Irvine Municipal Code Ch. 2 Local Cable Communications Franchises

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Editor's note— Ord. No. 07-14, §§ 1 and 3, adopted May 22, 2007, amended the Code by repealing former ch. 2, §§ 2-11-201—2-11-205, 2-11-207—2-11-211, 2-11-213—2-11-217, 2-11-219 and 2-11-220, and adding a new ch. 2. Former ch. 2 pertained to the Cablevision cable communications franchise, and derived from the Code of 1976, §§ 11.N-201—11.N-217; Ord. No. 92-2, adopted April 14, 92; Ord. No. 95-2, adopted February 14, 1995.

This chapter is known and may be cited as the "Local Cable Communications Franchises Ordinance."

(Ord. No. 07-14, § 3, 5-22-07)

A. For the purposes of this chapter, the following words, terms, phrases, and their derivations have the meanings given herein. Terms defined in the Cable Act shall have the same meanings herein unless expressly defined otherwise. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number.

Above ground facility or AGF means all structures, poles, pedestals, cabinets, electric meters and any other facility installed above surrounding grade in the PROW excluding antennas.

Affiliated person or affiliates means each person who falls into one or more of the following categories:

(i) Each person having, directly or indirectly, a controlling interest in company;

(ii) Each person in which company has, directly or indirectly, a controlling interest;

(iii) Each officer, director, general partner, limited partner holding an interest of five percent or more in a joint venture, or joint venture partner in company's cable system in the city; and

(iv) Each person, directly or indirectly, controlling, controlled by, or under common control with company; provided that "affiliated person" excludes the City, any limited partner holding an interest of less than five percent in a company, or any creditor of company, solely by virtue of its status as a creditor, and which is not otherwise affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with company.

Basic service or basic cable service or basic service tier means the lowest service tier which includes the retransmission of local television broadcast signals and public, educational, and governmental access channels.

Broadcast signal means a signal transmitted over the air to a geographically dispersed public audience and received by a cable system.

1984 Cable Act means the Cable Communications Policy Act of 1984.

1992 Cable Act means the Cable Television Subscriber Protection and Competition Act of 1992.

Cable Act means the Cable Communications Policy Act of 1984, as amended by the Cable Television Subscriber Protection and Competition Act of 1992 and by the Telecommunications Act of 1996.

Cable operator means any person or group of persons:

(i) Who provides cable service over a cable system in the City and, directly or through one or more affiliates, owns a significant interest in that cable system; or

(ii) Who otherwise controls or is responsible for, through any arrangement, the management and operation of a cable system in the City.

Cable review board means an entity formed by resolution of the City that reviews and hears issues relating to cable service, a cable franchise, or a company's operations and maintenance of services.

Cable service or service means:

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

(ii) Subscriber interaction which is required for the selection of or use of video programming or other programming service.

Cable system or cable communications system or 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 the City; but this term does not include:

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

(ii) A facility that serves subscribers without using any public right-of-way;

(iii) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934 (47 USC 201 et seq.), except that the facility shall be considered a cable system (other than for purposes of Section 621(c) of the Cable Act) to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services;

(iv) An open video system that complies with Section 653 of the Cable Act; or

(v) Any facilities of any electric utility used solely for operating its electric utility systems.

California Public Utilities Commission or CPUC means the California Public Utilities Commission.

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 television channel is defined by the FCC by regulation).

City means the City of Irvine, California, acting by and through its City Council, or a representative as the governing body may designate to act on cable matters on its behalf.

Company means the person granted a franchise to install, operate, maintain, or reconstruct a cable system and the lawful successors, transferees, or assignees of that person.

Company manager means an employee of the company who is designed by the company in writing to the City to be the contact person for the company in accordance with the provisions of this chapter.

Complaint means a dispute in which a subscriber notifies company of an outage or degradation in picture quality, billing or other issue pertaining to the subscriber's cable service which is not corrected during the initial telephone or service call.

Construction plan means a plan that describes in detail the designs, locations, and an estimated time schedule for the facilities.

Control or controlling interest means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the cable system or a company. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of 25 percent or more of any person (which person or group of persons is referred to as "controlling person"), or being a party to a management contract to manage the system, or any material portion thereof, in lieu of the company.

Converter or terminal means a device located at a subscriber's premises that converts signals from one frequency to another or otherwise processes signals for use by subscribers.

Department means the Department of Public Works.

