CC - Item 5A -1 & 2 - Amending Cabel TV Provisions On Municipal CodeWALLIN, K E:ss, REISMAN & KRANITZ
LAW OFFICES
2800 TWENTY - EIGHTH STREET, SUITE 31S
SANTA MONICA, CALIFORNIA 90405-6205
TELEPn ONE 13101 -50 -9582
FACSIMILE 13101 450 -0506
MEMORANDUM
DATE: June 21, 2000
TO: Frank G. Tripepi, City Manager
FROM: Cary S. Reisman, Assistant City Attorney / )')
SUBJECT: ORDINANCE NO. 807 AMENDING CABLE TELEVISION PROVISIONS
OF MUNICIPAL CODE - CHAPTER 5.28
AGREEMENT GRANTING A NON - EXCLUSIVE FRANCHISE
RENEWAL TO CHARTER COMMUNICATIONS ENTERTAINMENT II
PURPOSE: These two related items are 1) the amendments to the Rosemead Cable
Television Ordinance, Chapter 5 -28 of the Rosemead Municipal Code, on the agenda for
second reading /adoption, and 2) the franchise renewal agreement with Charter
Communications Entertainment II.
BACKGROUND: The City's franchise agreement with Charter Communications is
scheduled to expire on June 27, 2000. The original agreement, to which Charter succeeded,
was a nonexclusive fifteen year cable television franchise granted to Falcon Communications.
Ownership of the cable company has changed several times over the years. Charter
Communications has been the owner and operator of the cable system since October, 1995. At
the end of 1998, the City Council approved Paul G. Allen's purchase of Charter. During review
and negotiations leading up to approval, City Staff negotiated with Charter regarding renewal of
Charter's franchise. A public hearing, attended by Mel Matthews of Charter, was held in
December, 1998. The negotiations and hearing resulted in an agreement in principle for the
renewal, which the Council approved.
The federal Cable Act provides the legal basis and framework for all cable television franchise
renewals. The franchising authority must consider the following four factors:
Whether the cable operator has "substantially complied" with the material terms
of the franchise and with applicable law.
' Whether the quality of the operator's service has been "reasonable in light of
community needs ".
J \ ? 2000
FEW, No. Al 4- 4 �
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WALLIN, KRESS, REISMAN & KRANITZ
LAW OFFICES
Frank G. Tripepi, City Manger
June 21, 2000
Page 2
* Whether the cable operator has the financial, legal and technical ability to
provide the services, facilities and equipment set forth in the proposal.
* Whether the operator's proposal is reasonable to meet the future needs and
interests of the community, taking into account the cost of those needs.
ANALYSIS: Under the Cable Act, a city can only deny a franchise renewal if the incumbent
company has substantially failed to offer reasonable levels of service, has failed to comply with
the terms of the franchise, or lacks the financial, legal or technical ability to provide services
reasonable to satisfy community needs. No substantial failures on the part of Charter
Communications came to light during the hearing proceedings, and staff has not been made
aware of any such failures since.
The franchise renewal agreement will extend Charter's franchise for an additional ten years. It
clarifies the method of computation of franchise fees. It continues low income Senior Citizen
discounts for basic cable service with a differing percentage based upon the type of service
supplied. It provides for recovery of the City's franchise renewal costs from the cable company,
and that such costs will not be passed through to subscribers. It provides for educational and
government access, equipment grants, including provision of new character generating
equipment to post city notices and video equipment, as well as programming support and
technology upgrades. It also clarifies customer service requirements and provides for rate
regulation if the FCC again permits municipalities to regulate rates. It requires Charter to
provide full "open access" to competing Internet providers if it is determined that franchising
authorities are permitted to require open access. It contains a "favored nations" clause. And it
provides for installation and provision of cable television and cable modems in all designated
City and public service buildings without cost to the City or other agencies.
Staff has prepared the renewal agreement and corresponding Ordinance updates to reflect the
negotiations, and to account for changes in the laws since the original Ordinance was adopted.
On the agenda for consideration are 1) Ordinance No. 807; and 2) the Franchise Agreement.
RECOMMENDATION: 1. Adopt Ordinance No. 807.
2. Approve the Franchise Agreement.
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ORDINANCE NO. 10
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD
AMENDING CHAPTER 5.28 OF THE ROSEMEAD MUNICIPAL CODE,
PROVIDING FOR THE ESTABLISHMENT AND.GRANTING OF FRANCHISES
FOR THE MAINTENANCE AND OPERATION OF CABLE TELEVISION
SYSTEMS AND FOR THE CONTINUING REGULATION AND
ADMINISTRATION OF THESE FRANCHISES.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES HEREBY ORDAIN
I AS FOLLOWS:
Unless expressly repealed or amended by the following sections, the existing provisions of
Chapter 5.28 of the Rosemead Municipal Code entitled the "Cable Television Franchise Lass of the
City of Rosemead," shall continue to be applicable.
SECTION I. Chapter 5.28 of Title 5 of the Rosemead Municipal Code is hereby amended in
the following particulars:
Section 5.28.020 DEFINITIONS is amended in the following particulars only:
A. The definition of "Additional Subscriber Service" is hereby amended to read as follows:
"Additional Subscriber Service" means any service not included in basic subscriber television
service, basic subscriber radio service or institutional service, as defined in this section, including, but
not limited to, pay cable, interactive services, cable modem services, and cable telephone services.
B. The definition of "Cable communications system" or "system, " is hereby amended to read
as,follows:
"Cable communications system" or "system," sometimes referred to as "cable TV system,"
"CATV system" or "broadband communications network." means a system of antennas, cables,
amplifiers, towers, microwave links, cablecasting studios, and any other conductors, converters,
equipment or facilities, designed and constructed for the primary purpose of distributing video
programming to home subscribers, and the secondary purpose of producing, receiving, amplifying,
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11 storing, processing, or distributing audio, video, digital, or other forms of electronic or electrical
signals. Such term does not include:
1. A facility that serves only to transmit television signals of one (1) or more television
I broadcast stations;
2. A facility that serves Subscribers without using any Public Right- ofWay;
3. A facility of a common carrier, which is subject in whole or in part to the provisions of
Title II of the Federal Telecommunications Act of 1996, except that such facility shall be considered a
Cable communications system to the extent such facility is used in the transmission of Video
Programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-
demand services: or
4. An open video system that complies with Section 653 of the Federal Telecommunications
Act of 1996: or
5. Any facilities of any electric utility used solely for operating its electric utility system.
C. The definition of "Chamrel" is herebj- amended io read as_follotrs:
"Channel" means a radio frequency band capable of carrying combinations of video, audio,
digital or other non -video signal, including a digitally compressed channel.
D. Tlie definition of "Gross Annual Revenue is deleted. A new definition is added as
follows:
"Gross Revenue" means all cash or other consideration received directly or indirectly by a
grantee and its affiliates, subsidiaries, parent, and any person in which a grantee has a financial
interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable
services by a grantee within the City or in any way derived from the operation of its system,
including, but not limited to, `Basic Subscriber Television Service." `Basic Subscriber Radio
Service," "Institutional Service," "Additional Subscriber Service," Premium and Pay Services, leased
channel fees, converter rentals or sales. revenue from cable Internet services, cable modem rentals or
sales, revenue from telephone and other services which may be provided over the Cable
Communications System, studio rental, and advertising revenues. Such gross revenues shall not be
reduced for any purpose other than as provided in this Chapter and shall be the basis for computing
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the fee imposed pursuant to Section 5.28.100 of this Chapter. Such gross revenue shall not include
converter deposits, modem deposits, or refunds to subscribers by the grantee, or items excluded by
I Federal law.
E. The definition of ")'ear" is amended to read as
"Year" means the remaining portion of 2000. Thereafter. "year" means a full calendar year.
Section 5.28.030 Grant of franchise is amended in the following particulars only:
Subsection B is amended to read as follows:
B. Basis for Award of Franchise. Pursuant to Federal and State law, the City Council may
base its award of a cable communications system franchise on the following criteria:
1. For every New Franchise:
a. Quality of service; and
b. Equal service for all areas of the City, without regard to income of the residents; and
c. Adequate public, educational, and governmental access channel capacity. facilities, and
financial support; and
d. Adequate assurance that the cable operator has the financial, technical, and legal
qualifications to provide cable service.
e. Any other consideration that will safeguard the local public interest.
2. For every Franchise Renewal:
a. Whether the cable operator has substantially complied with the material terms of the
franchise and with applicable law.
b. Whether the quality of the operator's service has been reasonable in light of community
needs.
c. Whether the cable operator has the financial, legal and technical ability to provide the
services, facilities and equipment set forth in the proposal.
d. Whether the operator's proposal is reasonable to meet the future needs and interests of the
community, taking into account the cost of those needs.
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Subsection E. Duration is amended to read as follows:
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E. Duration. The term of the franchise and all rights, privileges. obligations and restrictions
pertaining thereto shall not exceed ten (10) years from the effective date of the franchise unless
terminated sooner as hereinafter provided. No franchise shall be effective unless, within thirty (30)
days after approval by the Council, the grantee files in the appropriate office of the city a written
acceptance of the franchise.
Subsection I is added to read as follot+
I. Open Access. It is the policy of the City to encourage open access so that its residents may
utilize any Internet Service Provider, whether they receive their Internet Service by means of satellite
transmission, cable television, other Fiber Optic cables, or other means. If Federal Law permits
franchising authorities to require open access, the grantee shall permit open access to the fullest
extent permitted by law.
Section 5.28.060 Op. ration and is amended in the following particulars only:
Subsection ,9 is amended to read as folloiiis:
"A Open ;Wool sand Records. The grantee shall maintain an office within five (5) miles of the
City and shall manage all,of its�operations.in accordance witfi a policy of totally open books�and
records. The grantor shall have the right to inspect at any time during normal business hours, all
books, records, maps, plans, income tax returns, financial statements. complaint logs,
�I performance test results and other like materials of the erantee which relate to the operation of the
franchise. .Access to the aforementioned records shall not be denied by the grantor on the basis that
the records contain proprietary information.
Subsection C 2 is amended to read as follows:
C. Reports.
2. Monitoring and Compliance Reports. No later than April 1 5th of each year, the grantee
shall provide a written report of the FCC performance tests for the Cable Television System required
in Part 76, Section 76.601 of FCC Rules and Regulations. In addition, the grantee shall provide,
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reports of the test and compliance procedures established by the franchise agreement, no later than
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thirty (30) days after the completion of each series of tests.
Subsection D is amended to read as follows:
D. Maintenance and Complaints.
1. The grantee shall maintain an office within five (5) miles of the City which shall be open
during all usual business hours, shall have a publicly listed toll -free telephone number, and be so
operated to promptly answer subscriber telephone calls and to act upon complaints and requests for
repairs or adjustments, on a twenty -four (24) hour basis. A written log shall be maintained listing all
complaints and their disposition. Grantee shall maintain a location within the City for the making of
payments, which shall be open during normal business hours and a reasonable number of evening and
weekend hours. unless grantee establishes to the satisfaction of grantor hardship sufficient to excuse
grantee from this requirement.
2. The grantee shall render efficient service, make repairs promptly and interrupt service only
for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be
preceded by- notice 'and shall occur during period of minimum use of the system. A written log shall
be maintained for all service interruptions.
3. The grantee shall not refuse to provide service to any customer or prospective customer
conditioned upon such person providing a Social Security number to grantee if such person provides
a driver's license number or California I.D. number. Existing customers of the grantee will not be
asked more than the last four digits of their Social Security number or driver's license/California I.D.
number. After establishment of an account, existing customers may set up an individualized Personal
Identification Number (PIN) for use in verifying identity. No number will be required as a
prerequisite to ordering routine repair service by existing customers.
