Chapter 122 — FRANCHISES

A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to 5% of the gross revenues of that state video franchise holder. The term “gross revenue” shall be defined as set forth in Cal. Public Utilities Code § 5860. Each state video franchise holder shall remit the franchise fee to the city quarterly, within 45 days after the end of the quarter for that calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee. If the state video franchise holder does not pay the franchise fee when due, the state video franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus 1%. If the state video franchise holder has overpaid the franchise fee, it may deduct the overpayment from its next quarterly payment. (Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

(A) Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to the extent reasonably necessary to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees. A state video franchise holder shall keep all business records reflecting any gross revenues, even if there is a change in ownership, for at least four years after those revenues are recognized by the state video franchise holder on its books and records.

(B) If the examination discloses that the state video franchise holder has underpaid franchise fees by more than 5% during the examination period, the state video franchise holder shall pay all of the reasonable and actual costs of the examination in addition to the underpaid franchise fees and interest imposed under division (A) above.

(C) If the examination discloses that the state video franchise holder has not underpaid franchise fees, the city shall pay all of the reasonable and actual costs of the examination. In every other instance, each party shall bear its own costs of the examination.

(Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

(A) The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(B) The city shall monitor the compliance of state video franchise holders with respect to state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder 30 days from receipt of the notice to remedy the specified material breach. A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the city, following the expiration of the 30-day time period specified herein, that any material breach has not been remedied by the video service provider, irrespective of the number of customers or subscribers affected. Material breaches not remedied within the 30-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law.

(1) For the first occurrence of a violation, a monetary penalty of $500 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each occurrence of a material breach of applicable customer service and

protection standards.

(2) For a second violation of the same nature within 12 months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each occurrence of a material breach of applicable customer service and protection standards.

(3) For a third or further violation of the same nature within 12 months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each occurrence of a material breach of applicable customer service and protection standards.

(C) A state video franchise holder may appeal a monetary penalty assessed by the city within 60 days. After relevant evidence and testimony is received, and staff reports are submitted, the City Council will vote to either uphold or vacate the monetary penalty. Except as otherwise provided in Cal. Public Utilities Code § 5900, the City Council’s decision on the imposition of a monetary penalty shall be final.

(Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

(A) Applicant for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with Cal. Public Utilities Commission. One complete copy must be provided to the City Clerk.

(B) The city will provide any appropriate comments to Cal. Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

(Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

(A) PEG channel capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, or governmental (PEG) access channels.

(1) PEG access channels shall be for the exclusive use of the city, or its designees, to provide public, educational, or governmental programming.

(2) The PEG access channels shall be used only for noncommercial purposes, notwithstanding the foregoing sentence, advertising, underwriting, or sponsorship recognition that may be carried on the PEG access channels for the purpose of funding PEG-related activities.

(3) The PEG access channels shall be carried on the basic service tier. The PEG signal shall be receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than the equipment necessary to receive the lowest cost tier of service. The PEG access capacity provided shall be of similar quality and functionality to that offered by commercial channels on the lowest cost tier of service unless the signal is provided to the state cable franchise holder at a lower quality or with less functionality.

(4) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

(5) After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

(6) Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.

(B) PEG support fee and payments. In accordance with Cal. Public Utilities Code § 5870(n), state video franchise holders shall pay to the city a PEG support fee in the amount of 1.5% of gross revenues. State franchise holders shall

remit PEG support fees in the same manner as franchise fees as set forth in § 122.01. The PEG support fee may be shown as a separate line item on the regular bill of each subscriber.

(Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

A state video franchise holder must comply with the Emergency Alert System requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder’s network. (Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

(A) (1) Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming.

(2) Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection.

(B) If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent’s network at a technically feasible point on the state video franchise holder’s network as identified by the state video franchise holder.

(C) (1) If no technically feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. (2) The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(Prior Code, § 10303) (Ord. 14-02, passed 4-7-2014)

COMMUNITY ANTENNA TELEVISION SYSTEMS

(A) The city, pursuant to applicable federal and state law, is authorized to grant one or more non-exclusive franchises to construct, operate, maintain, and reconstruct cable television systems within the city limits.

(B) (1) The City Council 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 Council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers which should be vested in the city or such persons as the city may designate.

(2) It is the intent of this subchapter and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any franchises issued pursuant to this subchapter shall be deemed to include this as an integral finding thereof.

(Prior Code, § 10501) (Ord. 98-1, passed 1-20-1998)

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates, or requires, a different meaning.

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

• (1) The one-way transmission to subscribers of video programming of other programming service; and

• (2) Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CABLE TELEVISION or SYSTEM. Also referred to as CABLE COMMUNICATIONS SYSTEM or CABLE

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

• (1) A facility that serves only to transmit television signals of one or more television broadcast stations;

(2) 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 rights-of-way;

(3) 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

(4) Any facilities of any electric utility used solely for operating its electric utility system.

CHANNEL or CABLE CHANNEL. A portion of the electromagnetic frequency spectrum which is used in a cable system which is capable of delivering a television channel as defined by the Federal Communications Commission. COUNCIL. The City Council of the City of Grover Beach, California.

FRANCHISE. An initial authorization, or renewal thereof, issued by the Council, 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 grant ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including references, specifications, requirements, and other related matters. FRANCHISE FEE. Any tax, fee, or assessment of any kind imposed by the city on a grantee as compensation for the grantee’s use of the public rights-of-way. The term FRANCHISE FEE does not include:

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

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

• (3) 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

(4) Any fee imposed under 17 U.S.C.

