Coachella Municipal Code Ch. 5.16 Cable Television Franchises

As used in this chapter, the following words and terms have the following meanings:

The definitions contained in this chapter rely on those contained in the Cable Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 (47 U.S.C. Section 521 et seq.) (the "Cable Act"), as it is from time to time amended and interpreted. Any ambiguity shall be resolved by reference to the federal statutes, regulations and the decisions interpreting the same.

"Access channel" means any program or signal channel available for nonprofit use by government agencies, educational institutions, community groups, individual members of the public, under terms established by the franchise agreement and city regulation.

"Applicable law" means all lawfully enacted and applicable federal, state, and city laws, ordinances, codes, rules, regulations, and orders as the same may be amended or adopted from time to time.

"Basic service" shall, at a minimum, consist of the following: All signals carried in fulfillment of the requirements of Sections 614 [47 U.S.C. 534] and 615 [47 U.S.C. 535] of the Communications Act of 1934, as amended. Each such tier shall also include any public, educational and governmental access programming required by the franchise of the cable system to be provided to subscribers, any signal of any television broadcast station that is provided by the cable operation to any subscribers, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station, and any additional video programming signals the cable operator desires to be added to the basic service.

"Cable Act" means the Cable Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 (47 U.S.C. Section 521 et seq.) (the "Cable Act"), as it is from time to time amended and interpreted.

"Cable service" means: (i) the one-way transmission to subscribers of (a) video programming, or (b) other programming service; and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Cable system" means a facility, or any part thereof, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the city. Such term shall not include: (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right-of-way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of Title II of the Communications Act of 1934, as amended) [47 USCS Section 541] to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (iv) any facilities of any electric utility used solely for operating its electric utility systems; and (v) an open video system that complies with Section 653 of Title II of the Communications Act of 1934, as amended.

"Cable system operator" means any person, group of persons, firm or corporation who either: (1) provides cable service over a cable television system and who, directly or through one or more affiliates, owns a significant interest in such cable system; or (ii) controls or is responsible, through any arrangement, for the management and operation of such cable system.

"City" means the city of Coachella, organized and existing under the laws of the state of California, and the area within its territorial limits.

"City council" or "council" means the city council of the city of Coachella, California.

"Communications Act of 1934" means the legislation passed by Congress in 1934 that established a national telecommunications goal of high quality, universally available telephone service at reasonable cost. The Act also established the Federal Communications Commission (FCC). The Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 have all amended the Communications Act of 1934 as newer telecommunications technologies and national policies have evolved.

"Federal Communications Commission" or "FCC" means that federal agency as presently constituted by the Communications Act of 1934, as amended, or any successor agency, which develops guidelines for the implementation of the Cable Act.

"Force majeure" means a strike, an act of God, an act of public enemies, orders of any kind of a government of the United States of America or of the state or any of their departments, agencies, and political subdivisions, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, volcanic activity, storms, floods, washouts, droughts, civil disturbances, explosions, partial or entire failure of utilities or any other cause or event not reasonably within the control of the disabled party.

"Franchise" means a nonexclusive authorization granted in accordance with this chapter and exercised in accordance with a franchise agreement to install cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the construction, operation, and maintenance of a cable system along the public rights-of-way within all or a portion of the city to provide cable service. Any such authorization, in whatever form granted, shall not mean or include: (i) any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city; (ii) any permit, agreement, franchise for noncable services, or authorization required in connection with operations on public streets or property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along public rights-of-way; or (iii) express or implicit authorization to provide cable service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to Section 621 (a)(2) of the Cable Act, 47 U.S.C. Section 541 (a)(2)).

"Franchise agreement" means a contract entered into in accordance with the provisions of this chapter between the city and a grantee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.

"Franchise area" or "service area" means the area of the city that a grantee is authorized to serve by its franchise agreement.

"Grantee" means a natural person, partnership, domestic and or foreign corporation or entity, association, joint venture or organization of any kind granted a franchise by the city council under this chapter and its lawful successor, transferee or assign.

"Grantees" means two or more cable companies that hold legally authorized franchises from the city to provide cable service within the city.

"Gross receipts" means all receipts, which are received, directly or indirectly, by a grantee from or in connection with the operation of the system to provide cable service including, without limitation:

1. Any receipts received from subscribers, including but not limited to receipts for basic service, expanded basic service, other tier services, additional outlets, FM service, commercial service, premium channel service, pay-per-view service and related per-event services, or for the distribution of other cable service over the cable system or the provision of any cable service-related activity in connection with the operation of the cable system.

2. Receipts received from subscribers for installation, change in service and reconnection charges and similar fees.

3. Receipts received from subscribers for converters, remote controls or other equipment leased or rented to subscribers in connection with the delivery of cable services to such subscribers.

4. Receipts received from subscribers for service charges and late fees attributable to delinquent accounts.

5. Receipts received from third parties, including advertising revenue, home shopping commissions, guide commissions, leased access payments, and studio and other facilities or equipment rentals.

6. Receipts shall include any payment or consideration (including copyright and franchise fees, but excluding any utility users tax or new sales tax imposed by city or the state or federal government) collected for direct payment to a third party. Franchise fees paid to the city are not deemed to be taxes and are not to be deducted from the total gross receipts figure on which franchise fees are paid.

7. Receipts of any other person which is derived directly or indirectly from or in connection with the operation of the cable system to the extent that such receipts are derived through a means which has the effect of avoiding the payment of franchise fees to the city that would otherwise be paid as stated in this chapter.

Gross receipts, as defined in this chapter, shall not include the following:

8. Bad debts written off by grantee in the normal course of its business. However, bad debt recoveries shall be included in gross receipts.

9. Refunds made to subscribers or other third parties.

10. Receipts received as a direct reimbursement of grantee's expense in the operation of any access channels.

11. Sales, ad valorem, or other types of "add on" taxes, levies, or fees calculated by gross receipts which grantee might have to pay or collect for federal, state or local government (exclusive of franchise fees provided for in this chapter).

12. Receipts received for advertising on grantee's local origination channel (if any) to the extent of grantee's direct costs of operation of grantee's local origination channel.

13. Nonoperating receipts such as interest income or gain from sale of an asset.

14

Receipts received for converter deposits.

15. Receipts received from the service extension surcharge authorized under this chapter or any franchise granted hereunder.

In computing gross receipts from sources other than a grantee's subscribers, including without limitation, receipts derived from the sale of advertising, home shopping services, guide sales, the lease of channel capacity on its cable system, or any other such receipts derived from the operation of the cable system, the amount of such receipts attributable or allocated to grantee in accordance with generally accepted accounting principles, for the purpose of determining gross receipts, shall be the aggregate receipts received by grantee from such other sources during the period in question multiplied by a fraction, the numerator of which shall be the number of grantee's subscribers in the city as of the last day of such period and the denominator of which shall be the number of subscribers within all areas served by grantee's regional cable system (if any) as of the last day of such period.

"Normal business hours" means those hours during which most similar businesses in the community are open to serve customers, including some evening hours at least one night per week and/or some weekend hours.

"Person" means an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the city.

"Public rights-of-way" means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, parkway, waterway, easement, or similar property in which the city now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public rights-of-way" shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use such property as are properly in the city's authority and as the city may have the undisputed right and power to give.

"Service area" means the entire territory defined in a franchise agreement to receive cable service. The city may grant a franchise for all or any defined portion of the city.

"Subscriber" means any person who legally receives any service delivered over a cable system.

"Total number of subscribers" means the number of subscribers determined as follows: in the event a single fee is paid for service to a multiple dwelling unit, the number of equivalent subscribers shall be determined by dividing such fee by the then prevailing basic service tier rate and rounding the resulting quotient to the nearest whole number which must then be added to the number of all other subscribers.

(Prior code § A-2-1)

A. Scope of City's Authority. The city may grant one or more franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this chapter. However, no franchise shall be granted on terms or conditions more favorable or less burdensome than those contained in any existing franchise.

B. Franchise Required. A franchise is required of any person desiring to construct, operate and maintain a cable system within all or any portion of the city. A franchise may be granted by the city council to any person, whether operating under an existing franchise or not, who or which offers to furnish and provide such cable system under and pursuant to the terms and provisions of this chapter and a franchise agreement acceptable to the city council. The grant of a cable franchise is not an authorization to provide other services except as may otherwise be permitted under applicable state or federal law, nor is it a bar to the imposition of other compensation requirements.

C. Rights Reserved to City. The city expressly reserves the following rights:

1. To exercise its governmental powers, now or hereafter, to the full extent that such powers may be vested in or granted to the city.

