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HomeMy WebLinkAbout1646 ORDINANCE NO. 1646 AN ORDINANCE OF THE CITY OF A~CADIA REPEALING CHAPTER 7 OF ARTICLE VII OF THE ARCADIA MUNICIPAL CODE AND ESTABLISHING A NEW PROCEDURE GOVERNING FRANCHISE FOR CABLE TELEVISION SYSTEMS IN THE CITY OF ARCADIA THE CITY COUNCIL OF THE CITY OF ARCADIA DOES HEREEBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 7 of Article VII of the Arcadia MUnicipal Code is hereby repealed. SECTION 2. That the procedure governing Franchises for cable television systems in the City of Arcadia, shall hereby read as follows: -1- 1646 Section 1 - Definitions For the purposes of this ordinance, the following terms, phrases, words,abbre- viations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense shall include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: (a) "City" shall mean the city of Arcadia, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or re-incorporated form. (b) "Council" shall mean the present governing body of the City of Arcadia or any future board constituting the legislative body of the City. (c) "City Manager" shall mean the City's chief administrative officer, or any designee thereof. (dl "Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license, or otherwise to construct, operate and maintain a cable television system wlthin all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other City ordinances. Ie) "Person" shall mean any natural person ann all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies. (f) "Grantee" shall mean the person, firm or corporation granted a franchise by the Council under this ordinance, and the lawful successor, transferee or assignee of said person, firm or corporation. (g) "Street" shall mean the surface, the air space above the surface and the area below the surface of any public street, other public right of way or public place, including public utility easements. (hI "Property of Grantee" shall mean all property owned, installed, or used within the City by a Grantee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this ordinance. (i) "Subscriber" or "User" shall mean any person or entity receiving for any purpose any service of the Grantee's cable television system including, but not limited to, the conventional cable television system service of retransmission of -2- 1646 {;.c~eV.l!ilOn orOilU(;rl:.jl., ,[,I'I!" d~'.t""''''_' _, any local government, edllcntion or pub] lc ilccess channel!;; and other sr.rVlCCa, such as leasing of channels, data and IJcsimile'transmission, pay television, and police, fire and similar public service' communication. Ii) "Cable Television System'" shall mean a system composed of, without limitation, antenna, cables. wires, lines, towers, wave guides, or any other conductors ;.. converters, equipment or facilities designed, constructed or wired for the purpose of: (1) producing, recelvlng, amplifying and distributing by coaxial cable audio and/or visual radio, television, electronic or electrical signals to and from persons, subscribers and locations in the franchise area: (2) transmitting orlCjinal cablecast programming not received throu'lh television broadcast signals: (3) transmitting television pictures, film and video-tape programs, not received through hroildcast television si'lnals, whether or not encoded or processed to permit reception by only selected receivers; (4) transmitting and receiving all other si'lnals: digital, voice and audio- visual: provided, however, that any of the services, permitted hereunder to be performed, as described above, shan be those performed by the Grantee for subscribers, as .herein defined, in the operation of a cable television system franchised by the City and not otherwise. Otl "Annual gross receipts" shall mean ilny and all compensation and other consideration in whatever 'foIm, 'lrant, subsidy, exchange or otherwise received directly or indirectly by the Grantee during the fiscal year of such Grantee from: (1) subscribers or users in payment of the regUlarly furnished service of the cable television system in the transmission of broadcast television, radio signals and original cablecast programming of the Grantee: (2) subcribers or users in pnyment for the receipt of signals other than broadCast television, radio or original cablecast programming of the Grantee. whether for "pay television" (net receipts only), "facsimile" transmission, "return" or "response" communication, and whether or not transmitted encoded or processed to' permit reception by only selected subscribers: (3) any form of advertising; (4) the lease or rental of any channel, and any service in connection therewith, such as studio and.equipment rental and production costSI (5) all installation charges. Gross receipts shall not include any copyright fees nor any taxes on services furnished by the Grantee imposed directly on any subscriber or user by any city, state or other 'lovernmental unit and collected by the Grantee for such govern- mental unit. - 3_ 1640 ~ectlon l - franchise to install and operate. (a) A non-exclusive franchise to install, construct, operate, and maintain a cable television system on streets within all or a specific portion of the City may be granted by.the Council to any person, whether operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the teras and provisions of this ordinance. NO provision of this ordinance may be deemed or construed as to require the granting of a franchise when in the opinion of the Council it is in the public interest to restrict the number of Grantees to one or more. (b) When and in the event that the Grantee of any franchise granted hereunder uses in his cable television system distribution channels furnished to the Grantee by a telephone company pursuant to tariff or contact on file with a regulatory body having juriSdiction and said Grantee makes no use of the streets inde- pendent of such telephone company-furnished fscilities, said Grantee shall be required to comply with all of the provisions hereof as a "Licensee" and in such event whenever the term "Grantee" is used herein it shall be deemed to mean and include "Licensee." Section 3 - Cable television service. (a) Basic Service. The cable television system permitted to be installed and operated hereunder shall: (1) be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of which the Grantee is now or hereafter'authorized by the federal Communications Commission; (2) be constructed with the potential of two-way digital signal transmission; (3) distribute color telvision signals which it receives in color; (4) provide at least one (1) access channel immediately, without