4. The grantee shall maintain a repair force of technicians capable of responding to subscriber
complaints or requests for service within twenty -four (24) and forty eight (48) hours after receipt of
the complaint or request. respectively. Repair service appointments shall be offered in four hour
blocks. No charge shall be made to the subscriber for repair service unless the problem was caused
by an act of the subscriber.
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5. The grantor shall ensure that all subscribers, programmers, and members of the general
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public have recourse to a satisfactory hearing of any complaints, where there is evidence that the
grantee has not settled the complaint to the satisfaction of the person initiating the complaint. The
grantor shall establish procedures for handling and settling complaints.
Section 5.28.070 Regulation of franchise and rates is amended in the following particulars only:
A neii preamble is added, preceding subsection A, to read as follolrs:
Regulation of rates and other terms for the provision of service to customers as set forth
hereinbelow shall be subject to and limited by applicable restrictions imposed by Federal and State
law. if and when such restrictions are removed or modified, enforcement of provisions hereof which
are not currently fully enforceable shall be enforced to the maximum extent permitted by law.
Section 5.28.140 Miscellaneous Provisions is amended in the following particulars only:
Subsection A is- amended to read as follows:
A. Compliance with Laws. Notwithstanding any other provision of this Ordinance or the
franchise to the contrary, the grantee at all times shall comply with all laws and regulations of the
state and federal government or any administrative agencies thereof, provided, however, if any such
state or federal law or regulation shall require the grantee to perform any service, or shall. permit the
Rrantee to perform any service, or shall prohibit the grantor from enforcing provisions of this
Ordinance or the franchise, or shall prohibit the grantee fromi performing any service in conflict with
the terms of the franchise or of any law or regulation of the grantor. then, as soon as possible
following knowledge thereof. the grantee shall notify the grantor of the point of conflict believed to
exist between such regulation or law and the laws or regulations of the grantor or the franchise.
If the grantor determines that a material provision of this chapter is affected by any
subsequent action of the state or federal government, the grantor shall have the right to modify and /or
interpret any of the provisions of this chapter to such reasonable extent as may be necessary to carry
out the full intent and purpose of this chapter consistent with said regulation or law.
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Section 2 . This Ordinance has been determined to be exempt from the California
Environmental Quality Act pursuant to State Guidelines § 15061 (b)(1) as a project that has no
potential for causing a significant effect on the environment.
Section 1 . The City Clerk shall certify to the adoption of this Ordinance.
PASSED. APPROVED and ADOPTED this day of .2000.
City of Rosemead
ATTEST:
City Clerk
City of Rosemead
7
WALLIN, DRESS, REISMAN & KRANITZ
LAW OFFICES
2800 TWENTY - EIGHTH STREET, SUITE 315
SANTA MONICA, CALIFORNIA 90405 -6205
TELEPHONE (310) 450 -9582
FAX (310) 450 -0506
TO: Mayor and City Council
FROM: Cary S. Reisman, Esq. (3�
DATE: June 15, 2000
RE: Charter Communications
Enclosed please find the revised Franchise Agreement with Charter Communications for
consideration at the June 27, 2000 Cite Council Meetine. There are no substantive chanties to
the Agreement itself. Please note the changes to Exhibit "D," paragraphs 1 and 2, as well as the
Preamble to Exhibit "`E." ,
AGREEMENT
AN AGREEMENT GRANTING A NON-EXCLUSIVE FRANCHISE
RENEWAL TO CHARTER COMM ICATIONS ENTERTAINMENT
IT:, OPERATE A CABLE TELEVISION SYSTEM IN.THE CITY
'OF ROSEMEAD - SETTING FORTH CONDITIONS
ACCOMPANYING GRANTING OF THE FRANCHISE
RENEWAL.
TABLE
SECTION 1: GRANT OF FRANCHISE
SECTION 2: DEFINITIONS
SECTION 3: GENERAL REQUIREMENTS
SECTION 4:. SERVICE REQUIREMENTS
SECTION 5: SYSTEM UPGRADE
SECTION 6: CONSTRUCTION AND TECHNICAL STANDARDS
SECTION 7: SERVICE AND RATES
SECTION 8:
TRAINING AND HIRING REQUIREMENTS
SECTION. 9:.
REGULATION =
SECTION-] 0
_. SEP.ARABILITY
SECTION 1I V` �1=ORCE MAJE�RE;.GIZANTEV`S, A-BIL1TY70 PERFORM -
C
� t' .tea RM1 � �. 4
SECTION f? HOLD FIARML`ESS a
SECTION, L>i f
ARBITRATION - -
EXHIBIT A:
RESERVED FOR COMMERCIAL PLAN
EXHIBIT B:
SYSTEM UPGRADE CAPABILITIES
EXHIBIT C:
RESERVED FOR DETAILED UPGRADE PLAN
EXHIBIT D:
GRANTEE COMMITMENT TO EG ACCESS FACILITIES AND
EQUIPMENT
EXHIBIT E:
FREE PUBLIC BUILDING INSTALLATIONS
AGREEMENT
THIS AGREEMENT, made and entered into this _ day of 2000, at
Rosemead, California, by and between the City of Rosemead, a municipal corporation of the State
of California ( "City" or "Grantor "), and Charter Communications Entertainment II, LLC. a
Delaware Limited Liability Corporation, ( "Charter" or "Grantee ").
WITNESSETH
WHEREAS, the City of Rosemead, pursuant to Chapter5.28 of the Rosemead Municipal
Code ('the Ordinance"), is authorized to grant one or more non - exclusive revocable franchises to
operat construct,urarntairi. and reconstruct a:cable television system within the City, and
WHEREAS: the Ctt} hash gotiated with Charter fornewal of the franchise which was
Granted to Falcon Communications in i 985, and after public - hearings, City has determined that,it
is in the best interest of the City and its residents to grant a franchise renewal to Charter.
NOW, THEREFORE, City hereby grants to Charter a cable television franchise in
accordance with the provisions of the Ordinance and this Agreement.
Rosemead /Charter Franchise Agreement June 15, 2000
1. GRANT OF FRANCHISE
1.3 Effective Date of Franchise The effective date of the renewal of this franchise
Communications, is hereby granted for itself, its successors and assigns, subject to the terms
and conditions of this Agreement and the Ordinance, the franchise, authority, right and
privilege, for a ten (10) year period from and after the effective date hereof, to construct.
operate and maintain a cable television system within the streets and public ways within the
City of Rosemead.
shall be the
of Grantor to issue a non - exclusive franchise as herein provided.
said term, i1
federal law.
1.1 Grant. Charter Communications Entertainment IL LLC. d.b.a. Charter
1.2 Right -of Grantor to Issue Franchise Grantee acknowledges and accepts the right
date of execution of this Agreement by Grantor and Grantee.'
ail renewal te 100) year's from - the effective date
tch ttrrie =it shall expire and b . of no force. and.:effect. Renewal -at the expiratiomof
. any, 'shall be trr accordance with the Ordinance, as amended, subject to state and .
Ld Franchise Not Exclusive This franchise shall not be construed as any limitation
upon the right of Grantor, through its proper officers, to grant to other persons or
corporations rights, privileges and authority similar to or different from the rights, privileges
and authority herein set forth. in the same or other streets and public ways or public places by
franchise. permit or otherwise; provided, however, that such additional grants shall not
operate to materially modify, revoke or terminate any rights granted to Grantee herein.
Rosemead /Charter Franchise Agreement
June 15, 2000
1.6 Franchise Acceptance The Grantee and its parents, subsidiaries and affiliates, by
executing this Agreement, guarantee performance by Grantee of all of Grantee's obligations
hereunder imposed by the Ordinance and this Agreement.
2. DEFINITIONS
For the purpose of this Agreement, the following words, terms, phrases, and their
derivations shall have the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number include
the singular number and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory. The definitions contained in the
S
Ordinance are incorporated herein as if fully set forth. In case of conflict, these definitions
. slial•preAatl °,: •,
2 1 ` Agreement or " Franchise Agreement or " FranchiseRettewal : Agreement means-
this his agreemeht'and an} ameudtnents or renewals thereof.
Z_` Grantee or ". Charter means.-Charter Communications Entertainment II, I LC, or
any person or entity whom or which succeeds Charter - in accordance with the provisions of
this franchise and the Ordinance.
23 " Grantor ' or "City" means the City of Rosemead or its delegate acting within the
scope of its jurisdiction.
2.4 " Initial Service Area means all residential housing units in the City of Rosemead
which are within 200 feet of an existing portion of the Cable System.
2.5 " Section " means any section, subsection or provision of this franchise agreement.
Rosemead /Charter Franchise Agreement June 15, 2000
3. GENERAL REQUIREMENTS
3.1 Governing Requirements Grantee shall comply with the requirements of this
Agreement and the Ordinance and all provisions of state and federal law. In the event of any
conflict between this Agreement and the Ordinance, any mandatory provisions of the
Ordinance in effect at the time of the adoption of a franchise agreement shall control;
however, the franchise agreement shall control as to any definitions and as to any optional -
provisions. (Optional provisions include provisions which state "to the extent or if provided
for in the franchise agreement. ") If the Ordinance provides for an optional provision but the
franchise agreement is silent as to that provision, then the provision shall be deemed not
applicable to the franchise agreement. Amendments to the Ordinance shall not affect any
franchise agreement entered into-prior to the effective date of the amendment, unless required
"or permitted to be effective earlier pursuant to applicable state or federal law, or both parties
to the franchise agreement also amend the agreement to incorporate the provisions of the
amended ordinance.
3.2 Franchise Fee The Grantee shall pay to the Grantor an annual franchise fee of
five percent (5%) of Gross Revenue as defined in the Ordinance.
33 Pavment of Franchise Fees Franchise fees shall be payable quarterly, within thirty
(30) days following the quarter for which payment is due.
3.4 Recovers of Processing Costs Within sixty (60) days after receipt from Grantor
of a written itemization. Grantee shall reimburse Grantor for its reasonable costs incurred
during the franchise renewal /franchise transfer process not to exceed the sum of Ten
Thousand Dollars ($10,000). Such reimbursement will not be passed through to subscribers.
Rosemead /Charter Franchise Agreement -4- June 15. 2000
3.5 Pavment to Grantor No acceptance of any payment shall be construed as an
accord that the amount paid is in fact the correct amount, nor shall such acceptance of
payment be construed as a release of any claim the Grantor may have for further or additional
sums payable under the provisions of this Agreement. All amounts paid shall be subject to
audit and recomputation by the Grantor.
3.6 Insurance
(a) Grantee shall procure and maintain for the duration of the Franchise,
insurance against claims for injuries to persons or damages to property which may arise from
or in connection with the operation of the Franchise by the Grantee, its agents,
. representatives, employees or subcontractors.
_ (b) _ shall maintain limits no less than:
(1) General L�abilit< Two Million Do Pats;($ �QO,OOb� per occurrence for
bodily personal injury and property darn age :.If Commercial General L a�ilit} Insurance or
other form with a general aggregate limit is used, either the aggregate liovshall apply -'
separately to this Franchise or the general aggregate limit . shall be twice the required-
occurrence limit.
(2) Automobile Liability: One Million Dollars ($1,000,000) per person, two
Million Dollars (S2,000,000) per accident for bodily injury and property damage.
