Hillsborough Municipal Code Ch. 4.04 Cable Television

The Town of Hillsborough, a California general law city (hereinafter sometimes referred to as "the City"), finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of the Town of Hillsborough. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate in and pursuant to the Franchise Agreement as hereinafter defined. It is the intent of this ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this ordinance shall be deemed to include this finding as an integral part thereof.

This ordinance shall be known and may be cited as the "Town of Hillsborough Cable Television Franchise Ordinance."

(Ord. 432, 11-12-86)

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

A. "Agency Subscriber" means a government or public agency, school, or designated nonprofit organization which receives a service from a cable communications system.

B. "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals, and other signals as provided for in the Franchise Agreement.

C. "Basic Radio Service" means the provision of audio services, other than the audio components of video cable service, to all subscribers at a monthly rate.

D. "Broadcast Signal" means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable communications system and retransmitted to subscribers.

E. "Cable Communications System" or "System," also referred to as "Cable Television System," "Cable System," "CATV System," or "Community Antenna TV 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:

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

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

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

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

F. "Cablecast Signal" means a nonbroadcast signal that originates within the facilities of the cable communications system.

G. "Cable-mile" means a linear mile of strand-bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal.

H. "Cable Service" means the total of the following:

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

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

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

J. "Commence Construction" means that time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.

K. "Commence Operation" means that time and date when operation of the cable communications system is considered to have commenced, which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to a dwelling unit located within the franchise area and such services are actually subscribed to by a resident of the franchise area.

L. "Commercial Subscriber" means a subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade, or profession.

M. "Commercial Use Channel(s)" means the channel capacity designated for commercial use as defined and required by federal law.

N. "Completion of Construction" means that point in time when all distribution facilities have been installed by the Grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, subject to the Franchise Agreement's line extension policy, as well as the provision, in an operational state, of any facilities required by the Franchise Agreement.

O. "Converter" means an electronic device which converts signal carriers from one form to another.

P. "Council" means the governing body of the Town of Hillsborough.

Q. "FCC" means the Federal Communications Commission and any legally appointed or elected successor.

R. "Franchise" means an initial authorization, or renewal thereof issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction and/or operation of a cable system.

S. "Franchise Agreement" means a contractual agreement by and between Grantor and Grantee, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials as specified in said contractual agreement.

T. "Franchise Fee," except as otherwise, and only to the extent provided by the Franchise Agreement, means the payment to Grantor by Grantee specified in the Franchise Agreement of any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a Grantee or cable subscriber, or both, solely because of their status as such. The term "franchise fee" does not include:

(a) Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services);

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

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

(d) Any fee imposed under Title 17, United States Code.

U. "Grantee" means any person, as hereinafter defined, receiving a franchise pursuant to this ordinance, and its lawful successor, transferee or assignee.

V. "Grantor" or "City" means the Town of Hillsborough as represented by the City Council.

W. "Gross Annual Receipts" means receipts from operations of the cable system within the franchise area.

X. "Initial Service Area" means the area of the City which will receive service initially, as set forth in the franchise agreement. If not stated otherwise in the Franchise Agreement, the initial service area shall consist of the entire City.

Y. "Installation" means the connection of the system from feeder cable to a subscriber's television or radio receiver and/or the converter, and the provision of service.

Z. "Local Origination Channel" means any channel where the Grantee or its designated agent is the primary designated programmer, and provides video programs to subscribers.

AA. "Nonbroadcast Signal" means a signal that is provided by a cable communications system and that is not involved in an over-the-air broadcast transmission path.

BB. "Open Channel" means any channel that can be received by all subscribers, without the necessity for special equipment.

CC. "Pay-Cable" or "Pay-Television" means the delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic cable service, on a per program, per month, per channel, or other ad hoc subscription basis.

DD. "Penetration" means the result expressed in the percentage obtained by dividing the total number of dwelling units passed by the cable system in the franchise area to the number of subscribers receiving service.

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

FF. "Private Channel," or "Closed-Circuit Channel," or "Discrete Channel" means any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel.

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

HH. "Public, Educational, or Government Access Facilities" or "PEG Access Facilities" means the total of the following:

(a) Channel capacity designated for public, educational, or governmental use; and

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

II. "Resident" means any person residing in the City as otherwise defined by applicable law.

JJ. "Residential Subscriber" means a subscriber who receives a cable television service in a dwelling unit, where the service is not to be utilized in connection with a business, trade, or profession.

KK. "Sale" means any sale, exchange, barter, or offer for sale.

LL. "School" means any accredited nonprofit educational institution including primary and secondary schools, colleges, and universities, both public and private.

MM. "Section" means any section, subsection, or provision of this franchise ordinance.

NN. "Service Area" or "Franchise Area" means the entire geographic area within the City designated in a franchise agreement to receive cable service.

OO. "Service Tier" means a category of cable service or other services provided by a Grantee and for which a separate rate is charged by the Grantee.

PP. "State" means the State of California.

QQ. "Street" means each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the Grantor shall permit to be included within the definition of street from time to time.

RR. "Subscriber" means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with the cable communications system.

(Ord. 432, 11-12-86)

A. Grant. In the event that Grantor shall grant to a Grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a cable communications system within the franchise area, or a renewal of an existing franchise, said franchise or renewal shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this ordinance and the Franchise Agreement. The Franchise Agreement shall include those provisions of the Grantee's application for franchise or application for renewal that are finally negotiated and accepted by the Grantor and Grantee.

Any franchise granted under the terms and conditions contained herein shall be and remain consistent with federal and state laws and regulations. In the event of conflict between the terms and conditions of the franchise and the general law and/or statutory requirements, the latter shall, without exception, control.

Any franchise granted is hereby made subject to the general ordinance provisions contained herein, or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of the other codes and ordinances of the Grantor regarding permits, fees to be paid or manner of construction provided such do not conflict with the provisions hereof.

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

C. Establishment of Franchise Requirements. The Grantor may establish reasonable and appropriate requirements for new franchises or franchise renewals, and may reasonably modify these requirements from time to time to reflect the state-of-the-art in the cable industry.

