Antioch Municipal Code Art. 1 General Provisions

A nonexclusive franchise to construct, operate, and maintain a community antenna television and communications system in the city may be granted by the Council to any person, firm, or corporation offering to furnish and provide such system under and pursuant to the terms and provisions of this chapter.

('66 Code, § 5-5.01) (Ord. 590-C-S, passed 9-11-84)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BASIC SERVICE. Those broadcast signals which the grantee carries pursuant to FCC must carry regulations and one public access channel, delivered to all subscribers as a group or tier of signals in exchange for a single monthly charge and which all system subscribers shall take in order to have the right to subscribe to additional CATV services. BASIC SERVICE shall not include optional tiers or services for which a separate charge is made.

CITY. The City of Antioch, in its present incorporated form or in any later reorganized, consolidated, enlarged, or reincorporated area.

COMMUNITY ANTENNA TELEVISION AND COMMUNICATIONS SYSTEM (CATV). A facility utilizing:

(1) A receiving antenna or antennas;

(2) Connecting wire, cable, fiber optics, and other equipment crossing or occupying the streets; and

(3) Associated microwave, satellite relay facilities, or similar radio frequency transmission equipment used in conjunction with the facilities enumerated in subdivisions (1) and (2), designed and constructed for the primary purpose of distributing video programming to subscribers and the secondary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital, or other forms of electronic or electrical signals sold or distributed to subscribers.

FRANCHISE. The right and authority granted by this chapter to a grantee to construct, maintain, and operate a community antenna television and communications system through the use of the public streets, public rights-of-way, or other places owned by the city or dedicated to public use, including public utility easements.

FRANCHISE AGREEMENT. An agreement executed by the city and the grantee to implement the provisions of this chapter.

GRANTEE. The person or corporation to whom or which a franchise under this chapter is granted by the Council and the lawful successor or assignee of such person or corporation.

GROSS RECEIPTS. Any and all compensation received by the grantee from the operation of its CATV system within the corporate limits of the city. GROSS RECEIPTS shall include regular monthly subscriber fees for both standard and premium (pay) service, installation charges, disconnect and reconnect charges, and charges for the use of access, origination, or private service channels in either service direction, as reduced by bad debts and fees paid by the grantee to the copyright office. GROSS RECEIPTS shall not include refundable deposits or any taxes on the services furnished by the grantee imposed directly on any user or subscriber by any city, state, or other governmental unit and collected by the grantee for such governmental unit.

STREET. The surface, the airspace above the surface, and the area below the surface of any public street, public right-of-way, or other place owned by the city or dedicated to public use, including public utility easements.

SUBSCRIBER. Any person or entity receiving for any purpose the CATV service of the grantee.

('66 Code, § 5-5.02) (Ord. 590-C-S, passed 9-11-84)

(A) Any nonexclusive franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of constructing, operating, and maintaining a CATV 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 public street or highway such poles, wires, cable, conductors, ducts, conduit, vaults, pedestals, manholes, amplifiers, appliances, attachments, and other property as may be necessary or useful and appurtenant to the CATV system; and, in addition, so to use, operate, and provide similar facilities or properties rented or leased from a public utility franchised or permitted to do business in the city.

(B) The grantee, as to rates, charges, service, services, facilities, rules, regulations, or in any other respect, shall not make or grant any undue preference or advantage to any person, nor subject any person to any prejudice or disadvantage on the basis of sex, race, color, religion, ancestry, or national origin.

('66 Code, § 5-5.03) (Ord. 590-C-S, passed 9-11-84)

Any franchise granted by the Council pursuant to this chapter shall relate to the present territorial limits of the city and to any area henceforth added thereto during the term of the franchise. However, the grantee shall not be required to extend cable service to any newly-annexed area until such time as the newly-annexed area has an average density of 80 housing units per mile street; and provided, further, the grantee shall not be required to provide service to any newly-annexed area which is already receiving CATV service or its equivalent.

('66 Code, § 5-5.04) (Ord. 590-C-S, passed 9-11-84)

(A) No franchise granted by the City Council under this chapter, shall be for a term longer than 15 years following the date of acceptance of such franchise by the grantee or the renewal thereof; provided, however, the City Council may extend the term of any franchise then in effect for an additional term of no more than 10 years.

