Auburn Municipal Code § 110.063 Exceptions

The provisions of this subchapter shall not apply to lighted fixtures, other than those of the fluorescent type, to electric shavers, irons, coffee makers, waffle irons, toasters or electric motors with less than 1/10th horsepower.

(1973 Code, § 5-11.04) (Ord. 402, eff. - -)

111 CABLE COMMUNICATION FRANCHISE PROCEDURES 111.01 Intent 111.02 Definitions 111.03 Unlawful To Operate Cable System Without Franchise 111.04 Franchise To Install And Operate 111.05 Cable Television Service 111.06 Franchise Payments 111.07 Franchise Term - Duration And Termination 111.08 Applications For Initial Franchise 111.09 Bonds - Indemnification - Insurance 111.10 Acceptance Of The Franchise 111.11 Limitations Of Franchise 111.12 Rights Reserved To The City 111.13 Standards Of Operation 111.14 Permits And Construction 111.15 Miscellaneous Provisions 111.16 Extensions 111.17 Violations 111.18 Force Majeure 111.19 Mediation 111.20 State Video Service Fees For Educational And Governmental (PEG) Access 111.21 Customer Service Penalties

111.22 Procedures For Appeal Of Denial Of An Encroachment Permit

1. General findings . The City of Auburn, California (hereinafter called the "city") finds that cable systems can contribute significantly to the communications needs and interests of the city and many individuals, associations and institutions. The city further finds that the public convenience, safety, and general welfare are served through amending and restating the city's preexisting cable television enabling ordinance (Ordinance 96-9) as set forth herein. Upon the effective date of this chapter, the preexisting enabling ordinance (Ordinance 96-9) is repealed.

2. Authority . The city is authorized to grant, renew, deny, and terminate franchises for the installation, operation and maintenance of cable systems and otherwise regulate cable television within the city's boundaries in accordance with federal, state and local law.

3. Purpose . The city intends, by the adoption of this franchise, to promote the public health, safety, and general welfare by granting one or more franchises for the installation, operation and maintenance of cable systems within the city; to establish franchise procedures and standards that encourage the growth and development of cable services in the city; to promote availability of quality cable services to city residents, businesses, the city and other public institutions; and to encourage the development of and to improve local programming including public, educational, and governmental access programming.

111.02 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

ACCESS . The availability of cable system channels for use by various agencies, institutions, organizations, groups and individuals in the community, including the city and its designees to acquire, create and distribute programming not under the grantee's editorial control, except that a grantee may refuse to transmit any access programming or portions of a access program which contains obscenity, indecency, or nudity which is not protected by the First Amendment to the United States Constitution.

AFFILIATE . When used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.

BASIC SERVICE . Shall have the meaning defined under the Cable Act, and generally is the lowest priced tier of service that includes the retransmission of local broadcast television signals.

CABLE ACT . The Cable Communications Policy Act of 1984, 47 U.S.C. Section 521 et seq ., as amended by the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and any further amendments to subchapter V-A of Chapter 5, Title 47, United States Code during the term of the franchise.

CABLE SERVICES .

1. The one-way transmission to subscribers of (i) video programming, or (ii) other programming services, and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services.

CABLE SYSTEM or SYSTEM . A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves subscribers without using any public way; (c) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of Section 621 (c)) to the extent such facility is used in transmission of video programming directly to subscribers unless the extent of such use is solely to provide interactive on-demand services; (d) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934; or (e) any facilities of any electric utility used solely for operating its electric utility system.

CITY . The City of Auburn, a political subdivision of the State of California.

CITY COUNCIL or COUNCIL . The duly elected council serving Auburn, a political subdivision of the State of California.

CITY MANAGER . The City Manager of Auburn, or his or her designee.

EDUCATIONAL ACCESS . Access where schools, colleges, or universities are the primary or designated programmers or users having editorial control over their programming.

FCC . The Federal Communications Commission, or successor governmental entity thereto.

FRANCHISE . The initial authorization, or renewal thereof, issued by the city, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise which authorizes construction and operation of the cable system.

FRANCHISE AREA . The area within the corporate limits of the city as comprised at the time a franchise is granted, as depicted in a geographical area map attached to a franchise agreement, and any areas annexed by the city in the future.

GRANTEE . The person, firm or corporation granted a franchise by the Council under this chapter, and the lawful successor, transferee or assignee of said person, firm or corporation.

GROSS REVENUE . All revenue received by the grantee, in whatever form and from all sources, derived from the operation of the cable system to provide cable services within the franchise area. Gross revenues shall include all revenue for all cable services, premium and pay-per-view services, the sale of advertising time, installation, and all other revenues derived from the operation of the cable system to provide cable services within the franchise area, regardless of whether initially recorded to another entity and however characterized. Gross revenues shall include amounts collected from subscribers for franchise fees in accordance with the Court of Appeals' decision resolving the case commonly known as the Dallas or Baltimore case, In re: United Artists Cable of Baltimore, 11 FCC Rcd 18,158 (FCC 96-188, April 26, 1996); reversed by the United States Court of Appeals for the 5th Circuit sub nom City of Dallas v. FCC, 118 F. 3d 393 (5th Cir. 1997). Gross revenues shall also include any revenue received by any affiliate of the grantee where such revenue in the ordinary course of business should have been paid to or is attributable to the grantee for the operation of its cable system to provide cable services. By way of illustration, this would include revenue derived from the sale of cable system advertising time by an affiliate of the grantee. Such gross revenues, however, shall not be counted twice. Revenues of both the grantee and an affiliate that represent a transfer of funds between the grantee and the affiliate, and that would otherwise constitute gross revenues of both the grantee and the affiliate, shall be counted only once for purposes of determining gross revenues. Gross revenues shall not include sales taxes or similar taxes collected for direct pass-through to local, state or federal government, or bad debts.

GOVERNMENTAL ACCESS . Access where governmental institutions or their designees are the primary or designated programmers or users having editorial control over their programming.

PEG ACCESS . Public access, educational access, and governmental access, collectively and shall have the same meaning as provided for in the Cable Act.

PROGRAMMER . Any person responsible for video programming on the cable system, including, without, limitation, any person who produces or otherwise provides video programming material for transmission on the cable system.

PROPERTY OF GRANTEE . All property within the city owned by the grantee in the conduct of a cable television system business under the authority of a franchise pursuant to this chapter.

PUBLIC ACCESS . Access where organizations, groups, or individual members of the general public, on a nondiscriminatory not-for-profit basis, are the primary or designated programmers or users having editorial control over their programming.

