El Monte Municipal Code Ch. 18.08 Cable Television Franchises

The city of El Monte, pursuant to applicable federal and state law, is authorized to grant one or more non-exclusive franchises to construct, operate, maintain and reconstruct cable systems within the city's territorial limits.

The City Council finds that the development of cable systems has the potential of having great benefit and impact upon the residents of the city. Because of the complex and rapidly changing technology associated with cable systems, the City Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers which should be vested in the City Council or such persons as the City Council may designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible cable service to the public. Any franchises issued pursuant to this chapter shall be deemed to include these findings. It is the further intent of this chapter to establish regulatory provisions that permit the City Council to regulate all cable system franchises granted by the City Council after the effective date of this chapter, to the extent permitted by federal and state law, including but not limited to the Federal Communications Act of 1934, the Federal Cable Communications Policy Act of 1984, the Federal Cable Television Consumer Protection and Competition Act of 1992, the Federal Telecommunications Act of 1996, applicable FCC regulations and applicable California law.

(Ord. 2509 § 1, 2000)

For the purposes of this chapter and any franchise agreements, the following terms, phrases, words and their derivations shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. When not inconsistent with their context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined herein shall be given their common and ordinary meaning.

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

"Affiliated person" means each person who or which falls into one or more of the following categories: (i) each person having, directly or indirectly, a controlling interest in grantee; (ii) each person in which grantee has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, member of a limited liability company (where grantee is a pertinent limited liability company), and joint venturer or joint venture partner of grantee, as well as each limited partner holding an interest of five (5) percent or more of grantee; and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with grantee; provided that "affiliated person" shall in no event mean the city, any limited partner or member of a limited liability company holding an interest of less than five (5) percent of grantee, or any creditor of grantee solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with grantee.

"Basic cable service" means any programming service tier which includes retransmission of local television broadcast signals.

"Cable Act" means the Federal Cable Communications Policy Act of 1984 (47 U.S.C. §§ 521 et seq.), as amended and modified by legislation such as the Federal Cable Television Consumer Protection and Competition Act of 1992 and the Federal Telecommunications Act of 1996, and as may be subsequently amended or modified.

"Cable operator" means any person or group of persons who:

1. Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such a cable system; or

2. Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

"Cable service" means:

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

2. 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, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit television signal of one or more television broadcast stations;

2. A facility that serves subscribers without using any public rights-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Federal Communications Act of 1934, except that such facility shall be considered a cable system (other than for the purposes of Section 621(c) of the Cable Act (47 U.S.C. § 541(c))) 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;

4. An open video system that complies with Section 653 of the Cable Act (47 U.S.C. § 573); or

5. Any facilities of any electric utility used solely for operating its electric utility system.

"Channel" or "cable channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the FCC.

"City" or "grantor" means the city of El Monte.

"City Council" means the City Council of the city of El Monte.

"Complaint" means any verbal or written allegation or assertion of dissatisfaction with a cable service or other related services or operations of the grantee, including but not limited to issues of signal quality and customer billing, made by a person to either grantee or the city, which requires (i) dispatch of a technician or a service call or (ii) the referral of the verbal or written allegation or assertion of dissatisfaction to a supervisor or to management of grantee.

"Control," "controlling," "controlled" or "controlling interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, or debt instruments, or negative control, as the case may be, of the system, the franchise or franchisee. A presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of twenty (20) percent or more of any person (which person or group of persons is hereinafter referred to as "controlling person") or being a party to a management contract. "Control" or "controlling interest" as used herein may be held simultaneously by more than one person or group of persons.

"FCC" means the Federal Communications Commission or any successor or such other administrative agency or agencies to which the FCC's duties may be transferred.

"Franchise" means an authorization issued by the City Council providing for the construction and/or operation of a cable system. Any such authorization, in whatever form granted, shall not supersede the requirement to obtain any other license or permit required for the privilege of transacting business within the city as required by the other ordinances and laws of the city.

"Franchise agreement" means an agreement entered into by the City Council and grantee, containing the specific provisions of the franchise granted, including references, specifications, requirements and other related matters. A franchise agreement shall include any appendices, exhibits, and attachments to the franchise agreement, to the extent expressly incorporated therein, and all amendments to or renewals of the franchise agreement. Any franchise agreement shall incorporate the provisions of this chapter and any amendments thereto.

"Franchise fee" means any fee or assessment of any kind imposed by the city on a grantee as compensation for grantee's use of the public rights-of-way. The term "franchise fee" does not include:

1. Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers);

2. Payments which are required by the franchise to be made by the cable operator during the term of such franchise for, or in support of the use of, public, educational, or governmental access facilities;

3. Capital costs which are required by the franchise to be incurred by grantee for public, educational, or governmental access facilities;

4. Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

5. Any fee imposed under Title 17 of the United States Code.

"Grantee" means any person receiving a franchise pursuant to this chapter and so identified in a franchise agreement or any franchise renewal or franchise extension approved by the City Council, and any lawful successor, transferee or assignee.

"Grantor" means the city of El Monte.

"Gross annual cable service revenues" means and includes all amounts which are received annually, directly or indirectly, by a grantee from or in connection with the operation of the cable system, or any part of the cable system, located within the territorial boundaries of the city, including but not limited to:

1. a.

Any revenue received from subscribers for cable service, including but not limited to revenue for basic service, tier service, additional outlets, audio service, commercial service, premium service, pay-per-view service and related per-event services, or for the distribution of any cable service over the cable system;

b. Any revenue received from subscribers for installation, change in service and reconnection charges and similar fees;

c. Any revenue 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;

d. Any revenue received from subscribers for service charges and late fees attributable to delinquent accounts;

e. Any revenue received from service-related activities, as defined in this section, including but not limited to revenue received from leased access programmers and other users, and revenue derived from or equivalent to the fair market value of trades and barters;

f. Any revenue, payment or consideration collected by grantee from subscribers for direct payment to a third party as a cost of doing business (including, but not limited to, franchise fees if permitted by law, copyright fees, program license fees and subscriber payments for PEG access, but excluding payments for leased access programming where grantee serves as a collection agent and passes through leased access fees directly to leased access programmers without deducting grantee's billing fees), and such revenue, payment or consideration shall be included in, and not deducted from, the total gross revenue figure on which franchise fees are to be paid;

g. Any revenue of any other person which is derived directly or indirectly from or in connection with the operation of a cable system within the city, including but not limited to revenue or compensation paid directly by such cable system subscribers or users, advertisers on such cable system or others (i) to the suppliers of programming on such cable system, (ii) to home shopping services in connection with the sales of products or services derived from programming over such a cable system, or (iii) to leased access programmers for programming transmitted over such a cable system; provided, however, that grantee shall not be required to collect, and shall not be liable for, franchise fees based on such revenues from such other persons to the extent that such revenues are not collected by grantee, or, if they are collected by grantee, such revenues are retransmitted directly to such other persons without the deduction of any billing or other fees by grantee; and

h. Any revenue received by grantee from the delivery of other services over grantee's cable system, including without limitation telephony, data transmission, interactive services and other broadband information services, to the extent that the inclusion of such revenue is not prohibited by law.

2. There shall be deducted from gross annual cable service revenues:

a. Bad debts written off by grantee in the normal course of its business, provided, however, that bad debt recoveries shall be included in gross revenue; and

b. Refunds made to subscribers or other third parties.

3. Gross annual cable service revenues shall not include:

a. Any tax of general applicability imposed upon a grantee or upon grantee's subscribers by the city, state, federal or any other governmental entity and required to be collected by grantee and passed through to the taxing entity (including, but not limited to, user taxes, service taxes and communications taxes), provided such taxes are identified as a separate line item on subscriber statements; and

b. Any foregone revenue which grantee chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to employees of grantee or employees of another cable operator living within the territorial limits of the city, or public institutions or other institutions designated in a franchise agreement approved by the city; provided, however, that such foregone revenue which grantee chooses not to receive in exchange for trades, barters, services or other items of value shall be included in gross revenues.

4. In computing gross annual cable service revenues from sources other than grantee's subscribers, including but not limited to revenue derived from the sale of advertising, lists of the names and addresses of grantee's subscribers, home shopping services, programming guide sales, or the lease of channel capacity over its cable system, which revenue is attributable both to the operation of grantee's cable system inside the city and in areas outside the city, the aggregate revenue received by grantee from such other sources shall first be 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 as of the last day of such period, and then assessed for franchise fees.

5. Gross annual cable service revenues shall also include any revenue of any other person which is derived with the purpose or effect of excluding such revenue from the computation of the franchise fee otherwise due and payable to the city in accordance with the provisions of this chapter and a grantee's franchise agreement.

"Installation" means the connection of the cable system to subscribers' terminals, and the provision of cable service.

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

"Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental or nongovernmental entity.

"Public, educational or government access facilities" or "PEG access facilities" means the total of the following:

1. Channel capacity designated for noncommercial public, educational, or government use; and

2. Facilities and equipment for the use of such channel capacity.

"Public right-of-way" means a street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, public service easement or drive which the city owns, controls, uses, or is permitted to use, including, to the extent applicable, the surface of and the space above and below such a street, road, highway, etc.

"Section" means any section, subsection or provision of this chapter, unless otherwise noted or not consistent with the pertinent context.

"Service area" or "franchise area" means the entire geographic area within the territorial limits of the city as it is now constituted or may in the future be constituted, unless otherwise specified in a franchise agreement.

"Service related activity" means any activity or function for which grantee receives revenue from any user or person other than a subscriber and which is directly associated with the operation of a cable system serving the city, or the production or distribution of any cable service or other communications services over such a cable system, including, but not limited to, revenues from advertising sales, home shopping commissions, the sales of products or services, program guide payments, payments from the lessors or purchasers of leased access channel capacity, payments for studio and other facilities or equipment rentals, billing services, audience promotions or the installation, lease, rental or sale of equipment.

"Service tier" means a category of cable service or other services provided by a cable operator and for which a separate rate is charged.

"State" means the state of California.

"Subscriber" or "customer" means any person who or which elects to subscribe to, for any purpose, cable service provided by grantee by means of or in connection with the cable system.

"Subscriber terminal" means the cable system terminal to which a subscriber's equipment is connected. Separate terminals may be provided for delivery of signals of various classes.

(Ord. 2509 § 2, 2000)

A. Franchise Purposes. A franchise granted by the City Council under the provisions of this chapter shall include the following rights and obligations:

1. The right of a grantee to provide cable service, and such other related services as may be permitted by law, to subscribers within the designated service area;

2. The right of a grantee to erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across public rights-of-way or other public places within the designated service area;

3. The right of a grantee to maintain and operate said franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable services, and such other services as may be permitted by law;

4. All obligations of a grantee arising from the franchise or this chapter, whether explicit or implicit.

B. Franchise Required. It is unlawful for any person to construct, install or operate a cable system in the city within any public right-of-way without a properly granted franchise awarded pursuant to the provisions of this chapter.

C. Term of a Franchise.

1. A franchise granted hereunder shall be for a term established in a franchise agreement.

2. A franchise granted hereunder may be renewed upon application by grantee pursuant to the provisions of applicable state and federal law, as well as Section 18.08.040 of this chapter.

D. Franchise Territory. Any franchise shall be valid within all territorial limits of the city, and within any area annexed to the city during the term of the franchise, unless otherwise specified in the franchise agreement.

E. Charter Construction Consistent With Federal and State Law. This chapter shall be construed in a manner consistent with all applicable federal and state laws, and shall apply to all franchises granted or renewed after the effective date of this chapter to the extent permitted by applicable law.

