Emeryville Municipal Code Part 2 Procedures For Granting, Renewing, Transferring, And Acquiring Cable…

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

(b) It shall be unlawful for any person to construct, install or maintain within any public right-of-way in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public right-of-way but is designated or delineated as a proposed public right-of-way on any tentative subdivision map approved by the City, any equipment or facilities for distributing any cable services or video programming, by means of a cable system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

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

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

(e) This section shall be construed to require a franchise in every instance, except to the extent that such requirement s preempted by state or federal law.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

Subject to applicable law, the City may by ordinance or resolution grant a nondiscriminatory franchise to any person, whether operating pursuant to an existing franchise or not, who offers to provide a cable service pursuant to the terms and provisions of this chapter. The franchise shall be subject to all ordinances and regulations of general application now in effect or subsequently enacted, including, without limitation, those concerning encroachment permits, business licenses, zoning, and building.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The term of the franchise or any franchise renewal shall be established in the franchise agreement.

(b) A franchise may be renewed by the City upon application of grantee pursuant to procedures established by the City, subject to applicable federal and state law. In the event the City does not establish such renewal procedures, the franchise renewal procedures set forth in the Cable Act shall apply.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Any franchise granted under this chapter shall be nonexclusive and for the term specified by the franchise agreement.

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

(c) The grant of a franchise, right, or license to use public right-of-way for purposes of providing cable service shall not be construed as a right or license to use such public right-of-way for any other purpose.

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

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Subject to those restrictions, if any, that are mandated by state or federal law, neither the granting of any franchise nor any of the provisions of this chapter shall be construed to prevent the City from granting additional franchises.

(b) Grantee, by its acceptance of any franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including, without limitation, those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or requirements of the City in its exercise of such rights or power; provided, however, that such ordinances and regulations shall not materially affect grantee's rights or obligations under the franchise.

(c) Neither the granting of any franchise, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

(d) This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of grantee through the exercise of the power of eminent domain, in accordance with applicable law.

(e) The City Council may do all things that are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact that may arise during the existence of any franchise granted under this chapter.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) No franchise shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the franchise be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any person without the prior consent of the City granted by resolution of the City Council. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section.

(b) Transfer of a franchise includes, but is not limited to, any transaction in which control of the franchise is transferred from one person or group of persons to another person or group of persons, or ownership or other interest in grantee or its cable system is transferred from one person or group of persons to another person or group of persons, or the rights and obligations held by grantee under the franchise agreement are transferred or assigned to another person or group of persons. In addition, a transfer of the franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of twenty-five percent (25%) of (1) the voting interest of grantee, or (2) the person exercising management authority over grantee.

(c) Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("transfer application"). The transfer application shall meet the requirements of Section 5-22.11 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, technical and other qualifications of the transferee.

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

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The franchise area shall be established by the franchise agreement.

(b) Territory annexed to the City ("annexed territory") that is not within the franchise area of an existing franchise may be added to grantee's franchise pursuant to City Council resolution.

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Applications for the grant of a new franchise may be submitted by any person pursuant to the requirements of this chapter and subject to the terms of Emeryville's schedule of fees, as such schedule may, from time to time, be amended. The City may, by advertisement or any other means, solicit applications for a new franchise pursuant to a request for proposal ("RFP").

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

(c) Unless waived in writing by the City, all applications for a franchise shall at the minimum contain the following:

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

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

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

b. The names, residence and business address of all officers, persons and entities having an ownership interest of five percent (5%) or more in the applicant and the respective ownership share of each such officer, person or entity;

c. The names and address of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby;

(3) A detailed description of all previous experience of the applicant in providing cable service or other similar or related communications services;

(4) A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year preceding the date of the application. The City may require a statement from an independent certified public accountant or a recognized lending institution, certifying that the applicant has available sufficient financial resources to construct and operate the proposed cable system in the City;

(5) A detailed financial plan (pro forma) for the operation of the proposed cable system, during the term of the proposed franchise, in the format required by the City;

(6) A description of any other cable system franchise(s) awarded to the applicant, its parent or subsidiary, including the place and term of these franchises; the status of their completion, the total cost of completion of each cable system; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion of these cable systems;

(7) A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:

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

b. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers, including installation charges and other service charges;

c. A detailed statement describing the actual equipment and operational standards proposed by the applicant;

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

e. A detailed statement describing any existing or proposed agreements and undertakings between the applicant and any person, which materially relates to the application and the granting of the franchise;

f. A detailed description of the applicant's plan to provide public, educational and government access channel capacity services, facilities and equipment;

g. A detailed description of the applicant's plans to address the institutional network needs of the City;

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

(9) Any other details, statements, or information pertinent to the subject matter of such application which shall be required or requested by the City.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The City may make such investigations as it deems necessary to determine the ability of an applicant to satisfactorily perform its obligations under a franchise. The applicant shall timely furnish to the City all such information and data as the City may request. Failure to provide any such information shall constitute sufficient grounds for rejection of any application.