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

GRANTOR or CITY. The City of Grover Beach, California, as represented by the Council or any delegate acting within the scope of its jurisdiction.

GROSS ANNUAL RECEIPTS. The annual gross receipts received by a grantee from all sources of operations of the cable television system within the city utilizing the public streets and rights-of-way for which a franchise is required in order to deliver such cable service, excluding refundable deposits, rebates, or credits, except that any sales, excise, or other taxes or charges collected for direct payment or pass-through to local, state, or federal government, other than the franchise fee, shall not be included.

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

INSTALLATION. The connection of the system to subscribers’ terminals, and the initiation of service. PERSON. An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. PUBLIC EDUCATIONAL or GOVERNMENT ACCESS FACILITIES or PEG ACCESS FACILITIES.

• (1) Channel capacity designated for noncommercial public, educational, or government use; and

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

SECTION. Any section, division, or provision of this subchapter.

SERVICE AREA or FRANCHISE AREA. The entire geographic area within the city as it is now constituted or may in the future be constituted, unless otherwise specified in the franchise granting ordinance or agreement.

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.

STREET. Each of the following which have been dedicated to the public or are 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 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 system, and who pays the charges therefor. (Prior Code, § 10502) (Ord. 98-1, passed 1-20-1998)

A franchise granted by the city under the provisions of this subchapter shall encompass the following purposes: (A) To authorize the grantee to engage in the business of providing cable television service, and such other services as may be permitted by law, which the grantee chooses to provide to subscribers within the designated service area; (B) To authorize the grantee to erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along, and across streets or other public places within the designated service area;

(C) To authorize the grantee to maintain and operate its properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable services, and such other services as may be permitted by law; and

(D) To set forth the respective obligations of a grantee and the city under the franchise. (Prior Code, § 10503) (Ord. 98-1, passed 1-20-1998)

It shall be unlawful for any person to construct, install, or operate a cable television system in the city within any public street without a properly-granted franchise awarded pursuant to the provisions of this subchapter. (Prior Code, § 10504) (Ord. 98-1, passed 1-20-1998) Penalty, see § 10.99

(A) A franchise granted hereunder shall be for a term established in the franchise agreement, commencing on the date established in the franchise agreement.

(B) A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable state and federal law and of this subchapter.

(Prior Code, § 10505) (Ord. 98-1, passed 1-20-1998)

Any franchise shall be valid within all the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in this subchapter or the franchise agreement. (Prior Code, § 10506) (Ord. 98-1, passed 1-20-1998)

This subchapter shall be construed in a manner consistent with all applicable federal and state laws and shall apply to all franchises granted or renewed after the effective date of this subchapter to the extent permitted by applicable law.

(Prior Code, § 10507) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the Council and then only upon such terms and conditions as may be reasonably prescribed by the Council, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise without the consent of the Council shall be null and void. The granting of a security interest in any grantee assets, or any mortgage or other hypothecation, shall not be considered a transfer for the purposes of this section.

(B) The requirements of division (A) above shall apply to any change in control of the grantee. The word CONTROL as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In the event that the grantee is a corporation, prior authorization of the Council shall be required where ownership or control of more than 10% of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.

(C) The grantee shall notify the grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the franchise property of the grantee or upon the termination of any lease or interest covering all or a substantial part of said franchise property. Such notification shall be considered by the grantor as notice that a change in control of ownership of the franchise has taken place and the provisions under this section governing the consent of the grantor to such change in control of ownership shall apply.

(D) 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 transferee or controlling party, and the grantee shall assist the grantor in such inquiry. In seeking the grantor’s consent to any change of ownership or control, the grantee shall have the responsibility of ensuring that the transferee completes an application in form and substance reasonably satisfactory to the grantor, which application shall include the information required under § 122.32(A) through (C). An application shall be submitted to the grantor not less than 60 days prior to the date of transfer. In addition to the information included in the application, the grantor also may require from the proposed transferee such additional information as the grantor may reasonably deem to be applicable. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, financial, character, and technical

proposed transferee such additional information as the grantor may reasonably deem to be applicable. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, financial, character, and technical

qualifications of the applicant are satisfactory, the grantor shall consent to the transfer of the franchise. The consent of the grantor to such transfer shall not be unreasonably denied or delayed.

(E) Any financial institution having a pledge of the grantee 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 of and operate the cable television system, in the event of a grantee default of its financial obligations. Further, said financial institution shall also submit a plan for such operation within 30 days of assuming such control 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.

(F) Upon transfer, the grantee shall reimburse the grantor for the grantor’s reasonable processing and review expenses in connection with a transfer of the franchise or of control of the franchise, including, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs, and document preparation expenses, not to exceed any maximum that may be specified in the franchise agreement. Any such reimbursement shall not be charged against any franchise fee due to the grantor during the term of the franchise. (Prior Code, § 10508) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall design, construct, and maintain the cable television system to have the capability to pass every dwelling unit in the city, subject to any service area line extension requirements of the franchise agreement. (B) After service has been established by activating trunk and/or distribution cables for any service area, the grantee shall provide service to any requesting subscriber within that service area within 30 days from the date of request, provided that the grantee is able to secure any additional rights-of-way necessary to extend service to such subscriber within such 30-day period on reasonable terms and conditions. (Prior Code, § 10509) (Ord. 98-1, passed 1-20-1998)

Any franchise granted shall be non-exclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system or any component thereof, as it deems appropriate, subject to applicable state and federal law, provided that no such additional franchise shall be granted on terms materially more favorable or less burdensome than any other franchise granted hereunder. (Prior Code, § 10510) (Ord. 98-1, passed 1-20-1998)

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

(1) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the utility systems, such as electrical power, telephone, gas, and sewerage.

