daily log of service
requests, customer complaints, customer suggestions and the
Grantee's response thereto, including the type, manner and
time of response.
The Grantee shall at all times maintain at its local office
for public inspection, a file containing copies of all
reports required by Federal Communications Commission (FCC)
Rules and Regulation, Part 76, Subpart H (General Operating
Requirements) as the same now exist or may hereafter be
changed or amended.
The Grantee shall submit copies of all reports required by
Federal Communications Commission (FCC) Rules and Regulations
Part 76, Subpart 1 (Forms and Reports) as the same now exist
or may hereafter be changed or amended including, but not
limited to, FCC Form 325, FCC Form 326, FCC Form 326-A and
FCC Form 395. Said documentation must be submitted to the
FCC, unless said requirement is waived from time to time by
the City Manager.
The Grantee shall give formal notice to the City that it has
filed a signal registration statement or subsequently
required equivalent registration or application with the
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Federal Communications Commission (FCC). Within ten (10)
calendar days after filing such a statement with the FCC, the
Grantee shall file two (2) copies of the statement with the
City Manager unless said requirement is waived from time to
time by the City Manager.
SECTION 21. TERMINATION.
(a) The City may terminate the franchise granted
hereunder in the event of the willful failure, refusal or
neglect by Grantee to do or simply with any material
requirement or limitation contained in this Ordinance, or any
material rule or regulation of the Council or City Manager
validly and legally adopted pursuant to this Ordinance.
(b) The City Manager may make written demand that the
Grantee, do, or comply with, any such requirement,
limitation, term, condition, rule or regulation. If the
failure, refusal or neglect of the Grantee continues for a
period of thirty (30) days following such written demand, the
City Manager may place his request for termination of the
franchise upon the Council meeting agenda. The City Manager
shall cause to be served upon such Grantee, at least ten (10)
days prior to the date of such Council meeting, a written
notice of his intent to request such termination, and the
time and place of the meeting.
(c) The Council shall consider the request of the City
Manager and shall hear any persons interested therein, and
shall determine whether or not any failure, refusal or
neglect by the Grantee was with just cause.
(d) If such failure, refusal or neglect by the Grantee
was with just cause, the Council shall direct the Grantee to
comply within such time and manner and upon such terms and
conditions as are reasonable.
(e) If the Council shall determine such failure,
refusal or neglect by the Grantee was without just cause,
then the Council may pass its resolution declaring that the
franchise of such Grantee shall be terminated and forfeited
unless there be compliance by the Grantee within such period
as the Council may fix.
(f) The termination and forfeiture of any franchise
shall in no way affect any of the rights of the City under
the franchise or any provision of law.
(g) In the event of any unlawful holding over after the
expiration or other termination of any franchise granted
hereunder, without the prior consent of the City, expressed
by resolution, the Grantee shall pay to the City reasonable
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compensation and damages, of
percent (100%) of its total
Period.
(h) Any and all
operation of Grantee's
powers, privileges, and
establish, or fix any c
declared by the City
franchise hereunder to x
the benefit of the City
not less than
gross revenues
8/07/89
one hundred
during said
minimum standards 'governing the
gable system and any and all rights,
authorities of the City to determine,
f the same, are each and all hereby
and by any Grantee accepting any
e contractual in nature and to be for
and all subscribers situated therein.
SECTION 22. MISDEMEANORS.
(a) It shall be unlawful for any person, firm or
corporation to make any unauthorized connection, whether
physically, electrically, acoustically, inductively or
otherwise, with any part of a franchised cable system within
the City, for the purpose of taking or receiving television
signals, radio signals, pictures, programs or sound.
(b) It shall be unlawful for any person, firm or
corporation to make any unauthorized connection whether
physically,m electrically, acoustically, inductively or
otherwise, with any part of a franchised cable system within
the City, for the purpose of enabling himself or others to
receive any television signals, radio signals, pictures,
programs or sound, without payment to the owner of said
system.