PUBLIC PROPERTY . Any property owned by the city or any other governmental unit that is not otherwise defined herein as a street.

SCHOOL . Any accredited primary schools, secondary schools, colleges, and universities.

SERVICE TIER . Any category of cable services provided by grantee and for which a separate charge is made by grantee.

STANDARD DISTANCES . The distances specified in § 111.05(I)(1).

STRAND MAP . As-built maps with information as to the number and type (coaxial, fiber) of lines and the nature of any electronics removed.

STREET . The surface, the air space above the surface and the area below the surface of any public street, road, highway, freeway, bridge, lane, alley, court, sidewalk, parkway, drive, right-of-way, easement, or other public way, now or hereafter existing within the city which may properly be used for the purpose of installing, maintaining, and operating a cable system.

SUBSCRIBER . Any person who is lawfully receiving, for any purpose or reason, any cable services provided by the grantee within the franchise area by means of the cable system, whether or not a fee is paid for such service.

TRANSFER . The sale, lease, assignment, consolidation, merger, or any other disposition of the franchise, or any change in the control of the grantee or any person which owns, controls, or manages the grantee directly or through one or more intervening partnerships or corporations or other entities.

VIDEO PROGRAMMING . The process of causing television-type programs to be transmitted on the cable system.

111.03 Unlawful To Operate Cable System Without Franchise

It is unlawful to operate a cable system or provide cable services within the jurisdictional boundaries of the city without a franchise pursuant to the provisions of this chapter.

111.04 Franchise To Install And Operate

1. A nonexclusive franchise to install, construct, operate and maintain a cable system on streets within all of the city may be granted by the Council to any person, whether or not operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter.

2. 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 a franchise or because of its lawful enforcement or nonenforcement.

111.05 Cable Television Service

1. Basic service . The cable system permitted to be installed and operated hereunder shall:

   1. Be operationally capable of relaying to subscriber terminals those television broadcast signals for the carriage of which the grantee is now or hereafter authorized by the Federal Communications Commission.

   2. Distribute color television signals which it receives in color without discernible deterioration in quality to subscriber terminals.

   3. The grantee shall provide channels for public access, educational access and governmental access uses as specified in a franchise agreement. Allocation of the access channels among eligible users shall be done by the city.

2. Overall system capacity shall be at least 870 MHz as further specified in a franchise agreement. 5. The grantee shall be responsible for insuring that the cable system is designed, installed and operated in a manner that fully complies with FCC rules in Subpart K of Part 76 of Chapter I of Title 47 of the Code of Federal Regulations as revised or amended from time to time, including the performance of all tests required under the FCC rules. As provided in the FCC rules, the city shall have, upon request, the right to obtain a copy of tests and records required in accordance with such rules, and shall possess such other authority allowed by federal law, to enforce compliance with such standards.

   6. The city may inspect the grantee's cable system during construction or any rebuild, and upon completion, shall have the right to inspect the cable system and the grantee's equipment used in the maintenance of that cable system at any time. If, based on subscriber complaints or based on its own investigation, the city believes that the cable system may not be operating in compliance with this chapter, it may require the grantee to perform tests and to prepare a report to the city on the results of those tests, including a report identifying any problem found and steps taken to correct the problem.

   7. The grantee shall use equipment generally used in high-quality, reliable, modern cable systems of similar design, including but not limited to back-up power supplies capable of providing power to the cable system for 2½ hours in the event of an electrical outage. The obligation to provide backup power includes the obligation to provide a long-term outage, supplemental power plan.

3. Non-basic services-additional services permitted . The cable system permitted to be installed and operated hereunder, may also engage in the business of:

   1. Transmitting original cablecast programming not received through television broadcast signals;

   2. Transmitting television pictures, film and 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 such signals as are classified as "cable services" under the Federal Cable Act.

4. Emergency use . In accordance with and at the time required by the provisions of FCC Regulations Part 11; subpart D, Section 11.51, and as such provisions may from time to time be amended, the grantee shall install, if it has not already done so, and maintain an emergency alert system (EAS) for use in transmitting emergency act notifications (EAN) and emergency act terminations (EAT) in local and state-wide situations as may be designated to be an emergency by the local primary (LP), the state primary (SP) and/or the state emergency operations center (SEOC), as those authorities are identified and defined within FCC Reg. Section 11.18.

5. Customer protection . The city reserves the right under federal law to establish customer service standards that exceed the standards set by the FCC under Section 632 of the Cable Act or address matters not covered by such standards.

6. Privacy . The grantee shall be required to comply with the privacy provisions of Section 631 of the Cable Act.

7. Customer service standards .

   1. Cable system office hours and telephone availability .

      1. The grantee will maintain a local, toll-free or collect call telephone access line which will be available to subscribers 24 hours a day, 7 days a week.

         1. Trained representatives of the grantee will be available to respond to subscriber telephone inquiries during normal business hours, as defined herein.

         2. After normal business hours, an access line will be available to be answered by a service or an automated response system, including a phone answering system. Inquiries received after normal business hours must be responded to by a trained representative of the grantee on the next business day.

      2. Under normal operating conditions, as defined herein, telephone answer time by a customer representative, including wait time, will not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer, time will not exceed 30 seconds. These standards will be met no less than 90% of the time under normal operation conditions, measured on a quarterly basis.

      3. The grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards set forth above unless an historical record of complaints indicates a clear failure to comply with such standards, or as otherwise permissible under federal law.

      4. Under normal operating conditions, the subscriber will receive a busy signal less than 3% of the time.

      5. Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located in or near the franchise area.

   2. Installations, outages and service calls . Under normal operating conditions, each of the following four standards will be met no less than 95% of the time, as measured by the grantee on a quarterly basis.

      1. Standard installations will be performed within 7 business days after an order has been placed. "Standard" installations are those that are located up to 150 feet from the existing distribution system.

8. Excluding conditions beyond its. control, the grantee will begin working on service interruptions, as defined herein, promptly and in no event later than 24 hours after the interruption becomes known. The grantee will begin actions to correct other service problems the next business day after notification of the service problem.

   3. The grantee will provide "appointment window" alternatives for installations, service calls, and other installation activities, which will be either a specific time or, at maximum, a 4- hour block during normal business hours.

   4. The grantee shall not cancel an appointment with a subscriber or potential subscriber after the close of business on the business day prior to the scheduled appointment.

