Chino Hills Municipal Code Art. II Procedures for Granting, Renewing, Transferring, and Acquiring Cable…

A. It is unlawful for any person to establish, operate or carry on the business of distributing to any persons in the city any cable service, by means of a cable system, unless a franchise therefor is first obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

B. It is unlawful for any person to construct, install or maintain within any public right-of-way in the city, or within any other public property of the city, or within any privately-owned area within the city which has not yet become a public right-of-way but is designated or delineated as a proposed public right-of-way on any tentative subdivision map approved by the city, any equipment or facilities for distributing any cable services, by means of 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.

C. It is unlawful for any person to make any unauthorized connection, whether physically, electronically, acoustically, inductively or otherwise, with any part of a franchised cable system within this city for the purpose of enabling him or herself or others to receive any cable services carried on a cable system, without the permission of grantee.

D. It is unlawful for any person, without the consent of grantee, to willfully tamper with, remove or injure any cables, wires or equipment used in conjunction with a cable system.

E. This section shall be construed to require a franchise in every instance, except to the extent that such requirement is preempted by state and/or federal law.

(Ord. 140 § 1 (part), 2000)

The city may grant a franchise to any person, whether operating pursuant to an existing franchise or not, who offers to provide a cable system pursuant to the terms and provisions of this chapter. The franchise shall be subject to all ordinances and regulations of general application now in effect or subsequently enacted, including, without limitation, those concerning encroachment permits, business licensee, zoning and building.

(Ord. 140 § 1 (part), 2000)

A. The term of the franchise or any franchise renewal shall be established in the franchise agreement.

B. A franchise may be renewed by the city upon application of grantee pursuant to procedures established by the city, subject to applicable federal and state law. In the event the city does not establish such renewal procedures, the franchise renewal procedures set forth in the cable act shall apply.

A. Any franchise granted under this chapter shall be nonexclusive and for a limited duration.

B. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically presented herein.

C. The grant of a franchise, right or license to use public right-of-way for purposes of providing cable service shall not be construed as a right or license to use such public right-of-way for any other purpose. If the definition of cable services contained in this code is reduced or limited by legislative, judicial, or administrative action, then this section shall apply to any such removed or excluded service.

D. Any privilege claimed by grantee in a public right-of-way or any other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof, or easement therein, by the city or other government entity.

E. A franchise granted hereunder shall not relieve grantee of any obligation related to obtaining pole space from any department of the city, utility company, or from others maintaining poles in the public right-of-way.

F. Any right or power in, or duty imposed upon any officer, employee, department, or board of the city shall be subject to transfer by the city to any other officer, employee, department, or board of the city.

(Ord. 140 § 1 (part), 2000)

A. Subject to those restrictions, if any, that are mandated by law, neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the city from granting additional franchises.

B. There is reserved to the city every right and power which is required to be herein reserved or provided by any ordinance adopted by the city pursuant to the exercise of its police and taxing powers. Grantee, by its acceptance of any franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including without limitation those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or requirements of the city in its exercise of such rights or power; provided, however, that such ordinances and regulations shall not materially affect grantee's rights or obligations under the franchise.

C. Neither the granting of any franchise hereunder, nor any of the provisions contained herein, shall constitute a waiver or bar to the exercise of any governmental right or power of the city, now existing or hereafter granted.

D. Nothing herein shall be deemed or construed to impair or affect, in any way, or to any extent, the right of the city to acquire the property of grantee through the exercise of the right of eminent domain, at a fair and just value in accordance with applicable law. Nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city's right of eminent domain.

E. The City Council may do all things which are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Manager is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, in the best interest of the public.

F. Grantee or any member of the public may appeal a decision of the City Manager to the City Council for hearing and determination within thirty (30) days of receipt of notice of such decision. If no such appeal is made, the City Manager's such decision shall be deemed final. The City Council may accept, reject or modify the decision of the City Manager and may settle or compromise any controversy or cancel any charge arising from the operations of grantee or from any provision of this chapter. Grantee shall have sixty (60) days subsequent to the date of any such action by the City Council (including without limitation a determination of any question of fact) to file an appeal therefrom with an appropriate state or federal court or agency. All actions by the City Council under this division shall be after hearing upon ten (10) days advance written notice to grantee at its address on file with the city. Such actions may be by resolution or minute motion, except that revocation of a franchise shall be by ordinance.