F. Geographical Coverage.

1. Grantee shall design, construct and maintain the cable system to have the capability to provide cable service to every residential dwelling unit and commercial establishment in the service area, unless otherwise provided in the franchise agreement.

2. After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area within thirty (30) days from the date of request, provided that grantee is able to secure all rights-of-way, permits and landlord agreements necessary to extend service to such subscriber within such thirty (30) day period on reasonable terms and conditions.

G. Nonexclusive Franchise. Any franchise granted pursuant to this chapter shall be nonexclusive. Grantor specifically reserves the right to grant, at any time, such additional franchises for a cable system, as it deems appropriate, subject to applicable state and federal law, provided that if grantor grants one or more additional franchises, then the material provisions of any additional franchise agreement shall be reasonably comparable to the terms and conditions contained in any existing franchise agreement, so that all grantees are accorded reasonably competitively neutral and nondiscriminatory treatment.

H. Multiple Franchises.

1. Grantor may grant any number of franchises subject to applicable state or federal law. Grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

a. The capacity of the public rights-of-way to accommodate multiple cables in addition to the existing cables, conduits, lines, and pipes of existing operators of electrical power, telephone, gas and sewerage, and cable television systems, as well as other systems;

b. The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service;

c. The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, the disruption arising from numerous excavations of the public rights-of-way, and damage to the public rights-of-way.

2. Where electric and telephone utilities are to be placed underground in any new residential housing developments, grantor and the developer of such new residential housing shall give each grantee serving the franchise area within which the new residential housing development is located at least five (5) days prior written notice of the date on which open trenching will be available for grantee's installation of conduit, pedestals and vaults (or such other prior written notice required by the City Engineer). On request of grantor or a developer, grantee shall provide specifications needed for trenching. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two (2) cable systems and dedicate the use of such conduit to the city.

3. Grantor may require that any nonincumbent grantee be responsible for its own underground trenching and the costs associated therewith, if, in grantor's opinion, the public rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables, lines, conduit, or other cable system infrastructure.

(Ord. 2509 § 3, 2000)

A. Application Fees for Initial and Renewed Franchises. Any person desiring an initial or renewed cable system franchise shall file an application with the city. To the extent not prohibited by applicable law, an applicant shall pay a nonrefundable initial application fee of ten thousand dollars ($10,000.00) with such a franchise application. This application fee is designed to address all validly documented costs associated with processing and reviewing the application, including—without limitation—costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such validly documented costs exceed the application fee, the applicant(s) shall pay the difference to the city within thirty (30) days following receipt of an itemized statement of such costs, in accordance with subsection E of this section.

B. Application for an Initial Franchise—Contents. An application for an initial franchise for a cable system shall contain, unless excused by grantor:

1. A description of the proposed franchise and the service area;

2. A resume or prior history of the applicant, including the expertise of applicant in the cable system field;

3. A list of the partners, general and limited, of the applicant, if the applicant is a partnership; the percentage of stock owned or controlled by each stockholder having a five (5) percent or greater interest and the magnitude of this interest, if the applicant is a corporation; and the holder(s) of any controlling interest as well as the holder(s) of any equity interest of greater than five (5) percent and the magnitude of such an equity interest, if the applicant is a limited liability company;

4. A list of officers, directors and/or managing employees of the applicant, together with a description of the background of each such person;

5. The names and addresses of any parent or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant;

6. A current financial statement of the applicant verified by a certified public accountant audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the city;

7. A proposed construction and service schedule;

8. Any additional information that the city deems relevant. An applicant shall provide such additional information within sixty (60) days of receiving a request for such information from the city. The city shall deem such an application incomplete until and unless the applicant submits the required missing information by this sixty (60)-day deadline. In the event that the applicant does not satisfy the informational requirements within this sixty (60)-day period, the City Council may deny the application.

C. Initial Franchise Application Process.

1. Upon receipt of any complete application for an initial franchise, the City Manager shall prepare a report and make recommendations respecting such application to the City Council.

2. A public hearing shall be set prior to any initial franchise grant, at a time and date approved by the City Council. Within sixty (60) days after the close of the hearing, the City Council shall make a decision, based upon the evidence received at the hearing, as to whether or not the initial franchise(s) should be granted, and, if granted, the conditions attached to the grant of the franchise. The City Council may grant one or more franchises, or may decline to grant any franchise.

D. Franchise Renewal Application and Process.

1. If grantee intends to initiate a formal franchise renewal process under Section 626(a)-(g) of the Cable Act (47 U.S.C. § 546(a)-(g)), grantee must notify grantor at least thirty (30) months and no more than thirty-six (36) months before the franchise expiration date. When grantor receives a formal franchise renewal notice from grantee, or at any time at grantor's own initiative, grantor shall take the following actions:

a. Review and evaluate the future cable-related community needs and interests and grantee's past performance with respect to the franchise it has received from the city. The review and evaluation shall include an opportunity for public comment, in a manner and forum determined by the City Council.

b. On completion of grantor's initial review and evaluation, notify grantee that it may file the initial renewal application fee and a franchise renewal application, including the renewal proposal referenced in Section 626(b) of the Cable Act (47 U.S.C. § 546(b)). The notice shall specify the information to be included in the renewal application and the deadline for filing the application. The application filing deadline shall not be earlier than thirty (30) days after the date of this notice. If grantee does not submit a reasonably complete renewal application by the specified date, the franchise may not be renewed under Sections 4.4(a)-4.4(e) of this chapter or Sections 626(a)-(g) of the Cable Act (47 U.S.C. § 546(a)-(g)).

c. Hold one or more public hearings on the renewal application after a complete application is received or provide some other procedure for public comment on the application.

d. After the public hearing or comment period, the City Manager shall recommend to the City Council that it either:

i. Renew the franchise, subject to the negotiation of a franchise agreement satisfactory to grantor and grantee; or

ii. Issue a preliminary decision that the franchise should not be renewed.

e. The City Council's formal response to the City Manager's recommendation described in subsection (D)(1)(d) of this section shall be taken within four (4) months of the date of the city's receipt of a complete franchise renewal application described in subsection (D)(1)(b) of this section.

2. In preliminarily considering a renewal application, grantor shall consider whether:

a. The cable operator has substantially complied with the material provisions of the existing franchise agreement, including all applicable law;

b. The quality of the cable operator's service, including signal quality, response to subscriber complaints, and billing practices has been reasonable in light of community needs (but without regard to the mix, quality, or level of cable services or other services provided over the cable system);

c. The cable operator has the financial, legal, and technical ability to provide the services, facilities, and equipment described in the franchise renewal application; and

d. The cable operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting the needs and interests.

3. If the City Council preliminarily decides that a franchise should not be renewed; at the request of grantee or on its own initiative, grantor shall commence an administrative proceeding in accordance with Section 626(c) of the Cable Act (47 U.S.C. § 546(c)).

a. The City Council shall begin a public hearing within sixty (60) days of the City Council's issuance of its preliminary decision. Prior to this hearing, the City Council shall provide the franchise renewal applicant written notice of the time and place of the hearing at least ten (10) days prior to the date of the hearing by causing such notice to be delivered to the applicant by personal service or by mailing a copy of the notice thereof, postage prepaid.

b. i.

The City Council need not conduct this hearing according to the technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the type of evidence about which reasonable persons are accustomed to rely in the conduct of serious affairs, including hearsay evidence, provided that such evidence alone shall be insufficient to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. The City Council may prevent the introduction of irrelevant evidence.

ii. At this hearing, the City Council shall hear oral evidence taken only on oath or affirmation. The City Council may take official notice of any fact which may be judicially noticed by the courts of this state or of official records of departments and ordinances of the city, provided that the parties are informed of the matters to be noticed, the matters are noted in the record, and the parties are given a reasonable opportunity to refute the officially noticed matters.

iii. Each party to this hearing shall be entitled to the following procedural rights:

(A) To call and examine witnesses on any matter relevant to the issues of the hearing;

(B) To introduce documentary and physical evidence;

(C) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

(D) To impeach any witness regardless of which party first called the witness to testify;

(E) To rebut the evidence; and

(F) To be represented by anyone who is lawfully permitted to provide such representation.

iv. This hearing may continue from time to time.

v. Grantor shall ensure that a record of this hearing shall be made and duly preserved, provided that the franchise renewal applicant reimburse the city for the total cost of preparing such a record before a copy of the record is made available to the applicant.

c. Within sixty (60) days of the conclusion of the hearing, the City Council shall issue a recommended decision consistent with the Cable Act. Parties to the hearing and the public shall have thirty (30) days after the recommended decision is issued to provide written comments to the City Council. The City Council shall grant or deny an application within sixty (60) calendar days after the deadline for receipt of these written comments.

4. The City Council shall hold a public hearing on any negotiated renewed franchise agreement prior to final City Council action on the franchise.

5. Notwithstanding subsections (D)(1) through (4) of this section, grantee—no later than twenty-four (24) months before the franchise expiration date—may submit an application for renewal of a franchise, pursuant to Section 626(h) of the Cable Act (47 U.S.C. § 546(h)). The initial filing fee described in subsection A of this section, shall accompany this application. Grantor shall hold one or more public hearings or provide some other procedure for public comment on the proposal. After the public hearing or comment period, the City Manager shall recommend that the City Council grant or deny the franchise renewal and the terms and conditions of any recommended renewal.

6. If grantor denies the renewal of a franchise, grantor may, on the recommendation of the City Manager and with the approval of the City Council, acquire ownership of the cable system or transfer ownership of the cable system to another person. Any acquisition or transfer under this subsection shall be at fair market value, determined on the basis of the cable system valued as a going concern, but with no value allocated to the franchise itself.

7. If grantor does not renew a franchise and grantor does not buy the cable system, grantor may require that grantee remove its cable system facilities and equipment and/or continue providing cable service, in accordance with Section 18.08.140(C) of this chapter.

E. Timely Satisfaction of a Final Franchise Application Fee, Surety, Bond and Insurance Requirements After the Granting of a Franchise.

1. To the extent not prohibited by applicable law, every grant of an initial or renewed franchise is subject to a final franchise application fee in an amount not to exceed grantor's costs in considering the application, less the amount of the initial filing fee described in subsection A of this section. Within thirty (30) days of the date the grant of the franchise is approved or denied by the City Council, the city shall notify the applicant of the amount of the final franchise application fee and the basis thereof. If the final franchise application fee is not paid within thirty (30) days of the date the city notifies the applicant of this amount, any franchise granted shall become null and void. Neither the initial filing fee described in subsection A of this section nor the final franchise application fee shall constitute a franchise fee nor be charged against any franchise fee due to grantor.

2. Before a grant of a franchise may be effective, the applicant must demonstrate to the city that the applicant has satisfied all surety, bond, insurance, and similar provisions contained in this chapter and the applicable franchise agreement.

(Ord. 2509 § 4, 2000)

A. The City's Prior Written Consent Is Required Before the 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, transferred, leased or sublet, either in whole or in part, in any manner, nor shall title thereto, either legal or equitable, or any right or interest therein (other than a mortgage or other security interest, as provided in subsection L of this section), pass to or vest in any person without prior written consent of the City Council, which shall not be unreasonably denied or delayed.

B. Ownership or Control of Grantee Also Shall Not Be Transferred Without the Prior Written Consent of the City Council. Ownership or control of grantee also shall not be transferred without the prior written consent of the City Council.