   5. Communications between the grantee and subscribers .

      1. Notifications to subscribers.

         1. The grantee shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:

            1. Products and services offered;

            2. Prices and options for services and conditions of subscription to programming and other services;

            3. Installation and service maintenance policies;

            4. Instructions on how to use the service;

            5. Channel positions of programming carried on the cable system; and

            6. Billing and complaint procedures, including the address and telephone number of the city's cable office.

         2. Subscribers will be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice will be given to subscribers a minimum of 30 days in advance of such changes if the change is within the control of the grantee. In addition, the grantee shall notify subscribers 30 days in advance of any significant changes in the other information required by the preceding paragraph.

      2. Billing.

         1. Bills will be clear, concise and understandable. Bills will be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

         2. In case, of a billing dispute, the grantee will respond to a written complaint from a subscriber within 30 days from receipt of the complaint.

      3. Refund checks will be issued promptly, but no later than either (1) the subscriber's next billing cycle following resolution of the request or 30 days, whichever is earlier, or (2) the return of the equipment supplied by the grantee if service is terminated.

      4. Credits for service will be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.

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

9. NORMAL BUSINESS HOURS means those hours during which most similar

   • businesses in the community are open to serve customers. In all cases, NORMAL BUSINESS HOURS shall include some evening hours at least 1 night per week and/or some weekend hours. The grantee will notify its subscribers and the city of its normal business hours.

   2. NORMAL OPERATING CONDITIONS means those service conditions which are within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe, or unusual weather conditions. Those conditions which are ordinarily within the control of the grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

   3. SERVICE INTERRUPTION means the loss of picture or sound on 1 or more channels.

10. Service to public buildings . The grantee shall provide without charge, one outlet with basic service and expanded basic service (formally known as Cable Programming Services under the Federal Cable Act) to any school or occupiable public building (such as city offices, fire station(s), public libraries, and public school building(s)) that are passed by its cable system and meet the requirements of subsection (F)(2) (a) of this section. The city or county or school may without charge install facilities and equipment (at city's, county's or school's cost) to transmit the signals to all rooms within a building. The outlets shall not be used to sell services in or throughout such buildings to third parties.

11. Uses permitted . Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a cable 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 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.

9. Service and line extension requirements .

   1. Residential . Grantee shall extend cable service at the normal installation rate to any residential dwelling unit within the city that is within 150 feet, for aerial installations, and 75 feet for underground installations where existing conduit and rights of way are available on reasonable terms and conditions, from the nearest distribution cable of the grantee's system (collectively the distances and conditions above are referred to hereafter as the "standard distances").

   2. Businesses . Grantee must extend cable service upon request to any business but may charge a business installation charge to recover the cost of construction including labor and materials and obtaining rights of way to the extent that the business is located beyond the standard distances, payable in advance. Businesses located within the standard distances shall be charged the grantee's normal installation rate.

   3. New residential developments . Grantee shall extend its distribution lines to serve a new residential development at no charge to subscribers if (i) the development is within the city limits existing on December 1, 2004 (the "2004 Existing City Limits") and when developed will have a minimum density of 40 dwelling units per cable plant mile as measured from the grantee's existing distribution plant ("Cable Plant Mile"); or (ii) ,the development is not within the 2004 Existing City Limits and has a minimum density of 60 dwelling units per cable plant mile and in both cases (iii) the development has made its trenches available to grantee in accordance with the requirements of § 111.14(K). After such extension of distribution lines, grantee shall charge its normal installation rate to subscribers within the development to the extent that a subscriber is within the standard distances of grantee's distribution cable within the development.

      1. Developer's main trench and service requirements . With regard to any new residential development (within or not within the 2004 Existing City Limits), the developers of such development (the "developers") at their expense shall provide and extend all utility trenching necessary to service any phase of a proposed development to the nearest active existing underground or overhead cable television system infrastructure.

      2. Easements and rights-of-way . Developers at their expense shall obtain all necessary easements and rights-of-way as necessary for the placement and maintenance of cable television system infrastructure in all underground trenches and all overhead infrastructures. This includes but is not limited to, railroad crossing thoroughfares, streams, rivers and waterways. Cable television companies shall be included in all legal descriptions and must be recorded with the Placer County Recorders Office by developers.

      3. Relocation of existing cable television facilities . If relocations of any existing cable television facilities (including any underground or overhead infrastructure) are required by the development plans, the developers shall be responsible for all cost associated with relocation of such existing cable television facilities.

10. Other areas . Grantee may elect to provide cable service to areas not meeting the above density standards. The grantee may impose additional charges in excess of its normal installation charge for any service drop in excess of the standard distances or that do not meet the density requirements of subsection (3) above. Any such additional charge shall be computed on a time and materials basis to be calculated on that portion of the installation that exceeds the standard distances, payable in advance.

    5. Rebuild . For a cable system which is rebuilt in 2004 or 2005, the grantee shall continue to serve all existing subscribers as set forth in its franchise with the city and shall offer service to certain businesses as also set forth in its franchise.

11. Maps . Grantee shall provide to the city maps showing the location of cable system facilities, including strand maps and design maps, and including maps showing the actual location of additions or extensions of lines. City agrees to maintain the confidentiality of grantee's maps and designs, provided for herein to the maximum extent permitted bylaw.

1. In consideration of the granting and exercise of a franchise to use the streets, as herein described, for the operation of a cable system, any grantee shall pay to the city, during the life of the franchise, 5% of the grantee's gross revenues. Payments of such franchise fees shall be done on a quarterly basis. Payment shall be within 30 calendar days following the end of a quarter. In the event that Federal law changes to provide that the city may charge, as a matter of right, a greater fee, or to include other services (such as cable modem service), such fee shall be automatically increased (or revenues from other services added) to the maximum so permitted by such Federal law. The city shall give the grantee 90 days written notice of any such increase in the franchise fee percentage. City agrees that all amounts paid by the grantee as franchise fees may be added to the price of cable services and collected from the grantee's customers as "external costs" as such term is used in 47 C.F.R. § 76.922. In addition, all amounts paid as franchise fees may be separately stated on subscriber's bills as permitted in 47 C.F.R. § 76.985. Any increase in franchise fees will be payable by the grantee after (a) the approval of the city, if required, to the inclusion of the increase on customers' bills, including any required approval pursuant to 47 C.F.R. § 76.933; (b) notice (if required) to the grantee's customers of the increase; and (c) the collection of the increase in franchise fees by the grantee from its subscribers.

2. 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 chapter; the cost of said audit shall be borne by grantee when the same results in increasing, by more than 10%, the grantee's annual payment to the city.

