Citrus Heights Municipal Code Div. 4 Terms, Conditions and Requirements of Franchises

The provisions of sections 90-182 through 90-185, below, constitute minimum standards for a cable television system installed pursuant to the provisions of this article within an imposed service area as defined by section 90-227 in subdivision II. Higher standards and additional requirements for such a cable television system may be established by the request for proposals, the application and other franchise documents applicable to each franchise.

The provisions of sections 90-182 through 90-185, below, shall not be applicable to a cable television system or that portion of such a system which is installed pursuant to the provisions of this article within a proposed service area, as defined by section 90-227 in subdivision II. Minimum standards for such a cable television system or portion thereof installed within a proposed service area may be established by the request for proposals, the application and other franchise documents applicable to each franchise.

(Ord. No. 97-12, § 2(5.50.300), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each cable television system shall, at minimum:

a. Relay to subscriber terminals those broadcast signals required by the FCC;

b. Distribute in color all television signals which it receives in color;

c. Make available upon request by any subscribers receiving channels showing premium services and pay per view events, a lockout device which prevents the unauthorized viewing of such channels;

d. Make available to subscribers, upon request, an Rf switch permitting conversion from cable to antenna reception.

(Ord. No. 97-12, § 2(5.50.302), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The provisions of this section express the intention and desire of the commission. Applicants shall be authorized but not required to include within their applications cable capacities which comport with the provisions of this section. An applicant who chooses to make a cable capacity proposal at variance with the provisions of this section shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based. The cable television system installed pursuant to the initial CATV franchise should consist of not less than two cables for the subscriber network, plus a third cable for the institutional network. Each of the three cables should have a capacity of not less than 35 channels.

The cables for the subscriber network should be installed within the service area and outside thereof in such a manner as to comply with the availability of service requirements established by subdivision II. One of the cables for the subscriber network should be fully operational as services are required to be made available pursuant to the provisions of subdivision II. The second cable for the subscriber network should be installed at the same time as the other two cables, but may be initially inoperable. The second cable for the subscriber network should become operable by such date or within such time as is prescribed within the application submitted by the franchisee or resolution offering the franchise.

The cable for the institutional network should be fully operational as services are required to be made available pursuant to the provisions of subdivision II. The cable for the institutional network may be installed in all areas in which the subscriber network cables are installed. Within service areas applicable to a franchise, the cable for the institutional network should pass such public and institutions, facilities and buildings as are prescribed by the request for proposals.

(Ord. No. 97-12, § 2(5.50.304), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each cable television system shall include equipment capable of providing standby powering for headend, transportation and trunk amplifiers for a minimum of two hours. The equipment shall be so constructed as to automatically notify the cable office when it is in operation and to automatically revert to the standby mode when the AC power returns. The system shall incorporate all safeguards necessary to prevent injury to a lineman resulting from a standby generator powering a "dead" utility line.

(Ord. No. 97-12, § 2(5.50.306), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each cable television system shall include an "emergency alert capability" which will permit the county and cities, in times of emergency, to override by remote control alternatively the audio and video of all channels simultaneously.

Each cable television system shall include the capability to broadcast from the county's headquarters for civil defense, disaster and emergency services.

(Ord. No. 97-12, § 2(5.50.308), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The interconnection capability of cable television systems with other cable systems within the greater Sacramento metropolitan area and obligations of each franchisee with respect to such interconnection shall be as prescribed by the request for proposals or other franchise documents for each franchise.

(Ord. No. 97-12, § 2(5.50.310), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each application for a franchise shall include detailed plans and specifications for the cable television system which is proposed by the applicant. The system shall be constructed and installed by a franchisee in compliance with the plans and specifications contained in the application, except as modified by other franchise documents.

(Ord. No. 97-12, § 2(5.50.312), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall construct, install and maintain its cable television system in a manner consistent and in compliance with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards and detailed standards set forth in the franchise documents. Each franchisee shall provide to the cable television commission, upon request, written reports of the franchisee's annual proof of performance tests conducted pursuant to FCC standards and requirements.

a. Each franchisee shall at all times comply with the:

National Electrical Safety Code (National Bureau of Standards);

National Electrical Code (National Bureau of Fire Underwriters);

California Public Utility Commission General Orders 95, 112-d and 128;

Applicable FCC and other federal, state and local regulations; and

Codes and other ordinances of the county and cities.

b. In any event, the cable television system shall not endanger or interfere with the safety of persons or property within the Sacramento Community or other areas where the franchisee may have equipment located.

c. All working facilities, conditions, and procedures, used or occurring during construction of the cable television system shall comply with the standards of the Occupational Safety and Health Administration.

d. Construction, installation and maintenance of the cable television system shall be performed in an orderly and workmanlike manner, and in close coordination with public and private utilities serving the Sacramento Community following accepted construction procedures and practices and working through existing committees and organizations.

e. All cables and wires shall be installed, where possible, parallel with electric and telephone lines, and multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering consideration.

f. Any antenna structure used in the cable television system shall comply with construction, marking, and lighting of antennae structures, required by the United States Department of Transportation.

g. Rf leakage shall be checked at reception locations for emergency radio services to prove no interference signal combinations are possible. Radiation shall be measured adjacent to any proposed aeronautical navigation or communication radio sites to prove no interference to air navigational reception.

(Ord. No. 97-12, § 2(5.50.314), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The purposes of this section through section 90-194, below, are to require that workers engaged in the initial construction of cable television systems and in the ongoing installation, maintenance, repair, extension, reconstruction and subsequent construction of such systems are compensated during the term of each franchise at not less than prevailing rates as defined by section 90-190, and to establish self-enforcing mechanisms to insure compliance with such requirements.

(Ord. No. 97-12, § 2(5.50.316), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The compensation for workers engaged in the initial construction of cable television systems and in the installation, maintenance, repair, extension, reconstruction and subsequent construction of such systems shall in each instance be not less than the prevailing rate for comparable service in other employment associated with initial construction, installation, maintenance, repair, extension, reconstruction and subsequent construction of cable systems and other work of a similar nature (excluding work performed by employees of municipally owned public utilities) within the counties of Los Angeles, San Diego, Orange, Alameda, San Bernardino, Santa Clara, Sacramento (other than the franchisee in connection with whom the prevailing rate is to be paid), San Francisco (city and county), Riverside, and Contra Costa, whenever such prevailing rate can be ascertained within such counties.

The provisions of sections 90-189 through 90-194 shall not be applicable to the installation of cable within subdivisions; when the work of installation is undertaken by the owner of the subdivision or a general contractor or subcontractor of the owner, and the cable is installed during the development of the subdivision at the same time as other utilities and public improvements including sewers, storm drains, electrical, gas and telephone lines, and street improvements are being installed, whether the work of installation of the cable is performed pursuant to a contract between the franchisee and the owner of the subdivision or otherwise.

(Ord. No. 97-12, § 2(5.50.318), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Whenever under section 90-192, below, a prevailing rate is required to be ascertained, the board of directors of the cable television commission shall appoint a person or firm to conduct a prevailing rate study and determine the prevailing rates. The person or firm appointed shall not be an officer, agent, employee or representative of the franchisee, the cities, the county, the commission or any labor union or organization, and the board of directors shall be the sole judge of the qualifications of the appointee. All compensation and costs payable to the appointee for services rendered shall be paid by the franchisee. The board of directors may, prior to execution of any contract by which the appointee is retained to render services, require the franchisee to deposit a sum equal to the reasonably estimated cost of compensating the appointee for the services to be rendered.

The appointee shall identify the jobs and positions with respect to which the prevailing rate determination will be applicable. The franchisee shall provide all data and information requested by the appointee including, but not limited to, data relating to job titles, job descriptions, work functions, and rates of compensation, and shall, upon request, admit the appointee to the inspection of records and work areas as necessary to allow the appointee to make such personal examination as the appointee desires. The appointee shall conduct a survey of rates of compensation in connection with the initial construction, installation, maintenance, repair, extension, reconstruction and subsequent construction associated with cable systems and other work of a similar nature (excluding work performed by employees of municipally owned public utilities) within the counties identified by section 90-190, above.

Not later than 90 calendar days following the date of the contract by which the appointee is retained, the appointee shall arrive at prevailing rate determinations based upon the survey and the appointee's analysis, without hearings, and shall prepare and file with the clerk of the board of directors of the commission and with the franchisee a written report which contains the following information:

a. The methodology utilized in conducting the survey;

b. The methodology utilized in arriving at prevailing rate determinations;

c. The types of compensation, in addition to salary, considered in arriving at the prevailing rate determinations;

d. With respect to prevailing rate determinations in connection with initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system to be performed by the franchisee through independent contracts, a list of all crafts and other jobs associated therewith, together with the determined prevailing rates therefor;

e. With respect to prevailing rate determinations in connection with initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system to be performed by the franchisee through its own personnel, the following:

(1) The job titles of the franchisee with respect to which a prevailing rate could not be ascertained within the counties, and the reasons why;

(2) The prevailing rate for each job title of the franchisee for which a prevailing rate could be ascertained within the counties;

(3) A list of those job titles of the franchisee with respect to which compensation paid by the franchisee equals or exceeds the determined prevailing rate; and

(4) A list of those job titles of the franchisee, if any, with respect to which compensation paid by the franchisee is lower than the determined prevailing rate, together with the amount of difference or differences between the determined prevailing rate and the actual compensation paid for each job title.

All investigations, analyses and surveys undertaken by an appointee shall be performed independently, and the appointee shall not receive or consider any opinions, argument, claims, suggestions, or other persuasion concerning such matters or the prevailing rate determination from the franchise, interested workers, or labor unions or organizations. All compensation data received by an appointee from the franchisee and others shall be held by the appointee in strict confidence, and shall not be subject to disclosure to either the franchisee, the commission, the cities, the county, interested workers, any labor union or organization, or any member of the public.

Any and all determinations made by an appointee, whether or not appearing in the written report, and including, but not limited to, all decisions concerning comparability of services or the absence of comparability, decisions relating to whether a prevailing rate can be ascertained, and decisions concerning the amounts of prevailing rates, shall be final, conclusive, and not subject to judicial review as to the franchisee, the cities, the county, the commission, interested workers, labor unions or organizations or any other interested party; provided that the function performed by the appointee and determinations made shall not be deemed to constitute an arbitration, nor shall the appointee be deemed to be an arbitrator, within the meaning of the provisions of this article. The determinations by the appointee shall be judicially enforceable in the manner prescribed by section 90-194, below.

(Ord. No. 97-12, § 2(5.50.320), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A report pertaining to prevailing rates respecting initial construction of the cable television system under the initial CATV franchise shall be filed by an appointee with the clerk and the franchisee not later than April 15, 1984. Notwithstanding the provisions of section 90-191, above, the appointee may be appointed and retained by the governing body of the county, and the governing body shall be vested with the same rights, powers and duties connected with the selection, appointment and retention of the appointee as are otherwise vested in the board of directors of the cable television commission, including the right to compensation for the cost of the appointee's services.

Not later than March 1 in each year thereafter during the term of a franchise, the board of directors of the commission shall select, appoint, and retain an appointee whose responsibility it shall be to analyze, investigate and survey rates of compensation and make prevailing rate determinations in connection with workers engaged in initial construction, installation, maintenance, repair, extension, reconstruction, and subsequent construction of cable television systems, whether such workers are employed by the franchisee or general contractors or subcontracts or other contractors engaged by the franchisee to perform such functions.

(Ord. No. 97-12, § 2(5.50.322), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

With respect to each contract issued by a franchisee for work involving the initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of the cable television system, the franchisee shall include within the contract prevailing rate data from the latest report filed by an appointee for all workers performing services in connection with such initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction and require that such workers be compensated in accordance with such data, and in accordance with prevailing rate determinations contained in any subsequent report filed during the term of the contract from and after the date of filing of such report. Any call for bids with respect to such a contract, shall contain notice of such requirements. Any such contract shall also include a provision making the contractor and any subcontractor under him liable for the difference between actual compensation paid to the workers and the determined prevailing rates.

Each franchisee shall, from and after the date of filing of each report containing prevailing rate determinations by an appointee, increase the compensation of any of its workers who engage in initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of the cable television system by an amount necessary to provide compensation which equals the prevailing rate for the job title shown in the report.

(Ord. No. 97-12, § 2(5.50.324), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Any worker who has rendered services in connection with the initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system and any labor union which represents members who perform services of the same general type as that performed by such workers, shall be vested with standing to maintain an action for the recovery of the difference between compensation actually paid for services rendered and prevailing rates stated in a report filed by an appointee. The franchisee, contractor and subcontractor, if any, shall be jointly and severally liable for any such damages.

Any employee of a franchisee who, subsequent to the filing with the franchisee of a written report by an appointee determining a prevailing rate for that employee, has been compensated by the franchisee in an amount or amounts less than such prevailing rate, and any labor union which represents members performing services of the same general type as such an employee, shall be vested with standing to maintain an action against the franchisee for the recovery of any such difference between amounts of compensation actually paid by the franchisee and the determined prevailing rate.

(Ord. No. 97-12, § 2(5.50.326), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The purpose of this section through section 90-199, below, is to permit applicants for the initial CATV franchise to propose plans and resources for community use programming in order to permit the community to design, produce and present programming of local interest and to promote the educational, recreational and character building opportunities of the viewing public.

An applicant who chooses not to make such a proposal shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of the initial CATV franchise will be based.

(Ord. No. 97-12, § 2(5.50.332), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Applicants for the initial CATV franchise shall be authorized, alternatively, to propose in their applications: (i) no community use programming, by making no reference to community use programming therein; (ii) to propose community use programming in the form of and in accordance with alternative no. 1, as described by section 90-197, below; or (iii) to propose community use programming in the form of and in accordance with the provisions of alternative nos. 1 and 2, as described by sections 90-197 and 90-198, below.

An applicant who proposes community use programming in its application shall include in the application the following in relation to the alternative or alternatives proposed:

a. Any standard or criteria which will be utilized in connection with the following matters:

(1) The time made available for and community use programming covering candidates for public elective offices during election campaigns;

(2) Program quality control;

(3) The legality of program content and violation of the legal rights of others;

(4) Any and all preconditions of whatever kind or nature relating to use by third parties of studio facilities or production equipment and broadcast of programming presented thereby.

b. The establishment of an independent body proposed by the applicant to administer community use programming. Such a body shall not include any officer or employee of the county, cities, or cable television commission. Nor shall the body include appointees of officers, employees, governing bodies or boards or committees of the county, cities or commission. Once formed or created, the body also shall not include any franchisee nor any appointee by a franchisee or representative of a franchisee. Any such proposal shall specifically identify the following respecting such a body:

(1) The legal form of existence;

(2) How the body will be established and who will be responsible for establishment;

(3) The size, composition and method of selection and appointment of members;

(4) The terms of members, and grounds and procedures for removal of members, if any;

(5) The specific powers of the body in relation to administration of community use programming and the means by which such powers will be exercised and enforced; and

(6) The sources and amounts of funding for support of operation of the body.

(Ord. No. 97-12, § 2(5.50.334), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The type of community use programming envisioned by this alternative constitutes a form of access opportunity to members of the general public to produce programming in separate studio facilities with minimal instructional assistance, direction and control by a franchisee, on a first-come-first-serve basis.

Applicants desiring to propose this alternative shall include the following within their applications:

a. That one or more (specifying the number) channels on the subscriber network will be made available exclusively for the type of access use programming prescribed by this section;

b. If two or more channels are to be made available for such use, a specification of the tier or tiers of service in which all such channels except the one included in basic service will be placed;

c. A description of the location, nature and extent of separate and independent studio facilities, production equipment, personnel resources and other resources to be provided in connection with such access use and community use programming, designed in such a manner as to permit operation by members of the public with minimal training and supervision;

d. A commitment to make the studio facilities, production equipment, personnel resources, other resources and channel(s) available for use, program production and broadcasts 24 hours per day, seven days per week, during the term of the franchise; the actual number of days per week and hours per day such resources are available for use, program production and broadcasts being subject to regulation from time to time by the independent authority created pursuant to subparagraph "b" in section 90-196, above;

e. A commitment to operate and provide the studio facilities, production equipment, personnel resources, other resources, channel(s) broadcast time and programming opportunity at the sole cost of the applicant without any charge whatsoever;

f. A statement of the nature and extent of all training to be offered by the applicant respecting equipment operation and training required as a condition of facility and equipment use and operation by members of the public; and

g. A commitment to allow use of the studio facilities, production equipment, personnel resources, other resources, and channel(s) for the production and broadcast of community use programming by members of the general public, including individuals and local nonprofit community organizations, on a first-come-first-serve basis during the term of the franchise.