2. To adopt and promulgate ordinances as it shall find reasonably necessary in the exercise of its lawful police power. Such power shall include all rights the city may have under 47 U.S.C. § 552 and the right of the city to manage the public rights-of-way and to adopt such lawful regulations of general applicability relating to the management of the public rights-of-way as the city and/or its departments shall provide. Nothing in a franchise agreement shall be deemed to waive the requirements of the various codes and ordinances of the city regarding permits, fees to be paid, or manner of construction.

The powers of the city may be exercised through a mutually agreed upon amendment of this chapter as well as through enactment of separate ordinances and regulations of general applicability.

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

It is unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a franchised cable system within the city for the purpose of enabling himself or herself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of the cable system.

It is unlawful for any person without the consent of grantee, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.

E. Failure of City to Enforce Compliance. A grantee shall not be excused from complying with any of the provisions of this chapter or the terms and conditions of a franchise agreement by any failure of the city, upon any one or more occasions, to insist upon the grantee's performance or to seek grantee's compliance with any of the provisions of this chapter or terms or conditions of a franchise agreement.

F. Franchise Fees. Grantee shall pay to the city five percent of its gross receipts as a franchise fee.

The franchise fee shall be payable quarterly to the city. Upon request by the city, the grantee shall file a complete statement listing receipts included in the gross receipts during the period for which such quarterly payment is made. Such payment shall be made to the city treasurer not later than sixty (60) days after the end of each calendar quarter. The grantee shall also provide annually within ninety (90) days after the end of the fiscal year a report certified as to accuracy by a certified public accountant, who may be an employee of grantee, verifying each revenue item included in gross revenues and an explanation of the source documents and methodology used in the calculation of each revenue that constitutes gross revenue and gross receipts.

City may examine all applicable records of the grantee to determine accuracy of amounts payable to city.

The city shall have right to audit and to recompute any amounts determined to be payable under this chapter; provided, however, that such audit shall take place within thirty-six (36) months following the close of each of the grantee's fiscal years. Any additional undisputed amount due to the city as a result of the audit shall be paid within thirty (30) days following written notice to the grantee by the city. Such notice to the grantee shall include a copy of the audit report. The city will bear the cost of the city audit, provided, however, that if such audit indicates a franchise fee underpayment of five percent or more of the amount due, grantee shall assume all reasonable costs of such audit.

In the event that grantee does not make the franchise fee payment or an undisputed recomputed amount is not made on or before the applicable dates heretofore specified, following notice by the city to the grantee, interest shall be charged daily from such applicable date at the annual rate equivalent to the then existing prime rate of the largest bank in the city.

G. Franchise Term. The term of a franchise shall be for the number of years negotiated in the franchise agreement with the city unless terminated earlier in accordance with this chapter.

H. Grantee to be Bound by Terms and Conditions of this Chapter and Franchise Agreement. In case of conflict, franchise agreement supersedes this chapter.

In the event of a conflict between the franchise agreement and the provisions of this chapter, the provisions of the franchise agreement shall prevail. Failure to provide services as promised in grantee's franchise may be deemed a breach of this chapter to which the provisions of Section 5.16.140 and Section 5.16.150 of this chapter shall apply.

(Prior code § A-2-2)

A. Application—Non Refundable Fee. An application for a new cable television franchise (not a franchise renewal) shall be submitted to the city council, or its designee, in accordance with the procedures established by the city council. The application shall contain facts and information the city council deems appropriate. Applications shall be accompanied by a nonrefundable application fee of four thousand dollars ($4,000.00), paid to the order of the city, which amount shall be used by the city to offset direct expenses incurred in the franchising and evaluation procedures, including but not limited to staff time and consulting assistance.

B. Grantee to Pay Costs of Granting Franchise. An applicant to whom the city council grants a nonexclusive initial franchise, in addition to the nonrefundable fee specified herein above, shall pay to the city, within thirty (30) days of receipt of notice of the amount, an amount set by the city council, or its designee, which shall represent the remaining out-of-pocket costs incurred by the city, in granting the franchise and not defrayed by fees forthcoming from the provisions of Section 5.16.030(A).

C. Procedure Required by City to Process an Application and/or Require a Request for Proposals.

1. Upon receipt of an application, the city may either: (i) evaluate the application pursuant to subsection (C)(4) of this section, conducting such investigations as it deems necessary; or (ii) issue a request for proposals after conducting a proceeding, if necessary, to identify the future cable related needs and interests of the community. Any such request for proposals shall be provided to the person applying for an initial franchise and made available to any other interested party. The request for proposals may contain a proposed franchise agreement.

2. An applicant shall respond to a request for proposals by filing an application with the city within the time directed by the city that contains the information and material set forth in subsection D of this section. The procedures, instructions, and requirements set forth in the request for proposals shall be followed by each applicant. Any applicant that has already filed an application need not refile the same materials with its response to the request for proposals, but must supplement its application to include any additional or different information or material required of the request for proposals. The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.

3. Notwithstanding the provisions in this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in subsection D of this section, and requesting an evaluation of that application pursuant to subsection (C)(4) of this section. Prior to evaluating such an application, the city may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in subsection (C)(4) of this section. The city may seek additional applications.

4. In evaluating an application for a franchise, the city shall consider, among other things, the following factors:

a. Whether the applicant has the financial, technical, and legal qualifications to provide cable service;

b. Whether the application satisfies any minimum requirements established by the city and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;

c. Whether the applicant will provide adequate public, educational, and governmental access channel capacity, facilities or financial support;

d. Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be affected by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way, the effect of granting a franchise on the ability of an existing franchisee, if any, to meet the cable related needs and interests of the community and the comparative superiority or inferiority of competing applications; and

e. What effects a grant of a franchise may have on competition in the delivery of cable service in the city.

5. If the city finds that it is in the public interest to issue a franchise after considering the factors set forth above, and subject to the applicant's entry into a franchise agreement, it shall issue a franchise. If the city denies an application for an initial franchise, it will issue a written decision setting forth its reasons for denial. Prior to deciding whether or not to issue a franchise, the city will hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city may reject any application that is incomplete or fails to respond to a request for proposals. This chapter is not intended and shall not be interpreted to grant any applicant standing to challenge the denial of its application or the issuance of a franchise to another applicant.

D. Application Requirements. Ten (10) copies of the application shall be filed with the city clerk of the city and shall contain such information as the city may require, including but not limited to:

1. A general description of the applicant's proposed operation.

2. A statement detailing the applicant's business or corporate organization including, but not limited to, the identification of any person, persons, or entity holding a five percent or greater interest in the applicant's business, a statement disclosing five percent or greater interests that the applicant has in any other business, corporation, or partnership, and a statement describing all intracompany relationships of the applicant including parent, subsidiary or affiliated companies.

3. A written commitment to timely service and restore all property affected by such service.

4. A schedule of proposed charges.

5. A statement setting forth the channels to be allocated for public, educational and governmental use as contemplated by 47 U.S.C. § 531 and for leased access as required by 47 U.S.C. § 532, a description of the production facilities and equipment to be made available by the applicant for access, and a statement establishing any additional receipts to be designated for programming or programming assistance for the access channels.

6. If the applicant is a corporation, audited financial statements for the five previous fiscal years. If applicant is a partnership, copies of the "U.S. Partnership Return of Income" (IRS Form 1065) for the five previous fiscal years. If applicant is a sole proprietorship, copies of personal financial statements for the five previous fiscal years.

7. An estimated five year operations pro forma which shall include the initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets, and annual levels of subscriber penetration. The pro forma shall also state the average return on investment anticipated by the applicant for the five year operations period and shall state the method of computation thereof. Costs anticipated for voluntary services or contributions shall, if presented, be incorporated in the pro forma as required in this chapter, but shall be separately identified in the pro forma.

8. A list of existing franchises held by the applicant indicating when the franchises were issued and when the systems were constructed in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant.

9. A statement detailing the applicant's prior operational experience in cable television systems and/or microwave service, including that of its officers, management and any staff to be associated with the proposed operation.

10. A general statement of the applicant's ability and intent to incorporate technological improvements and advancements in the cable television system as such improvements or advancements are generally available in the industry.

