El Segundo Municipal Code Ch. 6 Community Antenna Television Systems

The city finds that the development of cable television and communications 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 television, the city 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 or such persons as the city shall designate. Consistent with federal and state law, it is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof. (Ord. 1165, 6-4-1991)

This chapter shall be known and may be cited as the CITY OF EL SEGUNDO CABLE COMMUNICATIONS FRANCHISE ORDINANCE. (Ord. 1165, 6-4-1991)

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

BASIC CABLE SERVICE: Any service tier which includes the retransmission of local television broadcast signals.

CABLE COMMUNICATIONS SYSTEM OR SYSTEM (Also Referred To As CABLE TELEVISION SYSTEM, CABLE SYSTEM, CATV SYSTEM, Or COMMUNITY ANTENNA TV SYSTEM): A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

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

B. A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility uses any public right of way;

C. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

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

CABLE SERVICE: The total of the following:

A. The one-way transmission to subscribers of video programming or other programming service; and

B. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CHANNEL OR CABLE CHANNEL: 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 federal communications commission.

COMMENCE CONSTRUCTION: That time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated.

COMMENCE OPERATION: That time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to a dwelling unit located within the franchise area and such services are actually offered to a resident of the franchise area.

COMMERCIAL USE CHANNEL: The channel capacity designated for commercial use as defined and required by federal law.

COMPLETION OF CONSTRUCTION: That point in time when all distribution facilities specified in the franchise agreement have been installed by the grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, of any facilities required by the franchise agreement.

CONVERTER: An electronic device which converts signal carriers from one form to another.

COUNCIL: The governing body of the city of El Segundo.

FCC: The federal communications commission and any legally appointed or elected successor.

FRANCHISE: An initial authorization, or renewal thereof, issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.

FRANCHISE AGREEMENT: A franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements ordinances and other related materials.

FRANCHISE FEES: Any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a grantee or cable subscriber, or both, solely because of their status as such. The term "franchise fee" does not include:

A. 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 grantee or cable subscribers);

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

C. 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

D. Any fee imposed under title 17, United States Code.

GRANTEE: Any "person" receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.

GRANTOR OR CITY: The city of El Segundo as represented by the city council or any delegate acting within the scope of its jurisdiction.

GROSS ANNUAL RECEIPTS: The annual gross revenues received by the grantee from all sources of operations of the cable communications system, excluding refundable deposits, except that any sales, excise or other taxes collected for direct pass through to local, state or federal government shall not be included.

INITIAL SERVICE AREA: The area of the city which will receive service initially, as set forth in the franchise agreement.

INSTALLATION: The connection of the system from feeder cable to subscribers' terminals, and the provision of service.

LOCAL ORIGINATION CHANNEL: Any channel where the grantee or its designated agent is the primary programmer, and provides video programs to subscribers.

PAY CABLE, PAY TELEVISION OR PAY PER VIEW: The delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic cable service, on a per program, per channel, or other subscription basis.

PERSON: An individual, partnership, association, joint stock company, trust, corporation, or organizational entity.

PROGRAMMER: A person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the cable communications system.

PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS FACILITIES OR PEG ACCESS FACILITIES: The total of the following:

A. Channel capacity designated for public, educational, or governmental use; and

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

RESIDENT: Any person residing in the city as otherwise defined by applicable law.

SCHOOL: Any accredited nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private.

SECTION: Any section, subsection, or provision of this franchise chapter.

SERVICE AREA OR FRANCHISE AREA: The entire geographic area within the city designated in a franchise agreement to receive cable service.

SERVICE TIER: A category of cable service or other services provided by a grantee and for which a separate rate is charged by the grantee.

STATE: The state of California.

STATE FRANCHISEE: Any holder of a state issued video franchise operating in the city, as defined in Public Utilities Code section 5830(p).

STREET: Each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights of way and similar public property and areas that the grantor shall permit to be included within the definition of street from time to time.

SUBSCRIBER: Any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system. (Ord. 1165, 6-4-1991; amd. Ord. 1418, 4-1-2008)

A. Grant:

1. In the event that grantor shall grant to a grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a cable communications system within the franchise area, or a renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement. The franchise agreement shall include those provisions of the grantee's "application for franchise" that are finally negotiated and accepted by the grantor and grantee.

2. Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and State general laws and regulations. In the event of conflict between the terms and conditions of the franchise and the terms and conditions on which the grantor can grant a franchise, the general law and/or statutory requirements shall, without exception, control.

3. Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the other codes and ordinances of the grantor regarding permits, fees to be paid or manner of construction.

B. Franchise Required: No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise in accordance with the provisions of this Chapter.

C. Establishment Of Franchise Requirements: The grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, except as set forth in Section 9-6-7 of this Chapter, but shall become applicable when the franchise is renewed.

D. Authority To Grant Franchise: The grantor may grant a franchise for all or any defined portion of the City. The service area shall be the entire area defined in the franchise agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the franchise agreement.

E. Use Of Public Streets And Ways: For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of subsection 9-6-15J of this Chapter, the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate grantor agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable grantor construction codes and procedures.

F. Duration: The term of any new franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided.

G. Franchise Nonexclusive: Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights previously granted to any grantee.

H. New Franchise Applications: Applicants for a new franchise shall submit to the grantor written applications utilizing the standardized format provided by the grantor, at the time and place designated by the grantor for accepting applications, and including the application fees designated by grantor.