D. Franchise Area. The Grantor may grant a franchise for all or any defined portion of the City. The service area shall be the entire area defined in the Franchise Agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the Franchise Agreement.

E. Use of Public Streets and Ways. For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of Section 4.04.070.J herein, the Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and in any manner employed by any utility, along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Subject to applicable law, Grantee shall have the same right as regards private easements if said easements are used by utilities, provided that the owner of said private easement may make a reasonable and nominal charge for said use by Grantee, and shall in no other way hinder or delay Grantee's use thereof. Prior to construction or alteration, however, the Grantee shall in each case file plans with the appropriate Grantor agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable Grantor construction codes and procedures.

F. Duration. The term of any franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as specified in the Franchise Agreement unless terminated sooner as hereinafter provided. The effective date of the franchise shall be the date of execution of the Franchise Agreement by the Grantor, subject to prior execution and filing by the Grantee, provided that Grantor shall immediately execute the Franchise Agreement upon its proper filing by Grantee.

G. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional franchises or a cable communications system as it deems appropriate.

H. Franchise Applications. Applicants for a franchise shall submit to the Grantor written applications providing all relevant information requested by the Grantor, and including the designated application fees.

I. Grant Procedure. All franchise applications when filed shall be available for public inspection at places designated by the Grantor. No later than 90 days after receipt of any application, one or more public hearings shall be held. A decision shall be made by the Grantor not later than 90 days after the conclusion of all such public hearings based upon an evaluation of the application(s), the hearings, and other information that the Grantor may deem relevant. Grantor may grant one or more franchises, or may decline to grant any franchise.

J. Transfer of Ownership or Control.

(a) Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior written consent of the Grantor, expressed by Council resolution, and then only under such conditions as the Grantor may reasonably establish. Grantee shall notify Grantor, in writing, 90 days prior to the transfer contemplated herein. Should 45 calendar days expire from the date of Grantee's notice to Grantor regarding transfer or sale without written response from Grantor indicating objection thereto, then the further requirements of this Section 4.04.040J shall be waived by Grantor.

(b) Ownership and Control. Grantee shall be required to notify only Grantor of any proposed sale of Grantee's stock above 25%, but less than 51%. The grantee shall promptly notify in writing the Grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the Grantee—i.e., a sale of 51% or more of Grantee's stock or any other legal undertaking which changes effective day-to-day control of this franchise from Grantee or its parent to any third party shall require prior approval by Grantor. Every such acquisition of control of the Grantee shall make the franchise subject to cancellation unless and until the Grantor shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the Grantor may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the Grantor in any such inquiry. Should 45 calendar days expire from the date of Grantee's notice to Grantor regarding transfer or sale without written response from Grantor indicating objection thereto, then the further requirements of this Section 4.04.040J shall be waived by Grantor.

In seeking the Grantor's consent to any change in control, the Grantee shall have the responsibility:

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

a. Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to any violation of federal, state, or local law or regulations, or is presently under an indictment, investigation, or complaint charging such acts;

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

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

(2) To establish, to the satisfaction of the Grantor, the financial capability of the proposed transferee to operate the franchised system, based on the proposed transferee's aggregate financial commitments and resources. Grantor may request, and Grantee shall cause to be provided, all reasonable financial data relative to the transfer.

(3) To establish to the satisfaction of the Grantor that the capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms, and, upon Grantor's request, to provide adequate and reasonable security for this purpose.

(c) The Grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Grantor that it, or its designee satisfactory to the Grantor, will take control of and operate the cable communications system, in the event of a Grantee default in its financial obligations. In such event, the financial institution shall submit a plan for operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the franchise to another Grantee. If the Grantor finds that such transfer, after considering the legal, financial, character, technical, and other public interest qualifications of the applicant are satisfactory, the Grantor shall transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the Grantor to such transfer shall not be unreasonably withheld.

(d) The consent or approval of the Grantor to any transfer of the franchise shall not constitute a waiver or release of the rights of the Grantor in and to the streets, and any transfer shall by its terms, be expressly subject to the terms and conditions of the franchise.

(e) In the absence of extraordinary circumstances, the Grantor shall not approve any transfer or assignment of the franchise prior to completion of construction of the proposed system.

(f) In no event shall a transfer of control be approved without the successor in interest becoming a signatory to the existing Franchise Agreement, or a modified franchise agreement approved by the Grantor.

K. Franchise Renewal. Franchise renewal shall be as prescribed by applicable law.

L. Police Powers. In accepting a franchise, the Grantee acknowledges that its rights hereunder are subject to the lawful police powers of the Grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the Grantor pursuant to such power.

Any conflict between the provisions of this ordinance and any other present or future lawful exercise of the Grantor's police power shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any cable communications system franchise which contains provisions inconsistent with this ordinance shall prevail only if upon such exercise the Grantor finds any emergency exists constituting a danger to health, safety, property, or general welfare or such exercise is mandated by law.

M. Franchise Fee.

(a) Annual Franchise Payment. A Grantee of a franchise hereunder shall pay to the Grantor an annual fee in an amount as designated in the Franchise Agreement. Such payment shall be in addition only to any one-time, specialized fees which are charged by Grantor to other businesses (such as a business license fee), and commence as of the effective date of the franchise. The Grantor, upon request, shall be furnished a statement, either audited and certified by an independent Certified Public Accountant or certified by a financial officer of the Grantee, prepared and calculated in the same manner as are those statements provided by Grantee for other franchise authorities in Grantee's other systems, reflecting the total amounts of applicable gross revenues for the period covered by the payment. Grantor shall have the right to conduct an independent audit of Grantee's records, and if such audit indicates a franchise fee underpayment of 2% or more, the Grantee shall assume all reasonable costs of such audit.

(b) Acceptance by Grantor. No acceptance of any payment by the Grantee 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 ordinance or for the performance of any other obligation of the Grantee.

(c) Failure to Make Requirement Payment. In the event that any franchise payment or correct recomputed amount is not made on or before the dates specified in the Franchise Agreement, Grantee shall pay Grantor as additional compensation:

(1) An interest charge, computed from such due date, at an annual rate of 10%.