Director means the Director of the City's Department of Public Works or his or her designee.

Drop means the cable connecting the cable system's plant to equipment at the subscriber's premises.

Excess capacity means the volume or capacity in any existing or future duct, conduit, manhole, hand hole or facility that is or will be available for use by third party facilities.

Facility or facilities means any cable or other wire or line, pipeline, pipes, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface location marker, pole, structure, utility, or other appurtenance, structure, property, or tangible thing owned, leased, operated, or licensed by company to provide services, excluding antennas, that are located or are proposed to be located on the PROW.

FCC means the Federal Communications Commission or its designated representatives.

Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environment, physical, legal, and technological factors.

Franchise means a written legal undertaking or action of the City which authorizes a specific person to use the City's streets and public ways for the purpose of installing, operating, maintaining, or reconstructing a cable system to provide cable service.

Gross annual revenue or gross annual receipts or gross receipts means all revenue which is received, directly or indirectly, by the company and by each affiliated person from or in connection with the distribution of any cable service, and any other service which may, under now or then applicable federal law, be included in the Cable Act definition for the purpose of calculating and collecting the maximum allowable franchise fee for operation of the cable system, whether or not authorized by any franchise, including, without limitation, leased or access channel revenues and programming fees of any kind, received, directly or indirectly, from or in connection with the distribution of any cable service. It is intended that all revenue collected by the company, and by each affiliated person, from the provision of cable service over the system, whether or not authorized by the franchise, be included in this definition. "Gross annual revenue" also specifically includes:

(i) The fair market value of any non-monetary (i.e., barter) transactions between company and any person, other than an affiliated person, but not less than the customary prices paid in connection with equivalent transactions;

(ii) The fair market value of any non-monetary (i.e., barter) transaction between company and any affiliated persons, but not less than the customary prices paid in connection with equivalent transactions conducted with persons who are not affiliated persons;

(iii) Any revenues generated from the provision of internet services and/or broadband services which utilize the cable system for delivery and must not be excluded pursuant to applicable law; and

(iv) Any revenue received, as reasonably determined from time-to-time by the City, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the franchise granted.

"Gross annual revenue" also includes any bad debts recovered. "Gross annual revenue" also includes all 100 percent advertising revenue (without exclusions for any commissions, fees, or other costs incurred in securing the revenue) which is received directly or indirectly by the company, any affiliated person, or any other person from or in connection with the distribution of any service over the system or the provision of any service-related activity in connection with the system, or allocable thereto based upon subscriber counts. "Gross annual revenue" does not include:

(i) The revenue of any person to the extent that the revenue is also included in the gross annual revenue of the company;

(ii) Taxes imposed by law on subscribers which the company is obligated to collect;

(iii) Amounts which must be excluded pursuant to applicable law;

(iv) Any PEG amounts itemized on a subscriber bill; and

(v) Any tax, fee or assessment of general applicability collected by a company from subscribers for pass-through to a government agency.

Pay cable, pay service, premium-service or pay television means programming choices (such as movie channels, pay-per-view, video on demand) offered to subscribers on a per-channel, per-program or per-event basis.

PEG channel means collectively, the channel capacity dedicated to noncommercial public, education or government access programming.

Person means any person, corporation, partnership, proprietorship, individual, or organization.

Plant means the transmitting medium and related equipment which transmits signals between the headend and subscribers, including drops.

Public property means all real property and improvements owned, operated or controlled by City, other than public right-of-way, within the City's jurisdiction. City property includes, but is not limited to, City Hall, police and fire facilities, recreational facilities, parks, libraries, street lights, and traffic lights.

Public right-of-way or right-of-way or PROW means any public street, public way, public place or rights-of-way, now laid out or dedicated, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of City.

Public utility means a CPUC regulated service provided by a public utility provider.

Public utility provider means a company that is regulated by and received a certificate of public convenience and necessity (CPCN) from the CPUC, to provide a CPUC regulated service.

Residential dwelling unit or dwelling unit means a home, mobile home, condominium, apartment, cooperative unit, and any other individual dwelling unit.

Service area or franchise service area means the entirety of the City of Irvine, or as further defined in the franchise.

Service interruption means the loss of picture or sound on one or more cable channels.

Service tier or tier means a category of cable service provided by a cable operator and for which a separate rate is charged by the cable operator, other than per channel or per event programming or legitimate packages of per channel or per event programming.