I. Grant Procedure: All new franchise applications when filed shall be available for public inspection at places designated by the grantor. No later than ninety (90) days after the final date for filing applications, one or more public hearings shall be held on the applications. A decision shall be made by the grantor not later than ninety (90) days after the conclusion of all such public hearings based upon an evaluation of the application, the hearings, and other information that the grantor may deem relevant. Grantor may grant one or more franchises, or may decline to grant any franchise. (Ord. 1165, 6-4-1991)

A. Transfer Of Franchise: Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior written consent of the grantor, and then only under such reasonable conditions as the grantor may establish. Such consent as required by the grantor shall be given or denied no later than ninety (90) days following any request, and shall not be unreasonably withheld.

B. Ownership Or Control: The grantee shall promptly notify in writing the grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of ten percent (10%) or more of the beneficial ownership interest of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented in writing thereto, which consent shall be given or denied no later than ninety (90) days following any request, and shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the grantor in any such inquiry.

In seeking the grantor's consent to any change in ownership or control, the grantee shall have the responsibility:

1. To show to the satisfaction of the grantor whether the proposed purchaser, transferee, or assignee (the "proposed transferee"), which in the case of a corporation, shall include all directors and all persons having a legal or equitable interest in five percent (5%) or more of its voting stock:

a. Has ever been convicted of any felonious acts including, but not limited to, any violation of Federal, State or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts;

b. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or

c. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system.

2. To establish, to the satisfaction of the grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantee was required to submit in its franchise application and such other data as the grantor may request. Financial statements shall be audited, certified and qualified by a certified public accountant or a financial officer of the proposed transferee.

3. To establish to the satisfaction of the grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms.

C. Financial Institution: The grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor shall take control and operate the cable communications system, in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee. If the grantor finds that such transfer after considering the legal, financial, character, technical and other public interest qualities of the applicant are satisfactory, the grantor shall transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the grantor to such transfer shall be given or denied no less than ninety (90) days after any request, and shall not be unreasonably withheld.

D. Grantor Rights To Streets: The consent or approval of the grantor to any transfer by the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of any franchise.

E. Completion Of Construction: In the absence of extraordinary circumstances, the grantor shall not approve any transfer or assignment of the franchise prior to completion of initial construction of the cable system.

F. Successor Signature: In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the franchise agreement. (Ord. 1165, 6-4-1991)

Franchise renewal shall be as prescribed by applicable law. (Ord. 1165, 6-4-1991)

A. Right Subject To Police Powers: In accepting a franchise, the grantee acknowledges that its rights hereunder are subject to the police powers of the grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the grantor pursuant to such power.

B. Conflicting Provisions: Any conflict between the provisions of this Chapter and any other present or future lawful exercise of the grantor's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any cable communications system franchise which contains provisions inconsistent with this Chapter shall prevail only if upon such exercise the grantor finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law. (Ord. 1165, 6-4-1991)

A. Annual Franchise Payment: A grantee of a franchise hereunder shall pay to the grantor an annual fee in an amount as designated in the franchise agreement. Such payment shall commence as of the effective date of the franchise or any renewal date. The grantor, on an annual basis, shall be furnished a statement within sixty (60) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by a financial officer of the grantee, reflecting the total amounts of gross receipts and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days' prior written notice, grantor shall have the right to conduct an independent audit of grantee's records, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of two percent (2%) or more, the grantee shall assume all reasonable costs of such an audit.

B. Acceptance By Grantor: No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this Chapter or for the performance of any other obligation of the grantee.

C. Failure To Make Required Payment: In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation:

1. An interest charge, computed from such due date, at an annual rate equal to the average rate of return on invested funds of the City during the period for which payment was due.

2. If the payment is late by forty five (45) days or more, a sum of money equal to five percent (5%) of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.

D. Fee Payments: Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

E. Itemization Of Costs: Any grantee itemization of franchise fee costs on subscribes' bills shall be in accordance with Federal law. If grantee elects to indicate the franchise fee as a separate item, it shall also itemize, as a minimum, the five (5) cost items representing the largest recurring operational costs to grantee. (Ord. 1165, 6-4-1991)

A. Grounds For Revocation: If the grantee has been given due notice and a reasonable opportunity to cure, the grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default under this Chapter and a material breach of the franchise:

1. If the grantee shall default in the performance of any of its material obligations under this Chapter or under such documents, agreements and other terms and provisions entered into by and between the grantor and the grantee, subject to the provisions of subsection 9-6-20C of this Chapter.

2. If the grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required herein.

3. If any court of competent jurisdiction, or any Federal or State regulatory body by rules, decisions or other action determines that any material provision of the franchise documents, including this Chapter, the franchise agreement and grantee's proposal is invalid or unenforceable prior to the commencement of initial system construction.

4. If the grantee ceases to provide all services for any reason within the control of the grantee over the cable communications system.

5. If the grantee wilfully violates any of the material provisions of this Chapter or the franchise agreement or attempts to practice any fraud or deceit upon the grantor.

6. If the grantee becomes insolvent, or upon listing of an order for relief in favor of grantee in a bankruptcy proceeding.

B. Procedure Prior To Revocation:

1. The grantor may make written demand that the grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. In the event the stated violation is not reasonably curable within ninety (90) days, the franchise shall not be terminated or revoked, or damages assessed, if the grantee provides within the said ninety (90) days a plan, satisfactory to the grantor, to remedy the violation. If the failure, refusal or neglect of the grantee continues for a period exceeding ninety (90) days following receipt of such written demand by the grantor, the grantor may place its request for termination of the franchise upon a regular Council meeting agenda. The grantor shall cause notice to be served upon such grantee, at least twenty (20) days prior to the date of such meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, ten (10) days before such meeting in a newspaper of general circulation within the franchise area.

2. The grantor shall hear any persons interested therein, and shall determine, within ninety (90) days, based upon the preponderance of the evidence, whether the grantee has committed a material breach of this Chapter or the franchise agreement, and, if so, whether such breach was wilful.