C. Grantee's Application and Initial Application Fee.

1. Grantee shall promptly notify the city of any action or proposed action requiring consent of the City Council pursuant to this section.

2. Grantee shall submit to the City Council an original application and four (4) 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. Application shall also contain all documentation and information required by subsections D and E of this section, and shall be accompanied by a nonrefundable initial application fee of ten thousand dollars ($10,000). This application fee shall not constitute a franchise fee or be charged against franchise fees owed the city.

3. At any time during this review process, the city reserves the right to require that grantee or any other person involved in the action or proposed action under review provide to the city information or documentation in addition to that required under subsections D and E of this section. Grantee or such other person 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.

4. The City Council shall render a final decision on an application requiring the city's consent under this section within one hundred twenty (120) days after the city's receipt of a fully complete application (including all initial information required by the city under this chapter and the grantee's franchise agreement), provided that: (i) if the city brings any deficiencies in the original application to the attention of the applicant(s) within thirty (30) days of the city's receipt of the original application, the running of this one hundred twenty (120)-day period shall not begin until the city's receipt of all information requested by the city; or (ii) if the city brings such deficiencies to the applicant's/applicants' attention after this thirty (30)-day period, and the applicant(s) does/do not deliver to the city the requested information within ten (10) days of being notified of these informational deficiencies, the running of this one hundred twenty (120)-day period shall not begin until the city's receipt of all information requested by the city. In the event that the city requests additional information after this thirty (30)-day period, the applicant(s) shall be required to deliver this information to the city within ten (10) days of being notified by the city; provided that this ten (10)-day deadline is met, the deadline for a final decision by the city shall be one hundred twenty (120) days after the city's receipt of an application—even if originally incomplete. Additionally, the City Council and an applicant may mutually agree to an extension of this deadline for a final decision.

An application for the city's consent to the types of transactions described in this section shall be deemed approved if the City Council fails to render a final decision on the application by the deadline required in this paragraph or a mutually agreed deadline. However, the City Council may deny such an application, due to, among other grounds: (i) a grantee's failure to submit the information required by this section; (ii) grantee's inability or refusal to correct existing deficiencies in grantee's performance of its franchise agreement obligations brought to its attention by the city, prior to the City Council granting its approval of the application; or (iii) the inability or refusal of a proposed successor in interest to the franchise to provide prior written assurances satisfactory to the city concerning the timely and full correction of any existing deficiencies in a grantee's performance of its franchise obligations.

D. Contents of an Initial Application.

1. In an initial application, 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 the grantee's franchise agreement for the remaining term thereof, and such reasonable additional obligations required of the proposed assignee or transferee by the City Council for the specific and limited purpose of assuring the performance by the proposed assignee or transferee of all the terms, conditions and obligations of the franchise agreement. Consequently, in an initial application, a proposed assignee or transferee must provide the following information:

a. Legal Qualifications. The application shall identify the proposed assignee or transferee and, if the proposed assignee or transferee is not a natural person, each of its officers, directors or shareholders owning or beneficially holding five (5) percent or more of its outstanding voting shares, general partners and limited partners holding an equity interest in the proposed assignee or transferee of five (5) percent or more, and the respective percentage share of each such identified officer, director, shareholder or general or limited partner. The proposed assignee or transferee shall disclose any pending litigation or finding made or final action taken during the past five (5) years by, any court, administrative body or arbitrator, concerning the proposed assignee, transferee or officers, directors, or other persons having a legal or equitable interest in five (5) percent or more of the voting stock of such transferee or assignee in a civil, criminal, administrative or FCC proceeding brought under the provisions of any law or regulation related to the following: any felony; revocation, suspension or involuntary transfer of any authorization (including a cable franchise) to provide video programming or other communications services; antitrust or unfair competition; fraudulent statements to a governmental unit; material breach of a cable franchise agreement, including but not limited to a material failure to provide PEG access channels, facilities or equipment.

b. Financial Qualifications. The proposed assignee or transferee must demonstrate that it has sufficient net liquid assets on hand or available specifically committed to consummate the transaction and operate the grantee's cable system for a continuing period of six (6) months. The franchise transfer of assignment application shall include recent financial statements (including audited financial statements if requested by the city), of the proposed assignee or transferee prepared in accordance with generally accepted accounting principles, including balance sheets, income and expense statements, capital expenditure statements and accompanying notes for the past five (5) years. Such statements, if not otherwise publicly available, may be designated as confidential and shall be maintained as such by the city to the extent permissible under state and local law.

c. Technical Qualifications. The application shall set forth a narrative account of the proposed assignee's or transferee's technical qualifications, experience and expertise regarding cable systems. The narrative account shall include, but not be limited to, a, list of the cable systems currently and formerly owned or operated by assignee or transferee within the past three (3) years, summary information concerning appropriate management personnel who will be involved in the management and operation of the proposed assignee's or transferee's cable system, a list of any adjudications of material violations of the technical rules of the FCC or of federal, state or local governments, including but not limited to violations of rules or regulations regarding signal quality, safety and constriction during the past five (5) years.

d. Customer Service. The applicant must submit to the city: (i) a reasonably detailed narrative or a representative manual (if such a manual exists) describing assignee or transferee's customer service procedures; (ii) copies of at least two (2) representative annual customer notices provided by other cable systems owned or operated by assignee or transferee; (iii) a summary of assignee or transferee's proposed billing procedures; (iv) a sample customer service bill; and (v) a copy of a representative or sample customer service agreement or work order which assignee or transferee has used in other cable systems owned or operated by assignee or transferee or which assignee or transferee proposes to use in grantee's cable system.

2. The proposed assignee or transferee must agree to comply with all provisions of the grantee's franchise agreement and applicable provisions of this chapter, as well as such reasonable additional terms and conditions as the City Council may require for the specific and limited purpose of assuring the proposed assignee's or transferee's compliance with such provisions.

E. Grantee Shall Promptly Notify the City of Any Actual or Prospective Change in Control of a Franchise: Grantee and the Proposed Assignee or Transferee Shall Assist the City in the City's Review of Any Actual or Contemplated Change in Control of a Franchise.

1. Grantee's Responsibility. Grantee shall promptly notify the city of any actual or prospective change in the control of a franchise. Grantee shall assist the city in its inquiry into an assignee's or transferee's capabilities concerning the qualifications addressed in subsection D of this section.

2. Proposed Assignee's or Transferee's Responsibility. In seeking the City Council's consent to any change in ownership or control, assignee or transferee shall have the responsibility to establish, to the satisfaction of the City Council, that an assignee or transferee has all 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, including but not limited to the materials specified in subsection D of this section. In addition, assignee or transferee shall provide to the city the terms and conditions of the sale, credit agreements, partnership agreements and any other information reasonably related to the assignee's or transferee's acquisition of the grantee's franchise which is needed to demonstrate the qualifications of the assignee or transferee.

F. Transfer of Franchise Control Occurs with a Change of the Person Exercising Management Authority Over Grantee or with the Obtainment of a Twenty Percent or Greater Change in Voting or Equity Interest by a Person Who Previously Did Not Have an Interest of this Magnitude.

1. The word "control," as used in this section is not limited to major stockholders but includes de facto control (as more specifically set forth in this subsection or significant influence with respect to the operation of the grantee's cable system. For purposes of this section, "significant influence" occurs where a person other than grantee or a person controlling, controlled by or under common control with grantee exercises working or effective control of decisions affecting the operation of the cable system.

2. A presumption that transfer of control has occurred, including transfer 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 twenty (20) percent of the voting interest or the equity interest of a publicly held grantee or of the person exercising management authority over such a publicly held grantee, or of twenty (20) percent of the voting interest or the equity interest of a privately held grantee or of the person exercising management authority over such a privately held grantee, where the person or group of persons previously did not such a twenty (20) percent interest.

G. A Franchise Transfer Without the City Council's Prior Consent Shall Be a Material Breach, and May Result in the Imposition of Liquidated Damages.

1. Any assignment of a franchise or transfer of ownership or control of grantee without the prior consent of the City Council shall be null and void unless later ratified by the City Council and: (i) shall be deemed a material breach of a franchise agreement and (ii) among and/or in addition to other remedies available to the city, shall be subject to a liquidated damages assessment of one thousand dollars ($1,000.00) per week from the date of the unauthorized transaction until the City Council approves the franchise assignment or transfer in ownership or control, or if not approved, until the prior ownership, control or other status quo ante is restored to a condition satisfactory to the City Council.

H. The City Council May Revoke a Franchise if an Unauthorized Franchise Transfer or Change in Control Occurs. If the City Council fails to approve or denies its consent to an assignment of a franchise or transfer of ownership or control of grantee requiring the city's approval and such action has nevertheless been effected, the City Council may revoke said franchise and terminate any applicable franchise agreement unless control of the grantee or the cable system is promptly restored to its status prior to such unauthorized action or to a status acceptable to the City Council.

I. Consent of the City Council to a Franchise Transfer or Change in Control Shall Not Constitute a Waiver of the City's Rights. The consent or approval of the City Council to any assignment of a franchise or transfer of control of a franchise or of its ownership shall not constitute a waiver or release of any of the rights of the city unless the City Council specifically releases or waives such rights. In no event shall such a consent or approval result in an estoppel, release, or waiver of any power vested in the city or the waiver of the right to exercise such vested power.

J. A Successor-In-Interest to a Franchise Must Become a Signatory to the Applicable Franchise Agreement or an Amended Franchise Agreement Satisfactory to the City. In no event shall an assignment of franchise be approved without the successor-in-interest becoming a signatory to the existing franchise agreement or an amended franchise agreement satisfactory to the City Council.

K. A Grantee Shall Not Enter into Any Management Contract Resulting in a Change in Control Without the Prior Consent of the City Council. Grantee shall not enter into any management contract or other arrangement for the management of the cable system, to the extent that such contract or other arrangement would result in a significant change of de facto control over the operations of a grantee or the cable system (as defined herein), without the prior consent of the City Council.

L. Provided Certain Conditions Are Met, Certain Circumstances or Transactions Pertaining to Franchise Transfers or Changes in Control Shall Not Require the City's Prior Consent. Notwithstanding the other provisions of this section, any financial institution having a pledge of grantee or its assets for the advancement of money for the construction and/or operation of the cable system shall have the right and obligation to notify grantor that the financial institution or a designee satisfactory to grantor shall take control of and operate the cable system, in the event of a grantee default of its financial obligations. However, said financial institution shall also agree in writing to continue cable service and comply with all franchise requirements during the term the financial institution exercises control over the cable system. Furthermore:

1. The granting of a security interest in any grantee assets, or any mortgage, hypothecation, or assignment of any right, title or interest in the cable system, or use of the cable system as collateral in order to secure indebtedness, shall not require the consent of the City Council; and

2. The consent of the City Council shall not be required for an intracorporate or intracompany transfer from one wholly-owned subsidiary of a franchisee to another wholly-owned subsidiary of the same franchisee. However, in the event that a parent of a franchisee desires to transfer a franchise to another subsidiary, the City Council may require a written guarantee from the parent stating that the parent will be ultimately responsible for the performance of all franchise agreement obligations.

M. Reimbursement Due Grantor for Its Review of Any Franchise Assignment or Franchise Change in Control: Transaction Not Effective with Respect to the Franchise Until Successor-In-Interest Has Satisfied All Applicable Surety, Bond, Insurance, and Similar Franchise Agreement Provisions.