(c) It shall be unlawful for any person, without the
consent of the owner, to willfully tamper with, remove or
injure any cable wires or equipment used for distribution of
television signals, radio signals, pictures, programs or
sound.
(d) It shall be a misdemeanor punishable by a fine of
not to exceed One Thousand Dollars ($1,000.00), or by
imprisonment for not to exceed six (6) months, or both, for
any person to violate any of the provisions of this Section.
Each such person shall be guilty of a separate offense for
each and every day during any portion of which any violation
of any provision of this Ordinance is committed, continued,
or permitted by any such person and shall be punished
accordingly.
SECTION 23. ACQUISITION.
In the event the City wishes to acquire part or all of the
cable system either by purchase or through the exercise of
the right of eminent domain, City and Grantee will each
appoint one appraiser to establish the value of the cable
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system to be acquired by City. The two appraisers will
select a third appraiser who will be chairman of the
appraisal board. The board will, by majority vote, determine
the value of the system to be acquired by City. This value,
which absent franchise termination pursuant to Section 21,
shall reflect the fair market value of the cable system as a
going concern, will be final and binding on both City and
Grantee and will be used as the purchase price or just
compensation in an eminent domain proceeding between City and
Grantee. Nothing herein shall be construed to limit City's
ability to abandon any eminent domain proceeding at City's
sole election.
SECTION 24. FILINGS AND COMMUNICATION WITH REGULATORY
AGENCIES.
In addition to the filing requirements of Section 20, copies
of all petitions, applications, reports and communications of
all types submitted by Grantee to the Federal Communications
Commission, Securities and Exchange Commission, California
Public Utilities Commission, or any other federal or state
regulatory commission or agency having jurisdiction over any
matter affecting operation of Grantee's cable system shall be
submitted simultaneously to the City by delivery to the City
Clerk who shall advise interested City departments of such
filing. A copy of each document filed with the City Clerk in
accordance with this Section shall be delivered to the City
Attorney.
SECTION 25. TECHNOLOGICAL DEVELOPMENTS.
The City and Grantee shall hold a system review session
upon the sixth and tenth anniversary of the franchise award.
City shall conduct a community needs assessment of a
representative sampling of system subscribers six (6) months
prior to commencing said review. Grantee shall provide City,
to the extent permitted by law, a mailing list of subscribers
and shall consult with the City on topics to be covered by
this assessment. Results of said assessment will be shared
with the Grantee at least two (2) weeks prior to commencement
of said review session.
At the review session the
review shall include but not
provided, system application of
performance, and customer service
problems or opportunities created
more cable operators in the City.
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topics for discussion and
be limited to, services
new technologies, system
franchise compliance, and
by the presence of two or
8/07/89
No later than ninety (90) days after the conclusion of
the review session, City shall issue findings of any
deficiencies. A deficiency shall be deemed to exist when the
Grantee is not performing consistent with the terms of this
franchise or when the community needs assessment has
identified one or more needs which are not being met by
Grantee and could reasonably be excepted to be met by the
Grantee.
After reviewing the evidence and good faith negotiations
between the parties, the City may require, without Grantee's
consent, the Grantee to add to, delete from, or modify the
existing system and/or system design so long as the Grantor
finds:
(1) Said change(s) has been identified as a
significant need in the community assessment;
(2) The needs) cannot be met at least as
well by an alternative business or commercial entity at a
reasonable price;
(3) The present system cannot meet the
specified need either as presently operating or with some
alternative modification consistent with the franchise or
which imposes a significantly lesser economic burden on
Grantee;
(4) The Grantor finds that said change will
meet the community need as defined in the Community
ascertainment;
(5) Said change will not impose an
unreasonable financial hardship on Grantee taking into
account the Grantee's amortized cost of the investment
required by this franchise and ordinance and Grantee's total
revenues and profits from this cable system and any other
cable system of which the Anaheim system is an operational
subset.