(B) (1) Any such franchise may be terminated prior to its date of expiration by the Council in the event the grantee fails or refuses to substantially comply with the city's demand that a violation be corrected of any material provision, term, or condition of this chapter or any franchise or permit issued under this chapter. If the city deems the grantee to be in violation of any provision, term, or condition of this chapter or any franchise issued under this chapter, the city shall make a written demand that the grantee take corrective action. If the alleged violation by the grantee continues for a period of 120 calendar days following such written demand without a response from the grantee that the corrective action has been taken, that corrective action is being actively and expeditiously pursued, or that the grantee is otherwise not in violation of this chapter, the city may place the issue of the termination of the franchise before the Council. The Council shall cause to be served upon the grantee, at least 20 calendar days prior to the date of the Council meeting, a written notice of intent to consider such termination for failure to correct the alleged violation, a statement of the nature and scope of the alleged violation, and the time and place of the meeting. Public notice shall be given of the meeting and the issue which the Council is to consider. The Council shall hear and consider the issue, shall hear any person interested on the issue, and shall determine whether or not the alleged violation has occurred. If the Council determines that the alleged violation by the grantee has occurred, the Council shall also determine whether the violation is the fault of the grantee and was within the grantee's reasonable control to correct. If the violation is the fault of the grantee and was within the grantee's reasonable control to correct, the Council may declare that the franchise of the grantee be terminated. All factual and legal issues raised by the Council's decision to terminate the franchise may be determined by a court having jurisdiction provided such action is commenced within 90 calendar days after the grantee receives written notice of the decision to terminate. All factual and legal issues raised by the Council's decision to terminate the franchise may be determined de novo by a court having jurisdiction in accordance with the rules of civil procedure and evidence applicable to breach of contract actions between private parties.

(2) If any provision of this chapter becomes invalid or unenforceable because of a superseding law, regulation, or court decision, and if such provision constitutes a consideration material to the grant of such franchise, then the parties shall have the opportunity to open up the franchise ordinance and agreement for amendments mutually agreeable to the parties; provided, however, any such amendment shall conform to and, if appropriate, incorporate relevant provisions of state or federal laws.

('66 Code, § 5-5.05) (Ord. 590-C-S, passed 9-11-84; Am. Ord. 827-C-S, passed 12-30-91)

(A) No privileges or exemptions are granted or conferred by this chapter, except those specifically prescribed in it. The franchise granted by this chapter shall be subordinate to any existing lawful public use or any existing franchise or lawful occupancy of any public highway, street, road, or other public property for the purpose of erecting, operating, and maintaining poles, lines, conduits, cables, gas pipelines, and other necessary fixtures used in connection with the purpose of existing franchises or any extension of them if such use, franchise, or occupancy would be frustrated by the grantee's proposed exercise of the rights granted to it by the franchise.

(B) No franchise granted by this chapter may be sold, transferred, leased, assigned, or disposed of as a whole, or in part, or otherwise without the prior consent of the city expressed in writing, and then only under such conditions as may be prescribed in the consenting agreement; provided, however, the city shall not unreasonably withhold consent; and provided, further, no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness.

(C) In the event the grantee is a corporation, prior approval of the Council, which shall not be unreasonably withheld, shall be required where the ownership or control of more than 30% of the voting stock of the grantee is proposed to be acquired by a person or group of persons acting in concert, none of whom already own or control 30% or more of the voting stock, singularly or collectively. Further, any acquisition of stock or equity to increase total ownership to an amount of 30% or greater by a person or group of persons acting in concert shall similarly require Council approval. Any such acquisition occurring without the prior approval of the Council shall constitute a failure to comply with a provision of this chapter.

('66 Code, § 5-5.06) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

No franchise granted under this chapter shall be deemed effective until accepted by the grantee. Such acceptance shall be evidenced by the grantee's execution of a franchise agreement pursuant to this chapter.

('66 Code, § 5-5.07) (Ord. 590-C-S, passed 9-11-84)

(A) Basic rates. Subject to division (B) of this section, the grantee's monthly charge for the transmission of basic service shall be in the amount specified in the franchise agreement. Charges for all other services shall be determined by the grantee.