1. Prior to the effective date of a franchise transfer, assignment, or change in control, grantee shall reimburse grantor for grantors processing and review expenses related to the transaction, including without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs, and document preparation expenses, to the extent the sum of these expenses exceeds the initial application fee described in subsection C of this section. Neither such reimbursement nor the initial application fee described in subsection C of this section shall constitute a franchise fee or be charged against any franchise fee due to grantor.

2. Before a franchise transfer or change in control may be effective, the successor-in-interest must demonstrate to the city that the successor-in-interest has satisfied all surety, bond, insurance, and similar provisions contained in the applicable franchise agreement.

(Ord. 2509 § 5, 2000)

A. Operational Standards.

1. Except as otherwise provided in a franchise agreement, grantee shall maintain the following necessary facilities, equipment and personnel to comply with the following customer protection and service standards under normal operating conditions:

a. Grantee shall obtain and maintain sufficient telephone lines and staffing so as not to delay unreasonably the answering of any telephone call, and shall adjust grantee's staffing, as necessary, with respect to special events which may reasonably be expected to increase call volume. Trained customer service representatives shall be available to respond to customer telephone inquiries during normal business hours, defined as not less than nine (9) hours per business day, Monday through Friday, and some evening hours, at least one night per week, and/or some weekend hours. Grantee shall connect a telephone caller within thirty (30) seconds after the caller dials and "ringing" begins. This standard shall be deemed satisfied when a connection is made either to an automated attendant capable of responding to the subscriber's inquiry, such as an automatic response unit, or to a customer service representative capable of responding to the subscriber's inquiry. Under normal operating conditions, the caller will receive a busy signal less than three (3) percent of the time. If the call needs to be transferred, if the caller needs to be placed on hold, or if the caller wishes to be transferred, such transfer or hold time shall not exceed thirty (30) seconds. Each of the standards set forth in this paragraph shall be met no less than ninety (90) percent of the time, measured on a quarterly basis, under normal operating conditions, as noted in subsection (A)(2) of this section.

b. Emergency toll free telephone line capacity on a twenty-four (24) hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative no later than the next business day. During periods when an answering service or machine is used, grantee shall provide on-call personnel who shall contact the answering service or machine, at a minimum, every four hours to check on requests for service or complaints.

c. A reasonably accessible local business and service and/or payment office, open during normal business hours, where grantee provides adequate staffing to accept subscriber payments and respond to service requests and complaints. grantee may petition grantor to reduce its business hours if the extended hours are not justified by subscriber demand, and grantor may not unreasonably deny the petition.

d. An emergency cable system maintenance and repair staff, capable of responding to and repairing any major cable system malfunction on a twenty-four (24) hour per day basis.

e. An installation staff, capable of installing service to any subscriber requiring a standard installation within seven (7) days after receipt of a request, in all areas where trunk and feeder cable have been activated.

i. "Standard installation" charges shall apply to those installations which consist of an aerial or underground drop of no more than one hundred twenty-five (125) feet in length, running from the nearest feeder cable of the cable system to a subscriber terminal, using exposed wiring inside the subscriber's premises. Installations which exceed this maximum length, or in the case of an underground drop—which involves unforeseen or extraordinary conditions—will be subject to additional charges, as determined grantee, provided that such additional charges shall be fair, reasonable, and nondiscriminatory.

ii. All installations shall include the proper grounding of grantee's equipment, the correct adjustment of any television set or other customer equipment connected to the cable system, either directly or indirectly, in order to receive service, and the provision of required customer information and literature instructing customers in the use of grantee's services.

f. Grantee shall schedule, within a specified four (4) hour time period during normal business hours, all appointments with subscribers for installation of service, service calls and other activities at the subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the convenience of the customer. 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, grantee shall contact customer and the appointment shall be rescheduled, as necessary, at a time which is convenient for the customer.

2. Under normal operating conditions, the standards of subsections (A)(1)(a) and (b) of this section shall be met not less than ninety (90) percent of the time, measured on a quarterly basis. The standards of subsections (A)(1)(d) through (f) of this section shall be met not less than ninety-five (95) percent of the time, measured on a quarterly basis.

3. Grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply with these standards.

B. Service Standards.

1. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest periods of time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the cable system, preferably between midnight and six a.m. local time.

2. Grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:

a. For a Cable System Outage. Within two (2) hours, including weekends, of receiving subscriber calls or requests for service which by number identify a cable system outage of sound or picture of one or more channels, affecting at least ten (10) percent of the subscribers of the cable system.

b. For an Isolated Outage. Within twenty-four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels that affects five (5) or more subscribers, except as provided in subsection (B)(2)(a) of this section. An outage affecting fewer than five (5) subscribers shall result in a service call no later than the next business day.

c. For Inferior Signal Quality. Within two (2) business days of receiving a request for service identifying a problem concerning picture or sound quality.

3. Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, the technician shall leave written notification of arrival.

4. Grantee shall not charge for the repair or replacement of defective or malfunctioning equipment provided by grantee to subscribers, unless the defect was caused by the subscriber, or connected equipment owned by the subscriber requires repair or replacement and grantee has not been responsible for the need for this repair or replacement.

5. Unless excused, grantee shall determine the nature of the problem resulting in a request for service within two (2) business days of beginning work and resolve all cable system related problems within five (5) business days unless technically infeasible.

C. Billing and Information Standards.

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

2. In case of a billing dispute, grantee shall respond to a written complaint from a subscriber within thirty (30) days.

3. Grantee shall automatically provide credits or refunds to such subscribers whose service has been interrupted for twenty-four (24) consecutive hours or more, and upon request to subscribers whose service has been interrupted for two (2) or more hours.

Credits or refunds shall automatically be provided by grantee on a pro rata basis to any subscriber(s) affected by interruption(s) of service for more than two (2) hours due to actions or outages under the control of grantee, exclusive of scheduled repairs, maintenance or franchise-required construction for which grantee has provided advance written notice of to subscribers. In cases where advance written notice is provided to subscribers, the time period detailed in said notice shall not exceed four (4) hours in any twenty-four (24) hour period. In cases where said notice has been given to subscribers and the service interruption exceeds the period detailed in said notice, grantee shall provide pro rata credits or refunds to subscribers.

In the event grantee has improperly or inadvertently disconnected cable services to a subscriber, grantee shall provide for restoration of cable service without charge to the subscriber as soon as possible, but no later than within two (2) days of grantee's discovery of the impropriety or inadvertence of said disconnection. Grantee shall provide a pro rata credit or a pro rata refund reflecting the period of time without cable service to any subscriber improperly or inadvertently disconnected from such service.

All credits or refunds for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted. For subscribers terminating service, refunds shall be issued promptly, but no later than thirty (30) days after the return of any grantee-supplied equipment.

4. Grantee shall provide written information on each of the following areas (i) at the time of the installation of service, (ii) at least annually to all subscribers, and (iii) 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;

c. Installation and service maintenance policies;

d. Instructions on how to use the cable service; and

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

f. Billing and complaint procedures, including the address and telephone number of grantor's office(s) designated for dealing with cable service issues.

5. Grantee shall provide written notification to subscribers of any changes in rates, programming services or channel positions, as soon as possible and in accordance with state and federal law. Notice must be given to subscribers a minimum of thirty (30) days in advance of such a change if the change is within the control of grantee. In addition, grantee shall notify subscribers thirty (30) days in advance of any significant changes in the information required in subsection (C)(4) of this section.

6. Where the changes described in subsection (C)(5) of this section, are within grantee's control; grantee shall deliver to the City Manager draft copies of all subscriber notices described in subsection (C)(5) of this section, for the city's review and comment, prior to the finalization of these notices and at least fifteen (15) days prior to distribution of such notices to subscribers.

7. Notices of changes in rates, programming services or channel positions or other customer information that are not within grantee's control shall be submitted to the city for review and comment as soon as practicable, allowing the city as much lead-time as possible prior to finalization of the notices. This submission of notices to the city must always take place prior to the distribution of such notices to subscribers.

D. Verification of Compliance with Customer Service Standards.

1. Upon ten (10) days prior written notice, grantee shall respond to a request for information made by grantor regarding grantee's compliance with any or all of the standards required in subsections A, B and C of this section. Grantee shall provide sufficient documentation to permit grantor to verify grantee's compliance.

2. A repeated and verifiable pattern of non-compliance with the customer protection standards of subsections A, B and C of this section, after grantee's receipt of due notice and a reasonable opportunity to cure, may be deemed a material breach of the franchise agreement.

3. In order to determine whether sufficient telephone lines are provided, grantor may require that a busy study, traffic study or other study be conducted, at grantee's expense, if any, by the local telephone company. Should grantee have its own telephone equipment which can report on telephone line(s) usage, grantee may submit such a report generated by its own system. Grantor, pursuant to subsection (A)(3) of this section, may require grantee to acquire equipment to determine compliance with the telephone answering standards of this section.

4. Grantee shall take necessary steps to ensure that adequate telephone lines and/or staffing are available to permit grantee to satisfy its obligations under this chapter and the franchise agreement. Consideration shall be given for periods of promotional activities or outages. The monthly billing period shall be considered as a normal, daily activity for purposes of determining the availability of adequate telephone lines and/or staffing.

E. Subscriber Complaints and Disputes.

1. Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing. Grantee shall file a copy of these procedures with grantor. The written procedures shall include a requirement that grantee resolve, if reasonably possible, any written complaint from a subscriber concerning billing within thirty (30) days of grantee's receipt of said complaint.

2. Upon prior written request, grantor shall have the right to review grantee's response to any subscriber complaints in order to determine grantee's compliance with franchise requirements. Grantee shall not be required to release any "individually identifiable" or "personally identifiable" information to grantor, except as provided by state or federal law, or unless, and to the extent, allowed by a subscriber or complainant affected by such a disclosure.

3. Subject to applicable law, it shall be the right of any subscriber to continue receiving cable service provided that he or she meets his or her financial and other obligations to grantee. In the event that grantee elects to rebuild, modify, or sell the cable system, or grantor gives notice of intent to terminate or not to renew the franchise, grantee shall act so as to ensure that all subscribers receive cable service so long as the franchise remains in force.

4. In the event of a change of ownership or control of grantee, or in the event a new operator acquires the cable system, the original grantee shall cooperate with grantor, the new grantee or the new operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the cable system.

5. Grantee response to subscriber complaints, as well as complaints made by subscribers to grantor and provided by grantor to grantee, shall be initiated within one business day of receipt by grantor. The resolution of subscriber complaints shall be effected by grantee not later than three (3) business days after receipt of the complaint. Should a grantee supervisor not be available when requested by a subscriber, a supervisor shall respond to the subscriber's complaint at the earliest possible time, and in no event later than the end of the next business day. For complaints received by grantor and provided by grantor to grantee, grantee shall periodically inform grantor in writing of grantee's progress in responding to, and resolving, said complaints.

F. Other Customer Service Requirements.

1. In the event grantee fails to operate the cable system for seven (7) consecutive days for reasons not excused under Section 18.08.130 of this chapter, without prior approval or subsequent excuse of grantor, grantor may, at its sole option, operate the cable system or designate an operator until such time as grantee restores service under conditions acceptable to grantor or a permanent replacement operator is selected. If grantor should fulfill this obligation for grantee, then during such period as grantor fulfills such obligation, grantor shall be entitled to collect all revenues from the cable system, and grantee shall reimburse grantor for all costs or damages in excess of the revenues collected by grantor that are the result of grantee's failure to perform.

2. All officers, agents or employees of grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto subscribers' premises shall carry a photo-identification card in a form approved by grantor. Grantee shall account for all identification cards at all times. All vehicles of grantee or its major subcontractors shall clearly indicate on the outside of the vehicles their affiliation with grantee.