(6) Said change(s) reflects the services,
technology, and practices generally provided by other cable
operators in the County of Orange.
In the event that said change requires a major
redesign or engineering or reconstruction of the system
throughout the City, the Grantee shall be permitted two (2)
years to implement said change, unless mutually agreed
otherwise.
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8/07/89
Grantee shall be entitled to an automatic franchise
extension of three (3) years for all material changes not
otherwise required by this ordinance.
SECTION 26. OTHER COSTS.
The Grantee shall assume the following costs upon the
Grantee's filing of acceptance of this franchise associated
with granting a franchise and verifying acceptable initial
CATV system performance:
(a) All costs of publication of this franchise as such
publication is required by law.
(b) All costs associated with the City employing an
independent consultant and/or attorney to assist with
development of the franchise ordinance and request for
proposal, evaluate proposals received and assist the City in
any negotiations related to the grant of a franchise.
(c) osts of an independent engineering firm to witness
the design, installation and initial proof of performance
testing of the system as a verification of the Grantee's
adherence to the terms and conditions of the franchise.If
said proof of performance tests show that the cable
television system is a significantly below the performance
standards outlined in Grantee's proposal and elsewhere in
this franchise, the City shall give notice thereof to Grantee
and Grantee shall have thirty (30) days to correct said
deficiency. If Grantee fails to correct said deficiency
within this time, the City may request mutually agreed upon
independent engineers to demonstrate, at Grantee's cost, the
appropriate correction to the Grantee. Grantee shall then
have sixty (60) days or other approved reasonable time
required, to correct deficiency. If deficiency still has not
been corrected, the City shall have the option to terminate
this franchise subject to the City's right, requirements, and
restrictions regarding the termination of this franchise
stated elsewhere within.
SECTION 27. PROPOSAL.
Grantee has submitted a Cable television Franchise
Application and Proposal for the City of Anaheim, on file in
the office of the City Clerk. Each and every provision of
said Application and Proposal is hereby incorporated by
reference in this Ordinance as though the same were set out
in full except to those which conflict with its express
terms, all provisions of said proposal shall be binding upon
Grantee.
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SECTION 28. CUSTOMER SERVICE STANDARDS.
Grantee agrees to and shall be bound by the specific customer
service standards included as Exhibit B to this Ordinance and
made a part hereof.
SECTION 29. OTHER TAXES AND FEES.
Grantee agrees to pay all legally required fees and taxes,
including possessory interest taxes, if any shall be levied
against it or the City due to the franchise granted herein.
SECTION 30. FORCE MAJEURE.
In the event Grantee's performance of any of the terms,
conditions, or obligations required by this Ordinance is
prevented by a cause or event not within Grantee's control or
reasonably foreseeable by Grantee, such inability to perform
shall be deemed excused and no penalties or sanctions shall
be imposed as a result thereof. For the purpose of this
Section, imposed as a result thereof. For the purpose of
this Section, causes or events not within the control of
Grantee shall include, but are not limited to, acts of God,
strikes, sabotage, riots or civil disturbances, restraints
imposed by order of a governmental agency or court, inability
to obtain permits, explosions, acts of public enemies, and
natural disasters such as flood, earthquakes, landslides, and
fires.
SECTION 31. REGULATION OF RATES AND SERVICES.
The City Council reserves the power and right at all times
for the duration of this franchise to require Grantee to
conform to reasonable rules and regulations hereafter
lawfully adopted by the City Council including the power to
regulate and establish reasonable rates and charges by
Grantee for services rendered under this Ordinance. This
provision is intended to enable the City to regulate rates
and services of Grantee in the event of, and consistent with,
changes in state or federal law, which would permit City to
regulate such matters.
Any rate regulation of City shall not be effective until
Grantee has received at least thirty (30) days notice of
City's intention to consider such regulations at a public
hearing.