3. 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 chapter or for the performance of any other obligation hereunder.

4. Grantee shall submit to the city a late fee on franchise fee payments which are submitted after the due date, except that the grantee shall be granted a 5 day "grace" period. Any franchise fee payment submitted after the 5 day grace period shall be subject to a late fee. The late fee shall be based upon an interest rate which shall be calculated by taking the then current interest rate on one-year Treasury Bills and adding three 3% and multiplying the resulting sum times the late franchise fee payment.

5. Discounted rates. If grantee's subscribers are offered what is, in effect, a discount if they obtain both cable services and some other, non-cable goods or service, then for gross revenue computation purposes, the discount shall be applied proportionately to cable and noncable goods and services, in accordance with the following example:

6. Assume a subscriber's charge for a given month for cable services alone would be $40, for local telephone service alone would be $30, and for cable modem service alone would be $36, for a total of $100. In fact the three services are offered in effect at a combined rate of $80, where the subscriber receives what amounts to a 20% discount from the rates that would apply to the services if purchased individually. The discount for franchise fee computation purposes would be

applied pro rata so that gross revenues would be deemed to be $32 ($40 less 20% of $40). The result would be the same if the subscriber received a $20 discount for cable modem service on the condition that he or she also subscribes for cable services at standard rates.

2. Assume the same facts as the preceding example, except that the subscriber also purchases a cable service such as HBO at a fixed fee of $15 a month, which is not included in the discounted service offering the discount (the effective discount effectively does not apply to this service), for a total of $95, gross revenues would be $47 ($32 from the prior example plus $15).

3. The existence and amount of a discount shall be determined on the basis of the sum of the lowest generally available stand alone rates for a subscriber or class of subscriber for each of the goods and services which are offered at the combined rate.

4. If a grantee offers a good or service, such as a subscriber wiring repair service, which applies to both cable services and non-cable services, then for franchise fee gross revenues computation purposes the franchise fee for such good or service shall be allocated pro-rata between the cable services and non-cable services in question based on the number of services involved.

1. The franchise granted by the city under this chapter shall be for a term up to 15 years from the date of its acceptance by the grantee.

2. The city may terminate any franchise granted pursuant to the provisions of this chapter 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 chapter.

3. 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 30 days following such written demand, or such additional time as the City Manager may provide under the circumstances, the City Manager shall place his or her 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 10 days prior to the date of such Council meeting, a written notice of his or her intent to request such termination, and the time and place of the meeting, notice of which shall be published by the city at least 10 days before such meeting in a newspaper of general circulation within the city.

4. 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.

5. 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.

6. If the Council shall determine such failure, refusal or neglect by the grantee was without just cause, then the Council may, by ordinance, declare that the franchise of such grantee shall be terminated and forfeited unless there be full compliance with the franchise by the grantee within such period as the Council may fix. Any determination of termination or forfeiture shall be subject to judicial review and shall not take effect until a final order in any such appeal(s) is issued upholding the termination or forfeiture.

7. The termination and forfeiture of any franchise shall in no way effect any of the rights of the Council under the franchise or any provision of law.

8. In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the Council, expressed by resolution, or unless the expiration or termination is subject to judicial review, the grantee shall pay to, the city as reasonable compensation

and damages 100% of its gross revenue during the period.

1. Application . Each application for an initial franchise to construct, operate, or maintain any cable systems in the city shall be filed with the City Clerk and shall contain or be accompanied by the following:

   1. 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:

      1. The names, residence and business addresses of all officers, directors, and associates of the applicant.

      2. The names, residence and business addresses of all officers, persons and entities having, controlling, or being entitled to have or control 5% or more of the ownership of the applicant and the respective ownership share of each such person or entity.

      3. 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 business entity, including but not limited to cable systems owned or controlled by the applicant, its parent or subsidiary and the areas served thereby.

      4. A detailed description of all previous experience of the applicant in providing cable service and in related or similar fields.

      5. A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceding 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 the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city, or a statement from a certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in this city.

      6. A statement identifying, by place and date, any other cable television franchise awarded to the applicant, its parent or subsidiary, the status of said franchise with respect to completion thereof; the total cost of completion of such system; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof.

   3. A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:

      1. A detailed map indicating, to the satisfaction of the City Manager, 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.

2. 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 and service charges.

   3. 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 (Section 76.601

et seq .), Rules and Regulations, Federal Communications Commission, adopted February 2, 1972, and as amended.

4. A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber.

5. 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. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the Council, or by any provision of any other ordinance of the city.

5. A nonrefundable application fee in the sum of $30,000, 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 and not returnable or refundable in whole or in part.

6. Council initiating applications . The Council may, by advertisement or any other means, solicit and call for applications for cable 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 limitations respecting the soliciting, calling for, making and receiving of such applications.

7. Referral of application to City Manager . Upon receipt of any application for a franchise, the Council shall refer the same to the City Manager who shall prepare a report and make recommendations respecting such application, and cause the same to be completed and filed with the Council within 60 days.

8. Factors considered in award of franchise . In making any determination hereunder as to any application the Council may give due consideration to such factors as the quality of the service proposed, rates to subscribers, income to the city, experience, character, background, and financial responsibility 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, shall 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.

9. Notice of hearing . If the Council shall determine to further consider the application, the following may be done:

   1. The Council may decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.

   2. The Council may pass its ordinance of intention to consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise, the terms and conditions 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 and appear before the Council and be heard, and directing the City Clerk or City Manager to publish said ordinance at least once within 10 days of the passage thereof in a newspaper of general circulation within the city.

1. At the time set for any hearing, or at any adjournment thereof, the Council shall proceed to hear all written protests. Thereafter, the Council may make one of the following determinations:

   1. That such franchise be denied; or

   2. That such franchise be granted upon the terms and conditions as specified in the resolution of intention to grant the same; or

   3. That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same.

   4. If the Council shall determine that the franchise be denied, such determination shall be expressed by resolution and shall be final and conclusive.

   5. If the Council shall determine that a franchise be granted upon the terms and conditions as specified in the resolution of intention to consider granting the same, such determination shall be expressed by ordinance granting a franchise to the applicant.

   6. If the Council shall determine upon granting a franchise upon terms and conditions different from those specified in the resolution of intention to consider granting the same, then such determination shall be expressed by resolution adopted prior to granting a franchise by ordinance.

2. Application exemption . No grantee shall be required to comply with the application terms and conditions herein as a result of a franchise renewal or a franchise extension.