3. Additional service standards and standards governing customer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement or by separate ordinance, which shall become incorporated into the franchise agreement. The city may deem a pattern of noncompliance with the customer service standards included in this chapter or any applicable franchise agreement a material breach of the franchise agreement. However, prior to imposing any sanction, the city shall afford grantee due process as described in this chapter, including prior written notification, a reasonable opportunity to cure, and a public hearing.

(Ord. 2509 § 6, 2000)

A. Franchise Fee.

1. Following the issuance and acceptance of the franchise, grantee shall pay to grantor franchise fees equal to the greater of: (i) five (5) percent of grantee's gross annual cable service revenues, as defined in Section 18.08.020 of this chapter; or (ii) the maximum franchise fees allowed by law if changes in applicable law increase the maximum franchise fee percentage applicable to these gross annual cable service revenues.

2. On an annual basis, within one hundred twenty (120) days of the close of each calendar year, grantee shall provide to grantor a written statement reflecting the total amounts of gross annual cable service revenues and all franchise fee payments, deductions and computations for the period covered by these franchise fee payments. Grantee shall ensure that this gross revenues/franchise fee statement is either audited and certified by an independent certified public accountant or certified by an officer of grantee, under penalty of perjury. Upon thirty (30) days prior written notice, grantor shall have the right to conduct an independent financial audit of grantee's gross annual cable service revenues and franchise fee records, in accordance with generally accepted accounting procedures (GAAP) as well as generally accepted auditing standards (GAAS). If such an audit indicates a franchise fee underpayment of two (2) percent or more, grantee shall reimburse grantor for its costs resulting from such an audit.

3. Except as otherwise provided by law, no acceptance of any payment by grantor shall be construed as a release, an accord and satisfaction, or a waiver of any claim grantor may have for further or additional sums payable as franchise fees under this chapter or for the performance of any other obligation of grantee.

4. In the event that any franchise fee payment or payment of any adjustment to any franchise fee is not made on or before the due date(s) specified in the franchise agreement or this chapter; unless otherwise excused by grantor, grantee shall pay:

a. An interest charge, computed from such due date(s), at an annual rate equal to the highest of the most recently published prime lending rate of any of the five (5) largest member banks of the New York Clearing House Association, plus one percent beginning on the due date(s) and continuing for any period for which a payment was late; and

b. If a payment is late by thirty (30) days or more, a sum of money equal to five (5) percent of the amount due, in order to defray those additional expenses and costs incurred by grantor as a result of grantee's delinquent payment.

5. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

B. A Five Percent Fee Also Applies to Any Non-Cable Operator or Non-Grantee Person Distributing a Service Over the Cable System. Consistent with Section 622(h) of the Cable Act (47 U.S.C. § 542(h)) and subparagraph (1)(g) of the "grantor" definition in Section 18.08.020, the city shall have the power to require any person, other than a cable operator, who originates or controls the distribution of any service over the cable system and receives fees for such service, which fees are not received by or transmitted through the cable operator, to pay the city a fee equal to five (5) percent or the maximum permitted by law of the gross revenues of such person derived from the distribution of such service over the cable system, less any amounts directly paid to the cable operator or grantee in compensation for the use of such cable system.

C. Security Fund.

1. Grantor may require grantee to provide a security fund, in an amount and form established in the franchise agreement. The amount of the security fund shall be designed to secure grantee's obligations under the terms of the franchise.

2. The security fund shall be available to grantor to satisfy all claims, liens, fees, and/or taxes grantee owes grantor and which arise by reason of construction, operation, or maintenance of the cable system, and to satisfy any actual or liquidated damages arising out of a breach or default pertaining to the franchise agreement, subject to the procedures and amounts designated in the franchise agreement.

3. If the security fund is drawn upon by grantor in accordance with the procedures established in this chapter and the franchise agreement, grantee shall cause the security fund to be replenished to the original amount no later than thirty (30) days after receiving written confirmation from the bank or other financial institution where such security fund is deposited of this drawing against the security fund. Failure to replenish the security fund shall be deemed a material breach of the franchise agreement.

(Ord. 2509 § 7, 2000)

A. Applicable Cable System Construction Technical Standards.

1. Grantee shall construct, install, operate and maintain its cable system in a manner consistent with all applicable laws, ordinances, electrical codes, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. Such applicable electrical codes and construction standards shall include the most current versions of the National Electrical Code (NEC), General Order No. 95 of the state of California's Public Utilities Commission, General Order No. 128 of the state of California's Public Utilities Commission, and the National Electrical Safety Code (NESC), to the extent the NESC does not conflict with the NEC or any rule, regulation, or order promulgated by the state of California's Public Utilities Commission.

2. Grantee shall provide to grantor, upon written request, a written report of the results of grantee's periodic proof of performance tests and signal leakage tests conducted pursuant to FCC and franchise standards and guidelines.

3. Any time the signal provided on grantee's cable system does not meet FCC technical standards or the technical standards of grantee's franchise application and/or grantee's franchise agreement, grantor may order grantee to make a pro rata rebate, in money or services, to each subscriber based upon the percentage by which the signal falls below the most stringent technical standard and upon the length of time that such condition has existed. Grantor shall follow the procedure for addressing franchise agreement violations described in Section 18.08.120(B) of this chapter, before ordering such a rebate.

B. Noncompliance with Cable System Construction Technical Standards. Repeated and verified failure to maintain specified technical standards described or referenced in subsection A of this section, shall constitute a material breach of the franchise agreement.

C. Cable System Construction.

1. Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, or other responsible public agencies. Grantee shall be subject to all permit and bonding requirements applicable to contractors working within the public rights-of-way. No provision of this chapter or any franchise agreement shall be deemed a waiver of the obligation of a grantee to pay grantor for the issuance of such a permit. Furthermore, permit fees shall not constitute franchise fees nor be charged against franchise fees owed to the city.

2. Sixty (60) days and thirty (30) days prior to beginning any construction, rebuild, or upgrade of any cable system within the service area, and every sixty (60) days while engaged in such activity, grantee shall submit construction reports to the City Manager containing the following information: (i) a general description of the construction, rebuild, or upgrade activities to be undertaken by grantee during the following sixty (60) days; (ii) the status of necessary permits; (iii) the number of miles constructed and the number of homes passed as of the date of the report and the number of miles to be constructed and the number of homes to be passed during the sixty (60) days following the report; (iv) any conditions known to grantee which may affect the construction schedule; and (v) any other pertinent information required by the City Manager. Unless otherwise specified by the City Manager, such construction reports shall be required until completion of these cable system construction, upgrade, or rebuild activities, at which point in time grantee shall submit to the City Manager a final report addressing the information described in clauses (i) through (v) of this subsection.

3. In those areas of the city where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground.

4. In those areas of the city where grantee's cables are located on the above-ground transmission or distribution facilities of the public and/or municipal utility providing telephone or electric power service, and in the event that the facilities of both the telephone and electric power utilities subsequently are placed underground, then grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee's cost. Certain of grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground enclosures, unless otherwise provided in the franchise agreement.

5. Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as "structures"), or the construction of any additional structures, in, upon, along, across, under or over the public rights-of-way, shall be made under the direction of Public Works Director or a designee, who shall, if the proposed change, extension or construction conforms to the provisions hereof, issue written permits therefor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the state regulatory body having jurisdiction thereof.

6. All transmission and distribution structures, lines and equipment erected by grantee shall be located so as not to interfere with the proper use of the public rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said public rights-of-way, and not to materially interfere with existing public and municipal utility installations.

7. In the event that any property or improvement of grantor in the public rights-of-way is disturbed or damaged by grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the rights granted to grantee pursuant to this chapter and the franchise agreement, grantee shall promptly, at grantee's sole cost and expense, restore to grantor's satisfaction said property or improvement which was so disturbed or damaged. If such property or improvement shall (within two (2) years of grantee's restoration (or in the case of a street improvement, until the street is resurfaced if resurfaced prior to the expiration of the two (2) years) of the date the restoration was completed) become uneven, unsettled or otherwise require additional restorative work, repair or replacement because of the initial disturbance or damage to the property by grantee, then grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from grantor and at grantee's sole cost and expense, restore to grantor's satisfaction said property or improvement which was disturbed or damaged. Any such restoration by grantee shall be made in accordance with such materials and specifications as may, from time to time, be established by grantor.

8. Prior to commencing any work on the cable system in the public rights-of-way, grantee shall obtain any and all permits, licenses and authorizations lawfully required for such work. If emergency work on the cable system in the public right-of-way is required, grantee shall with all due diligence, seek to obtain any and all such required permits, licenses and authorizations within three (3) working days after commencing such emergency work. Prior to performing any work in the public right-of-way, grantee shall give appropriate notice to the "underground service alert" ("USA"), or any similar type service provider designated by grantor.

9. There shall be no unreasonable or unnecessary obstruction of the public rights-of-way by grantee in connection with any of the work provided for herein. Grantee shall maintain any barriers, signs and warning signals during any work performed on or about the public rights-of-way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and property.

10. If grantor lawfully elects to alter or change the grade or location of any public right-of-way, grantee shall, upon reasonable notice by grantor, and in a timely manner, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

11. Grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such poles, conduits or other fixtures placed in any public right-of-way shall be so placed as to comply with all ordinances of grantor.

12. In accordance with applicable law, grantee or any utility user of the public rights-of-way may be required by grantor to permit joint use of its poles and/or conduit located in the public rights-of-way, insofar as such joint use may be reasonably practicable and upon payment of a reasonable rental fee for such usage. In the absence of an agreement regarding such joint use, each party shall be entitled to exercise any rights and defenses provided by applicable law.

13. Grantee, on request of any person holding a moving permit issued by grantor, shall temporarily raise or lower its wires or fixtures to permit the moving of buildings. The expense of such temporary raising or lowering of wires or fixtures shall be paid by the person requesting the same, and grantee shall have the authority to require such payment in advance. Grantee shall be given not less than five (5) business days prior written notice to arrange for the temporary wire or equipment changes.

14. Grantee shall have the authority to trim any trees or other natural growth overhanging the public rights-of-way so as to prevent the branches of such trees or other natural growth from coming in contact with grantee's wires, cables and other equipment. Grantor may require all trimming of trees and natural growth to be done under its supervision and direction, at the expense of grantee.

15. Grantee shall be subject to any and all requirements established by grantor with regard to the placement and screening of grantee's facilities and equipment located in the public rights-of-way. Such requirements may include, but not be limited to, the use of landscaping to screen pedestals and cabinets and the requirement that construction be flush with the natural grade of the surrounding area.

D. Multiple Franchises.

1. Subject to applicable law, in the event that more than one franchise is awarded, grantor reserves the right to limit the number of drop cables per residence, or to require that the drop cable(s) be utilized only by the cable operator selected by the resident to provide service.

2. Grantor reserves the right to grant an encroachment permit to a cable franchisee applicant to install conduit and/or cable in anticipation of the granting of a franchise. Such installations shall be at the applicant's risk, with no recourse against grantor in the event the pending franchise application is not granted. Grantor may require an applicant to provide a separate trench for its conduit and/or cable, at the applicant's cost.