charge, for use by the City, upon request of the City Council. (5) provide an additional access channel, without charge, for use by the City should the first access channel become fully utilized; (6) provide a minimum of twelve (12) channels immediately, (7) provide the capacity for a minimum of twenty (20) channels on or before March 31, 1986. (b) Non-basic services. The cable telvision system permitted to be installed and operated hereunder, may also engage in the .business of: (1) transmitting other original cablecast programming, -4": 1646 (2) transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed, to permit reception by only selected receivers or'subscribers; (3) transmitting and receiving all other signals: digital, voice and audio- visual. (c) Subscriber complaints. In addition to other service regulations adopted by the Council, and excepting circumstances beyond Grantee's control, such as Acts of God, riots and civil disturbances, and in providing the foregoing services, the Grantee shall: - (1) limit system failures to minimum time duration by locating and correcting malfunctioningipromptly, but in no event longer than twenty-four (24) hours after o6currence, irrespective of holidays or other non-business hours. (2) upon complaint by a subscriber, give a demonstration to the City Manager,. under recognized industry testing procedures, that to his satisfaction a signal is being delivered which is of sufficient strength and quality to meet the standards set forth in the regulations of the Federal Communica- tions Commission, or in regulations hereafte~ adopted by the Council, (3) render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible. Planned inter- ruptions, insofar as possible, shall be preceded by notice given to subscribers twenty-four (24) hours in advance and shall occur during. periodS of minimum use of the system. (4) maintain an office within the City limits or at a location which subscribers may call without incurring added message or toll charges so that cable television maintenance service shall be promptly available to subscribers. Grantee shall maintain telephone listings in the directories of the telephone companies serving the City as well as the Arcadia Local. Directory in the name by which the firm is most commonly known. (5) maintain a written record, or "log" listing the date of customer complaints, identifying the subscriber and describing the nature of the complaint, and when and what action was taken by Grantee in response thereto; said record shall be kept at Grantee's local office and shall be available for inspection without further notice or demand, by the City Manager. (d) Municipal service. (1) with respect to the access channels, the Grantee shall provide, at the request of the City Manager, and upon City reimbursement of Grantee's actual cost, use of Grantee's equipment and technLcal services for production of live and video-tape municipal programs, subject to scheduling requirements of the Grantee; -5- 1646 (2) With respect to basic television services, the Grantee shall provide, without charge to the City or School District, a single service con- nection as well as installation and maintenance of said service con- nection for one individual location per City or School District facility as designated by the City Council. Any further installation, i.e., additional outlets, to a City or School District facility shall be at cost, specifically, time and materials. (3) In order to implement access by the City and the Arcadia Unified School District, Grantee shall provide, when so requested by the City, the necessary cable equipment and facilities to permit the City and School District to transmit on the available access channel(s) from such sites as the City may designate. Such cable equipment and facilities shall be provided on a time and materials basis. (4) During periods of disaster or emergency, Grantee shall make available for the City's use, without charge, the entire cable system, including personnel to operate the system. (e) Uses permitted. Any franchise granted pursuant to the prov1s10ns of this ordinance shall authorize and permit the Grantee to engage in the business of operating and providing a cable television system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable telvision system; and, '. in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other Grantee franchised or permitted to do business in the City. Section 4 - Franchise payments and financial statements. (a) In consideration of the granting and exercise of a franchise to use the streets, as herein defined, for the operation of a cable television system, Grantee shall pay to the City, during the life of the franchise three percent (3\) of its Annual Gross Receipts. (b) The Grantee shall file with the City Treasurer on or before March 31 of each year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant, showing in detail the annual gross receipts, as defined herein, of the Grantee during the preceding fiscal year of portion thereof. (c) Franchise payments shall be made annually to the City Treasurer on or before March 31 of each year. Any payment made later than March 31 shall include a penalty charge of five hundred dollars ($500.00) plus interest at one and one- half percent (1,\) per month on the balance due. (d) The City shall have the right to inspect the Grantee's revenue records under the ' franchise and the right of audit and recomputation of any and all amounts payable under this ordinance; the cost of said audit shall be borne by Grantee when the same results in increasing, by more than 2\. the Grantee's annual payment to the City. -$- 1646 (e) No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this ordinance or for the performance of any other obligation hereunder. Section 5 - Franchise term, duration, termination and renewal. (a) The franchise, 'or any renewal or extension thereof, granted' by the Council under this ordinance shall be for a term of ten (10) years from the date of its accep- tance by the Grantee. (b) The City may terminate any franchise granted pursuant to the provlslons of this ordinance in the event of the willful' failure, refusal or neglect by Grantee to do or comply with any material requirement or limitation contained in this ordinance, or any material rule or regulation of the Council or City Manager validly adopted pursuant to this ordinance. (c) The City Manager may make written demand that the Grantee do or comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30) days following such written demand, the City Manager may place his request for termination of the franchise upon the next regular