1. Performance bond to city . Upon being granted a franchise, and upon the filing of the acceptance required under § 111.10, the grantee shall file with the City Clerk and shall thereafter, annually, during the entire term of such franchise, maintain in full force and effect a corporate surety bond or other security in form mutually acceptable to city and grantee in the amount of $25,000. The bond or agreement shall be so conditioned that in the event that grantee shall fail to comply with any one or more of the provisions of this chapter or of such franchise, 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 franchise and thereafter until grantee shall have satisfied in full any and all obligations to the city, which arise out of or pertain to said franchise. Neither the provisions of this section, nor any bond accepted by the city pursuant hereto, 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 pursuant to this chapter or for damages either to the full amount of the bond, or otherwise.

2. Hold harmless agreement . Grantee shall indemnify and hold harmless the city, its officers, council, 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 and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by grantee's cable system, excluding PEG Access programming), costs of liabilities (including costs or liabilities of the city with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person 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 reasonable 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.

3. Defense of litigation . Grantee shall at the sole risk and expense of grantee, including any reasonable attorney's fees and costs, upon demand of the city, made by and through the city's counsel, 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, its officers, council, 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. Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against grantee, the city, its officers, council, 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 hereunder, or otherwise; provided, that neither grantee nor 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.

4. Insurance required . At all times during the term of the franchise, plus any time after the term is over during which removal of facilities or restoration is occurring, grantee shall obtain, maintain, and pay all premiums for all insurance policies described in this section, so as to protect the public and the city. Within 30 days from the effective date of the franchise, grantee shall file with city certificates of insurance evidencing coverage. Failure to obtain and maintain any insurance policy required by this section shall be deemed a material breach of this franchise and may be grounds for termination of the franchise.

   1. Commercial general liability . Commercial general liability insurance, including completed operations liability, independent contractors liability, contractual liability coverage, railroad protective coverage and coverage for property damage from perils of explosion, collapse, or damage to underground utilities, commonly known as XCU coverage, in an amount not less than $5,000,000.

   2. Environmental contamination liability . Liability insurance for sudden and accidental environmental contamination with minimum limits of $1,000,000.

   3. Comprehensive automobile liability . Automobile liability insurance in an amount not less than $1,000,000.

   4. Broadcasters' liability . Broadcasters' liability coverage for loss or damage arising out of publications or utterances in the course of or related to advertising, broadcasting, telecasting or other communication activities conducted by or on behalf of grantee in an amount not less than $1,000,000 as the combined single limit for each occurrence of bodily injury, personal injury and property damage.

   5. Workers' compensation . Workers' compensation and employer's liability insurance with statutory limits, and any applicable federal insurance of a similar nature.

   6. Umbrella policies . The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual

obligations or not be collectible for any of its coverages for any reason during the term of this franchise, or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy.

7. Additional insured/claims made basis . City shall be named as an additional insured on all policies (other than workers' compensation and employer's liability). All insurance policies shall provide that they shall not be cancelled, modified or not renewed unless the insurance carrier provides 30 days prior written notice to city. Grantee shall annually provide city with a certificate of insurance evidencing such coverage. All insurance policies (other than environmental contamination, workers' compensation and employer's liability insurance) shall be written on an occurrence basis and not on a claims- made basis.

8. No limitation of liability . No recovery by city of any sum by reason of any insurance policy required by the franchise shall be any limitation upon the liability of grantee to city or to other persons.

9. Qualified carriers . All insurance shall be effected under valid and enforceable policies insured by insurance carriers licensed to do business in the State of California or by surplus line carriers on the State Insurance Commissioner's approved list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A or better by A.M. Best Company.

10. Deductibles . The insurance policies required by this Part may be written with deductibles but may not be written with retainages. Grantee shall indemnify and save harmless city from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder.

11. Contractors . Grantee's contractors and subcontractors working in the public ways shall carry in full force and effect commercial general liability, environmental contamination liability, automobile liability and workers' compensation and employer's liability insurance which complies with all terms of this section. In the alternative, grantee, at its expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to grantee's policies).

12. Insurance primary . Grantee's insurance coverage shall be primary insurance with respect to city, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions, (collectively "them"). Any insurance or self-insurance maintained by any of them shall be in excess of grantee's insurance and shall not contribute to it (where "insurance or selfinsurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them).

13. Grantee, in addition to all other insurance requirements herein, shall maintain insurance in the type and amount as may be required in any license, permit or agreement obtained in connection with the construction, operation, or repair of its cable system and which is necessary to complete any construction, operation, or repair (such as Highway Permit, Railroad Crossing Agreement, Corps of Engineers Permit), regardless of who secured the license, permit, or agreement.

14. Once every three years after 2004 during the term of a franchise, city may review the insurance coverage's to be carried by grantee. If after providing grantee with notice and an opportunity to comment, city demonstrates that there is a valid need for higher limits of coverage, but not more than the limits of coverage set forth above adjusted for inflation, to protect the interests of city or the additional insureds, grantee shall be so notified and shall obtain, the additional limits of insurance, at its sole cost and expense. The phrase "limits of coverage set forth above adjusted for

inflation shall mean taking the minimum limits set forth, above as being stated in 2004 dollars and escalating them for inflation computed according to the Consumer Price Index for All Urban Consumers, All Items, West Urban Area 1982-1984=100, with January 2004 as the base point.

1. No franchise granted or renewed under this chapter shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk. Written acceptance shall also be, and operate as an acceptance of each and every term and condition and limitation contained in this chapter, or in such franchise, or otherwise specified as herein provided.

2. The written acceptance shall be filed by the grantee not later than 12:01 p.m. of the thirtieth day next following the effective date of the ordinance granting such franchise.

3. In default of the filing of such written acceptance as herein required, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, 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.

4. In any case, and in any instance, all rights, remedies and redress in these premises which may or shall be available to the city, shall at all times be available to the city, and shall be preserved and maintained and shall continuously 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.

5. Any franchise granted and accepted under this chapter 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 systems in the construction, operation, or maintenance of any cable systems in the city.

1. Nonexclusive. Every franchise granted under this chapter shall be nonexclusive.

2. Terms exhaustive. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein.

3. Streets and public property. 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.

4. Assignment and change in control.

   1. Any such franchise shall be a privilege to be held in personal trust by the original grantee. 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 assignment 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 30 days after any such transfer or assignment.