Street or streets means any street, road, highway, alley, lane, court, boulevard, or other similar PROW, including related facilities such as medians, parkways, sidewalks, traffic signals, and signs.

Subscriber means any resident, business, or other person that lawfully subscribes to and receives a cable service provided by the company by means of or in connection with its cable system.

Telecommunications Act means the Telecommunications Act of 1996.

Territory shall mean land within the City's boundaries at the time of this chapter's adoption and, if later annexed or reorganized into the City's boundaries, land added to the City at the time of annexation or reorganization.

Traffic control plan means a plan describing the manner in which company will manage vehicle, bicycle, and pedestrian traffic along affected streets when installing or maintaining facilities.

Unit means a discrete place where system services are used, such as a residence, apartment, office, store, etc.

B. Terms not defined. Words, terms, or phrases not defined herein shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language.

(Ord. No. 07-14, § 3, 5-22-07)

A. Authority to grant franchises. Pursuant to the Irvine City Charter (commencing with Section 1100), the City may grant a franchise to provide cable service to any person who offers to provide a system pursuant to this chapter.

B. Form. A franchise may, at City's sole option, take the form of an ordinance, agreement, license, permit, contract, resolution, or any other form elected by City.

C. Grants not required. Consistent with applicable State and federal law, no provision of this chapter requires the granting of a franchise when, in the opinion of the City, it is in the public interest not to do so.

D. Franchise purpose. The purpose of a franchise is to identify and authorize the operation of a cable communications system by a specific company, and to identify and specify those terms, conditions, definitions, itemizations, specifications, and other particulars of the agreement between the City and a company. In so doing, a franchise may clarify, extend, and interpret the provisions of this chapter. Where a franchise and this chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event this is not possible within reasonable limits, the franchise shall prevail. Unless otherwise specifically stated, no provision of this chapter shall be deemed to be contractually incorporated into any franchise granted hereunder.

E. Compliance with law. Neither this chapter nor a franchise granted under it relieves a company of any requirement of City, or of any ordinance, rule, regulation, or specification of City now or hereafter in effect pursuant to City's police power, including, but not limited to, the obtaining of a business license, and the payment of all permit and inspection fees required from time-to-time by the City.

F. Franchise non-exclusive. City may, at its option, grant one or more franchises to construct, operate, maintain, and reconstruct a system. These franchises shall constitute both a privilege and an obligation to provide the system and cable services required by this chapter and the franchise.

G. Duration. The term of any franchise, and all rights, privileges, obligations, and restrictions pertaining thereto, shall be specified in the franchise. Pursuant to Section 1302 of the City Charter, in no event shall the term of any franchise exceed 25 years. The effective date of any franchise shall be as specified in the franchise.

H. Use of public rights-of-way. A company may place and maintain within the public rights-of-way the property and equipment that conforms to the laws and standards of the City and as are necessary and appurtenant to the operation of the cable communications system.

I. Use of other utilities. Any person who provides a system or services as defined herein shall be deemed a company and must obtain a franchise. If a company uses distribution channels furnished by any telephone company, other public utility, or any other entity which are functionally equivalent to those used by a cable operator, the company shall be required to comply with all of the provisions of this chapter.

J. Restrictions against transfers. Unless prohibited by federal law, neither the franchise nor any rights or obligations of the company in or pursuant to the franchise, or the system shall be transferred, in part or as a whole, by assignment, trust, mortgage, lease, sublease, pledge or other hypothecation, and shall not be sold, transferred, leased, assigned, or disposed of, in part or as a whole, either by forced sale, merger, consolidation, or otherwise, nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any person, nor shall a transfer of control of the company or the system occur, either by act of the company, by operation of law or otherwise, in each case without the prior written consent of the City, which consent shall not be unreasonably withheld, and which shall be expressed by resolution and then only under conditions as may be therein prescribed.

K. Effect of unauthorized action.

1. The taking of any action described in Subsection J of this section without the prior consent of the City shall:

a. Be deemed a material breach of a franchise; and

b. Among other remedies available to the City, be subject to a liquidated damages assessment, which assessment shall be up to $5,000 a day until the taking of an action described in the foregoing Subsection J of this section is approved, or if not approved, until the prior ownership, control or other status quo ante is restored to a condition satisfactory to the City. The amount of the assessment shall be determined by the City.