11. A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel and their qualifications.

12. A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:

a. The applicant must not have had an application for an initial or renewal franchise in the city lawfully denied within the three years preceding the date on which its current application was submitted;

b. The applicant must not have had any cable television franchise lawfully revoked by any franchising authority within three years preceding the date on which its current application was submitted;

c. The applicant must have the necessary authority under the laws of the state of California to operate a cable system;

d. The applicant must have the necessary authority under federal law to hold the franchise and to operate a cable system. An applicant must have, or show that it is qualified to obtain, any necessary federal franchises or waivers required to operate the cable system proposed;

e. The applicant shall not have been convicted, at any time during the last ten (10) years preceding the date on which its application was submitted, of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the city and with the subscribers or to substantially comply with its lawful obligations under applicable law, including obligations under the consumer protection laws and under the laws prohibiting anti-competitive acts, fraud, racketeering, or other similar conduct;

f. The applicant shall not have filed materially misleading information in its application or have intentionally withheld information that the applicant is lawfully required to provide; and

g. If the city is considering denying a franchise to an applicant for the above listed grounds, the city shall provide an opportunity to the applicant to show to the city any particular circumstances surrounding the matter, the steps taken by the applicant to cure any harms and to prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of applicant's cable systems.

13. Identification of the area in the city to be served by the proposed cable system, including a description of the proposed boundaries of the franchise area.

14. If the applicant proposes to provide cable service to an area already served by an existing franchisee, the identification of the area where the overbuild would occur and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional cable system.

15. An affidavit or declaration of an authorized officer of the applicant certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements provided by federal, state and local law.

16. Any other reasonable and applicable information which the city council may request.

E. Request for Proposals, Public Comment Periods, Evaluating Applications, Public Hearing. Upon the filing of any franchise application and related documents, all such documents are deemed public records open to inspection by the public during reasonable hours, including specifically the regular business hours of the city clerk.

Before issuance of a request for proposals, the city shall maintain the proposed request for proposals on the agenda of at least two city council meetings for the purpose of determining any special local needs or interest. Any citizen of the city shall have the right to comment in writing, filed in advance, or orally at any meeting at which the proposed request for proposals is to be considered.

Following reasonable notice to the public, any franchise application shall be available for inspection for a period of at least twenty (20) days prior to the city council taking action on the application. Any citizen of the city shall have the right to comment in writing, filed in advance, or orally at any meeting at which a franchise application is to be considered.

Before authorizing the issuance of any such franchise, the city council shall review the applicant's legal, financial and technical qualifications and the adequacy and feasibility of the applicant's qualifications to operate a cable television system within the city based upon information provided to the city council by the applicant and by other sources in writing or at any public hearing or meeting of the city council. In addition, the city council shall conduct a public hearing on the proposed franchise with at least seven days advertised notice prior to such public hearing.

F. Awarding a Franchise. After examining all applications submitted pursuant to procedures to be established by the city council designed to assure the legal, financial and technical qualifications of an applicant to provide cable service, the city council is authorized, after a full hearing affording due process, to grant a nonexclusive franchise conveying the right to construct and operate a cable system within the public rights-of-ways of the city. A franchise may be awarded to the applicant which, in the city council's discretion, will best serve the public interest and whose construction and financial plans and arrangements are both feasible and adequate to fulfill the conditions set forth in this chapter and in a franchise agreement.

No provision in this chapter shall be deemed or construed to require the city council to grant a franchise following receipt of any franchise application.

No franchise shall be valid until grantee enters into a franchise agreement having terms and conditions acceptable to the city.

(Prior code § A-2-3)

A. City's Right to Purchase Cable System. The city shall have the right to purchase the cable system in accordance with Section 627 of the Communications Act of 1934, as amended.

B. Prior Written Consent of City Required Before any Sale, Assignment, or Transfer of a Franchise. A franchise and any rights or obligations of the grantee under the franchise shall not be sold, assigned, or transferred, either in whole or in part, or leased, sublet, in any manner, nor shall title thereto, either legal or equitable, pass to or vest in any person without prior written consent of the city, which consent will not be unreasonably withheld. Such consent shall not be required for a trust, mortgage, or other hypothecation in whole or in part to secure an indebtedness.

C. Prior Written Consent of the City Required Before any Transfer of Ownership or Control of Grantee. Ownership or control of grantee shall not be transferred without the prior written consent of the city, which consent will not be unreasonably withheld.

D. Grantee to Submit Application Documenting Information Required by the City. A grantee shall promptly notify the city of any action or proposed action requiring consent of the city pursuant to subsections A through K of this section.

A grantee shall submit to the city an original application (FCC Form 394 or any successor form thereto) and four copies, unless otherwise directed, which application shall fully describe the terms and conditions of the action or proposed action subject to this section and clearly state the basis on which the application should be approved.

At any time during the review process, the city reserves the right to request additional supporting documentation from a grantee or any other person involved in the action or proposed action, all in accordance with federal law. A grantee shall provide all reasonably requested assistance to the city in connection with any such inquiry and, as appropriate, shall secure the cooperation and assistance of all other persons involved in such action, all in accordance with federal law.

For any application requiring the city's consent pursuant to subsections A through K in this section, the city shall respond to such application within one hundred twenty (120) days from the date of filing such application and the city's receipt of all additional information required by the city pursuant to this chapter, the grantee's franchise agreement, and applicable law. Such application shall be deemed approved if the city should fail to render a final decision within one hundred twenty (120) days following the grantee's filing of the application and the city's receipt of all information reasonably required to accompany such application under this chapter, grantee's franchise agreement and applicable law.

E. Showings Required of Proposed Assignee or Transferee. Assignee or Transferee Must Agree to Conditions Prescribed by City. A proposed assignee or transferee must demonstrate that it possesses the legal, financial and technical qualifications necessary to perform all the terms, conditions and obligations under this chapter and the grantee's franchise agreement for the remaining term thereof, and such reasonable additional obligations required of the assignee or transferee by the city for the specific and limited purpose of assuring the performance by the assignee or transferee of all the terms, conditions and obligations of the franchise agreement.

F. Grantee and Assignee or Transferee to Assist City in City's Inquiry of Prospective Controlling Party. Grantee Promptly to Notify City of Any Actual or Prospective Change in Control of Franchise.

1. Grantee's Responsibility. A grantee shall assist the city in its inquiry into an assignee's or transferee's qualifications.

2. Assignee's or Transferee's Responsibility. In seeking the city's consent to any change in ownership or control of a franchise or of a grantee, assignee or transferee shall have the responsibility to establish the facts, to the satisfaction of the city, that assignee or transferee has all of the legal, financial, and technical qualifications necessary to perform all of the terms, conditions and obligations of the grantee under its franchise agreement for the remaining term thereof. The city may request, and assignee or transferee shall provide, all reasonable financial data relative to the transfer. In addition, assignee or transferee shall provide to the city the terms and conditions of the sale and any other information reasonably related to the assignee's or transferee's acquisition of the grantee's franchise which is needed to clarify the change in ownership.

G. Transfer of Control Occurs with Change of Forty-five Percent of Voting Interest or of Person Exercising Management Authority Over Grantee. For purposes of this section, "control" means the ability to exert working control, in whatever manner exercised, over the affairs of a grantee, either directly or indirectly.

A rebuttable presumption that transfer of control has occurred, including of control in fact (i.e. transfer of de facto control), shall arise upon the acquisition or accumulation by any person, or group of persons, of forty-five (45) percent of the voting interest of a publicly held grantee, or of forty-five (45) percent of the voting interest of a privately held grantee or of the person exercising management authority over such a privately held grantee.

H. Transfer or Assignment without Prior Consent Deemed to be Material Breach, and May be Subject to Liquidated Damages. Any transfer or assignment of a franchise or of ownership or control of grantee without the prior consent of the city shall be null and void unless later ratified by the city and shall: (i) be deemed a material breach of a franchise agreement; and (ii) among and/or in addition to other remedies available to the city, be subject to a liquidated damages assessment, on a daily basis, until the transfer or assignment is approved, or if not approved, until the prior ownership, control or other status quo is restored to a condition satisfactory to the city.

I. City May Revoke Franchise if Unauthorized Transfer or Assignment Occurs. If the city fails to approve or deny its consent to any such transfer or assignment of a franchise, in accordance with federal law, or of the ownership or control of a grantee and such action has nevertheless been effected, the city may revoke a franchise and terminate a franchise agreement unless control of the grantee or the system is promptly restored to its status prior to such unauthorized action or to a status acceptable to the city.

J. Consent of City to Transfer or Assignment shall not Constitute Waiver of City's Rights. The consent or approval of the city council to any transfer or assignment of a franchise or of ownership or control of a franchise shall not constitute a waiver or release of any of the rights of the city unless the city specifically releases or waives such rights.

K. Successor Grantee Must Become Signatory to Franchise Agreement. In no event shall an assignment of a franchise or a transfer of ownership or control be approved without the successor grantee becoming a signatory to the existing franchise agreement.