(d) Franchise fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement.

(e) Any Grantee "pass through" or itemization of franchise fees costs on subscribers' bills shall be in accordance with federal law.

N. Forfeiture or Revocation.

(a) Grounds for Revocation. The Grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the event of a material breach of this ordinance or the Franchise Agreement. A material breach of the franchise shall occur:

(1) If the Grantee should willfully and without cure default in the performance of any of its material obligations under this ordinance or Franchise Agreement by and between the Grantor and the Grantee, subject to the provisions of Section 4.04.130B.

(2) If the Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund and bonds as required in the Franchise Agreement.

(3) If the Grantee should willfully and without care violate any material orders or rulings of any regulatory body having jurisdiction over the Grantee relative to this franchise.

(4) If the Grantee permanently ceases to provide services of the cable communications system for any reason within the control of the Grantee.

(5) If the Grantee's construction, reconstruction, or system extension schedule is delayed for more than six months later than the schedule contained in the Franchise Agreement and Grantor finds that the delay was not excusable under the provisions of Section 4.04.130B, and/or the appropriate provisions of the Franchise Agreement.

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

(b) Procedure Prior to Revocation.

(1) The Grantor shall make written demand that the Grantee comply with any requirement, limitation, term, condition, rule, or regulation or correct any action deemed herein to be cause for revocation. If the failure, refusal, or neglect of Grantee continues for a period of 30 days following such written demand, and Grantee has not commenced corrective action, Grantor may place the issue of termination of the franchise upon a regular Council meeting agenda. The Grantor shall cause legal notice to be served upon Grantee, at least 30 days prior to the date of such meeting, of this intent to request such termination, showing the time and place of the meeting, and shall publish said notice at least once, 30 days before such meeting in a newspaper of general circulation within the franchise area.

(2) The Grantor shall hear any persons interested therein, and shall determine, based upon the preponderance of the evidence, and all other requirements of due process, whether the Grantee has committed a material breach of this ordinance or the Franchise Agreement, and, if so, whether such breach was willful and not corrected or in the process of being corrected.

(3) If the Grantor determines that the Grantee has committed a material breach as indicated above, then the Grantor may, by resolution, declare that the franchise of such Grantee shall be terminated and security fund and bonds forfeited, provided that Grantor shall first direct the Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as are reasonable. Any final determination by Grantor hereunder shall be stayed until and subject to final judgment and order by a court of competent jurisdiction.

O. Procedures in the Event of Termination or Expiration.

(a) Disposition of Facilities. In the event a franchise expires, is revoked, or otherwise terminated as provided herein, the Grantor may order the removal of the system facilities from the franchise area within a reasonable period of time or require the original Grantee to maintain and operate its cable system until a subsequent Grantee is selected and a subsequent or modified cable system becomes operational.

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

(c) Restoration by Grantor, Reimbursement of Costs. In the event of a failure by the Grantee to complete any work required by subsections (a) and/or (b) above, or any other construction work required by this ordinance and/or the Franchise Agreement within the time as may be established and to the satisfaction of the Grantor, the Grantor may cause such work to be done and the Grantee shall reimburse the Grantor the cost thereof within 30 days after receipt of an itemized list of such costs or the Grantor may recover such costs through the security fund or bonds provided by Grantee. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

(d) The Grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this ordinance and the Franchise Agreement and to provide the regular cable service and any and all of the other services that may be provided at that time, and continue to collect and own all revenues for said services. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

(e) Grantor's Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the Grantor under the franchise or any provision of law.

P. Receivership and Foreclosure.

(a) Any franchise granted shall, at the option of the Grantor, cease and terminate 120 days after the 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 ordinance and the franchise granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under the franchise; and

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

(b) In the case of a foreclosure or other involuntary sale of the plant, property, and equipment of the Grantee, or any part thereof, the Grantor may serve notice of termination upon the Grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of the Grantee hereunder shall cease and terminate 30 days after service of such notice, unless:

(1) The Grantor shall have approved the transfer of the franchise, as provided by this ordinance; and

(2) Such successful purchaser shall have covenanted and agreed with the Grantor to assume and be bound by all the terms and conditions of the Franchise Agreement.

Q. Franchise Processing Costs. For either a new franchise award, renewal, or transfer, the costs to be borne by Grantee shall include, but shall not be limited to, all costs of publications of notices prior to any public meeting provided for pursuant to a franchise, development and publication of relevant ordinances and franchise agreements, and any out-of-pocket costs, not covered by the application fees, incurred by the Grantor in its study, preparation of proposal solicitation documents, and evaluation of applications, including, but not limited to consultant and outside attorney fees.

These franchise processing costs shall be independent of the construction, inspection, and permit fees specified in Section 4.04.070K(a)(1) and the franchise fee specified in Section 4.04.040M herein.

(Ord. 432, 11-12-86)

A. Regulatory Authority. The Grantor shall exercise appropriate regulatory authority under the provisions of this ordinance, the Franchise Agreement, and applicable law. Except as provided in the Franchise Agreement, if the cable communications system serving the franchise area also serves other communities, Grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

B. Regulatory Responsibility. The Grantor may exercise regulatory responsibility, including, but not limited to, the following areas:

(a) Administering and enforcing the provisions of the cable communications system franchise agreement(s).

(b) Coordination of the operation of public, educational and government access channels and facilities, if any, as provided in the Franchise Agreement.

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

(d) Establishing procedures and standards for use of channels and facilities dedicated to PEG access use, if such channels and facilities are provided for in the Franchise Agreement.

(e) Planning expansion and growth of public benefit cable services to the extent provided for in the Franchise Agreement.

(f) Analyzing the possibility of integrating cable communications with other local, state, or national telecommunications networks.

(g) Formulating and recommending long-range telecommunications policy.

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

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

(b) Review the status and progress of each service developed for public benefit.

(c) Reallocate resources on a periodic basis to conform with changing priorities and public needs.

(d) Report to the Grantor annually on the utilization of resources, the new public services developed and the benefit achieved for the Grantor and its residents.

D. PEG Access Facility Management.

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

(1) A nonprofit public corporation.