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

(3) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents’ property, and the disruption arising from numerous excavations of the rights-of-way.

(B) Each grantee awarded a franchise to serve the entire city shall offer service to all residences in the city, in accordance with construction and service schedules mutually agreed upon between the grantor and the grantee, and consistent with applicable law.

(C) Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two cable systems in accordance with the provisions of § 122.39.

(D) The grantor may require that any new grantee be responsible for its own underground trenching and the costs associated therewith if, in the grantor’s opinion, the rights-of-way in any particular area cannot feasiblely and reasonably accommodate additional cables.

(Prior Code, § 10511) (Ord. 98-1, passed 1-20-1998)

Any person desiring an initial franchise for a cable television system shall file an application with the city. A reasonable non-refundable application fee established by the city shall accompany the application to cover all costs associated with processing and reviewing the application, including, without limitation, costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice, and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within 30 days following receipt of an itemized statement of such costs. (Prior Code, § 10512) (Ord. 98-1, passed 1-20-1998)

An application for an initial franchise for a cable television system shall contain, where applicable:

• (A) A statement as to the proposed franchise and service area;

• (B) Resume of prior history of applicant, including the expertise of the applicant in the cable television field;

(C) List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a corporation which is not publicly traded;

(D) List of officers, directors, and managing employees of the applicant, together with a description of the background of each such person;

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

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

• (G) Proposed construction and service schedule; and

• (H) Any additional information that the city deems reasonably necessary.

(Prior Code, § 10513) (Ord. 98-1, passed 1-20-1998)

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

(B) A public hearing shall be set prior to any initial franchise grant, at a time and date approved by the Council. Within 30 days after the close of the hearing the Council shall make a decision based upon the evidence received at

the hearing as to whether or not the franchise(s) 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. (Prior Code, § 10514) (Ord. 98-1, passed 1-20-1998)

Franchise renewals shall be in accordance with applicable law. The grantor and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. Upon mutual execution of a franchise renewal agreement, the grantee shall reimburse the grantor for costs incidental to the franchise renewal award, not to exceed any maximum specified in the franchise agreement. Any such reimbursement shall not be charged against any franchise fee due to the grantor during the term of the franchise.

(Prior Code, § 10515) (Ord. 98-1, passed 1-20-1998)

(A) Except as otherwise provided in the franchise agreement, the grantee shall maintain a local office or offices to provide the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under normal conditions of operation:

(1) Sufficient toll-free telephone line capacity during normal business hours, and excepting unusual events such as system outages, to assure that a minimum of 95% of all calls will be answered before the fourth ring and 90% of all callers for service will not be required to wait more than 30 seconds, after the call pickup and the conclusion of any automated telephone response procedures before being connected to a service representative;

(2) Emergency telephone line capacity on a 24-hour basis, including weekends and holidays;

(3) A local business and service office open during normal business hours and at least some period weekly on evenings and/or weekends, and adequately staffed to accept subscriber payments and respond to service requests and complaints;

(4) An emergency system maintenance and repair staff capable of responding to and repairing major system malfunction on a 24 hour per day basis;

(5) An installation staff capable of installing service to any subscriber within seven working days after receipt of a request in all areas where trunk and feeder cable have been activated; and

(6) At the subscriber’s request, the grantee shall schedule, within a specified four-hour time period, all appointments with subscribers for installation of service.

(B) The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m.

(C) (1) The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following timeframes:

(a) For a system outage: Within two hours, including weekends, of receiving subscriber calls or requests for service which by number identify a system outage of sound or picture of one or more channels, affecting at least 10% of the subscribers of the system;

(b) For an isolated outage: Within 24 hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels that affects three or more subscribers. On weekends, an outage affecting fewer than three subscribers shall result in a service call no later than the following Monday morning; and

(c) For inferior signal quality: Within 48 hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality.

(2) The grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, the technician shall leave written notification of arrival. Three successive subscriber failures to be present at an appointed time shall excuse the grantee of the duty to respond. The grantee shall not charge for the repair or replacement of defective equipment provided by the grantee to subscribers, except when the damage resulted from the subscriber’s willful or deliberate act.

(D) Unless excused, the grantee shall determine the nature of the problem within 48 hours of beginning work and resolve all cable system related problems within five business days unless technically infeasible.

(E) Upon request, the grantee shall provide appropriate credits to subscribers whose service has been materially interrupted due to cable system problems.

(F) Upon five days’ notice, the grantee shall establish its compliance, on an average monthly basis, with any or all of the standards required above. The grantee shall provide sufficient documentation to permit the grantor to verify the compliance.

(G) A repeated and verifiable pattern of non-compliance with the consumer protection standards of divisions (A) through (F) above, after the grantee’s receipt of due notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

(H) The grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by the grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing specifying the subscriber’s grounds for dissatisfaction. The grantee shall file a copy of these procedures with the grantor.

(I) Following prior written notice to the grantee, the grantor shall have the right to review the grantee’s response to subscriber complaints in order to determine the grantee’s compliance with the franchise requirements, subject to the subscriber’s right to privacy.