L. Grantee Not to Enter Into Any Management Contract if Results in a Change of Control. A grantee shall not enter into any management contract or other arrangement for the management of the system, to the extent that such contract or other arrangement would result in a significant change of operational control of a grantee or the system (as defined in subsection G of this section), without the prior consent of the city.

M. No Prior Consent Required for Transfer or Assignment If Under Common Control. Notwithstanding anything to the contrary, no such prior consent of the city shall be required for any transfer or assignment to any person controlling, controlled by, or under the same common control as the grantee.

(Prior code § A-2-4)

A. Indemnification of the City.

1. The grantee shall, at its sole cost and expense, indemnify, defend and hold harmless the city and its officials, officers, boards, commissions, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damage arising out of the operation of the cable television system under a franchise. These damages include, but are not limited to, personal injury property damage, penalties arising out of copyright infringements and antitrust violations and damages arising out of the failure by the grantee to secure consent from the owners, authorized distributors or licensees of programs to be delivered by the grantee's cable television system, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise. Indemnified expenses include, but are not limited to, all out-of-pocket expenses, such as reasonable attorney fees incurred by city (in the event city determines in good faith that its interests cannot be adequately represented by grantee), and the reasonable value of any services rendered by the city attorney or his or her assistant and by any employee, consultant, or agent of the city.

2. In order for the city to assert its rights to be indemnified and held harmless, the city must:

a. Promptly notify grantee of any claim or legal proceeding which gives rise to such right;

b. Afford grantee the opportunity to participate in and fully control any compromise, settlement, resolution or disposition of such claim or proceeding; and

c. Fully cooperate in the defense of such claim and make available to grantee all such information under its control relating thereto.

B. Public Liability Insurance.

1. A grantee shall maintain throughout the term of the franchise, or any renewal or extension thereof, a general comprehensive liability insurance policy in a company authorized to do business in the state of California naming as an additional insured the city and its officials, officers, boards, commissions, agents and employees in a form satisfactory to the city attorney.

2. The general comprehensive liability insurance policy required by this section shall provide for indemnifying, defending and saving harmless the city and its officials, officers, boards, commissions, agents and employees in the following minimum amounts from any and all claims, demands, causes of action, suits, proceedings, damages, liabilities and judgments of every kind by any person whatsoever against liability for: (i) loss or damage for personal injury or death occasioned by the operations of the grantee under any franchise granted by this chapter, with a minimum liability of one million dollars ($1,000,000.00) for personal injury or death of any one person, and two million dollars ($2,000,000.00) for personal injury or death of any two or more persons in any one occurrence; (ii) property damage occasioned by the operations of the grantee under the franchise granted under this chapter, or alleged to have been so caused or occurred, with a minimum liability of one million dollars ($1,000,000.00) for property damage to the property of any one person, and two million dollars ($2,000,000.00) for the property damage to the property of two or more persons in any one occurrence; and (iii) copyright infringement occasioned by the operations of the grantee under the franchise granted under this chapter with a minimum of one million dollars ($1,000,000.00) for the infringement of such copyright.

C. Notice of Cancellation or Reduction of Coverage. The insurance policies mentioned above shall state that the policies are extended to cover the liability assumed by the grantee under the terms of any franchise agreement and shall contain the following endorsement.

"It is hereby understood and agreed that this policy shall not be canceled nor the amount of coverage thereof reduced until thirty (30) days after receipt by the city by registered mail of written notice of such intent to cancel or reduce the coverage."

D. Evidence of Insurance Filed with the City. A certificate of insurance, on a form satisfactory to the city attorney, and written evidence of payment of required premiums shall be filed and maintained with the city during the term of this franchise or any renewal thereof.

E. No Waiver of Insurance or Performance Bond. Recovery by the city of any amounts under insurance, a performance bond, or otherwise does not limit a grantee's duty to indemnify the city in any way; nor shall such recovery relieve a grantee of its obligations under a franchise, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have pursuant to this chapter, a franchise agreement, or applicable law.

(Prior code § A-2-5)

A. Map and Plan to be Provided. Grantee shall submit to the city a construction or reconstruction plan not less than thirty (30) days prior to the date grantee intends to commence construction or reconstruction of the cable system. The plan shall also include a map of the entire service area and shall clearly delineate the following:

1. Areas within the service area where the cable system will be available to subscribers, including a time schedule of construction or reconstruction for each year that construction or reconstruction is proposed.

2. Areas within the service area where the cable system cannot reasonably be extended due to lack of present or planned development or other similar reasons, with the areas and the reasons for not serving them clearly identified on the map.

B. Delay in Cable System Construction or Reconstruction Requires Consent by City Council. Any delay in the cable system construction or reconstruction beyond the times and dates specified in the franchise agreement shall require application to the city and consent of the city council after receiving recommendation from the city manager. Any delay beyond the construction or reconstruction timetable set forth in the franchise agreement, unless approved by the city council, will be considered a violation of the franchise for which the provisions of Sections 5.16.130 and 5.16.140 shall apply. However, nothing in this section shall prevent a grantee from constructing or reconstructing the cable system earlier than planned.

C. Cable System Construction and Operation to be Consistent with City Requirements; the City to Observe Annual Proof of Performance Tests—The City May Conduct Independent Tests at Cost of Grantee. Grantee shall construct, install, operate and maintain its cable system in a manner such that it operates at all times consistent with generally applicable laws, ordinances, and construction standards of the city, and the rules and regulations of the Federal Communications Commission. In addition, a grantee shall provide the city, upon request, with the opportunity to observe the conduct of, and receive a written report of the results of, grantee's annual proof of performance tests. The city may, at any time following written notice to the grantee and affording the grantee with a reasonable opportunity to be present, conduct independent measurements of the system.

D. Additional Specifications Standby Power, National, State and Local Codes. Grantee shall construct, install and maintain the cable system in an orderly and professional manner, using due diligence and materials of good and durable quality. All cables and wires shall be installed, where reasonably possible, parallel with and in the same manner as electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. Underground installations shall be in conformance with applicable law.

A grantee shall maintain equipment capable of providing standby power to be engaged automatically in the event of a power failure for twenty-four (24) hours at the headend.

A grantee shall at all times comply with applicable sections of the following laws, codes, regulations, and standards, as from time to time amended and revised, and all generally applicable rules and regulations now in effect or hereinafter adopted by the city:

1. National Electrical Safety Code (ANSI) most recently adopted;

2. National Electrical Code (National Bureau of Fire Underwriters);

3. Rules and regulations of the Federal Communications Commission;

4. Building Code, as adopted by the city;

5. Subdivision regulations, as adopted by the city; and

6. Road Standards, as adopted by the city.

In any event, the grantee shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where a grantee may have equipment located.

E. Access to Grantee's Trenches by Other Utilities. Grantee shall cooperate in the planning, locating and construction of its cable system in utility joint trenches or common duct banks with other telecommunications providers. The city will provide advance notice to any grantee when it plans to open a trench and each grantee shall provide notice to the city when it plans to open a trench. The grantee and the city will offer to make space available to the other on negotiated terms and conditions.

F. If City Determines Any Part of Facilities are Harmful to Health and Safety of Any Person, Grantee Shall Promptly Correct. If, at any time, it is determined by the city, or any other agency or authority of competent jurisdiction, that any part of the cable system is endangering the public, including, without limitation, missing vault or pedestal covers, temporary drop cables that cross walkways, driveways or other areas, and low cables, riser problems and other violations of state or local laws that are harmful to the health or safety of any person, a grantee shall correct all such conditions, at its own costs and expense, within twenty-four (24) hours of receipt of notice from the city, or any other agency or authority of competent jurisdiction. Until such conditions are corrected, grantee shall post suitable warnings to ensure that the health and safety of persons possibly affected is ensured.

G. Grantee to Maintain System in Conformance with FCC Signal Leakage Rules. A grantee shall construct, operate, and maintain the cable system in conformance with FCC signal leakage requirements, as provided in 47 C.F.R. 76 subpart K, to prevent interference with the transmission or reception of over-the-air broadcast signals.

H. Grantee to Take All Necessary Steps to Prevent Accidents. A grantee shall, at its own cost and expense, take all necessary efforts to prevent accidents at its work sites, including the placing and maintenance of proper guards, fences, barricades, and security personnel and, at night, suitable and sufficient lighting.