3. If grantor authorizes or permits one or more additional cable systems to operate within the territorial limits of the city, grantor shall do so on condition that any additional cable system franchisee agree to indemnify and hold harmless and reimburse grantor and any existing grantee and any affected utility from and against all costs and expenses incurred in strengthening poles, replacing poles, rearranging attachments, placing facilities underground, and engaging in similar activities related to the construction of an additional cable system in the franchise area. Any existing grantee shall be designated a third party beneficiary of such conditions as are incorporated into the authorization(s) granted by the city to any new grantee.

(Ord. 2509 § 8, 2000)

A. Grantee Shall Agree to Indemnify Grantor.

1. Grantee shall indemnify, hold harmless, release and defend the city, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers as additional insureds from and against any and all actions, claims, demands, damages, liability, losses, expenses (including attorney's fees), and other defense costs or liabilities of any nature that may be asserted by any third-party, from any cause whatsoever arising from the activities of grantee, its contractors, subcontractors, employees and agents. Grantee shall be solely responsible and hold grantor harmless from all matters relative to payment of grantee's employees, including compliance with Social Security laws, withholding of taxes, etc.

2. This indemnification obligation is not limited in any way by a limitation on the amount or type of damages or compensation payable by or for grantee pursuant to workers' compensation laws, disability or other employee benefit acts, acceptance by grantor of insurance policies or certificates required by this chapter or a franchise agreement, or the terms, applicability or limitations of any insurance coverage obtained by grantee.

3. Grantor does not, and shall not, waive any rights against grantee which it may have by reason of this indemnification, because of the acceptance by grantor, or the deposit with grantor by grantee, of any of the insurance policies described in this section.

4. Grantee shall indemnify grantor for any damage resulting to it from failure of either grantee or any subcontractor to take out and maintain such required insurance.

5. This indemnification by grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this chapter, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.

6. Grantee shall not be required to indemnify grantor for the sole negligence or willful misconduct (hereinafter "such acts") on the part of grantor, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers. Grantor shall hold grantee harmless from any damage resulting from any such acts of grantor or its officers, officials, boards, commissions, agents, employees, or contractors in using any governmental or educational access channel, equipment, or facilities and for any such acts committed by grantor in connection with work performed by grantor and permitted by this agreement, on or adjacent to the cable system.

B. Insurance.

1. On or before commencement of franchise operations, grantee shall furnish to grantor one or more insurance policies demonstrating compliance with all insurance coverage requirements of this chapter and any applicable franchise agreement. Such insurance coverage, shall, at a minimum, satisfy claims for injuries to persons or damages to property which may arise from or in conjunction with the performance of the work hereunder by grantee, its agents, representatives, employees or contractors. Grantee shall maintain at its cost throughout the term of the franchise, the insurance coverage required herein and in any franchise agreement. Each company providing insurance coverage shall satisfy the requirements hereof.

2. Each insurance policy described in this section or any applicable franchise agreement shall name the city, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers as additional insureds.

3. Each insurance policy shall contain a provision that a written notice of any cancellation, modification that relates to a diminution in the scope of coverage under this section, or reduction in the limits of coverage of said policy shall be delivered to the City Manager thirty (30) days in advance of the effective date thereof.

4. Insurance coverage shall include at least the following types of policies with the following minimum limits:

a. General Liability. Two million dollars ($2,000,000.00) combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this franchise or the general aggregate limit shall be twice the required occurrence limit.

i. The general liability insurance shall include property insurance and fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations, in an amount adequate to enable grantee to expeditiously resume franchise operations following the occurrence of any risk covered by this insurance.

b. Automobile Liability. Two million dollars ($2,000,000.00) combined single limit per accident for bodily injury and property damage.

c. Worker's Compensation and Employer's Liability Complying with State Laws. The greater of either (i) each minimum policy limit required by state law or (ii) a minimum limit of one million dollars ($1,000,000.00) per each accident and a minimum limit of one million dollars ($1,000,000.00) for employee bodily injury and disease.

i. Furthermore, any insurer providing worker's compensation and employers liability coverage shall agree to waive all rights of subrogation against grantor, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees for losses arising from work performed by grantee for grantor.

d. Errors and Omissions Liability Endorsed to Include Contractual Liability. One million dollars ($1,000,000.00) each occurrence.

e. Slander/Libel/Defamation Liability Insurance. An aggregate annual amount of one million dollars ($1,000,000.00).

5. All insurance coverage is to be provided with insurers with a current A.M. Best's rating of no less than A:VII if admitted in the state of California. A nonadmitted company submitted for grantor's consideration shall have an A.M. Best's rating of A:X or higher.

6. Each insurance policy required by the chapter or any applicable franchise shall contain, or be endorsed to contain, the following additional provisions:

a. Grantee's insurance coverage shall be primary insurance with respect to grantor, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers. Any insurance or self-insurance maintained by grantor, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers shall be excess of grantee's insurance and shall not contribute with it.

b. Any deductibles or self-insured retentions must be declared to and approved by grantor. At the option of grantor, either the insurer shall reduce or eliminate such deductibles or self insured retentions as respects grantor, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, employees, contractors, and volunteers; or grantee shall provide evidence satisfactory to grantor guaranteeing payment of losses and related investigations, claim administration and defense expenses.

c. Grantee's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.

d. Grantee shall furnish grantor with endorsements effecting the insurance coverage required by this chapter. The endorsements are to be signed by the person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms acceptable to grantor. All endorsements are to be received and approved by grantor in accordance with the schedule established in this section.

e. Grantee shall include all contractors as additional insureds under its policies or shall furnish to grantor separate insurance policies and endorsements provided by each contractor not listed as an additional insured in by grantee's insurance policies. All insurance coverage obtained by contractors in order to satisfy this subparagraph shall satisfy all insurance coverage and insurance coverage reporting requirements contained by this chapter or any applicable franchise agreement.

7. In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight (48) hours notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect.

8. The city may review the insurance required herein during the term of the grantee's franchise. Based upon any material adverse changes in liability exposure or legal requirements, the city may, at any time during the term of a franchise, reasonably change the amounts and types of insurance coverage required by the franchise. Grantee shall effect any such required changes in insurance coverage within ninety (90) days of receiving applicable written notice from the city.

(Ord. 2509 § 9, 2000)

A. Records Required.

1. In addition to records and documents required by other provisions of this chapter and any franchise agreement, grantee shall, also, at all times maintain:

a. A written or computer-stored record of all subscriber complaints and service calls and interruptions or degradation of service experienced by subscribers for the preceding two (2) years. These records must be maintained in a manner which satisfies applicable federal and state privacy laws.

b. A full and complete set of plans and record drawings showing the locations of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber's homes.

c. If requested by grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls, in a form reasonably acceptable to grantor, shall be submitted to grantor within thirty (30) days following any written request by grantor.

d. If requested by grantor; a complaint record which shall contain a semiannual breakdown (pertaining to the periods of time ending on June 30th and December 31st) indicating the total number of complaints received for the preceding reporting period, and which shall indicate the classifications of complaints as follows: construction, billing, customer relations/service and miscellaneous.

e. A full and complete record of rates for programming services, equipment, installations and other subscriber charges. This information shall include, but not be limited to, rates for the basic service tier, tiers of service beyond the basic service tier, premium services, pay-per-view services, late fees, additional outlets, converters, remote controls and any charges for installation or service at the subscriber premises.

2. Grantor may impose requests for additional information, records and documents from grantee, provided they reasonably relate to the scope of the city's rights or grantee's duties pursuant to this chapter or a franchise agreement, and are consistent with applicable federal and state privacy laws.

3. Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of grantor of all:

a. Franchise property and facilities, together with any appurtenant property and facilities of grantee situated within the service area; and

b. All records relating to the franchise, provided they are necessary to enable grantor to carry out its regulatory responsibilities under this chapter or the franchise agreement, and the release of such information is consistent with applicable federal and state privacy laws. Grantee shall have the right to be present at any such examination.

B. Annual Reports.

1. Within ninety (90) days after the end of each calendar year, grantee shall submit a written report to grantor with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:

a. A summary of the previous year's cable system activities and developments, including but not limited to, services begun or discontinued during the previous year;

b. A list of grantee's officers, directors and/or managing employees;

c. A list of the partners, general and limited, of the applicant, if the applicant is a partnership; the percentage of stock owned or controlled by each stockholder having a five (5) percent or greater interest, if the applicant is a corporation; and the holder(s) of any controlling interest as well as the holder(s) of any equity interest of greater than five (5) percent and the magnitude of such an equity interest, if the applicant is a limited liability company;

d. An indication of any residential and commercial areas in grantee's service area where service is not available, and a schedule for providing service;

e. Information as to:

i. The number of homes passed,

ii. Total subscribers, and

iii. The overall number of subscribers and the number of subscribers who subscribe to the following services: (a) the lowest priced analog tier which includes the retransmission of local television broadcast signals; (b) each other analog video programming tiers, listed separately by name; (c) premium cable services; (d) digital programming services; (e) high-speed data or "cable modem" services; and (f) other categories of cable services grantee introduces to the service area and for which grantor requests information concerning subscriber levels;

f. A full and complete set of plans and record drawings showing the locations of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber's homes. It is the intent of this section that grantor have a complete set of plans and records drawings. After the initial submission of a complete set of drawings, grantee may satisfy the provisions of this section by providing updated portions of those sections of the drawings which have changed;

g. Any other information relevant to this chapter, any applicable franchise agreement, and cable system franchise regulation.

2. Upon request, grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to any federal, state or local court, regulatory agency, or other governmental body as well as copies of all decisions issued in response to such pleadings, applications and reports.

3. Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection.

4. If grantee or a parent is publicly held, grantee shall submit to grantor a copy of each annual and other periodic reports pertaining to grantee and/or its parent, within forty-five (45) days of the publication of such a report.

5. Upon grantor's request, but no more than annually, grantee shall submit to grantor a privacy report indicating the degree of compliance with the provisions contained in Section 18.08.150(F)(3), (4) and (6) of this chapter and all steps taken to assure that the privacy rights of individuals have been protected.

6. All reports required under this chapter, except those required by law to be kept confidential, shall be available for public inspection in grantor's offices during normal business hours.

7. All reports and records required to be delivered to grantor under this chapter shall be furnished at the sole expense of grantee, except as otherwise provided in a franchise agreement.

8. Grantee's failure to timely file any of the reports required as and when due under this chapter may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty (30) days after written request therefor, and may subject grantee to all remedies, legal or equitable, which are available to grantor under this chapter or the franchise agreement.

9. Any materially false or misleading statement or representation made by grantee in any report required under this chapter or under the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor.

C. Opinion Survey. Upon written request of grantor, but not more than once every two (2) years, grantee shall conduct a subscriber satisfaction survey pertaining to grantee's quality of service provided in the service area. Prior to grantee's dissemination or conduct of such a survey, grantee shall: (i) provide to grantor a written draft list of the questions to be included in the survey and a description of the survey's format and methodology; and (ii) discuss with grantor any questions or concerns grantor has regarding these matters. Grantee may include this survey with an invoice for cable services. The results of such survey shall be provided to grantor on a timely basis. The cost of such survey shall be borne by grantee.

(Ord. 2509 § 10, 2000)

A. Biennial Review.

1. Every two (2) years throughout the term of each franchise, upon receipt of a prior written directive issued by grantor, grantor and grantee shall meet publicly to review cable system performance and quality of service. The various reports required by this chapter, the results of technical performance tests, the record of subscriber complaints and grantee's response to those complaints, and the information acquired in any subscriber surveys, and any other relevant information shall serve as the basis for this review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these complaints and comments shall be considered during this review.