(B) Annual rate adjustments. The grantee may make annual adjustments to its monthly charge for the transmission of basic service pursuant to the rate adjustment formula contained in the franchise agreement. If the grantee desires to impose a rate adjustment in excess of that authorized by the franchise agreement, the grantee shall submit to the Council an application to do so.

('66 Code, § 5-5.08) (Ord. 590-C-S, passed 9-11-84)

(A) Any grantee granted a franchise under this chapter shall pay to the city, during the life of such franchise, and at the times specified in this section, a sum equal to 5% of the monthly total gross receipts of the grantee as defined in division (G) of § 5-5.02 of this chapter, unless such fee is disapproved by the Federal Communications Commission (FCC), in which case the grantee shall pay such lesser amount authorized by the FCC. Such payment by the grantee to the city shall be in lieu of any occupation tax, license tax, or similar levy and shall be paid semiannually. The amount of the franchise payment shall not be included in the calculation of rate adjustments pursuant to division (B) of § 5-5.08 of this chapter, unless such rate includes the amount of the franchise payment.

(B) The grantee shall file with the city, within 90 calendar days after the expiration of any calendar year during which such franchise is in force, a financial statement prepared by a certified public accountant showing in detail the total gross receipts, as defined in this section, of the grantee and its successors or assigns during the preceding calendar year. It shall be the duty of the grantee to pay to the city within 15 calendar days after the time for filing such statements any unpaid balance for the calendar year covered by such statements.

(C) The city shall have the right of inspection of the grantee's records showing its gross receipts, subject to the provisions of § 5-5.21 of this chapter.

('66 Code, § 5-5.09) (Ord. 590-C-S, passed 9-11-84; Am. Ord. 827-C-S, passed 12-30-91) Penalty, see §§ 1-2.01 et seq.

(A) Any privilege claimed under 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 and shall be in conformance with Cal. Gov't Code §§ 53066 et seq.

(B) The grantee shall be subject to all of the requirements of this code and the rules, regulations, and specifications of the city heretofore or hereafter enacted or established, including, but not limited to, those concerning street work, street excavations, the use, removal, and relocation of property within a street, and other street work, so long as any rule, regulation, or specification hereafter enacted does not materially increase the obligation or burdens assumed by the grantee pursuant to this chapter.

('66 Code, § 5-5.10) (Ord. 590-C-S, passed 9-11-84)

There is hereby reserved to the city every right and power which is required to be herein reserved or provided by any ordinance of the city, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the city in its exercise of such right or power heretofore or hereafter enacted or estab-lished so long as any action or requirement of the city hereafter enacted or established does not materially increase the obligations or burdens assumed by the grantee pursuant to this chapter.

('66 Code, § 5-5.11) (Ord. 590-C-S, passed 9-11-84)

The grantee shall proceed within 30 calendar days with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including utility joint use attachment agreements and microwave carrier licenses to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV or associated microwave transmission facilities. Further, the grantee shall commence the installation within 90 calendar days subsequent to the obtaining of all the necessary permits and authorizations and, subject to the provisions of § 5-5.13 of this chapter, shall proceed to render service to subscribers within 90 calendar days following the commencement of the installation of the system. The completion of the installation shall be pursued with reasonable diligence thereafter so that service to all areas designated on the map accompanying the application for a franchise shall be provided within one year after the date service was first provided. Substantial noncompliance with the requirements of this section shall be grounds for the termination of the franchise, unless such noncompliance is due to circumstances or occurrences beyond the grantee's reasonable control.

('66 Code, § 5-5.12) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) The grantee shall make such arrangements to install system CATV facilities with the owner of the property or easement where facilities are to be located as may be appropriate.

(B) The grantee shall not be required to pay a fee to, or to compensate in any fashion, such owner in order to obtain permission to locate CATV facilities above, below, on, or across the owner's property or easement, or to provide CATV services to properties in the vicinity of such owner's property or easement. Furthermore, if such owner refuses to permit the grantee to locate CATV facilities above, below, on, or across such property or easement, the grantee shall not be required to serve properties in the vicinity by means of an alternative route for the installation of CATV facilities if the use of such alternative route would result in construction costs above those which would have been necessary if permission had been granted by such owner.