(2) A PEG access facility management commission or committee, appointed by Grantor, and representing a broad spectrum of the community.

(3) An established nonprofit entity with special cable casting capability, such as a local or regional community college.

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

(1) To assume responsibility for and management of the public access facilities as may in the Franchise Agreement be designated for community-based programming. Community channels may include public, educational, and government access channels, as designated in the Franchise Agreement.

(2) To ensure that the PEG access facilities are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis.

(3) To ensure that no censorship or control over program content of the PEG access facilities exists except as necessary to comply with federal prohibition of material that is obscene.

(4) To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the PEG access facilities provided same are approved by Grantee.

(5) To prepare, in conjunction with the Grantee, such regular or special reports as may be required or desirable.

(6) To hire and supervise staff.

(7) To make all purchases of materials and equipment that may be required.

(8) To develop sources of funding, such as foundation or federal or state grants, to further community programming.

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

(10) To establish budgets on an annual basis, and utilize funds and resources received from the Grantor or the public usage entity designated in Section 4.04.050C for the purpose of PEG access programming.

(c) Access Rules. The PEG access facility management entity shall complete a set of rules for the use of the PEG access facilities which shall be promptly forwarded to the Grantor. The rules shall be prepared in cooperation with the Grantee, and must meet the agreement of the Grantee. The rules shall, at a minimum, provide for:

(1) Access on a first-come, first-served, non-discriminatory basis for all residents of the franchise area.

(2) Prohibition of commercial or political use.

(3) Prohibition of any presentation of obscene or indecent material.

(4) Public inspection of the log of producers, which shall be retained by the Grantee for a period of four years.

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

(6) Free use of such reasonable amounts of channel time, cable casting facilities, and technical support as are provided for in the Franchise Agreement.

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

E. Reservation by Grantor. The Grantor reserves the right, at its discretion, from time to time, to determine if the entities described in Sections 4.04.050C and 4.04.050D above are performing their purposes in a manner satisfactory to the Grantor, and if they are not, the Grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in Sections 4.04.050C and 4.04.050D, and elsewhere herein.

F. Rates.

(a) The Grantee shall establish rates for its services that shall be applied fairly to all subscribers in the franchise area.

(b) Schedule of Rates. The Grantee shall maintain and file with the Grantor a complete schedule of subscriber rates including all fees and charges for services. The Grantee shall notify the Grantor at least 30 days prior to any change in rates.

(c) Disconnections. There shall be no charge for disconnection from the system. However, if a subscriber has failed to pay properly due monthly fees or if a subscriber disconnects for seasonal periods, the Grantee may require, in addition to full payment of any delinquent fees, a reasonable fee and/or deposit for reconnection.

G. Annual Review of Quality of Service. At Grantor's sole option, within 90 days of the first anniversary of the effective date of each franchise, and each year thereafter for the next three years, thence every third year throughout the term of the franchise, the Grantor and Grantee shall meet publicly to review the performance, quality of service, and comparative range of services provided by the cable communications system. The reports required in Section 4.04.090 regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments during the review meetings, either orally or in writing, and these shall be considered.

(a) Within 30 days after the conclusion of the quality of service review meetings, Grantor shall issue a report with respect to the adequacy of system performance and quality of service. If material and sustained inadequacies are found, Grantor may direct Grantee to correct said inadequacies within a reasonable period of time.

(b) Failure of Grantee, after due notice, to correct or commence correction of said inadequacies shall be considered a material breach of the franchise, and Grantor may, at its sole discretion, exercise any remedy provided in, and in the manner provided by, the Franchise Agreement.

(Ord. 432, 11-12-86)

Except as otherwise provided by sections in the Franchise Agreement headed "Liability Insurance and Indemnification," "Security Fund," "Force Majeure: Grantee's Inability to Perform," "Hold Harmless," and all other relevant sections of the Franchise Agreement, and only to the extent so provided by said sections, the Grantee shall comply with the following:

A. Construction Bond.

(a) Within 30 days after the granting of a franchise and prior to the commencement of any construction work by the Grantee, the Grantee shall file with the Grantor a construction bond in the amount specified in the Franchise Agreement in favor of the Grantor and any other person who may claim damages as a result of the breach of any duty by the Grantee assured by such bond.

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

(c) In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages.

B. Performance Bond.

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

(b) Such bond as contemplated herein shall be in the form approved by the Grantor.

(c) In no event shall the amount of said bond be construed to limit the liability of the Grantee for damages.

C. Security Fund.

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

The security fund may be assessed by the Grantor for purposes including, but not limited to, the following:

(1) Failure of Grantee to pay Grantor sums due under the terms of the franchise.

(2) Reimbursement of costs borne by the Grantor to correct franchise violations not corrected by Grantee, after due notice.

(3) Monetary remedies or damages assessed against Grantee due to default or violation of franchise requirements.

(b) At Grantor's sole option, all or some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.

(c) Within 30 days after notice to it that any amount has been withdrawn by the Grantor from the security fund pursuant to subsection (a) of this section, the Grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.

(d) If the Grantee fails, after 10 days' notice to pay to the Grantor any franchise fee or taxes due and unpaid; or, fails to pay to the Grantor within such 10 days, any damages, costs, or expenses which the Grantor shall be compelled to pay by reason of any act or default of the Grantee in connection with the franchise; or fails, after 30 days' notice of such failure by the Grantor to comply with any provision of the franchise which the Grantor reasonably determines can be remedied by an expenditure of the security fund, then Grantor may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the Grantor shall notify the Grantee of the amount and date thereof.

(e) The security fund deposited pursuant to this section shall become the property of the Grantor in the event that the franchise is revoked for cause by reason of the default of the Grantee in accordance with the procedures of Section 4.04.040N above. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than 90 days after the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the Grantee. The Grantee shall be entitled to any interest accrued on the cash portion of the security fund.

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

D. Indemnification.

(a) The Grantee shall, by acceptance of any franchise granted, indemnify, defend, and hold harmless the Grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages or other relief, costs, and attorneys' fees in any way arising out of or through or alleged to arise out of or through:

(1) The act of the Grantor in granting the franchise; and

(2) The acts or omissions of Grantee, its servants, employees, or agents including, but not limited to, any failure or refusal by Grantee, its servants, employees or agents to comply with any obligation or duty imposed on Grantee by this ordinance or the Franchise Agreement.