(3) Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
(c) Any deductibles or self - insured retentions must be declared to and
approved by Grantor. At the option of the Grantor, the insurer shall reduce or eliminate such
deductibles or self - insured retentions as respects Grantor, its officers, officials, employees and
Rosemead /Cnarter Franchise Agreement
-5-
June 15, 2000
volunteers or the Grantee shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
(d) The general liability and automobile liability policies are to contain all the
following provisions:
(1) Grantor, its officers, officials, employees, agents and volunteers
are to be covered as insureds as respects to any liability arising out of activities performed by
or on behalf of Grantee; products and completed operations of Grantee; premises owned,
occupied or used by Grantee: or automobiles owned, leased, hired or borrowed by Grantee. -
The coverage shall contain no special limitations on the scope of protection afforded to
Grantor, its officers, officials, employees, agents or volunteers, and shall name Grantor as
additionally insured
(o: For any claim related to this Agreement. Gra`ntee's insurance
coverage shall be primary insurance as respects Grantor, its officers, officials, employees,
agents and volunteers. Any insurance or self insurance_rhaintained by Grantor, its officers, .
officials, employees, agents or volunteers shall be excess of Grantee's insurance and shall not
contribute with it.
(3) Any failure to comply with reporting or other provisions of the
policies including breaches of warranties shall not affect coverage provided to Grantor, its
officers. officials, employees. agents or volunteers.
(4) Grantee's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
Rosemead /Charter Franchise Agreement -6- June 15 , 2000
(5) Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days prior written notice by certified mail, return
receipt requested, has been given to Grantor.
(6) Insurance shall be placed with insurers which are "admitted" in the
State of California and have a current A.M. Best's rating of no less than ANII, unless
otherwise acceptable to the Grantor.
(7) Grantee shall furnish the Grantor with original endorsements
effecting coverage required by this section. The endorsements are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The endorsements are to be on
3 by Grantor. All endorsements are to be received ajl a prr3 ed GrartICtl
Ot
Wiq
(e)tGrantor reserves
::the, tp adjust thgaimtt Foverage regiuretrlents "
;-
more often than even} three -(3) }ears An) such adjustment by the Grantor will be. no greater
,..
than the increase in the Los Angeles Metropolitan Area Consumer_Pnce Index (all-consumers) .
for such three (3) year period.
(f) Grantee shall submit to Grantor documentation of the required insurance
including a certificate of insurance signed by the insurance agent and companies named. as
well as all properly executed endorsements.
(g) Grantee hereby indemnifies Grantor for any damage resulting to it from
failure of either Grantee or any subcontractor to take out and maintain such insurance.
Rosemead /Charter Franchise Agreement -7- June 15, 2000
3.7 Indemnification
(a) Grantee shall indemnify, hold harmless, release and defend Grantor, its
officers, employees and agents from and against any and all actions, claims, demands,
damages, disability, losses, expenses including attorney's fees and other defense costs or
liabilities of any nature that may be asserted by any person or entity including Grantee from
any cause whatsoever arising from the activities of Grantee, its subcontractors, employees and
agents hereunder. Grantee shall be solely responsible and save Grantor harmless from all
matters relative to payment of Grantee's employees including compliance with Social Security,
withholding, etc.
(b) This indemnification obligation is not limited in any way by a limitation on
the amougl ° orFype of damages or compensation payable by or for Grantee under Worke.Ls
Com�erss�ittan dtsa7ztiPE} ofo i nployeelz Y� cts, accep ce Qft urance certI ioates
(d) This indemnification by Grantee shall apply to all damages and claims for
damages of any kind suffered by reason of any of the aforesaid operations referred to in this
Section, regardless of whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
(e) Grantee shall not be required to indemnify Grantor for negligence or
misconduct on the part of Grantor or its officials, boards, commissions, agents, or employees
Rosemead /Charter Franchise Agreement -8- June 15. 2000
I
(hereinafter "such acts "). Grantor shall hold Grantee harmless from any damage resulting
from any such acts of the Grantor or its officials, boards, commissions, agents or employees in
utilizing any government or educational access channels, equipment, or facilities and for any
such acts committed by Grantor in connection with work performed by Grantor and permitted
by this Agreement, on or adjacent to the Cable System.
3.8 Security. Grantee shall maintain with Grantor a letter of credit and a faithful
performance bond in accordance with the Ordinance.
_... 4. SERVICE REQUIREMENTS
4.1 General The Grantee shall meet or exceed all the material construction and
sc vice, requirements set out in this franchise agreement. It is the Grantor's intent that
'Grantee.shall not be penalized for'ininor breaches of the terms hereof so long as its best
efforts are maintained
4.2 ' .Rest dential Service Grantee shall offer all its Cable Service to every residence
in the Initial Service Area in accordance with the terms of this Agreement and the Cable
Ordinance.
4.3 Residential Service Extension Grantee shall extend the Cable System at its sole
cost and expense in accordance with this Agreement and the Cable Ordinance. If, during the
term of this Agreement, new residences are constructed in an area of the City adjacent to, but
outside of, Grantee's Initial Service Area, Grantee shall extend its plant to provide service to
those residences to, the extent required by the Cable Ordinance and this Agreement. Grantee
shall in all cases provide a service drop of 200 feet or less to residential Subscribers at no
more than Grantee's standard installation price. Service drops of more than 200 feet shall be
Rosemead/Charter Franchise Agreement -9- June 15, 2000
provided at a cost equal to Grantee's standard installation price plus Grantee's actual cost
(limited to time and materials expended) for the portion of the drop extending beyond 200
feet.
4.4 Multiple Dwelling Units Grantee agrees that it shall offer Cable Service to all
multiple dwelling units located within the City, including without limitation all apartments,
convalescent hospitals, retirement homes and similar housing structures or institutions.
Subject to the conditions stated in this Agreement and the Cable Ordinance, and other
requirements mandated by law, if any, Grantee shall offer all such Subscribers Cable Services
.on the same terms and conditions that such services are offered to single family residences,
and shall provide service extension to the structure (but not to individual units) on the same
Air attd corldrttons defined in paragraph 4.3 immediately above.,,
z
�" a Vim•..- `
ncMied- 'Servz6FRI &ERE Zirantee shall, at its sole cost and expense, extend
the Cable System and provide one service drop - (regardless -of lengthy to the structure (but not
to individual units) of each and every multiple dwelhne- unit'in the Cin provided that the
owner of the structure provides service consents as reasonably required by Grantee.
4.6 Commercial. Industrial and Non - Residential Service Grantee shall offer Cable
Service to all commercial, industrial, and non - residential customers on the following terms:
Within ninety (90) days following a request for service from any potential commercial,
industrial or non - residential customer (or group of customers). Grantee shall (i) provide the
potential customer(s) requesting service with a written estimate of the costs of providing such
customer(s) with service, and (ii) offer to provide such customer(s) with service, provided,
however, that the customer(s) shall elect to either: (a) agree to pay Grantee's actual costs
(limited to time and materials expended) of extending the Cable System to such customer. or
Rosemead /Charter Franchise Agreement -10- June 15, 2000
(b) enter into a contract which will reasonably assure adequate revenues to provide Grantee
with recovery of the full costs and expenses of constructing and operating any required line
extension. Grantee shall provide the City with one (1) copy of the written cost estimates and
any terms of agreement proposed with each such potential customer.
4.7 Commercial/Industrial Service Extension Within one (1) year of the Effective
Date, Grantee shall prepare and submit for approval by the City a plan for extending the Cable
System at Grantee's sole costs and expense to provide Cable Service to all commercial and
industrial areas of the City ( "Commercial Plan"). The Commercial Plan shall provide a
schedule of appropriate milestones for extending the Initial Service Area with the goal of
providing Cable Service to all non - residential areas within five (5) years of the Effective Date.
In developing such a plan, Grantee shall take into account the City's existing and anticipated
non - residential needs for Cable Services (and related communications services), any plans that
the City discloses respecting planned development of its non - residential areas, and the cost
and efficiencies of extending the Cable System to such areas. The plan shall also identiAl any
proposed terms and conditions to be imposed upon non - residential subscribers that are
additional to or different from those that pertain to other subscribers in the City, if any, which
terms and conditions shall be reasonable. To the extent that Grantee demonstrates in such
plan that it is not technically or economically feasible to provide Cable Service to any
particular area. then Grantee may propose in its plan that such service not be provided to such
area. Grantee shall submit the Commercial Plan for approval by the City, which approval shall
not be unreasonably denied. Upon approval, the plan shall be filed as Exhibit "A" to this
Agreement and become a part hereof.
Rosemead /Charter Franchise Agreement -H- June 15, 2000
4.5 Undergrounding of Cable Grantee shall install its cables underground where all
other utilities are underground. and shall convert its aerial plant to underground in concert
with other utilities, at its cost except when a utility conversion assessment district is formed. in
which case. Grantee shall participate only when it receives a pro -rata share of funds from the
district.
5. SYSTEM UPGRADE
5.1 1 ingrade of the Cable System Grantee has recently completed an upgrade of the
existing Cable System (`1995 Upgrade ") to provide a system with the capabilities described in
Exhibit "B" attached hereto.
Attached to this Agreement as Exhibit "C" is a detailed plan of the system upgrade.
Said plan includes the following: (1) equipment specifications and design performance
criteria; (2) a system map -which delineates any expansions of the prior Service Area and the
reasons for not serving any areas in the City. and (3) a schedule for implementing the specific
new service milestones contemplated by this Agreement.
Grantee's maps (submitted with its upgrade plan), using standard industry
designations, shall at a minimum disclose (i) cable routes: (ii) locations and identifications of
aerial and above and below ground appurtenances (such as risers, vaults, pedestals and poorer
supplies) and (iii) physical locations and identifications of s } 'stem components including= but
not limited to. cables and active and passive electronics. Grantee need not disclose the
electrical values of its taps, splitters or directional couplers; however, the City shall have the
right to review such materials at Grantee's office.
12- June 15, 2000
RosemeadlCnarter Franchise Agreement
The City shall have the sole discretion to approve all plans, to assure that they are
consistent with applicable statutes, ordinances, codes, regulations, determinations and rulings,
including without limitation the Rosemead Municipal Code, zoning ordinances and traffic
safety standards. Where plans and specifications are not in compliance with such statutes,
ordinances, codes, regulations, determinations and rulings, Grantee shall modify or revise such
plans and specifications so as to achieve such compliance. Grantee must comply with the
requirements of applicable State and local statues, ordinances, codes and regulations
governing the location of subsurface installations, including without limitation the provision of
Section 4216 et seg. Of the California Government Code, with respect to notification to or
from a regional notification center (such as Underground Service Alert) conceming proposed
excavation work. I£ after construction, the City determines that the planned placement of:- -:
specific equipment by Grantee may cause a neg`Atiue aesthetic impact, then Otantee will make `"
reasonable efforts to minimize such an impact within technical*design constraints.
Notwithstanding approval of any plans, nothing in this Agreement or in the Cable Ordinance
shall be construed as a license, right or privilege granted by the City to use any public right -of
way for any purpose other than the provision of cable television services.
5.2 Program Origination Points Grantee shall establish upon completion of the 1998
Upgrade, an origination point from Rosemead City Hall and from the Emergency Operations
Center, or other mutually - agreeable locations that will permit live character - generated
programming and live and /or pre - recorded video programming to originate at such locations
on access channels controlled and programmed by the City or its designee. Grantee shall
provide, install and maintain at no charge all necessary modulators, demodulators and
associated electronic equipment and all necessary transmission paths (via cable or other
Rosemead /ehaner Franchise Aareement - I J- June 15, 200
suitable technology) from the said locations to the system headend and downstream on the
basic service access channels. Grantee shall establish at no charge, all necessary equipment
and paths to provide Community College programming to Rosemead subscribers through
Pasadena City College or other agreed programming provider.