(Ord. 140 § 1 (part), 2000)

A. No franchise shall be transferred, sold, hypothecated, or assigned, nor shall any of the rights or privileges therein be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except grantee, without the prior consent of the city expressed by resolution of the City Council.

B. Transfer of a franchise includes but is not limited to any transaction in which control of the franchise is transferred from one person or group of persons to another person or group of persons, or ownership or other interest in grantee or its cable system is transferred from one person or group of persons to another person or group of persons, or the rights and/or obligations held by grantee under the franchise agreement are transferred or assigned to another person or group of persons. In addition, a transfer of the franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of twenty (20) percent of: (1) the voting interest of grantee, or (2) the person exercising management authority over grantee.

C. Grantee shall promptly notify the city in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("Transfer Application"). The transfer application shall meet the requirements of Section 5.52.110 of this chapter (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, technical and other qualifications of the transferee.

D. In making a determination on whether to approve the transfer application, the City Council shall consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the incumbent cable operator is in compliance with its franchise agreement and this chapter and, if not, the candidate transferee's commitment and plan to cure such noncompliance, whether operation by the transferee would adversely affect cable services to subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law.

E. A transfer application shall not be granted unless the candidate transferee agrees in writing that it will abide by and accept all terms of this chapter, the franchise agreement, and such other agreements, regulation or restrictions that pertain to the franchise, assume the obligations and liabilities of the previous grantee under the franchise, and assume such other conditions as may be prescribed by the City Council resolution.

F. Approval by the city of a transfer application does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.

(Ord. 140 § 1 (part), 2000)

A. The franchise area shall be established by the franchise agreement.

B. Territory annexed to the city ("annexed territory") which is not within the franchise area of an existing franchise may be added to grantee's franchise pursuant to City Council resolution adopted after conducting a noticed public hearing.

C. All rights acquired under a franchise or license that is granted by a public entity other than the city ("foreign franchise") shall terminate by operation of law as to annexed territory where grantee of such franchise or license has not commenced installation of a cable system in the annexed territory before the date such annexation becomes effective. Where feasible, city shall provide notice to the holder of a foreign franchise of the city's intent to annex territory that may result in a termination under this section. Failure to provide such notice shall not affect the termination of the foreign franchise.

D. Where grantee of a foreign franchise has commenced installation of a cable system in annexed territory on or before the date such annexation becomes effective, then said grantee may continue to provide cable services to the annexed territory for the balance of the initial term of said franchise (exclusive of any renewal or extension not granted by the city), subject to the terms and conditions then in effect under said franchise, subject to timely payment to the city of all franchise fees paid in connection with such service (or such other fees imposed by the city up to the maximum permitted by law), and subject to compliance with such other terms and conditions that may be imposed by the city respecting such franchise.

(Ord. 140 § 1 (part), 2000)

A. Applications for the grant of a new franchise may be submitted by any person pursuant to the requirements of this chapter. The city may, by advertisement or any other means, solicit applications for a new franchise pursuant to a request for proposal (RFP). The terms and conditions for application made in response to an RFP, including the date by which an application must be received, shall be described therein.

B. All applications or proposals shall become the sole property of the city. Each application for a new franchise to construct, operate or maintain any cable system in the city shall be filed with the office of the City Clerk and shall be on forms prescribed by the city. The city reserves the right to waive all application formalities where the city determines that the best interests of the city would be served by such waiver. The city may, at its sole discretion, request new or additional proposals.

C. Unless waived in writing by the city, all applications for a franchise shall minimally contain the following:

1. The name, address, and telephone number of the applicant;

2. A detailed statement of the corporation or business entity organization of the applicant, including but not limited to, the following:

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

b. The names, residence and business address of all officers, persons and entities having any share of the ownership of the applicant and the respective ownership share of each person or entity,

c. The names and address of any parent or subsidiary of the 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 and subsidiary and the areas served thereby,

d. A detailed description of all previous experience of the applicant in providing cable service or other similar or related communications services,

e. A detailed and complete financial statement of the applicants certified by an independent 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 City Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent, in writing, as a recognized lending institution or funding source, to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in the city, or a statement from an independent certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed cable system in the city,

f. A detailed financial plan (pro forma) describing for each year of the franchise, the projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements and a sources and uses of funds statement. All information is to be presented in the format required by the city, and

g. A statement identifying by place and date, any other cable system franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such franchised cable system(s); 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:

a. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be serviced,

b. 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 cable service charges,

c. A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant,

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

e. 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 to, pertain to, or depend upon the application and the granting of the franchise;

4. A copy of any agreement covering the franchise area, if existing between the applicant and the local telephone and/or electric utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and

5. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the City Council in any applicable request for proposal, or by any applicable provision of law.