(Ord. No. 97-12, § 2(5.50.336), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The type of community use programming contemplated by this alternative is that which is produced as a result of an affirmative effort by the franchisee to interest community organizations and groups in program ideas, development and production, is presented on the subscriber network in minimum quantities prescribed by the application, and is distributed among the various tiers of service as prescribed by the application.

a. Schedules showing the number of hours per week new (not previously broadcast or cablecast within the Sacramento Community) community use programming will be shown on the subscriber network within each tier of service proposed in the application, categorized according to minimum number of hours per week per tier of service between the hours of 6:00 a.m. and 5:00 p.m., 5:00 p.m. and 11:00 p.m., and 11:00 p.m. and 6:00 a.m., with respect to the following variables:

(1) Differences in volumes of hours of community use programming at various times during the term of the franchise, if the applicant proposes different volumes of such programming at various times during the term of the franchise;

(2) Volumes of hours of audio only community use programming, if the applicant proposes both audio only and audio and visual community use programming;

(3) The minimum number of hours respecting community use programming to be produced by the franchisee;

(4) The minimum number of hours respecting community use programming to be produced by the county or cities;

(5) The minimum numbers of hours respecting community use programming to be produced by local nonprofit community organizations; and

(6) Volumes of hours of automated community use programming, as distinguished from regular nonautomated community use programming, if such automated programming is to be shown.

b. A commitment by the applicant to provide during the entire term of the franchise all hours of programming which it has proposed in the schedules identified by subparagraph "a," above;

c. A description of the location, nature and extent of studio facilities, production equipment and personnel and other resources proposed to be made available at the sole cost of the applicant and without any charge whatsoever to produce and assist the county, cities and local nonprofit community organizations in the presentation of community use programming. The applicant shall indicate whether the studio facilities, production equipment, staffing resources and other resources will be exclusively available for community use programming to the county, cities and local nonprofit community organizations, or whether such resources will be shared with the applicant's operation or others. If shared, specific criteria shall be stated showing how time priorities will be allocated among competing interests to insure, for example, that studio space and production resources will not be made available to local organizations only at the least desirable times;

d. Specific and detailed affirmative strategies to be utilized by the applicant to solicit and encourage interest by the county, cities and local nonprofit community organizations in planning, producing and presenting community use programming to fulfill the broadcast time commitments proposed; and

e. A statement of all criteria intended to be utilized by the applicant to select, between and apportioned [sic] time among local nonprofit community organizations, the county, and the cities if the demand to produce community use programming exceeds the broadcast time proposed in the schedules identified by subparagraph "a," above.

In addition to the foregoing, and as a part of this alternative, an applicant may, but is not required to, propose in its application a specific number of channels on the subscriber network which it would set aside for the exclusive provision of community use programming on a leased access basis by individuals and local nonprofit community organizations. Such channels, if proposed, shall be subject to lease, in whole or in part, for community use programming. Programming meeting the definition of "community use programming" shall be included in fulfilling the broadcast time proposal contained in subparagraph "a," above. With respect to any such proposal, the application shall contain the following:

a. An itemization of the amounts of fees and charges, if any, to be levied by the applicant at various times during the franchise term for leased access use—the fees and charges, if any, to include all rights and privileges associated with the lease, use of studio facilities, production equipment and personnel and other resources, and broadcast time;

b. Copies of all contract documents to be utilized in connection with such leases; and

c. A statement as to whether identification of parties to whom channels will be leased and apportionment of leased time thereon will be vested within the sole discretion of the applicant, or determined in accordance with standards or criteria, and if so, a statement of all criteria, standards and requirements proposed to be utilized by the applicant in apportioning leased time should the demand therefor exceed the channel supply.

(Ord. No. 97-12, § 2(5.50.338), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee under the initial CATV franchise who has included within its application for the franchise a proposal for community use programming under the above sections shall comply during the entire term of the franchise with all such commitments contained in its application and the resolution offering the franchise, including, but not limited to, provision of the specified number of hours of community use programming pursuant to the terms and conditions stated, allocation and use of channels pursuant to the terms and conditions stated, and provision of all studio facilities, production equipment, personnel resources and other resources identified for the uses specified pursuant to the terms and conditions stated. During such term, the franchisee shall keep and maintain all such facilities, equipment and resources in good condition and repair, and replace any and all such facilities, equipment and resources as necessary to fulfill the obligation that the foregoing be provided and maintained during the entire term of the franchise. The failure to comply with the commitments and obligations identified by this paragraph shall be deemed to constitute a material violation and breach of the franchise documents.

If a franchisee has included within its application a proposal under both alternative no. 1 as described by section 90-197, above, and alternative no. 2 as described by section 90-198, above, community use programming cablecast on the access channel(s) provided under alternative no. 1, as described by section 90-197, above, shall not count for the purposes of fulfilling the broadcast commitments assumed under alternative no. 2, as described pursuant to subparagraph "a" of section 90-198, above.

(Ord. No. 97-12, § 2(5.50.340), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Applicants for a franchise shall be authorized, but not required, to include within their applications proposals for services, resources or benefits to the county or cities, including, but not limited to, free or discounted rates for subscription to services on the subscriber network or institutional network, channels or time thereon on the subscriber network or institutional network, electronic or other equipment, use of the institutional network, staffing resources or other services, resources or benefits for improvement in the delivery of governmental services or efficiency of governmental operations. A franchisee who has proposed the provision of such services, resources or benefits in its application shall comply during the entire term of the franchise with all such commitments contained in its application and the resolution offering the franchise pursuant to the terms and conditions stated therein, and the failure to provide such services, resources or benefits pursuant to the terms and conditions stated shall be deemed to constitute a material violation and breach of the franchise documents.

An applicant who chooses not to make such a proposal shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based.

(Ord. No. 97-12, § 2(5.50.342), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Applicants for a franchise may, for the purpose of promoting improvement in cable services to the community and influencing the motivation of the awarding authority to select the particular applicant as the franchisee, include within their applications the commitment of services, resources or other benefits (including, but not limited to, on-going financial support, channels or broadcast time thereon, personnel resources or facilities or equipment) to specifically identified parties other than the county or cities. The application shall contain an identification of any such commitments, including a specific description of the nature and extent of all services, resources or benefits committed, the names and addresses of all parties to whom the commitments are made, all terms and conditions of the commitments, and copies of legal instruments such as contracts, leases, memoranda of understanding or other documents by which the commitments, when accepted and the documents executed by the recipients, would be evidenced. Each such legal instrument shall contain provisions requiring that such services, resources or benefits be utilized exclusively for cultural, educational, scientific, character building, recreational or public service purposes, and prohibiting the utilization thereof for commercial purposes.

During the hearing conducted for the purpose of receiving comments from such recipients pursuant to the provisions of section 90-128 in division 3, the body or bodies conducting the hearing shall:

a. Order such changes in the legal instruments by which the commitment of such services, resources, or benefits are to be evidenced as are found necessary in order to fulfill the objects and purposes of the application submitted by the tentative selectee, without altering the nature or scope of the commitments made; or direct the proposed recipients and tentative selectees to meet separately for the purpose of developing mutually acceptable changes in the legal instruments for later review and approval by the body or bodies conducting the hearing;

b. Approve as to form all legal instruments determined to be sufficient to adequately express the commitments and terms and conditions thereof; and

c. Determine which, if any, of such legal instruments are to be incorporated into the franchise documents and made a part of the terms and conditions of the franchise, and order such incorporation by reference to the instrument in the resolution offering the franchise. Notwithstanding the terms thereof and any other provision of this ordinance, any such legal instruments which have been incorporated into the resolution offering the franchise pursuant to this section shall be subject to modification upon the written agreement of the franchisee and the commission without the consent of the recipient, the county or the cities, provided that any recipient which is adversely affected by such modification shall be entitled to terminate its contract with the franchise.

With respect to any legal instrument which is made a part of the franchise documents by reference in the resolution offering the franchise, the violation and breach by the franchisee of the obligations therein shall be deemed to constitute a material violation and breach of the franchise documents. Obligations and prohibitions assumed by the recipient under such legal instruments by either execution of the instruments or acceptance of the services, resources or benefits committed shall be enforceable either by the franchisee or the cable television commission. Violation and breach by the franchisee of any legal instrument which is not made a part of the franchise documents by reference in the resolution offering the franchise shall not be deemed to constitute a violation or breach of the franchise documents. Incorporation of such a legal instrument into the franchise documents by reference in the resolution offering the franchise shall not be deemed to obligate the county, cities or commission to fulfill any promise contained therein. Services, resources or benefits committed to specifically identified parties other than the county or cities which are not evidenced by separate legal instruments included with the application, shall not be considered in the selection process.

An applicant who chooses not to commit services, resources or benefits as authorized by this section shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such proposals in relation to other factors upon which award of a franchise will be based.

(Ord. No. 97-12, § 2(5.50.344), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Footnotes:

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Cross reference— Buildings and building regulations, ch. 18; streets, sidewalks and other public places, ch. 78.

As used in this article, the terms "dwelling units" means residential living units as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units.

(Ord. No. 97-12, § 2(5.50.400), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

As used in this article, the terms "imposed service area," with respect to the initial CATV franchise, means that geographical territory shown on that map which is marked exhibit A, and which is approved by resolution adopted by the governing bodies on the dates this article is enacted or amended. The terms "imposed service area," with respect to a franchise issued pursuant to the provisions of this article other than the initial CATV franchise, means a geographical territory defined by resolution adopted by the board of directors of the cable television commission on or before the date of approval of a request for proposals for that franchise. The boundaries of an imposed service area shall not be subject to amendment or revision during the term of a franchise to which the imposed service area pertains.

As used in this article, the terms "proposed service areas" refer to geographical units within a franchise area defined by a franchisee in its application for the franchise, which are situated outside an imposed service area established for the franchise to which the application is directed. Each applicant shall plan the proposed service area which it offers in such a manner that it can complete construction and provide such services within the entirety of each such service area within the times prescribed herein. Each application for a franchise shall contain a map or maps showing the locations of proposed [sic] proposed service areas, together with word descriptions either in the form of meets [metes] and bounds or by reference to the names of public roads and highways and parcel lines shown on county assessor's parcel maps. Each applicant shall also state the number of dwelling units within each proposed service area, and the number of such dwelling units shall be stated in the resolution offering the franchise.

As used in this article the terms "service areas" generically refer to both the imposed service area and proposed service areas, or either of such types of service areas.

(Ord. No. 97-12, § 2(5.50.402), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The franchisee under the initial CATV franchise shall install the cable television system throughout the entirety of the imposed service area in compliance with the construction standards set forth in subdivision I and the applicable standards for the system including, but not limited to, channel capacity, number of cables and other functional and technological features of the system as identified in the franchise documents, and shall make basic service and other services identified pursuant to section 90-288 in subdivision III, available within the times prescribed by section 90-231, below.

The governing bodies hereby find as follows: (i) that at the current time construction of the cable television system under the initial CATV franchise within areas outside the imposed service area, would be uneconomic, even with reduced system design and capability, reduced services and higher rates, because of the sparsity of residential development to support construction costs; (ii) that subjecting potential service of areas outside the imposed service area to the competitive selection process could result in issuance of a franchise for service in areas which is not economically justified and threatens imposition of unreasonably high service costs upon subscribers in urban areas in order to underwrite the cost of service in sparsely populated areas; and (iii) that permissive proposal of service outside the imposed service area would result in competing applications which variously propose service only within the imposed service area, and within the imposed service area and a potential number of other areas, and would make the applications extremely difficult to compare in relation to such factors as economic feasibility, cross-subsidization, propriety of system design and service levels, and rates with respect to applicants who propose basic service rate restrictions.

Therefore, applicants for the initial CATV franchise shall not be authorized to propose in their applications a proposed service area.

(Ord. No. 97-12, § 2(5.50.404), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

If an imposed service area has been adopted for a franchise other than the initial CATV franchise, the cable television system shall be installed throughout the entirety of the imposed service area in compliance with the construction standards set forth in subdivision I, and the applicable standards for the system including but not limited to, channel capacity, number of cable, and other functional and technological features of the system as identified in the franchise documents, and the franchisee shall make basic service and other services identified pursuant to section 90-288 in subdivision III, available within the times prescribed by section 90-231, below.

Applicants for a franchise other than the initial CATV franchise may be authorized to include within their applications proposed service areas. In the event such a franchise is issued to an applicant who has included proposed service areas within its application, the franchisee shall install the cable television system throughout the entirety of each proposed service area in compliance with the construction standards set forth in subdivision I and the applicable standards for the system including, but not limited to, channel capacity, number of cables and other functional and technological features of the system as identified in the franchise documents, and shall make basic service and other services identified pursuant to section 90-288 in subdivision III available within the times prescribed by section 90-231, below.

(Ord. No. 97-12, § 2(5.50.406), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The number of dwelling units within an imposed service area shall be estimated in the request for proposals issued for the franchise to which the imposed service area pertains. The identification of dwelling units in the request for proposals shall be deemed to be an estimate only, shall not constitute a basis for reliance by an applicant, and each applicant shall by means which it chooses ascertain the number of dwelling units within such imposed service areas and state same in its application.

Each applicant for a franchise shall ascertain by means which it chooses the number of dwelling units within any proposed service area which is included within its application, and state such number or numbers in the application.

Each resolution offering a franchise shall state therein the number of dwelling units within the imposed service area and any proposed service area to which it pertains.

(Ord. No. 97-12, § 2(5.50.408), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The cable television system shall be constructed and installed in accordance with the construction standards set forth in subdivision I, above, within the entirety of each service area and basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III, shall be made available to all dwelling units within each service area within the times prescribed below, regardless of density, and the standards for line extensions set forth in section 90-239, below, shall not be applicable to territories within service areas. Each franchisee shall:

a. Commence construction of the cable television system in each service area by stringing or laying cable not later than nine months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3;

b. Make basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III, below, available to at least 20 percent of all dwelling units within each service area not later than 23 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3;

c. Make basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III, below, available to at least 50 percent of all dwelling units within each service area not later than 43 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3; and

d. Make basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III, below, available to 100 percent of all dwelling units within each service area not later than 63 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3.

Except as otherwise provided by or pursuant to the franchise documents, any and all studio facilities, equipment, channels and other services, resources or benefits required of a franchisee under any provision of the franchise documents shall be completed and made available, and the provision of any community use programming which the franchisee has proposed pursuant to the provisions of sections 90-195 through 90-199 in subdivision I, shall commence not later than 37 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3. When other times are prescribed by or pursuant to the franchise documents, such services, resources, benefits and programming shall be completed, made available or commenced, as the case may be, within the times required.

The foregoing shall not be construed to prevent an applicant from proposing additional, more stringent completion levels than those set forth above.

If the franchisee has proposed more stringent construction completion levels than those set forth above and if said proposal has been incorporated in the franchise documents, the failure of the franchisee to comply with such additional construction levels shall be subject to the provisions of section 90-458 hereof. Provided, that the failure of the franchisee to comply with such additional construction levels shall not constitute a breach of its obligations under the franchise documents unless and until:

a. Franchisee has experienced two consecutive failures to comply with such additional construction levels; or

b. Franchisee has breached any of the provisions of the first two paragraphs of this section 90-231.

Further, provided, that within the first 24 months after the filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3, no failures of the franchisee to comply with such additional construction levels shall constitute a breach of the franchise documents if:

a. Such failure will not prevent the franchisee from being in substantial compliance with such additional construction levels by the end of 24 months after the filing of said certificate of acceptance; and

b. Franchisee has not breached any of the provisions of the first two paragraphs of this section 90-231.

(Ord. No. 97-12, § 2(5.50.410), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

For purposes of determining compliance with the provisions of subparagraph "d" of section 90-231, above, and of section 90-235, below, and notwithstanding any other provision of this article, a franchisee shall be excused from making basic service and such other services available to a particular dwelling unit within a service area if that dwelling unit is situated at least 500 feet from another dwelling unit and making service available to the dwelling unit would require an aerial or underground extension of cable in excess of 500 feet from an otherwise existing aerial or underground trunk cable. The sole purpose of this exception is to relieve a franchisee from providing service to an isolated dwelling unit within a service area under circumstances wherein extension of the system would constitute an excessive burden, and occupants of only one dwelling unit within the area would be deprived of services as a result of the relief.

A franchisee shall not be entitled to relief under this section unless it shows that it would not have been reasonable to have located cable in such a manner as to be within the distance limitation prescribed by this section.

(Ord. No. 97-12, § 2(5.50.412), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

a. A franchisee shall be eligible to claim an exemption under this section if, and only if, it shall have filed with its application a map or maps, certified as true and correct by an officer of the franchisee, setting forth clearly and distinctly those portions of the imposed service areas in which:

1. There exists less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. The franchisee desires to retain the right to claim a low density exemption under this section at a later date.

b. For purposes of determining compliance of the provisions of section 90-231, above, and notwithstanding any other provision of this article, a franchisee shall be excused, upon application therefor to the commission, from making basic service and other services identified pursuant to section 90-288 available within the time limits specified in section 90-231, above, to dwelling units within an area meeting both of the following criteria (hereinafter "affected area"):

1. There exists less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. The area is shown upon the map submitted pursuant to subparagraph a. hereof.

c. Notwithstanding the provisions of subparagraph b. above, a franchisee shall make available basic service and other services identified pursuant to section 90-288 to all dwelling units within an affected area not later than 75 months after the filing of the certificate of acceptance to the franchise.

d. For purposes of determining compliance with the provisions of subparagraph "d" of section 90-231, above, and of section 90-235, below, and notwithstanding the provisions of subparagraph c. above, or any other provision of this article, a franchisee shall be excused from making basic service and other services identified pursuant to section 90-288 available to dwelling units within an area meeting both of the following criteria (hereinafter "affected area"):

1. There exists less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. Each dwelling unit within said area shall have been offered and declined cable service at the low density installation cost, which shall be the lesser of:

(a) The franchisee's actual cost of installation of cable plant in the affected area multiplied by the difference between the total number of dwelling units within the affected area and the number of dwelling units evidencing a desire to contract for cable service, the product thereof divided by the total number of dwelling units within the affected area and the dividend thereof divided by the number of dwelling units within the affected area desiring to contract for cable services; or

(b) Fifty percent of the franchisee's actual cost of installation of cable plant in the affected area divided by the number of dwelling units in the affected area desiring to contract for cable services.

e. If, in response to the offer of service at the low density installation cost required by subparagraph d.2. above, one or more dwelling units within the affected area shall contract for service the franchisee shall have no exemption pursuant to subparagraph d. hereof and shall be required to comply with the provisions of subparagraph c. hereof.

f. If, pursuant to subparagraph e. above, one or more dwelling units within an affected area should contract for service and pay the low density installation cost calculated pursuant to subparagraph d.2. above, and at any time thereafter, additional dwelling units shall contract for such cable service, the low density installation cost for such subsequent contracting dwelling units shall be recalculated pursuant to the formula set forth in subparagraph d.2. above, utilizing the then-existing total number of dwelling units and the then-existing number of dwelling units contracting for cable service and a refund shall be paid thereupon to any existing subscriber who shall have paid a low density installation cost within the previous three years in an amount equal to the amount by which the low density installation cost for the new subscriber exceeds the low density installation cost charge paid by the existing subscriber.

g. For any affected area in which the franchisee claims an exemption pursuant to subparagraph d. hereof, the franchisee shall obtain and retain at all times throughout the term of the franchise evidence in a form satisfactory to the commission of the offer and declination of service by the franchisee to all of the dwelling units within the affected area upon the basis set forth in subparagraph d. above.

h. For purposes of calculation under this section, the "franchisee's actual cost of installation of cable plant in the affected area" shall:

1. Include only direct labor expended and plant and equipment physically installed within the affected area;

2. Not include any indirect allocation, assignment or amortization of other costs or equipment;

3. Not include any costs related to any degree whatsoever with the provisions of service to areas other than the affected area, including but not limited to any cable or other equipment used in any part to transmit signals to any area beyond the affected area.

i. If a franchisee should claim an exemption pursuant to subparagraph d. above, and thereafter during the term of the franchise the density of dwelling units within the affected area should equal or exceed 40 dwelling units per street mile or five dwelling units within 660 street feet, then the franchisee shall, upon the application of one or more dwelling units within said affected area, be obligated to extend the system throughout the affected area and make available basic service and other services identified pursuant to section 90-288, within six months after the first request for cable service.

j. If a franchisee shall install cable service within an affected area pursuant to the provisions of subparagraph e. above, and within five years thereafter, the density of dwelling units within the affected area shall equal or exceed 40 dwelling units per street mile or five dwelling units within 660 street feet, the franchisee shall thereupon refund all low density installation cost charges to the extent that said charges exceeded the normal installation charge in effect at the time of installation for non-low density areas of the system.

k. Notwithstanding any other provision of this section, the system design and architecture shall, at all times during the term of the franchise, be capable of serving the entire imposed service area.