   2. Prior approval of the Council, expressed by resolution, shall be required when there is an actual change in control of grantee or, where ownership of 51% or more of the voting stock (or equivalent) of grantee is acquired by a person or group of persons acting in concert, none of

whom already own 51% or more of the voting stock (or equivalent), singly or collectively. Any such acquisition occurring without prior approval of the Council shall constitute a failure to comply with a provision of this chapter within the meaning of § 111.07.

3. Upon submission of an application for the above assignment or change in control (collectively "transfer"), grantee shall pay to the city a transfer fee deposit in an amount of 33% of the franchise fees paid city by grantee under § 111.06 during the prior calendar year, plus an additional 33% if in or concurrent with, the application there is a request for a material change in this chapter, the franchise, other agreements grantee has with city or grantee's agreements with the operator(s) of the city's PEG Access Channels. Upon disposition of the transfer process, the city shall provide an itemized accounting of the actual costs incurred in processing the request. Any unused funds will be returned to the original grantee. If the transfer fee deposit is not sufficient to pay the city's costs related to the transfer request, the parties will be billed and approval of the transfer will not become effective until all city costs are paid in full.

4. Time of essence. Time shall be of the essence of any such franchise granted hereunder. The maintenance of records and provision of reports in accordance with the franchise requirements is also of essence to any franchise granted hereunder. The grantee shall not be relieved of his, her, or its obligation to comply promptly with any of the provisions of this ordinance by any failure of the city to enforce prompt compliance.

5. City staff assignments. Any right or power in, or duty impressed upon, any officer, employee, department, or commission of the city shall be subject to transfer by the city to any other officer, employee, department, or commission of the city.

6. No recourse against city. 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 any franchise issued hereunder or because of its lawful enforcement or non-enforcement

7. Subject to city laws. The grantee shall be subject to all generally applicable requirements of city laws, rules, regulations, and specifications heretofore or hereafter enacted or established.

8. Non-city permits. 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.

9. Franchise in lieu of their rights. 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 the construction, operation, or maintenance of any cable system in the city; and the 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 television system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to the franchise, and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever.

10. The franchise does not confer rights other than as provided by this enabling ordinance and the franchise agreement, or as mandated by federal or state law.

11. The franchise does not authorize or prohibit the grantee to construct, operate, or repair any other type of system, or to provide service to, or install its cable system upon private property without owner consent, or to use publicly or privately owned conduits or poles without a separate agreement with the owners, except that nothing in this section limits any rights the grantee may have to use compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2).

12. All acts which the grantee is required to perform under the franchise or applicable law must be performed at the grantee's expense.

13. The provisions of the franchise and this enabling ordinance shall be construed in accordance with the laws of the State of California and federal law, including but not limited to the Cable Act and the rules of the FCC.

14. Nothing in the franchise shall be read to create an expectancy of renewal or to in any respect entitle the grantee to renewal or extension of the franchise, except as may be expressly required by applicable law.

1. 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 grantee, 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 Council's right of eminent domain.

2. There is reserved to the city every right and power which is required to be herein reserved or provided by any law and 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.

3. The City Manager may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact on behalf of the city, which may arise during the existence of any franchise granted hereunder. The City Manager, with the approval of the City Council, is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the city, 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 in writing 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 from any provision of this chapter on behalf of the city or any subscriber. Nothing herein is intended to bind the grantee with respect to any adjustment, settlement or compromise with regard to any controversy or charge arising from the operations of any grantee under this chapter without the express written consent of the grantee. Any decision of the Council may be appealed by the grantee to a court of competent jurisdiction.

1. Rates . Grantee shall annually on or before January 1 and within 30 days after a rate change file with the City Clerk a statement or schedule setting forth all rates and charges to subscribers, including installation and service.

2. Non-discrimination and equal employment opportunity .

   1. Throughout the term of this franchise, the grantee shall fully comply with the equal employment opportunity requirements of federal, state, and local law and, in particular, FCC rules and regulations relating thereto. Upon request by the city, the grantee shall furnish the city a copy of the grantee's annual statistical report filed with the FCC, along with proof of the grantee's annual certification of compliance. The grantee shall immediately notify the city in the event the grantee is at any time determined by the FCC not to be in compliance with said FCC rules or regulations.

   2. The grantee shall not, in its rates or charges, or in the availability of the services or facilities of its cable system, or in any other respect, make or grant undue preferences or advantages to any subscriber, potential subscriber, or group of subscribers or potential subscribers, nor shall the grantee subject any such persons or group of persons to any undue prejudice or any disadvantage; provided, however, the grantee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers provided that such discounts are offered on a non-discriminatory basis to similar classes or types of subscribers throughout the city. The grantee shall not deny, delay, or otherwise burden service or discriminate against subscribers or potential subscribers within its franchise area on the basis of age, race, creed, religion, color, sex, national origin, marital status, sexual orientation, physical or mental disability, or political affiliation, except for discounts for the elderly or economically disadvantaged that are applied in a uniform and consistent manner. This section shall not prohibit grantee from publishing different rates for different classes of subscribers, so long as the rates are identical for every subscriber in each class.

   3. The grantee shall not deny cable service to any group of potential subscribers because of the income of the residents of the area in which the group resides.

   4. The grantee shall ensure that its services are accessible, as far as reasonably practical, to people with disabilities. All programming received by the grantee with closed-captioning shall be retransmitted by the cable system including the closed-caption signal in accordance with the requirements of the FCC.

3. Subscriber services .

   1. Grantee shall provide a minimum of 78 channels.

   2. To the extent required by federal law, grantee shall provide to all residential subscribers the signals of qualified local commercial television stations and qualified low-power stations and qualified local non-commercial educational television stations.

4. In addition to such other service requirements as may be contained in this franchise, the grantee agrees to provide the following broad categories of service:

   1. Educational programming;

   2. News and information;

   3. Sports;

   4. General entertainment (including movies);

   5. Children/family-oriented;

   6. Arts, culture, and performing arts;

   7. Foreign language;

   8. Science/documentary;

   9. Weather information;

   10. Ethnic programming;

   11. Minority programming;

   12. National, state and local government affairs;

   13. Religious programming;

   14. PEG access programming; and

   15. Audio programming (including local radio signals).

111.14 Permits And Construction

1. Within 30 days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable systems, or associated microwave transmission facilities. In connection therewith, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting grantee's cable system operations, if requested by the city, shall also be submitted simultaneously to the City Manager.

2. Within six months after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, grantee shall commence construction and installation of the cable system.