5.3 Emergency Alert Svstem Grantee shall provide and maintain throughout the term
of this Agreement the system capability to transmit an emergency alert signal to all
,participating subscribers. consistent with Federal Communications Commission requirements
or, if there are no such requirements, in the form of an audio override capability to permit the
City to interrupt and.cablecast an audio message on all channels simultaneously in the event of
disaster or public emergency declared under federal or state law or undetitte C"t." IYJu. a
Code Thtisystem'shalI be actri"Aed vi telephone cTmrto Grantee's - Arstei Yelephone
number or by other su_ maple means and shall be designed per
t the mtr coon of an
1.
ertiergency utdeo crawl on al] channels''Graritee shall.provide'a 'writt en protocol for'usin;'
such system.�within sixty_ (60) days of the Effective Date.
6.4 Emergence Power and Standby Power Grantee shall provide and maintain
throughout the term of this Agreement a generator and an automatic transfer switch at its
headquarters to allow for emergency powering of the headend electronics in event of local
power outage. Standby power supplies shall also be installed on all major trunk and subtruhks
to provide emergency power within the standard limits of commercially available power
supply units. The emergency and standby power supplies shall be maintained and routinely
tested by Grantee as appropriate.
5.5 Addressable Technologv Grantee shall, in its development of an upgrade plan,
provide for the use of addressable technology in the delivery of its programming services.
RosemeadICharter Franchise Agreement -1 June 15, 2000
Grantee shall make good faith efforts to provide equipment when available which allows for
the use of the special features of consumer electronics equipment such as "picture -in- picture"
and "watch -and- record" and other common VCR and TV functions in a "user - friendly"
manner.
5.6 Digital Technologv Grantee shall establish and maintain the capability
throughout the entire Cable System to transmit information digitally. Grantee shall
nonetheless continue to transmit current channels and services in analog form unless otherwise
agreed between the City and "Granted accordance with pracf - ices in neighboring cable
systems. Iris'anticipated that, upon completion of the upgrade, Grantee will transmit some__,
channels and services to a digital format. Grantee shall provide, the necessary equipment to
decode sa h signals transmitted on the Cable Svstem "
. 5
.. �._�
7 3� 3tvvabifttu $ygtem shall have the'c�a throughout the
'enure system to transmit ideo zroiz e anti /or data son ices m two`directions simultamousI
with`the additions of refurn'modules Two wad services shall betinstiluted_when'(i) =it is -
consistent with federal and state laws,._and (u) it;is economir' l' 'and technically feasible.—
provided, however, that it shall be Grantee's burden to demonstrate - to "the Cirv's satisfaction
that it is not economically or technically feasible to institute such service.
5.8 Cable Modems Grantee shall establish the capability throughout the entire -
Cable System for subscribers to utilize cable modems to attain connections to the Internet for
an additional fee. Grantee may supply cable modems to subscribers for a monthly rental fee or
shall permit subscribers to utilize their own cable modems if permitted by federal law. If
franchising authorities are permitted to require that cable television franchisees provide open
Rosemead /Charter Franchise Agreement -15- June 15, 2000
access by Internet Service Providers to provide internet service utilizing the franchisee's cable
system. Grantee shall permit open access to the fullest extent permitted by law.
.5.9 Interconnection Upon Grantor request, Grantee shall negotiate in good faith
to interconnect the cable television system with neighboring cable systems in the future. with
consideration for technical and economic concerns. Grantee shall keep Grantor advised of
negotiations. Notwithstanding the above, Grantee is committed to, and shall, interconnect the
cable system with all cable systems operated by Grantee or its affiliates in the San Gabriel
Valley area. Grantee shall provide a fiber optic interconnection of the Rosemead hub and the
Grantees studio - facility in the City Alhambra '
5.10 Status. Monitoring Grantee shall provide ari . aulomaticstatus m`onitorinL system
or functional esluii alent when the Cable System has been actirgted for interactive service.
provided tlik &:h status monitoring is techn cally. and economically feasible.
5.11 ParentaPControl Lock Grantee shall provide subscribers, upon request, with a
parental control lockin device or digital code that permits inhibiting the viewing of premium
channels.
5.12 Right of Inspection The City shall have the right to inspect all construction,
reconstruction or installation work performed subject to the provision of the Franchise and
other applicable law.
Rosemead /Charter Franchise Agreement -16- June 15. 200
6. CONSTRUCTION AND TECHNICAL STANDARDS
6.1 Construction Standard
(A) Compliance with Safety Codes
All construction practices shall be in accordance with all applicable sections of the
Occupational Safety and Health Act of 1970 and any amendments thereto as well as all state
and local codes where applicable.
(B) Compliance with Electrical Codes
All installation of electronic equipment shall be of.a.permanent nature, durable and
installed in accordance with the provisions of the National Electric Safery Code as amended.
(C) Antennas and Towers
rttenna support ing structures (towers) shall be designed for the proper loading zorle
specskd f'*n R S o2A Specifications.
Anteiina supporting -structure (tower) shall be painted, lighted. erected and
maintained in accordance with all applicable rules and regulations of the Federal .Aviation.
Administration and all other applicable state or local codes and regulations.
(E) Construction Standards and Requirements
All of the Grantee's plant and equipment, including but not limited to the antenna site,
head -end and distribution system, towers, house connections, structures, poles, wire, cable.
coaxial cable. fixtures and appurtenances shall be installed, located. erected. constructed.
reconstructed, replaced, removed, repaired, maintained and operated in accordance with good
engineering practices, performed by experienced maintenance and construction personnel so
as not to endanger or interfere with improvements the City may deem proper to make, or to
RosemeadlCharter Franchise Agreement
17- June 75, 2000
interfere in any manner with the rights of any property owner. or to unnecessarily hinder or
obstruct pedestrian or vehicular traffic on City properties.
(F) Safety. Nuisance. Reouirements
The Grantee shall at all times employ ordinary care and shall install and maintain in use
commonly accepted methods and devices preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public.
6.2 Network Technical Reauirements
—_ -- - - - The Cable System shall be upgraded as needed to meet or exceed the technical -
specifications and capabilities of systems operated by the Grantee in neighboring communities
and operated so as to meet the following general objectives:
1.)., Capable of continuous twenty -four (24) hour daily operation :, . -4
Capable of operating over an outdoor temgerature range of -20 degrees F to
+ =120 degrees F without catastrophic failure or irreversible performance changes over
variation in supply voltages from 105 to 130 volts AC:
(3) Capable of meeting all specifications as set forth herein over an outdoor
temperature range of 0 degrees F to 120 degrees F over variations in supply voltages from
105 to 130 volts AC;
(4) Operated in such a manner as to avoid causing interference with reception of
off - the -air signals by non - subscribers to the network:
(5) Designed, installed and operated in accordance with FCC rules and reg ulations
and industry standards so as to assure the delivery to all subscribers of video and audio signals
without noticeable degradation directly attributable to the performance of the cable system.
RosemeadlCharter Franchise Agreement _18- June 15, 2000
6.3 Performance Monitoring
Test procedures used in verification of the performance criteria set forth herein. if not
as set forth in paragraph 76.609, Subpart K of the FCC Rules and Regulations, shall be in
accordance with good engineering practice and shall be fulh described in an attachment to the
annual certificate filed upon request with the City.
To the extent that the report of measurements as required above may be combined
with any reports of measurements required by the FCC or other regulatory agencies. the City
shall accept such combined reports, provided that all standards and measurements herein or
hereafter established by the City are satisfied.
At an, time after commencement of service to subscribers the City may require
additional tests, full. or partial repeat tests. different test procedures, or tests invoh mg a
specific su_ `scriber's terminal: Re ests'for such additional tests will be made
complaints _received mother faith evidence indicating an unresoh ed controversy or
significant non compliance by the Grantee, and such tests will be limited to the particular
matter in controversy. The City will endeavor to so arrange its requests for such special tests
so as to minimize hardship or inconvenience to Grantee or to the subscriber.
6.4 Favored Nations
In the event Grantee shall enter into any other cable television franchise with other
cities in the San Gabriel Valley of Los Angeles County providing for technological
improvements or upgrade or special customer services not currently available or planned to be
available in the City, Grantee shall notify the City of same within thirr (30) days of the
effective date of the other franchise.
Rosemead /Chaser Franchise Agreement
19- June 15, 2000
Followina notification, discussion and agreement between Grantor and Grantee about
the desired improvements. Grantee shall submit a schedule for providing these system
enhancements. provided, however. that Grantee is able to recoup its costs in a manner
consistent with the terms agreed upon in the other communities. The City may grant
extensions, where necessary, upon application by the Grantee which shall demonstrate cause
for the extension.
6.5 Street Occupancy
Grantee shall utilize existing poles:: conduits and other facilities whenever possible. and -
shall not construct or install any ne". different, or additional poles, conduits. or other facilities
whether on' public property or on privately - owned property until the written approval of the
Citti is obt ;`which.approval shall not be unreasonably withheld. However, no location of
-''
pole tiro tfe holding structure of the-Grantee shall be a vested interest and such poles or
arIv structures shall be removed or modified by the Grantee at its own expense whenever'the City.
<.
determines that the public convenience would be enhanced thereby. `
Grantee shall notif r the City at least ten (10) days prior to the intention of the Grantee
to. commence any construction in any streets. The City shall cooperate with the Grantee in
granting any permits required, providing such grant and subsequent construction by the -
Grantee shall not unduly interfere with the use of such streets and that proposed construction
shall be done in accordance with the pertinent provisions of the resolutions of the City.
All transmission lines, equipment and structures shall be so installed and located as to
cause minimum interference with the rights and reasonable convenience of property owners
and at all times, shall be kept and maintained in a safe. adequate and substantial condition. and
in Rood order and repair. The Grantee shall, at all times, employ ordinary care and shall install
_20_ June 15, 2000
Rosemead/Charter Franchise Agreement
and maintain in use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable
barricades, flags, lights, flares or other devices shall be used at such times and places as are
reasonably required for the safety of all members of the public. Any poles or other fixtures
placed in any public way by the Grantee shall be so placed with the approval of the City
Eneineer in such a manner.as not to interfere with the usual travel on such public way.
Grantee shall, at its own expense, and in a manner approved by the City, restore to
City standards and any damage or caused to the public as a -" -"
result of its operations or construction on its behalf.
Whenever. in case of fire or other disaster, it becomes necessary in the judgment of the
Fl e Chief or the Police Chief to remove any of the Grantee's facilities. no charges shall be
-made by the Grantee against the City for restoration and.repair, unless such actions result
from the negligence. gross neelige'nce or willful disregard City.
Grantee or its designee shall have the authority to trim`trees`on public propem at its
own expense as may be necessary to.protect its wires and facilities, subject-to the supervision
and direction of the City. Trimming of trees on private property shall require consent of the
property owner or a court order.
The Grantee at its expense shall protect, support, temporarily disconnect, relocate, or
remove any property of Grantee when, in the opinion of the City the same is required by
reason of traffic conditions, public safet<, street vacation, freeway or street construction,
change or establishment of street grade, installation of sewers, drains, water pipes, power line,
signal line, transportation facilities, tracks, or any other types of structure or improvements by
governmental agencies whether acting in a governmental or a proprietary capacity, or any
Rosemead /Charter Franchise Agreement -21- June 15, 2000
other structure or public improvement, including but not limited to movement of btiildings;
urban renewal and redevelopment, and any general program under which the City shall
undertake to cause all such properties to be located beneath the surface of the ground. The
Grantee shall in all cases have the privilege, subject to the corresponding obligations, to
abandon any property of Grantee in place.