SECTION 32. CATV INTERCONNECT STANDARDS.
The Grantee shall make all reasonable efforts to electrically
interconnect the Anaheim CATV system with CATV systems to
adjacent communities for the purposes of sharing locally
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originated public and educational programming. Such an
interconnect shall be effected by coaxial cable, fiber optic
cable, microwave or other bi-directional signal
transportation means as appropriate to permit programming
interchange in compliance with the technical provisions of
the City's CATV franchise ordinance.
Within the first two (2) years of the life of the Anaheim
CATV franchise, the Grantee shall contact all franchised
operators in the communities immediately adjacent to
Grantee's franchise area in Anaheim for the purposes of
exploring and securing a mutually acceptable system
interconnect agreement and report the results of said
activity to the Anaheim City Manager or other designated City
representative. Said report shall state each contacted
operator's name, city and response, list all programming
available to Anaheim residents via such an interconnect
agreement as well as list programming to similarly be
transmitted from Anaheim to the adjacent community and
explain the substance of the governing business agreement
reached with the other operators. If an adjacent operator(s)
is not responsive to the Grantee's inquiry, a letter report,
stating that all reasonable attempts to gain an interconnect
agreement were made but unsuccessful, shall similarly be
filed with the City of Anaheim. In the case of adjacent new
CATV systems constructed after the Grantee's Anaheim system,
the Grantee shall have a period of six (6) months after the
new system becomes operational to make the required inquiries
and attempt at an interconnect agreement.
SECTION 33. ENVIRONMENTAL MITIGATION.
(a) If, and to the extent, that Grantee, or any
affiliated entity, has received, by way of contract,
agreement, or practice, whether or not said is in writing or
oral, an exclusive right to construct and operate a cable
television system, or any subsidiary acts thereof, within any
subdivisions located within the service area, or if Grantee
obtains any such exclusive rights by said means in the
future, Grantee hereby, pursuant to this Agreement and
without any further act of the parties, assigns those
exclusive rights to the City for the consideration contained
in this Agreement.
(b) Upon the assignment of any rights to the City
pursuant to Subparagraph (a) above, the City shall assign
those rights to all franchised cable operators authorized to
service the area in question and all cable operators
otherwise allowed to operate pursuant to final order of a
court of competent jurisdiction.
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(c) Grantee shall, as an express condition of any
agreement with a developer subject to assignment pursuant to
Subparagraph (a) above, provide in said agreement that said
rights may and shall be assigned to the City as provided
pursuant to Subparagraph (a) above. Grantee expressly agrees
that if, and to the extent, the City is required to bring an
action to enforce the provisions of Subparagraph (a) of this
Agreement, the City shall have available to it the remedies
of injunction relief and specific performance without the
prerequisite of making any of the normal showings required
for the invocation of such remedies including, but not
limited to, the nonavailability of money damages.
SECTION 34. APPEAL OF FRANCHISE REQUIREMENTS
During the period of franchise in effect, the Grantee may
obtain from the City modifications of the requirements in
such franchise (1) in the case of any such requirement for
facilities or equipment, including public, educational, or
governmental access facilities or equipment, if the Grantee
demonstrates that (a) it is commercial impracticable for the
Grantee to comply with such requirement or said requirement,
alone or in conjunction with other requirements, deprives the
Grantee of a reasonable return on its investment and (b) the
proposal by the Grantee for modification of such requirement
is appropriate because of said conditions or (2) in the case
of any such requirement for services, if the Grantee
demonstrates that the mix, quality, and level of services
required by the franchise at the time it was granted will be
maintained after such modification.