3. If the grantor determines that the grantee has wilfully committed a material breach, then the grantor may, by resolution, declare that the franchise of such grantee shall be terminated and security fund and bonds forfeited, or the grantor may, at its option and if the material breach is capable of being cured by the grantee, direct the grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the grantor shall determine are reasonable under the circumstances. (Ord. 1165, 6-4-1991)

A. Disposition Of Facilities: In the event a franchise expires, is revoked, or otherwise terminated, the grantor may order the removal of the above-ground system facilities from the franchise area within a reasonable period of time as determined by the grantor or require the original grantee to maintain and operate its cable system for a period not to exceed twenty four (24) months as indicated in subsection D of this Section.

B. Restoration Of Property: In removing its plant, structures, and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the grantee's removal of its equipment without affecting the electrical or telephone cable wires, or attachments. The liability, indemnity and insurance, and the security fund and bonds provided shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this Section.

C. Restoration Grantor, Reimbursement Of Costs: In the event of a failure by the grantee to complete any work required by subsection A of this Section and/or subsection B of this Section or any other work required by grantor by law or ordinance, within ninety (90) days after receipt of written notice, and to the satisfaction of the grantor, the grantor may cause such work to be done and the grantee shall reimburse the grantor the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the grantor may recover such costs through the security fund or bonds provided by grantee. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.

D. Extended Operation: Upon either the expiration or revocation of a franchise, the grantor may require the grantee to continue to operate the cable communications system for a defined period of time not to exceed twenty four (24) months from the date of such expiration or revocation. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this Chapter and the franchise agreement and to provide the regular cable service and any of the other services that may be provided at that time. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.

E. Grantor's Right Not Affected: The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor under any provision of law. (Ord. 1165, 6-4-1991)

A. Receivership Or Bankruptcy: Any franchise granted shall, at the option of the grantor, cease and terminate one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:

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

2. Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approve by the Court having jurisdiction on the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement.

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

1. The grantor shall have approved the transfer of the franchise, as and in the manner in this Chapter provided; and

2. Such successful purchaser shall have covenanted and agreed with the grantor to assume and be bound by all the terms and conditions of the franchise agreement. (Ord. 1165, 6-4-1991)

A. Costs Involved: For either a new franchise award, franchise renewal or transfer, costs to be borne by the grantee which receives the new franchise award, renewal or transfer shall include, but shall not be limited to, all costs of publications of notices prior to any public meeting provided for pursuant to a franchise, development and publication of relevant ordinances and franchise agreement, fees, and any cost not covered by the application fees, incurred by the grantor in its study, preparation of proposal solicitation documents, evaluation of all applications, including, but not limited to, consultant and attorney fees.

B. Processing Costs Additional: These franchise processing costs are over and above the construction inspection and permit fees specified in subsection 9-6-15K1a and the franchise fee specified in Section 9-6-8 of this Chapter. (Ord. 1165, 6-4-1991)

A. Regulatory Authority: The grantor shall exercise regulatory authority under the provisions of this Chapter and applicable law. If the franchise area served by the cable communications system also serves other contiguous or neighboring communities, grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

B. Preemption Of Regulatory Authority: If any areas of local regulatory authority are preempted by State, Federal or judicial action, and such preemption is later lifted and no longer in effect, the grantor shall have the authority to reassert regulation at any time thereafter, so long as such regulation is not in conflict with the provisions of any existing franchise agreement.

C. Regulatory Responsibility: The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:

1. Administering and enforcing the provisions of the cable communications system franchise.

2. Coordination of the operation of public, educational and government (PEG) access channel and facilities.

3. Providing technical, programming and operational support to public agency users, such as government departments, schools and health care institutions.

4. Establishing jointly with the grantee, or as otherwise specified in the franchise agreement, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement.

5. Planning expansion and growth of public benefit cable services.

6. Analyzing the possibility of integrating cable communications with other local, State or national telecommunications networks.

7. Formulating and recommending long-range telecommunications policy.

D. Public Usage Of System: If so specified in the franchise agreement, the grantor may utilize a portion of the cable communications system capacity, and associated facilities and resources, to develop and provide noncommercial cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a commission, public corporation, or other entity to receive and allocate facilities, support funds and other considerations provided by the grantor, the grantee, and/or others. Such an entity, if established, may be delegated the following responsibilities:

1. Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable communications system.

2. Review the status and progress of each service developed for public benefit.

3. Reallocate resources jointly with the grantee on a periodic basis to conform with changing priorities and public needs.

4. Report to the grantor and the grantee annually on the utilization of resources, the new public services developed and the benefits achieved for the grantor and its residents.

E. PEG Access Facility Management:

1. Intent: It is the intent of the grantor to ensure that PEG access facilities provided for in any franchise agreement shall be managed in the best public interest so that programming using such facilities will be open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the grantor may delegate the responsibility for PEG access facility management to a nonprofit entity which may include, but not be limited to, any of the following:

a. A nonprofit public corporation.

b. A PEG access facility management commission or committee, appointed by grantor, and representing a broad spectrum of the community.

c. An established nonprofit entity with special cablecasting capability, such as a local or regional community college.

2. Functions: The entity designated to manage the PEG access facilities shall have the following functions:

a. Responsibility for program production for and management of the public access facilities as may in the franchise agreement be designated for community-based programming. Community channels may include public, educational and government access channels, as designated in the franchise agreement.

b. To assure that the PEG access facilities are made to all residents of the franchise area on a nondiscriminatory, first- come, first-served basis.

c. To assure that no censorship or control over program content of the PEG access facilities exists except as necessary to comply with Federal prohibition of material that is illegal.

d. To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the PEG access facilities.

e. To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable.

f. To hire and supervise staff.

g. To make all purchases of materials and equipment that may be required.

h. To develop sources of funding, such as foundation or Federal or State grants, to further community programming.

i. To perform such other functions relevant to the PEG access facilities as may be appropriate.

j. Establishment of budgets on an annual basis, and utilization of funds and resources received from the grantor or the public usage entity designated in subsection D of this Section, for the purpose of PEG access programming.