(Ord. No. 97-12, § 2(5.50.413), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Commencing at the third full calendar quarter following the filing of the certificate of acceptance of a franchise pursuant to the provisions of section 90-131 in division 3, and continuing every calendar quarter thereafter until the date basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III, are made available to 100 percent of the dwelling units within each service area, the chief executive officer of the franchisee shall file with the clerk of the board of directors of the cable television commission a written declaration identifying the number and percentage of dwelling units in each service area to which such services have been made available as of the last day of the quarter for which the declaration is filed, together with such other information concerning progress by the franchisee in complying with both the 63-month construction schedule prescribed by section 90-231, above, and any more stringent construction schedule proposed by the franchisee and incorporated in the franchise documents. Said declaration shall certify franchisee's compliance or non-compliance with said construction schedules. Upon request, the franchisee shall make available to the commission such maps, documents and other data as were used by the franchisee to compile the aforesaid declaration.

Said quarterly declarations shall be filed not later than the first day of the second calendar month following the end of the quarter for which the report is filed.

(Ord. No. 97-12, § 2(5.50.414), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A final order of completion shall be issued by the board of directors of the cable television commission when: (i) construction of the cable television system has been completed within the entirety of each service area in compliance with construction standards set forth in subdivision I and the design and other requirements of the franchise documents; (ii) basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III have been made available to 100 percent of the dwelling units within each service area; (iii) any and all studio facilities, equipment, channels and other services, resources or benefits required by the franchise documents have been completed and made available; (iv) any community use programming which the franchisee has proposed pursuant to the provisions of section 90-195 through 90-199 in subdivision I shall have commenced in compliance with the franchise documents; and (v) a notice of completion has been filed by the franchisee as hereinafter provided.

For purposes of section 90-231, above, and this section, basic service and other services identified pursuant to the provisions of section 90-288 in subdivision III shall be deemed to be made available when basic service (at rates and charges in amounts proposed within the application for the franchise and as permissibly adjusted pursuant to section 90-347 in subdivision IV, or if none are included in the application, at rates and charges in amounts customarily offered by the franchisee) and other services identified pursuant to the provisions of sections 90-288 and in subdivision III (at rates and charges in amounts customarily offered by the franchisee) are offered for immediate provision to the owner or legal representative of the owner empowered to consent to use of the property of such individual dwelling units.

For the purpose of determining compliance with the provisions of subparagraph "b" and "c" of section 90-231, above, the total number of dwelling units within each service area to which the percentages apply shall be deemed to be the numbers stated in the resolution offering the franchise. For the purpose of determining compliance with the provisions of subparagraph "d" of section 90-231, above, and of determining completion under this section, the total number of dwelling units within each service area shall be deemed to be the actual number of units available for occupancy as of a date 45 calendar days in advance of the date of filing by the franchisee of the notice of completion; provided that the franchisee files the notice of completion with a good faith belief that it has in fact achieved completion as of the date of filing. Otherwise, the total number shall be determined as of the date on which the board of directors of the cable television commission makes a final decision as to whether a final order of completion will be adopted.

A franchisee who asserts completion shall file a written notice of completion with the clerk of the board of directors of the commission. The notice of completion shall state the total number of dwelling units available for occupancy within each service area 45 calendar days in advance of the filing of the notice, the total number of dwelling units to which basic service and other services have been made available within each service area as of the date of filing, and shall otherwise certify completion as defined by the first paragraph in this section. Neither the notice of completion nor the statements, assertions or certifications contained therein shall be deemed to be binding upon the board of directors of the commission.

During the period of construction of the cable television system or during the 60-day period following filing of the notice of completion, all elements and components thereof, and all equipment and studio facilities required by the franchise documents shall be subject to inspection by the cable television commission, employees or authorized agents or representatives thereof, for the purpose of determining whether the system and related facilities comply with the franchise documents. The franchisee shall authorize such inspection and provide such information and cooperation as is required in order to permit an adequate investigation to determine the existence or nonexistence of such compliance.

(Ord. No. 97-12, § 2(5.50.416), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Not later than 45 calendar days following the filing of the notice of completion, the board of directors of the cable television commission shall commence a public hearing with respect to the notice of completion. Written notice of the time, date and place of the hearing shall be mailed to the concerned franchisee. Notice of the time, date, place and purpose of the hearing shall be publicized in the manner prescribed by section 90-38 in division 1.

During the hearing, any interested person may appear and comment upon the question of whether completion has occurred and a final order of completion should be issued. The public hearing may be continued from time-to-time. While the hearing is pending, the board of directors may direct such investigations of issues or questions raised during the hearing as it deems appropriate. During the public hearing, the board of directors may, by resolution, identify specific deficiencies respecting completion and decline to adopt a final order of completion pending correction or elimination of the deficiencies so identified. If at the conclusion of the public hearing a final order of completion is not issued, the board of directors shall, by resolution, identify specific deficiencies respecting completion which must be corrected in advance of issuance of a final order of completion.

The final order of completion shall certify completion in compliance with the terms and conditions of the franchise documents. The order shall also designate the actual date when all elements defined by the first paragraph in section 90-235, above, have been completed. Issuance of such a final order of completion shall constitute a determination of completion which is conclusive for all purposes of this article.

(Ord. No. 97-12, § 2(5.50.418), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

At any time on or after 120 calendar days following the date of filing by a franchisee of the notice of completion the franchisee may, if a final order of completion has not been adopted by the board of directors of the cable television commission, make a written request for arbitration. If a final order of completion has been issued and the franchisee disagrees with the actual date of completion stated therein, the franchisee may, within 30 calendar days following mailing to the franchisee of the order, make a written request for arbitration. The request shall be in writing, shall state the grounds therefor, and shall be filed with the clerk of the board of directors of the commission.

If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive in subdivision III of division 5. The discovery provisions of the California Arbitration Act (Code of Civil Procedure § 1280 et seq.) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

a. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subparagraph "b," below; and

b. Whether a final order of completion should be issued, and if so, the actual date of completion; or if an order has been issued, the actual date of completion.

The jurisdiction of the arbitration panel shall not include questions of enforcement, breach or remedies, and any such determination concerning enforcement, breach or remedies shall be inadmissible in and without force or effect in relation to proceedings conducted under sections 90-247 through 90-250, inclusive, below.

If ordered by the arbitration panel, the board of directors of the commission shall issue a final order of completion not later than ten calendar days following receipt of the arbitration award. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Code of Civil Procedure § 1286.2.

(Ord. No. 97-12, § 2(5.50.420), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee shall, if practical, install its cable television system at the time the public improvements are being installed with respect to any territory within service areas for which an application has been filed by the time the franchise is issued to subdivide the territory into five or more lots for residential purposes. In any event, basic service and other services identified pursuant to the provisions of section 90-288 and in subdivision III, shall be made available to all lots within such territory the subdivision of which has been completed not later than 51 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 of division 3.

With respect to all territories within service areas for which application for approval of a tentative map for such subdivision is made after issuance of the franchise, the franchisee shall install its cable television system at the time the public improvements for the subdivision are being installed. Basic service and other services identified pursuant to the provisions of section 90-288 and in subdivision III, shall be made available to each lot within such subdivisions not later than the date of occupancy of each dwelling unit, or 51 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of section 90-131 in division 3, whichever occurs later.

(Ord. No. 97-12, § 2(5.50.422), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

After completion of the construction, installation and service schedule prescribed by section 90-231, above, as that schedule may be modified pursuant to the provisions of sections 90-247 through 90-250, inclusive, below, each franchisee may, within its franchise area, extend its cable television system beyond the service areas described in the franchise documents, and shall so extend its system pursuant to the following requirements:

a. The franchisee shall extend the cable television system and make basic service and other services identified pursuant to sections 90-288 and in subdivision III, available to every dwelling unit within any area reaching the minimum density of at least 40 dwelling units per street mile, or five dwelling units within 660 feet, as measured from the existing system.

b. The franchisee shall extend the cable television system and make basic service and other services identified pursuant to section 90-288 in subdivision III, available to any isolated resident outside the service area, requesting connection at the standard connection charge, if the connection to the isolated resident would require no more than a standard 150-foot aerial drop line.

With respect to requests for connection requiring an aerial drop line in excess of 150 feet, the franchisee shall extend the cable television system and make available such services to such residents at a connection charge not to exceed the actual installation costs incurred by the franchisee for the distance exceeding 150 feet plus an administrative charge of ten percent of said amount to cover overhead costs.

c. Whenever the franchisee shall have received written requests for services from at least 15 assured subscribers within 1,300 cable feet of its aerial trunk cable, it shall extend its cable television system to such subscribers solely for the usual connection and service fees for all subscribers, provided that such extension is technically and economically feasible. The 1,300 cable feet shall be measured in extension length of the franchisee's cable required for service located within the street and shall not include the length of necessary drop to the subscriber's house or premises.

When a cable television system is extended from the boundaries of an imposed service area the standards for the system so extended including, but not limited to, channel capacity, number of cables and other functional and technological features of the system shall be the same as are applicable to the system within the imposed service area, the services provided through the system so extended shall be the same as are provided within the imposed service area, and the rates and charges associated with basic service (if the franchisee has proposed restrictions upon such rates and charges pursuant to the provisions of sections 90-344 through 90-348 in subdivision IV) shall be the same as rates and charges associated with basic service within the imposed service area. When a cable television system is extended from the boundaries of a proposed service area the standards for the system so extended including, but not limited to, channel capacity, number of cables and other functional and technological features of the system shall be the same as are applicable to the system within the proposed service area from which extension is made, the services provided through the system so extended shall be the same as are provided within the proposed service area from which extension is made, and the rates and charges associated with basic service (if the franchisee has proposed restrictions upon such rates and charges pursuant to the provisions of sections 90-344 through 90-348 in subdivision IV) shall be the same as rates and charges associated with basic service within the proposed service area from which extension is made.

(Ord. No. 97-12, § 2(5.50.424), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Any applicant for a franchise may propose in its application line extension provisions which are more liberal than prescribed by section 90-239, above. In the event of any inconsistency between the line extension provisions prescribed by section 90-239, above, and the express terms in other franchise documents, the provisions in the other franchise documents shall prevail if the issuing authority has found that the provisions in the other franchise documents will better serve the needs of the public and promote the public interest.

An applicant who chooses not to make a more liberal proposal for line extension shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based.

(Ord. No. 97-12, § 2(5.50.426), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Line extensions required pursuant to sections 90-239 or 90-240, above, shall be made and completed within reasonable periods of time consistent with the relative cost and periods required for planning and construction. A franchisee shall not be deemed to be in breach of said sections until after written notice is mailed to the franchisee by the cable television commission identifying a particular extension which the commission asserts is required. If within 30 calendar days following mailing of such notice the franchisee has not filed with the clerk of the board of directors of the commission a written notice specifying the date of completion of such extension, the franchisee shall be deemed to be in breach, if it has failed to comply with the requirements of said sections, from and after the expiration of the 30-day period. A franchisee's designation of a completion date shall not be presumed to be reasonable or binding upon the commission.

(Ord. No. 97-12, § 2(5.50.428), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Notwithstanding the provisions of section 90-239, above, with respect to developing territories within a franchise area which are situated outside of a service area, a franchisee shall, at any time, be authorized to install its cable television system at the time public improvements for new subdivisions or units thereof are being installed, if either:

a. The subdivision is adjacent to the boundaries of a service area, or so situated that the density between the boundaries of the subdivision and the boundaries of a service area require extension to the subdivision under the standards set forth in subparagraphs "a" through "c" of section 90-239, above; or

b. The franchisee has been authorized by the board of directors of the cable television commission to provide cable television service within the subdivision pursuant to a plan approved by the board under the provisions of section 90-251, below.

(Ord. No. 97-12, § 2(5.50.430), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Any citizen who asserts that there has been a violation of any of the provisions of sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, may file a written complaint asserting such violation with the clerk of the board of directors of the cable television commission.

(Ord. No. 97-12, § 2(5.50.432), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Except as hereinafter provided, violation by a franchisee of any of the provisions set forth in sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-261, below, caused by circumstances beyond the control of the franchisee shall constitute good and sufficient excuse and justification for such violations precluding the franchisee from being in breach of said sections. The following are examples of acts or omissions by a franchisee or circumstances which shall be deemed not to be beyond the control of the franchisee and which shall not constitute excuses or justifications for violations:

a. The failure at any time by a franchisee or its officers, agents or employees to exercise diligence in planning, organizing, arranging for or prosecuting the work of construction and installation, or in taking any other action necessary to permit or facilitate the work of construction and installation;

b. Unanticipated cost increases or insufficiency of capital with which to take actions necessary to comply or facilitate compliance with any of the provisions of sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-251, below;

c. Considerations relating to economy or cost efficiency, as respects acts or omissions by a franchisee;

d. Delays occasioned by the failure of a franchisee to diligently apply for and prosecute any request for a required certificate, approval or consent from the FCC;

e. Delays occasioned by seasonal changes in weather or climatic conditions, such as rain (exclusive of catastrophic conditions in the nature of "acts of God"). (Rain delay shall not constitute an excuse or justification for violation except with respect to measurable precipitation occurring on more than 59 days during any period commencing July 1 and ending the next following June 30; and only if such is the proximate cause of the violation.);

f. Delays occasioned by the customary and usual time required to obtain approval to attach lines to poles owned by private or public utilities or in the attaching of cable to the poles; provided that if a franchisee submits all plans and documentation required by private or public utilities in connection with the approval to attach lines to poles, any time consumed by such approval process which is longer than 150 calendar days following the submissions of all necessary plans and documentation shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 150 calendar days;

g. Delays occasioned by the customary and usual time required to process and secure approvals under zoning ordinances of the county and cities for the location of components of the cable television system and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided that if a franchisee submits specific sites and plans for all headends, towers and transmitters to the county and requests the county to perform a single environmental analysis upon all such facilities as the lead agency, any time consumed by such environmental analysis which is longer than 120 calendar days during a period subsequent to the filing of the certificate of acceptance of the franchise pursuant to section 90-131 in division 3 shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 120 calendar days.

Notwithstanding the provisions of subdivisions "a" through "f," inclusive, above, a franchisee shall not be excused from any violation of the provisions of sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-251, below, except for causes which are beyond the control of the franchisee, and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the franchisee.

Except as otherwise provided above, violations caused exclusively by acts or omissions by the county, the cities, the cable television commission or their officers, agents or employees shall constitute an excuse and justification for failure of a franchisee to comply with the provisions of sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, precluding a determination that the franchisee is in breach. However, violations as a result of such exclusive causes shall not be deemed to excuse the franchisee from other violations, shield the franchisee from a determination that it is in breach for violations, or bar any relief for damages or otherwise as a result of such breach.

(Ord. No. 97-12, § 2(5.50.434), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Examples of circumstances beyond the control of a franchisee which excuse a franchisee from violation and being in breach of the provisions of sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, when such violations are caused thereby, include the following: strikes; acts of public enemies; orders by military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; floods; civil disturbances; explosions; and partial or entire failure of utilities.

(Ord. No. 97-12, § 2(5.50.436), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Notwithstanding the provisions of sections 90-244 or 90-245, no failure of the franchisee to comply with more stringent construction completion levels proposed by it and incorporated in the franchise documents shall constitute a breach of its obligations under said franchise documents if such failure results from reasons (including, but not limited to those disallowed or restricted by section 90-244, above) not within the reasonable control of the franchisee.

(Ord. No. 97-12, § 2(5.50.437), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

At any time and from time to time proceedings may be commenced by the board of directors of the cable television commission.