(Ord. 140 § 1 (part), 2000)

A. Upon receipt of an application for a franchise, the City Manager shall cause to be prepared a report, including recommendations respecting such application, which shall be filed with the City Council, each applicant, and existing grantees.

B. The city may make such investigations as it deems necessary to determine the ability of an applicant to perform under a franchise. The applicant shall timely furnish to the city all such information and data for as the city may request. Failure to provide any such information shall be reason for rejection of any application.

C. If, upon receiving the City Manager's report, the City Council decides to further consider any application, it shall pass a resolution setting a public hearing for such consideration fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or who wish to file objections may file written comments and appear before the City Council and be heard, and directing the City Clerk to publish said resolution at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the city.

D. In making any determination as to an application for a new franchise, the city may consider any and all factors which effect the interests of the community including, but not limited to, the quality of the cable service proposed, the areas to be served, the rates to be charged, the amount of franchise fee to be generated, the experience, character, background, performance history and financial responsibility of an applicant (and its management and owners), the technical performance and quality of equipment, the applicant's willingness and ability to meet construction and physical requirements (and all other limitations and requirements pertaining to the franchise), and all other matters deemed pertinent by the city for safeguarding the interests of the city and the public.

E. At the time set for the hearing, or at any adjournment thereof, the City Council shall proceed to hear all comments. Thereafter, the City Council shall make one of the following determinations:

1. That such application be denied; or

2. That a franchise be granted on specified terms and conditions.

F. Any decision of the City Council concerning award of a franchise pursuant to this chapter shall be final.

(Ord. 140 § 1 (part), 2000)

A. The city may at its sole discretion limit the number of franchises granted at any one time based upon its consideration of all appropriate criteria which shall including but not be limited to the following:

1. The capacity of the public rights-of-way to accommodate the facilities of any proposed additional cable systems;

2. The advantages and disadvantages that may result from additional cable system competition;

B. The city may require that any grantee be responsible for its own underground trenching and any associated costs if, in the city's opinion, the public rights-of-way in any area do not feasibly and reasonably accommodate the additional cables, machinery, equipment, or other items contemplated in connection with the construction, maintenance and operation of a proposed new cable system. In addition, grantee shall comply with applicable federal and state laws regarding pole attachments.

(Ord. 140 § 1 (part), 2000)

A. In connection with any application for a new franchise, a franchise renewal or a franchise transfer, each applicant shall pay a filing fee equal to the city's actual costs in processing and analyzing the application. Each applicant shall furnish with its proposal a deposit toward the filing fee in the amount of fifteen thousand dollars ($15,000.00), by certified or cashier's check made payable to the city. No application shall be considered without receipt of said deposit. The city may draw funds from the deposit as costs are incurred. If the city's actual costs in processing and analyzing the application are less than the amount of the deposit, any remaining funds from the deposit shall be refunded to the applicant within sixty (60) days after final approval or denial of their application. In the event that the deposit is less than the city's actual costs, grantee shall restore the deposit to the original amount within thirty (30) days after written notice from the city that an amount has been withdrawn.

B. Any application processing or analysis costs are exclusive of grantee's obligation to pay other costs and fees required by this chapter, the franchise agreement or the franchise, including without limitation construction inspection fees, permit fees, and franchise fees.

(Ord. 140 § 1 (part), 2000)

A. As compensation for any franchise granted, and in consideration of permission to use the public right-of-way in the operation of its cable system, and because the city will incur costs (other than application fees) in regulating and administering the franchise, grantee shall pay to the city a franchise fee in the amount equal to five percent of grantee's gross revenues, or such other amount as the City Council may set by resolution.

B. The franchise fee assessed shall be paid quarterly, to be received by the City Treasurer not later than forty-five (45) days after the close of each quarter of grantee's fiscal year.

C. On a quarterly basis, grantee shall provide the city a complete and accurate statement verified by a financial officer of grantee indicating gross revenues for said month, listing every revenue source, and depicting gross revenue computations.

D. On an annual basis, grantee shall, if requested by the city in accordance with Section 5.52.710, file a complete and accurate statement certified by grantee's chief financial officer, indicating all gross revenues for said year, listing every revenue source, and depicting gross revenue computations. If the city has any concerns or issues relating to contents of said report, the city shall have sixty (60) days to notify grantee and request additional information. Grantee shall have sixty (60) days to provide additional input and data to resolve any concerns or issues to the city's satisfaction. Thereafter, the city may, at its sole discretion, request that said statement be certified by an independent certified public accountant, at grantee's sole cost; provided, however, that any such request shall be made within sixty (60) days after grantee's response is received.