3. Access Rules: The PEG access facility management entity shall complete a set of rules for the use of the PEG access facilities which shall be promptly forwarded to the grantor. The rules shall be prepared in cooperation with the grantee, and confirmed by agreement between the PEG access facility management entity and the grantee. The rules shall, at a minimum, provide for:

a. Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise area.

b. Prohibition of commercial use by public access programming producers.

c. Prohibition of any presentation of obscene material.

d. Public inspection of the log of producers, which shall be retained by the PEG access facility management entity for a period of four (4) years.

e. Procedures by which individuals or groups who violate any rule may be prevented from further access to the facilities.

f. Free use of such reasonable amounts of channel time, cablecasting facilities, and technical support as are provided for in the agreement between the PEG access facility management entity and the grantee.

4. PEG Access Facility Management Entity Reports To Grantor: The PEG access facility management entity shall provide a report to the grantor and the grantee, at least annually, indicating achievements in community-based programming and services.

F. Reservation By Grantor: The grantor reserves the right, at its discretion, from time to time, to determine if the entities described in subsections D and E of this Section are performing their purposes in a manner satisfactory to the grantor, and if they are not, the grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in subsections D and E of this Section.

G. Rates: The grantee shall establish rates for its services that must be applied fairly and uniformly to all subscribers in the franchise area. The grantor retains the right to institute rate regulation to the extent permitted by applicable law.

H. Annual Review Of Performance And Quality Of Service: At grantor's sole option, within ninety (90) days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, the grantor may hold a public hearing at which the grantee shall be present and shall participate, to review the performance and quality of service of the cable communications system. The reports required in Section 9-6-21 of this Chapter regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered.

1. Within thirty (30) days after the conclusion of the public hearing, grantor shall issue a report with respect to system performance and quality of service. If areas of franchise noncompliance are found, grantor may direct grantee to correct the noncompliance within a reasonable period of time.

2. Failure of grantee, after due notice, to correct the noncompliance shall be considered a breach of the franchise, and grantor may, at its sole discretion, exercise any remedy within the scope of this Chapter considered appropriate.

I. System And Services Review: To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established:

1. At grantor's sole option, the grantor may hold a public hearing on or about the fifth anniversary date of the franchise agreement at which the grantee shall be present and shall participate, to review the cable communications system and services. Subsequent system and services review hearings may be scheduled by the grantor each five (5) years thereafter.

2. Sixty (60) days prior to the scheduled system and services review hearing, grantee shall submit a report to grantor indicating the following:

a. All cable system services reported in cable industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstrations, to communities in the United States with comparable populations, that are not provided to the grantor.

b. Any specific plans for provision of such new services by the grantee, or a justification indicating why grantee believes that such services are not feasible for the franchise area.

3. Topics for discussion and review at the system and services review hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights or privacy, amendments to the franchise, undergrounding processes, developments in the law, and regulatory constraints.

4. Either the grantor or the grantee may select additional topics for discussion at any review hearing.

5. Not later than sixty (60) days after the conclusion of each system and service review hearing, grantor shall issue a report, including specifically a listing of any cable services not then being provided to the grantor that are considered technically and economically feasible. Grantor may request grantee to provide such services within a reasonable time, under reasonable rates and conditions. (Ord. 1165, 6-4-1991)

A. Construction Bond:

1. Within thirty (30) days after the granting of a new franchise, or a renewal which requires significant system construction, and prior to the commencement of any construction work by the grantee, the grantee shall file with the grantor a construction bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may claim damages as a result of the breach of any duty by the grantee assured by such bond.

2. Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.

3. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

4. Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified, respectively in subsections B and C of this Section.

5. Upon completion of construction, any construction bonds then in force shall be released.

B. Performance Bond:

1. In addition to the construction bond set forth above, the grantee may be required, at least thirty (30) days prior to the commencement of operation, to file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and an other person who may be entitled to damages as a result of any occurrence in the operation or termination of the cable communications system operated under the franchise agreement and including the payments required to be made to the grantor hereunder.

2. Such bond as contemplated herein shall be in the form approved by the grantor and shall among other matters cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.

3. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

4. Grantor, at its sole option, may waive this requirement, or permit consolidation of the performance bond with the construction bond and security fund specified, respectively in subsections A and C of this Section.

C. Security Fund:

1. Within thirty (30) days after the effective date of the franchise, the grantee shall deposit into a bank account, established by the grantor and maintain on deposit through the term of this franchise, the sum specified in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under this Chapter, and the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.

Subject to the provisions of subsection C4 of this Section, the security fund may be assessed by the grantor for purposes including, but not limited to, the following:

a. Failure of grantee to pay grantor sums due under the terms of the franchise.

b. Reimbursement of costs borne by the grantor to correct franchise violations not corrected by grantee, after due notice.

c. Monetary remedies or damages assessed against grantee due to default or violation of franchise requirements.

2. At grantor's sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.

3. Within thirty (30) days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection C1 of this Section, the grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the franchise agreement.

4. If the grantee fails, after thirty (30) days' written notice to pay to the grantor any franchise fee or taxes due and unpaid; or, fails to pay to the grantor within such thirty (30) days, any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or fails, after thirty (30) days' notice of such failure by the grantor to comply with any material provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor may thereafter withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.