(C) All excavation work performed by the grantee within the streets shall require an excavation permit. Any poles, wires, cable lines, conduits, or other properties of the grantee to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved by the city acting in the exercise of its authority and reasonable discretion.

(D) The grantee shall post a cash bond or line of credit from a federal or state bank or savings and loan association in the name of the city in the amount of $50,000 for use by the city to repair, replace, or restore streets or other public facilities damaged by the grantee's work. The city shall have the right to withdraw sufficient funds for such repairs following 15 calendar days' written notice to the grantee that such repairs are necessary and the grantee fails to perform the necessary repair, replacement, or restoration. Upon such withdrawals, such cash bond shall be replenished by the grantee to its full original amount. Interest from such cash bond shall be reserved to the grantee on terms and conditions approved by the City Manager.

(E) The grantee shall not install or erect any facilities or apparatus in or on other public property, places, or rights-of-way, or street right-of-way widening required by code, 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 or preliminary parcel map approved by the city, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the City Manager.

(F) In those areas and portions of the city where the transmission or distribution facilities of the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the grantee shall likewise construct, operate, and maintain all of its transmission and distribution facilities or other means of transmitting signals underground to the extent that the transmission or distribution facilities of such utilities are underground. For the purposes of this section, UNDERGROUND shall include a partial under-ground system. The city shall not be in any manner responsible for any costs incurred by the grantee in placing the grantee's facilities underground.

(G) The entire distribution system of the grantee, including poles, posts, wires, cables, appurtenances, and facilities, shall be located or relocated and so erected as not to interfere unreasonably with travel over, in, on, or under any street and with reasonable ingress and egress to abutting property.

('66 Code, § 5-5.13) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) In the event that the use of any franchise property is discontinued for a continuous period of 12 months, unless such discontinuance is due to circum-stances beyond the grantee's reasonable control; franchise property has been installed in any street or other dedicated public right-of-way without substantially complying with the requirements of this chapter; or the franchise has been terminated or has expired, the grantee, at its sole expense, shall remove promptly from the street, dedicated public right-of-way, or other city property or public places all franchise property which the City Manager may reasonably require to be removed. In the event of any such removal, the grantee shall promptly restore the street or other dedicated public right-of-way or other public places in the city from which the franchise property has been removed to a satisfactory condition. All other franchise property shall be deemed abandoned in place and shall become the sole property of the city without any liens or encumbrances thereon.

(B) Upon the abandonment of any franchise property in place, the grantee shall submit to the City Manager an instrument, satisfactory in form to the City Attorney, transferring to the city the ownership of the franchise property abandoned.

('66 Code, § 5-5.14) (Ord. 590-C-S, passed 9-11-84)

The grantee, at its expense, shall protect, support, temporarily disconnect, relocate in the same street, alley, or public place, or remove from the street, alley, or public place any property of the grantee when required by the Director of Public Works by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grades, installations of sewers, drains, water pipes, power lines, signal lines, or tracks, or any other type of structures or improvements by governmental or proprietary capacity, or any other structures or public improvements; provided, however, the grantee in all cases shall have the privileges and be subject to the obligations to abandon any property of the grantee in place as provided in § 5-5.14 of this chapter.

('66 Code, § 5-5.15) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

Upon the failure of the grantee to complete any work required by law or by the provisions of this chapter to be done in any street within the time prescribed and to the reasonable satisfaction of the Director of Public Works, the Director of Public Works, after notice to the grantee, may cause such work to be done, and the grantee shall pay to the city the costs thereof in the itemized amounts reported by the Director of Public Works to the grantee within 30 calendar days after the receipt of such itemized report.

('66 Code, § 5-5.16) (Ord. 590-C-S, passed 9-11-84)

The grantee at all times during the term of any franchise granted under this chapter, at its own cost and expense, shall properly and in a good workman-like manner install and maintain adequate shielding, filtering, and grounding at affected installations within the CATV system to eliminate television interference encountered from fundamental frequency overloads by radio amateur transmissions which are in compliance with Federal Communications Commission regulations.