Upon failure of Grantee to commence, pursue or complete any work required by law
or by the provisions of this Resolution to be done in any street, within the time prescribed and
to the satisfaction ofthe City, the City may at its option, cause such work to be-done the
Grantee shall pay to the Cin the cost thereof in the itemized amounts reported by the City to
Grantee within thirty (30) days after receipt of such itemized report.
7. SERVICE AND RATES
7.1 Proaramminc and Services
Grantee shall provide Grantor with a list of programming and other services offered,
which list shall be updated each time a change is made. Grantee shall not reduce the number
of program services offered or eliminate any service without thirty (30) days prior written
notice to the Grantor and System subscribers.
7.2 Leased Channel Service
Grantee shall offer commercial leased access on reasonable terms and conditions and
in accordance with applicable law.
73 Office and Phone
The Grantee shall comply with the Ordinance regarding handling of customer
complaints, repairs, maintenance and service requests.
June 15, 2000
RoserneadIGnarter Franchise Agreement
7.4 Senior Citizen Discount
Low income residents whose head of household is sixty -five years of age or older shall
be entitled to receive a ten percent (10 %) discount on expanded basic cable television service,
or for such residents who subscribe to limited basic service only, a twenty -five percent (25 %)
discount on their limited basic television service bill. Low income status shall be determined
by the City based upon the criteria utilized by the City in determining entitlement to
discounted trash pickup service.
- 75 - Notification of Service Procedures — - -
The Grantee shall furnish each subscriber at the time service is installed. written
instructions that clearly set forth procedures and furnish information concerning the
procedures for making inquiries or complaints, including the Grantee's name, address and
local telep}i to ntanber Grant�� s6a11 give the City thirty (.3 days p to rwtice of any rate
increases, channel lineup or • other • substantne.ser`vice changes . --
7.6 Rate Revision
To the extent that Federal or State law or regulation may now. or hereafter be
amended to, authorize the City to regulate the rates for any particular. service tiers. service
packages, equipment, or any other services provided by Grantee, the City shall have the right
to exercise rate regulation to the full extent authorized by law. or to refrain from exercising
such regulation for any period of time, at the sole discretion of the City. If and when
exercising rate regulation. the Ciq shall abide by the terms and conditions set forth by the
FCC.
-23 June 15, 2000
Rosemead /Charter Franchise Agreement
8. TRA1NfI\TG AND EMPLOYMENT REQUIREMENTS
8.1 Equal Employment Opportunity Throughout the term of the franchise. Grantee
shall conduct its business as an Equal Employment.. Opportunity Employer. In addition,
throughout the term of the franchise, the Grantee shall maintain a policy that all employment
decisions, practices and procedures are based on merit and ability without discrimination in
violation of state or federal law on the basis of an individual's race. color, religion, ace. sex,
national origins, or physical or mental handicap. The Grantee's policy shall apply to all
empl "oyment actions including advertising, recruiting, hiring: promotion. - transfef -- -
remuneration. selection for training, company benefits, disciplinary action, lay -off and
termination. The Grantee shall carn out this policy through continued. - .dedication to a
determined and sustained effort to provide equal employment opportunities to all.
$ ",Transfers and Assignment. The Cable System.and -the Franchise - granted
hereunder., shall not be assigned or transferred, either in whole or part, or leased, or sublet in
a.n manner, nor shall title thereto, either legal or equitable or any right, interest or propem
_ therein, pass to or vest in any person without the prior written consent of the City. The
proposed assignee must show technical ability, financial capability, legal qualifications and
Lyeneral character qualifications as determined by the City Council and must agree to comply
Nvith all provisions of the Franchise except that no City consent shall be required for a transfer
in trust, mortgage or other hypothecation as a whole or part to secure an indebtedness of
Grantee nor shall City consent be required for changes in the structure of the corporations
comprising the joint venture or partnership so long as Grantee's existing principal partners
remain the principal provider of the services hereunder, nor shall City consent be required if
Charter is dissolved or redistributed. The City Council shall be deemed to have consented to
Rosemead /Charter Franchise Agreement -24- June 15, 2000
a proposed transfer or assignment in the event its refusal to consent is not communicated in
writing to Grantee within the time provided by federal law following receipt of written notice
of the proposed transfer or assignment. Such consent shall not unreasonably be withheld.
8.3 Grantee shall promptly notify the City Council of any actual or proposed change
in. or transfer of, or acquisition by any other party of. control of Grantee. The word "control'
as used herein is actual management control in whatever manner exercised. Every change
transfer, or acquisition of control of Grantee except as herein provided, shall make the
franchise subject to cancellation unless and until the City Council shall have consented thereto. -
which consent will not unreasonably be withheld. For the purpose of determining whether it
shall consent to such change, transfer or acquisition of control, the City Council may inquire
into the qualifications of the prospective controlling parry and Grantee shall assist the City
Council in any such inquiry. >•
pi
rarisfer of controY has occurred shall arise upon
8.4 A rebuttable presumption that a`t
the acquisition or accumulation by any person or group of persons of 10% of the General
Partnership interests of Grantee.
8.5 The consent or approval of the City Council to an) transfer of the Franchise shall
not constitute a waiver or release of the rights of the City in and to the streets, and any
transfer shall by its terms, be expressly subordinate to the terms and conditions of this
Franchise Agreement.
8.6 In no event shall a transfer of ownership or control be approved without the
successor in interest becoming a signatory to this Franchise Agreement.
_25_ June 15, 2000
Rosemead /Charter Franchise Agreement
_ 8.7 Notwithstanding the foregoing, Grantee may shift ownership for tax purposes
where there is no actual change in equitable ownership interests upon notice to Grantor not
less than thirty (30) days prior to the change.
9. REGULATION
9.1 Franchise Regulation The franchise granted under this .Agreement shall be
subject to regulation by Grantor in accordance with the provisions of the Ordinance as limited
--
by state and federal law. Grantor. may, at its sole option, enter intojomt reu atory
agreements with other Grantors in adjacent jurisdictions served by the same cable system.
9? Remedies for Franchise Violations
(a) I� addition to the remedies for delays in construction as specified in the
Ordinance. Grantor res& es the rtaht`to'impose the following remedies in the event Grantee <.:
violates any other material provision of the franchise, provided that Grantee has not
commenced corrective action within thirty (30) days written notice by certified or registered
mail to the general manager of the Grantee:
(1) Impose liquidated damages. not to exceed One Thousand Dollars (51.000) per day
per incident, for Grantee's violation of the franchise or failure to take corrective action with
respect to a violation of any provision of the franchise. The parties agree that in the case of a
franchise violation. it would be impracticable to fix the amount of actual damages and the
amount calculated in accordance Nvith this paragraph is presumed to be the amount of damage
sustained by the City and its residents in accordance with Section 1671 of the California Civil
Code.
Rosemead /Charter Franchise Agreement -26- June 15. 2000
(2) Require Grantee to make rate rebates or payments to the customers or classes of
customers in such amount and on such basis as Grantor may deem reasonable.
(3) Require Grantor to correct or otherwise remedy the violation prior to any rate
increase becoming effective.
(b) In the event the stated violation is not reasonably curable within sixty (60) days,
the franchise will not be terminated or revoked or a remedy imposed pursuant to the
Ordinance if the Grantee provides, within the said sixty (60) days, a plan, satisfactory to the
Grantor, to remedy the violation and continues to deiiohstrdte good - faith in seeking to correct —
said violation.
(c) In determining which remedy or remedies for Grantee's violation are appropriate,
Grantor shall take into consideration the nature of tl � telauon� the p or persons
t .:
y :,.
An
bearing the impact of the.violati&h;.the nature of the remedy required in ordei-.to prevent
further such'violations and such other matters as the Grantor may deem appropriate; provided, .
` however, that adequate remedies must be imposed if service is in any way materially lessened,
or if any material provision of this franchise is not complied with.
(d) Within ten (10) days after receipt of a written notice of a violation from Grantor,
Grantee may request a hearing before a Grantor - designated hearing officer in a full public
proceeding affording due process. Such hearing shall be held within thirty (30) days of the
receipt of the request therefore. If Grantee is found to be culpable, Grantee may be assessed
City's costs reasonably incurred in conducting the hearing.
Rosemead /Chatter Franchise Agreement -27- June 15. 2000
10. SEPARABILITY
10.1 If any material section of the Ordinance, and /or this Agreement, as determined
by the Grantor, are held to be invalid or preempted by federal or state regulations or laws, the
Grantor shall negotiate with Grantee appropriate modifications to this Agreement to provide
reasonable relief from such invalidity or preemption. If the parties are unable to reach
agreement on such modifications; and if in Grantor's opinion Grantor may be bound legally
with respect to arbitration of the specific dispute, then the dispute will be submitted to an
arbitrator in accordance with California law, who will deteiniine what - modi ications are - -
—
appropriate and the arbitrator's decision shall be binding on the parties.
" INABILITY TO PERFORM
11 . FORCEMAiE1JRE GR?aT) E'S
!
-
' In the event Grantee s pArfoimance of an ' of the terms, "condttions, obliRanons
or requirements of this franchise or the _Ordinance,is_prevented or unpaired due to any cause
bevond its reasonable control or not reasonably foieseeable,`siich inability to perform sliiall be
deemed to be excused and no penalties or sanctions shall.be= imposed'as a result thereof.
provided Grantee has notified Grantor in writing within thirty ( 0) days of its discovery of the
occurrence of such an event. Such causes beyond Grantee's reasonable control or not
reasonabh foreseeable shall include, but shall not be limited to: unusually severe weather, such
as wind, flood, lightning; or natural disasters, such as fire, earthquake or volcanic eruption; or
war. riots. civil disturbances-, all strikes or similar work stoppages: failure or the threat of
failure of utility poles, satellites, and similar equipment-, restraint by order of a court or other
public authority; or an action or nonaction by or inability to obtain an) necessary authorization
or approval required from any governmental agency, authority or public utility or agent
RosemeatllChaner Franchise Agreement -28- June 15, 2000
thereof, which by exercise of reasonable due diligence and foresight the parry could not
reasonably have avoided or expected to avoid and which by exercise of the diligence is unable
to overcome.
12. HOLD HARMLESS
12.1 The Grantee on behalf of itself, its successors and assigns, shall defend, indemnify
and hold harmless the Grantor, its officers, boards, commissions, agents and employees. and
- - --
each of them, against and from any and demands actions; suitsliabilities and
__ -
udaments of ever) 'kmd aifd WIT! d regardless of the merits of same - arlS�in out of or `
related t'o.the exercise or en�oytnent of th @'franchise grai rn ptftsu to tires Awe �ment an d
.0 :. p • .E
the Ordinance` inclninc�sfso#��tiltitn�°>tome�s :fees andttsos
- Ri the defense "
�. - x . -. a '� *-•
of am actions to the extent that such caims or demands'are allegeddo be th�suft of any
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error. omission, intentional act or ne2hgem act of Grantee or an; persons emplo}ed b}
Grantee. even if that Gran m'erior or b} misinformation alleged io be from a
tee emplovee is . "
Grantor "employee; however, Grantee shall not be responsible for defending and /or
indemnif} ing, etc., the Grantor for any actions arising from the Grantor's use of the City
channel.
li. ARBITRATION
13.1 Grantee and Grantor agree that any disputes arising under this franchise shall be
submitted to arbitration in accordance with the rules of the American Arbitration Association
and that judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The parties also agree to the following:
79_ June 15, 2000
Rosemead /Chaney Franchise Agreement
(a) None of the arbitrators appointed shall possess any direct or indirect interest of any
nature whatsoever in any of the parties to the arbitration nor shall any of the arbitrators have
been employed by any of such parties for a period of five (5) years preceding the arbitration.