I. Notice of Cable Construction/Repair to Subscribers. Grantee will use its best efforts to notify residents on affected streets of pending construction or major repairs, including any which require street or sidewalk trenching, at least forty-eight (48) hours prior to commencement of such work. Notification shall be made by providing an appropriate notice at or to the residence by such means as door hanger notice, first-class mail, or telephone contact. In the event of a system extension or rebuild possibly affecting general system reception, a grantee shall notify all of its subscribers, by any reasonable written means at least fourteen (14) days prior to commencement of such work, stating the scope and duration of the proposed extension or rebuild and the anticipated impacts.

(Prior code § A-2-6)

A. City's Right to Use Poles Owned by Grantee. The city shall have the right to install and maintain, on terms and conditions mutually agreed to by the parties, upon any poles, pole fixtures and wire owned by a grantee.

B. All Grantee's Poles to be Installed Only at Locations Approved by the City. Any poles of a grantee to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved in writing by the city, in the exercise of reasonable discretion. The grantee shall make no paving cuts or curb cuts unless absolutely necessary, but only after written permission has been given by the city.

C. During Construction, Reconstruction or Maintenance of Cable System, Grantee Shall Not Obstruct Public Ways Without Prior Consent of Authorities. In connection with the construction, reconstruction, operation, maintenance, repair, or removal of the cable system, a grantee shall give due regard to the aesthetics of the franchise areas and shall not obstruct the public ways, streets, railways, passenger travel, or other traffic to, from or within the city, without prior consent of the appropriate city authorities. In addition:

1. All transmission and distribution structures, lines, and equipment erected by a grantee within the city shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any streets or public way.

2. In case of any disturbance of any public way, street, easement, paved area or other property, a grantee at its own cost and expense and in a manner and time period approved by the city, shall replace and restore such public rights-of-way in as good condition as before the work involving such disturbance was done.

D. Permits Required to be Obtained Prior to Any Physical Work Being Performed in City's Streets. A grantee or its authorized contractors must obtain any generally applicable permits from the city prior to any physical work being performed in the city's streets or on city-owned property. All work shall be done in accordance with the city's generally applicable specifications and must comply with all applicable law.

E. Grantee to Prepare Detailed Maps of System Prior to Issuance of Permission for Construction or Reconstruction. A grantee shall cause maps of the relevant portion of the cable system showing materials of construction and power supply locations to be filed with the city prior to the issuance of any required permit for construction or reconstruction.

F. Upon Undergrounding of Utility Lines, Grantee Shall Concurrently Place Lines Underground in Conduits at Depth in Accordance with Applicable Law. Trunk, feeder and drop cable may be constructed overhead where poles now exist and electrical or telephone lines or both are now overhead. However, where electrical and telephone lines are now underground, all trunk, feeder and drop cable shall be constructed underground at such depths and locations as shall be required by applicable law applicable to cable television systems. Whenever and wherever electrical lines and telephone lines are moved from overhead to underground placement in an area, all cable system facilities and plant in that area shall be similarly and concurrently moved underground by the grantee at the grantee's sole cost and expense at such depths and locations as shall be required by applicable law. Notwithstanding anything to the contrary in the event any utility is compensated by the city for moving or relocating its facilities, then in such case the grantee shall be similarly compensated.

G. Grantee May Be Required to Move Its Facilities to Accommodate Changes in Public Improvements. A grantee shall, from time to time, protect, support, temporarily dislocate, or temporarily or permanently, as may be required, remove or relocate, without expense to the city or any other governmental entity, the cable system, if and when made necessary by any lawful change of grade, alignment, or width of any public street by the city or any other governmental entity, or made necessary by any other public improvement or alteration in, under, on, upon or about any public street or other public property, whether such public improvement or alteration is at the instance of the city or another governmental entity, and whether such improvement or alteration is for a governmental or proprietary function, or made necessary by traffic conditions, public safety, street vacation or any other public project or purpose of the city or any other governmental entity. The decision of the community development director under this section, absent review by the city council, shall be final and binding on a grantee. Notwithstanding anything to the contrary, in the event any utility is compensated by the city for moving or relocating it's facilities, then in such case the grantee shall be similarly compensated.

H. Grantee Shall Obtain Prior Approval Before Altering any Municipal Facility—Alterations to be at Cost of Grantee. In connection with the construction, operation, maintenance, repair, or removal of the cable system, a grantee shall, at its own cost and expense, protect any and all existing structures belonging to the city. A grantee shall obtain the prior approval of the city before altering any water main, sewage or drainage system, or any other municipal structure in any public way or street, because of the presence of the cable system in the public ways or streets. Any such alteration shall be made by a grantee, at its sole cost and expense, and in a manner reasonably prescribed by the city. A grantee shall also be liable, at its own cost and expense, to replace or repair and restore to as close to its prior condition as is reasonably possible and in a manner reasonably specified by the city, any public way, street or any municipal structure involved in the construction of the cable system that may become disturbed or damaged as a result of any work thereon performed by or on behalf of the grantee.

I. Grantee Shall Temporarily Move Its Wires to Permit Moving of Buildings. Grantee shall, at the request of any person holding a moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid to the grantee by the person requesting the same, and grantee shall have the authority to require such payment in advance. Grantee shall be given not less then seven days notice to arrange for such temporary wire changes.

J. Grantee Shall Repair and Restore Damage to City Facilities and Shall Maintain Restoration. In the event that a grantee during construction, installation, inspection or repair of its cable system causes damage to pavement, sidewalks, driveways, landscaping or other property, the grantee or the authorized agent shall, at its own expense and in a manner approved by the city, replace and restore such places to the same condition which existed before such work was commenced.

K. Failure by Grantee to Complete Restoration Work in Any Street Can Result in City Causing Work to be Done at Expense of Grantee. Upon failure of the grantee to complete any restoration to be done in any street or other public place, within ten (10) days following due notice and to the reasonable satisfaction of the city, the city may, at its option, cause such work to be done and a grantee shall pay to the city the cost thereof in the itemized amounts reported by the city to the grantee, within thirty (30) days after receipt of such itemized report. In the alternative, at the city's option, the city may demand of grantee the estimated cost of such work as estimated by the city, and such shall be paid by grantee to city within thirty (30) days of such demand, thereafter, upon award of any contract or contracts for such work, grantee shall pay to city within thirty (30) days of demand any additional amount necessary to provide for cost of such work. Upon completion of such work, grantee shall pay to city or city shall refund to grantee such sums so that the total received and retained by city shall equal the cost of such work.

L. City May Remove Grantee's Facilities as May be Required During Emergencies. The city reserves the right to remove any portion of a grantee's equipment and facilities as may be required in any emergency as determined by the city without liability for interruption of cable service and the city shall not be obligated to restore cable service or to pay the costs of expenses of restoring cable service.

M. Cost of Tree Trimming is to be at Expense of Grantee—City has Option to Decide Whether City or Grantee Does the Trimming. A grantee shall notify the city regarding the need to trim trees upon and overhanging streets of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee. At the option of the city, such tree trimming may be done by the city at the expense of the grantee, or by the grantee under the city's supervision and direction at the expense of the grantee. When authorized, such trimming shall be limited to the area required for clear cable passage and shall not include major structural branches which materially alter the appearance and natural growth habits of the tree. If such trimming is not performed by the city, the grantee shall be responsible for any and all damages to any tree as a result of trimming, or to the land surrounding any tree, whether such tree is trimmed or removed, or for damage to property or person caused by such trimming and removal of any tree.

N. Grantee Shall Remove Cable System from Any Public Street Following Termination or Expiration of Franchise. In the event that the use of a part of the cable system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such cable system or property has been installed in any street or public place without complying with the requirements of the franchise, or the franchise has been terminated, canceled or has expired without renewal, a grantee shall promptly, at its own expense, and upon being given ten (10) days' written notice from the city, remove from the streets or public places all such property and poles of such cable system other than any which the city may permit to be abandoned in place. In the event of such removal, a grantee shall promptly restore the street or other area from which such property has been removed to a condition which existed before such work was commenced.

O. Grantee's Property May be Considered Abandoned Six Months After Termination or Expiration of Franchise. Any property of a grantee remaining in place six months after the termination or denial of any renewal (and the exhaustion of all appeals) of a franchise shall be, at the option of the city council, considered permanently abandoned. The city may extend such time not to exceed an additional thirty (30) days.

P. Abandonment in Place shall be Done at Direction of Department of Community Development—Ownership of Property Shall be Transferred to City. Any property of a grantee permitted to be abandoned in place shall be abandoned in such a manner as the city shall prescribe. Upon permanent abandonment of the property of a grantee in place, the grantee shall submit to the city an instrument in writing, to be approved by the city attorney transferring to the city the ownership of such property. If such an instrument is not received within six months of the abandonment, the property shall automatically become the property of the city.