2. If grantor determines that grantee is not in compliance with the requirements of this chapter or grantee's franchise agreement, grantor shall provide grantee, in the form of written findings, the specific details of each instance and/or type of alleged noncompliance. Grantor may then direct grantee to:

a. Correct the area(s) of noncompliance within a reasonable period specified by grantor;

b. Initiate remedial action within a reasonable period specified by grantor and diligently achieve full compliance by a reasonable deadline established by grantor; or

c. Demonstrate that the allegations of noncompliance are incorrect.

3. Failure of grantee to take the corrective actions described in subsection (A)(2) of this section, after due notice, shall be considered a material breach of the franchise agreement, and grantor may exercise any appropriate remedy allowed by this chapter and the franchise agreement.

B. Special Franchise Performance Review. Whenever repeated complaints or other evidence cast reasonable doubt on the reliability or quality of grantee's cable service and grantee's compliance with the requirements of this chapter or grantee's franchise; grantor may require grantee to test, analyze and report on the performance of the cable system, in order to protect the public against substandard cable service. Grantor may not compel grantee to provide such tests or reports unless and until grantor has provided grantee with at least thirty (30) days prior written notice of its intention to exercise its rights under this subsection and has provided grantee with an opportunity to be heard prior to its exercise of such rights. Grantee shall conduct such test or tests and deliver the report to grantor—at grantee's sole cost—no later than thirty (30) days after grantor notifies grantee in writing that grantee is exercising such right. Such report shall include the following information: (i) the nature of the complaints which precipitated the special tests; (ii) the cable system component(s) tested and the equipment used and procedures employed in said testing; (iii) the results of such tests; and (iv) the method by which any complaints were resolved. Grantee shall also record any other pertinent information concerning such special tests.

(Ord. 2509 § 11, 2000)

A. Procedures for Addressing Franchise Violations. If grantee fails to perform in a timely manner any obligation required by this chapter or a franchise agreement, or if grantee otherwise violates a provision of this chapter or a franchise agreement; following reasonable written notice from grantor and a reasonable opportunity to cure such nonperformance or other violation in accordance with the provisions of this chapter and of the franchise, grantor may at its option and in sole discretion undertake any of the following:

1. Cure the violation and recover the actual cost thereof from the security fund established in the franchise agreement, if such violation is not cured within thirty (30) days after written notice to grantee of grantor's intention to cure and draw upon the security fund;

2. Assess against grantee liquidated damages in an amount set forth in this chapter or a franchise agreement for any such violations if such violation is not cured within thirty (30) days after grantee's receipt of written notice of grantor's intention to assess liquidated damages, or if grantee has not commenced a cure on a schedule reasonably acceptable to grantor within thirty (30) days after receipt of such written notice of grantor's intention to assess liquidated damages. Such liquidated damages may be withdrawn from the security fund, and shall not constitute a waiver by grantor of any other right or remedy grantor may have under this chapter, the franchise agreement, or applicable law, including without limitation, grantor's right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney's fees incurred by grantor due to grantee's failure to timely cure the applicable franchise breach.

B. Nonrevocation Procedures for Remedying Franchise Violations.

1. Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures.

2. Grantor shall first notify grantee of the alleged violation in writing and demand that grantee provide grantor with written evidence of having taken action fully correcting the deficiency or evidence that no violation exists. Grantee's response shall be due: (i) not be less than fifteen (15) business days after grantee's receipt of this notification, in the case of grantee's failure to pay any sum or other amount due grantor under this chapter or grantee's franchise; and (ii) not less than thirty (30) business days after grantee's receipt of this notification concerning other alleged types of violations.

Grantor shall provide grantee written notice of not less than thirty (30) days of a public hearing to be held before the City Council, if grantee fails to:

a. Correct the alleged violation within the time prescribed; or

b. Commence correction of the alleged violation within the time prescribed and diligently remedy such alleged violation thereafter; or

c. Provide evidence that there is no violation.

Said notice shall set forth in detail each of the violations alleged to have occurred.

3. Subsequent to the public hearing, the City Council shall hear and consider all other relevant evidence, and thereafter render findings and its decision.

4. The proceedings shall terminate and no penalty or other sanction shall be imposed against grantee, if the City Council finds that:

a. Grantee has corrected the alleged violation; or

b. Grantee has diligently commenced correction of such alleged violation after notice thereof and is diligently proceeding to fully remedy such alleged violation pursuant to a schedule reasonably satisfactory to the City Council; or

c. No material violation has occurred.

5. The City Council may impose one or more of the remedies provided in this chapter and the franchise agreement as the City Council, in its discretion, deems appropriate under the circumstances, if the City Council finds that a violation exists and that grantee:

a. Has not corrected the violation in a satisfactory manner; or

b. Has not diligently commenced correction of such violation after notice thereof and is not diligently proceeding to fully remedy such violation.

C. Grantor's Power to Revoke a Franchise.

1. Grantor may revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with the franchise under the following circumstances:

a. Grantee has failed to perform any of its material obligations under this chapter or the franchise agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure;

b. Grantee has engaged in a breach of a franchise agreement or this chapter deemed "material" in the franchise agreement or this chapter;

c. Grantee has failed to provide or maintain in full force and effect the insurance coverage and/or security fund required by this chapter or a franchise agreement;

d. Grantee has violated an order or ruling of any regulatory body (including the City Council) having jurisdiction over grantee's franchise;

e. Grantee has knowingly engaged in a course of conduct intentionally designed to practice a fraud or deceit upon the city, any subscriber, or any other person;

f. Except as provided in Section 18.08.140(D) of this chapter, grantee has become insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt;

g. Grantee has failed to timely provide any information or documents required by any provision of this chapter or a franchise agreement, after receiving a written request for such information from the city;

h. Grantee has failed to satisfy the requirements regarding the cable system characteristics described in this chapter or in a franchise agreement or grantee has repeatedly failed to meet the cable system technical performance, electrical code, or construction code standards described in this chapter or in a franchise agreement;

i. Grantee has failed to timely provide cable service to any person as required by this chapter or a franchise agreement, after receiving a written request from the city to provide such cable service;

j. Grantee has failed to comply with the standards, terms, or schedule for cable system construction, as required by this chapter or a franchise agreement;

k. Grantee has substantially failed to maintain the mix, level, and quality of cable services within the broad categories of video programming and other cable services described in a franchise agreement; however, no provision in this chapter shall imply any regulatory authority or power of censorship by the city over the content of programming on channels controlled by grantee, commercial leased access channels, or public access programming;

l. Grantee has abandoned a cable system, in whole or in material part, without the prior written consent of the City Council;

m. Grantee has repeatedly failed to comply with the commercial leased access requirements of Section 612 of the Cable Act (47 U.S.C. § 532);

n. Grantee has substantially failed to supply or fund the PEG access facilities required by a franchise agreement;

o. Grantee has repeatedly imposed nonstandard installation or other charges for cable service which are discriminatory, or which are inconsistent with Section 18.08.060(A)(1) of this chapter.

p. Grantee has repeatedly failed to comply with the nondiscrimination or equal employment provisions incorporated in Section 18.08.150(F) of this chapter;

q. Grantee has repeatedly failed to comply with the customer service standards and requirements set forth in this chapter;

r. Grantee has repeatedly failed to comply with the privacy rights of subscribers provided herein, or with the provisions of Section 631 of the Cable Act (47 U.S.C. § 551) or Section 637.5 of the state of California Penal Code;

s. Grantee has repeatedly failed to make any franchise fee payment required by a franchise agreement or by Section 18.08.080 of this chapter, or any other payment required by a franchise agreement or by this chapter;

t. Grantee has repeatedly failed to comply with any rules, regulations, orders or other directives of the city, issued pursuant to the city's police powers;

u. Grantee has undertaken a material action which requires the approval or consent of the City Council, including the transferring or changing of control of a franchise, without having first obtained the City Council's prior approval or consent;

v. Grantee has failed to cooperate fully and faithfully with any lawful investigation, audit or inquiry conducted by the city or any person lawfully acting on behalf of the city;

w. Grantee has issued a written misrepresentation, intentionally made by or on behalf of grantee in a proposal for a franchise, or in connection with the negotiation or renegotiation of a franchise, or any amendment or other modification to a franchise, or in connection with an application, request, or negotiation for a franchise transfer or change in control;

x. Grantee, any affiliated person, any director or executive officer of grantee or of an affiliated person, or any employee or agent of grantee or of any affiliated person acting under the express direction or with the actual consent of grantee, its directors or officers, has been convicted of a criminal offense, including, without limitation, bribery, fraud or obscenity, arising out of or in connection with a franchise granted by the city or the award of such a franchise, provided that the right to terminate the franchise in the event of said conviction shall arise only with respect to any of the foregoing types of convictions of grantee itself and, in the event of the conviction of any other persons specified in this subparagraph, only if grantee fails to disassociate itself, from or terminate the employment of, such other persons with respect to activities in the franchise area or any other activities affecting a cable system within the city's territorial limits, within thirty (30) days after the time in which appeals from such conviction may be taken, if not taken, or within thirty (30) days following the final determination of all appeals which are in fact taken;

y. Any city officer, official, board member, employee, or agent is convicted of the offense of bribery or fraud with respect to the franchise held by grantee and which arises out of or in connection with any intentional action by grantee, any affiliated person, any director or executive officer of grantee or of any affiliated person, or of any employee or agent of grantee or of any affiliated person acting under the express direction or actual consent of grantee or any of the foregoing, which act was undertaken for the benefit of grantee;

z. Grantee or any affiliated person, or any director or officer of grantee or any affiliated person, or any employee or agent of grantee or any affiliated person acting under the express direction or with the actual consent of grantee knowingly makes a material false entry or false statement in any document to be distributed to the city or upon which the city may rely.

2. After the city has satisfied the procedures set forth in subsection B of this section, the City Manager may request that the City Council revoke a franchise.

a. The City Council shall begin a public hearing, which may continue from time to time, within sixty (60) days of the City Manager's request. The City Council shall ensure that grantee is served with written notice of the City Council's intent to consider revoking grantee's franchise at least thirty (30) days prior to the date of the hearing on the issue. Prior to this hearing, the City Council shall provide grantee and the public written notice of the time and place of the hearing at least ten (10) days prior to the date of the hearing. Such notice to grantee shall be delivered by personal service or by mailing a copy of the notice thereof, postage prepaid.

b. i.

The City Council need not conduct this public hearing according to the technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the type of evidence about which reasonable persons are accustomed to rely in the conduct of serious affairs, including hearsay evidence, provided that such evidence alone shall be insufficient to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state. The City Council may prevent the introduction of irrelevant evidence.

ii. At this hearing, the City Council shall hear any person interested in the revocation.

iii. At this hearing, the City Council shall hear oral evidence taken only on oath or affirmation. The City Council may take official notice of any fact which may be judicially noticed by the courts of this state or of official records of departments and ordinances of the city, provided that the parties are informed of the matters to be noticed, the matters are noted in the record, and the parties are given a reasonable opportunity to refute the officially noticed matters.

iv. Each party to this hearing shall be entitled to the following procedural rights:

(A) To call and examine witnesses on any matter relevant to the issues of the hearing;

(B) To introduce documentary and physical evidence;

(C) To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;

(D) To impeach any witness regardless of which party first called the witness to testify;

(E) To rebut the evidence; and

(F) To be represented by anyone who is lawfully permitted to provide such representation.

v. Grantor shall ensure that a record of this hearing shall be made and duly preserved, provided that the grantee reimburse the city for the total cost of preparing such a record before a copy of the record is made available to grantee.

c. Within ninety (90) days of the conclusion of the hearing, the City Council shall issue a written decision regarding any alleged breach of the franchise and the recommended franchise revocation. If grantor determines that grantee has committed a material breach, then grantor may:

i. Declare the franchise revoked and any security fund and bond forfeited, in whole or in part; or

ii. If the material breach is curable by grantee; at grantor's discretion, direct grantee to take appropriate remedial action within the time and manner and under the terms and conditions reasonably specified by grantor.