The purpose of such proceedings shall be, and the powers of the board of directors of the commission shall include, the following:

a. Determination of whether there has been a violation of any of the terms, conditions or requirements set forth in sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, or any requirements in relation thereto established pursuant to previously conducted enforcement proceedings;

b. Establishment of new or revised schedules for compliance with any of the terms, conditions or requirements set forth in sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, or any requirements in relation thereto established pursuant to previously conducted enforcement proceedings, with respect to any such terms, conditions or requirements which are determined to have been violated;

c. Determination of whether the franchisee is in breach of any of the terms, conditions or requirements set forth in sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, or of the franchise documents with respect to the violation of any such terms, conditions or requirements, and, if so, the nature and extent of any such breach; and

d. With respect to any finding of breach, determination of the remedy therefor authorized by sections 90-458 and 90-459 in subdivision III of division 5.

In connection with determinations by the board of directors that there has been a violation of any time limit prescribed by sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, the board shall be authorized to establish new time schedules and time limitations based upon the circumstances, which shall supersede those set forth in said sections. Future enforcement proceedings pursuant to this section and sections 90-248 and 90-249, below, may be undertaken in relation to time schedules and time limitations established pursuant to prior enforcement proceedings. In the event the board finds that a franchisee has breached any of the time limitations set forth in sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, or established pursuant to prior enforcement proceedings, the board shall be authorized to determine and assess the amount of liquidated damages, if any, which the franchisee shall be required to pay as a result of such breach, and whether, and if so, the extent to which the term of the franchise should be reduced with respect to any such breach. Such determinations shall, without appeal to arbitration or as affirmed by arbitration, be self-executing.

In the event the board of directors determines that the cable television system fails to comply with any of the requirements of the franchise documents or that the franchisee has failed to provide any of the facilities or services (including those relating to community use) required by the franchise documents, the board may determine the specific deficiencies and order the correction thereof. Such determinations shall, without appeal to arbitration or as affirmed by arbitration, be self-executing.

(Ord. No. 97-12, § 2(5.50.438), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The board of directors of the commission shall commence enforcement proceedings by scheduling a hearing for the purpose of inquiring into matters specified in Section 90-247, above. Written notice of the time, date and place of the hearing shall be mailed to the franchisee and to the franchisee's surety on the performance bond filed pursuant to section 90-371 in subdivision V, below not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, identify the terms, conditions or requirements alleged to be violated, and generally describe the areas or subject matter with respect to which the violation or violations are alleged to have been committed.

The hearing may be conducted either by the board of directors of the commission or, at the sole discretion of the board, by a hearing officer appointed by the board to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the State of California, who shall not be an officer or employee either of a franchisee, the commission, the county or the cities.

The cost of providing quarters for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne by the cable television commission. The cost of preparing a transcript and record of the hearing shall be borne by the franchisee. All costs incurred by the parties for attorneys' fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(Ord. No. 97-12, § 2(5.50.440), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

All witnesses testifying at the enforcement hearing shall be sworn. Witnesses shall be subject to direct and cross examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, Government Code § 11500 et seq., or any successor legislative enactment, shall not be applicable to any such hearing. The burden of proving violation by the franchisee of the franchise documents shall be borne by the party presenting the charges and the burden of proving excuses from performance shall be borne by the franchisee. The hearing may be continued from time to time.

If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact, conclusions and all determinations authorized by section 90-247, above. The recommended decision shall be filed with the clerk of the board of directors of the commission and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the board of directors may, without a hearing except as otherwise required below, either:

a. Adopt the findings of fact, conclusions and determinations contained in the recommended decision;

b. Adopt the findings of facts and conclusions contained in the recommended decision, modify the determinations, and adopt the recommended decision as so revised;

c. Based upon the record of the hearing, modify the findings of fact, conclusions or determinations, and adopt the recommended decision as so revised; or

d. Reject the recommended decision and conduct a new hearing.

If the hearing is conducted by the board of directors of the commission, upon conclusion of the hearing, the board of directors shall adopt a decision which includes findings of fact, conclusions, and determinations authorized by section 90-247, above. Copies of the decision adopted by the board of directors shall be mailed to the parties.

(Ord. No. 97-12, § 2(5.50.442), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Not later than 30 calendar days following the date of mailing to the franchisee of the decision by the board of directors, the franchisee shall be authorized to appeal the decision or any portion thereof to arbitration by filing a written notice of appeal with the clerk of the board of directors. The notice of appeal shall specifically identify the determination or determinations from which the appeal is taken, the grounds therefor, and shall be accompanied by a fee equal to the estimate by the clerk of the cost of preparing the transcript and record of the hearing or hearings. In the event the franchisee fails to file the notice of appeal within the time and in compliance with the requirements prescribed above, the determinations by the board of directors shall become final, binding, conclusive and not subject to review or reversal by any authority. Judicial enforcement of such determinations may be sought.

Except as otherwise provided herein, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-473, inclusive, in subdivision III of division 5.

The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to a decision as to whether the findings of fact by the board are supported by substantial evidence in the record and whether the conclusions by the board are consistent with the provisions of the franchise documents as interpreted by the arbitration panel. The powers of the arbitration panel shall be limited to a conclusion as to whether the decision by the board of directors from which appeal is taken should be affirmed, or reversed and remanded to the board for further determination, and interpretation of the provisions of the franchise documents solely in relation to review of the decision by the board of directors.

The hearing by the arbitration panel shall not be a trial de novo, and the sole function of the panel shall be to review the record of the hearing preceding the decision by the board of directors to decide whether there was substantial evidence in the light of the whole record to support the findings and to interpret the franchise documents in relation to the decision by the board of directors. No new evidence shall be introduced, received or considered by the arbitration panel; provided that where the panel finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing preceding the arbitration, the panel may remand the matter to the board of directors to be reconsidered in light of such evidence. The determinations by the board of directors shall be sustained by the arbitration panel if it finds that there is substantial evidence in the record to sustain the determinations, and that the conclusions are consistent with the provisions of the franchise documents. The panel shall not substitute its discretion for that of the board with respect to the determinations made by the board, or reweigh or otherwise judge the credibility of the evidence presented at the hearing preceding the board's decision. If the panel decides that the determinations by the board violate the provisions of the franchise documents it shall remand the matter to the board for further determinations, reserving jurisdiction to review the determinations. Objections by the franchisee to the determinations by the board which were not presented during the hearing preceding the board's decision shall be deemed to have been waived.

The decision by the board of directors, as affirmed by an arbitration award, may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Code of Civil Procedure § 1286.2 to the extent such grounds are consistent with the express terms of this article.

(Ord. No. 97-12, § 2(5.50.444), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The purpose of this section is to encourage franchisees to install cable television systems and provide services within geographical locations which are outside of service areas and within which installation of such systems and services is not required under the line extension provisions of sections 90-239 or 90-240, and to establish a flexible framework by which the magnitude of the cable television system, services and rates and charges associated with basic service (if a franchisee has proposed limitations upon such rates and charges pursuant to the provisions of sections 90-344 through 90-348 in subdivision IV) may be regulated in order to encourage such expansion, and insure that the uncompensated costs thereof are not so excessive as to impose an unreasonable burden upon subscribers within urbanized areas which are already being served. The provisions of this section shall be applicable to all territory outside of service areas whether extensions of a cable television system are required by or pursuant to the provisions of sections 90-239 or 90-240, above, or not.

A franchisee shall not be authorized to install its cable television system or provide services within a geographical location outside a service area except pursuant to an application requesting authority for such installation and service which is approved by the board of directors of the cable television commission.

An application for such approval shall be filed with the clerk of the board of directors of the commission, shall describe the boundaries of the area proposed to be served, shall describe in detail the standards for the system proposed to be installed including, but not limited to, channel capacity, number or cables and other functional and technological features of the system, shall describe in detail the services proposed to be provided, shall identify the rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to the provisions of sections 90-344 through 90-348 in subdivision IV), shall include a budget of construction costs and a projection of operating revenues and costs, shall identify a proposed time schedule for installation of the system and provision of service, and shall contain such other and further information as the board of directors may require. The board of directors of the commission shall schedule a public hearing upon the application to commence not later than 30 calendar days after the application is filed, notice of which is given in the manner prescribed by section 90-38 in division 1.

After the conclusion of the public hearing, the board of directors shall approve the application if it finds that the nature and extent of the system to be installed, services to be provided, time within which installation will be complete and services provided, and rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to sections 90-344 through 90-348 in subdivision IV) will adequately serve the needs of the residents within the geographical location proposed to be served; provided that notwithstanding such determinations, the board may deny an application if it finds that uncompensated costs of constructing the system or providing service will cause increases in rates or charges paid by subscribers who are already being served by the franchisee. In approving such an application, the board of directors may impose conditions relating to such matters as the following:

a. The standards for the system to be installed, including, but not limited to, channel capacity, number of cables and other functional and technological features of the system;

b. The nature and extent of services to be provided;

c. Interconnection of the system to be installed with the system operated by the franchisee within service areas;

d. The amounts of rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to sections 90-344 through 90-348 in subdivision IV); and

e. The time schedule for installation and completion of the system and delivery of services.

A franchisee shall comply with the provisions of an approved application and any terms or conditions of approval.

(Ord. No. 97-12, § 2(5.50.446), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each cable television system, including wires and appurtenances, shall be located and installed and maintained so that none of the facilities endanger or interfere with the lives or safety or persons, or interfere with any improvements the county, cities or State of California may deem proper to make, or unnecessarily hinder or obstruct the free use of the streets or other public property.

All transmission and distribution structures, lines and equipment erected or installed by a franchisee within the Sacramento Community shall be so located as to cause minimum interference with the proper use of streets and other public property, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the streets or other public property.

(Ord. No. 97-12, § 2(5.50.448), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

During the term of each franchise, in advance of occupying, working upon or otherwise utilizing any street, the franchisee shall apply for and obtain any encroachment permit, license, authorization or other approval required by ordinances in force within the county and cities, pay any fees and post any security required by such ordinances, and in the course of construction, installing, replacing, maintaining and repairing the cable television system shall comply with all applicable requirements of such ordinances and any terms or conditions of encroachment permits, licenses, authorizations or approvals issued thereunder.

The county and cities shall be authorized to establish special fees payable by a franchisee to defray the costs incurred by the department of public works of the respective agencies in supervising and regulating the installation of a cable television system within the streets of the respective agencies. The respective directors of public works of the county and cities shall be authorized to formulate reasonable schedules for installation of a cable television system within the streets of the agencies for the purpose of promoting safety, reducing inconvenience to the public, and insuring adequate restoration and repair of the streets, and a franchisee and its officers, agents, contractors and subcontractors shall comply with any and all such schedules.

(Ord. No. 97-12, § 2(5.50.450), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

All disturbance by a franchisee of pavement, sidewalk, driveways, landscaping or other surfacing of streets shall be restored, repaired or replaced by the franchisee at its sole cost in a manner approved by the director of public works and in compliance with generally applicable ordinances of the agency vested with jurisdiction thereover, and in as good condition as before the disturbance occurred.

To the extent practicable and reasonable, each franchisee shall accommodate the desires of any property owner respecting location within easements or rights-of-way traversing private land of the property owner of aboveground boxes or appurtenances constituting a part of the cable television system. Any disturbance of landscaping, fencing or other improvements upon private property, including private property traversed by easements or rights-of-way utilized by a franchisee, shall, at the sole expense of the franchisee, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner as soon as possible. Each franchisee shall, through authorized representatives, make a reasonable attempt to personally contact the occupants of all private property in advance of entering such property for the purpose of commencing any installation of elements of the system within easements or rights-of-way traversing such property. As used in this paragraph, the terms "easements" and "rights-of-way" do not include easements or rights-of-way for roadway purposes.

(Ord. No. 97-12, § 2(5.50.452), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchise shall be deemed to expressly or impliedly authorize the franchisee to construct or install poles or wire-holding structures within streets for the purpose of placing cables, wires, lines or otherwise, without the written consent of the county or cities within which the street is situated. Such consent shall be given or withheld in the sole discretion of the governing body, and may be given upon such terms and conditions as the governing body in its sole discretion may prescribe which shall include a requirement that the franchisee perform, at its sole expense, all tree trimming required to maintain the poles clear of obstructions.

With respect to any poles or wire-holding structures which a franchisee is authorized to construct and install within streets, the county or cities with jurisdiction over the street or a public utility or public utility district serving the county or cities may, if denied the privilege of utilizing such poles or wire-holding structures by the franchisee, apply for such permission to the cable television commission. If the commission finds that such use would enhance the public convenience and would not unduly interfere with the franchisee's operations, the commission may authorize such use subject to such terms and conditions as it deems appropriate. Such authorization shall include the condition that the county, cities, public utility or public utility district pay to the franchisee any and all actual and necessary costs incurred by the franchisee in permitting such use.

(Ord. No. 97-12, § 2(5.50.454), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Except as hereinafter provided, in all areas of the Sacramento Community where the cables, wires and other like facilities of a public utility or public utility district are placed underground, each franchisee shall construct and install its cables, wires and other facilities underground. Amplifier boxes and pedestal mounted terminal boxes may be placed aboveground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe. In any area of the Sacramento Community where there are certain cables, wires and other like facilities of a public utility or public utility district underground and at least one operable cable wire or like facility of a public utility or public utility district suspended above ground from poles a franchisee may construct and install its cables, wires and other facilities from the same poles.

With respect to any cables, wires and other like facilities constructed and installed by a franchisee above ground, the franchisee shall, at its sole expense, reconstruct and reinstall such cables, wires or other facilities underground pursuant to any project under which the cables, wires or other like facilities of such utilities are placed underground within an area. The duty of a franchisee to underground shall arise only if all existing above ground like facilities of such utilities are placed underground.

(Ord. No. 97-12, § 2(5.50.456), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

If during the term of a franchise the county, cities, a public utility district, a public water district, a public sanitation district, a public drainage district or any other similar special public district elects to alter, repair, realign, abandon, improve, vacate, reroute or change the grade of any street or to replace, repair, install, maintain, or otherwise alter any aboveground or underground cable, wire, conduit, pipe, line, pole, wire-holding structure, structure, or other facility utilized for the provision of utility or other services or transportation of drainage, sewage or other liquids, the franchisee, shall, except as otherwise hereinafter provided, at its sole expense remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and any other facilities which it has installed. If such removal or relocation is required within a subdivision in which all utility lines, including those for the cable television system, were installed at the same time, the entities may decide among themselves who is to bear the cost of relocation; provided that neither the cities nor county shall be liable to a franchisee for such costs. Regardless of who bears the costs, a franchisee shall take action to remove or relocate at such time or times as are directed by the agency or company undertaking the work. Reasonable advance written notice shall be mailed to the franchisee advising the franchisee of the date or dates removal or relocation is to be undertaken.

(Ord. No. 97-12, § 2(5.50.458), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The franchisee shall not, and shall prohibit any officer, agent, employee, contractor or subcontractor which it retains from removing or trimming any tree or portion thereof (either above, at or below ground level), which is located within a street without the prior written approval of the director of public works of the county or city in which the street is located. Such consent may be given or withheld upon such terms and conditions as the director of public works deems appropriate. Each franchisee shall be responsible for, shall indemnify, defend and hold harmless the county, cities, cable television commission, and their officers, agents and employees from and against any and all damages arising out of or resulting from the removal, trimming, mutilation of or any injury to any tree or trees proximately caused by the franchisee or its officers, agents, employees, contractors or subcontractors.

(Ord. No. 97-12, § 2(5.50.460), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall, upon request by any person holding a building moving permit, license or other approval issued by the county, cities or State of California, temporarily remove, raise or lower its wires to permit the movement of buildings. The expense of such removal, raising or lowering shall be paid by the person requesting same, and a franchisee shall be authorized to require such payment in advance. A franchisee shall be given not less than 48 hours' oral or written notice to arrange for such temporary wire changes.

(Ord. No. 97-12, § 2(5.50.462), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Cross reference— Moving buildings, § 18-296 et seq.

Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the cable television commission nor an assignee purchase the cable television system, the franchisee may remove any underground cable from the streets when installed in such a manner that it can be removed without trenching or other opening of the streets along the extension of cable to be removed. The franchisee shall not remove any underground cable or conduit which requires trenching or other opening of the streets along the extension of cable to be removed, except as hereinafter provided. The franchisee shall remove, at its sole cost and expense, any undergrounded cable or conduit by trenching or opening of the streets along the extension thereof or otherwise which is ordered to be removed by the board of directors of the cable television commission based upon a determination, in the sole discretion of the board, that removal is required in order to eliminate or prevent a hazardous condition or promote future utilization of the streets for public purposes. Any order by the board of directors to remove cable or conduit shall be mailed to the franchisee not later than 30 calendar days following the date of expiration of the franchise. A franchisee shall file written notice with the clerk of the board of directors not later than 30 calendar days following the date of expiration or termination of the franchise of its intention to remove cable authorized by this paragraph to be removed. The notice shall specify the location of all cable intended to be removed and a schedule for removal by location. The schedule and timing of removal shall be subject to approval and regulation by the director of public works of the county and cities with jurisdiction over the streets from which cable is to be removed. Removal shall be completed not later than 12 months following the date of expiration or expiration of the franchise. Underground cable and conduit in the streets which is not removed shall be deemed abandoned and title thereto shall be vested in the cities and county within whose jurisdiction the cable or conduit is situated.

Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the commission nor an assignee purchase the system, the franchisee, at its sole expense, shall, unless relieved of the obligation by the county or cities, remove from the streets all aboveground elements of the cable television system, including, but not limited to, amplifier boxes, pedestal mounted terminal boxes, and cable attached to or suspended from poles, which are not purchased by the commission or its assignee.

The franchisee shall apply for and obtain such encroachment permits, licenses, authorizations or other approvals and pay such fees and deposit such security as required by applicable ordinance of the county or cities in which the streets are located, shall conduct and complete the work of removal in compliance with all such applicable ordinances, and shall restore the streets to the same condition they were in before the work of removal commenced. The work of removal shall be completed not later than one year following the date of expiration of the franchise.