(b) Upon receipt of a complete application, with all information required by the City, and after the City staff completes its investigation and review of the application, the City Manager shall prepare a report and make recommendations to the City Council concerning the application.

(c) The City Council shall hold a noticed public hearing on the application. Written notice shall be given at least ten (10) days prior to the hearing on the application by U.S. mail, postage prepaid to the applicant and by publication once in a newspaper of general circulation within the City. Within sixty (60) days after the close of the hearing, unless an extension of time is mutually agreed upon by the City and the applicant, the Council shall make a written decision as to whether the franchise should be granted, and if granted, subject to what conditions. The Council may grant one or more franchises, or may decline to grant any franchise.

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

(e) Any decision of the City Council concerning the granting or denial of a franchise pursuant to this chapter shall be final.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

Franchise renewals shall be processed and reviewed in accordance with then applicable law. The City and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The City may in its sole discretion limit the number of franchises granted at any one time based upon its consideration of all appropriate criteria which shall include but not be limited to the following:

(1) The capability of the public rights-of-way to accommodate the facilities of any proposed additional cable systems.

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) In connection with any application for a new franchise, a franchise renewal, or a franchise transfer, each applicant shall pay a filing fee equal to the estimated costs determined by the City in processing and analyzing the application, as such costs may be established by the City from time to time. Such costs shall include all administrative, consultant, noticing and document preparation expenses. No application shall be considered without payment of such fee. If the City's actual costs in processing and reviewing the application are less than the amount of the fee, any remaining funds from the fee shall be refunded to the applicant within sixty (60) days after final approval or denial of their application. In the event that the deposit is less than the City's actual costs, grantee shall pay such additional costs to the City within thirty (30) days after written notice from the City that such additional payment is required. If payment of such amount is not made within such time, the City shall cease all further proceedings connected with the application.

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

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

(c) On a quarterly basis, grantee shall provide the City a complete and accurate statement verified by a financial officer of grantee indicating gross revenues for the past quarter, listing every revenue source, and depicting gross revenue computations.

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

(e) At any time during the term of a franchise, the City shall have the right to conduct, or require grantee to obtain, an independent audit by certified public accountants of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall pay the costs of such audit when the City has determined that grantee underpaid the City by more than five percent (5%) of the franchise fee owed or upon a proposed transfer or change of control of the franchise. Grantee shall cooperate with any such audit making readily available any and all information requested by the City. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this chapter and the franchise agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to. This right shall be in addition to City's right to conduct any other audit.

(f) In the event that any franchise fee payment is not paid by the due date, interest shall be charged monthly at a monthly rate of one percent (1%). In addition, if any franchise fee is not paid in full within fifteen (15) days after receipt of notice from the City as to the delinquency of such payment, a late fee in amount of five percent (5%) of the delinquent amount shall be assessed.

(g) In the event grantee claims to have overpaid by more than five percent (5%) the amount of franchise fee actually due during any given quarter, it shall file an application with the City within one year after said payment was made. The failure to timely and properly make such claim shall constitute a waiver by grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other: accommodation. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the City to verify grantee's claim. Upon request by the City, grantee shall provide any further information that is deemed relevant by the City. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The terms and provisions of a franchise agreement for the operation of a cable system may include, without limitation, the following subject matters:

(1) The nature, scope, geographical area, and duration of the franchise.

(2) The applicable franchise fee to be paid to the City, including the percentage amount, the method of computation, and the time for payment.

(3) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable system.

(4) Requirements relating to the construction, upgrade, or rebuild of the cable system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices.

(5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the franchise agreement.

(6) Requirements relating to liability insurance, workers' compensation insurance, and indemnification.

(7) Additional requirements relating to consumer protection and customer service standards, including the resolution of subscriber complaints and disputes and the protection of subscribers' privacy rights.

(8) Requirements relating to the grantee's support of local cable usage, including the provision of public, educational, and government access channels, the coverage of public meetings and special events, and financial or technical support for public, education, and governmental access uses.

(9) Requirements relating to construction, operation, and maintenance of the cable system within the public rights-of-way, including compliance with all applicable building codes and permit requirements, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.

(10) Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of grantee's books and records.

(11) Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination.

(12) Requirements relating to the sale, assignment, or other transfer or change in control of the franchise.

(13) The grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the City's operation and management of the cable system.

(14) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

Breach of Franchise; Grounds for Assessment of Penalties and Franchise Revocation.

