Sec. 12-19. - Minimum service standards and programming requirements.
Sec. 12-21. - Bond; letter of credit.
Sec. 12-22. - Construction and maintenance requirements.
Sec. 12-23. - Technical standards.
Sec. 12-19. - Minimum service standards and programming requirements.
(a)
Minimum service standards, programming requirements (including without limitation for local origination programming and for EG access programming) and standards governing consumer protection and response by the grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement as permitted by applicable law, and the grantee shall comply with such standards in the operation of the cable system.
(b)
The selection, creation, production, purchase or other acquisition of local origination programming shall be exclusively within the editorial discretion of the grantee, except as may be provided otherwise in the franchise agreement or applicable law.
(c)
The grantee shall not exercise any editorial control over EG access programming except as otherwise specified in the franchise agreement or required by law, and the grantor may exercise control over such programming as is permitted under applicable law.
(d)
At such time as it is allowable by law, the grantor may by resolution require the grantee to add a fee, separate and apart from the franchise fee established in the franchise agreement, to its monthly rates for basic cable service for the purpose of providing operational support for EG access programming. The grantor may set this fee in an amount consistent with the county's public access needs and the FCC Regulations. The grantee shall be given 30 days advance written notice prior to the introduction of the resolution and shall have the right to appear before the board on the matter. The grantee may petition the grantor for reduction or elimination of this EG access programming operational support fee if the grantee establishes that it is suffering a competitive disadvantage or undue financial burden.
(Ord. No. 543, § 2, 8-22-95)
(a)
Beginning with the effective date of the franchise, the grantee shall pay to the grantor the franchise fee set forth in the franchise agreement, or in the absence thereof, the maximum amount permitted by applicable law.
(b)
Payments due to the grantor under this provision shall be computed quarterly for the preceding calendar quarter, and shall be paid within 30 days of the close of each calendar quarter. The payment shall be accompanied by a report showing the basis for the computation and such other relevant facts as may be required by the grantor to determine the accuracy of the payment.
(c)
No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee. All amounts paid shall be subject to audit and recomputation by the grantor as subject to conditions specified in the franchise agreement.
(d)
In the event that any payment or recomputed amount under this section is not made on or before the due date, the grantee shall pay as additional compensation to the grantor:
(1)
An interest charge, computed from such due date, at an annual rate equal to the maximum interest rate then allowed by law; and
(2)
When the amount of the underpayment as identified by grantor's audit is ten percent or more under the original amount due the grantor, the grantor shall be entitled from the grantee to an additional sum of money equal to ten percent of the underpayment.
(Ord. No. 543, § 2, 8-22-95)
Sec. 12-21. - Bond; letter of credit.
(a)
The grantee shall, at all times during the term of the franchise and any renewal thereof, maintain in effect and keep on file with the grantor a bond running to the grantor in the amount established in the franchise agreement with sureties and other terms to be approved by the grantor. The bond shall provide that it will not be canceled or materially altered without at least 30 days prior notice to the grantor. The bond shall be available to the grantor to satisfy any amount due the grantor from the grantee which arises in accordance with the terms and conditions of this chapter or the franchise agreement. The grantor shall have the right to suspend the franchise during any period that the grantee fails to maintain the bond in full force and effect and to invoke any other remedies, including the assessment of monetary damages under section 12-38
(b)
At the option of the grantor, the grantee may be required in the franchise agreement to post an irrevocable letter of credit in lieu of the bond. Such letter of credit must be issued by a bank or other credit agency and on such other terms approved by the grantor, in the amount specified in the franchise agreement. The letter of credit shall incorporate wording approved by the grantor so that the grantor is able to draw such sums from time to time as the grantor may find necessary to satisfy any defaults of the grantee or to meet any payments due the grantor under or in connection with this chapter or the franchise agreement upon ten days written notice. The letter of credit shall further provide for 60 days written notice by certified mail by its issuer to the grantor of any pending expiration or cancellation, or other language acceptable to the grantor. The notice shall without further cause constitute a reason for the grantor to withdraw the full sum under the letter of credit to be held in the accounts of the grantor until such letter of credit is re-established to the satisfaction of the grantor. The grantee shall pay all fees or other charges required to keep such letter of credit in full force and effect at all times during the term of the franchise agreement and any renewal thereof. Within 30 days after any withdrawal by the grantor under the letter of credit, grantee shall restore the letter of credit to its original amount. Except as expressly provided otherwise in this subsection (b), provisions in this section applicable to a bond shall also apply to a letter of credit.