(b) Within ten (10) business days from the receipt of notice given by any party that a
dispute has risen under this franchise, the parties shall jointly appoint an arbitrator who shall
be knowledgeable about the cable television business. If a single arbitrator cannot be agreed
upon within said time period, then within five (5) days of the expiration of said ten (10) days -_
period, each of the parties shall select one arbitrator. — The sole function of the arbitrators so
selected shall be to appoint a vol ,third arbitrator who shall thereafter conduct the
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arm
xc
,on Eept for the selection ofi',ei�ittial'ar�biato;th �arbZl9Fatat�srfagpoi
(c) The neutral arbitrator shall be knowledgeable about the cable television business
and shall conduct the arbitration, including any hearings. in accordance with the rules of.the
American Arbitration Association.
(d) The rules and regulations of the .American Arbitration Association shall govern the.' .
arbitration except to the extent they are contrary to the terms of this agreement to arbitrate
and except as contrary to the California Code of Civil Procedure, sections 1280 and following.
The decision of the arbitrator shall be final and binding on all parties and shall not
shall not participate in the arbitrarion.pivicess If,t� two arbit>;atoTs cannot�t >ree on the third
z
arbitrator within ten, (10) business daysof the expiration of Said five -(5) day period, theh,the
tit ti,.
neutral arbitrator shall be appointed by the American Arbitration Association
be subject to appeal or attack except as set forth in California Code of Civil Procedure,
section 1286.2.
(e) The arbitration shall take place within Southern California.
June 15, 2000
Rosemead /Charter Franchise Agreement
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement the
date and year first written above.
APPROVED AS TO FORM:
Robert L. Kress
City Attorney
ATTEST:
CITY OF ROSEMEAD
A Municipal Corporation
By
Margaret Clark
Mayor
CHARTER COMMUNICATIONS
ENTERTAINMENT II, LLC _.... . __
Rosemead /Charter Franchise Agreement June 15, 2000
Rosemead /Charter Franchise Agreement "j -- June 15, 2000
Rosemead /Charter Franchise Agreement -»' June 15, 2000
EXHIBIT C
DETAILED PLAN OF SYSTEM UPGRADE INCLUDING
SQ 4pCATIQNS, PERFORMANCE CRITERIA AND MAPS
.,
�•' % e -. # X. 'ry
j I ( r
(EXHIBIT C IS T.O'BE-GENERATED BYCHARTER -°
- PRIOR TO THE EFFECTIVE DATE)
4
Rosemead /Charter Franchise Agreement -�- June 15. 2000
Rosemead /Charter Franchise Agreement " »
” June 15, 2000
EXHIBIT D
�E G0dVIENT TO
i.Q; „.
�+.. S°�y,` $`. � -y�g '1sf�y"S. !
K a^ p,r>.
•�pr�` , ��
6 ECrACCESS FACILhTlES
Rosemead /Charter Franchise Agreement " »
” June 15, 2000
EXHIBIT D: GRANTEE COMMITMENT TO EG ACCESS FACILITIES AND
EQUIPMENT
1. INTERCONNECTION OF PUBLIC BUILDINGS
Grantor shall connect, at no installation charge, the buildings listed in Exhibit E. to the closest
node of the rebuilt Cable System, under the following conditions:
(A) An activated one -way (downstream) connection and the highest tier of basic cable service
at no installation or monthly charge shall be provided to all public buildings listed in Exhibit "E ". City
— - Hall shall continue to have four such converter boxes. Two of the City HalI - converter. boxes. shall
provide all channels available on the system for monitoring purposes.
2 'r _CABLE MODEM SERVICE
t, / .;- 7 t ��"^" �r antee shall:anst �t *a7a.tlt�t3lFt gp,charCg3nd no stonthiN*jee.catqe ompscante,m_ oaems_
and Inte'rnefServtce at the fastest speed whtch a suliscraber could purchase, in-each the public
butldings listed an Exhtbrt `E: Wrth the:exception of Can Iial,l such cable modems shall not be
"networked.' If the Citv Hall cable modem is connected to a network tie Cny shall reimburse
Grantee for Grantee's expense incurred for each additional E -Mail address and IP address after the
first one, at Grantee's cost.
3. EDUCATIONAL AND GOVERNMENT (EG) ACCESS CHANNELS
Grantee shall make three (3) video channels available exclusively for EG use (not including the
the public access channel which is currently programmed by Grantee). These channels shall be
dedicated to such use for the term of the Franchise renewal. provided the Grantee may utilize any
portions of these channels during any time when they are not scheduled for EG use. Grantor and
Rosemead /Charter Franchise Agreement - Exhibit D D -1 June 15. 2000
Grantee shall establish rules and procedures for such scheduling in accordance with Section 611 of the
Cable Communications Policy Act of 1984.
4. PROVISION OF EG ACCESS EQUIPMENT AND FACILITIES
(a) No later than thin (30) days after the effective date of this Agreement, Grantee shall
provide and install at no charge, new character generation equipment and associated video equipment at
a designated location in Grantor's City Hall, and in the City's Emergency Operations Center, for use in
generating Governmental Access text announcements on Channel 55, the Cable System's Government
Access Channel. No earlier than five (5) years after the effective date of this Agreement, Grantor may
request, and Grantee shall provide and install at no charge, upgraded replacement character generation
equipment and associated video equipment at thaestrtnated locations.. t
_ '�� �
-
.e
(b) No later than mnen (90) dais ^after these €fectrve dat�o€Ahts�er�prenT'GLantee shall �-
.
provide a video pla}liack unrt a loeation`wrthtn the City Fall .complex designated bJ , Gran
Grantee also shalrin stall an. upstream link from this location fa.the Gab 'Sy stem He' adend to permit
playback to the Government Acce!schannel.
(c) Grantor may request from Grantee an EG Access equipment grant in an amount not to
exceed thirty thousand dollars (530,000) for EG Access support. Grantee shall provide the requested
funds within sixty (60) days of the receipt of a written request. Any capital grant provided shall be
utilized for EG Access equipment and facilities, which are defined to include. but not be limited to, data
communications terminal and interface equipment as well as video equipment.
(d) No earlier than sixty (60) months after the effective date of this agreement. Grantor may
request an additional capital grant for EG Access support.
Rosemead /Charter Franchise Agreement- Exhibit D D -2 June 15, 2000
(e) If permitted by applicable law, the Grantor shall not oppose any "pass- through" of the EG
Access capital grants provided in (a) through (d) above.
(f) Any request by Grantor for capital grants for special projects shall be in accordance with
an operating plan prepared by Grantor.
(g) Chatter will provide audio /video coverage of up to four City events each calendar year and
will produce video suitable -for playback on the EG access channel.
5. EG OPERATIONS
Grantor may negotiate agreements with neighboring jurisdictions served by the same Cable
.s, ;E st m edyt at oval institutions or ot#ters.to share operating expenses =s,,appropnate fi[aptclY and t �-
e �ramee m . negotiate an agreement, fortmaitagerrtenE < of.��'i - fa�tltttesxi4'S3
6. - - TITLE TO EG EQUIPMENT '
Grantor shall retain title to all EG equipment provided with fundir
accordance with paragraph 4 above.
7. RELOCATION OF EG CHANNELS
ade available-in
If Grantee relocates any EG Access channel to a different channel number, Grantee shall
reimburse Grantor for any out -of- pocket Grantor costs incurred as a result of the relocation. Grantee
shall provide Grantor and all subscribers with at least thirty (30) days written notice of such relocation.
Rosemead /Charter Franchise Agreement- Exhibit D D-J June 15, 2000
S. PROMOTION OF EG ACCESS
Grantee shall allow the Grantor to place bill stuffers in Grantee's subscriber statements at a
cost to the Grantor not to exceed Grantee's cost, not more than twice per year upon the written request
of the Grantor and at such times that the placement of such materials would not effect Grantee's cost
for the production and mailing of such statements. The Grantor agrees to pay Grantee in advance for
the actual cost of such bill stuffers. Grantee shall also make available access information provided by
Grantor in subscriber packets at the time of installation and at the counter in the System's business
office. Grantee shall also distribute, at no charge to Grantor, through advertising insertion equipment,
promotional and awareness commercial spots produced at the Grantor's cost and submitted by the
Grantor in a format compatible with such equipment once Grantee has acquired and activated such _
capability.. Grantee shall also include a listing of the known programming to be cablecast on EG '
2cGe�stlia mels 'in- m. 6 6tde of services for the Ca61e Svstem. i• �¢
F + "'x' --
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Rosemead /Cnaner Franchise Agreement - Exhibit D D-4 June 15. 2000
Rosemead /Charter Franchise Agreement - Exhibit D D-5 June 15, 2000
EXH1131T E
FREE PUBLIC BUILDING INSTALLATIONS
SERVICE TO ROSEMEAD INSTITUTIONS
In order to ensure that all public agencies in Rosemead have access to basic cable television
service and high -speed Internet service, subject to the exceptions contained in Exhibit "D,"
Grantee shall provide upon request from the Grantor, one converter box, the highest level of
basic service, one cable modem and unlimited Internet service to one non - networked
computer at each of the following locations. The service shall be provided at no charge if used
for non- commercial educational and informational purposes. Additional equipment and
services will be provided at a rate negotiated by Grantor and Grantee.
I.z' Rosemead Ciry Hall
8838 E. Vallev Boulevard
'Garrey Park
Emersot Place
A c
yi:: -
}
3 Rosemead
s. y
4.- . Zapopan Park 8--Center, .>
;.
'018 N. "Charlotte Avenue
5. Rosemead Community Recreation Center '
3936 N. Muscatel Avenue
6. Dinsmoor Heritage House
9632 Steele Street
7. Rosemead Chamber of Commerce
3953 Muscatel Avenue
8. Garvey School District
2730 N. Del Mar Avenue
9. Rosemead School District
3907 N. Rosemead Blvd.. '"0
10. Bitely Elementary School
7501 E. Fern Street
Rosemead /Charter Franchise Agreement - Exhibit E E -6 June 15. 2000
11.
Duff Elementary School
7830 Dorothy Street
12.
Emerson Elementary School
7544 E. Emerson Place
13.
Rice Elementary School
2150 N. Angelus Street
14.
Sanchez Elementary- School
8470 Fem Street
15.
Williams Elementary School
2444 N. Willard Avenue
16.
Willard Elementary School
3152 N. Willard Avenue .
` 17..,
Garvey Intermediate School
2720 N. Jackson Avenue
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TemplB"�n�terine�»eyEeh�ol
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22. Shuey Elementary School
8472 Wells Street
23. Muscatel Intermediate School
4201 N. Ivar Street
24. Rosemead High School
9063 E. Mission Drive
25. El Monte & Rosemead Adult School
4105 Rosemead Boulevard
Rosemead /Charter Franchise Agreement - Exhibit E E June 15, 2000
26. Don Bosco Techniral Institute
1151 San Gabriel Boulevard
27. Southeast Community Adult Center
7422 E. Garvey Avenue
28. West San Gabriel Valley Consortium/Career Partner
3505 N. Hart Avenue
�
Rosemead /Charter Franchise Agreement - Exhibit E E"8 June 15, 2000
ry` r
staf epor
TO: HONORABLE MAYOR
AND MEMBERS
ROSEMEAD CITY COUNCIL
FROM: FRANK G. TRIPEPI, CITY MANAGER �
DATE: JUNE 22, 2000
SUBJECT: ASSESSMENT OF TEMPLE CITY BLVD TRUCK ROUTE
DISCUSSION
Pursuant to requests made by the City Council at the last meeting, verbatim minutes of the May 4,
2000 Traffic Commission meeting and copies of the ordinances forremoval of truckroutes from the
City of Montebello and City of Chino, were forwarded to City Council on June 14, 2000.