5. The security fund deposited pursuant to this Section shall become the property of the grantor in the event that the franchise is revoked for cause by reason of the default of the grantee in accordance with the procedures of Section 9-6-9 of this Chapter. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety (90) days after the expiration of the term of the franchise; provided, that there is then no outstanding default on the part of the grantee. The grantee shall be entitled to any interest accrued on the cash portion of the security fund.

6. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this Chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right the grantor may have.

D. Indemnification:

1. The grantee shall by acceptance of any franchise granted indemnify, defend and hold harmless the grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages or other relief, costs and attorney fees in any way arising out of or through or alleged to arise out of or through:

a. The act of the grantor in granting the franchise; and

b. The acts or omissions of grantee, its servants, employees, or agents including, but not limited to, any failure or refusal by grantee, its servants, employees or agents to comply with any obligation or duty imposed on grantee by this Chapter or the franchise agreement.

c. The exercise of any right or privilege granted or permitted by this Chapter or the franchise agreement. Such indemnification shall include, but not be limited to, all claims arising in tort, contracts, infringements of copyright, violations of statutes, ordinances or regulations or otherwise.

2. In the event any such claims shall arise, the grantor or any other indemnified party shall tender the defense thereof to the grantee. Provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense, and in such event, grantee shall not agree to any settlement of claims without grantor approval.

3. The grantee shall not be required to indemnify the grantor for negligence or wilful misconduct on the part of grantor's officials, boards, commissions, agents or employees.

E. Insurance:

1. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

a. Workers' Compensation Insurance: In such coverage as may be required by the workers' compensation insurance and safety laws of the State and amendments thereto.

b. Comprehensive General Liability: Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum specified in the franchise agreement.

c. Comprehensive Automobile Liability: Comprehensive automobile liability including, but not limited to, nonownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum specified in the franchise agreement.

2. The grantee shall furnish the grantor with copies of such insurance policies or certificates of insurance.

3. Such insurance policies provided for herein shall name the grantor, its officers, boards, commissions, agents, and employees as additional insured, and shall be primary to any insurance carried by grantor, and shall contain the following endorsement; or one substantially similar:

It is hereby understood and agreed that this insurance policy may not be canceled by the surety or the intention not to renew be stated by the surety until thirty (30) days after receipt by the City by registered mail or written notice of such intention to cancel or not renew.

4. The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued hereunder to the amounts of such insurance.

5. All insurance carriers providing coverage under subsection E1 of this Section shall be duly licensed to operate in the State. (Ord. 1165, 6-4-1991)

A. System Design: The cable communications system shall be constructed in accordance with the design requirements contained in the franchise agreement.

B. Geographical Coverage: The grantee shall design and construct the cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school and public agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. Cable system construction and provision of service shall be nondiscriminatory, and grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference.

C. Cablecasting Facilities: The grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement.

D. System Construction Schedule:

1. The grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement.

2. As required by the franchise agreement, the grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the grantee shall update this information on a monthly basis, by submitting a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reasons for any delay.

E. Remedies For Delay In Construction: The grantor may, at its sole option, apply any or all of the remedies in connection with delays in system construction as specified in Section 9-6-20 of this Chapter.

F. Provision Of Service: After service has been established by activating trunk and distribution cables for any area, the grantee shall provide service to any requesting subscriber within that area within thirty (30) days from the date of request.

G. Undergrounding Of Cable: The undergrounding of cable is encouraged. In any event, cables shall be installed underground at grantee's cost where utilities are already underground, or where required by law. Previously installed aerial cable shall be undergrounded and relocated in concern with other utilities, when such other utilities convert from aerial to underground construction.

H. New Development Undergrounding:

1. In cases of new construction or property development where utilities are to be placed underground, upon request by the grantee, the developer or property owner shall give grantee at least seventy two (72) hours' notice of the particular date on which open trenching will be available for grantee's installation of conduit, pedestals and/or vaults to be provided at grantee's expense. Grantee shall also provide specifications as needed for trenching.

2. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if grantee fails to install its conduit, pedestals and/or vaults within five (5) working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period, the cost of new trenching is to be borne by grantee.

I. Underground At Multiple-Dwelling Units: In cases of multiple- dwelling units serviced by aerial utilities, grantee shall make every effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit.

J. Street Occupancy:

1. Grantee shall utilize existing poles, conduits and other facilities whenever possible and economically feasible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately-owned property until the written approval of the grantor is obtained.

2. Grantee shall notify the grantor at least ten (10) days prior to the intention of the grantee to commence any construction in any streets. The grantor shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the grantor.

3. All transmission lines, equipment and structure shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.

4. Grantee shall, at its own expense, and in a manner approved by the grantor, restore to grantor standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf.

5. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the grantee's facilities, no charge shall be made by the grantee against the grantor for restoration and repair.

6. Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor.

7. Upon receipt of thirty (30) days' written notice, the grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of grantee when, in the opinion of the grantor the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, separation or realignment, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, movement of buildings, redevelopment, or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing hereunder shall be deemed a taking of the property of grantee and grantee shall be entitled to no surcharge by reason of anything hereunder.

8. After receipt of thirty (30) days' written notice, upon failure of grantee to commence, pursue or complete any work required by law or by the provisions of this Chapter to be done in any street, within the time prescribed and to the satisfaction of the grantor, the grantor may, at its option, cause such work to be done and the grantee shall pay to the grantor the cost thereof in the itemized amounts reported by the grantor to grantee within thirty (30) days after receipt of such itemized report.