E. At any time during the term of a franchise, the city shall have the right to conduct, or require grantee to obtain, an independent audit by certified public accountants of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall cooperate with any such audit making readily available any and all information requested by the city relating to the audit. Grantee shall pay all costs of said audits, including all reasonable costs incurred by the city for any technical assistance deemed necessary by the city for obtaining independent verification of technical compliance with all franchise standards and this code. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this code and any franchise agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to. This right shall be in addition to city's right to conduct any other audit.

F. In the event that any franchise fee payment is not made on or before the applicable dates heretofore specified, interest shall be charged monthly at a monthly rate of one and one-half percent. In addition, if any franchise fee is not paid in full within fifteen (15) days after receipt of notice from the city as to the delinquency of such payment, a late fee in amount of five percent of the delinquent amount shall be assessed.

G. In the event grantee claims to have overpaid by more than five percent the amount of franchise fee actually due during any given quarter, it shall file an application with the city within one year after said payment was made. The failure to timely and properly make such claim as required herein shall constitute a waiver by grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodation. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the city to verify grantee's claim. Upon request by the city, grantee shall provide any further information that is deemed by the city to be relevant to said claim. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final.

(Ord. 140 § 1 (part), 2000)

A. In addition to all other rights and powers retained by the city under this chapter or otherwise, the city reserves the right to terminate any franchise and all rights and privileges of grantee, or assess damages or penalties against grantee, in the event of any material breach of its terms and conditions. A material breach by grantee shall include, but not be limited to the following:

1. Violation of any material provision of this chapter, the franchise agreement or any material rule, order, regulation or directive issued in connection with the franchise;

2. Evasion of any material provision of this chapter or the franchise agreement, or the practice of fraud or deceit upon the city, its subscribers or customers;

3. Material misrepresentation of fact in an application for a new franchise, renewal or transfer of a franchise, whether by act or omission;

4. Failure to pay any franchise fee when said payment is due;

5. Failure to restore cable service after ninety-six (96) consecutive hours of interrupted cable service, except in the event that the city approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption;

6. Failure to provide at least eighty (80) percent of subscribed cable services over all or a substantial portion of the cable system for a period of five days;

7. Failure to substantially meet customer service standards established in the franchise over a three-month period of time;

8. Failure to initiate or complete scheduled system construction or reconstruction within the time set forth in the franchise, unless the City Council expressly approves the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control;

9. Failure to provide or maintain in full force and effect any of the liability and indemnification coverage, letter of credit or bonds required by the franchise;

10. Violation of orders or rulings of any regulatory body having jurisdiction over grantee relative to the franchise;

11. Failure to provide, upon written request, data, documents, reports or information; and

12. Failure to pay debts and obligations as they mature in accordance with normal business practices; assignment of grantee or its assets for the benefit of its creditors; dissolution, liquidation or ceasing to conduct business; application by grantee for (or consent to) the appointment of a receiver, trustee, liquidator; or the sale of all or substantially all of grantee's assets.

(Ord. 140 § 1 (part), 2000)

A. Prior to imposing any sanction or penalty upon grantee, including termination of the franchise, the City Council, the City Manager, or their designee, shall demand in writing that grantee cure said breach within a specified period, which period shall not be less than thirty (30) days following notification. Only fifteen (15) days notice shall be required in the case of failure to pay moneys due. In addition, the city may, in an emergency, prescribe a notice less than thirty (30) days consistent with the nature of the emergency.

B. Should grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by grantee, then the city may, in its sole discretion, elect to either place the issue of termination or other penalty before the City Council or refer said issue to an appropriate hearing officer for his/her determination.

(Ord. 140 § 1 (part), 2000)

A. The City Council may hold a public meeting to determine whether grantee materially breached the franchise and the appropriate penalty to be imposed, if any, as a result of such breach. The city shall cause to be served upon grantee, at least ten (10) days prior to the date of such meeting, written notice of any intent to terminate the franchise and the time and place of the meeting. Grantee may appear at such meeting and present such evidence, orally or in documented form, that it deems relevant and appropriate to the Council's deliberations. Based on the evidence presented at the meeting, the City Council shall determine in its discretion whether or not a material breach occurred and whether to terminate the franchise or take other appropriate action.