(J) It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or not to renew the franchise, the grantee shall act so as to ensure that all subscribers receive service so long as the franchise remains in force. In the event of a change of control of the grantee, or in the event a new operator acquires the system, the original grantee shall cooperate in all reasonable respects with the grantor, the new grantee, or operator in maintaining continuity of service to all subscribers. During such period, the grantee shall be entitled to the revenues for any period during which it operates the system.

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

(K) In the event the grantee fails to operate the system for seven consecutive days without prior approval or subsequent excuse of the grantor, the grantor may, at its sole option, operate the system or designate an operator until such time as the grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor should fulfill this obligation for the grantee, then during such period as the grantor fulfills such obligation, the grantor shall be entitled to collect all revenues from the system, and the grantee shall indemnify the grantor against any damages the grantor may suffer as a result of such failure.

(L) All officers, agents, or employees of the grantee who, in the normal course of work require entry onto subscribers’ premises shall carry a photo-identification card in a form approved by the grantor. The grantee shall account for all identification cards at all times. Every vehicle of the grantee utilized for field maintenance shall be clearly identified.

(Prior Code, § 10516) (Ord. 98-1, passed 1-20-1998)

Additional service standards and standards governing consumer protection and response by the grantee to subscriber complaints not otherwise provided for in this subchapter may be established in the franchise agreement, and the grantee shall comply with such standards in the operations of the cable television system. A verified and continuing pattern of non-compliance may be deemed a material breach of the franchise, provided that the grantee shall receive due process, including written notification, an opportunity to be heard and an opportunity to cure, prior to any sanction being imposed.

(Prior Code, § 10517) (Ord. 98-1, passed 1-20-1998)

(A) Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee in the amount set forth in the franchise agreement.

(B) The grantor, on an annual basis, shall be furnished a statement within 60 days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the grantee, reflecting the total amounts of gross receipts and all franchise fee payments, deductions, and computations for the period covered by the payment. Upon 30 days’ prior written notice, the grantor shall have the right to conduct an independent audit of the grantee’s records for the preceding three calendar years, in accordance with generallyaccepted auditing standards, and if such audit indicates a franchise fee underpayment of 2% or more, the grantee shall assume all reasonable costs of such an audit and the audit may be extended to include the preceding five-year period.

(C) Except as otherwise provided by law, 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 subchapter or for the performance of any other obligation of the grantee.

(D) In the event that any franchise payment or recomputed amount is not made on or before the dates specified in the franchise agreement, the grantee shall pay as additional compensation:

(1) An interest charge, computed from such due date, at an annual rate equal to the prime lending rate published in the Wall Street Journal on the due date plus 1% during the period for which payment was due; and

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

(E) Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement. (Prior Code, § 10518) (Ord. 98-1, passed 1-20-1998)

(A) The grantor may require the grantee to provide a security fund, in an amount and form established in the franchise agreement. The amount of the security fund shall be established based on the extent of the grantee’s obligations under the terms of the franchise.

(B) The security fund shall be available to the grantor as provided in § 122.52(A) to satisfy all claims, liens, and/or taxes due the grantor from the grantee which arise by reason of construction, operation, or maintenance of the system, and to satisfy any actual or liquidated damages arising out of a franchise breach, subject to the procedures and amounts designated in the franchise agreement.

(C) If the security fund is drawn upon by the grantor in accordance with the procedures established in this subchapter and the franchise agreement, the grantee shall cause the security fund to be replenished to the original amount no later than 30 days after each withdrawal by the grantor. Failure to replenish the security fund shall be deemed a material breach of the franchise.

(Prior Code, § 10519) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall not construct any cable system facilities until the grantee has secured the necessary permits from the grantor, or other cognizant public agencies.

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

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

(D) Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals, or other fixtures and equipment (herein referred to as “structures”), or the construction of any additional structures in, upon, along, across, under, or over the streets, alleys, and public ways shall be made under the direction of the grantor’s City Engineer, or a designee, who shall, if the proposed change, extension, or construction conforms to the provisions hereof, issue written permits therefor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the State Public Utilities Commission or other regulatory body having jurisdiction thereof.

(1) All transmission and distribution structures, lines, and equipment erected by the grantee shall be located so as not to interfere with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys, or other public ways and places, and not to interfere with existing public utility installations.

res, lines, and equipment erected by the grantee shall be located so as not to interfere with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys, or other public ways and places, and not to interfere with existing public utility installations.

(2) In the event that any property or improvement of the grantor in the public rights-of-way is disturbed or damaged by the grantee or any of its contractors, agents, or employees in connection with undertaking any and all work pursuant to the right granted to the grantee pursuant to this subchapter, the grantee shall promptly, at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was so disturbed or damaged, and in the event that any such property or improvement shall at any later time become uneven, unsettled, or otherwise require restoration, repair, or replacement because of such disturbance or damage by the grantee, then the grantee, as soon as reasonably possible, shall promptly, upon receipt of notice from the grantor and at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specifications as may, from time to time, be then provided for by the grantor’s ordinance.

(3) Prior to commencing any work in the public rights-of-way, the grantee shall obtain any and all permits lawfully required by such grantor codes and ordinances of general application for such work. In the event that emergency work may be required by the grantee, however, the grantee shall obtain any and all such permits within three working days after the beginning of such emergency work.