9. The grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the grantor.

10. Grantor reserves the right to require conduit for underground cabling in special areas.

K. Construction And Technical Standards:

1. Construction Standards:

a. Grantor Codes And Permits: Grantee shall comply with all applicable grantor construction codes and permits procedures. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction of the cable system.

b. Compliance With Safety Codes: All construction practices shall be in accordance with all applicable sections of Federal and State occupational safety and health acts and any amendments thereto as well as all State and local codes where applicable.

c. Compliance With Electrical Codes: All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code, as amended, and all applicable State and local codes.

d. Antennas And Towers: Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R.S.222-A specifications, and provisions of the Uniform Building Code, as modified.

e. Compliance With Aviation Requirements: Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable State or local codes and regulations.

f. Construction Standards And Requirements: All of the grantee's plant and equipment, including, but not limited to, the antenna site, headend and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.

g. Safety, Nuisance, Requirements: The grantee shall at all times employ professional care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

2. Technical Standards: The cable communications system shall meet all technical and performance standards contained in the franchise agreement.

3. Test And Compliance Procedure: The grantee shall submit, within sixty (60) days after the effective date of the franchise agreement, a detailed test plan describing the methods and schedules for testing the cable communications system on an ongoing basis to determine compliance with the provisions of the franchise agreement. The tests for basic cable services shall be performed at intervals no greater than twelve (12) months. The tests may be witnessed by representatives of the grantor, and written test reports shall be submitted to the grantor. If more than ten percent (10%) of the locations tested fail to meet the performance standards, the grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. A second failure of more than ten percent (10%) may result, at the grantor's option, in appropriate remedies.

4. Special Tests: At any time after commencement of service to subscribers, the grantor may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to grantee or to the subscriber.

5. Cost Of Tests: The cost of all tests required by subsections K3 and K4 of this Section and retesting as necessary, shall be borne by the grantee.

L. Areawide Interconnection:

1. Interconnection: The grantor may request grantee to interconnect public usage channels of the cable communications system with any or all other cable systems in adjacent areas. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.

2. Interconnection Procedure: Upon receiving the request of the grantor to interconnect, the grantee shall immediately initiate negotiations with the other affected system or systems, and shall report to the grantor the results of such negotiation no later than sixty (60) days after initiation.

3. Relief: The grantee may be granted reasonable extensions of time to interconnect or the grantor may rescind its request to interconnect upon petition by the grantee to the grantor, if the grantor finds that the grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

4. Cooperation Required: The grantee shall cooperate with any interconnection corporation, regional interconnection authority or City, County, State or Federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise area.

5. Initial Technical Requirements To Assure Future Interconnection Capability:

a. Every grantee receiving a franchise to operate a cable communications system within the franchise area shall use the same frequency allocations for commonly provided television signals so far as is technically and economically feasible.

b. Grantee shall make a reasonable effort to provide local origination and access equipment that is compatible throughout the area served by the cable system. (Ord. 1165, 6-4-1991)

A. Services To Be Provided: The grantee shall initially provide, as a minimum, the services listed in the franchise agreement. Services shall not be reduced without at least thirty (30) days' prior notification to grantor and subscribers.

B. Basic Cable Service: The basic cable service shall include any service tier which includes the retransmission of local television signals. This service shall be provided to all subscribers at the established monthly subscription rates.

C. Local Origination Channel: If local origination programming is provided, the grantee shall operate any cablecasting studios on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests.

D. Public, Educational And Government (PEG) Access Facilities: The grantee shall provide the PEG access facilities including channel capacity, necessary interface equipment and cabling to permit operation as specified in the franchise agreement.

E. Cable Channels For Commercial Use: The grantee shall designate channel capacity for commercial use as required by applicable law. (Ord. 1165, 6-4-1991)

A. Open Books And Records:

1. The grantor, upon reasonable notice, shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the franchise and are maintained at the local office required by Chapter 5 of this Title; provided, that the grantor shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee; and provided further, that records shall be exempt from inspection pursuant to this subsection to the extent required by applicable law regarding subscriber privacy and to the extent such records are protected by law regarding subscriber privacy and to the extent such records are protected by law against discovery in civil litigation.

2. If any of such books or records are not kept in the local office, or upon reasonable request made available to the grantor, and if the grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of grantor's duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by grantee.

B. Records Required: In any event, the grantee shall at all times maintain:

1. The complaint file required by Chapter 5 of this Title.

2. A full and complete set of plans, records and as-built maps showing the exact location of all cable communications system equipment installed or in use in the franchise area, exclusive of subscriber service drops. (Ord. 1165, 6-4-1991)

A. Right Of Inspection Of Construction: The grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law.

B. Right Of Intervention: The grantor shall have the right of intervention in any suit or proceeding involving the cable system franchise to which the grantee is party, and the grantee shall not oppose such intervention by the grantor. (Ord. 1165, 6-4-1991)

In the event of any dispute between grantee and grantor over this Chapter or the franchise agreement, or with respect to any rights or obligations arising therefrom, grantee shall first pursue and exhaust any available administrative remedies. Thereafter grantee may pursue any appropriate legal action. (Ord. 1165, 6-4-1991)

A. Remedies For Franchise Violations: If the grantee fails to perform any material obligation under the franchise, or fails to do so in a timely manner, the grantor may at its option, and in its sole discretion:

1. Assess against the grantee monetary damages up to the limits established in the franchise agreement for material franchise violations, said assessment to be levied against the security fund, hereinabove provided, and collected by grantor after completion of the procedures specified in subsection B of this Section. The amount of such assessment shall be deemed to represent liquidation of damages actually sustained by grantor by reason of grantee's failure to perform. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart from grantor's right to enforce the provisions of the construction and performance bonds provided for in Section 9-6-14 of this Chapter and is intended to provide compensation to grantor for actual damages.

2. Terminate the franchise, for any of the causes stated in Sections 9-6-4 through 9-6-12 of this Chapter.

3. No remedy shall be imposed by grantor against grantee for any violation of the franchise without grantee being afforded due process of law, as provided for in subsection B of this Section. Grantor may impose any or all of the above enumerated measures against grantee, which shall be in addition to any and all other legal or equitable remedies it has under the franchise or under any applicable law.