Council meeting agenda. The City Manager shall cause to be served upon such Grantee, at least ten (10) days prior to the date of such Council meeting, a written notice of his intent to request such termination, and the time and place of the meeting, notice of which shall be published by the city clerk at least once ten (10) days before ,such meeting in a newspaper of general circulation within the City. (d) The Council shall consider the request of the City Manager and shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal, or neglect by the Grantee was with just cause. (e) If such failure, refusal or neglect by the Grantee was with just cause, the Council shall direct the Grantee to comply within such time and manner and upon such terms. and conditions as are reasonable. (f) If the Council shall determine such failure, refusal or neglect by the Grantee was without just cause, then the Council may, by resolution, declare that the franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the Council may fix. (g) The termination and forfeiture of any franchise shall in nO way effect any of the rights of the City under the franchise or any provision of law. (h) In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the City, expressed by resolution, the Grantee shall pay to the City reasonable compensation and damages of not less than one hundred percent (100\) of its gross revenue during said period. (i) Any franchise granted under this ordinance is renewable, provided the City and Grantee both consent thereto in writing, in the same manner and upon the same terms and conditions as required herein for obtaining the original franchise, or as amended by Council. -7- 1646 ,. (al Each application fo" a franchise to construct, operate, or maintain'any cable television. systems in this City shall be filed with the City Clerk and shall contain or be accompanied by the "following unless waived by the City' council: (l) The name, address, and telephone number of the applicant; (2) A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to, the following and to what-' ever extent required by the City: (i) The names, residence and business addresses of all officers, directors, and associates of the applicant. (ii) The names, residence and business addresses of all officers, persons and entities having, controlling,. or being entitled to have or control of 5' or more of the ownership of the applicant and the respective ownership share of each such person or entity. (iiil The names and addresses of any parent or Subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in .whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary businessenti ty, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby. (iv) ^ detailed description of all [lrevi()u~ experience of the applicant in providing cable television system service and in related or similar fields. (v) A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceeding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and th~ Council, setting forth the basis for a study performed by such lending institution or fu~ding source,' and a clear statement of its intent asa lending'institiltion or. funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the City, or ,._ statement from a certified public 'accountant, certifying that the appltlsnc has available sufficient free, net and uncommitted cash resources to construot and operate the proposed system in this City. (v!) A statement identifying, by place and date, any other cable television franchise{s) awarded to the applicant, its parent or subsidiary, the status'of said franchise{s) with respect to completion thereofl the total cost of completion of such system(s);'and the amount of applicant', and its parent's or Subsidiary's resources committed to the completion thereof. -8- 1646 (3) A detailed' description of the proposed plan of operation of the applicant which shall include, but not be limited to, the' following: (i) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served. (ii) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges, service charges and deposits. (iii) A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed' by the applicant. In no event shall said operational and performance standards be less than those contained in Title 47, Subpart K (Sections 76.601 et. seq.), Rules and Regulations, Federal Communications Commission, adopted February 2, 1972, and as amended. (iv) h copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber. (v) A detailed statement setting forth in its entirety. any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise. (4) ~ A copy of any agreement covering the franchise area, if existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility, including but not limited to poles, lines, or conduits. (5) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required by the Counci"!, or by any provision of ~~e City Charter or any City ordinance. (6) An application fee in the sum of $200.00, which shall be in the form of cash, certified or cashier's check or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part. (b). The Council may, by advertisement or any other means, "ollcit and call fDr applications for cable television system franchises, and may determine and fix any date upon or after which the same shall be received by the City, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitati.ons respecting the soliciting, calling for, making and receiving of such applications. (c) Upon receipt of any application for franchise, the Council shall refer the same to the City Manager who shall prepare a report and make his recommendation respecting such application. -9- IM6 \W, .A.U ~u,=, CUIY UC....C.LIU.A.llQ'-.A.VII IIC.l.CU.