(Ord. No. 97-12, § 2(5.50.464), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Any director of public works of the county or cities who determines that within his or her jurisdiction a franchisee has committed an act or omission in violation of any of the provisions of sections 90-252 through 90-260, inclusive, above, shall be authorized to mail written notice of the violation to the franchisee.

Not later than seven calendar days following the mailing of such notice, the franchisee shall be authorized to file an appeal with the clerk of the governing body of the county or cities by whom the director of public works is employed. The franchisee shall also file a copy of the notice in the office of the director of public works. The governing body shall hear the appeal, and shall be authorized to do so at its earliest convenience. The franchisee shall be authorized to present oral and documentary evidence and cross examine witnesses. Formal rules of evidence shall not be applicable.

If no appeal is filed and within ten calendar days following mailing of the notice, the franchisee has failed to correct the violation, or if an appeal is filed and within five calendar days following mailing to the franchisee of an order by the governing body, the franchisee has failed to correct the violation as directed in the order, the director of public works shall be authorized to correct the violation through assignment of such task to his or her subordinate personnel or delegation of authority to take such corrective action to a public utility, public district, contractor or other third party. In such event, the franchisee shall be liable for the full amount of any charges made for such corrective action, any salary and benefit costs of any public employees assigned to take such corrective action, and the costs of material, supplies and goods utilized in taking such corrective action.

The provision of this section shall not be construed to fix the date of a breach by a franchisee of any of the provisions of sections 90-252 through 90-260, inclusive, above, at the prescribed period following mailing of the notice of violation, or to prevent a determination that a franchisee has breached any of said sections in advance either of the ten days following the mailed notice or in advance of mailing of the notice or any communication pursuant to this section to the franchisee. Nor shall the provisions of this section be so construed as to relieve the franchisee from liability for any damages which may arise out of and be proximately caused by breach by a franchisee of any of the provisions of said sections.

(Ord. No. 97-12, § 2(5.50.466), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

It is anticipated that the cost of installing the cable television system under the initial CATV franchise could range from $75,000,000.00 to $100,000,000.00. It is also anticipated that annual gross revenues derived by the franchisee after the system has been completed and is fully operable could range as high as $100,000,000.00. Whereas cable television services have traditionally been limited to television programming primarily for purposes of entertainment, advancing technology permits delivery of a new generation of interactive services which invade nonentertainment commercial fields, and may extend from the provision of burglar alarm services to services which permit the subscriber to shop or bank from his or her home and receive a vast array of professional, technical, educational and other information, to medical, fire protection and other emergency services, and to types of services which are as yet unidentified.

Such services promise significant benefit to the community. They also potentially generate regulatory needs the exact nature and scope of which are impossible to predict, and the enforceability of which could be time consuming and expensive should a franchisee refuse to comply. The need to regulate could extend to:

a. Potentially unfair and unlawful competitive practices by a franchisee in operating and utilizing the cable television system to provide services;

b. Inadequate maintenance or repair by the franchisee of the cable television system;

c. Invasion of the privacy of subscribers;

d. Unethical or unfair business practices in relation to subscribers or others; and

e. A variety of other regulatory measures which are necessary to protect the health, safety or welfare of inhabitants of the Sacramento Community.

The provisions of this article address these issues by, with few exceptions, placing no limit upon the services which a franchisee may provide, mandating few services, prescribing general duties and responsibilities in relation to future public interest issues, and making no attempt, with few exceptions, to limit the services which a franchisee may provide to those which may be listed in the franchisee's proposal, and reserving broad authority to amend the provision of this subdivision under section 90-45 in division 1. The purposes of this article and this subdivision are to:

a. Reserve and vest broad regulatory authority in the cable television commission in order to enable it to enact future regulations which are tailored to address the problems requiring regulation and to avoid sensitive constitutional issues which may arise in attempts to regulate operation of a cable television system;

b. Establish general regulatory guidelines defining the rights, duties and responsibilities of franchisee and the cable television commission which may be made more specific, expanded or otherwise modified to meet future regulatory needs by regulations enacted by the commission or amendment of this subdivision.

(Ord. No. 97-12, § 2(5.50.500), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Legal and equitable title to the cable television system, including any and all studio facilities and production equipment provided for community use, the institutional network, and all channels of whatever kind or nature, shall be vested in the franchisee.

(Ord. No. 97-12, § 2(5.50.502), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Within a service area services provided by a franchisee through its cable television system upon both the subscriber and institutional networks shall be offered uniformly upon non-discriminatory terms to subscribers and users, and shall not differ based upon geographical location. The nature, extent and volume of services offered within a proposed service area and, except as provided by section 90-239 and 90-240 in subdivision II, outside of a service area, may differ from those offered within an imposed service area, and may differ from one proposed service area to another. Each application for a franchise shall describe in detail the manner, if at all, the nature, extent or volume of services offered within proposed service areas will differ from those offered within an imposed service area, and the manner, if at all, the nature, extent or volume of services offered will differ from one proposed service area to another.

Each application for a franchise shall contain schedules of all home educational and entertainment programming proposed to be shown on either the subscriber network or institutional network within each service area throughout the term of the franchise. The applications shall show for each service area:

a. All tiers of service, basic service being the lowest tier;

b. The number of channels within each tier of service offered at the subscription rate applicable to the tier, together with an identification of the tier placement of any channels allocated pursuant to section 90-197, the second main paragraph in section 90-198, and sections 90-200 and 90-201 in subdivision I;

c. A description of all programming from satellite and other sources to be offered on each such channel within each tier of service (including program descriptions) within the times prescribed by subparagraphs "b," "c" and "d" of section 90-231 in subdivision II;

d. A statement of the minimum number of hours per day and week programs or types of programming described in subparagraph "c," above, will be shown within the times prescribed by subparagraphs "b," "c" and "d" of section 90-231 in subdivision II;

e. A statement of the minimum number of hours per day and week each channel within each tier of service will contain home educational and entertainment programming which has not previously been broadcast within the Sacramento Community; and

f. A statement of all premium services to be offered within each tier of service, together with program descriptions of each such service, and the minimum number of hours per day and week each such service will be available within each tier of service within the times prescribed by subparagraphs "b," "c" and "d" of section 90-231 in subdivision II.

The provisions of subparagraphs "c," "d," "e" and "f," above, shall not be applicable to channels described by subparagraph "a(1—5)" of section 90-32 in division 1.

Each application for a franchise shall also contain a description of such non-entertainment services (whether or not of an inter-active nature) as the applicant offers to provide on either the subscriber network or institutional network within each service area throughout the term of the franchise. For each such service, applications shall show:

a. The nature, scope and extent of each service;

b. For each service, any restrictions relating to the geographical location of delivery, and the class of customer or recipient of service;

c. Schedules of all rates and charges under which each service will be offered to customers or recipients;

d. The names and addresses for each service of the proposed provider or providers of the service, together with a copy of the contract or other legal instrument between the franchisee and the provider(s); and

e. Information by amendment to the application as may be required during the public hearing referred to below.

During the public hearings prior to tentative selection of a franchisee conducted pursuant to sections 90-126 and 90-128 in division 3, the governing bodies of the county and municipality of Sacramento respecting the initial CATV franchise, and the board of directors of the cable television commission respecting any other franchise, may, in their sole discretion, determine which, if any, such non-entertainment services shown in each application the applicant, if selected as the franchisee, would be vested with a contractual right and duty to perform throughout the term of the franchise. Any such identification may be accompanied by such conditions as are determined to be appropriate, including, but not limited to, conditions relating to the nature and extent of service provided, the terms and conditions of provision, and opportunities for use of the cable television system by others, including the circumstances under which leased access for such purposes will be provided. Any services so identified, together with the conditions thereof, shall be prescribed in the resolution offering the franchise to the extent they appear in the application filed by the franchisee.

(Ord. No. 97-12, § 2(5.50.504), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee's rights and duties respecting the provision of nonentertainment services (whether or not of an interactive nature) on either the subscriber or institutional networks during the term of the franchise shall be as follows:

a. A franchisee shall be authorized, but not vested with a contractual right or duty, to provide services which either: (i) have been identified in its application but have not been prescribed by the resolution offering the franchise; or (ii) have not been described, specified or identified either in the application or resolution offering the franchise. The authorization shall be subject to modification through regulation or revocation (by prohibiting the service) pursuant to section 90-290, below.

b. A franchisee shall be vested with a contractual right and duty to provide services prescribed by the resolution offering the franchise during the entire term of the franchise. Public hearings to receive comment upon such matters shall be conducted pursuant to the last paragraph in section 90-288, above, prior to tentative selection of a franchisee, or, after notice given in the manner prescribed by section 90-38 in division 1 and mailed to the tentative selectee, between the date of tentative selection and approval of the resolution offering the franchise by the governing bodies of the county and municipality of Sacramento, or subcommittees thereof, sitting jointly with respect to the initial CATV franchise or the board of directors of the commission, or a subcommittee thereof, with respect to any other franchise. In the event the public hearing is conducted between the date of tentative selection of a franchisee and approval of the resolution offering the franchise, the issuing authority shall be vested with the same powers in connection with nonentertainment services by the selectee as are prescribed by the last paragraph in section 90-288, above. Services prescribed in the resolution offering the franchise shall be provided in compliance with all conditions prescribed by the resolution. Pursuant to section 90-290, below, such services may be regulated and the conditions applicable thereto set forth in the resolution may be modified or expanded; provided that no such service shall be prohibited.

A franchisee providing a nonentertainment service or desiring to offer or provide such a nonentertainment service which has not been identified in the resolution offering the franchise (whether or not the service has been described in the franchisee's application) may, at any time during the term of the franchise, file with the clerk of the board of directors of the cable television commission a written request for approval of the vesting thereof. The written request for approval shall contain such information as is required by the board of directors of the commission. Not later than 30 calendar days following the date of filing of the request for approval, the board of directors of the commission shall commence a public hearing thereon, notice of which is given in the manner prescribed by section 90-38 in division 1. At the conclusion of the public hearing, the board of directors of the commission may, in its sole discretion, either approve or disapprove the proposed service. If the service is approved, the approval may be granted upon such conditions as are described by the last paragraph in section 90-288, above. A franchisee, from and after the date of such approval, shall be vested with a contractual right and duty to provide such a service subject to the following limitations. The service shall be provided in compliance with all conditions prescribed by the approval. Pursuant to section 90-290, below, such service may be regulated and the conditions set forth in the approval may be modified or expanded, but no such service may be prohibited.

(Ord. No. 97-12, § 2(5.50.506), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No nonentertainment service (whether or not of an interactive nature) provided through the cable television system shall be provided or operated in a manner which is detrimental to the public peace, health, safety or welfare.

The board of directors of the cable television commission may, from time to time during the term of a franchise, after public hearings notice of which is given in the manner prescribed by section 90-38 in division 1, exercise the following powers:

a. Prohibit or adopt rules or regulations governing the provision or manner of operation or provision of a nonentertainment service which either has been described by the application for the franchise but not identified in the resolution offering the franchise or which has not been described, identified or specified either in the application or resolution offering the franchise, and which has not been approved pursuant to the last paragraph in section 90-289, above;

b. Adopt rules or regulations governing, or modifying or adding conditions relating to, the provision or manner of operation or provision of a nonentertainment service which has either been identified by the resolution offering the franchise or approved pursuant to the last paragraph in section 90-289, above; or

c. Adopt regulations relating to opportunities for use of the cable television system by others, in relation to a specific non-entertainment service provided by the franchisee, including the circumstances under which leased access for such purposes will be provided.

A franchisee shall comply with any such conditions, rules or regulations; provided that with respect to any service identified by the resolution offering the franchise or approved pursuant to the last paragraph in section 90-289, above, a franchisee shall be authorized to terminate the service in lieu of complying with conditions, rules or regulations applicable thereto adopted pursuant to this section.

The powers of the board of directors of the commission under this section are coextensive with those which are authorized by laws of the State of California or United States and with those defined by the police power expressed by article XI, section 7 of the California Constitution. A franchisee shall not in relation to this section be deemed to have contractually or otherwise waived any constitutional right which would otherwise be applicable to a franchised cable television operator.

(Ord. No. 97-12, § 2(5.50.508), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Subject to the provisions of this section and the authority reserved by section 90-292, below, a franchisee shall be deemed to be vested with a contractual right and duty to provide those home educational and entertainment services identified in its application.

It is understood that with respect to home educational and entertainment programming on either the subscriber or institutional networks, tier arrangements, premium services, and program selection and content which a franchisee has elected to propose in its application are among the material factors which are considered in selecting the franchisee. The hierarchy of programming arranged within tiers of service and placement of premium programs therein as shown by the application, cost relationships between tiers of service (other than basic service) to the extent an operator includes such rates in its application, and number of channels within tiers and programming thereon also constitute material factors considered in selection.

It is also understood that changing circumstances, including marketing strategy, program availability and other factors, will require that programming identified in the franchisee's application pursuant to section 90-288, above, will be changed from time to time during the term of the franchise.

Therefore, a franchisee shall be authorized to alter the allocation of channels to tiers of service and home educational and entertainment programming from time to time during the term of the franchise from that identified in its application and provided at the times defined by subparagraphs "b," "c" and "d" of section 90-231 in subdivision II; provided that no such change shall materially reduce or eliminate programming of the nature, extent, volume or quality identified in the application or provided at the above times or materially alter the hierarchy of program relationships identified by the application or provided at the above times. A franchisee shall be authorized to move particular premium services from one tier of service to another during the term of a franchise if with respect to a specifically identified premium service, the application clearly shows that the franchisee has placed the premium service in a particular tier only for purposes of illustration, and reserves the right, in its sole discretion, to place the premium service in any tier which it elects from time to time during the term of the franchise.

If at any time the board of directors of the cable television commission asserts that a franchisee has violated the provisions of this section it shall be authorized to mail to the franchisee written notice of its demand for arbitration. The notice shall specify the particulars underlying the board's assertions.

If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive, in subdivision III of division 5. The discovery provisions of the California Arbitration Act (Code of Civil Procedure § 1280 et seq.) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

a. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subparagraph "b," below;

b. Determination of whether the franchisee has materially reduced or eliminated programming of the nature, extent, volume or quality identified in its application or provided at the times defined by subparagraphs "b," "c" or "d" of section 90-231 in subdivision II, or materially altered the programming relationships between tiers of service identified by the application or provided at the above times; and

c. In the event of an affirmative determination under subparagraph "b," above, the remedy, which may include, but is not limited to, the reallocation of channels among tiers of service, the reallocation of programming among tiers of service, increases of particular types of programming or reinstatement of terminated programming.

(Ord. No. 97-12, § 2(5.50.510), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No home educational or entertainment service provided through a cable television system shall be provided or operated in a manner which is detrimental to the public peace, health, safety or welfare. The provisions of this section shall not be self-executing, shall not be deemed to authorize the cable television commission or any other public authority to establish bans upon services in advance of the offering thereof, and may be invoked solely pursuant to the following procedure.

If the board of directors of the cable television commission determines that there is reason to believe that a particular service provided through a cable television system is of a type or is otherwise provided in a manner which is detrimental to the public peace, health, safety or welfare, the board shall schedule a public hearing. Written notice identifying the service or services or method of provision subject to the determination shall be mailed to the franchisee not later than 30 days in advance of the hearing. Notice of the hearing shall be given in the manner prescribed by section 90-38 in division 1. If at the conclusion of the public hearing the board determines that a service is being provided of a type or in a manner which is detrimental to the public peace, health, safety or welfare, the board may enact regulations which prohibit the services or otherwise regulate the manner of the provision thereof, as the case may be, and may enforce the regulation by appropriate action in the courts of this state.

The powers of the board of directors of the commission under this section are coextensive with those which are authorized by laws of the State of California or United States and with those defined by the police power expressed by article XI, section 7 of the California Constitution. A franchisee shall not in relation to this section be deemed to have contractually or otherwise waived any constitutional right which would otherwise be applicable to a franchised cable television operator.

(Ord. No. 97-12, § 2(5.50.512), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchisee shall remove or offer to remove any potential or existing subscriber antenna, or provide any inducement for removal as a condition respecting the provision of service.

(Ord. No. 97-12, § 2(5.50.514), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchise issued pursuant to the provisions of this article shall be deemed to expressly or impliedly authorize the franchisee to utilize its cable television system to provide any service in such a manner as to unlawfully damage any business competitor or other third party or violate any statutes or regulations of the United States or State of California. Nor shall any franchisee, by act or omission, engage in any anti-competitive practice in violation of any statutes or regulations of the United States or State of California. The provisions of this section shall be enforceable in courts of competent jurisdiction against a franchisee by any party who alleges injury as a result of an alleged violation thereof.

(Ord. No. 97-12, § 2(5.50.516), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997; Ord. No. 97-22, § 2, 12-10-1997)

In the event the cable television commission fails to renew a franchise, a franchise is canceled in advance of the expiration of its term, or a new operator succeeds to the franchise by assignment or otherwise, the preceding franchisee shall, without compensation, cooperate wile [with the cable] television commission, new operator or new franchisee in maintaining continuity of service to all subscribers and users. Such cooperation shall include, but not be limited to, making records available for inspection and review, the provision of advice and other assistance as requested.

Upon written notice mailed by the commission to the franchisee for the purpose of insuring continuity of service to subscribers and users, a franchisee, without compensation or other special consideration, shall operate the cable television system during the period subsequent to the termination of the franchise and shall repair and maintain the system, conduct the business associated with operation of the system, and provide uninterrupted services during the post franchise period during such time as is requested by the commission pursuant to the terms and conditions of the franchise documents for the franchise which has expired or terminated. During such period, the franchisee shall be entitled to revenues, profits and shall be solely responsible for any operating losses; provided that franchise fees prescribed pursuant to subdivision IV shall be payable during said period.