(c)
Nothing in this section or in any bond or letter of credit accepted by the grantor hereunder, nor any amounts recovered by the grantor under such bond or letter of credit, shall excuse faithful and full performance by the grantee of all obligations under this chapter and the franchise agreement or impair any other rights or remedies of the grantor.
(Ord. No. 543, § 2, 8-22-95)
Sec. 12-22. - Construction and maintenance requirements.
(a)
The system shall be constructed, maintained and/or rebuilt in accordance with the provisions of the franchise agreement and all construction standards and requirements of the grantor. Construction components and techniques and system technical and performance standards shall be in accordance with this chapter, the franchise agreement and applicable law.
(b)
The grantee shall adhere to all building and zoning requirements currently or hereafter in effect and shall obtain all required permits. The grantee shall arrange the facilities of its system, on both public and private property (including streets and public property), in such a manner as to cause no unreasonable interference with the use of such property by any person. The grantee shall provide at least 48 hours notice to all affected property owners and the grantor prior to installing any facilities of the system upon easements located on private property. The grantor shall not modify its construction requirements subsequent to the completion of construction so as to require reconstruction or retrofit unless the public health and safety so require.
(c)
Cable and related facilities shall be installed underground at the grantee's cost where all existing utilities are already underground. Previously installed aerial cable and related facilities shall be installed underground at the grantee's pro rata cost in concert with other utilities when all such other utilities convert their facilities in the same area from aerial to underground.
(d)
Any and all streets, public property and other public areas and ways disturbed or damaged by the grantee or its contractors during the term of the franchise shall be restored within the time limits specified by the grantor, at the grantee's expense, to a condition comparable to their condition prior to the disturbance or damage unless otherwise authorized in writing by the grantor.
(e)
Methods of construction, installation and maintenance of the grantee's cable system shall comply with the National Electrical Safety Code to the extent that such code is consistent with local law affecting the construction, installation and maintenance of electric supply and communication lines.
(f)
Grantee may cut or trim trees and vegetation interfering with clearance requirements of the National Electrical Safety Code or any other applicable federal, state or local law, regulation or standard.
(g)
Upon order by the grantor, the grantee shall relocate its facilities at the grantee's sole expense in order to accommodate the widening, relocation, change of grade or any other work or improvement of a public street or right-of-way. Nothing in a franchise shall prevent the grantor from constructing, repairing or altering any public work. If any property of the grantee interferes with the construction, maintenance or repair of any public improvement, all such property shall be removed or replaced in such manner as directed by the grantor so that the same shall not interfere with the public work. Such removal or replacement shall be at the sole expense of the grantee.
(h)
In the event it is necessary to temporarily move or remove any property of the grantee at the grantor's direction for a public purpose in order lawfully to move a large object, vehicle, building or other structure, the grantee shall move, upon reasonable notice and at its sole expense, its property as may be required by the grantor to facilitate such movements. No such movement shall be deemed a taking of the grantee's property. Nothing herein shall limit the right of the grantee to seek reimbursement from any person other than grantor.
(i)
In the event it is necessary temporarily to move or remove any of the grantee's property in order for any person other than the grantor lawfully and for a non-public purpose to move a large object, vehicle, building or other structure over the streets of the grantor, upon 30 days prior notice by the person to the grantee, the grantee shall move at the expense of the person requesting the temporary removal such of the grantee's facilities as may be required to facilitate such movement.
(j)
The grantee shall at all times take reasonable precautions, including without limitation all precautions required by applicable federal, state or local laws or regulations, for preventing failures and accidents which are likely to cause damage or injury to the public, to employees of the grantor or the grantee, or to public or private property.
(k)
All lines, equipment, and facilities within the service area shall at all times be kept and maintained in a safe and suitable condition, in good order and repair, and in full compliance with all applicable federal, state and local laws and regulations. In the event that the grantee's facilities create an unsafe condition, the grantee shall upon notice correct such unsafe condition. The grantor shall be the sole judge of an unsafe condition.