2. If the City lawfully denies its consent to any action and the action has nevertheless been effected, the Council may revoke the franchise unless the ownership of the franchise and/or system or control of the company, the system or the franchise is promptly restored to its status prior to the unauthorized action or to a status acceptable to the City.

3. The grant or waiver of any one or more consents shall not render unnecessary any subsequent consent or consents, nor shall the grant of any consent constitute a waiver of any other rights of the City.

L. Additional restrictions.

1. The company shall not enter into any management contract or other arrangement for the management of the system, or sell or otherwise transfer the system, or any material portion thereof, with or without the franchise, without the prior written consent of the City.

2. Any use by the company of its own or an existing MATV, SMATV, MDS, DBS, or other system in any structure located in the service area for the distribution of any service which would otherwise be distributed over the system, shall not relieve the company of its obligation to construct, operate, and maintain the system in the structure pursuant to this chapter and applicable law.

M. Approval procedure.

1. The company shall promptly notify the City of any action or proposed action requiring consent of the City pursuant to this section. The company shall submit to the City an original and four copies, unless otherwise directed, of its petition on FCC Form 394, requesting consent, which petition shall fully describe the action or proposed action and clearly state the basis on which the petition should be approved. The petition shall also contain all reasonably appropriate documentation. The 120-day period to review a transfer request under Section 617 of the Cable Act shall not commence until all of the information required by FCC Form 394, any applicable State law, the franchise and this chapter is submitted to the City, including, but not limited to:

a. Name and address of the proposed transferee and identification of the ownership and control of the transferee, including: the names and addresses of the 10 largest holders of an ownership interest in the transferee and its cable affiliates and all persons with 20 percent or more ownership interest in the transferee and its cable system; the persons who control the transferee; all officers and directors of the transferee and its cable affiliates; and any other cable system ownership interest or each named person;

b. A demonstration of the transferee's technical ability and legal qualifications to construct, maintain, upgrade, and operate the system, including identification of key personnel;

c. The transferee must show that it, as well as any person which controls the transferee, has not, at any time during the 10 years preceding the submission of the petition, been convicted of any act or omission of character that the transferee cannot be relied upon to deal truthfully with the City and the subscribers of the system, or to substantially comply with its lawful obligations under applicable law;

d. The transferee must certify that no elected official of the City holds an interest, other than shares in a publicly traded company, in the transferee or an affiliated person of the transferee;

e. Current financial statements showing the financial condition of the system as of the date of the petition. If a company does not maintain financial records at the system level, then the company may provide financial statements of the smallest reporting entity which includes the system;

f. A statement prepared by a certified public accountant or responsible official of the transferee regarding the transferee's or assignee's financial ability to construct, upgrade, maintain and operate the system;

g. A description of the transferee's prior experience in cable system ownership, construction, and operation and identification of communities in which the transferee or assignee or entities under common control with the transferee have a cable franchise or license;

h. A description of the transferee's plans for meeting any system obligations under the franchise, including, but not limited to, any upgrade obligations, upgrade completion schedules, channel capacity requirements, technical design requirements, and performance characteristics;

i. An affidavit or declaration of the transferee or authorized officer certifying the truth and accuracy of the information in the petition or other written request, acknowledging the enforceability of the commitments of the petition or other written request, and certifying that the proposal meets all federal and State law requirements; and

j. A summary of the plans and commitments of the transferee to remedy specific and known defaults and violations, if any, in the operation of the system under the franchise.

2. At any time during the review process, the City reserves the right to require additional supporting documentation from the company or any other person involved in the action or proposed action. The company shall provide all reasonably requested assistance to the City in connection with any inquiry and, as appropriate, shall use its best efforts to secure the cooperation and assistance of all other persons involved in the action.

N. Conditions. As a condition to the granting of any consent required by this section, the City may require that the transferee execute an agreement, in a form and containing reasonable conditions as may be required by the City, specifying that the transferee assumes and agrees to be bound by all applicable provisions of the franchise. The execution of the agreement by the transferee shall in no way relieve the company, or any other transferor involved in any action, of its obligations pursuant to the franchise during its tenure as the franchisee up to and including the date of execution of the agreement without the consent of the City.