(Ord. No. 97-12, § 2(5.50.518), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall furnish to its subscribers, users and other customers all services through a cable television system at the best possible signals available under the circumstances existing at the time, to the satisfaction of the cable television commission, and shall provide quality reception of basic service and other services described pursuant to section 90-288, above, to each subscriber so that both sound and picture are produced free from visible and audible distortion and ghost images on standard television receivers in good repair.

No franchisee shall permit its cable television system to interfere with television reception of persons not served by the franchisee. Nor shall any system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the Sacramento Community.

(Ord. No. 97-12, § 2(5.50.520), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall continue throughout the term of the franchise to maintain the technical standards and quality of service set forth in the franchise documents for that franchise.

(Ord. No. 97-12, § 2(5.50.522), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

During the term of each franchise, the franchisee shall maintain its cable television system in good condition and repair, render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible.

(Ord. No. 97-12, § 2(5.50.524), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall maintain at least one business office and repair center within the Sacramento Community. The business office shall be open at least during the hours of 9:00 a.m. through 5:00 p.m., Mondays through Fridays, excepting legal holidays. Staffing shall be maintained to provide repair services at least during the hours 9:00 a.m. through 5:00 p.m., seven days a week, legal holidays other than Saturdays and Sundays excepted. Capacity shall be maintained to receive and record service calls for maintenance and repairs seven days per week, 24 hours per day, including legal holidays.

The business office and repair center shall be reachable by local toll-free telephone, and the telephone number or numbers shall be listed in all directories published by all telephone companies containing telephone numbers within the Sacramento Community.

Each franchisee shall promptly respond to, investigate and resolve complaints. Necessary maintenance or repairs shall be made expeditiously, permitting as little interruption of service as possible. No direct charge shall be made to subscribers for service calls or for repairs which do not result from damage caused by subscribers.

(Ord. No. 97-12, § 2(5.50.526), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall take such affirmative action as is necessary in order to avoid interruptions of services and minimize unavoidable interruptions of services.

a. If, during the term of the franchise, the franchisee determines that it is necessary to significantly interrupt receipt by some or all subscribers or users of services as a result of the need to undertake major repairs or extend, expand, modify or otherwise improve the cable television system, such work shall be planned, designed and scheduled in such a manner as to avoid continuous interruption of service to the maximum extent possible, keep prolonged interruption to a minimum, and restrict interruptions to periods of least viewing intensity. Plans for such interruptions of service shall be subject to approval of the cable television commission in advance of implementation.

b. The board of directors of the cable television commission shall be authorized to enact, and a franchisee shall comply with, rules which excuse subscribers from the payment of rates to a franchisee for services provided through a cable television system during periods transmission or receipt of signals for such services is interrupted as a result of defects in, malfunctions of, periods required for repair of or periods required for expansion, modernization or improvement of the cable television system, or any part or portion thereof.

(Ord. No. 97-12, § 2(5.50.528), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall maintain for a period of five years, and make available for inspection and copying by authorized representatives of the cable television commission, the following:

a. A permanent service log which shows the name and address of each person requesting maintenance or repair service, the nature of the service requested, the date and time the request was received, and the disposition (including the date on which repair was made or the request otherwise resolved, and method of resolution);

b. A permanent record of each request for subscription to basic service, including the name and address of the person making the request, and the date of the request;

c. A permanent record of each written complaint received by the franchisee pursuant to the provisions of section 90-306, below, together with the name and address of the complainant, the nature of the complaint, and the dates and descriptions of any and all investigatory, corrective or other actions taken as a result thereof.

(Ord. No. 97-12, § 2(5.50.530), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

During the term of any franchise issued pursuant to the provisions of this article, each franchisee shall, not less frequently than annually, file a written report with the clerk of the board of directors of the cable television commission. The report shall be filed not later than 90 calendar days after the end of the franchisee's fiscal year. The report shall include the following:

a. A summary of the activities of the franchisee during its previous fiscal year in the development and operation of the cable television system, including, but not limited to: a description of all services provided through the cable television system as of the conclusion of the fiscal year; a description of all such services which were added or terminated during the fiscal year; a statement of the number of subscribers by category of services rendered as of the end of the fiscal year; and a summary of the facilities, channels and resources made available during the fiscal year for community use, including a list of the persons and organizations which have produced, sponsored and broadcast programming upon community use channels, a description of the types of programming provided through such channels, and any recommendations by the franchisee for improvement in community use;

b. A specific and detailed description of all components, elements and extensions of the cable television system which have been installed during the franchisee's previous fiscal year, showing the locations of all such installations, and including copies of plans, specifications and drawings showing the components, elements and extensions as installed;

c. A statement showing the franchisee's investments in property within the Sacramento Community during the franchisee's previous fiscal year, including an identification of all real property or interests therein within the Sacramento Community acquired or transferred by the franchisee and the amounts which the franchisee paid for the acquisition of said property or interests, a description of all buildings or other improvements which the franchisee constructed upon or added to real property within the Sacramento Community together with the cost of such construction or additions, and an itemization by component category of all costs of components, elements and extensions of the cable television system;

d. An audited statement signed by a public or certified accountant of all income received by the franchisee during its previous fiscal year, including an itemization of all services provided through the cable television system, the unit or regular rates or charges for such services, and the amount of income received attributable to each service, and all other income from whatever sources, including an identification of each source and the amount of income attributable thereto; and

e. Audited financial statements for the franchisee's previous fiscal year signed by a public or certified public accountant, including a balance sheet and profit and loss statement.

A franchisee shall prepare and furnish to the board of directors of the cable television commission, at the times and in the form prescribed by the board, such other reports with respect to its operations, affairs, transactions, or property, as the board may deem necessary or appropriate to the performance of its functions.

(Ord. No. 97-12, § 2(5.50.532), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchisee shall deny service, deny access or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin or sex.

It shall be the right of all subscribers, subject only to the payment of lawful rates and reasonable terms and conditions established by a franchisee or the board of directors of the cable television commission, to receive and continue to receive services. Initial subscription to service shall not be denied to any person on the basis of the person's credit rating or for other reasons relating to economic condition.

(Ord. No. 97-12, § 2(5.50.534), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall have authority to promulgate rules and conditions governing the conduct of its business. No such rules or conditions shall conflict with the franchise documents applicable to the franchise, the provisions of federal or state statutes or regulations, or county or cities' ordinances.

Such rules or conditions shall be reasonable and subject to approval as to reasonableness by the board of directors of the cable television commission, after public hearings, notice of which has been given in the manner prescribed by section 90-38 in division 1, above, and shall not conflict with rules and regulations enacted by the board of directors of the commission.

(Ord. No. 97-12, § 2(5.50.536), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee, and its officers, agents, employees, contractors and subcontractors, shall respect, refrain from invading, and take affirmative action to prevent violation of the privacy of subscribers served by the cable television system and others.

a. Neither the franchisee nor any other person, agency, or entity shall tap, or arrange for the tapping or monitoring of any cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except that the franchisee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals, and the franchisee may conduct systemwide or individually addressed "sweeps" for the sole purpose of verifying system integrity (including individual security system integrity), controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel. "Tapping" shall mean observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The provision of inter-active services shall not be construed to be "tapping" or "monitoring" under this subparagraph.

b. The franchisee shall not place in any private residence or in any institution any equipment capable of two-way communications without the written consent of the subscriber, and shall not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber specifying how the data collected will be used and by whom. Tenants who occupy premises connected by the system shall be deemed to be subscribers within the meaning of this subparagraph regardless of who actually pays for the service. The written consents shall be, and shall show on their face that they are, revocable by the subscriber at any time by written communication mailed by the subscriber to the franchisee. No penalty shall be invoked for a subscriber's failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The franchisee shall not make such written consent a condition precedent to receipt by a subscriber of noninteractive service. The provisions of this subparagraph shall not be deemed to require consent as a condition precedent to systemwide or individually addressed "sweeps" for the sole purpose of verifying system integrity, controlling return-path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.

c. No cable, line, wire, amplifier, converter, or other piece of equipment associated with cable television system services shall be attached to any residence or other property of a citizen (except within streets) without first securing the written permission of the owner or tenant of the property. If such permission is later revoked, whether by the original or a subsequent owner or tenant, the franchisee shall remove forthwith all of the equipment and promptly restore the property to its original condition. The franchisee shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.

d. No franchisee or officer, agent or employee thereof shall sell, or otherwise make available, lists of and addresses of its subscribers, or any list which identifies, by name or otherwise individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever; except that the franchisee shall, upon request, provide lists of names and addresses of its subscribers to authorized representatives of the cable television commission when the board of directors of the commission deems such information necessary for performance of the regulatory functions of the commission. Names and addresses of subscribers within the possession of the commission shall not be subject to public inspection or review.

e. A franchisee may release the number of subscribers but only as a total number and as a percentage of the potential subscribers within the franchise area. When indicating the number of subscribers viewing a particular channel, a franchisee shall indicate only the total number of subscribers viewing during the relevant time and, the percentage of all subscribers which they represent, but not the identity of any subscriber.

f. No polls or other two-way responses of subscribers shall be conducted whether for commercial purposes, in connection with community use, or otherwise unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. The franchisee shall supervise and monitor all polls in which responses are received through the cable television system, and shall adopt and enforce measures which ensure that personally identifiable information concerning a subscriber, including his or her viewing habits and response or responses to the inquiry or inquiries, is not received by any third party, including the party sponsoring the poll.

g. A franchisee shall not tabulate any test results, nor permit the use of the system for such tabulation, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licensees or employees, without advance written authorization by the subscriber.

(Ord. No. 97-12, § 2(5.50.538), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The cable television commission and each franchisee shall separately designate representatives whose responsibility it is to receive and investigate complaints relating to violations of the franchise documents.

As subscribers are connected or reconnected to a cable television system and at least annually as respects continuing subscriptions each franchisee shall by appropriate means, such as card or brochure, furnish information concerning the opportunity to make complaints, including the names, addresses and telephone numbers of the representatives designated by the franchisee and commission.

Each franchisee shall make available for inspection and copying all records relating to complaints, and make such other information available to the commission's representative as necessary to permit a complete investigation of complaints by the representative.

(Ord. No. 97-12, § 2(5.50.540), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Upon request by either a franchisee or the cable television commission and, in any event, not less frequently than 30 calendar days following the third, sixth, ninth, 12th, 15th, and 18th years' anniversary dates following the date of filing of the certificate of acceptance of each franchise, the franchisee and the commission shall conduct evaluation sessions. The evaluation sessions shall be conducted during public hearings held by the board of directors or an advisory or other committee appointed by the board of directors of the commission, notice of which has been given in the manner prescribed by section 90-38 in division 1, above. Topics discussed at such sessions may include services[,] application of new technologies, system performances, services provided, programming offered, customers complaints, privacy of franchisee or commission rules and regulations; and shall include any topic which the franchisee, the commission or members of the public request be discussed.

(Ord. No. 97-12, § 2(5.50.542), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

After public hearings notice of which is given in the manner prescribed by section 90-38 in division 1, the board of directors of the cable television commission shall, from time to time, be authorized to enact technical standards applicable to the operation, maintenance, repair, replacement or functioning of a cable television system for the purpose of improving or maintaining quality of video or audio signals, freedom from interference, reliability of service delivery, or other similar types of functional characteristics of the system. Each franchisee shall take such actions as are necessary to comply with such standards, and the failure to do so shall constitute a material violation and breach of the franchise documents.

(Ord. No. 97-12, § 2(5.50.544), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

When the board of directors of the cable television commission finds that complaints from subscribers or other factors cast doubt upon the reliability or quality of service, the board of directors shall have the right to order a franchisee to test, analyze and report upon the performance of the cable television system. Such tests shall be conducted at the sole expense of the franchisee. The board of directors may require that the tests be supervised by an engineer selected by the board and compensated by the franchisee who signs all test records and provides an independent report or advice to the board. Within 45 calendar days following the date on which an order requiring the tests is mailed to the franchisee, the franchisee shall file with the clerk of the board of directors a report which identifies the system component or components tested, describes the equipment used and procedures employed in testing, and explains the nature, extent and cost of feasible alternative methods of correcting any deficiencies revealed.

If after a public hearing notice of which has been given in the manner prescribed by section 90-38 in division 1, above, the board of directors of the commission finds that a franchisee has failed to comply with or maintain the technical standards or quality of service prescribed pursuant to section 90-308, above, or otherwise set forth in the franchise documents for that franchise, the board of directors may order the franchisee to make specifically enumerated repairs of or improvements in the system or changes in the maintenance, repair or operation of the system. The franchisee shall complete such repairs or improvements within a reasonable time, and, in any event, not later than six months following the date on which the order requiring reprovement is mailed to the franchisee.

(Ord. No. 97-12, § 2(5.50.546), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchisee shall discriminate in employment or selection of contractors or subcontractors on the basis of race, color, religion, national origin or sex (including marital status). Each franchisee shall strictly comply with the Equal Employment Opportunity regulations promulgated by the FCC, and all applicable federal and state statutes and regulations and ordinances of the county and cities. Each franchisee shall establish as objectives the employment of a work force based upon merit and achievement of a racial balance within its work force consistent with that which pertains within the residential population of the Sacramento Community.

(Ord. No. 97-12, § 2(5.50.548), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Except as otherwise expressly provided herein, the board of directors of the cable television commission shall be authorized to regulate all cable television operations and services provided by a franchisee for the purpose of promoting and protecting the public convenience, health, safety and welfare. The board of directors of the commission may exercise regulatory powers conferred herein by the enactment, from time to time, of rules and regulations, after a public hearing by the board or an advisory committee appointed by the board, notice of which is given in the manner prescribed by section 90-38. The rule making powers of the board of directors shall include, but not be limited to, the authority to interpret, clarify, make specific and apply the provisions of this ordinance and to enact rules and regulations which impose specific duties or prohibitions for the purpose of implementing the duties, responsibilities and restrictions set forth in this ordinance or such duties, responsibilities and restrictions as may be authorized to be imposed by such future state or federal enactments as may, from time to time, occur. The foregoing shall include, but not be limited to, consumer protection regulations and, to the extent now or hereafter allowed by state and federal law, rate regulation. Each franchisee shall comply with all such rules and regulations.

(Ord. No. 97-12, § 2(5.50.552), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

For the use of the streets and for the purposes of providing revenue with which to defray the costs of regulation arising out of issuance of franchises under this article and promoting, assisting and financing community use programming and other cable services of a public character, each franchisee shall pay franchise fees in the amount prescribed by section 90-337, below. Each franchisee shall cooperate with the cable television commission in filing with the FCC and supporting a waiver request permitting payment of the amount prescribed by section 90-337, below.

(Ord. No. 97-12, § 2(5.50.600), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

During the term of each franchise, each franchisee shall pay to the cable television commission an amount equal to five percent per year of the franchisee's annual gross revenues.

Said fees shall be paid quarterly not later than August 1, November 1, February 1, and May 1 for the preceding three-month period ending, respectively, June 30, September 30, December 31, and March 31. Not later than the date of each payment, each franchisee shall file with the clerk of the board of directors of the cable television commission and with the governing bodies of the county and cities a written statement signed under penalty of perjury by an officer of the franchisee which identifies in detail the sources and amounts of gross revenues received by a franchisee during the quarter for which payment is made.

No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the commission may have for further or additional sums payable under the provisions of this section.

(Ord. No. 97-12, § 2(5.50.602), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

From and after the date of filing of a certificate of acceptance of a franchise pursuant to the provisions of section 90-131 in division 3, above, the franchisee shall pay to the cable television commission an annual amount equal to the lesser of the following: (i) 120 percent times each annual budget of the commission; or (ii) a minimum annual amount of $700,000.00. Said annual amount shall be paid by the franchisee in equal quarterly installments (prorated for the first quarter if a franchise is issued in the middle of a quarter) at the times and for the periods prescribed by section 90-337, above. At the commencement of the first full fiscal year following issuance of a franchise and at the commencement of each fiscal year thereafter, said minimum annual amount of $700,000.00 shall be increased by a percentage equal to the annual percentage increase in the Consumer Price Index for All Urban Consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area for the 12-month period ending June 30 immediately preceding the commencement of the fiscal year for which adjustment is to be made.

At such time as annual franchise fees due to the commission pursuant to the provisions of section 90-337, above, shall exceed the annual sum payable under this section, the amounts previously paid to the commission pursuant to the provisions of this section which have exceeded annual amounts otherwise owing under section 90-337, above, shall be credited against the franchisee fee in an amount not to exceed 20 percent of the total franchise fee payment each year until the entire amount advanced to the commission is accounted for; provided that in no event shall such credits be used to reduce actual payments to the commission below the minimum amount specified above; provided further that at no time during the term of a franchise shall the amount payable by a franchisee be lower than prescribed by this section; and provided further, that in no event shall the commission, county or cities become or be liable to the franchisee for payments made pursuant to the provisions of this section.

The purpose of this section is to provide operating capital with which to defray the costs of regulation and other operations incurred by the cable television commission, county and cities during any period in which the franchisee's gross revenues are too low to provide adequate funds from franchise fees to finance such functions.

(Ord. No. 97-12, § 2(5.50.604), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Neither the county nor cities have or expect in the foreseeable future to receive sufficient funds with which to defray the costs of administering and regulating cable television franchises within the Sacramento Community. The ability to finance such costs through franchise fees pursuant to the provisions of sections 90-337 and 90-338, above, constitutes a material inducement to initiate a cable television program within the Sacramento Community, because neither the county nor cities would be willing to reduce or eliminate other public programs in order to make public funds available with which to defray the costs of administering and regulating the cable television program.

Therefore, should any future law or regulation limit or prevent the cable television commission from imposing a franchise fee in the amount provided for herein, each franchisee shall cooperate with the cable television commission in filing and supporting a request to obtain any possible waiver or permission to pay the full amounts provided for herein, and, to the extent such future law or regulation permits a franchisee discretion to make the limitation or prohibition applicable or inapplicable, each franchisee shall elect to make the limitation or prohibition inapplicable.