(Prior code § A-2-7)

A. Type and Scope of System. A grantee shall install and maintain the system as proposed and agreed upon in the franchise agreement.

B. Basic Service. Each grantee of a cable system shall provide its subscribers a separately available basic service.

C. Access Channels. A grantee shall provide and maintain the number and type of access channels as are set forth in the franchise agreement.

D. Grantee to Maintain an Office or Service Center in City Limits or in Neighboring Community. A grantee shall maintain a business office or service center within the city limits or in a neighboring community, which shall be open during normal business hours, and staffed and operated to respond to customers by providing at least the following services: (i) to accept payments and resolve billing difficulties; (ii) to give out and exchange or accept return converters; (iii) to schedule and conduct service or technician calls; (iv) to answer subscriber inquiries; and (v) to resolve complaints subscribers shall be promptly notified of any change of address of such office or of telephone number(s). Grantee shall also prepare a promotional notice to familiarize residents with the location of such office, the services available, and the complaint procedures. This notice is to be given to each new subscriber upon installation of service, and is to be distributed at least once per year to all subscribers.

E. Repair and Maintenance Crew to be Maintained that is Capable of Responding to Subscriber Complaints. Grantee shall maintain sufficient repair and maintenance crews capable of responding to subscriber complaints or requests for service in accordance with customer service standards described in Section 5.16.090.

F. Outage Log to be Maintained Showing Details of Service Failures. A grantee shall maintain an outage log showing the date, approximate time, location, duration, approximate number of subscribers affected, type and probable cause of all headend, trunk, or distribution line service failures due to causes other than routine testing or maintenance. A copy of such log showing the outages shall be made available for review by the city.

G. Planned Service Interruption. A grantee may intentionally interrupt service on the cable system only for good cause and for the shortest time possible.

H. The City Can Require Testing of Cable System and Report on System Performance. When there have been repeated complaints made or when there exists other evidence which, in the judgment of the city, casts doubt on the reliability or quality of cable service, the city shall have the right and authority to compel a grantee to test, analyze, and report on the performance of the cable system. Such report shall be delivered to the city no later than fourteen (14) days after the city formally notifies the grantee to test, analyze, and report, and shall include the following information: (i) the nature of the complaints which precipitated the special test(s); (ii) which cable system component(s) was/were tested; (iii) the equipment used in such testing; (iv) the procedure(s) employed in such testing; (v) the results of such test(s); and (vi) the method(s) in which such complaints were resolved.

I. Required Tests may be Done by Independent Qualified Engineer at Cost of Grantee. If the technical problems continue to persist following system testing by grantee as provided in subsection H of this section above, the grantee has failed to provide city with a plan to cure, and the technical problems are within grantee's control, the city may require that additional testing and analysis be conducted by the grantee but supervised by an independent, qualified engineer selected by the city. The engineer shall sign all records of special tests and forward to the city manager such records with a report interpreting the results of the tests and recommending actions to be taken by the grantee and the city.

The reasonable costs of such tests shall be paid for by the grantee within thirty (30) days after the city submits the engineer's invoice to the grantee.

(Prior code § A-2-8)

A. Exceptions. Nothing in this chapter is intended to prevent or prohibit the following:

1. The city and a grantee from agreeing to customer service requirements that exceed the standards set forth in this chapter;

2. The city from enacting or enforcing any consumer protection law of general applicability; or

3. The establishment, with the concurrence of the grantee, of any ordinance or regulation concerning customer service that imposes customer service requirements that exceed or address matters not addressed by the standards set forth in this chapter.

B. Customer Service Standards. A grantee is subject to the following customer service standards which are to be certified quarterly by the grantee to the city upon request:

1. The grantee shall maintain local, toll-free, or collect call telephone access lines which shall be available to subscribers twenty-four (24) hours a day, seven days a week, including holidays. Trained company representatives shall be available to respond to customer telephone inquiries during normal business hours.

2. When a trained company representative is not required, the telephone access lines shall be answered by a trained, qualified answering service or an automated response system. A trained company representative shall respond to inquiries received by the service or automated response system no later than the next business day.

3. Under normal operating conditions, telephone answer time by a company representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed an additional thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions measured on a quarterly basis.

4. Under normal operating conditions, the customer shall receive a busy signal less than three percent of the time measured on a quarterly basis.

5. Customer service center and/or bill payment locations shall be open at least during normal business hours and shall be conveniently located. A customer service center and/or a bill payment location shall be in the city or neighboring community.

6. A grantee shall keep an emergency system maintenance and repair staff capable of responding to and repairing cable system malfunctions or interruptions on a twenty-four (24) hour basis under normal operating conditions.

7. Under normal operating conditions, each of the following standards shall be met no less than ninety-five (95) percent of the time measured on a quarterly basis.

a. Standard installations shall be completed within seven business days after an order has been placed. "Standard" installations are those that are located up to one hundred fifty (150) feet from the existing distribution system. Drop wires in underground service areas that are temporarily placed above ground shall be buried within ten (10) days of the date and time of the temporary installation, except in those situations where weather conditions make trenching impractical, or by customer request.

b. Excluding conditions beyond the control of the grantee, the grantee shall begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known to the grantee. The grantee must begin action to correct other service problems no later than the next business day after notification of a service problem.

c. The "appointment window" alternatives for installations, service calls, and other installation activities shall be either a specific time or, at maximum, a four hour time block during normal business hours. (The grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.)

D. A grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer shall be contacted. The appointment shall be rescheduled, as necessary, at a time which is convenient for the customer.

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

a. Products and services offered;

b. Prices and options for programming services and conditions of subscription to programming and other services, including credit and/or rebate for system outages;

c. Parental control features;

d. Installation and service maintenance policies;

e. Instructions on how to use the cable services;

f. Channel positions of programming carried on the system; and

g. Billing and complaint procedures, including the business address and telephone number of the grantee and of the city.

9. Between the time a new customer is signed up for service and the time at which service is installed, the customer shall be afforded a right of recission.

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

11. Bills shall be clear, concise and understandable. Except as may be provided for in the franchise agreement, bills shall be fully itemized with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall clearly delineate all activity during the billing period, including operational charges, rebates, and credits. In case of a billing dispute, a grantee must respond to a written complaint from a subscriber within thirty (30) days.

12. Upon request, grantee shall provide a subscriber with a credit or rebate for a verified service outage lasting four hours or more that has been caused by a failure of the cable system. System failures caused by conditions which were not the fault of or under the control of the grantee (see subsection (A)(2) of this section) are not subject to a rebate or credit by grantee.

13. Refund checks shall be issued promptly, but not later than the customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, and provided all equipment supplied by grantee has been returned in reasonable condition.

14. Credits shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted.

(Prior code § A-2-9)

A. Annual Financial Reports. During the term of a franchise, upon request but in no event more than once annually, the grantee shall file with the city two copies of:

1. A gross receipts statement for the calendar year applicable to the cable system serving the city; and

2. An operational report including the following information, specific to the city: number of homes passed, number of cable plant miles and number of basic subscribers.

These reports shall be certified as being correct by a responsible party of the grantee and there shall be submitted along with them such other information reasonably related to the required reports as the city shall request.

B. Reports on System Performance. A grantee shall submit to the city, upon request, a reasonable, statistical summary of the operations of the cable system. Such information shall include, but not be limited to: (i) the number of dwelling units passed; (ii) the number of basic service subscribers; (iii) the number of cable plant miles in construction or completed; (iv) a summary of subscribers complaints by type of complaint showing compliance data; (v) a summary of system outages and "down time"; (vi) telephone call response time and delayed and abandoned calls; and (vii) a summary of service calls made during the previous quarter. Grantee shall not be required to furnish such information in other than such form and detail as is done by the grantee in the normal course of its business.

C. Maps Showing Location of Equipment Installed. The grantee shall make available at its office for city review, updated as-built current maps or sets of maps drawn to scale showing all cable system equipment installed and in place in streets, public rights-of-way and other public places of the city, which are identified by typical cable symbols used in the cable television industry. The grantee shall be willing to interpret these cable symbols upon request by the city.

D. Public Availability of Reports. Such reports, as required under this chapter, shall be available to the public in the office of the city clerk, during its normal business hours.

E. Correspondence. The grantee shall, upon request, file with the city a copy of each petition, application, report and communication pertaining to the operations of the cable television system in the city that are transmitted by the grantee to, or received by the grantee from, any federal, state or other regulatory commissions, agencies or regarding the local cable system operations in the city.