(3) The exercise of any right or privilege granted or permitted by this ordinance or the Franchise Agreement.

Such indemnification shall include, but not be limited to, all claims arising in tort, contracts, infringements of copyrights, violations of statutes, ordinances, or regulations or otherwise.

(b) In the event any such claims shall arise, the Grantor or any other indemnified party shall tender the defense thereof to the Grantee; provided, however, that the Grantor in its sole discretion may participate in the defense of such claims at its expense, and in such event, Grantee shall not agree to any settlement of claims without Grantor approval.

E. Insurance.

(a) The Grantee shall maintain throughout the term of the franchise insurance in amounts consistent with industry standard practices, and otherwise fully adequate to meet the insurance needs specific to the operation of the cable television system in Hillsborough. The minimum levels of insurance coverage in any event shall be as follows:

(1) Worker's Compensation Insurance. Such coverage as may be required by the worker's compensation insurance and safety laws of the State of California and amendments thereto, and in the sums specified in the Franchise Agreement.

(2) Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage, and broadcaster's liability, shall be maintained in the sum(s) specified in the Franchise Agreement.

(3) Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, non-ownership and hired care coverage as well as owned vehicles with coverage for bodily injury and property damage, shall be maintained in the sum(s) specified in the Franchise Agreement.

(b) The Grantee shall furnish the Grantor annually with copies of such insurance policies or certificates of insurance.

(c) Such insurance policies provided for herein shall name the Grantor, its officers, boards, commissions, agents, and employees as additional insured, shall be primary to any insurance carried by Grantor, and shall contain the following endorsement:

"It is hereby understood and agreed that this insurance policy may not be cancelled or modified by the surety or the intention not to renew be stated by the surety until 30 days after receipt by the City by registered mail or written notice of such intention to cancel, modify, or not renew."

(d) The minimum amount set forth in the Franchise Agreement for such insurance shall not be construed to limit the liability of the Grantee to the Grantor under the franchise issued hereunder to the amounts of such insurance.

(e) All insurance carriers providing coverage under (a) above shall be duly licensed to operate in the State of California.

In the event of any conflict between this Section 4.04.060 and the Franchise Agreement cited hereinabove, the Franchise Agreement shall control.

(Ord. 432, 11-12-86)

A. System Design. The cable communications system shall be constructed in accordance with the design, construction, and/or reconstruction requirements contained in the Franchise Agreement.

B. Geographical Coverage. The Grantee shall design and construct the cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school, and public agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the Franchise Agreement. Cable system construction and provision of service shall be nondiscriminatory.

C. Cable casting Facilities. The Grantee shall provide cable casting facilities in accordance with the requirements of the Franchise Agreement.

D. System Construction Schedule. The Grantee shall comply with the requirements of the system construction or reconstruction schedule contained in the Franchise Agreement.

E. Delay in Construction. Except as otherwise provided in the Franchise Agreement, Grantee shall make a good faith and diligent effort to obtain all necessary permits and clearances. Within two months after the effective date of a franchise, Grantee shall report to Grantor its estimate of the initial construction or reconstruction date. The initial date estimated after two months may be used by Grantor as the presumptive construction or reconstruction starting date, with all construction requirements based on that date, provided, however, the Grantee may adjust its estimated initial date upon a showing of delays which are beyond its reasonable control or which are not reasonably foreseeable.

F. Remedies for Delay in Construction. Except as otherwise provided in the Franchise Agreement, the Grantor may at its sole option, apply any or all of the remedies in connection with delays in system construction as specified in Section 4.04.130 herein.

G. Provision of Service. After service has been established by activating trunk cables and electronics for any area, the Grantee shall provide service to any requesting subscriber within that area within 90 days from the date of request.

H. Undergrounding of Cable. Cables shall be installed underground at Grantee's cost where utilities are already underground in accordance with the provisions of the Franchise Agreement. Previously installed aerial cable shall be undergrounded and relocated in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction.

I. New Development Undergrounding. In cases of new construction or property development where utilities are to be placed underground, upon request by the Grantee, the developer or property owner shall give Grantee at least 30 days' notice of the particular date on which open trenching will be available for Grantee's installation of conduits, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching.

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

J. Street Occupancy.

(a) Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately-owned property until the written approval of the Grantor is obtained, such approval not to be unreasonably withheld by Grantor. However, no location of any pole or wire holding structure of the Grantee shall be a vested interest, and any wire and equipment owned by Grantee shall be removed or modified by the Grantee at its own expense whenever the Grantor determines that the public convenience would be enhanced thereby.

(b) Grantee shall notify the Grantor at least 10 days prior to the intention of the Grantee to commence any construction in any streets. The Grantor shall cooperate with the Grantee in granting and/or obtaining any permits required; provided that such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the Grantor.

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

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

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

(f) Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the Grantor. Trimming of trees on private property shall require reasonable notice to the property owner, and, to the extent allowed by applicable law, shall be subject to the same rights and restrictions as are applicable to public utilities.

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

(h) Upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this ordinance to be done in any street, within the time prescribed and to the satisfaction of the Grantor, the Grantor may, at its option, cause such work to be done and the Grantee shall pay to the Grantor the cost thereof in the itemized amounts reported by the Grantor to Grantee within 30 days after receipt of such itemized report.

(i) The Grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the Grantor.

K. Construction and Technical Standards.

(a) Construction Standards.

(1) Grantor Codes and Permits. Grantee shall comply with all applicable Grantor construction codes and permit procedures, copies of which shall be provided to Grantee by Grantor within 10 days of effective date of the Franchise Agreement. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction or reconstruction of the cable system.

(2) Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of federal and state Occupational Safety and Health Acts and any amendments thereto as well as all state and local codes where applicable.

(3) Compliance with Pole Attachment Standards. All aerial construction shall comply with the practices included in the Bell System Code of Pole Line Construction.