~I"""1I;01. Q.:I I..V QUI Q}o't'....A.....QIl.......... \H11I;O ...........u......... I_J' ':II........ due consideration to the quality'of the service proposed, rates to subscriber, income to the City, experience, character, background, and financial responsi- bility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by. policy conditions, franchise limitations and requirements, and any other considerations deemed pertinent by the Council for safeguarding the interests of the City and the public. The Council, in its discretion, may determine the award of any franchise on the basis of such considerations and without competitive bidding. If the Council shall determine to reject such application, such determination shall be final and conclusive, and. the same shall be deemed rejected. (e) If the Council shall determine to further consider the application, the following shall be done: (1) The Council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided; (2) The Council shall pass:its resolution of intention to'consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise desired, stating the name of the proposed Grantee, the character of the franchise, the terms and condi- tions upon which such franchise is proposed to be granted, that copies of the proposed franchise may be obtained at the office of the City Clerk, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests or appear before the Council and be heard and directing the City Clerk to publish said resolution at least once not less than ten (10) days prior to said hearing, in the official newspaper. After hearing all persons desiring to be heard, the Council may by ordinance d~ny or grant the franchise on the terms and conditions. specified in the resolution subject to the referendum of the people. No ordinance granting a franchise shall be adopted as an emergency ordinance. Section 7 - Bonds; Indemnifications; Insurance (a) Performance Bond; Upon being granted approval to reconstruct any existing cable television system facilities or to construct any neW cable television system facilities, the Grantee shall file with the City Clerk and shall thereafter during the entire term of said reconstruction or construction maintain in full force and effect a corporate surety bond or other adequate surety agreement in Buch amount and kind as shall have been approved by the Council. The bond or agreement shall be so conditioned that in the event that Grantee shall fail to comply with anyone or more of the provisions of this ordinance or of any agreement pertaining to such reconstruction or construction, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the City as a result thereof, including attorneys' fees and costs of any action or proceeding, and including the full amount of any compensation; indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond. Said condition shall be a continuing obligation during the entire term of such reconstruction or construction and thereafter until Grantee shall have satisfied in full any and all obligations to the City which -10- 1646 arise out of or pertain to said reconstruction or construction. Neither the provisions of this Section, nor any bond accepted by the City pursuant hereto, oor any damages recovered by the City thereunder shall be construed to excuse faithful perfonmnce by the Grantee, or limit the liability of the Grantee lIDder any franchise issued pursuant to this ordinance or for damages either to the full amount of the bond, or otherwise. (b) Hold Hannless Agreerrent. Grantee shall indemlify and hold harmless the City, its officers, boards, comnissions, agents, and erIllloyees, against and from any and all claims, demmds, causes of actions, actions, suits, proceedings, damages (including but not limited to darmges to City property and damages arising out of oopyright infringements, and damages arising out of any failure by Grantee to secure oonsents from the owners, authorized distributors or licensees of programs to be delivered by Grantee's cable television system), costs or liabilities (in- cluding costs or liabilities of the City with respect to its erIllloyees), of every kind and nature whatsoever, including but not limited to damages for injury or d=ath or damage to person or property, and regardless of the merit of any of the SB.Ire, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the SanE, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by Grantee, or the granting thereof by the City, provided hO\\ever the City nny use, for any public or nnmicipal purpose. any poles or conduits maintained exclusively by or for the co~any in any street, provided such use by the City does not inter- fere with the use by the oolJllany. The City shall indermify, hold harmless, and d=fend the oompany against and from any and all claims, dermnds, actions, suits, proceedings, ~s, costs or liabilities of every kind and nature whatsoever arising out of the City's, its erIllloyee' s or agents' negligence, such use of the company's poles or conduits. (c) D3fense of Litigation. Grantee shall at the sole risk and expense of Grantee, upon demmd of the City, nnde by and through the City Attorney, appear in and d=fend any and all suits, actions, or other legal proceedings, lIhether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the City, its officers, boards, comnissions, agents, or employees, and arising oot of or pertaining to the exercise or the enjoyment of such franchise, or the granting thereof by the City. Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgrrent, decree, order, direct i ve, or demmd rendered, made or issued against Grantee, the City, its officers, boards, commissions, agents, or employees in any of these premises; and such indermi ty shall exist and continue wi trout reference to or limitation by the anount of any bond, policy of insurance, d=posit, undertaking or other assurance required hereunder, or otherwise; provided, that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, derrand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other. (d) Insurance Required. Grantee shall, concurrently, with the filing of an acceptance of award of any franchise granted under this ordinance, furnish to the City and file with the City Clerk, and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the City, its officers; boards, commissions, agents and employees, in a corrpany approved by the City Manager R?d a form satisfactory to the City Attorney, -11- 1646 protecting the City and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of Grantee under such franchise, with minimum liability limits of Three Hundred Thousand Dollars ($300,000) for personal injury or death of anyone person and Five Hundred Thousand Dollars ($500,000) for personal injury or death of two or more persons in anyone occurrence, and Two Hundred Thousand Dollars ($200,000) for damage to property resulting from. anyone occurrence. The City shall be named as an additional insured in any of said insurance policies. Where such insurance is provided by a policy which also covers Grantee or any other entity or persons, it shall contain the standard cross- liability endorsement. Such policies shall contain a provision that a written notice of cancellation or reduction in 'coverage of said policy shall be delivered to the City Clerk ninety (90) days in advance of the effective date thereof. Section 8 - Acceptance of the franchise. (a) Within twenty-five (25) days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the Council in .its discretion may authorize, the' Grantee shall file with the City Clerk its written