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

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

(2) Evasion of any material provision of this chapter or the franchise agreement, or the practice of fraud or deceit upon the City or its subscribers and customers;

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

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

(5) Failure to restore cable service after seventy-two (72) consecutive hours of interrupted cable service, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption;

(6) Failure to provide at least eighty percent (80%) of subscribed cable services over the cable system for a period of five days, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption;

(7) Failure to substantially meet customer service standards established in this chapter over any consecutive three-month period of time

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

(9) Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the franchise agreement;

(10) Violation of orders or rulings of any regulatory body having jurisdiction over grantee relating to the franchise;

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Prior to imposing any liquidated damages, sanction or penalty upon grantee, including termination or revocation of the franchise, the City Manager, shall demand in writing that grantee cure such breach within a specified period, which period shall not be less than thirty (30) days following notification or such additional time allowed by the City in its sole discretion. However, only fifteen (15) days' notice shall be required in the case of failure to pay moneys due. In addition, the City may, in an emergency, prescribe a notice less than thirty (30) days consistent with the nature of the emergency. An emergency under this paragraph (a) means an occurrence or condition that creates an actual or imminent danger to life or property.

(b) Should grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by grantee, then the City Manager may elect to either place the issue of termination, revocation or other penalty before the City Council pursuant to Section 5-22.21 of this chapter; or, with the approval of the City Council, the City Manager may refer the matter to an appropriate hearing officer for his or her determination.

(c) The City Council, the City Manager, or any hearing officer authorized to act pursuant to this ordinance shall have the power to issue subpoenas in order to carry out the fact-finding activities authorized by this chapter. The process for the issuance and enforcement of such subpoenas shall be governed by the California Code of Civil Procedure.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The City Manager may, with the concurrence of the City Council, in lieu of the procedures set forth in Section 5-22.21, refer to a hearing officer any controversy or claim arising out of or relating to the franchise or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance or termination. Such hearing proceedings shall be initiated by the City Manager by written notice to grantee.

(b) The procedures set forth in Section 5-22.43, subsections (b)(2)(a) – (i) inclusive shall govern the conduct of such administrative hearing.

(c) The hearing officer shall be vested with quasi-judicial authority, and shall be authorized to:

(1) order grantee to undertake remedial action to cure any breach of its obligations under its franchise;

(2) assess liquidated damages to the extent permitted by the franchise agreement and/or levy a penalty upon grantee in accordance with the terms of this chapter and the franchise agreement;

(3) determine that grantee has not violated any of its obligations under its franchise, and/or

(4) recommend to the City Council grounds for the revocation of the franchise.

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) In the event the City Council acts as a hearing body pursuant to Section 5-22.19, the City Council shall hold a public hearing to determine whether grantee materially breached the franchise and the appropriate penalty to be imposed, if any, as a result of such breach. The City shall cause to be served upon grantee, at least ten (10) days prior to the date of such hearing, written notice of any intent to terminate the franchise and the time and place of the hearing. Grantee may appear at such hearing and present such evidence, orally or in writing that it deems relevant and appropriate to the Council's deliberations. Based on the evidence presented at the hearing, the City Council shall determine, in writing, in its discretion whether or not a material breach occurred and whether to terminate the franchise or take other appropriate action.

(b) Should the City Council find that there has been a material breach of the franchise, but that termination of the franchise is inappropriate, then the Council may assess and levy or impose such other relief as the Council deems appropriate, including, but not limited to, any relief specified in Sections 5-22.20(c), 5-22.22 or any combination thereof.

(c) The City shall cause grantee to be served with written notice of any action taken by the City Council following such public hearing. The decision of the City Council as to such matters shall be final, but may be challenged by grantee in a court of competent jurisdiction.

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

The hearing officer or City Council may impose the following penalties for any breach of the franchise, except any breach of subscriber service standards, which is covered under Section 5-22.43 below:

(a) Up to three hundred fifty dollars ($350.00) for each day of each material breach, or such other amount provided in the franchise agreement.

(b) For a second material breach of the same nature occurring within twelve (12) months where a fine or penalty was previously assessed, five hundred dollars ($500.00) for each day of each material breach.

(c) For a third or further material breach of the same nature occurring within twelve (12) months of the first such breach, where a fine or penalty was previously assessed, seven hundred fifty dollars ($750.00) for each day of each material breach.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

The remedies provided in this chapter are cumulative and in addition to all other rights the City may have at law or equity or under the franchise agreement, including but not limited to, liquidated damages, which remedies may be exercised at any time. In no event shall the amount of any insurance, bond, letter of credit or any other security instrument be construed to limit grantee's liability for damages.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Subject to applicable law, in the event that a franchise is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the City, and at its sole expense, promptly remove all or any portion of its cable system. In removing its cable system, grantee shall restore all streets to the City's standard specifications and repair any damage to utilities or other infrastructure caused by such removal. The liability, indemnity, insurance, security fund and bonds required under the franchise shall continue in full force and effect until such removal is accepted as complete by the City.

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

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

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

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)