('66 Code, § 5-5.17) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) The grantee, concurrently with the filing of and acceptance of award of any franchise granted under this chapter, shall file with the City Clerk, and at all times thereafter maintain in full force and effect for the term of such franchise at the grantee's sole expense, a corporate surety bond in a company approved by, and in a form to be approved by, the City Attorney in the amount of $50,000, renewable annually, and conditioned upon the faithful performance of the grantee, and upon the further condition that in the event the grantee shall fail to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee under this chapter, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed in this chapter which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of such franchise and thereafter until the grantee has liquidated all of its obligations with the city which may have arisen from the acceptance of such franchise by the grantee or from its exercise of any privilege therein granted. The bond shall provide that 30 calendar days' prior written notice of intention not to renew, cancellation, or material change be given to the city. The bonding requirement may be satisfied by a letter of credit maintained with a bank which may similarly be assessed by the city.

(B) Neither the provisions of this section, or any bond or letter of credit accepted by the city pursuant thereto, nor any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued under this chapter or for damages, either to the full amount of the bond or letter of credit or otherwise.

('66 Code, § 5-5.18) (Ord. 590-C-S, passed 9-11-84)

(A) The grantee, at all times during the existence of any franchise issued under this chapter, shall maintain in full force and effect, furnish to the city, and file with the Council, at its own cost and expense, a general comprehensive liability insurance policy in protection of the city, and its officers, boards, commissions, agents, and employees, in a company approved by the City Manager and in such form as the City Attorney shall reasonably require, protecting the city and all persons against liability for loss or damage for personal injury, death, and property damage occasioned by the operations of the grantee under such franchise, with minimum liability limits of $500,000 for personal injury or the death of any one person, and $1,000,000 for personal injury or the death of two more persons in any one occurrence, and $100,000 for damages to property resulting from any one occurrence.

(B) The policies required by division (A) of this section shall name the city, and its officers, boards, commissions, agents, and employees, as additional insured and shall contain a provision that a written notice of any cancellation or reduction in coverage of such policies shall be delivered to the city 20 calendar days in advance of the effective date thereof. If such insurance is provided in either case by a policy which also covers the grantee or any other entity or person than those above named, then such policy shall contain the standard cross-liability endorsement.

(C) No franchise granted under this chapter shall be effective unless and until each of the policies of insurance as required by this section have been delivered to the city.

('66 Code, § 5-5.19) (Ord. 590-C-S, passed 9-11-84)

(A) The grantee shall indemnify and hold harmless the city, and its officers, boards, commissions, agents, and employees, against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including, but not limited to, damages to city property, damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the franchisee's cable system), costs, or liabilities (including costs or liabilities of the city with respect to its employees) of every kind and nature whatso-ever, including, but not limited to, damages for injury or death or damages to persons or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expenses arising out of or pertaining to the exercise or the enjoyment of any franchise under this chapter by the grantee or the granting thereof by the city.

(B) The grantee, at the sole risk and expense of the grantee, upon the written demand of the city made by and through the City Attorney, shall appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities against or affecting the city, or its officers, boards, commissions, agents, or employees, and arising out of or pertaining to the exercise or the enjoyment of such franchise or the granting thereof by the city.

(C) The grantee shall pay and satisfy, or shall cause to be paid and satisfied, any judgment, decree, order, directive, or demand rendered, made, or issued against the grantee or the city, or its officers, boards, commissions, agents, or employees, in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking, or other assurance required under this chapter or otherwise; provided, however, neither the grantee nor the city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding without first obtaining the written consent of the other.

(D) The provisions of this section shall not apply to any claim, demand, course of action, suit, or proceeding which is made or filed against the city by the grantee or in which negligence or wilful misconduct on the part of the city or its employees or representatives is alleged.

('66 Code, § 5-5.20) (Ord. 590-C-S, passed 9-11-84)

At all reasonable times, 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 compliance with the franchise. The grantee, at all times, shall make and keep in the city full and complete plans and records showing the exact location of all CATV system equipment installed or in use in the streets and public places in the city. The grantee shall file with the Director of Public Works, on or before the last day in March of each year, a current map or set of maps drawn to scale to be designated by the Director of Public Works, showing all CATV equipment installed in the streets and public places of the city during the previous year.