acceptance, in form satisfactory to the City Attorney, of the franchise together with the bond and insurance policies required by this ordinance and its agreement to be bound by and to comply with and do all things required of it by the provisions of this ordinance and the franchise. No franchise granted under this ordinance shall become effective for any :purpose unless and until written acceptance thereof shall have been filed with the City Clerk. (b) In default of the filing of such written acceptance as herein required, the Grantee shall be deemed to have rejected and repudiated the franchise, There- after, the acceptance of the Grantee shall not be received nor filed by the City Clerk. The Grantee shall have no rights, remedies, or redress in the premises, unless and' until the Council, by resolution, shall determine .that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. (c) In any case, and .in any instance, all rights, remedies and redress in these premises which mayor shall be available to the City, shall at all times be I available to the City, and shall be preserved and maintained and shall con- tinuously exist in and to the City, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise. (d) Any franchise granted and accepted under this ordinance shall be in lieu of any and all other rights, privileges, powers, immunities, and'authorities owned, possessed, controlled, or exercisable by the Grantee, of or pertaining to the construction, operation, or maintenance of any cable television systems in the City. -12- 1646 Section 9 - Limitations of franchise. (al Every franchise granted under this ordinance shall be non-exclusive. Neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the City from granting any identical, or similar, franchise to any other person, firm or corporation, within all or any portion of the City. (b) No privilege or exemption shall be granted or conferred by any franchise granted under this Ordinance except those specifically prescribed herein. (c) Any privilege claimed under any such franchise by the Grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. (d) Any such franchise shall be a privilege to be held in personal trust by the original Grante~. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assign- ment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused; provided, however, the proposed assignee must show financial '.responsibility as determined by the Council and must agree to comply with all provisions of this ordinance: and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an lndebtedness, except that when such hypo- thecation shall exceed 50\ of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the Council shall be required for such a t~ansfer. Such consent shall not be withheld unreasonably. In the event the Grantee is a corporation, prior approval of the City Council, expressed by ordinance, shall be required where there is an actual change in control or where ownership of. more than 50\ of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of wham already own 50\ of more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this ordinance within the meaning of Section 5 of this ordinance. (e) Time shall be of the essence of any such franchise granted hereunder. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this ordinance by any failure of the City to enforce prompt compliance. (fl Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. -13- 1646 (g) The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this ordinance or of any franchise issued hereunder or because of its enforcement. (h) The Grantee shall be subject to all requirements of the City Charter, ordinances, rules, regulations, and specifications heretofore or hereafter enacted or established. (i) Any such franchise granted shall not relieve the Grantee of any obligations involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets. (j) Any franchise granted hereunder, shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled;' or exercisable by Grantee, or any successor to any interest of Grantee, of or pertaining to th~ construction, operation, or maintenance of any cable television system in the City; and th~ acceptance of any franchise hereunder shall operate, as between Grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the City, to the effect that, as between Grantee and the City, and all construction, operation and maintenance by any Grantee of any cable telvision system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever. Section 10 - Rights reserved to the City. (a) Nothing herein shall be deemed or construed to impair, or affect, in any way, to any .extent, the right of the City to acquire the property of the Grant~~, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain. (b) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any law, and the Grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power, heretofore, or 'hereafter enacted or established. -14- 1646 (c) Neither the granting of any franchise nor any provlslon hereof shall constitute a'waiver or bar to the exercise of any governmental right or power of the City. (d) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this ordinance and may determine any questions of fact which may arise during the existence of any franchise granted hereunder. The City Manager, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any Grantee under this ordinance, whether on behalf of the City, the Grantee, or any subscriber, in' the best interest of the public. Either the Grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the City Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the Grantee or any provision of this ordinance. Section 11 - Council to adopt rules and regulations. (a) Standards of Operation (1) Prior to receiving any applications for franchises, the Council may adopt rules, regulations and standards governing the operation of cable television systems in the City. Such rules, regulations and standards shall apply to and shall govern the operations of the Grantee of any franchise hereunder,. and are expressly declared a part of any franchise hereunder. (2) The standards adopted shall govern the engineering, construction, installation, service, and maintenance of all cable television systems in the City, including but not limited to standards governing carrier levels, signal-to-noise'ratios, hum modulation~ distortion levels, channel interactions and inter-reactions. (3) Provided the same do not materially alter the content of the franchise without consent of the Grantee, the Council may at any time adopt new rules or regulations or standards, or may