Should any future law or regulation limit or prevent the franchisee from paying the minimum advance fee required by section 90-338, above, the franchisee, by the filing of the certificate of acceptance hereto, agrees to make a noninterest bearing loan to the commission annually in an amount equal to the amount by which a minimum advance payment calculated pursuant to the provisions of section 90-338 above, would have exceeded amounts reasonably anticipated to be due to the commission within the ensuing year pursuant to section 90-337 above, which loan shall be repaid in subsequent years to the extent that the amount paid as franchise fees by the franchisee pursuant to the provisions of section 90-337 exceeds an amount equal to an amount which would have been paid as a minimum advance payment under section 90-338 above, in such subsequent years had such payments been permitted.

The failure of the commission to receive the fees or the loans prescribed by this subdivision shall be deemed to constitute a substantial and material failure to comply with the franchise documents within the meaning of section 90-51 in division 1, above.

(Ord. No. 97-12, § 2(5.50.606), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The auditor of the cable television commission may, from time-to-time during the term of a franchise prescribe standards governing the nature, extent and type of accounting system and accounting procedures utilized by a franchisee and require changes in accounting standard procedures utilized by a franchisee, for the purpose of promoting the efficient administration of the franchise pursuant to the provisions of this article. Any such standards shall be in writing, shall be filed with the clerk of the board of directors of the commission, and shall be mailed to the franchisee to whom directed. A franchisee shall promptly comply with all such standards.

During the term of each franchise, the cable television commission may, not more frequently than once each year, conduct an audit of the books, records and accounts of the franchisee for the purpose of determining whether the franchisee has paid franchisee fees in the amounts prescribed by section 90-337, above. The audit may be conducted by the auditor of the commission or by an independent certified public accounting firm retained by the commission, and shall be conducted at the sole expense of the commission. The party conducting the audit shall prepare a written report containing its findings, and the report shall be filed with the clerk of the board of directors of the commission, and mailed to the county, cities and franchisee. Notwithstanding the foregoing, the commission shall conduct such an audit at any time, if requested to do so by the governing body of the county or any of the cities. The cost of such an audit so requested shall be borne by and at the sole expense of the county or any of the cities making the request, and the cost shall be paid within 30 calendar days following receipt of billing therefor by the commission. The report of the audit shall be filed and mailed as prescribed above.

At any time during the term of a franchise, the cable television commission may, through its auditor or a certified public accounting firm which it retains, and at its sole expense, conduct an audit of the books, records and accounts of the franchisee for the purpose of identifying any information which the board of directors of the commission deems necessary to obtain for the purpose of administering the franchise under the provisions of this article. A written report of such audit shall be filed with the clerk of the board of directors of the commission, and mailed to the county, cities and franchisee. The franchisee shall comply with any recommendations or directives set forth in such report respecting changes in its accounting system.

Each franchisee shall make available for inspection by authorized representatives of the cable television commission, its books[,] accounts, and all other financial records at reasonable times and upon reasonable advance notice for the purpose of permitting exercise of the authorities conferred by this section.

(Ord. No. 97-12, § 2(5.50.608), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The period of limitation for recovery of any franchise fees payable pursuant to the provisions of sections 90-337 or 90-338, above, shall be five years from the date on which payment by the franchisee is due. Unless within five years from said date, the cable television commission initiates recovery pursuant to the provisions of section 90-342, below, recovery shall be barred. Delinquent franchise fees shall bear interest at an annual rate equivalent to that Federal Reserve discount rate on advances to member banks in effect on January 2, April 1, July 1, and October 1 for the succeeding quarter of delinquency.

The interest shall be compounded quarterly, at the end of each quarter. In addition to interest as above prescribed, a ten percent per annum penalty shall be paid on all delinquent franchisee fees in recognition of the fact that fluctuating interest rates on borrowed funds makes it impossible to establish a reliable interest rate standard as a measure of damage for delinquency in the payment of franchise fees, and other elements of damage resulting from delinquency, such as the inadequacy of revenue with which to adequately administer and enforce the franchise, arising out of such delinquency are subjective and impossible to estimate.

(Ord. No. 97-12, § 2(5.50.610), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

In the event a franchisee fails to pay franchise fees pursuant to sections 90-337 or 90-338, above, or the board of directors of the commission determines that a franchisee has paid franchise fees in a lower amount or amounts than prescribed, written notice thereof shall be mailed to the franchisee. The notice shall show the basis for the determination that fees are owing, and the amount thereof, if known, and may show the amount of interest and penalties accumulated to date.

Within 30 calendar days following the date of mailing of such notice, the franchisee may pay any amount stated in the notice, plus interest and penalties, without protest. Any payment made without accompaniment of a written statement of protest shall be deemed to have been made without protest, and shall constitute a waiver of the right to request arbitration or other relief respecting any and all amounts so paid.

Within 30 calendar days following the date of mailing of such notice, the franchisee may, alternatively, file a written request for arbitration with the clerk of the board of directors of the commission objecting to payment, and specifically identifying why objection is made and wherein the franchisee disagrees with the determination. At the time of filing such a request for arbitration, the franchisee may deposit with the commission, under protest, any amount, including interest and penalties, which the franchisee estimates to be in dispute. Any such deposit shall be accompanied by a written statement by the franchisee stating that the amount deposited is pursuant to protest and a request for arbitration. From and after the date of any such deposit, interest and penalties as prescribed by section 90-341, above, on the amount deposited shall terminate, and no such interest or penalties on such amount shall accrue subsequent to the date of deposit. In the event it is finally determined that the whole or any portion of an amount so deposited under protest was not owing by the franchisee, such amount, without interest, shall be credited against and reduce the amount of franchise fees which become owing by the franchisee subsequent to the date of such final determination; provided that no such future payment shall be reduced as such a credit by an amount greater than ten percent of the franchise fee payment otherwise owing; and provided further that in no event shall the commission, county or cities become or be liable to the franchisee for reimbursement of any portion of an amount so deposited under protest except as a credit against any future franchise fees which become owing.

If the notice to the franchisee by the commission shows the amount of franchise fees owing, including interest and penalties, the board's determination shall become final and conclusive, not subject to judicial review or reversal by any authority and judicially enforceable, unless the franchisee requests arbitration within the time and in the manner prescribed above.

If the franchisee fails to either pay the franchise fees without protest or request arbitration and if the notice by the commission does not specify the amount of franchise fees, including interest and penalties, owing, or if the franchisee pays an amount without protest and the board of directors of the commission disagrees that the amount paid is the amount owing, the board of directors, at its sole discretion, may request arbitration by mailing written notice of its election to arbitrate to the franchisee.

If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive of subdivision III of division 5 below. The discovery provisions of the California Arbitration Act (Code of Civil Procedure § 1280 et seq.) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

a. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subparagraph "b," below; and

b. The amount, if any, owing by the franchisee. The franchisee shall immediately pay any amount determined to be owing by the arbitration panel. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties and shall not be subject to judicial review or vacation except on grounds set forth in Code of Civil Procedure § 1286.2.

(Ord. No. 97-12, § 2(5.50.612), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The amount of the franchise fees prescribed by section 90-337, above, has been established pursuant to limitations set forth in state law (Government Code § 53066) and regulations of the FCC (47 CFR 76.31).

In the event the above described limitations upon the amount of franchise fees should, during the term of any franchise issued pursuant to the provisions of this article, be increased or eliminated, the franchisee, upon request by the commission, shall enter into negotiations with the cable television commission for the purpose of formulating a mutually agreeable increase in the franchise fees prescribed by section 90-337, above.

Any agreement relating to such an increase shall be embodied in a written contract between the commission and franchisee, which shall be deemed to amend section 90-337, above, respecting the amount of the fees. If within 90 calendar days following the date of request by the commission for negotiations, mutual agreement has not been reached respecting an amendment of the provisions of section 90-337, above, increasing the fees, the directors of the commission may cause written notice of its request to arbitrate to be mailed to each concerned franchisee and the county and cities. The notice shall specifically identify the amount of increase in fees which the board desires to submit to arbitration, and shall describe the nature and amount of uncompensated costs which the commission, county and cities are incurring or desire to incur in administering the franchise or franchises and promoting, assisting and regulating the various types of access use.

The arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive, in subdivision III of division 5. Parties to the arbitration proceeding may include each franchisee who would be affected by an amendment of section 90-337, above, the commission, the county, and the cities. The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to:

a. The interpretation of the provisions of the franchise documents solely in relation to the determination required by subdivision "b" below; and

b. The amount, if any, by which the franchise fees prescribed by section 90-337, above, may be increased.

The arbitration panel shall authorize an increase in the franchise fees by an amount which the panel finds is justified by actual (including past uncompensated) or proposed costs incurred by the commission, county or cities for administering each franchise issued pursuant to the provisions of this article and promoting, assisting and financing any types of community use proposed pursuant to the provisions of sections 90-195 through 90-199 in subdivision I or provided pursuant to section 90-310 in subdivision III, provided that the annual franchise fee shall under no circumstances exceed the maximum permissible percentage per year of a franchisee's annual gross revenues under applicable federal or state law. In the event more than one franchise is issued pursuant to the provisions of this article, the arbitration panel shall establish such an amount with respect to each franchisee. Any increase or increases ordered by the arbitration panel shall be deemed to amend the provisions of section 90-337, above, respecting the amount of the fees. The county and cities shall be authorized to amend section 90-337, above, by increasing the franchise fees by any amounts authorized under the decision of the arbitration panel.

Negotiations and arbitration proceedings pursuant to this section may be initiated by the commission not more frequently than once each year during the remainder of the term of any franchise issued pursuant to the provisions of this article following the increase of or elimination of the statutory and regulatory limitations upon the amount of franchise fees which may be charged under state and federal law.

The arbitration award pursuant to this section may be judicially enforced, shall be final, binding, and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Code of Civil Procedure § 1286.2.

(Ord. No. 97-12, § 2(5.50.614), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The purpose of this section through section 90-348, below, is to permit applicants for a franchise to propose the provision of minimal service during the term of a franchise at rates and charges designed to insure that all residents within the franchise area, including the economically underprivileged, will have the opportunity to benefit from the educational, recreational and other advantages made available by the cable television system.

An applicant who chooses not to make such a proposal shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based.

The county and cities recognize the right of a franchisee to propose the provisions of minimal services at specified rates pursuant to the provisions of this section through section 90-348 below, and nonetheless subsequently elect to be exempt from local rate regulation or to unilaterally adjust its rates in strict compliance with the provisions of Government Code § 53066.1, provided that if, for any reason, the right of the franchisee to elect exemption from rate regulation shall hereafter be abridged or repealed, the full regulatory authority of the commission shall thereupon be restored pro tanto.

(Ord. No. 97-12, § 2(5.50.616), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each applicant for a franchise may state in its application the rates and charges at which various services on the subscriber network will be offered when service is first made available under the franchise.

In addition, an applicant may (but is not required to) propose that the rates and charges for the provision of basic service be maintained during the term of the franchise at levels not greater than those described by sections 90-347 and 90-348, below. An applicant desiring to make such a proposal shall state in its application, for each service area applicable to the franchise, the amounts and types of all rates and charges, including deposits, of whatever kind or nature to be applicable to the provision of basic service, including, but not limited to, rates and charges for connection, installation, reinstatement and the monthly subscription or service charge; and in relation thereto refer to and incorporate by express reference into the application the provision of both sections 90-347 and 90-348, below. The amounts and types of any deposits required in relation to connection, installation, reinstatement subscription or otherwise shall be stated separately. The acquisition or rental costs of converters required to provide basic service, if any, shall not be separately stated and shall be included in the monthly subscription or service charge for basic service, if any. An applicant desiring to make different rates and charges for basic service applicable to single family residential and commercial or certain types of commercial uses, shall separately state the rates and charges according to categories of uses with respect to which differences will apply. As used in this section, the terms "commercial uses" shall include, in addition to other types of business enterprises, hotels, motels, apartments, condominiums, mobile home parks, other multiple-family residential units, and areas served by master antenna systems.

(Ord. No. 97-12, § 2(5.50.618), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee who has referred to and incorporated in its application the provisions of sections 90-347 and 90-348, below, shall comply with the provisions of said sections during the term of the franchise.

If a franchise is issued to an applicant who has referred to and incorporated the provisions of said sections in its application, the receipt by such applicant at any time during the term of the franchise of rates or charges which are inconsistent with the provisions of Government Code § 53066.01 shall be deemed to constitute a substantial and material failure to comply with the franchise documents within the meaning of section 90-51 in division 1.

If, at any time hereafter, the right of the franchisee to elect exemption under Government Code § 53066.01 or other federal or state law shall be abridged or repealed in any manner, the commission's full regulatory authority shall thereupon be restored pro tanto.

(Ord. No. 97-12, § 2(5.50.620), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The provisions of this section shall be applicable only to a franchisee who has referred to and incorporated the provisions hereof by reference in its application for the franchise.

There shall be no charge for the provision of basic service to subscribers, whether residential or commercial, except with respect to rates and charges, if any, stated in the application for the franchise and as otherwise authorized by this section. There shall be no fee or charge to subscribers in connection with the repair or replacement of converters, except in connection with repair or replacement required as a result of misuse or abuse of or damage to the converter while on the premises of the subscriber without fault by the franchisee or its agents.

All rates and charges for basic service stated in the franchisee's application, including those for connection, installation, reinstatement and the monthly subscription or service charge, shall remain in effect until the date on which the franchisee makes basic service available to 100 percent of the dwelling units within each service area identified by the franchise documents for that franchise. The date on which the franchisee shall be deemed to have made basic service available to 100 percent of the dwelling units, shall be deemed to be the date on which the final order of completion is issued pursuant to the provisions of sections 90-236 or 90-237 in subdivision II.

Effective on the date the franchisee is deemed to have made basic service available to 100 percent of the dwelling units as prescribed above, the rates and charges for basic service stated in the franchisee's application, including those for connection, installation, reinstatement and the monthly subscription or service charge or any of them, may be increased by amounts which do not individually exceed 50 percent of the increase, if any, in the Consumer Price Index for All Urban Consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area during the 12-calendar-month period ending 90 days prior to the effective date of such increases. Such rates and charges for basic service shall not exceed the amounts as increased in the manner herein authorized during the 12-calendar-month period following the date on which the adjustments become effective.

At the conclusion of the term of the first increase as identified above, and each 12 calendar months thereafter during the remainder of the term of the franchise, such rates and charges for basic service stated in the application, or any of them, may be increased in a like manner. In each instance, the increase in the amounts stated in the application shall not exceed 50 percent of the increase, if any, in the Consumer Price Index for All Urban Consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area during the 12-month period ending 90 days prior to the date the increase is to become effective.

In the event a franchisee increases rates or charges pursuant to the provisions of this section less frequently than authorized by this section or in any amounts lower than authorized by this section, the provisions of this section shall apply prospectively respecting any such increases as the limitations herein permit, and cumulative or multiple increases based upon the authorization of this section are prohibited. For example, a franchisee who elects to increase basic service rates and charges for the first time effective six months following the date on which basic service is deemed to have been made available to 100 percent of the dwelling units, rather than effective on the date that basic service is deemed to have been made available to 100 percent of the dwelling units, shall apply the Consumer Price Index increase for the 12-month period ending 90 days prior to the actual effective date of the increase, rather than the date when the increase is permitted by this section to be effective, and shall not be authorized to increase rates thereafter until the end of a 12-month period following the actual date of the increase, rather than the date when the increase was permitted by this section to become effective. A potential increase lost by failure to increase rates as authorized by this section may not be recaptured through its addition to future rate increases authorized hereby. If certain types of basic service rates are increased effective on a particular date and others are not, though they might have been, the rates not increased may be individually increased at any time without waiting for expiration of the 12-month period applicable to the types of rates actually increased.

No increase in rates or charges pursuant to this section shall become effective until the expiration of 30 days following the date on which written notice showing the types of rates or charges to be increased, the amount of the increase, the Consumer Price Index increase upon which the rate or charge increase is predicated, and the date on which such rates or charges were last increased is mailed to all existing subscribers of the franchisee who would be affected thereby and filed with the clerk of the board of directors of the cable television commission.

(Ord. No. 97-12, § 2(5.50.622), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The provisions of this section shall apply only to a franchisee who has made reference to this section and incorporated the provisions hereof by reference in its application for the franchise.

Except as hereinafter provided, or as otherwise expressly authorized by this article, a franchisee shall not, in its rates or charges, or in making available the services or facilities of its cable television system, or in its rules or regulations, or in any other respect, make or grant preference or advantages to any subscriber or user with respect to basic service; and such services shall be offered upon terms and conditions which are not discriminatory. A franchisee may offer or make the following distinctions with respect to the terms or conditions of basic service.

a. Rates and charges associated with basic service offered within a proposed service area and, except as provided by sections 90-239 and 90-240 in subdivision II, outside of a service area, may differ from those associated with basic service offered within an imposed service area and may differ from one proposed service area to another. Any such differences in rates and charges between an imposed service area and proposed service areas or among proposed service areas shall be specifically identified in the application pursuant to section 90-345, above, and in the absence of such identification rates and charges set forth in the application shall apply uniformly within all service areas.

b. Rates and charges associated with basic service offered outside of a service area shall, except as otherwise provided by sections 90-239 and 90-240 in subdivision II, be subject to review and approval by the board of directors of the cable television commission pursuant to the provisions of section 90-251 in subdivision II.

c. Within a service area, a franchisee may generally or within limited geographical areas offer, on a limited term basis, reduced rates or charges as part of a promotional campaign to stimulate subscriptions. The monthly subscription or service rate or charge for basic service shall not be eliminated or reduced for a period longer than 90 calendar days during any 36-month period for any particular occupant of the same dwelling unit, including both single-family and multiple-family dwelling units.

d. A franchisee may, in connection with the provision of basic service to commercial uses, as the terms "commercial uses" are defined by section 90-345, above, establish charges for installation or connection (exclusive of deposits) which are either higher or lower than amounts stated in its application, or as permissibly adjusted pursuant to the provisions of section 90-347, above. The amount of any such variance in such rates and charges shall be predicated upon and limited to differences in costs incurred for installation or connection with respect to particular commercial uses in relation to those estimated as set forth in the application. The sole purpose of this subparagraph is to permit variances in connection or installation charges for particular commercial uses based upon the circumstances specially applicable to any individual commercial use, in view of the impracticality of estimating connection or installation costs for commercial uses at the time an application is filed.

e. A franchisee may grant preferential rates or charges to hospitals, rest homes and prisons or detention facilities.

f. With advance approval by the commission, a franchisee may grant preferential rates or charges for services to the elderly, the handicapped, or the economically disadvantaged.

g. A franchisee may require residential subscribers to pay for each month of basic service in advance at the beginning of each month. Service shall not be terminated for delinquency in making a monthly advance payment earlier than 15 calendar days following the date upon which the advance payment is due, and monthly statements to subscribers shall provide notice of the franchisee's policy respecting termination of service for delinquency in making advance payments. With the foregoing exception, and except as otherwise expressly authorized by this article, a franchisee shall not, without advance approval by the commission, require any other advance payment or deposit of any kind with respect to the provision of basic service to subscribers.