B. Should the City Council find that there has been a material breach of the franchise, but that termination of the franchise is inappropriate, then the Council may asses and levy monetary penalties against grantee. This penalty provision is separate and apart from the city's right to enforce the provisions of the construction and performance bonds and liquidated damages.

C. The city shall cause grantee to be served with written notice of any action taken by the City Council following such public hearing. The decision of the City Council as to such matters shall be final.

D. Nothing herein is intended to limit the City Council's right to make other determinations which are reasonably related to the franchise, or to seek any other appropriate relief to which the city may be entitled, at law or equity, as a result of any breach by grantee of its obligations under the franchise.

(Ord. 140 § 1 (part), 2000)

A. The City Manager may, at his or her sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the franchise or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance or termination. Such hearing proceedings shall be initiated by the City Manager by written notice to grantee.

B. The Hearing Officer shall be a retired California Superior Court Judge, retired Appellate Court Judge, retired Federal Court Judge, or other qualified, experienced, and reasonably impartial officer, and shall be selected by the City Manager at his or her sole discretion.

C. The hearing officer shall commence a hearing within ninety (90) days of his or her selection unless the parties and the hearing officer otherwise agree in writing.

D. Any party to the hearing may issue to the other party a request for production of documents, and/or a total of not more than twenty-five (25) written interrogatories, and shall be provided with an appropriate response thereto, in the manner and form prescribed by California Code of Civil Procedure Sections 2030 and 2031. Any dispute that is not resolved after a good faith attempt to "meet and confer" shall be submitted to the hearing officer for resolution, and the hearing officer's determinations as to such matter (which may include imposition of appropriate sanctions) shall be final. Neither party shall be required to make any other form of discovery available to the other party.

E. The hearing officer shall be vested with quasi-judicial authority, and shall be empowered to (1) order grantee to undertake remedial action to cure any breach of its obligations under its franchise, (2) assess liquidated damages and/or levy a penalty upon grantee in accordance with the terms of this chapter and the franchise agreement, (3) determine that grantee has not violated any of its obligations under its franchise and/or (4) terminate the franchise. The hearing officer shall enter conclusions of law and findings of fact which must be supported by a preponderance of the evidence.

F. Except as may be apportioned by the hearing officer in his or her discretion, each party shall bear one-half of the fees and expenses of the hearing officer, together with any other expenses of the hearing proceedings incurred or approved by the hearing officer. Each party shall bear its own witness and attorneys' fees or other expenses.

G. Failure of grantee to fully and promptly comply with an order of a hearing officer shall be deemed a material breach of the franchise.

H. The decision of the hearing officer shall be final and subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.

(Ord. 140 § 1 (part), 2000)

In the event grantee's performance of any of the terms, conditions or obligations of the franchise is prevented by any cause beyond grantee's reasonable control, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified the city in writing within thirty (30) days of its discovery of the occurrence of such an event. In such an instance, grantee shall continue to use its best efforts to perform its obligations, cure any breach and offer appropriate substitute performance where applicable. For the purpose of this section, causes or events not within the control of grantee shall include, but not be limited to acts of God, strikes, sabotage, riots or civil disturbances, epidemic, labor disputes, shortage of labor, freight embargoes, shortages or unavailability of materials and supplies, explosion, natural disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of grantee to perform or failure of grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee.

(Ord. 140 § 1 (part), 2000)

The City Council or hearing officer may impose the following penalties for any breach of the franchise, including any breach of subscriber service standards:

A. Up to one thousand dollars ($1,000.00) for each day of each material breach, or such other amount provided in the franchise agreement;

B. For a second material breach of the same nature occurring within twelve (12) months where a fine or penalty was previously assessed, up to twice the maximum penalty allowed for the first such breach;

C. For a third or further material breach of the same nature occurring within twelve (12) months of the first such breach, where a fine or penalty was previously assessed, up to four times the maximum penalty allowed for the first such breach.

(Ord. 140 § 1 (part), 2000)

A. By acceptance of the franchise granted by the city, grantee understands and agrees that failure to timely comply with any performance requirements as stipulated in this chapter and the franchise agreement deemed material by the city will result in damage to the city, and that it is and will be impractical to determine the actual amount of such damage in the event of delay or nonperformance; the franchise agreement shall include provisions for liquidated damages to be paid by grantee, in amounts set forth in the franchise agreement and chargeable to any security, including without limitation a construction bond, performance bond or letter of credit, for any breach of the franchise, including but not limited to any of the grounds for material breach referred to in Section 5.52.160 of this chapter.