amend, modify, delete, or otherwise change its respective rules or regulations or standards previously adopted, in the following manner: The Council shall pass its resolution of intention stating or describing the rules or regulations or standards to be adopted, amended, modified, deleted, or otherwise changed, and fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection thereto may appear before the Council and be heard. Such resolution shall direct tile City Clerk to publish the same at least once within ten (10) days of t~e passage thereof in a newspaper of general circulation within the City, and to mail a copy of the same to any Grantee or applicant for a franchise, not more than thirty (30) days nor less then fifteen (15) days prior to the time fixed for hearing thereon. -15- 1646 At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the Council, by its resolution, may adopt, amend, modify, delete, or otherwise change its respective rules, regulations and standards. Such determination by the Council shall be final and conclusive. Any rule or. regulation or standard as adopted, amended, modified, deleted, or otherwise changed by the Council shall become effective upon the tenth. (lOth) day following the adoption of such resolution, unless a longer period shall be otherwise provided in such resolution. . (4) In no event shall .operational and performance standards be less than those contained in Title 47, Subpart K (Sections 76.601 et. seq.), Rules and Regulations, Federal Communication Commission, adopted February 2, 1972, and as amended, or in regulations hereafter adopted by the Council. (b) Rates (1) The Council, by ordinance shall establish and fix all rates and charges for the Basic Service, herein defined, allowable to Grantee, such as monthly service charges, installation charges and deposits. Once estab- lished, such rates or ch~rges shall not be changed at any time after granting of a franchise, except after due notice and hearing as provided herein. (2) In connection with any proposed change of any rates or charges of Grantee to subscribers initiated by Grantee, or the approval.of rates for additional services, at any time after the granting of a franchise, the Council shall hold a public hearing and shall direct the City Clerk to publish notice of the public hearing. The notice shall set forth the proposed change of rates or charges. If the Council determines to do so, the Council shall find that the changing of any rates or charges of Grantee to subscribers will be fair to the system operator and not detrimental or injurious to the best interests and welfare of the subacribers and users, and of the City, then the Council, by ordinance, shall authorize the change of rates or charges of Grantee to subscribers and users as determined. Such ordinance shall thereupon become.and shall be a part of any franchise granted hereunder and affected thereby. (3) Neither the Council nor the Grantee shall, as to rates, charges, service. service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to pr~judice or disadvantage. Section 12 - System Extension (a) 'Grantee shall extend cable television services to any residence at the standard rate if the resident requests the service extension, and the service connection requires no more than a standard one hundred fifty (150) foot drop line. -16- 1646 ID! Grantee snail extend cable televlslon services to any residence requiring more than a standard one hundred fifty (150) foot drop line if the resident requests the service extension and agrees to pay the standard rate plus the actual cost for time and materials for the distance exceeding one hundred fifty (150) feet. Grantee may request advance payment for such installation. (c) Grantee shall extend cable television services to any existing development or group of residences at the standard rate if the existing development or group of residences to be served has a density of at least one hundred (100) residences per strand mile of trunk line cable installed, and forty percent (40\) of the residences within the development or group of residences to be served request service. Any development or group of residences not meeting the above require- ments may be served at the Grantee's discretion. (d) Grantee shall extend energized or unenergized cable, or conduit, to all new residential developments as they are constructed, provided that the cost of trenching,. conduit, pedestals and/or vaults and laterals as well as easements required to bring service to and within the development are borne by the developer and/or landowner, and provided that all installations and construction by the developer and/or. landowner are to the specifications of the Grantee. Grantee may not provide cable television services to such a development until forty percent (40\) of the residences to be served have agreed to subscribe to cable service. Section 13 - Permits and construction. (a) Within sixty (60) days after receiving a request for extending cable television ..service to any existing development or group of residences which meets the requirements of Section l2(c) above, the Grantee shall file with the City Clerk a map, plan and time schedule for providing such service. (b) Within thirty (30) days after filing said map, plan and time schedule, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business,including, but not limited to, any utility joint use attachment agreements, microwave carrier license, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, or associated micro~wave transmission facilities. (c) Within ninety (90) days after obtaining ail necessary permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction and installation of the cable television system. (d) Within one hundred eighty (180) days after the commencement of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction shall be provided as set forth therein. -17- 1646 (e) Failure on the part of the Grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein, shall be grounds for termination of such franchise. By resolution, the Council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the Grantee, acting in good faith, experiences delays by reason of circumstances beyond his control. By acceptance of the franchise granted hereunder, Grantee agrees that failure to comply with any time requirements referred to in subsections (a), (b) and (c) of this section will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and Grantee therefore agrees that, in addition to any other damage suffered by City, he will pay to City the sum of $100.00 per day for each and every day's delay beyond the time prescribed, plus authorized 'extensions