Grantee shall file any request for modification of franchise
requirements in writing with the City accompanied by all
evidence, including but not limited to economic studies and
financial records supporting said claim, in writing with the
City Clerk. Grantee shall provide to City all additional
documents and information requested by the City which are
reasonably related to the Grantee's claims. The burden of
proof in this proceeding shall be on the Grantee. Upon
receipt of such application, the City shall schedule a public
hearing upon the application and render a final decision upon
the application within 120 days after receipt of such request
by the City unless such 12 day period is extended by mutual
agreement of the cable operator and the City. Said
proceeding shall extend to the Grantee all due process
procedural rights otherwise available under law.
For the purposes of this Section, the term "commercial and
practicable" means, with respect to any requirement
applicable to a cable operator, that it is commercially
impracticable for the operator to comply with such
requirement as a result of a change in conditions with is
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beyond the control of the Grantee and the nonoccurrence of
which was a basic assumption on which the requirement was
based.
Grantee shall comply with all provisions of this franchise
unless and until said provision(s) is determined to be
commercially impracticable or otherwise modified pursuant to
the procedure above. If, and the extent, said modification
is granted, or ultimately ordered by a court of competent
jurisdiction, the original provision of the franchise shall
be deemed repealed, the franchise deemed amended to include
the modified provision, and the other provisions of the
franchise shall remain in full force and effect.
SECTION 35. SEVERABILITY.
If any section, subsection, sentence, clause, phrase or
portion of this Ordinance is, for any reason, held invalid on
unconstitutional by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of
the remaining portions hereof.
SECTION 36. CERTIFICATION.
The City Clerk shall certify to the passage of this Ordinance
and shall cause the same to be printed once within fifteen
(15) days after its adoption in the Anaheim Bulletin, a
newspaper of general circulation, printed, published and
circulated in said City, and thirty (30) days from and after
its final passage, it shall take effect and being full force.
THE FOREGOING Ordinance is approved and adopted by the City
Council of the City of Anaheim this 1st day of August ,
1989.
ATTEST:
City Clerk of the City of Anaheim
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CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing Ordinance No. 5057 was introduced at a regular meeting of the —
City Council of the City of Anaheim, held on the 25th day of July, 1989, and
that the same was duly passed and adopted at a regular meeting of said City
Council held on the 1st day of August, 1989, by the following vote of the
members thereof:
AYES: COUNCIL MEMBERS: Daly, Ehrle and Pickler
NOES: COUNCIL MEMBERS: Kaywood and Hunter
ABSENT: COUNCIL MEMBERS: None
AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said
Ordinance No. 5057 on the 10th day of August, 1989.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
of the City of Anaheim this 10th day of August, 1989.
CITY CLERK OF THE CITY OF ANAHEIM
(SEAL)
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing is the original Ordinance No. 5057 and was published once in the
Anaheim Bulletin on the 11th day of August, 1989.
CITY CLERK OF THE CITY OF ANAHEIM
EXHIBIT "A"
FRANCHISE AREA
The legal description of the Franchise Area is as follows:
A. PARCEL MAP 87-363, RECORDED
SEPTEMBER
17, 1988,
BOOK 236, PAGE 21,
7.
and
B. PARCEL MAP 86-215, RECORDED JANUARY 30, 1987, FILED
IN BOOK 217 OF PAGES 32 THROUGH 42, INSTRUMENT
87-054941.
and
C. PARCEL MAP 87-210, RECORDED APRIL 21, 1988, BOOK
231, PAGES 42 THROUGH 97, INSTRUMENT 88-182505.
EXHIBIT "A"
Page 1 of 1
EXHIBIT "B"
SERVICE STANDARDS
a. Service Standards: Grantee shall establish
subscriber service and grievance standards which shall, at
minimum, provide for the following commercially practicable
procedures:
(1) Grantee shall provide a local, toll-free
telephone service number for consumer
complaints.