('66 Code, § 5-5.21) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) The CATV system shall be installed and maintained in accordance with the highest standards of the industry to the extent that they are economically feasible.

(B) In determining the satisfactory extent of such standards, the following shall apply:

(1) The system shall be installed using all-band equipment capable of passing the entire VHF and FM spectrum, and it shall have the further capability of converting UHF for distribution to subscribers on the VHF band.

(2) The system, as installed, shall be capable of passing standard color television signals without the introduction of noticeable effects on color fidelity and intelligence.

(3) The system and all equipment shall be designed and rated for 24 hour-per-day continuous operation.

(4) The system signal-to-noise ratio shall be not less than 46 decibels.

(5) The hum modulation of the picture signal shall be less than 5%.

(6) The system shall use components having VSWR of one and four-tenths or less.

(7) The master antenna to be installed for the CATV system shall be located at a point where the signal strength of the television stations to be received shall be not less than 500 microvolts per meter for low-band channels (2 through 6) and not less than 800 microvolts per meter for high-band channels (7 through 13) for at least 50% of the time at a receiving antenna height of 30 feet above the ground. Each CATV subscriber shall receive a minimum signal strength of 2,000 microvolts as measured at the antenna terminals of the television set. The method of measuring such standards, where necessary, will be established by the city.

(8) Throughout the term of the franchise, the grantee shall maintain and upgrade the services distributed over the CATV system and the technical performance thereof so as to keep pace, as far as it is economically and technologically feasible to do so in the reasonable opinion of the parties, with develop-ments in the state-of-the-art of CATV technology. Factors to be considered by the parties in determining economic feasibility and developments of CATV technology shall include:

(a) The remaining term of the franchise;

(b) Performance demonstrating the operational feasibility of any new service;

(c) Construction or other directly related costs;

(d) The adaptability of such service to the existing CATV facilities; and

(e) The potential marketability of the service.

('66 Code, § 5-5.22) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) The grantee shall:

(1) Render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time reasonably possible. Such interruptions insofar as is reasonably possible shall be preceded by notice given to subscribers 24 hours in advance and shall occur during periods of minimum use of the system;

(2) Limit system failures to minimum time duration by locating and correcting malfunctions promptly but, in no event, any longer than 24 hours after occurrence, if reasonably possible, irrespective of holidays or other nonbusiness hours. No charge shall be made to the subscriber for such service, unless such service is required due to acts or omissions of the subscriber;

(3) Establish procedures for receiving, acting upon, and resolving subscriber complaints to the reasonable satisfaction of the City Manager. The grantee shall furnish notice of such procedures to each subscriber at the time of the initial subscription to the system; and

(4) Maintain a written or computerized record or log listing the dates and times of customer complaints, identifying the subscriber, and describing the nature of the complaints and when and what action was taken by the grantee in response thereto. Such record shall be kept at the grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection during regular business hours without further notice or demand by the City Manager.

(B) In the event a customer complaint is not resolved to the mutual satisfaction of the customer and the grantee, either the customer or the grantee may request that the matter be presented to the City Manager for recommendations on resolving the matter.

(C) When there have been similar complaints made or where there exists other evidence which, in the judgment of the City Manager, casts doubt on the reliability or quality of cable service, the City Manager shall have the right and authority to compel the grantee to test, analyze, and report on the performance of that part of the system involved in the problem. Such test or tests shall be made, and the reports of such test or tests shall be delivered to the city no later than 14 calendar days after the City Manager formally makes such a request to the grantee. Such report shall include the following information: the nature of the complaint which precipitated the special tests; what system component was tested; and the equipment used and procedures employed if complaints were resolved. Any other information pertinent to the special test shall also be recorded.

(D) The city's right under this division shall be limited to requiring tests, analyses, and reports, covering specific subjects and characteristics based on such complaints or other evidence, when and under such circumstances as the city has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard cable service.

('66 Code, § 5-5.23) (Ord. 590-C-S, passed 9-11-84) Penalty, see §§ 1-2.01 et seq.