thereof, for completion of any of the acts required to be done by this section. (fl Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately- owned property unless and until first securing the written approval of the City Manager. Whenever Grantee shall not utilize existing poles, conduits, and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed ;to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its pOlice power or pursuant to the terms thereof, upon reasonable notice to Grantee, any such conduits or other facilities of Grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of Grantee, whose costs shall be determined as in the case of public utilities. (g) The City shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits or similar facilities erected, controlled, or maintained exclusively by or for Grantee in any street, provided such use by City doee not interfere with the use by Grantee. '(h) In those areas of the City where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground, or hereafter are placed underground, the Grantee shall likewise construct, operate and maintain all of his transmission and distribution facilities underground. The term "underground" shall include a partial underground system; provided that upon obtaining the written approval of the City Manager, amplifiers in the.Grantee's transmission and distribution lines may be placed in appropriate housings upon the surface of the ground. -18- 1646 (i) The Grantee at his expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the City Manager, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, 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 other structure or public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the City shall undertake ~o 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, as herein provided. Nothing hereunder shall be deemed a taking of the property of Grantee, and Grantee shall be entitled to no surcharge by reason'of anything hereunder. (j) Upon the failure, refusal, or neglect of Gr~tee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the City Manager may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an itemized statement of'the costs thereof. The Grantee shall, within thirty (30) days after receipt of such statement, pay to the City the entire amount thereof. (k) In the event that, (1) the use of any part of the system of Grantee is discontinued for any reason for a continuous period of thirty (30) days, without prior written notice to and approval by the City; or (2) any part of such system has been installed in any street or other area without complying with the requirements hereof; or (3) any franchise shall be terminated, cancelled, or shall expire, then the Grantee shall, at the option of the City, and at the expense of Grantee and at no expense to the City, and upon demand of the City, promptly remove from any streets or other area all property of Grantee, and Grantee shall promptly restore the street or other area from which such property has been removed to such condition as the City Manager shall approve. The Council may, upon written application therefor by Grantee, approve the abandonment of any of such property in place by Grantee and under such terms and conditions as the Council may prescribe. Upon abandonment of any such property in place, Grantee shall cause to be executed, acknowledged, and delivered to the City such instruments as th0 Ci ty Attorn/!y IJhaJ.l prellcribo and approve, transferring and conveying the ownership of such property to the City. (1) Upon request by the City, Grantee shall furnish the City with as-built drawings of the entire cable television system. -19- 1646 Section 14 - Miscellaneous provisions. (a) A franchise granted to provide service within the City shall authorize and permit the Grantee to solicit, subject to the City's solicitation ordinance, sell, distribute, and make a charge to subscribers'within the City for connection to the cable television system of Grantee; and shall also authorize and permit the Grantee to traverse any portion of the City in order to provide service outside the City. (b) A franchise, easement, license or other permit granted to anyone other than the Grantee to traverse any portion of the City in order to provide service outside the City shall not authorize nor permit said person to solicit, sell, distribute, and make a charge to subscribers within the City, nor to render any service or connect any subscriber within the City to the cable television. service system of Grantee. (c) No franchise granted under this ordinance shall ever be given any value by any Court or other authority, public or private, in any proceeding of any nature or character, wherein or whereby the City shall be a party or affected therein or thereby. (dl Grantee shall be subject to all provlslons of the City Charter, ordinances, rules, regulations and specifications of the City heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about streets. 'Any .privilege claimed under any franchise granted pursuant to this ordinance in any street or other public property shall be subordinate to any prior lawful occupancy of the stteets or other public property. Grantee shall be subject to the provisions of general laws of the State of california, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted under this ordinance, including but not limited to those pertaining to works and activities in and about State highways. lel Grantee shall be prohibited from directly or indirectly doing any of the following: (1) engaging in the business of selling at retail, leasing., renting, repair~ng or servicing of television sets or radios; (2) imposing a fee or charge for any service or repair to subscriber-owned receiving devices except for the connection of its service,repair of service of Grantee owned converters, or for the determination by Grantee of the quality of its signal to the recipients thereof; (3) soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business' herein prohibited to be engaged in by Grantee. (4) providing information concerning the viewing patterns of identifiable individual subScribers to any person, group, or organization for any purpose. -20- 1646 (f) If the Federal Communications Commission or the Public Utilities Commission of the State of California or any other Federal or.State body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted under this ordinance, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City the jurisdiction of the City shall.cease and no longer exist. The preemption or preclusion of the exercise by the City of any of its police power shall not