(2) Grantee shall connect a weekly average of 98%
of all telephone callers within two minutes,
and 100% of all telephone callers within 15
minutes, to a live personal representative of
the Grantee during Grantee's key service
response period, defined as a total of fifty-
four (54) hours per week scheduled by Grantee
to include not less than eight (8) eight house
per day from Monday to Friday and not less
than four (4) hours on Saturday. During
outages or billing computer errors which
directly affect five percent (5%) or more of
Grantee's customer based in the cable system,
Grantee's service responses shall not be
included in such calculation, if Grantee
employs reasonable equipment and procedures to
provide to telephone callers during such
period, pending connection with a live
personal representative, a recorded message.
Grantee shall not be responsible for
nonperformance which it demonstrates is caused
by equipment or operating problems and
limitations of the telephone public utility
system serving the City of Anaheim.
(3) Grantee shall respond to complaints promptly
and resolve or commence diligent efforts to
resolve complaints within twenty-four (24)
hours, not including delays requested by the
complainant's household. Grantee shall
maintain records and reports within two
business days to the City regarding any
complaint which takes longer than one week to
resolve, not including any delay which is
occasioned at the request of the complainant,
and shall demonstrate to the City continuing
diligent efforts until the problem is
resolved.
EXHIBIT "B"
Page 1 of 6
(4) Grantee shall provide at least five (5) days
written notice prior to discontinuance of
service. If Grantee has improperly
discontinued service, it shall provide free
reconnection.
(5) Grantee shall afford subscribers with a
three-day right of rescission for ordering
cable services, except that such right of
rescission shall end upon initiation of
physical installation on the subscriber's
premises.
(6) All personnel, agents and representatives of
the Grantee, including subcontractors, shall
carry photo -identification badges when acting
in public on behalf of the Grantee.
(7) Grantee shall provide significant advance
notice, in light of the circumstances, prior
to entry whenever desiring to enter any
private property within the City of Anaheim
other than within its rights under an
easement.
(8) Grantee shall provide subscribers, and
potential subscribers with whom Grantee makes
personal contact, with a complete list of
service offerings, options, prices, and credit
policies. It shall provide Grantee's
telephone number for subscriber complaints,
prominently displayed in each monthly bill.
Grantee shall provide subscriber with monthly
schedules of programming on premium channels,
and on public, educational and governmental
access channels if available.
(9) Grantee shall offer subscribers a choice of
morning or afternoon service visits and shall
make reasonable offers to accommodate a
subscriber's stated choice.
d. Enforcement and Subscriber Credits. Grantee shall
give monetary credit against a subscriber's account or reduce
its monthly service fees as provided under the following
circumstances:
(1) in the event of a 24-hour service outage, 10% of
each affected subscriber's monthly service fees
shall be credited back to the subscriber.
(2) in the event of a 48-hour service outage, 20% of
each affected subscriber's monthly service fees
shall be credited back to the subscriber.
EXHIBIT "B"
Page 2 of 6
(3) in the event of a service outage exceeding 48
hours, each affected subscriber's monthly service
fees shall be further credited back to the
subscriber on a daily prorated basis for the
duration of the outage.
(4) in the event of a two (2) month period of
substantial failure by Grantee to meet the
subscriber service standards set forth in this
Exhibit B, Grantee shall reduce all subscribers'
monthly service fees by 25% until all material
performance standards are substantially met.
(5) in the event of a service charge credit or
reduction pursuant to any of (1) through (4) above,
such credit or reduction shall be separately stated
and described as such on each affected subscriber's
monthly statement.
C. Liquidated Damages.
(1) The City shall in its sole discretion be entitled
to impose upon assignee either the sanctions
provided in Section (c) above, or the liquidated
damages provided in this Section (d), in the event
of any instance of violation of the standards
provided in this Exhibit E.