(4) Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable, and installed in accordance with the provisions of the National Electrical Code (National Bureau of Fire Underwriters) and the National Electrical Safety Code (National Bureau of Standards), as amended, and all applicable state and local codes.

(5) Antennas and Towers. Antenna supporting structures (towers) shall be signed for the proper loading as specified in Electronics Industry Association's R.S.222-A specifications.

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

(7) Construction Standards and Requirements. All of the Grantee's plant and equipment, including but not limited to, the antenna site, headend and distribution system towers, house connections, structures, poles, wires, cable, coaxial cable, fixtures, and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices as specified by Grantee's proposal, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the Grantor may deem proper to make, or to interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.

(8) Safety, Nuisance Requirements. The Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failure and accidents which are likely to cause damage, injury, or nuisance to the public.

(b) Technical Standards. The Cable Communications System shall meet all technical guidelines of the FCC, and all standards contained in the Franchise Agreement.

(c) Test and Compliance Procedure. The Grantee shall submit, within 60 days after the effective date of the Franchise Agreement, a detailed test plan describing the methods and schedules for testing the cable communications system on an ongoing basis to determine compliance with the provisions of the Franchise Agreement. The tests shall be in general conformance with the provisions of the Standards of Good Engineering Practices for Measurements on Cable Television Systems, issued by the National Cable Television Association, and performed at intervals no greater than 12 months. The tests may be witnessed by representatives of the Grantor, and written test reports shall be submitted to the Grantor. If more than 10% of the locations tested fail to meet the performance standards, the Grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. Repeated, uncured, and unexcused failures of more than 10% of the locations may result, at the Grantor's option, in appropriate remedies.

(d) Special Tests. Additional tests will be made on the basis of major complaints received or other material evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The Grantor shall endeavor to arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to subscribers.

L. Areawide Interconnection. Except as otherwise provided in the Franchise Agreement:

(a) Interconnection Required. The Grantee shall interconnect public usage channels of the cable communications system with any or all other cable systems in adjacent area, upon the directive of the Grantor, based upon public benefits that Grantor believes will be achieved by such interconnection. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.

(b) Interconnection Procedure. Upon receiving the directive of the Grantor to interconnect, the Grantee shall immediately initiate negotiations with the other affected system or systems, and shall report to the Grantor the results of such negotiations no later than 60 days after initiation.

(c) Relief. The Grantee may be granted reasonable extensions of time to interconnect or the Grantor may rescind its order to interconnect upon petition by the Grantee to the Grantor. The Grantor may grant said request if it finds that the Grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

(d) Cooperation Required. The Grantee shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state, or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise area.

(e) Initial Technical Requirements to Assure Future Interconnection Capability.

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

(2) Grantee shall provide local origination and access equipment that is compatible throughout the area so that videocassettes or videotapes can be shared by various systems.

(3) Grantee shall make every effort, insofar as it is feasible, to provide services compatible with subscriber equipment, such as cable-ready television sets, videocassette recorders, stereo systems, etc.

(Ord. 432, 11-12-86)

A. Services to be Provided. The Grantee shall provide the initial services listed in the Franchise Agreement. Services shall not be reduced without 30 days' prior written notification to Grantor.

B. Basic Cable Service. The "Basic Cable Service" shall include any service tier which includes the retransmission of local and other television signals, as provided in the Franchise Agreement.

C. Basic Radio Service. The "Basic Radio Service" shall include the provision of all audio services designated in the Franchise Agreement, including retransmission of local broadcast FM radio signals and cablecast FM signals.

D. Institutional Service. If and to the extent specified in the Franchise Agreement, the "Institutional Service" shall include the provision of transmission and/or reception services to institutional users, on a commercial use basis at established rates. Services may include the distribution of video or non-video signals.

E. Additional Subscriber Services. "Additional Subscriber Services," not included in the services specified above, may be provided, either within the basic cable service rates, or on a premium basis, subject to applicable law.

F. Local Origination Channel(s). The Grantee shall operate any cable casting studios required in the Franchise Agreement on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests. The primary emphasis for the local origination channel(s) shall be on providing community-focused programming that is unavailable to viewers on broadcast television channels.

G. Public, Educational, and Government (PEG) Access Facilities. The Grantee shall provide the PEG access facilities including channel capacity, necessary interface equipment, and cabling, specified in the Franchise Agreement to permit operation of PEG programming to the extent specified in the Franchise Agreement.

H. Cable Channels for Commercial Use. The Grantee shall designate channel capacity for commercial use as and to the extent required by the Franchise Agreement and applicable law.

(Ord. 432, 11-12-86)

A. Open Books and Records. The Grantor shall have the right to inspect at any time during normal business hours, and with reasonable notice, all books, records, maps, plans, service complaint logs, performance test results, and other like materials of the Grantee which relate to the operation of the franchise.

If any of such books or records are not kept in the local office, or upon reasonable request made available to the Grantor, and if the Grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of Grantor's duties hereunder, then appropriate sections of said books and records shall be copied and sent to Grantor at Grantee's expense.

B. Records Required.

(a) The Grantee shall at all times maintain:

(1) The complaint file required by Section 4.04.100.F herein.

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

C. Rights of Individuals.

(a) Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of income, race, color, religion, national origin, age, or sex. Grantee shall comply at all times with all other applicable federal, state, and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this ordinance by reference.

(b) Grantee shall strictly adhere to the equal employment opportunity requirements of federal, state, and local laws and regulations in effect on the date of the franchise grant, and as amended from time to time.

(c) The Grantee's policy with regard to personally identifiable information shall be consistent with federal law.

D. Continuity of Service Mandatory.

(a) It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the Grantee are honored fully, and in a timely manner. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the system, the Grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service for a reasonable period of time.

In the event of a change of franchisee, or in the event a new operator acquires the system, the Grantee shall reasonably cooperate with the Grantor, new franchisee, or operator in maintaining continuity of service to all subscribers. During such period, Grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system.

(b) In the event Grantee fails to operate the system for seven consecutive days without prior approval of the Grantor or without just cause, the Grantor may, at its option, operate the system or designate an operator until such time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator is selected. If the Grantor is required to 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 reimburse the Grantor for all reasonable costs or damages in excess of the revenues collected by the Grantor that are the result of the Grantee's failure to perform.