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

(5) If at any time during the period of the franchise the grantor shall lawfully elect to alter or change the grade or location of any street, alley, or other public rights-of-way, the grantee shall, upon reasonable notice by the grantor,

remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at it own expense, and in each instance comply with the requirements of the grantor; provided, that the grantee shall have no such obligation if other public utilities occupying the same public rights-of-way are not also required to remove, relay, or relocate their poles, wires, cables, underground conduits, manholes, and other fixtures at their own expense.

conduits, manholes, and other fixtures at it own expense, and in each instance comply with the requirements of the grantor; provided, that the grantee shall have no such obligation if other public utilities occupying the same public rights-of-way are not also required to remove, relay, or relocate their poles, wires, cables, underground conduits, manholes, and other fixtures at their own expense.

(6) The grantee shall not place poles, conduits, or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants, or other utility, and all such poles, conduits, or other fixtures placed in any street shall be so placed as to comply with all ordinances of the grantor.

(7) The grantee may be required by the grantor to permit joint use of its utility poles and appurtenances located in the streets, alleys, or other public rights-of-way, by utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rental therefor; provided that, in the absence of agreement regarding such joint use, the City Council shall provide for arbitration of the terms and conditions of such joint use and the compensation to be paid therefrom, which award shall be final.

(8) The grantee shall, on request of any person holding a moving permit issued by the grantor, temporarily move its wires or fixtures to permit the moving of buildings, the expense of such temporary removal to be paid by the person requesting the same, and the grantee shall be given not less than 48 hours’ advance notice to arrange for such temporary changes.

(9) The grantee shall have the authority, except when in conflict with existing grantor ordinances, to trim any trees upon and overhanging the streets, alleys, sidewalks, and public places so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the grantor, such trimming may be done by it, or under its supervision and direction, at the expense of the grantee.

(E) In the event of multiple franchisees desiring to serve new residential developments in which the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements.

(1) The developer shall be responsible for contacting and surveying all franchised cable operators to ascertain which operators desire to provide cable television service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development.

(2) If one or two cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a non-discriminatory shared cost basis. If fewer than two operators indicate interest, the developer shall provide conduit to accommodate two sets of cable television cables and dedicate to the city any initially unoccupied conduit. The developer shall be entitled to recover the costs of such initially unoccupied conduit in the event that the grantor subsequently leases or sells occupancy or use rights to any grantee.

(3) The developer shall provide at least ten working days’ notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two working days to begin the installation of their cables, and five working days after beginning installation to complete installation.

(4) The final development map shall not be approved until the developer submits evidence that:

(a) It has notified each grantee that underground utility trenches are to be open as of an estimated date, and that each grantee will be allowed access to such trenches, including trenches from proposed streets to individual homes or home sites, on specified non-discriminatory terms and conditions; and

(b) It has received a written notification from each grantee that the grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and the grantee, or has received no reply from a grantee within ten days after its notification

to such grantee, in which case the grantee will be deemed to have waived its opportunity to install its facilities during the open trench period.

(5) Sharing the joint utilities trench shall be subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating operators. With the concurrence of the developer, the affected utilities, and the cable operators, alternative installation procedures, such as the use of deeper trenches, may be utilized subject to applicable law.

(6) Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs.

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

(8) The city reserves the right to grant an encroachment permit to a cable franchisee applicant to install conduit and/or cable in anticipation of the granting of a franchise. Such installations shall be at the applicant’s risk, with no recourse against the city in the event the pending franchise application is not granted. The city may require an applicant to provide a separate trench for its conduit and/or cable, at the applicant’s cost. The construction of such separate trench, if provided, shall be coordinated with, and subject to, the developer’s overall construction schedule. (Prior Code, § 10520) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall construct, install, operate, and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. In addition, the grantee shall provide to the grantor, upon request, a written report of the results of the grantee’s periodic proof of performance tests conducted pursuant to the FCC and franchise standards and guidelines.

(B) Repeated and verified failure to maintain specified technical standards shall constitute a material breach of the franchise.

(Prior Code, § 10521) (Ord. 98-1, passed 1-20-1998)

The grantee shall indemnify, defend, and hold the grantor, its officers, agents, and employees harmless from any liability, claims, damages, costs, or expenses to the extent provided in the franchise agreement. (Prior Code, § 10522) (Ord. 98-1, passed 1-20-1998)

(A) On or before commencement of franchise operations, the grantee shall obtain policies of liability, workers’ compensation, and property insurance from appropriately-qualified insurance companies.

• (B) The policy of liability insurance shall:

(1) Be issued to the grantee and name the grantor, its officers, agents, and employees as additional insureds;

(2) Indemnify for all liability for personal and bodily injury, death, and damage to property arising from activities conducted and premises used pursuant to this subchapter by providing coverage therefor, including, but not limited to:

(a) Negligent acts or omissions of the grantee, and its agents, servants, and employees, committed in the conduct of franchise operations; and/or

• (b) Use of motor vehicles.

(3) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement. Such insurance policy shall be subject to review and approval by the grantor’s legal counsel; and

• (4) Be noncancellable and nonmodifiable without 30 days’ prior written notice thereof directed to the grantor.

• (C) The policy of the Workers’ Compensation Insurance shall comply with the laws of the state.

(D) The policy of property insurance shall provide fire insurance with extended coverage on the franchise property used by the grantee in the conduct of franchise operations in an amount adequate to enable the grantee to resume franchise operations following the occurrence of any risk covered by this insurance.

(E) (1) The grantee shall file with the grantor, by the deadline provided in the franchise agreement, a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy:

• (a) The policy number;

• (b) The date upon which the policy will become effective and the date upon which it will expire;

• (c) The names of the named insureds and any additional insured required by the franchise agreement;

• (d) The subject of the insurance;

• (e) The type of coverage provided by the insurance; and

• (f) The amount or limit of coverage provided by the insurance.