B. If the City Manager, following prior reasonable notice to grantee to cure any problem that might result in liquidated damages, concludes that grantee is in fact liable for liquidated damages, he or she shall cause to be issued to grantee by certified mail a Notice of Intent to Assess Liquidated Damages. The notice shall set forth the basis of the assessment, and shall inform grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council, and the City Council rules that: (1) there was no violation, (2) the violation has been corrected, or (3) an extension of time or other relief should be granted in lieu of liquidated damages.

C. If grantee desires a hearing before the City Council, then grantee shall send a written Notice of Appeal by certified mail to the City Manager within ten (10) days of the date on which the city sent the Notice of Intention to Assess Liquidated Damages. The hearing on grantee's appeal shall be within thirty (30) days of the date on which the city mailed the Notice of Intention to Assess Liquidated Damages. After the hearing, if the City Council sustains in whole or in part the City Manager's Assessment of Liquidated Damages, the City Manager may at any time thereafter draw upon any of the security funds provided for by this chapter and/or the franchise agreement. Unless the City Council indicates to the contrary, said liquidated damages shall be assessed beginning with the date on which the city sent the Notice of the Intention to Assess Liquidated Damages and continuing thereafter until such time as the violation ceases, as determined by the City Manager. Grantee may appeal any determination of the City Council to an appropriate forum.

(Ord. 140 § 1 (part), 2000)

The remedies provided in this chapter are cumulative and in addition to all other rights the city may have at law or equity or under the franchise, which remedies may be exercised at any time. In no event shall the amount of any bond or letter of credit be construed to limit grantee's liability for damages.

(Ord. 140 § 1 (part), 2000)

A. Subject to applicable law, in the event that a franchise is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the city, and at its sole expense, promptly remove all or any portion of its cable system. In removing its cable system, grantee shall refill, at its own expense, any excavation it made and leave all streets in as good condition as that prevailing prior to grantee's removal of its cable system without materially affecting the electrical or telephone cable, wires, or attachments. The liability, indemnity, insurance, security fund and bonds required under the franchise shall continue in full force and effect until such removal is accepted as complete by the city.

B. Subject to applicable law, in the event that a franchise is not renewed and the city acquires ownership of a cable system or effects a transfer of ownership of a cable system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern, but with no value allocated to the franchise itself. If a franchise is revoked for cause and the city acquires ownership of the cable system or effects a transfer of ownership of the cable system to another person, any such acquisition or transfer shall be at an equitable price. The value of a cable system (fair market value or equitable price) shall be determined by an appraisal committee consisting of three disinterested appraisers. The city and grantee shall each select at their individual discretion one appraiser, and the two selected appraisers shall agree upon and appoint a third appraiser.

C. If a grantee's plant, or a portion thereof, is deactivated for a continuous period of thirty (30) days, (except for reasons beyond the grantee's control), and without prior written notice to and approval by city, then the grantee must, at city's option and demand, and at the sole expense of the grantee, promptly remove all of the grantee's property from any streets or other public rights-of-way. The grantee must promptly restore the streets or other public areas from which its property, including distribution facilities, has been removed to the condition existing prior to the grantee's use thereof.

D. City may, upon written application by a grantee, approve the abandonment in place by a grantee of any property, under such terms and conditions as city may approve. Upon city-approved abandonment in place of any property, the grantee must cause to be executed, acknowledged, and delivered to the city such instruments as the city may prescribe and approve in order to transfer and convey ownership of that property to the city.

(Ord. 140 § 1 (part), 2000)

A. Subject to applicable provisions of the United States Bankruptcy Code, any franchise shall, at the option of the city, cease and terminate one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:

1. Such receiver or trustee shall have, within one hundred twenty (120) days after his/her election or appointment, fully complied with all terms of the franchise and remedied all breaches of the franchise or provided a plan for the remedy of such breaches which is approved in writing by the city; and,

2. Such receiver or trustee shall, within said one hundred twenty (120) days, execute an agreement duly approved by the Court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every term, provision and limitation of the franchise.

B. Upon the foreclosure or other judicial sale of all or a substantial part of a cable system, grantee shall notify the City Clerk of such fact, and such notification shall be treated as a notification that a change in ownership of grantee has taken place and the provisions of this chapter governing such changes shall apply.

(Ord. 140 § 1 (part), 2000)