The authority vested in the cable television commission by this section shall be exercised by the board of directors of the commission after public hearings conducted by the board or an advisory committee which it designates, notice of which is given in the manner prescribed by section 90-38 in division 1, above. The determinations by the board of directors shall be final, binding, conclusive and not subject to review or reversal by any authority.

(Ord. No. 97-12, § 2(5.50.624), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall file with the certificate of acceptance which it files pursuant to the provisions of section 90-131 in division 3, above, and at all times thereafter maintain in full force and effect, an acceptable corporate surety bond in the amount of $2,500,000.00 effective for the entire term of the franchise, and conditioned that in the event the franchisee shall fail to comply with any one or more of the provisions of the franchise documents, whether or not the franchise is terminated, then there shall be recoverable, jointly and severally from the principal and surety of such bond, any damages suffered by the county, cities, or cable television commission as a result thereof, including, but not limited to, the full amount of any liquidated damages, delinquent franchise fees, compensation and costs of repairing or completing the cable television system, and compensation, and cost of removal or abandonment of property and repair of streets and other public or private improvements, up to the full amount of the bond; said condition to be a continuing obligation for the duration of the franchise and thereafter until the franchisee has satisfied all of its obligations which may have arisen from the acceptance of the franchise or from its exercise of any privileges thereunder. Neither the provisions of this section, any bond accepted pursuant thereto, nor any damages recovered thereunder shall be construed to excuse faithful performance by the franchisee or to limit the liability of the franchisee under the franchise or for damages, either to the full amount of the bond or otherwise. The bond shall contain a provision which prohibits cancellation by the surety during the term of the franchise, whether for failure to pay a premium or otherwise, without 30 calendar days' advance written notice mailed by the surety to the clerk of the board of directors of the cable television commission.

The form of the bond and surety shall be subject to the approval by the county's risk manager.

On or after the date of issuance of the final order of completion pursuant to the provisions of section 90-236 or 90-237 in subdivision II, the board of directors of the commission may, in its sole discretion, reduce, for the remainder of the term of the franchise, the required amount of the bond to a sum not less than $1,000,000.00.

(Ord. No. 97-12, § 2(5.50.700), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall file with the certificate of acceptance which it files pursuant to the provisions of section 90-131 in division 3, above, a certified or cashier's check in the amount of $250,000.00 made payable to the order of the cable television commission. The check shall be cashed and the proceeds retained by the treasurer of the commission in a special account. Said sum shall be maintained by the treasurer as security for the faithful performance by the franchisee of all of the provisions of the franchise documents, any damages, including, but not limited to, liquidated damages, delinquent franchise fees, compensation and costs of completing or repairing the cable television system, and compensation and costs of removal of abandoned property, and repair of streets, and other public or private improvements incurred as a result of the failure of the franchisee to comply with the provisions of the franchise documents, and shall be payable from the account upon the terms, conditions and under the procedures prescribed by section 90-460 in subdivision III of division 5, below. Interest earned upon the sum shall accrue to the credit of the account.

Within ten calendar days after notice is mailed to the franchisee that any amount has been withdrawn from the special account, the franchisee shall deposit with the treasurer of the commission such sum as may be necessary to restore the account to its required amount, including any interest which may have accrued and been credited to the account.

On the date of issuance of the final order of completion pursuant to sections 90-236 or 90-237 in subdivision II, the commission shall reduce the amount of said security deposit by paying so much thereof to the franchisee as will reduce the amount of said deposit retained to $100,000.00, unless on said date there are scheduled or pending or intended to be scheduled or pending proceedings relating to the alleged violation by the franchisee of any of the provisions of section 90-231 in subdivision II. In such event the reduction shall not occur and payment shall not be made until such proceedings are terminated and any damages determined to be owing, compensated. Subsequent to such reduction and payment, said deposit shall be maintained at $100,000.00 plus interest accumulations credited thereto during the remainder of the term of the franchise.

Upon termination of the franchise and satisfaction of any damages, including liquidated damages, which may be due, the balance of the special account, including all interest credited thereto, shall be returned to the franchisee.

The rights reserved with respect to the special account are in addition to all other rights of the county, cities and cable television commission, whether reserved by the franchise documents or authorized by law, and no action, proceeding or exercise of a right with respect to such account shall affect any other right which the county, cities, or commission may have. Nor shall the amount of the special account constitute a monetary limit on the liability for any actual or liquidated damages resulting from breach of the franchise documents.

(Ord. No. 97-12, § 2(5.50.702), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Notwithstanding the provisions of sections 90-371 and 90-372, above, in any instance in which the franchisee is (1) a unit of government, (2) a nonprofit public benefit corporation, or (3) a corporation whose rates, fees, and charges are established by a unit of government, the cable television commission may establish such lesser amount, or none at all, for the corporate surety bond specified by section 90-371 and for the security deposit specified by section 90-372 as it, in its sole and complete discretion, deems appropriate. Nothing contained in this section shall be deemed to require any such reduced amount to be established.

(Ord. No. 97-12, § 2(5.50.703), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall defend, indemnify and hold harmless the commission, its members, and, in their capacity as such, the officials, agents, employees, representatives and volunteers thereof, from any and all claims, demands, suits, causes of action, damages, costs, expense, losses or liability, in law or in equity, of every kind and nature whatsoever ("claims"), arising out of or in connection with franchisee's operations under this ordinance including but not limited to:

a. Injury or death to persons including but not limited to, franchisee's officers, agents, contractors or employees, or damage to property, including loss of use, caused or alleged to be caused in whole or in part by any act or omission of franchisee, its officers, agents, contractors, employees, or representatives or anyone for whose acts franchisee may be liable.

b. Injury or damage arising out of invasion of the right of privacy, libel, slander, defamation of any person, firm or corporation, or the violation or infringement of any copyright, patent, service mark, trade mark, trade name, or of any other right of any person, firm or corporation.

c. Injury or damage arising out of anticompetitive practices alleged against the franchisee.

d. Claims, damages or penalties arising out of franchisee's failure to comply with the provisions of any statute, regulation or ordinance of the United States, State of California or any local agency applicable to the franchisee in its business.

e. Injury or damage arising out of franchisee's failure to comply with the provisions of this ordinance relating to procurement and maintenance of insurance.

f. Injury or damage arising out of franchisee's failure to fulfill any of the covenants set forth in this ordinance.

Franchisee shall pay and satisfy any judgment or decree that may be rendered the against commission, its members, their officials, agents, employees, volunteers or representatives, or any of them, arising out of any such claims.

Franchisee shall reimburse the commission, its members, their officials, agents, employees, volunteers or representatives, for any and all legal expense incurred by any of them in connection herewith or in enforcing the indemnity granted in this section.

Indemnitees may, at their discretion, participate in the investigation and defense of any claims or litigation brought against them at anytime, using legal counsel of their choice, and such expense shall be borne solely by franchisee. Such participation shall not relieve franchisee from its duty to defend, indemnify and hold harmless indemnitees as set forth in this section.

The indemnification obligations of franchisee set forth in this section shall apply regardless of any act or omission of the commission, its members, their officials, agents, employees, representatives or volunteers which may have contributed to the said injury or damage, to the maximum extent allowed by California law.

(Ord. No. 97-12, § 2(5.50.704), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997; Ord. No. 97-22, § 3, 12-10-1997)

Each franchisee shall file with the certificate of acceptance which it files pursuant to provision of section 90-131 in division 3, and at all times thereafter maintain in full force and effect at its sole expense, the following insurance:

a. General liability: General liability insurance including, but not limited to, protection for claims of bodily injury and property damage liability, personal and advertising injury liability, and products and completed operations liability. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage form GG 0001 (occurrence). The limits of liability shall be not less than:

Each occurrence $1,000,000.00

Personal and advertising injury $1,000,000.00

General aggregate $2,000,000.00

Products and complete operations aggregate $2,000,000.00

The policy shall cover contractual liability applicable to the franchisee's assumed liability under this contract.

b. Automobile liability: Automobile liability insurance providing protection against claims of bodily injury and property damage arising out of ownership, operation, maintenance, or use of owned, hired, and non-owned automobiles. Coverage shall be at least as broad as Insurance Services Office Automobile Liability coverage form CA 0001, symbol 1 (any auto). The limits of liability shall not be less than:

Bodily injury and property damage combined single limit $1,000,000.00

If general liability coverage, as required in section 90-375a, above, is provided by the commercial general liability form, the automobile liability policy shall include an endorsement providing automobile contractual liability.

c. Workers' compensation: Workers' compensation insurance, with coverage as required by the State of California (unless the franchisee is a qualified self-insurer with the State of California), and employer's liability coverage. The limits of employer's liability shall not be less than:

Each accident $1,000,000.00

Disease each employee $1,000,000.00

Disease policy limit $1,000,000.00

d. Excess or umbrella liability: Excess or umbrella liability providing excess coverage at least as broad as the underlying coverage for general liability, automobile liability and employer's liability with a limit of $4,000,000.00 per occurrence and in the aggregate.

The franchisee's general liability, automobile liability, and excess or umbrella liability policies shall contain the following provisions:

a. The commission, its members, their officials, agents, employees, representatives and volunteers shall be covered as additional insureds as respects liability arising out of the activities performed by or on behalf of the franchisee, products and completed operations of the franchisee, premises owned, occupied, or used by the franchisee, or automobiles owned, leased, hired, or borrowed by the franchisee. The policy shall contain no special limitations on the scope of coverage afforded to the commission, its members, their officials, agents, employees, representatives or volunteers.

b. The franchisee's insurance coverage shall be primary insurance as respects the commission, its members, their officials, agents, employees, representatives or volunteers. Any insurance or self-insurance maintained by the commission, its members, their officials, agents, employees, representatives or volunteers shall be excess of the franchisee's insurance and shall not contribute with it.

c. Any failure to comply with reporting or other provisions of the policies on the part of the franchisee, including breaches of warranties or unintentional misrepresentations, shall not affect coverage provided to the commission, its members, their officials, agents, employees, representatives or volunteers.

d. The franchisee's workers' compensation and employer's liability policies shall contain an endorsement that waives any rights or subrogation against the commission, its members, their officials, agents, employees, representatives or volunteers.

e. Each insurance policy shall state that coverage shall not be suspended, voided, canceled by either party, reduced in scope or in limits, nonrenewed, or materially changed unless the insurer provides 30 days' advance written notice by certified mail to the clerk of the board of directors of the Sacramento Metropolitan Cable Television Commission, prior to such change. The insurer shall provide ten days' advance written notice by certified mail to the clerk of the board of directors of the Sacramento Metropolitan Cable Television Commission in the event of cancellation due to nonpayment of premium.

f. All of the franchisee's insurance coverage, except as noted below, shall be placed with insurance companies with a current A.M. Best's rating of at least A-:VII.

Exceptions:

i. Underwriters at Lloyd's of London;

ii. Workers' compensation which is provided through a state compensation insurance fund;

iii. Franchisee's qualified workers' compensation self-insurance under California law.

g. The commission will accept franchisee's self-insurance of its general or automobile liability risks only if the franchisee has a minimum net worth of at least $10,000,000.00.

h. The franchisee shall furnish the commission with certificates of insurance, including copies of all endorsements specifically required hereunder, signed by a person authorized by the insurer to bind coverage on its behalf, as evidence of the coverage required by this section.

i. For unforeseen risks, the commission, at its discretion, may increase the amounts and types of insurance coverage required hereunder at any time during the term of the contract by giving written notice to the franchisee. Franchisee shall immediately procure such insurance or increase the amounts of insurance coverage, and provide certificates of insurance as required in section 90-375.h.

j. The form and substance of the insurance required of the franchisee shall be subject to the approval of commission and the County of Sacramento risk manager. Any acceptance of insurance certificates by commission or the County of Sacramento risk manager shall in no way limit or relieve franchisee of franchisee's duties and responsibilities set forth in this ordinance.

k. The failure of the commission to enforce in a timely manner any of the provisions of this section shall not act as a waiver to enforcement of any of these provisions at any time during the term of the franchise.

(Ord. No. 97-12, § 2(5.50.706), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997; Ord. No. 97-22, § 4, 12-10-1997)

The cable television commission shall defend, indemnify and hold harmless the county, the cities, and in their capacity as such, the officials, agents, employees, representatives and volunteers thereof, from any and all claims, demands, suits, causes of action, damages, costs, expenses, losses or liability, in law or in equity, of every kind and nature whatsoever ("claims"), arising out of or in connection with commission's operations under this ordinance.

(Ord. No. 97-12, § 2(5.50.708), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997; Ord. No. 97-22, § 5, 12-10-1997)

The cable television commission shall file with the clerk of each of the governing bodies of the county and cities not later than 120 calendar days after the initial CATV franchise is issued and at all times thereafter maintain in full force and effect at its sole expense, the following insurance:

a. General liability: General liability insurance including, but not limited to, protection for claims of bodily injury and property damage liability, personal and advertising injury liability, and products and completed operations liability. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage form CG 0001 (occurrence). The limits of liability shall not be less than:

Each occurrence $1,000,000.00

Personal and advertising injury $1,000,000.00

General aggregate $2,000,000.00

Products and complete operations aggregate $2,000,000.00

The policy shall cover contractual liability applicable to the franchisee's assumed liability under this contract.

b. Automobile liability: Automobile liability insurance providing protection against claims of bodily injury and property damage arising out of ownership, operation, maintenance, or use of owned, hired, and nonowned automobiles. Coverage shall be at least as broad as Insurance Services Office Automobile Liability coverage form CG 0001, symbol 1 (any auto). The limits of liability shall not be less than:

Bodily injury and property damage combined single limit $1,000,000.00

If general liability coverage, as required in section 90-377.a., above, is provided by the commercial general liability form, the automobile liability policy shall include an endorsement providing automobile contractual liability.

c. Workers' compensation: Workers' compensation insurance, with coverage as required by the State of California (unless the franchisee is a qualified self-insurer with the State of California), and employers liability coverage. The limits of employers liability shall not be less than:

Each accident $1,000,000.00

Disease each employee $1,000,000.00

Disease policy limit $1,000,000.00

d. Excess or umbrella liability: Excess or umbrella liability providing excess coverage at least as broad as the underlying coverage for general liability, automobile liability and employers liability with a limit of $4,000,000.00 per occurrence and in the aggregate.

The commission's general liability and excess or umbrella liability policies shall contain the following provisions:

a. The county and cities, their officials, agents, employees, representatives and volunteers shall be covered as additional insureds as respects liability arising out of the activities performed by or on behalf of the commission. The policy shall contain no special limitations on the scope of coverage afforded to the county and cities, their officials, agents, employees, representatives or volunteers.

b. The commission's insurance coverage shall be primary insurance as respects the county and cities, their officials, agents, employees, representatives or volunteers. Any insurance or self-insurance maintained by the county and/or cities, their officials, agents, employees, representatives or volunteers shall be excess of the commission's insurance and shall not contribute with it.

c. Any failure to comply with reporting or other provisions of the policies on the part of the commission, including breaches of warranties or unintentional misrepresentations, shall not affect coverage provided to the county and cities, their officials, agents, employees, representatives or volunteers.

d. The commission's workers' compensation and employer's liability policies shall contain an endorsement that waives any rights of subrogation against the county and cities, their officials, agents, employees, representative or volunteers.

e. Each insurance policy shall state that coverage shall not be suspended, voided, canceled by either party, reduced in scope or in limits, non-renewed, or materially changed unless the insurer provides 30 days' written notice by certified mail to the clerk of each of the governing bodies of the county and cities, prior to such change. The insurer shall provide ten days' written notice by certified mail to the clerk of each of the governing bodies of the county and cities in the event of cancellation due to nonpayment of premium.

f. All of the commission's insurance coverage, except as noted below, shall be placed with insurance companies with a current A.M. Best's rating of at least A-:VII.

Exceptions:

i. Underwriters at Lloyd's of London;

ii. Workers' compensation which is provided through a state compensation insurance fund;

g. The commission shall furnish the county and cities with certificates of insurance, including copies of all endorsements specifically required hereunder, signed by a person authorized by the insurer to bind coverage on its behalf, as evidence of the coverage required by this section.

h. The form and substance of the insurance required of the commission shall be subject to the approval of the County of Sacramento risk manager. Any acceptance of insurance certificates by the county or cities shall in no way limit or relieve commission of commission's duties and responsibilities set forth in this ordinance.

(Ord. No. 97-12, § 2(5.50.712), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997; Ord. No. 97-22, § 6, 12-10-1997)