3. 1. The construction, reconstruction, installation, operation, and maintenance of the cable system and all parts thereof shall be performed in an orderly and workmanlike manner. All such work shall be performed in accordance with the following safety, construction, and technical specifications, codes, and standards, as they may now exist or be amended or adopted hereafter, including applicable grandfathering provisions contained therein:

      1. Occupational Safety and Health Administration ("OSHA") Safety and Health Standards;

      2. National Electrical Code;

      3. National Electrical Safety Code ("NESC");

      4. Obstruction Marking and Lighting, AC 70/7460, such as Federal Aviation Administration;

      5. Construction, Marking and Lighting of Antenna Structures, FCC Rules 47 C.F.R. Part 17; 6. All federal, state, and local construction requirements, including FCC Rules and Regulations; and

      6. All building and zoning codes, and all land use restrictions and local safety codes.

4. In the even of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as those standards, if followed, would result in a cable system which could not meet requirements of federal, state, or local law; and except for minor modifications as are typical in the industry). The city may adopt reasonable additional standards after consultation with the grantee as required to ensure that work continues to be performed in an orderly and workmanlike manner, or to reflect changes in standards which may occur during the franchise term.

5. Within one year after the commencement of construction and installation of the cable system, grantee shall proceed to render cable 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 in accordance with a franchise agreement shall be provided as set forth therein.

6. 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 its control.

7. 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 such 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 hereof, 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.

7. 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, the grantee likewise shall construct, operate and maintain all of its 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.

8. The grantee at his, her, or its 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, water pipes, power lines, signal lines, 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 to cause all such properties to be located beneath the surface of the ground. The grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of grantee in place, 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. Grantee shall upon the request of any person holding a building and/or structure moving permit issued by the city, or other appropriate governmental entity, temporarily raise, lower, relay, relocate, or move its wires, cables and other facilities to accommodate the moving of buildings, towers, tanks; and structures as the grantee shall determine. The expense of such temporary raising or lowering, relaying, relocation or removal of grantee's facilities shall be paid by the person requesting the same, and the grantee shall have the authority to establish the reasonable cost of such changes and require such payment in advance. A grantee shall be given at least 48 hours advance written notice to arrange for such temporary changes and grantee shall retain the right to require advance payment prior to the temporary relocation of facilities.

9. Upon the failure, refusal, or neglect of grantee 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 30 days after receipt of such statement, pay to the city the entire amount thereof.

10. In the event that (1) the use of any part of the cable system of grantee is discontinued for any reason for a continuous period of 12 months, without prior written notice to and approval by the city; or (2) any part of such cable system has been installed in any street or other area without, complying with the requirements hereof; or (3) any franchise shall be terminated, canceled, 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 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 the City Council shall prescribe and approve, transferring and conveying the ownership of such property to the city.

11. In the case of new construction or property development (including areas of the city that are primarily commercial) where utilities are to be placed underground, the developer, utility or property owner shall give grantee reasonable written notice of not less than 45 days prior to such construction or development, and 48 hours notice, weekends and holidays excluded, of the date on which open trenches will be available for grantee's installation of conduit, pedestals, and/or vaults, and laterals to be provided at the grantee's expense. The grantee shall not be responsible for any cost of the trenches whether the trenching is performed by the developer, property owner or by a utility company. 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.

1. 1. In the event, of the termination or transfer of the franchise, the grantee shall ensure that all subscribers receive continuous, uninterrupted service regardless of circumstances. At the city's request, grantee shall cooperate with the city to operate its cable system for a temporary period (the "transition period") following termination or transfer of the franchise as necessary to maintain continuity of service to all subscribers, and, shall cooperate in the development of plans required to ensure an orderly transition from one operator to another. The transition period will be no longer than the reasonable period required to select another grantee and build a replacement cable system. During such transition period, the cable system shall be operated consistent with the terms and conditions of the franchise and this enabling ordinance and the financial benefits of operation shall accrue to the grantee.

   2. In the event grantee fails to operate the cable system for 96 hours during any 7 day period without prior approval of the city, or if the cable system is abandoned, the city may, at its option, operate the cable system or designate an operator until such time as the grantee restores service under conditions acceptable to the city or until the franchise is revoked and a permanent operator is selected. If the city is required to fulfill this obligation, for the grantee, the grantee shall reimburse the city for all costs or damages resulting from the grantee's failure to perform that are in excess of the revenues from the cable system received by the city. Additionally, the grantee will cooperate with the city to allow city employees and/or city agents free access to the grantee's facilities and premises for purposes of continuing cable system operation.

2. Grantee shall be prohibited from directly or indirectly providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purpose.

3. The chapter is subject to the city's police powers; however, nothing herein is intended to either restrict or expand the city's police power.

4. When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the City Clerk.

5. Because the grantee's failure to comply with provisions of this franchise will result in injury to the city, and because it will be difficult to estimate the extent of such injury, the city and the grantee agree to the following liquidated damages. Damage amounts may be adjusted throughout the term of the franchise by the city by resolution to take into account increases in the consumer price index. City may not

impose liquidated damages without first following the procedures of § 111.07, including § 111.07(C) requiring the provision to grantee of notice of a violation and an opportunity to cure the violation without incurring any penalty.

1. For failure to complete construction or extend service in accordance with the franchise: $250 per day for each day the violation continues;

2. For failure to comply with material requirements for PEG Access use of the cable system, or for material violations of a grantee's agreement with Auburn Area Access, Inc. or, subsequent designated PEG Access channel operator, including failure to make timely payments of PEG support moneys provided for in such agreement: $250 per day for each day the violation continues;

   3. For repeated, willful, or continuing failure to submit reports, maintain records, provide documents, maps or information: $200 per day for each day the violation continues;

   4. For violation of customer service standards: $100 per violation per day and;

   5. For failure to comply with transfer provisions: $500 per day from the date of unlawful transfer. 6. For all other material violations: $250 per day for each day the violation continues.

3. All remedies provided under the franchise or this chapter shall be cumulative, unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall it relieve the grantee of its obligations to comply with the franchise. Remedies maybe used singly or in combination; in addition, the city may exercise any rights it has under law or at equity. However, notwithstanding this or any other provision of this chapter, city shall not recover both liquidated damages and actual damages for the same violation, breach, noncompliance.

At any time prior to the expiration of a franchise granted pursuant to this ordinance, the Council may grant an extension of up to 10 years in the term thereof, provided:

1. That the grantee has satisfied and performed all conditions of the original franchise and any conditions imposed upon the renewal or extension thereof;

2. A noticed hearing shall be held as required herein for the grant of a franchise extension;

3. The grantee shall agree to perform any and all conditions that the Council shall see fit to require for the extension of the franchise.