(2) For each instance after written notice from the
City and failure by Grantee to cure, of breach of
any of the construction and service commencement
requirements provided in the Ordinance ich are
otherwise applicable to Grantee, or for failure to
take corrective action with respect to such breach,
the City may assess Grantee liquidated damages as
follows:
$500
(3) For each instance after written notice from the
City and failure by Grantee to cure, of breach of
any of the Grantee's obligations pursuant to the
cable service requirements and standards which are
otherwise applicable to Grantee, or for failure to
take corrective action with respect to such breach,
the City may assess Grantee liquidated damages as
follows:
$250
(4) For each instance after written notice form the
City and failure by Grantee to cure, of breach of
any of the Grantee's material obligations with
respect tot he technical performance standards and
EXHIBIT "B"
Page 3 of 6
the operational standards provided by the franchise
ordinanceGrantee, or for failure to take corrective
action with respect to such breach, the City may
assess liquidated damages from Grantee as follows:
$150
d. Procedural Safeguards. If the City Manager
determines that the Grantee is liable for any sanctions
pursuant to Sections (b) or (c) above, he or she shall issue
to Grantee by certified mail a Notice of Intention to Impose
Sanctions (the "Notice"0. The Notice shall set forth the
specific basis for the sanctions, and shall inform the
Grantee that sanctions will be assessed as specified in the
Notice unless the Notice is appealed for arbitration before
an arbitrator chosen by mutual agreement of Grantee and the
City, or at either party's election before a panel of those
arbitrators (one chosen by Grantee, one chosen by the City
and the third chosen by the other two arbitrators), who in
either event shall conduct the arbitration pursuant to the
rules of the American Arbitration Association and shall
render a final, binding decision in writing. If the Grantee
desires such Arbitration, it shall send a written Notice of
Appeal by certified mail to the City Manager within fifteen
(15) days of the date on which the Grantee received the
Notice from the City Manager. The arbitration fees and costs
shall be paid equally by the City and Grantee, except that
the arbitrator(s) may award such fees and costs to a party if
it is specifically determined by the arbitrator(s) that such
party is the prevailing party in the arbitration.
e. City Council Hearings. If Grantee requests
arbitration be provided in d, above, the City Council may, by
written notice to Grantee prior to the completion of
selection of the arbitration panel, nevertheless cancel such
arbitration and respond to Grantee's Notice of Appeal by
giving public notice followed by public hearings and the
City's decision regarding the appeal. The hearing on the
Grantee's appeal shall be within thirty (30) days of the date
on which the City cancelled arbitration unless mutually
extended by the City and Grantee. After hearing, and based
on the facts before it, if the City Council finds (a) that an
extension of time for cure of violation, or other relief,
should be granted, or (b) that there was never a violation
justifying the imposition of sanctions, then it shall not
aside the City Manager's imposition of sanctions. If the
City finds that the facts warrant the imposition of
sanctions, such finding shall constitute the City's final
determination regarding such sanctions. The City may waive
all or any portion of a sanction imposed, and in considering
whether or not to do so, the City shall consider, without
limitation, the number and frequency of prior breaches, the
difficulty of cure and the speed and diligence under the
circumstances with which the Grantee cured such breach or
EXHIBIT "B"
Page 4 of 6
breaches. The City's decision may be contested by
arbitration as provided in (d) above, in which event the City
shall not be entitled to cancel such arbitration as otherwise
provided in this Section (e), and in which event Grantee
shall pay 100% of the arbitration fees.
f. Force Measure. The subscriber credits and
liquidated damages provisions of (b) and (c) above shall not
apply in the case of any performance defects caused by
intervening circumstances or events beyond Grantee's
reasonable control. Such intervening circumstances or events
shall include, for example and without limitation, fires,
floods, earthquakes, natural disasters, acts of God, wars,
riots, strikes, commercial unavailability of parts or
equipment, extremely inclement weather, governmental acts or
prohibitions, and delays requested by the property owner or
manager.
g. Subscriber credits and service fee reductions shall
not apply, and liquidated damages shall not be assessable, in
respect of any standards or requirements otherwise applicable
to Grantee which have been preempted by controlling legal
authority.
5/124/012377-0034/013
EXHIBIT "B"
Page 5 of 6