• (2) If the certificate of insurance does not provide all of the above information, the grantor reserves the right to inspect the relevant insurance policies.

(F) (1) In the event the grantee fails to maintain any of the above-described policies in full force and effect, the grantor shall, upon 48 hours’ notice to the grantee, have the right to procure the required insurance and recover the cost thereof from the grantee.

(2) The grantor shall also have the right to suspend the franchise during any period that the grantee fails to maintain said policies in full force and effect.

(Prior Code, § 10523) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall at all times maintain:

(1) A record of all service calls and interruptions or degradation of service experienced for the preceding two years, provided that such complaints result in or require a service call, subject to the subscriber’s right of privacy;

(2) A full and complete set of plans, records, and “as-built” maps showing the locations of the cable television system installed or in use in the city, exclusive of subscriber service drops and equipment provided in the subscriber’s homes.

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

(B) The grantor may impose reasonable requests for additional information, records, and documents from time to time, provided they reasonably relate to the scope of the city’s rights under this subchapter or the grantee’s franchise agreement.

(C) Upon reasonable notice, and during normal business hours, the grantee shall permit examination by any duly authorized representative of the grantor of all franchise property and facilities, together with any appurtenant property and facilities of the grantee situated within or without the city, and all records relating to the franchise, provided they

are necessary to enable the grantor to carry out its regulatory responsibilities under this subchapter or the franchise agreement. The grantee shall have the right to be present at any such examination. (Prior Code, § 10524) (Ord. 98-1, passed 1-20-1998)

Within 90 days after the end of the calendar year, if requested by the grantor, the grantee shall submit a written annual report to the grantor with respect to the preceding calendar year in a form approved by the grantor, including, but not limited to, the following information:

(A) A summary of the previous year’s (or in the case of the initial reporting 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;

• (B) A list of the grantee’s officers, members of its board of directors, and other principals of the grantee;

• (C) A list of stockholders or other equity investors holding 5% or more of the voting interest in the grantee;

• (D) An indication of any residences in the grantee’s service area where service is not available, and a schedule for providing service;

• (E) Information as to the number of homes passed, subscribers, additional television outlets, and the number of basic and pay subscribers;

(F) Information as to the degree of compliance with the provisions contained in § 122.60 herein and all steps required by this subchapter and applicable law have been taken to assure that the privacy rights of individuals have been protected; and

(G) Any other information relevant to franchise regulation which the grantor shall reasonably request, and which is relevant to its regulatory responsibilities.

(Prior Code, § 10525) (Ord. 98-1, passed 1-20-1998)

Upon request, the grantee shall submit to the grantor copies of all pleadings, applications, and reports submitted by the grantee to, as well as copies of all decisions, correspondence, and actions by, any federal, state, or local court, regulatory agency, or other governmental body which are non-routine in nature and which will materially affect its cable television operations within the franchise area.

(Prior Code, § 10526) (Ord. 98-1, passed 1-20-1998)

If the grantee is publicly held, a copy of each grantee’s annual and other periodic reports, and those of its parent, shall be submitted to the grantor within 45 days of its issuance.

(Prior Code, § 10527) (Ord. 98-1, passed 1-20-1998)

(A) Upon request of the grantor, but not more than once annually, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be in a postcard format that can be transmitted to the subscribers in the grantee’s invoice for cable services.

(B) The results of such survey shall be provided to the grantor on a timely basis. The cost of such survey shall be borne by the grantee.

(Prior Code, § 10528) (Ord. 98-1, passed 1-20-1998)

(A) All reports required under this subchapter, except those required to be kept confidential, as provided in division

(E) below, shall be available for public inspection in the grantor’s offices during normal business hours.

(B) All reports and records required under this subchapter shall be furnished at the sole expense of the grantee, except as otherwise provided in this subchapter or the franchise agreement.

(C) The willful refusal, failure, or neglect of the grantee to file any of the reports required as and when due under this subchapter may be deemed a material breach of the franchise agreement if such reports are not provided to the grantor within 30 days after written request therefor, and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise.

(D) Any materially false or misleading statement or representation made knowingly and willfully by the grantee in any report required under this subchapter or under the franchise agreement 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.

(E) Notwithstanding the provisions of §§ 122.43, 122.44, and 122.45, the grantee shall have no obligation to provide copies of documents or information to the grantor which contain trade secrets of the grantee or which are otherwise of a confidential or proprietary nature to the grantee unless it receives satisfactory assurances from the grantor that such documents or information can and will be held in strictest confidence by the grantor and not made available for public inspection. To the extent possible, the grantee will provide the grantor with summaries of any required documents or information or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on the grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the grantor.

(Prior Code, § 10529) (Ord. 98-1, passed 1-20-1998)

Each year throughout the term of the franchise, if requested by the City Council, the grantor and grantee shall meet publicly to review system performance and quality of service. The various reports required pursuant to this subchapter, results of technical performance tests, the record of subscriber complaints and the grantee’s response to complaints, and the information acquired in any subscriber surveys, 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. Within 30 days after the conclusion of a system performance review meeting, the grantor may issue findings with respect to the cable system’s franchise compliance and quality of service. If the grantor determines that the grantee is not in compliance with the requirements of this subchapter or the grantee’s franchise, the grantor may direct the grantee to correct the areas of non-compliance within a reasonable period of time. Failure of the grantee, after due notice, to correct the areas of non-compliance within the period specified therefor or to commence

compliance within such period and diligently achieve compliance thereafter, shall be considered a material breach of the franchise, and the grantor may exercise any remedy within the scope of this subchapter and the franchise agreement considered appropriate.