4. Nothing herein shall modify grantee's franchise renewal rights under the Cable Act or other applicable law.

1. From and after the effective date of this chapter, it shall be unlawful for any person to construct, install or maintain within any public street in the city, or within any other public property of the city, 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 cable services through a cable system, unless, a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

2. It is 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 system within this city for the purpose of enabling himself or others to receive or use any cable service, without payment to the owner of said cable system.

3. It is unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure part of the cable system used for distribution of cable service.

4. Any violation of the provisions of this ordinance shall be punishable as provided in § 10.99.

The grantee shall not be held in default under, or in noncompliance with, the provisions of the franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, terrorism, earthquake, flood, tidal wave, unusually severe rain or snowstorm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the grantee's ability to anticipate and control, where the event was not foreseeable, and where reasonable measures by grantee could not have avoided or mitigated the effects grantee claims were caused by the event.

1. All claims, disputes, and controversies between grantee and city arising out of or in relation to the performance, interpretation, application, or enforcement of the franchise, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any court action or, to the extent provided for in a franchise, any arbitration.

2. The parties shall submit any such dispute, to an impartial, neutral mediator selected by mutual consent of the parties. In the event the parties cannot agree on the selection of a mediator, the dispute shall be referred to JAMS for selection of a mediator in accordance with its rules, or if JAMS is not available the dispute shall be referred to the presiding judge of the Placer County Superior Court for selection of a mediator. The parties shall equally bear the cost of mediation fees, subject only to the exception set forth in the next division. Either party shall have the right to object to the selection of any mediator who is not willing to execute a waiver of the provisions of Section 1119 of the California Evidence Code with respect to written offers of compromise consistent with the waiver set forth below in division (C) below.

3. If during the mediation, a party ("offering party") makes a written offer of compromise to another party which is not accepted by said party ("refusing party") and the refusing party fails to obtain a more favorable result through litigation or arbitration, the refusing party shall pay the offering party all costs and expenses, including reasonable attorney fees and the cost of the mediator and court costs, incurred from the time the offer is refused. The parties specifically agree to waive the provisions of Section 1119 of the California Evidence Code to the extent necessary to establish that such a written offer of compromise was made, to authenticate and admit a copy of such written offer and to establish that such written offer was not accepted by the other party.

111.20 State Video Service Fees For Educational And Governmental (PEG) Access

1. As of December 31, 2006, the city was imposing a fee for Public Educational and Governmental Access (PEG) channel facilities capital uses of $.78 per subscriber ($.28 defined in Ordinance 04-07 paragraph 8-h plus $.50 from Franchise Exhibit B "ACTV Agreement") as part of the city-granted cable franchise held by Starstream Communications, which franchise is owned by WaveDivision Holdings, LLC d/b/a Wave Broadband ("Wave Broadband") as of August 2008. This PEG capital support fee was in addition to the franchise fee paid to the city.

2. As required by section 5870(n) of the California Public Utilities Code, the city establishes a fee of $.78 or 1% of gross revenues, whichever is greater, to support PEG channel facilities capital support to be paid by any state video franchise holder operating in the service areas of the city. the fee shall be paid

quarterly no later than the 60 days following the quarter for which the payment is due. This PEG capital support fee is in addition to the franchise fee to be paid to the city by the state video service franchise holders.

(Ord. 08-08, eff. 11-12-2008)

111.21 Customer Service Penalties

1. Any holder of a state video service franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service, including but not limited to those standards set forth or referenced in California Public Utilities Code sections 5840(e), 5890, and 5900.

2. The city will provide any holder of a state video franchise written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least 30 calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the state video franchise holder within the remedy period shall be subject the state video franchise holder to the following penalties to be imposed by the city.

   1. For the first occurrence of a material breach, a penalty of not more than $500 for each day of each material breach, not to exceed $1,500 for each occurrence of a material breach.

   2. For a second violation of the same nature within 12 months, a penalty of $1,000 for each day of each material breach, not to exceed $3,000 for each occurrence of the material breach.

   3. For a third or further violation of the same nature within 12 months, a penalty of $2,500 for each day of each material breach, not to exceed $7,500 for each occurrence of the material breach.

3. Any notice and any penalty may be issued or imposed by the City Manager. Any notice shall be in writing and shall be transmitted by certified or registered mail, return receipt requested and postage prepaid, or by private commercial delivery or courier service for same day or next business day delivery with delivery and receipt signature required.

4. A state video service franchise holder may appeal any finding of material breach or imposition of penalties to the City Council. Any appeal must be made within 30 calendar days of receipt by the state video service franchise holder of the finding of material breach or the imposition of penalties, and must be submitted in writing to the City Clerk. Any appeal must state why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements.

5. The city and a state video service franchise holder may agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the City Manager and an authorized representative of the state video franchise holder.

6. Any penalty imposed on a state video franchise holder shall be paid to the city. As provided for in section 5900(g) of the California Public Utilities Code, the city shall submit one-half of all penalties received from a state video franchise holder to the Digital Divide Account established by section 280.5 of the California Public Utilities Code.

(Ord. 08-08, eff. 11-12-2008)

111.22 Procedures For Appeal Of Denial Of An Encroachment Permit

1. As provided for in section 5885 of the California Public Utilities Code, the city shall either approve or deny an application from a state video service franchise holder for an encroachment permit within 60 days of receiving a completed application.

2. An "encroachment permit" means any permit issued by the city relating to construction or operation of facilities relating to the provision of video service under a state video service franchise.

3. An application for an encroachment permit is considered complete when the applicant has complied with all statutory requirements, including those of California Environmental Quality Act, Public Resources Code sections 21000 et seq.

4. Any city denial of an application for an encroachment permit shall be in writing and shall state the reason for the denial.

5. An applicant may appeal the denial of an application for an encroachment permit to the City Council. Any appeal must be made within 15 calendar days of receipt by the state video service franchise holder of the denial, and must be submitted in writing to the City Clerk. Any appeal must state why the applicant believes that the denial was inconsistent with statutory requirements.

(Ord. 08-08, eff. 11-12-2008)

112 General Provisions (Sections 112.001-112.004) 112 Massage Establishment Permits (Sections 112.010-112.021) 112 Massage Establishment Operating Requirements (Sections 112.030-112.037) 112 Exemptions, Violations, And Penalties (Sections 112.045-112.050)

112 General Provisions (Sections 112.001-112.004)