The following exhibits have been attached:
A. Sections 1031 -1036 of the Public Utilities Codes regarding the regulation of
passenger stage corporations. (At the last meeting, Councilmember Bruesch
inquired about references made to these sections.)
B. Section 35703 of the State of California 2000 Vehicle Code.
C. City Council staff report from June 13, 2000 council meeting.
D. Traffic Commission staff report from June 1, 2000 commission meeting.
E. Audiocassette tapes for the Traffic Commission meetings for May 4 and June 1, 2000.
JUN 2 7 2000
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W°AIS Document Retrieval Page 1 of S
CALIFORNIA CODES
PUBLIC UTILITIES CODE
SECTION 1031 -1045
1031. No passenger stage corporation shall operate or cause to be
operated any passenger stage over any public highway in this State
without first having obtained from the commission a certificate
declaring that public convenience and necessity require such -
operation, but no such certificate shall be required of any passenger
stage corporation as to the fixed termini between which, or the
route over which, it was actually operating in good faith on July 29,
1927, in compliance with the provisions of Chapter 213, Statutes of
1917, nor shall any such certificate be required of any person or
corporation who on January 1, 1927, was operating, or during the
calendar year 1926 had operated a seasonal service of not less than
three consecutive months' duration, sight- seeing buses on a
continuous sight- seeing trip with one terminus only. Any.right,
privilege, franchise, or permit held, owned, or obtained by any
passenger stage corporation may be sold, assigned, leased, mortgaged,
transferred, inherited, or otherwise encumbered as other property,
only upon authorization by the commission.
1031.5. The commission shall not issue or authorize the transfer of
any certificate under this article to any person, firm, or
corporation or to any officer or director of the firm, corporation,
or other entity against whom a final judgment has been entered and
whose name has been transmitted to the commission pursuant to Section
3716.4 of the Labor Code, unless that judgment has been satisfied or
has been discharged in accordance with the bankruptcy laws of the
United States.
1032. (a) Every applicant for a certificate shall file in the
office of the commission an application therefor in the form required
by the commission. The applicant shall forward a copy of the
application to each public transit operator operating in any portion
of the territory sought to be served by the applicant. The commission
may, with or without a hearing, issue the certificate as requested,
or refuse to issue it, or issue it for the partial exercise only of
the privilege sought, and may attach to the exercise of the rights
granted by the certificate terms and conditions that, in its
judgment, the public convenience and necessity require.
(b) The commission may, after a hearing, issue a certificate to
operate in a territory already served by a certificate holder under
this part only when the existing passenger stage corporation or
corporations serving the territory will not provide that service to
the satisfaction of the commission.
(c) Before issuing a certificate, the commission shall consider
the effect of the applicant's proposed operations on the services,
either provided directly or by contract, furnished by any public
transit operator.
1032.1. (a) The commission shall not issue a certificate of public
convenience and necessity pursuant to this article unless the
applicant provides for a mandatory controlled substance and alcohol
testing certification program as adopted by the commission.
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(b) The commission, after considering any suggestions made by the
Department of the California Highway Patrol, shall adopt a program
that includes, but need not be limited to, all of the following
requirements:
(1) Drivers shall test negative for each of the controlled
substances specified in Part 40 (commencing with Section 40.1) of
Title 49 of the Code of Federal Regulations, before employment.
Drivers shall test negative for these controlled substances and for
alcohol at such other times as the commission, after consulting the
Department of the California Highway Patrol, shall designate. As
used in this section, a negative test for alcohol means an alcohol
screening test showing a breath alcohol concentration of less than
0.02 percent.
(2) Procedures shall be substantially as in Part 40 (commencing
with Section 40..1) of Title 49 of the Code of Federal Regulations,
except that the driver shall show a valid California driver's license
at the time and place of testing, and except as provided otherwise
in this section. Requirements for rehabilitation and for
return -to -duty and followup testing, and other requirements except as
provided otherwise in this section, shall be substantially as in
Part 382 (commencing with Section 382.101) of Title 49 of the Code of
Federal Regulations.
(3) A test for one applicant shall be accepted as meeting the same
requirement for any other applicant. Any negative test result shall
be accepted for one year as meeting any requirement for periodic
testing for that applicant or any other applicant, if the driver has
not tested positive subsequent to a negative result. However, an
earlier negative result shall not be accepted as meeting the
pre - employment testing requirement for any subsequent employment, or
any testing requirements under the program other than periodic
testing.
(4) In the case of an applicant who is also a driver, test results
shall be reported directly to the commission. In all other cases,
results shall be reported directly to the applicant.
(5) All test results are confidential and shall not be released
without the consent of the driver, except as authorized or required
by law.
(6) Applicants shall be responsible for compliance with, and shall
pay all costs of, this program with respect to their employees and
potential employees, except that an applicant may require employees
who test positive to pay the costs of rehabilitation and of
return -to -duty and followup testing.
(7) The requirements of the program do not apply to any driver
required to comply with the controlled substance and alcohol use and
testing requirements of Part 362 (commencing with Section 382.101) of
Title 49 of the Code of Federal Regulations, or Section 34520 of the
Vehicle Code, or to any driver exempted from the provisions of that
section.
(c) No evidence derived from a positive test result pursuant to
the program shall be admissible in a criminal prosecution concerning
unlawful possession, sale or distribution of controlled substances.
(d) On the request of an applicant, the commission shall give the
applicant a list of consortia certified pursuant to Part 382
(commencing with Section 362.101) of Title 49 of the Code of Federal
Regulations that the commission knows offer tests in California.
(e) The commission shall conduct random and for -cause inspections
of applicants' documents supporting compliance with the.program.
(f) For purposes of this section, "employment" includes
self - employment as an independent driver.
1032.5. The commission shall issue a certificate pursuant to this
article to every passenger stage corporation which conducts
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intrastate passenger transportation service pursuant to federal
operating authority, to the extent that regulation of these
operations is not preempted by the federal Bus Regulatory Reform Act
of 1982 (P.L. 97 -261), as amended. The commission may attach any
conditions or limitations to the issuance of the certificate which it
may specify, consistent with federal law and regulation.
i
1033. The commission, in the exercise of the jurisdiction conferred
upon it by the Constitution of this State and by this part, may
grant certificates of public convenience and necessity, make
decisions and orders, and prescribe rules affecting passenger stage
corporations, notwithstanding the provisions of any ordinance or
permit of any city, county, or city and county, and in case of
conflict between any such order or rule and any such ordinance or
permit, the certificate, decision, order, or rule of the commission
shall prevail.
1033.5. (a) The commission may, at any time for good cause, suspend
an operating right acquired by virtue of operations conducted on
July 29, 1927, or a certificate of public convenience and necessity
and, upon notice to the holder and opportunity to be heard, revoke,
alter, or amend the operating right or certificate.
(b) As an alternative to the suspension, revocation, alteration,
or amendment of an operating right or certificate, the commission
may impose upon the holder a fine not to exceed five thousand dollars
($5,000). The commission may assess interest upon any fine imposed,
the interest to commence upon the day the payment of the fine is
delinquent. All fines and interest collected shall be deposited at
least once each month in the Public Utilities Commission
Transportation Reimbursement Account in the General Fund.
(c) For purposes of this section, "good cause" includes, but is
not limited to, either of the following:
(1) A consistent failure of the holder of the operating right or
certificate to maintain vehicles in a safe operating condition and in
compliance with the Vehicle Code and with regulations contained in
Title 13 of the California Code of Regulations relative to motor
vehicle safety, as shown by the records of the commission, the
Department of Motor Vehicles, the Department of the California
Highway Patrol, or the passenger stage corporation.
(2) The holder's knowing and willful filing of a false report
which understates revenues and fees.
1033.7. (a) Upon receipt of a written recommendation from the
Department of the California Highway Patrol that the certificate of a
passenger stage corporation be suspended either (1) for failure to
maintain any vehicle used in transportation for compensation in a
safe operating condition or to comply with the Vehicle Code or with
regulations contained in Title 13 of the California Code of
Regulations relative to motor carrier safety, if that failure is
either a consistent failure or presents an imminent danger to public
safety, or (2) for failure to enroll all drivers in the pull notice
system as required by Section 1808.1 of the Vehicle Code, the
commission shall, pending a hearing in the matter pursuant to
subdivision (d), suspend the corporation's certificate. The
department's written recommendation shall specifically indicate
compliance with subdivision (c).
(b) A corporation whose certificate is suspended pursuant to
subdivision (a) may obtain a reinspection of its terminal and
vehicles by the department, by submitting a written request for
reinstatement to the commission and paying a reinstatement fee of one
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hundred twenty -five dollars ($125). The commission shall deposit
all reinstatement fees collected pursuant to this subdivision in the
Public Utilities Commission Transportation Reimbursement Account.
The commission shall forward a request for reinspection to the
department which shall perform a reinspection within a reasonable
time. The commission shall reinstate a corporation's certificate
suspended under subdivision (a) promptly upon receipt of a written
recommendation from the department that the corporation's safety
compliance has improved to the satisfaction of the department, unless
the certificate is suspended for another reason or has been revoked.
(c) Before transmitting a recommendation pursuant to subdivision
(a) to the commission, the Department of the California Highway
Patrol shall notify the passenger stage corporation in writing of all
of the following:
(1) That the department has determined that the corporation's
safety record is unsatisfactory, furnishing a copy of any
documentation or summary of any other evidence supporting the
determination.
(2) That the determination may result in a suspension or
revocation of the corporation's certificate by the commission.
(3) That the corporation may request a review of the determination
by the department within five days of its receipt of the notice
required under this subdivision. If a review pursuant to this
paragraph is requested by the corporation, the department shall
conduct and evaluate that review prior to transmitting any
notification to the commission pursuant to subdivision (a).
(d) Whenever the commission suspends the certificate of any
passenger stage corporation pursuant to subdivision (a), the
commission shall furnish the corporation written notice of the
suspension and shall hold a hearing within a reasonable time, not to
exceed 21 days, after a written request therefor is filed with the
commission, with a copy thereof furnished to the Department of the
California Highway Patrol. At the hearing, the corporation shall
show cause why the suspension should not be continued. At the
conclusion of the hearing, the commission may, in addition to any
other applicable penalty provided in this part, terminate the
suspension, continue the suspension in effect, or revoke the
certificate. The commission may revoke the certificate of any
passenger stage corporation suspended pursuant to subdivision (a) at
any time 90 days or more after its suspension if the commission has
not received a written recommendation for reinstatement from the
department and the corporation has not filed a written request for a
hearing with the commission.
(e) If the commission, after a hearing, finds that a passenger
stage corporation has continued to operate as such after its
certificate has been suspended pursuant to subdivision (a), the
commission shall do one of the following:
(1) Revoke the certificate of the corporation.
(2) Impose upon the holder of the certificate a civil penalty of
not less than one thousand dollars ($1,000) nor more than five
thousand dollars ($5,000) for each day of unlawful operations.
1033.8. (a) Upon receipt of a stop order issued by the Director of
Industrial Relations pursuant to Section 3710.1 of the Labor Code,
the commission shall investigate to determine whether the passenger
stage corporation has filed a false statement relative to workers'
compensation insurance coverage, in violation of statute, or rules or
orders of the commission. If, after notice and opportunity to be
heard, the commission determines that there has been a violation of
statute, or rules or orders of the commission, the commission shall
impose appropriate penalties, which may include a fine and suspension
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of operating authority for a violation.