(Prior Code, § 10530) (Ord. 98-1, passed 1-20-1998)

(A) When there have been complaints made or where there exists other evidence which, in the judgment of the grantor, casts reasonable doubt on the reliability or quality of cable service to the effect that the grantee is not in compliance with the requirements of this subchapter or its franchise, the grantor shall have the right to compel the

grantee to test, analyze, and report on the performance of the system in order to determine whether the grantee is in compliance with the terms of this subchapter and the franchise agreement. The grantor may not compel the grantee to provide such tests or reports unless and until the grantor has provided the grantee with at least 30 days’ notice of its intention to exercise its rights under this section and has provided the grantee with an opportunity to be heard prior to its exercise of such rights.

(B) Such test or tests shall be made and the report shall be delivered to the grantor no later than 30 days after the grantor notifies the grantee that it is exercising such right, and shall be made at the grantee’s sole cost. Such report shall include the following information:

• (1) The perceived problem areas that initiated the special review;

• (2) The tests performed;

• (3) What system components were tested; and

• (4) The equipment used and procedures employed in said testing and the results of such tests.

• (C) Any other information pertinent to the special tests shall be recorded.

(Prior Code, § 10351) (Ord. 98-1, passed 1-20-1998)

The grantor may hold special state-of-the-art and services evaluation sessions at any time during the term of a franchise, provided such sessions are held no more often than once every four years. The intent of this review shall be to review the quantity of services offered to the public, compared to the services available in comparable communities. The grantee shall be notified of the place, time, and date thereof and the topics to be discussed. Such sessions may be open to the public and advertised in a newspaper of general circulation at least 30 days before each session. The sessions may include an evaluation of any items considered relevant to the stated intent of this evaluation. Either the grantor or the grantee may propose items for discussion or evaluation. By agreement between the grantor and the grantee, this evaluation may be combined with the performance review provided in § 122.49. (Prior Code, § 10532) (Ord. 98-1, passed 1-20-1998)

(A) Remedies for franchise violations. If the grantee fails to perform in a timely manner any material obligation required by this subchapter or a franchise granted hereunder, following notice from the grantor, an opportunity for the grantee to be heard, and an opportunity to cure such nonperformance in accordance with the provisions of division (B) below and the franchise, the grantor, by resolution of the City Council, may, at its option and in its sole discretion: (1) Cure the violation and recover the actual cost thereof from the security fund established herein if such violation is not cured within 30 days after written notice to the grantee of the grantor’s intention to cure and draw upon the security fund;

(2) (a) Assess against the grantee liquidated damages in an amount set forth in the franchise agreement for any such violations(s) if such violation is not cured, or if the grantee has not commenced a cure, on a schedule acceptable to the grantor, within 30 days after written notice to the grantee of the grantor’s intention to assess liquidated damages. (b) Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or applicable law including, without limitation, its right to recover from the grantee such additional damages, losses, costs, and expenses, including actual attorney’s fees, as may have been suffered or incurred by the grantor by reason of or arising out of such breach of the franchise; and (3) Exercise its right to revoke the franchise as provided in § 122.53. (Prior Code, § 10533)

(B) Procedure for remedying franchise violations. Prior to imposing any remedy or other sanction against the grantee specified in this subchapter, the grantor shall give the grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

(1) (a) The grantor shall first notify the grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than five days in the case of the failure of the grantee to pay any sum or other amount due the grantor under this subchapter or the grantee’s franchise and 30 days in all other cases.

(b) If the grantee fails to correct the violation within the time prescribed or if the grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the grantor shall then give written notice of not less than 20 days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred.

(2) At the public hearing, the Council shall hear and consider all relevant evidence, and thereafter render findings and its decision.

(3) In the event the Council finds that the grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from the grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(4) In the event the Council finds that the material violations alleged in the notice to the grantee exist and that the grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from the grantor and is not diligently proceeding to fully remedy such violation, the Council may impose one or more of the remedies provided in this subchapter and the franchise agreement as it, in its discretion, deems appropriate under the circumstances.

(Prior Code, § 10534)

(Ord. 98-1, passed 1-20-1998)

Subject to limitations imposed by applicable federal or state law, the grantor reserves the right to revoke any franchise granted pursuant to this subchapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by the grantee and a material breach under the franchise grant:

(A) If the grantee shall default in the performance of its material obligations under this subchapter or the franchise agreement and shall continue such default after receipt of due notice and reasonable opportunity to cure the default;

(B) If the grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required in the franchise agreement;

(C) If the grantee shall violate any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee’s franchise, unless such order or ruling is being contested by the grantee by appropriate proceedings conducted in good faith;

(D) If the grantee practices any material fraud or deceit upon the grantor; and

(E) Except as provided in § 122.59 herein, if the grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt. The termination and forfeiture of the grantee’s franchise shall in no way affect any right of the grantor to pursue any remedy under the franchise or any provision of law.

(Prior Code, § 10535) (Ord. 98-1, passed 1-20-1998)

In the event the grantee’s performance of any of the terms, conditions, or obligations required by this subchapter or a franchise granted hereunder is prevented by a cause or event not within the grantee’s control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this section, causes or events not within the control of the grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, weather conditions, restraints imposed by order of a governmental agency or court, explosions, safety incidents involving nuclear facilities, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies, or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the grantee, or the failure of the grantee to secure supplies, services, or equipment necessary for the installation, operation, maintenance, or repair of the cable communications system where the grantee has failed to exercise reasonable diligence to secure such supplies, services, or equipment.