B. Procedure For Remedying Franchise Violations: In the event that the grantor determines that the grantee has violated any material provision of the franchise, the grantor may make a written demand on the grantee that it remedy such violation. If the violation is not remedied, or in the process of being remedied, to the satisfaction of the grantor within thirty (30) days following such demand, the grantor shall determine whether or not such violation by the grantee was excusable or inexcusable, in accordance with the following procedure:

1. An administrative hearing shall be held to review the alleged violation. If this hearing does not result in a satisfactory resolution, and/or the grantee requests a public hearing, then a public hearing shall be held, and the grantee shall be provided with an opportunity to be heard upon thirty (30) days' written notice to the grantee of the time and the place of the hearing provided and the allegations of franchise violations.

2. If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines that such violation by the grantee was excusable as provided in subsection C of this Section, the grantor shall direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may reasonably direct.

3. If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines that such violation was inexcusable, then the grantor may impose a remedy in accordance with subsection A of this Section.

C. Force Majeure; Grantee's Inability To Perform:

1. In the event grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified grantor in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies.

2. Grantor and grantee, in the franchise agreement, may mutually define those conditions deemed subject to force majeure application. (Ord. 1165, 6-4-1991)

A. Annual Reports: Within one hundred twenty (120) days after the close of grantee's fiscal year, the grantee may be required to submit a written annual report, in a form requested by the grantor, including, but not limited to, the following information:

1. A summary of the previous year's (or, in the case of the initial report year, the initial year's) activities in development of the cable system, including, but not limited to, services begun or discontinued during the reporting year, and the number of subscribers for each class of service.

2. A revenue statement, audited by an independent certified public accountant, or certified by an officer of the grantee.

3. A statement of projected construction, if any, for the next two (2) years.

4. A list of grantee's officers, members of its boards of directors, and other principals of grantee.

5. A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in the grantee and its parent, subsidiary and affiliated corporations and other entities, if any, unless the parent is a public corporation whose annual reports are publicly available.

6. To the extent that money, other than profits, is paid to a parent, subsidiary, or other person affiliated with the grantee, the amounts of such payments and the basis for computation of such amounts (e.g., the basis for computing any management fees or share of "home office" overhead).

B. Plant Survey Report: At the grantor's request, grantee shall submit to the grantor an annual plant survey report which shall be a complete survey of the grantee's plans and a full report thereon. Said report shall include, but not be limited to, a description and as-built maps of the portions of the franchise area that have been cabled and have all services available, an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such requirements, including supervision, as the grantor may prescribe. Said report shall be in sufficient detail to enable the grantor to ascertain that the service requirements and technical standards of the franchise are achieved and maintained. If grantor has reason to believe that portions or all of the system do not meet the technical standards incorporated into the franchise agreement, at grantor's request, but no more often than once per three (3) years, the grantee and the grantor shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable system. The cost of such evaluation shall be borne equally by the grantee and the grantor.

C. Copies Of Federal And State Reports: The grantee, upon request, may be required to submit to the grantor copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the grantee to, as well as copies of all decisions, correspondence and actions by, any Federal, State and local courts, regulatory agencies and other government bodies relating to its cable television operations within the franchise area. Grantee shall submit such documents to the grantor no later than thirty (30) days after receipt of a grantor request. The grantee hereby waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of Federal or State agencies. Such confidential data exempt from public disclosure shall be retained in confidence by the grantor and its authorized agents and shall not be made available for public inspection.

D. Public Reports: A copy of each of grantee's annual and other periodic public financial reports and those of its parent, subsidiary and affiliated corporation and other entities, as the grantor requests, shall be submitted to the grantor within thirty (30) days after receipt of a request.

E. Complaint File And Reports: An accurate and comprehensive file shall be kept by the grantee of any and all complaints regarding the cable system. A procedure shall be established by the grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the grantor. Complete records of grantee's actions in response to all complaints shall be kept. These files and records shall remain open to the public during normal business hours, so that individuals are able to inspect their own files.

1. A summary of service requests, identifying the number and nature of the requests and their disposition, upon grantor request, shall be completed for each month and submitted to the grantor by the tenth day of the succeeding month.

2. A log and summary of all service interruptions.

3. If requested by the grantor, the results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with cable communications services offered by the grantee shall be submitted to the grantor no later than two (2) months after the end of grantee's fiscal year. The surveys required to make said report shall be in a form that can be transmitted to subscribers with one or more bills for service, such as postage-paid self-addressed post cards. At the grantor's option, the grantor may prepare the survey form and request its inclusion with a monthly bill to subscribers.

F. Miscellaneous Reports: Grantee shall submit to the grantor such other information or reports in such forms and at such times as the grantor may reasonably request or require.

G. Inspection Of Facilities: The grantee shall allow the grantor to make inspections of any of the grantee's facilities and equipment at any time upon at least ten (10) days' notice, or, in case of emergency, upon demand without prior notice, to allow grantor to verify the accuracy of any submitted report.

H. Public Inspection: All reports subject to public disclosure shall be available for public inspection at a designated grantor office during normal business hours.

I. Failure To Report: The wilful refusal, failure, or neglect of the grantee to file any of the reports reasonably required, or such other reports as the grantor reasonably may request, may be deemed a material breach of the franchise, and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise.

J. False Statements: Any materially false or misleading statement or representation made knowingly and wilfully by the grantee in any report required under the franchise may be deemed a material breach of the franchise and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise.