(A) In the event its service to any subscriber is interrupted for 24 consecutive hours after notice to the grantee, except for acts of God, acts beyond the reasonable control of the grantee, and except in circumstances for which prior approval of the interruption is obtained from the City Manager, the grantee shall provide to affected subscribers a 10% rebate of the monthly fees for those services which have been interrupted.

(B) In the event its service to any subscriber is interrupted due to the failure or malfunction of the CATV system for 48 or more consecutive hours after notice to the grantee, except for acts of God and vandalism, and except in circumstances for which prior approval of the interruption is obtained from the City Manager, the grantee shall provide to affected subscribers a 20% rebate of the monthly fees for each 48 hours of interrupted service for those services which have been interrupted.

(C) In the event the system fails to comply substantially with the performance standards for a full three month period, the grantee shall reduce all affected subscribers fees by 25% until all performance standards are met. The City Manager shall notify the grantee during the first month of the three month period that the system has failed to meet the performance standards.

('66 Code, § 5-5.24) (Ord. 590-C-S, passed 9-11-84)

(A) In order to serve and maintain the city's continuing regulatory jurisdiction and supervision over the operation of outstanding CATV franchises, the City Manager shall have general supervisory authority over all outstanding CATV franchises, including, without limitation, authority:

(1) To make recommendations to the Council on standards and guidelines for the governing of CATV franchises and for amendments to this chapter;

(2) To make written recommendations to the Council concerning the disposition of specific applications for the granting or renewal of CATV franchises, each such recommendation to be accompanied by a summary of the documents and other evidence considered and of the reasons for the recommendation;

(3) To make written recommendations to the Council on applications for subscriber rate adjustments according to the procedures prescribed in this chapter;

(4) To make recommendations regarding subscriber complaints which have not been resolved by otherwise prescribed procedures;

(5) To monitor the use of access channels, promoting citizen participation in the local use of available access channels;

(6) To review and audit all reports and other material required to be submitted to the city by a CATV grantee and all records and other material required to be maintained and kept available by a CATV grantee and to review a CATV grantee's operating rules and subscriber service contracts;

(7) To conduct, or have conducted, performance evaluations of the CATV system pursuant to division (D) of § 5-5.23 of this chapter; and

(8) To make appropriate recommendations to a CATV grantee and to the Council as to the grantee's performance under the franchise.

(B) The Council hereby delegates to the City Manager all necessary and proper powers to carry out his prescribed duties and responsibilities under this chapter. The City Manager shall have no powers, duties, or responsibilities with respect to the censorship of program contents, whether as to off-air broadcast carriage or locally originated programming.

(C) During the fifth and tenth years of any franchise granted under this chapter, the Council may require the franchisee to submit a report describing the franchisee's compliance with §§ 5-5.22 and 5-5.23 of this chapter and reviewing the system design and technical performance of other CATV systems with a similar number of subscribers in the city or in adjacent communities.

('66 Code, § 5-5.25) (Ord. 590-C-S, passed 9-11-84)

The CATV system shall include an emergency alert capability which shall permit the grantee, upon the direction of the appropriate emergency service commander, to override the audio, or to display a video message, on all television signals simul-taneously in the case of public emergencies. The grantee shall assist and cooperate with the city with periodic exercises of the emergency override system.

('66 Code, § 5-5.26) (Ord. 590-C-S, passed 9-11-84)

The grantee shall have the option to request the renewal of an existing franchise. Should the grantee desire to request renewal, it shall notify the city, in writing, not less than 24 months prior to the expiration of the franchise term. The city shall conduct a public hearing on the renewal after prior notice and with an opportunity for all interested parties to be heard. Should the city, for any reason, be unable to complete renewal proceedings prior to the expiration of such franchise, the grantee shall have the right to continue the operation of its CATV system until such time as the renewal proceedings are concluded.

('66 Code, § 5-5.27) (Ord. 590-C-S, passed 9-11-84)

Upon the expiration of a franchise, the city reserves to itself the authority to acquire the CATV system. Acquisition shall be at fair market value. If no agreement is reached regarding fair market value, then the matter shall be submitted to binding arbitration pursuant to provisions of state and/or federal laws.

('66 Code, § 5-5.28) (Ord. 590-C-S, passed 9-11-84)