F. City's Access to Records. The city shall have access during normal business hours to all grantee's records required to be maintained by this chapter or any franchise agreement where necessary to ascertain the grantee's compliance with this chapter or any franchise agreement.

(Prior code § A-2-10)

A. City Reserves Right to Regulate Rates. The city reserves the right to regulate the grantee's rates for cable service to the fullest extent permitted by applicable law.

B. Current Rate Schedule to be Filed with City—Thirty Days Notice Required Prior to Rate Change. A grantee, for informational purposes, shall provide the city with a complete schedule of all current basic service and enhanced service rates and charges, including pay T.V. and pay per view rates and charges, and shall give thirty (30) days, prior written notice from the date of mailing to the city and to all affected subscribers of any pricing changes or additional charges, excluding temporary marketing and sales discounts or offers.

C. Grantee to Furnish Service to Each Person in Franchise Area Making Request for Service. Grantee shall furnish and maintain cable service to each person within the franchise area who makes a bona fide request to receive such service that is based upon the requirements of this chapter and the franchise. Nothing in a franchise agreement shall limit the right of the grantee to deny service to any person who/which has a negative credit service history with the grantee, which may include nonpayment of bills, theft or damage to the grantee's equipment, or who/which has threatened or assaulted employees of the grantee in the course of their employment.

D. Basic service Charges Must be Applied on Nondiscriminatory Basis. To the extent required by applicable state or federal law, all charges for basic service must be applied on a nondiscriminatory basis. A grantee may, however, conduct promotional campaigns in which rates are discounted or waived, may offer bulk rate discounts for multiple unit dwellings, hotels, motels, and similar institutions, or may reduce such charges for competitive purposes.

E. City Adopts Rate Regulation Procedures Consistent with FCC Rules. The city adopts by reference herein all rules of the Federal Communications Commission set forth in Subpart N (Cable Rate Regulation) of Part 76 (Cable Television Service) of Subchapter C of Title 47 of the Code of Federal Regulations, as amended, regarding the regulation of cable television rates for basic service and associated equipment.

After a grantee has submitted for review its existing rates for the basic service and associated equipment costs or a proposed increase in these rates, the city clerk shall publish a public notice of the rates and costs giving interested parties, including the grantee, a reasonable opportunity to file written comments which shall be available in the office of the city clerk for public inspection and copying during its normal business hours.

The city adopts by reference procedures set forth in 47 CFR Sec. 0.459 regarding confidential business information submitted by the grantee in a rate regulation proceeding.

A grantee which willfully or repeatedly fails to comply with a rate regulation or refund order directed specifically at the grantee shall be subject to a monetary forfeiture as set forth in a franchise agreement.

In the event of a conflict between this chapter and a franchise agreement, the provisions of the franchise agreement shall prevail.

(Prior code § A-2-11)

The franchise renewal process of the city shall be in accordance with Section 626 [47 U.S.C. 546] of the Communications Act of 1934, as amended, and with all other applicable state and federal laws.

(Prior code § A-2-12)

A. Grantee is Required to File an Irrevocable Letter of Credit or Obtain a Performance Bond for Initial Franchise. Within thirty (30) days after the effective date of an initial franchise, grantee shall deposit with the city an irrevocable letter of credit or obtain a performance bond in the amount set forth in the franchise agreement and issued by a local federally insured commercial lending or bonding institution that has been approved by the city. The form and substance of such letter of credit and performance bond shall be subject to approval by the city attorney. The letter of credit or the performance bond shall be used to assure: (i) the faithful performance by the grantee of all provisions of the franchise agreement and this chapter and other ordinances of the city; (ii) compliance with all orders, permits and directions of the city manager or any agency, commission, board, department, division or office of the city having jurisdiction over any aspect of the grantee's performance under a franchise and this chapter; and (iii) the payment by the grantee of any penalties, liquidated damages, claims, liens, franchise fees, taxes or other fees due to the city which arise by reason of the construction, operation or maintenance of the cable system, including cost of removal of any property of the grantee.

The letter of credit or the performance bond may be drawn or called upon by the city by presentation of a draft on sight at the lending institution, accompanied by a written certificate signed by the city manager certifying that the grantee has failed to comply with the franchise agreement and/or this chapter, stating the nature of the noncompliance, and stating the amount being drawn or called. Examples of the nature of the noncompliance for drawing upon the letter of credit or calling upon the performance bond include, but are not limited to, the following:

1. Failure of the grantee to pay to the city any undisputed franchise fees, taxes, liens or other generally applicable fees after ten (10) days written notice of delinquency.

2. Failure of the grantee to pay to the city after ten (10) days written notice any amounts due and owing by reason of the indemnity provisions of Section 5.16.050.

3. Failure of the grantee to pay to the city any liquidated damages due and owing pursuant to a franchise agreement.

4. Failure to make any payment required by a franchise agreement within the time fixed therein.

5. Failure to pay to the city within ten (10) days after receipt of written notice, any damages claims, costs or expenses which the city has been compelled to pay or incur by the reason of any material act or default by the grantee.

6. Failure to comply within ten (10) working days after receipt of written notice from the city, with any material provisions of a franchise agreement or this chapter which the city reasonably determines can be remedied by an expenditure of an amount from the letter of credit, performance bond or other instrument.

In the event of such noncompliance, the city may order the withdrawal of the appropriate amount of liquidated damages, penalties, fees or otherwise from the letter of credit, performance bond or other instrument for payment to the city, provided that, prior to each such withdrawal: (i) the grantee shall be afforded an opportunity to cure any of such failures within thirty (30) days after written notice from the city that the withdrawal is being made; or (ii) if such cure cannot be reasonably accomplished within such thirty (30) days, then the grantee shall have a reasonable time to cure, provided that the grantee commences such cure within such thirty (30) days and diligently pursues such cure to completion.

B. Letter of Credit or Performance Bond shall be Replenished to Original Amount Following Any Draw Down. Grantee shall structure the letter of credit or performance bond in such a manner so that if the city at any time draws upon the letter of credit or performance bond, the amount of available credit or bond shall automatically increase to the extent necessary to replenish that portion of the available credit or bond exhausted by the honoring of the draft. The intent of this subsection is to make available to the city at all times a letter of credit or performance bond in the amount specified in the franchise agreement.

C. The City's Rights with Respect to Letter of Credit or Performance Bond are in Addition to Other Rights. The rights reserved to the city with respect to the letter of credit or performance bond are in addition to all other rights of the city, whether reserved by a franchise agreement or authorized by law, and no action or proceeding against a letter of credit or performance bond shall affect any other right the city may have.

(Prior code § A-2-13)

A. Parties Shall Agree to Specific Liquidated Damages to be Paid by Grantee for Certain Delays or Nonperformance. A grantee's failure to comply with any timing or performance requirements set forth in a franchise agreement will result in damage to the city, the amount of which will be impracticable to ascertain. Therefore, the city and the grantee shall negotiate the amount of liquidated damages and the procedure for the imposition of such damages in a franchise agreement.

(Prior code § A-2-14)

A. Franchise May be Terminated for Material Breach of Terms and Conditions. In addition to all other rights and powers retained by the city, the city reserves the right to terminate a franchise and all rights and privileges of the grantee in the event of a material breach of this chapter or a franchise agreement. A material breach by a grantee means the following:

1. Violation of any material provision of this chapter or the franchise agreement or any material rule, order, regulation or determination of the city made pursuant to a franchise.

2. Attempt to evade any material provision of this chapter or a franchise agreement or practice any fraud or deceit upon the city of the subscribers of the cable system.

3. Failure to complete cable system construction, reconstruction or cable system extension as provided under a franchise agreement.

4. Failure to maintain insurance, bonds and letters of credit as required by the city.

5. Failure to restore cable service after forty-eight (48) consecutive hours of interrupted cable service, except when there is just cause or when approval of such interruption is obtained from the city manager.

6. Abandonment of the system, in whole or in material part, without the prior written consent of the city.

7. Any intentional material misrepresentation made by or on behalf of a grantee in its proposal to obtain a franchise or in connection with the negotiation or renegotiation of, or with any amendment or other modification to a franchise agreement, to the extent that any such misrepresentation was relied upon by the city.

8. There is made an assignment for the benefit of creditors or any appointment of a receiver or trustee to take over the business of the grantee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless the conditions set forth in subsections (F)(1) and (2) of this section are fulfilled.