K. Cost Of Reports: One copy of all reports and records required under this or any other Section shall be furnished at the sole expense of the grantee. (Ord. 1165, 6-4-1991)

Notwithstanding any other provisions of the franchise to the contrary, the grantee shall at all times comply with all laws and regulations of the State and Federal Government or any administrative agencies thereof. Provided, however, if any such State or Federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise. (Ord. 1165, 6-4-1991)

A. Nonmaterial Provisions: If any provision of this Chapter or any related agreements is held by any court or by any Federal, State, or local agency of competent jurisdiction to be invalid as conflicting with any Federal, State or local 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, and if said provision is considered nonmaterial by the grantor, said provision shall be considered a separate, distinct and independent part of this Chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto; provided, that the grantor shall give the grantee thirty (30) days' written notice of such change before requiring compliance with said provision.

B. Material Provisions: If any material section of this Chapter, as determined by the grantor and the grantee, is held to be invalid or preempted by Federal, State or County regulations or laws, resulting in a material adverse consequence to either party, the grantor and grantee shall attempt to negotiate appropriate modifications to the franchise to provide reasonable relief to the grantor or grantee from such invalidity or preemption, including the payment of damages. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator, in accordance with state law, who shall determine what modifications and/or liquidated damages are appropriate. The arbitrator's decision shall be binding on the parties; provided, that no decision of the arbitrator shall require the grantor or grantee to be in violation of any federal or state law or regulation. (Ord. 1165, 6-4-1991)

Grantee shall maintain throughout the term of the franchise a local address for service of notices by mail. (Ord. 1165, 6-4-1991)

The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter. (Ord. 1165, 6-4-1991)

A. No Recourse Against Grantor: The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise.

B. Nonenforcement By Grantor: The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance. (Ord. 1165, 6-4-1991)

A. PEG Fee Established: In accord with Public Utilities Code section 5870(n), any grantee of a franchise, or state franchisee, must pay the city a fee for the support of PEG channel facilities.

1. The amount of the PEG fee established by this section is two percent (2%) of gross revenues, as defined in this code, the applicable city issued franchise, or Public Utilities Code section 5860(d).

B. Franchise Fee Established: For any state franchisee, the amount of the franchise fee imposed by Public Utilities Code section 5840(q) is five percent (5%) of gross revenues, as defined in Public Utilities Code section 5860(d).

1. In accord with Public Utilities Code section 5860(a), the city manager, or designee, will prepare and provide to state franchisees all necessary documentation supporting the percentage franchise fee paid by the incumbent cable operator serving the city.

C. Notices From State Franchisees: Any notice a state franchisee is required to deliver to the city by Public Utilities Code section 5840(m) must be delivered to the city manager, or designee.

D. No Intention To Limit Or Restrict Tax, Fee, Or Charge: Nothing in this chapter is intended to limit or restrict in any way the imposition of any existing or future generally applicable, nondiscriminatory, competitively neutral tax, fee, or charge to a state franchisee, city franchisee or the services the franchisees provide.

E. Customer Service Provisions For State Franchisees:

1. All state franchisees must comply with all applicable state and federal laws and regulations regarding customer service and customer protection.

2. The city manager, or designee, may review the performance of state franchisees for compliance with the customer service requirements specified in Public Utilities Code section 5900 (the "customer service standards").

3. If the city believes a material breach of the customer service standards has occurred, the city manager must give the state franchisee written notice of any alleged material breach(es). The state franchisee must remedy the specified material breach(es) not later than thirty (30) days from receipt of the notice.

4. If the state franchisee fails to remedy the specified material breach(es) within thirty (30) days, the city manager, or designee, may impose monetary penalties as set forth in this section.

F. Monetary Penalties: The city manager, or designee, may impose monetary penalties as provided by this section as follows:

1. Up to five hundred dollars ($500.00) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of a material breach.

2. For a second material breach of the same nature within twelve (12) months, up to one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

3. For a third or further material breach of the same nature within twelve (12) months, up to one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

4. Any monetary penalty imposed under this section may be appealed by the state franchisee to the city council. Appeals must be received in writing by the city clerk within sixty (60) days of imposition of the penalty. The state franchisee may present any relevant written or oral evidence of its choice. The city council may uphold or reverse, in whole or in part, the imposition of the monetary penalties.

G. Compatible Format: The city manager, or designee, must ensure PEG transmissions, content, and programming provided by the city to a state franchisee is in a format compatible with the state franchisee's system. In the alternative, the transmissions, content, and programming may be provided in an industry standard format, in accord with Public Utilities Code section 5870(g)(1).

H. Unsatisfied Obligations: For the duration of any city issued franchise, if that franchisee has existing unsatisfied obligations under the franchise to pay to the city any cash payments for the ongoing costs of public, educational, and government access channel facilities or institutional networks, the fee payable by each city and state franchisee is the franchisee's pro rata per subscriber share of the cash payment required to be paid by the city franchisee to the city for the costs of PEG channel facilities.

1. Within forty five (45) days after receiving notice required by Public Utilities Code section 5840(n), each city and state franchisee must provide to the city manager, or designee, a written statement of the number of its subscribers within the franchisee's service area in the city.

2. Within forty five (45) days after receiving all franchisee subscriber number statements, the city manager, or designee, must calculate the division of the cash payments among all city and state franchisees, and provide written notice to each franchisee of the franchisee's share of the cash payment. This amount may be expressed as a percentage of gross revenue or as an amount per subscriber, per month, or otherwise.

I. Interconnection: To properly serve the city's interest in PEG programming, each state franchisee and city franchisee must comply with the PEG system interconnection requirements of Public Utilities Code section 5870. The city manager, or his or her designee, may make any interconnection determinations of the city under Public Utilities Code section 5870, including requiring interconnection where the city franchisee and state franchisee fail to reach a mutually acceptable interconnection agreement. (Ord. 1418, 4-1-2008)