E. Grantee Rules and Regulations. The Grantee shall have the authority to promulgate such rules, regulations, terms, and conditions governing the conduct of its business as shall be reasonably necessary to enable the Grantee to exercise and protect its rights and perform its obligations under the franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or applicable local, state, and federal law, rules, and regulations. Such rules, regulations, terms, and conditions shall be filed with the Grantor.

F. Uniform and Vehicle Identification. Every employee of the Grantee or its construction contractors or subcontractors shall be clearly identified with the name of Grantee visible to the public as a representative of the Grantee. Every vehicle of the Grantee or its construction contractors or subcontractors shall also be clearly marked. Grantee employees and agents shall also wear an identification badge with the agent's name and photograph.

G. Local Purchasing and Hiring Policy. Grantee shall establish a policy of employing City residents within its own operations, and/or utilizing City-based firms for purchases and construction subcontractors, to the extent feasible.

(Ord. 432, 11-12-86)

A. Requests for Cable Service and Repairs.

(a) The Grantee shall maintain a local or regional office which shall be open during all usual business hours, have a publicly listed toll-free telephone, and be so operated to receive requests for initiating cable service and requests for repairs or adjustments on a 24-hour-a-day basis, seven days a week.

(b) The Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. A written log or an equivalent shall be maintained for all service interruptions and requests for cable service as requested by Section 4.04.040.

(c) The Grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service as follows:

(1) System outage: Within two hours of receiving subscriber calls which by number identify a system outage of sound or picture of one or more channels, affecting all the subscribers of the system or a considerable number thereof.

(2) Isolated outage: Within 24 hours of receiving a request for service identifying an isolated outage of sound or picture for one or more channels.

(3) Inferior reception quality: Within 48 hours of receiving a request for service identifying a problem concerning picture or sound quality.

Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at a service location, and in the case of (1), (2), and (3) above, leaves written notification of such arrival.

No charge shall be made to the subscriber for this service unless the service request can be demonstrated to be both repeated and non-cable system in origin.

B. Complaint Procedure.

(a) Complaints to Grantee. Grantee shall establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the Grantor. The written procedure shall prescribe the manner in which a subscriber may submit in writing a complaint that Grantee has violated any provision of this ordinance, or the terms and conditions of the subscriber's agreement with Grantee. At the conclusion of Grantee's investigation of a subscriber complaint, but normally not more than 10 days after receiving the complaint, Grantee shall notify the subscriber in writing of the results of the investigation and its proposed action or resolution, if any. The Grantee shall also notify the subscriber of the subscriber's right to file a complaint with the Grantor in the event the subscriber is dissatisfied with the Grantee's decision. Grantee's procedures shall be filed with the Grantor. No other proceedings to resolve subscriber complaints shall be undertaken until the procedure established by this section has been exhausted.

(b) Complaints to Grantor. A subscriber who is dissatisfied with Grantee's proposed decision or who was not sent a written decision within the 30-day period shall be entitled to have the complaint reviewed by Grantor. The subscriber shall initiate the review by filing a written complaint together with the Grantee's written decision, if any, with the Grantor and by notifying the Grantee of the filing. The subscriber shall make such filing and notification within 10 days of receipt of Grantee's decision or within 10 days of the expiration of the 30-day period, whichever is earlier.

C. Review by Grantor. The Grantor shall determine, solely upon a review of a subscriber complaint and the Grantee's decision, if any, whether further action is warranted. In the event the Grantor does not initiate further proceedings within 15 days of the filing of the complaint, the Grantee's proposed action or resolution shall be final. If the Grantor decides to initiate further investigation, Grantor shall require the Grantee and the subscriber to submit, within 120 days of notice thereof, a written statement of the facts and arguments in support of their respective positions. The Grantee or the subscriber may request in such statement that a hearing be conducted by the Grantor. A hearing, if requested, shall be conducted by the Grantor following reasonable notice in writing specifying the time and place for such hearing. The hearing shall be conducted informally, and the parties may offer any evidence pertinent to the dispute. The parties shall produce any additional evidence, including testing reports from the Grantee, which the Grantor may deem necessary to an understanding and determination of the dispute. The Grantor shall issue a written decision within 15 days of receipt of the written statements or, if a hearing is requested, within 15 days of the conclusion of the hearing, setting forth the basis of its decision. The Grantor's decision shall be final unless appealed by the Grantee to arbitration.

D. Appeals to Arbitration. Any final decision or action of the Grantor relative to a subscriber complaint, including the imposition of damage, if any, may be further appealed by Grantee or the subscriber within ten (10) days of such decision or action by delivering written notice of appeal to the Grantor and the subscriber or Grantee. The Grantor shall notify the subscriber and the Grantee of the notice of appeal. The appeal shall be heard by a three-person arbitration panel. The first arbitrator shall be chosen by the Grantor, and the second arbitrator shall be chosen by the Grantee within ten (10) days of notice of the Grantor's selection. The third arbitrator shall be chosen by the first two arbitrators within ten (10) days after selection of the second arbitrator. The appeal shall be conducted in accordance with procedure established by the arbitration panel. The decision of the panel shall be final. The losing appellant shall pay all costs of both parties.

E. Complaint Notification. Grantee shall provide written notice to each subscriber at least once every calendar year describing the procedure established by Grantee for resolving subscriber complaints and of the subscriber's right to have Grantee's response to a subscriber complaint reviewed by the Grantor in accordance with the provisions of this ordinance. The notice shall include the name, business address, and business telephone numbers of Grantee's office and of the Grantor office designated to receive complaints.

F. Complaint Log. Grantee shall maintain a file of all subscriber complaints.

G. Remedies for Violations. The Grantor or the arbitration panel may, as a part of a subscriber complaint decision issued under the provisions of this ordinance, impose damages on the Grantee as specified in the Franchise Agreement. Damages may be imposed only if the Grantor and the arbitration panel find that the Grantee has arbitrarily refused or failed without justification to comply with the provisions of this ordinance or the Franchise Agreement.