(Prior Code, § 10536) (Ord. 98-1, passed 1-20-1998)

(A) In the event that the use of any property of the grantee within the public rights-of-way is discontinued for a continuous period of 12 months, the grantee shall be deemed to have abandoned that franchise property. Any part of the cable system that is intended for use only when needed because it is parallel or redundant to other parts the system, or otherwise, shall not be deemed to have been abandoned because of its lack of use.

(B) The grantor, upon such terms as the grantor may impose, may give the grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated, or maintained under the franchise. Unless such permission is granted or unless otherwise provided in this subchapter, the grantee shall remove all abandoned aboveground facilities and equipment upon receipt of written notice from the grantor and shall restore any affected street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. 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 such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. The grantor shall have the right to inspect and approve the condition of the pubic ways, public places, cables, wires, attachments, and poles prior to and after removal. The liability, indemnity, and insurance provisions of this subchapter and the security fund as provided herein 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) Upon abandonment of any franchise property in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the grantor, transferring to the grantor the ownership of the franchise property abandoned.

(D) At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided herein, in any such case without renewal, extension, or transfer, the grantor shall have the right to require the grantee to remove, at its own expense, all aboveground portions of the cable television system from all streets and public ways within the city within a reasonable period of time, which shall not be less than 180 days.

(E) Notwithstanding anything to the contrary set forth in this subchapter, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable grantee. (Prior Code, § 10537) (Ord. 98-1, passed 1-20-1998)

In the event of a failure by the grantee to complete any restoration work required herein or by any other law or ordinance, and if such work is not completed within 30 days after receipt of written notice thereof from the grantor or, if more than 30 days are reasonably required therefor, if the grantee does not commence such work within such 30 days period and diligently complete the work thereafter (except in cases of emergency constituting a threat to public health, safety, or welfare), the grantor may cause such work to be done and the grantee shall reimburse the grantor the costs thereof within 30 days after receipt of an itemized list of such costs, or the grantor may recover such costs through the security fund provided by the grantee.

(Prior Code, § 10538) (Ord. 98-1, passed 1-20-1998)

Upon expiration or revocation of the franchise, the grantor shall have the discretion to permit the grantee to continue to operate the cable television system for an extended period of time. The grantee shall continue to operate the system for a reasonable period of tine under the terms and conditions of this subchapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services, provided that financial and other obligations to the grantee are honored. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transition periods for a reasonable period of time following franchise expiration or termination.

(Prior Code, § 10539) (Ord. 98-1, passed 1-20-1998)

(A) A franchise granted hereunder shall, at the option of the grantor, cease and terminate 120 days after appointment of a receiver or receivers, or trustee or trustees, 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 120 days, or unless:

(1) Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this subchapter and the franchise granted pursuant hereto, and the receivership or trustees within said 120 days shall have remedied all defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to the grantor; and

(2) Such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court having jurisdiction in the premises whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of the franchise granted.

(B) Except as provided in § 122.27(E) herein, in the case of a foreclosure or other judicial sale of the franchise property, or any material part thereof, the grantor may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise granted and all rights and privileges of the grantee hereunder shall cease and terminate 30 days after service of such notice, unless:

(1) The grantor shall have approved the transfer of the franchise, as and in the manner that this subchapter provides; and

(2) Such successful bidder shall have covenanted and agreed with the grantor to assume and be bound by all terms and conditions of the franchise.

(Prior Code, § 10540) (Ord. 98-1, passed 1-20-1998)

(A) In addition to any rights specifically reserved to the grantor by this subchapter, the grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the franchise.

(B) (1) The grantor shall have the right to waive any provision of the franchise, except those required by federal or state regulation, if the grantor determines:

• (a) That it is in the public interest to do so; and

(b) That the enforcement of such provision will impose an undue hardship on the grantee or the subscribers.

(2) To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance, nor be deemed a waiver of any other provision of the franchise unless the statement so recites.

(Prior Code, § 10541) (Ord. 98-1, passed 1-20-1998)

(A) The grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age, or sex. The grantee shall comply at all times with all other applicable federal, state, and local laws and regulations relating to non-discrimination.

(B) The grantee shall adhere to the applicable equal employment opportunity requirements of federal, state, and local regulations, as now written or as amended from time to time.

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

(D) In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, the grantee shall take reasonable steps to prevent the invasion of a subscriber’s or general citizen’s right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. The grantee shall not without lawful court order or other applicable valid legal authority utilize the system’s interactive two-way equipment or capability for unauthorized personal surveillance of any subscriber or general citizen for any purpose unrelated to the operation of the cable system.

(E) No cable line, wire amplifier, converter, or other piece of equipment owned by the grantee shall be installed by the grantee in the subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon the subscriber’s property shall be presumed.

(F) The grantee, or any of its agents or employees, shall not sell, or otherwise make available to any party for any purpose other than the operation or transfer of the cable system without consent of the subscriber pursuant to state and federal privacy laws:

(1) Any list of the names and addresses of subscribers containing the names and addresses of subscribers who request in writing to be removed from such list; and

(2) Any list which identifies the viewing habits of individual subscribers. This does not prohibit the grantee from providing composite ratings of the subscriber viewing to any party. (Prior Code, § 10542) (Ord. 98-1, passed 1-20-1998)