The termination and forfeiture of grantee's franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law.

(Ord. 2509 § 12, 2000)

A. In the event grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof, but only to the extent such cause or event prevents grantee from performing its franchise agreement obligations. Furthermore, the inability to perform shall not relieve a grantee from the obligations imposed by Section 18.08.060(C)(3) of this chapter pertaining to refunds and credits for interruptions in service.

B. For purposes of this section, the causes or events not within the control of grantee are the following: acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.

C. For purposes of this section, causes or events within the control of grantee shall include: (i) financial inability of grantee to perform or failure of grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility, where such failure is due solely to the acts or omissions of grantee; or (ii) the failure of grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable system, where grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(Ord. 2509 § 13, 2000)

A. Cable System Facilities Abandonment or Removal.

1. If grantee discontinues the use of any of its property within the public rights-of-way for a continuous period of twelve (12) months, such property shall be deemed to have been abandoned by grantee. Any part of the cable system that is parallel or redundant to other parts of the cable system and is intended for use only when needed as a backup for the cable system or a part thereof, shall not be deemed to have been abandoned because of its lack of use.

2. Grantor may give grantee permission to abandon, without removing, any cable system facility or equipment laid, directly constructed, operated or maintained under the franchise. Unless such permission is granted by the city, grantee shall remove all abandoned facilities and equipment upon receipt of written notice from grantor and shall restore to grantor's satisfaction any affected public right-of-way. In removing its plant, structures and equipment; grantee shall refill, at its own expense, any excavation for which grantee has been responsible and shall leave all public rights-of-way in as good condition as that prevailing prior to such removal, without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the public rights-of-way, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the security fund as provided herein shall continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions hereof.

3. Upon grantor's approval of the abandonment of any franchise property; grantee, if required by grantor, shall submit to grantor an instrument, satisfactory in form to grantor, transferring to grantor the ownership of the abandoned franchise property.

4. At the expiration of a franchise term, without renewal or extension of the franchise, or upon the revocation of a franchise, grantor shall have the right to require grantee to remove, at its own expense, all portions of the cable system from all public rights-of-way within the service area, within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

B. Restoration or Removal of the Cable System by Grantor: Reimbursement of Grantor's Costs. Upon reasonable written notice and upon the failure of grantee to commence, pursue or complete any work to be done in any public right-of-way required by law or by the provisions of this chapter or the franchise agreement, within the time prescribed and to the reasonable satisfaction of grantor; grantor may cause the work to be commenced and/or completed. Grantor shall provide to grantee an itemized work order setting forth in detail the exact nature of the work completed and the supplies used in such work. Grantee shall pay to grantor its documented costs for such work no later than thirty (30) days after grantee's receipt of an itemized work order.

C. Extended Operation and Continuity of Services. Upon expiration or revocation of the franchise, grantor may permit grantee to continue to operate the cable system for an extended period of time. Grantor shall provide any such permission in writing, which shall constitute an extension of the franchise for the term specified in such written permission. Such a franchise extension, however, shall not revive any franchise renewal rights or any other rights grantee may have previously lost, except to the extent explicitly stated in writing by the City Council.

During such a franchise extension, grantee shall continue to operate the cable system under the terms and conditions of this chapter and the franchise and to provide to all subscribers the regular cable service and any and all of the related services that may be provided at the time of franchise expiration or revocation. All subscribers shall be entitled to continue subscribing to and receiving all available services, to the extent that they have met their financial and other obligations to grantee. Grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the cable system during transition periods following franchise expiration or termination.

D. Receivership and Foreclosure.

1. At the option of grantor and subject to applicable law, the City Council may revoke a franchise one hundred twenty (120) days after the appointment of any receiver or trustee to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:

a. The receivership or trusteeship shall have been vacated within said one hundred twenty (120) days; or

b. Said receiver(s) or trustee(s), within said one hundred twenty (120) days, shall have remedied all the defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to grantor; or

c. Said receiver(s) or trustee(s), within said one hundred twenty (120) days, shall have executed an appropriate court-approved agreement, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise.

2. In the case of a foreclosure or other judicial sale of the cable system, in whole or in part; grantor may serve notice of revocation upon grantee and the successful bidder at such sale, and all rights and privileges of grantee hereunder shall be revoked thirty (30) days after service of such notice, unless:

a. Grantor shall have approved the transfer of the franchise to the successful bidder, in the manner provided by law; and

b. The successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise, and the successful bidder shall have demonstrated to grantor's reasonable satisfaction the successful bidder's ability to meet these terms and conditions.

(Ord. 2509 § 14, 2000)

A. Reservation of Grantor Rights. In addition to any rights specifically reserved to grantor by this chapter, grantor reserves to itself every right and power vested in grantor by applicable law.

B. The City Reserves the Right to Adopt Additional Terms, Conditions and Regulations Pursuant to the City's Police Power, Taxation Powers, and Powers of Eminent Domain. The city reserves the right, and in accepting a franchise, grantee shall acknowledge and accept the city's right, to adopt, to incorporate into this chapter and to incorporate by reference into any franchise agreement, any additional rules, regulations, terms, conditions authorized or permitted by state or federal law as the City Council finds necessary in the lawful exercise of the city's constitutional powers, the city's police powers to protect the public health, safety or welfare, the city's powers of taxation, and the city's powers of eminent domain. Neither the granting of any franchise by the city nor any provision of this chapter shall constitute a waiver or bar to the lawful exercise of any governmental right or power, including those rights and powers vested in the city.

C. The City's Discretionary Powers.

1. Should there be any significant change to the Cable Act, to the federal regulations promulgated thereunder, or to any other federal or state law which expand the city's discretionary powers pertaining to cable television, and which expanded discretionary powers fall outside the purview of the city's police powers or powers of eminent domain and taxation, grantee shall meet at the request of the city and negotiate in good faith concerning any modifications to a franchise agreement which the city may request or be authorized to request or otherwise secure with respect to such a significant change. Significant changes include, by way of example and not by way of limitation, changes which allow or address the following subjects:

a. Municipal regulation of cable system programming;

b. Increased cable system technical proficiency;

c. Local requirements for local access channels and financial support of local access and/or origination programming;

d. Municipal acquisition of cable systems;

e. Permitted franchise fees and gross annual cable service revenues base;

f. Services for senior or the disabled subscribers;

g. Franchise renewal or transfer procedures;

h. "Lifeline" or special reduced rate service; and

i. The definition of "effective competition" with respect to grantee's cable system.

D. Procedures for City Council Adoption of Additional Ordinances, Regulations, Rules, Etc. Each proposed additional cable system ordinance or regulation adopted by the City Council pursuant to subsections B and C of this section, shall be considered in one or more public hearings before the City Council. Each such proposed ordinance or regulation shall be provided to grantee at least sixty (60) days preceding the first such public hearing. The City shall provide grantee with the opportunity to meet and confer concerning changes to or modifications of such proposed ordinances or regulations. Grantee shall comply with additional ordinances or regulations adopted by the City Council within sixty (60) days of the date of adoption of such ordinances or regulations, unless grantee shall promptly and in writing request of the city a more reasonable extension of time in which to comply, if applicable, under the conditions provided herein. The city shall promptly respond and shall grant such requests for additional time if reasonably necessary to effect compliance, provided that grantee actively and expeditiously attempts to attain compliance with such regulations.

E. Grantor's Waiver of Franchise Provisions.

1. Grantor shall have the right to waive any provision of a franchise agreement, except those required by federal or state law or regulation, if grantor determines that: (i) such a waiver is in the public interest; or (ii) the enforcement of such provision will impose an undue hardship on grantee or its subscribers. To be effective, such a waiver shall be evidenced by a resolution or ordinance approved by the City Council. Waiver of any provision in one instance shall not be deemed a waiver of such a provision subsequent to the granting of the initial waiver nor be deemed a waiver of any other provision of the franchise, unless expressly authorized by grantor's statement.

2. Grantee shall not be excused from complying with any of the requirements of this chapter or the franchise agreement by any failure of grantor on any one or more occasions to require or seek compliance with any such terms or conditions.

F. Rights of Individuals.

1. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, general citizens, or residents of the city on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations relating to nondiscrimination. However, nothing in this chapter or the franchise shall limit the right of grantee to deny service to any household or individual which has a negative credit or service history with grantee, which may include nonpayment of bills or theft or damage to grantee's equipment, or who has threatened or assaulted an employee or agent of grantee in the course of their employment or agency.

2. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations, as now written or as amended from time to time.

3. Neither grantee, nor any other person shall—without a subscriber's consent—tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the cable system, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers, where individual viewing behavior cannot be identified.

4. In the conduct of providing cable services, in the pursuit of any collateral commercial enterprise resulting therefrom, in the use of grantee's cable system or any related system, or while engaged in any related activity; grantee shall take reasonable steps to prevent the interference with privacy and other personal rights held by subscribers and other individuals, as such rights are delineated or defined by applicable law. Unless acting pursuant to a lawful court order or other applicable valid legal authority, grantee shall not use the cable system's interactive two-way equipment or capability, if such equipment or capability exists, for unauthorized personal surveillance of any subscriber or any other individual.

5. No cable line, wire amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber's premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install grantee's equipment upon the subscriber's property in a manner reasonably satisfactory to the subscriber shall be deemed granted.

6. In accordance with state and federal privacy laws, neither grantee, nor any of its agents, employees, or other representatives, shall sell, or otherwise make available to any party without consent of the subscriber:

a. Any list of the names and addresses of subscribers containing the names and addresses of subscribers who have requested in writing to be removed from such a list; and

b. Any list which identifies the programming viewing activity of individual subscribers, without the prior written consent of such subscribers. However, grantee may distribute to other entities reports of composite subscriber programming viewing activity.

(Ord. 2509 § 15, 2000)

By accepting a franchise and prior to such acceptance, grantee shall acknowledge that notice has been given to grantee that, pursuant to Section 107.6 of the state of California Revenue and Taxation Code, use or occupancy of any public property pursuant to the authorization set forth in this chapter and the franchise may create a possessory interest which may be subject to the payment of property taxes levied upon such a possessory interest. Grantee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against grantee's right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by such a franchise. Grantee shall not be barred from challenging such tax on any amounts assessed pursuant thereto.

(Ord. 2509 § 16, 2000)

If any provision of this chapter or a franchise agreement is held by any court or by any federal or state agency of competent jurisdiction, to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provision shall be considered a separate, distinct, and independent part of this chapter or the franchise agreement, and such holding shall not affect the validity and enforceability of all other provisions of this chapter and the franchise agreement. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the chapter or the franchise agreement provision which had previously been held invalid or modified no longer conflicts with such law, rule or regulation; said chapter or franchise agreement provision shall thereupon return to full force and effect and shall thereafter be binding on grantor and grantee, provided that grantor shall give grantee thirty (30) days written notice of such change before requiring compliance with said chapter or franchise agreement provision or such longer period of time as may be reasonably required for grantee to comply with such provision.

(Ord. 2509 § 17, 2000)