B. Procedures Outlined Leading to Possible Termination of Franchise. The city shall make a written demand that a grantee comply with any provision, rule, order, or determination under or pursuant to this chapter or a franchise agreement. If the violation breach, failure, refusal or neglect by a grantee continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the city shall place the issue of termination of a franchise before the city council. The city shall cause to be served upon grantee, at least twenty (20) days prior to the date of such city council meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and the issue which the city council is to consider.

C. City Council Shall Hear and Consider Issues and Determine if a Violation has Occurred. The city council shall hear and consider the issue and shall hear any person interested therein, and shall determine, whether or not any violation by a grantee has occurred.

D. City Council May Declare Franchise Terminated if Compliance Does Not Occur Within Specified Period. If the city council shall determine the violation by a grantee was the fault of the grantee and within the grantee's control, the city council, may, by resolution, declare that the franchise of the grantee be terminated, unless there is compliance within such time period as the city council may fix.

E. Franchise May Cease and Terminate One Hundred Twenty Days After Appointment of Receivers. Any franchise granted shall, at the option of city, cease and terminate on one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of grantee whether in a receivership, reorganization, bankruptcy, or other action or proceeding unless such receivership or trusteeship shall have vacated prior to the expiration of such one hundred twenty (120) days, or unless:

1. Such receivers or trustees shall have within one hundred twenty (120) days, after their election or appointment, fully complied with all the terms and provisions of this chapter and a franchise granted pursuant hereto, and the receivers or trustees within such one hundred twenty (120) days shall have remedied all defaults under the franchise; and,

2. Such receivers or trustees shall have within one hundred twenty (120) days executed an agreement duly approved by the court having jurisdiction, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of the franchise agreement.

F. Procedure if a Foreclosure Occurs. In the case of foreclosure or other involuntary sale of the plant, property, and equipment of grantee, or any part thereof, city may serve notice of termination upon grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of grantee shall cease and terminate thirty (30) days after service of such notice unless:

1. City has approved the transfer of the franchise, as and in the manner provided for in this chapter; and

2. Such successful purchaser shall have covenanted and agreed with city to assume and be bound by all the terms and conditions of the franchise agreement.

(Prior code § A-2-15)

A. Any provision of this chapter may be waived for good cause shown, at the sole discretion of the city, by resolution of the city council.

B. A grantee may submit a written request for a waiver to the city council at any time during the franchise term. Such request for a waiver, at the sole discretion of the city council, may be set for a public hearing, and a decision shall be made within one hundred twenty (120) days following the submission. Procedures for the modification of franchise obligations shall be in compliance with Section 625 [47 U.S.C. 545] of Title VI, Communication Act of 1934, as amended.

C. The city council may authorize the economic, technical, or legal evaluation of such waiver request.

D. This section is enacted solely for the convenience and benefit of the grantor and shall not be construed in such a manner as to create any right or entitlement for the grantee.

(Prior code § A-2-16)

A. Every direction, notice or order by the city to be served upon a grantee shall be delivered or sent by registered mail to the office responsible for the local cable system. Every notice served upon the city shall be delivered or sent by first class mail to the city manager, city of Coachella, California.

B. All provisions of this chapter shall apply to a grantee, its successors, and assignees, as may be approved by city council in accordance with this chapter.

C. The rights granted by this chapter are subject to all franchises and permits heretofore or hereafter granted by the city council to use the streets of the city by other public utility or public service corporations. It is not intended by the grant of a franchise to abridge the exercise of the police power heretofore or hereafter granted to the city by the state. The grant of franchise is subject to all generally applicable ordinances and resolutions adopted by the city council of the city as the same now exist or may be hereafter lawfully amended, revised or codified, in the lawful exercise of any other power granted to the city.

D. Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.

E. If any particular section of this chapter, or the particular application thereof, shall be held invalid, the remaining provisions, and their application, shall not be affected thereby.

F. A grantee, upon its acceptance of a franchise, shall be bound by the provisions of this chapter, and all matters agreed upon in a franchise agreement subject to applicable state/federal law.

G. The rights and remedies reserved to the city by this chapter are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the city may have with respect to the subject matter of this chapter. A waiver of any right or remedy by a party at one time shall not affect the exercise of such right or remedy or any other right or other remedy by such party at any other time. The failure of the city to take any action in the event of a material breach by the grantee shall not be construed or otherwise be deemed to constitute a waiver of the right of the city to take such action at any other time in the event that such material breach has not been cured, or with respect to any other material breach by the grantee.

H. In the event that, after the effective date of the ordinance codified in this chapter, any court, agency, commission, legislative body, or other authority of competent jurisdiction: (i) declares the chapter invalid, in whole or in part; or (ii) requires the grantee either to: (a) perform any act which is inconsistent with any provision of this chapter; or (b) cease performing any act required by any provision of this chapter, and the grantee intends to exercise its rights pursuant to such declaration, the grantee shall so notify the city of such declaration or requirement.

I. The headings contained in this chapter are to facilitate reference only, do not form a part of this chapter, and shall not in any way affect the construction of interpretation hereof.

(Prior code § A-2-17)

A. Criminal Violations.

1. Infraction Violations. A violation of Sections 5.16.020(B) and (D), 5.16.040(B) through (D) and (F)(1), 5.16.050(B), 5.16.060(C) through (I), 5.16.070(B) through (K) and (N), 5.16.080(A) through (I), 5.16.090(B), 5.16.100(A), (B), (E) and (F), 5.16.110(B) through (D) and 5.16.130(A) of this chapter by any person responsible for committing, causing or maintaining such violation shall constitute an infraction violation, punishable by either: (a) a fine in an amount not to exceed one hundred dollars ($100.00) for a first violation; (b) a fine in an amount not to exceed two hundred dollars ($200.00) for a second violation of the same provision within a twelve (12) month period; and (c) a fine in an amount not to exceed five hundred dollars ($500.00) for the third violation within a twelve (12) month period commencing upon the date of the first violation.

2. Misdemeanor Violations. A fourth violation and subsequent violations of the same provision within a twelve (12) month period shall be deemed a misdemeanor, which shall be punishable by a fine in an amount not to exceed one thousand dollars ($1,000.00) or the maximum amount otherwise permitted by federal and state law, and/or imprisonment for a period not to exceed six months or the maximum amount otherwise permitted by federal and state law.

B. Civil Fines.

1. Infraction Violations. Any person convicted of an infraction under this chapter shall, for each separate violation of this chapter, be subject to: (a) a fine in an amount not to exceed two hundred fifty dollars ($250.00) for a first conviction of an offense; (b) a fine in an amount not to exceed five hundred dollars ($500.00) for a second conviction of the same offense within a twelve (12) month period of the date of the first offense; and (c) a fine in an amount not to exceed seven hundred fifty dollars ($750.00) for the third conviction of the same offense within a twelve (12) month period of the date of the first offense. The fine for a fourth and subsequent convictions of the same offense within a twelve (12) month period of the date of the first offense shall be one thousand dollars ($1,000.00) or the maximum otherwise permitted by federal and state law.

2. Misdemeanor Violations. Any person convicted of a misdemeanor under this chapter shall, for each separate violation of this chapter, be subject to: (a) a fine in an amount not to exceed two hundred fifty dollars ($250.00) for a first conviction of an offense; (b) a fine in an amount not to exceed five hundred dollars ($500.00) for a second conviction of the same offense within a twelve (12) month period of the date of the first offense; and (c) a fine in an amount not to exceed seven hundred fifty dollars ($750.00) for the third conviction of the same offense within a twelve (12) month period of the date of the first offense. The fine for a fourth and subsequent convictions of the same offense within a twelve (12) month period of the date of the first offense shall be one thousand dollars ($1,000.00) or the maximum amount otherwise permitted by federal and state law.

C. Other Penalties.

1. Notwithstanding the Section 5.16.180(A) and (B), in accordance with the provisions set forth in Section 53056 of the California Government Code, where a grantee fails to distribute to subscribers the annual notice required by Section 53055.1 of the California Government Code, a grantee shall be subject to a penalty not to exceed five hundred dollars ($500.00) for each year in which the notice is not distributed to all subscribers.

D. Cumulative Remedies. The remedies set forth in this chapter shall be cumulative and in addition to any and all other remedies, civil, equitable or criminal, afforded to the city under applicable law.

(Prior code § A-2-18)

The city clerk shall within fifteen (15) days after the passage of the ordinance codified in this chapter, cause it to be posted in at least the three public places designated by resolution of the city council; shall certify to the adoption and posting of the ordinance codified in this chapter, and shall cause this chapter and its certification, together with proof of posting, to be entered in the book of ordinances of this city.

(Prior code § A-2-21)