(Ord. 432, 11-12-86)

A. Right of Inspection of Records. There shall be kept in the Grantor's office a separate record for the franchise, which record shall show the items set forth in Section 4.04.140 herein. The Grantee shall provide such information in such form as may be reasonably required by the Grantor for said records.

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

C. Right of Intervention. The Grantor shall have the right of intervention in any suit or proceeding to which the Grantee is party, and the Grantee shall not oppose such intervention by the Grantor.

D. Right to Require Removal of Property. At the expiration of the term for which the franchise is granted, or upon its revocation, expiration, or failure to be renewed, as provided for in the Franchise Agreement, the Grantor shall have the right to require the Grantee to remove, at Grantee's own expense, all portions of the cable communications system from all streets and public ways within the franchise area.

(Ord. 432, 11-12-86)

A. Right of Grantee. In the event of any dispute between Grantee and Grantor over this ordinance or the Franchise Agreement, or with respect to any rights or obligations arising therefrom, Grantee shall first pursue and exhaust all available administrative remedies. Thereafter, Grantee may pursue any appropriate legal action.

(Ord. 432, 11-12-86)

A. Remedies for Franchise Violations. All remedies for franchise violations shall be as provided for in the Franchise Agreement.

B. Force Majeure; Grantee's Inability to Perform. In the event Grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified Grantor in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond Grantee's reasonable control or not reasonably foreseeable shall include those provided for in the Franchise Agreement, and shall further include, but shall not be limited to, acts of God and civil emergencies.

(Ord. 432, 11-12-86)

A. Annual Reports. At Grantor's sole option, within 60 days after the close of Grantee's fiscal year and upon reasonable notice to Grantee, the Grantee shall submit a written annual report, in a form approved by the Grantor including, but not limited to, the following information:

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

(b) A revenue statement, audited by an independent Certified Public Accountant, or certified by an officer of the Grantee;

(c) A current statement of costs of construction by component categories;

(d) A statement of projected construction costs for the next two years;

(e) A list of Grantee's officers, members of its board of directors, and other principals of Grantee;

(f) A list of stockholders or other equity investors holding 5% or more of the voting interest in the Grantee;

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

B. Copies of the results of any system proof-of-performance tests which are periodically performed by Grantee will be furnished to the Grantor.

C. Copies of Federal and State Reports. The Grantee shall submit to the Grantor copies of all material pleadings, applications, reports, communications, and documents, submitted by the Grantee to, as well as copies of all material decisions, correspondence, and actions by, any federal, state, and local courts, regulatory agencies, and other government bodies relating to its cable television operations within the franchise area. Grantee shall submit such documents to the Grantor simultaneously with their submission to such courts, agencies, and bodies, and within 10 days after their receipt from such courts, agencies and bodies. The Grantee hereby waives any right to claim confidential, privileged, or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of federal or state agencies and are thus exempt from disclosure by applicable law. Such confidential data exempt from public disclosure shall be retained in confidence by the Grantor and its authorized agents and shall not be made available for public inspection.

D. Public Reports. A copy of each of Grantee's annual and other periodic public financial reports and those of its parent shall be submitted to the Grantor within 10 days of their issuance.

E. Inspection of Facilities. The Grantee shall allow the Grantor to make inspections of any of the Grantee's facilities and equipment at any time upon reasonable notice, or, in case of emergency, upon demand without prior notice.

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

G. Failure to Report. The refusal, deliberate failure, or deliberate neglect of the Grantee to file any of the material reports required, shall be deemed a material breach of the franchise, and shall subject the Grantee to all remedies, legal or equitable, which are available to the Grantor under the Franchise Agreement.

H. False Statements. Any materially false or misleading statement or representation made knowingly by the Grantee in any report required under the franchise shall be deemed a material breach of the franchise and shall subject the Grantee to all remedies, legal or equitable, which are available to the Grantor under the Franchise Agreement.

I. Cost of Reports. All reports and records required under this or any other section shall be furnished at the sole expense of the Grantee.

(Ord. 432, 11-12-86)

A. Compliance with State and Federal Laws. Notwithstanding any other provisions of the franchise to the contrary, the Grantee shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof. Provided, however, if any such state or federal law or regulation shall require the Grantee to perform any service, or shall permit the Grantee to perform any service, or shall prohibit the Grantee from performing any service, in conflict with the terms of the Franchise Agreement or any law or regulation of the Grantor, then as soon as possible following knowledge thereof, the Grantee shall notify the Grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the Grantor or the franchise.

B. Severability. If any provision of this ordinance or any related agreements is held by any court or by any federal, state, or local agency of competent jurisdiction to be invalid as conflicting with any federal, state, or local law, rule, or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule, or regulation, and if said provision is considered non-material by the Grantor, said provision shall be considered a separate, distinct and independent part of this ordinance, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules, and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, provided that the Grantor shall give the Grantee 30 days' written notice of such change before requiring compliance with said provision.

C. Notices. Grantee shall maintain within the franchise area or regionally close thereto, throughout the term of the franchise, an address for service of notices by mail.

D. Captions. The captions to sections throughout this ordinance are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this ordinance.

E. No Recourse Against the Grantor. The Grantee shall have no recourse whatsoever against the Grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damages arising out of any provision or requirement of the Franchise Agreement or because of the enforcement of this ordinance or the Franchise Agreement, unless said actions or failures to act by Grantor or its officials, etc., violate any provision of the Franchise Agreement or this ordinance, or are otherwise illegal, unreasonable, or threaten the Grantee's enjoyment of its rights and privileges under the Franchise Agreement or this ordinance.

F. Nonenforcement by the Grantor. The Grantee shall not be relieved of its obligation to comply with any of the provisions of this ordinance by reason of any failure of the Grantor to enforce prompt compliance.

G. Waivers. Any provision of this ordinance may be waived by the Grantor, at Grantor's sole discretion, by City Council resolution. Grantee may submit a written request for waiver at any time, and the request placed on the agenda for a public hearing and decision. Grantor shall reach its decision not later than 120 days following the receipt of any waiver request.

(Ord. 432, 11-12-86)