(b) Upon receipt of a complaint from the Director of Industrial
Relations that a final judgment has been entered against any
passenger stage corporation as a result of an award having been made
to an employee pursuant to Section 3716.2 of the Labor Code, the
commission shall, 30 days from the date notice to the corporation is
mailed, revoke the corporation's certificate of public convenience
and necessity, unless the judgment has been satisfied or has been
discharged in accordance with the bankruptcy laws of the United
States or the corporation requests a hearing pursuant to subdivision
(c).
(c) Within seven days of receipt of a complaint from the Director
of Industrial Relations that a final judgment has been entered
against any passenger stage corporation as a result of an award
having been made to an employee pursuant to Section 3716.2 of the
Labor Code, the commission shall furnish to the corporation named in
the final judgment written notice of the right to a hearing regarding
the complaint and the procedure to follow to request a hearing. The
notice shall state that the commission is required to revoke the
corporation's certificate of public convenience and necessity to
operate pursuant to subdivision (b) after 30 days from the date the
notice is mailed unless the corporation provides proof that the
judgment is satisfied or has been discharged in accordance with the
bankruptcy laws of the United States and the commission has been so
notified seven days prior to the conclusion of the 30 -day waiting
period. The notice shall also inform the corporation of a right to a
hearing and the procedures to follow to request a hearing. The
corporation may request a hearing within 10 days from the date the
notice is sent by the commission. The request for the hearing shall
stay the revocation. The hearing shall be held within 30 days of the
receipt of the request. If the commission finds that an unsatisfied
judgment exists concerning a debt arising under Section 3717 of the
Labor Code, the commission shall immediately revoke the corporation's
certificate of public convenience and necessity.
1034. When a complaint has been filed with the commission alleging
that any passenger stage is being operated without a certificate of
public convenience and necessity, contrary to or in violation of the
provisions of this part, the commission may, with or without notice,
make its order requiring the corporation or person operating or
managing such passenger stage, to cease and desist from such
operation, until the commission makes and files its decision on the
complaint, or until further order of the commission.
1034.5. Every corporation or person who knowingly and willfully
issues, publishes, or affixes, or causes or permits the issuance,
publishing, or affixing, of any oral or written advertisement,
broadcast, or other holding out to the public, or any portion
thereof, that the corporation or person is in operation as a
passenger stage corporation without having a valid certificate or
issued under this article is guilty of a misdemeanor punishable, if
an individual, by a fine of not more than one thousand dollars
($1,000) or by imprisonment in the county jail for not more than six
months, or by both, or, if a corporation, by a fine of not more than
five thousand dollars ($5,000).
1035. Whether or not any stage, auto stage, or other motor vehicle
is being, or is proposed to be operated as a passenger stage
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corporation "between fixed termini or over a regular route" within
the meaning of this part is a question of fact, and the finding of
the commission thereon is final and is not subject to review. Any
act of transporting or attempting to transport any person or persons
by stage, auto stage, or other motor vehicle upon a public highway of
this State between two or more points not both within the limits of
a single city or city and county, where the rate, charge, or fare for
such transportation is computed, collected, or demanded on an
individual fare basis, shall be presumed to be an act of operating as
a passenger stage corporation within the meaning of this part.
1036. (a) Each application for a certificate of public convenience
and necessity made under this article shall be accompanied by a fee
of five hundred dollars ($500), unless the applicant is already
operating in the immediate vicinity under the jurisdiction of the
commission.
(b) No certificate issued pursuant to, or rights to conduct any of
the services authorized by, this article shall be sold, leased, or
assigned, or otherwise transferred or encumbered, unless authorized
by the commission. A filing fee of three hundred dollars ($300)
shall accompany all applications for that authorization.
1037. Every passenger stage corporation which violates any
provision of this article, or aids or abets, or without being present
advises or encourages any person or corporation in such violation,
is guilty of a misdemeanor and, upon conviction thereof, if a person,
shall be punished by a fine not exceeding one thousand dollars
($1,000) or by imprisonment in a county jail for a term not to exceed
six months, or by both such fine and imprisonment, or, if a
corporation, shall be punished by a fine not to exceed one thousand
dollars ($1,000).
1038. The interior of every passenger stage operated for hire in
this State shall be maintained in a clean and sanitary condition.
1038.5. A passenger stage corporation shall not operate any motor
vehicle on a public highway unless there is displayed on the vehicle
a distinctive identifying symbol in the form prescribed by the
commission, showing the classification to which the vehicle belongs.
The identifying symbol shall not be displayed until a certificate of
public convenience and necessity has been issued under this chapter
for the operation.
The identifying symbol displayed by a passenger stage corporation
subject to the Interstate Commerce Commission shall serve in lieu of
the display requirements of this section.
1039. In every written or oral advertisement of the service it
offers, every passenger stage corporation shall state the number of
its certificate or identifying symbol, as specified by the
commission.
1040. The commission shall, in issuing a certificate pursuant to
this article, require the passenger stage corporation to procure, and
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to continue in effect during the life of the certificate, adequate
protection against liability imposed by law upon the corporation for
the payment of damages for personal bodily injuries, including death
resulting therefrom, protection against a total liability of the
corporation on account of bodily injuries to, or death of, more than
one person as a result of any one accident, and protection against
damage or destruction of property.
The minimum requirements for these assurances of protection
against liability shall not be less than the requirements which are
applicable to operations of carriers conducted pursuant to the
federal Bus Regulatory Reform Act of 1982 (P.L. 97 -261), as amended.
However, for vehicles designed to carry not more than eight persons,
including the driver, the commission shall not require protection
against a total liability of the corporation on account of bodily
injuries to, or death of, more than one person as a result of any one
accident in an amount exceeding seven hundred fifty thousand dollars
($750,000).
1041. It is unlawful for the owner of a passenger stage employing
or otherwise directing the driver of the passenger stage to permit
the operation of the passenger stage upon any public highway for
compensation without first having obtained from the commission a
certificate pursuant to this chapter or without first having complied
with the vehicle identification requirements of Section 1038.5 or
the accident liability protection requirements of Section 1040.
1042. (a) Every passenger stage corporation shall furnish the
commission annually, as specified by the commission, a list, prepared
under oath, of all vehicles used in transportation for compensation
during the preceding year. The_commission shall furnish a copy of
this list to the Department of`the California Highway Patrol and to
the corporation's insurer, if the corporation's accident liability
protection is provided by a policy or policies of insurance.
(b) If the passenger stage corporation's insurer informs the
commission that the corporation has failed to obtain insurance
coverage for any vehicle reported on the list, the commission may, in
addition to any other applicable penalty provided in this part, for
a first occurrence, suspend the corporation's certificate or impose a
fine, or both, and for a second or subsequent occurrence may suspend
or revoke the certificate or impose a fine, or both.
1043. Every passenger stage corporation earning over three hundred
fifty thousand dollars ($350,000) in annual gross operating revenue
shall, under oath, file annually a report indicating the number,
classification, and compensation of all employees and owner - operator
drivers hired or engaged during the reporting period. The commission
shall submit a copy of the report to the administrator of the
corporation's workers' compensation self- insurance plan if the
corporation is self- insured, or to the corporation's workers'
compensation insurer if the corporation's workers' compensation
protection is provided by a policy or policies of insurance. The
commission shall not be obligated to undertake an independent
investigation of the adequacy of workers' compensation insurance
coverage based on the information contained in the report if the
carrier has complied with Section 460.7.
1044. When the executive director of the commission determines that
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any passenger stage corporation, or any officer, director, or agent
of any passenger stage corporation, has engaged in, is engaged in, or
is about to engage in, any acts or practices in violation of this
chapter, or any order, decision, rule, regulation, direction, demand,
t or requirement issued under this chapter, the executive director.may
make application to the superior court for an order enjoining those
acts or practices or for an order directing compliance. The court
may grant a permanent or temporary injunction, restraining order, or
other order, including, but not limited to, an order allowing
vehicles used for subsequent operations subject to the order to be
impounded at the carrier's expense and subject to release only by
subsequent court order following a petition to the court by the
defendant or owner of the vehicle, upon a showing by the executive
director that a person or corporation has engaged in or is about to
engage in these acts or practices.
1045. After the cancellation or revocation of a certificate, or
during the period of its suspension, it is unlawful for a passenger
stage corporation to conduct any operations as a carrier. The
commission may either grant or deny an application for a new
certificate whenever it appears that a prior certificate of the
applicant has been canceled or revoked pursuant to Section 1033.5 or
whenever it appears, after hearing, that as a prior certificate
holder, the applicant engaged in any of the unlawful activities set
forth in Section 1033.5 for which his or her certificate might have
been canceled or revoked.
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*Comrnemw vehicles
35703. No ordinance adopted pursuant to Section 35701 shall prohibit
any commercial vehicles coming from an unrestricted street having ingress
and egress by direct route to and from a restricted street when necessary for .
the purpose of making pickups or deliveries of goods, wares, and
merchandise from or to any building or structure located on the restricted
street or for the purpose of delivering materials to be used in the actual and
bona fide repair, alteration, remodeling, or construction of any building or
structure upon _ the restricted street for which a building permit has
previously been obtained.
Public Utility Construction or Repair Vehicle
35704. No ordinance adopted pursuant to Section 35701 to decrease
weight limits shall apply to any vehicle owned by a public utility or a licensed
contractor while necessarily in use in the construction, installation, or repair
of any public utility.
Amended Ch. 371, Stata. 1987. Effective January 1, 1988 —
Highway User Tax Funds, Expenditure on City Streets
35705: Section 35701 be applicable to any city street on which.
money from: the: State 'Highway :Account In the State Transportation Fund
has or is used =for construction -or maintenance exceptin such -cases as.
the legislative bodyof the city, after notice and hearing, determines:to reduce
weight limits on such streets. Notice of the hearing shall be published as
provided in:Seetion6064 =of the Government Code: -The notice shall advise all
interested parties that they may submit written and. oral: objections to the .
proposed action and shall:designate a time and place for presentationof such
objections: The:time -for submission of objections shall not expire, and the
hearing may not -be held, less than. 60 days after the first publication of
notice. hearing shall be held before the legislative body of the city. All
objections shall be considered and interested parties shall be- afforded an
adequate opportunity to be heard in respect to their objections..'
Amended Ch. 545, Stats. 1974. Effective January 1, 1975.
Unimproved Board County Highways
35706 s_ of supervisors in their respective counties may by
ordinance reduce " the permissible weight of vehicies. l
an loads upon
unimproved county highways or n on coup bid es
Improved County Highways
.::35707 Boards.: of supervisors in their'reapeotive' Counties may- by
ordinance - reduce the" permissible -weights upon improved highways only
which -by reason : deterioration will be destroyed imless: the weight limits
are reduced; but no such reduction= shall - extend fora -period of more than 90
days: unless actual repair :of the highway is begun within that time and
thereafter continuously carried on to completion.
For. -the purposes of this section, an improved- county highway means a
highway - paved'_ with - cement concrete or asphaltic concrete, or a highway
with a roadway of hard surface not less than four inches thick made up of a
mixture of rock, sand, or gravel bound together by an Artificial binder other
than natural soil ".;
Ordinafices Sub ect to A
l PProval
35708: In the event any per s on. protests in wAiing'to the clerk of the
board of supervisors within 15 days after the adoption of- an ordinance
.
reducing .the permissible gross. _upon an. improved highway, the
Source: Stiaeof Cdlifornia 2,000 ;Vehicle, Code
EXHIBIT "B"