(l)
Upon the failure, refusal or neglect of the grantee to cause any construction, repair or other work necessary to comply with the terms of this chapter, the franchise agreement or any other requirement of the grantor, the grantor may, but shall not be required to, cause such work to be completed in whole or in part. The grantor shall give the grantee reasonable notice of its intent to exercise this power and 15 days thereafter to cure. After completion of the work in whole or in part, the grantor shall cause to be submitted to the grantee an itemized statement of the costs thereof. The grantee shall pay to the grantor the costs in the itemized statement within 30 days of presentment.
(Ord. No. 543, § 2, 8-22-95)
Sec. 12-23. - Technical standards.
(a)
The grantee shall construct, install, operate and maintain its system in accordance with all FCC technical standards as set forth in the franchise agreement.
(b)
The grantor may specify additional technical requirements in the franchise agreement.
(Ord. No. 543, § 2, 8-22-95)
The
grantor may regulate any rate charged by the grantee to the extent permitted and in the manner required by applicable law.
(Ord. No. 543, § 2, 8-22-95)
The
grantee shall indemnify, defend, and hold harmless the grantor, its board, officers, officials, employees, agents, boards and commissions from and against all liability, loss, damage, expense, costs (including without limitation attorneys' fees and other costs and fees in litigation) of every nature (whether in contract, tort or strict liability, including without limitation personal injury, death at any time and property damage) arising out of or in connection with the grantee's or any of its employees', agents' or contractors' performance of work, or failure to comply with any of the obligations, under this chapter or the franchise agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the grantor or its officials, employees or agents acting within the scope of their employment or authority. The indemnity provisions of this section shall be implemented pursuant to section 12-26 and the terms of the franchise agreement, provided that the grantee's obligations under this section 12-25 shall not be limited by any insurance provided or held by the grantee.
(Ord. No. 543, § 2, 8-22-95)
(a)
On or before commencement of any activity by the grantee pursuant to a franchise, the grantee shall obtain policies of liability, workers' compensation, property and defamation insurance from companies authorized to transact business in the state by the insurance commissioner of the state.
(b)
The policies of liability and property insurance shall:
(1)
Be issued to the grantee and name the grantor and its board, officers, officials, agents, employees, boards and commissions, as additional insureds;
(2)
Indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter or the franchise agreement by providing coverage therefor, including but not limited to coverage for:
a.
Negligent acts or omissions of the grantee or its employees, contractors or agents, or
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 non-cancelable and non-amendable without 30 days prior written notice thereof directed to the grantor; and
(5)
Contain such other provisions as required by the franchise agreement.
(c)
The policy of workers' compensation insurance shall:
(1)
Have been previously approved as to substance and form by the insurance commissioner of the state;
(2)
Cover all employees of the grantee who in the course and scope of their employment are to conduct the franchise operations;
(3)
Provide for every benefit and payment presently or hereinafter conferred by the labor code of the state upon an injured employee, including vocational rehabilitation and death benefits;
(4)
Contain such other provisions as required by the franchise agreement.
(d)
The dollar amounts of all insurance policies shall be specified in the franchise agreement.
(e)
The grantee shall file with the clerk prior to commencement of operations either certified copies of these insurance policies or a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to the policy:
(1)
The policy number;
(2)
The date upon which the policy will become effective and the date upon which it will expire;
(3)
The names of the named insureds and any additional insured required by this chapter or the franchise agreement;
(4)
The subject of the insurance;
(5)
The type of coverage provided by the insurance;
(6)
Amount or limit of coverage provided by the insurance; and
(7)
A provision that the policy shall not be canceled or amended without at least 30 days prior written notice to the grantor.
(f)
Each insurance policy and certificate must be acceptable in form and substance to the county counsel.
(g)
The grantee shall not commence operations until the grantee has complied with all provisions of this section and with the specific insurance provisions in the franchise agreement.
(h)
In the event the grantee fails to procure and maintain any of the above-described insurance policies in full force and effect, it shall be deemed a material default of the franchise agreement. The grantor, upon 48 hours notice to the grantee, shall have the right to procure the required insurance and recover the cost thereof from the grantee. The grantor shall also have the right to invoke any and all remedies, including the assessment of monetary damages under section 12-38, or institute any revocation procedures pursuant to this chapter.
(Ord. No. 543, § 2, 8-22-95)