diminish, impair, alter, or affect any contractual benefit to the City or Grantee nor any contractual obligation of the Grantee under any' franchise issued hereunder. Any and all minimum standards governing the operation of Grantee and any and all maximum rates, ratios, and charges' specified herein or in any franchise iasued hereunder, existing now and at any time in the future, including such time as any paramount juriSdiction shall preempt or preclude that of the City, and any and all rights, powers, privileges, and authorities of the City to determine, establish, or fix any of the same, are each and all hereby declared by the City and by any Grantee accepting any franchise hereunder to be contractual in nature and to be for the' benefit of the City. (g) When not otherwise prescribed herein, all matters herein required to be filed with. the City shall be filed, with the City Clerk. (h) No person, firm or corporation within the service area of the Grantee, and where trunk lines are in place, shall be refused service; provided, however, that the ',Grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge. (i) Before providing cable television service to any subscriber, the Grantee shall provide a written notice to the subscriber substantially as follows: "Subscriber is hereby notified that in providing cable television.service the Grantee is making use of public rights-of-way within the City of Arcadia and that the con- tinued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the' City of Arcadia, its officers, or its employees if ~e service to be provided hereunder is interrupted or discontinued." (j) The form of the Grantee's contract with the subscriber shall also be subject to approval of the City. (kJ At all reasonable times and upon reasonable notice, the Grantee shall permit any duly authorized representative of the City to examine all property of the Grantee, together with any appurtenant property of the Grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which deal with the operations, affairs, transactions or property of the Grantee with respect to its franchise.. If any such maps or records are not kept .in the City or upon reasonable request made available in the City and if the council shall determine that an examination, thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. -21- 1646 (1) Grantee shall maintain a list of all subscribers to cable television services provided by the Grantee and shall permit, at all reasonable times, and duly authorized representative of the City to examine and make a copy of said list. (m) The Grantee shall prepare and furnish to the City Manager, at the times and in the form prescribed by the City Manager, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the franchise. . (n) In the event any new territory shall be annexed to the City which is contiguous to only one franchise area in the City, such new territory shall become, by operation of law, a part of said franchise area immediately upon the completion of such annexation. Section 15 - Equal opportunity employment and affirmative action In the carrying out of the construction, maintenance and operation of the cable television system, the Grantee shall not discriminate against any employee or applicant for employment becuase of race, creed, color, sex, or national origin. Grantee shall comply with all applicable equal opportunity employment and affirmative action requirements of the State. and Federal governments. Section 16 - Violations (a) From and after the effective date of this ordinance, it shall be unlawful for any person to contruct, install, or maintain. within any public street in the City, or within any other public property of the City, or within any privately~owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, any equipment or facilities ,for distributing any television signals or radio signals through a cable television system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this ordinance, and unless such franchise is in full force and effect. (b) It shall be unlawful for any person, firm or corporation to make or use any. unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable television system within this City for the purpose of enabling himself or others to receive or use any television signal, radio signal, picture, program or sound, without payment to the owner of said system. (c) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. -22- 1646 (d) No person shall violate any provlslon, or fail to comply with any of the requirements of this Section 16. Any person violat- ing any of the provisions or failing to comply with any of the mandatory requirements of this Section 16 shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under any provision of this Section 16 shall be punishable by a fine of not more than Five Hundred Dollars, or by imprisonment in the City Jailor County Jail for a period not exceeding six months, or by both such fine and imprisonment. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the Section 16 is committed, continued, or permitted by such person and shall be punishable accordingly. (e) In addition to the penalties provided in the preceding Section 16 (d) any condition caused or permitted to exist in violation of any of the provisions of this ordinance shall be deemed a public nuisance and may be, by the City, summarily abated as such, and each day such condition continues shall be regarded as a new and separate offense. SECTION 3. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed this ordinance and each section, sub-section, sentence, clause and phrase hereof, irrespective of the fact that anyone of more sections, sub- sections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Grantee of any franchise granted hereunder. SECTION 4. Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provisions applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. SECTION 5. The Clerk of the Council shall certify to the passage and adoption of this ordinance and shall cause the same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. -23- 1646 PASSED AND ADOPTED by the City Council of the City of Arcadia at its regular meeting held on the 1st day of August, 1978. SIGNED AND APPROVED this 1st day 0 f August ,1978. 'TIEST, ~ ~()'71t/JJ ~\J City Clerk I HEREBY CERTIFY that the foregoing ordinance was adopted ,at a regular meeting of the City Council of the City of Arcadia, California, held on the 1st day of August ,1978, by the affirmative vote of at least three Council members, to wit: AYES: Councilmen Gilb, Pellegrino, and Parry. NOES: None ABSENT: Councilmen Ma"~ lL)~" City Clerk'of the City of Arcadia. -24- 1646