O. Reimbursement of processing and review costs. To the extent not prohibited by applicable law, a company shall reimburse the City for the City's reasonable processing and review expenses in connection with a transfer of the franchise or a change in control of the franchise, including, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, costs of consultants (including technical and legal experts), notice and publication costs, and document preparation expenses. A reasonable deposit in an amount determined by the City may be required by the City. In addition, prior to any transfer or change in control, a company shall reimburse the City for all of the City's expenses in connection with evaluating or negotiating a renewal of a company's franchise, whether or not the renewal was ever finalized or granted. The City may send a company an itemized description of all charges, and that company shall pay the amount within 45 days after the receipt of the description.

(Ord. No. 07-14, § 3, 5-22-07)

A. Reservation. The grant of the franchise does not limit the rights of City under State law with respect to its power of eminent domain.

B. Non-waiver or bar. Neither the granting of any franchise, nor any provisions of this chapter, shall constitute or be construed as a waiver or bar to the exercise of any governmental right or power by City.

C. Delegation of powers. Any right or power in, or duty retained by or imposed upon City, or any commission, officer, employee, department, or board of City, may be delegated by City to any officer, employee, department or board of City, or to another person or entity as City may designate to act on its behalf.

D. Right of inspection of construction. The City shall have the right to inspect and approve all construction, installation, or other physical work performed by company in the public rights-of-way and on private property consistent with standards approved by the City.

E. Right of intervention. The City shall have the right of intervention in any suit, proceeding or other judicial or administrative proceeding in which the City has any material interest, and to which a company is party.

F. Place of inspection. The City shall have the right to inspect company's local premises, and to request copies of all relevant information that is reasonably necessary for the exercise of City's regulatory authority, upon reasonable notice at any time during normal business hours. Any company records kept at another place shall, within 30 days of City's request, be made available to City for City's inspection and copying. All reports and records required pursuant to this chapter shall be furnished at the sole expense of company, except as otherwise provided in this chapter or the franchise.

(Ord. No. 07-14, § 3, 5-22-07)

A. Discriminatory practices prohibited. A company shall not deny cable service or otherwise discriminate against subscribers or others on the basis of race, color, religion, national origin, sex, age, disability, or characteristics of other protected classes.

B. Tapping and monitoring. A company shall not tap or monitor, or permit any other person controlled by company to tap or monitor, any cable, line, signal input device, or subscriber outlet or receiver, to collect personally identifiable information (as defined in Section 631 of the Cable Act) concerning any subscriber whatsoever without the prior written or electronic consent of the subscriber or a court order; provided, however, that a company may monitor customer service calls for quality control purposes and may conduct system-wide or individually addressed "sweeps" for the purpose of verifying system integrity, monitoring signal levels, or checking for unauthorized connections to the cable system, service levels, or billing-for-pay services.

C. Data collection.

1. Except for its own use, or in connection with the provision of cable services or for release of data to the City, the company shall not permit its system to be used for data collection purposes, nor shall it otherwise collect data which would reveal the commercial product or other preferences or opinions of an individual subscriber, members of their families, or their guests, licensees or employees, unless the company shall have received the prior written consent of subscriber.

2. The company shall not disclose or permit the release or sale of data on individual subscribers or groups thereof, but may disclose or permit the release or sale of aggregate data.

D. Disclosure of subscriber lists. The company shall not disclose, or sell, or permit the disclosure or sale of its subscriber list without the prior written consent of each subscriber on a list; provided that company may use its subscriber list as necessary for the construction, marketing, and maintenance of the company's services and facilities authorized by a franchise, and the billing of subscribers for cable services; and provided further that, consistent with applicable law, City may use company's subscriber list for the purpose of communication with subscribers in connection with matters relating to the operation, management, and maintenance of the cable system and for the audit of financial and other obligations pursuant to this chapter, any franchise, or other applicable law.

E. Disclosure of subscriber preferences. Company shall not disclose individual subscriber preferences, viewing habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency, governmental unit, or investigating agency without court authority or the prior written consent of the subscriber.

F. Terms of subscriber consent.

1. Any written consent given in accordance with Subsection D of this section shall be limited to a period of time not to exceed one year, or a term agreed upon by the company and the subscriber.

2. The company shall not condition the delivery or receipt of cable services to any subscriber on any consent.

3. A subscriber may at any time revoke, without penalty or cost, any consent previously given by delivering to the company in writing a statement of the subscriber's intent to so revoke.

G. Other persons affected. The prohibitions contained in Subsections A through E of this section, inclusive, of this section apply to a company, as well as to all of the following:

1. Officers, directors, employees, agents, and general and limited partners of the company;

2. Any person or combination of persons owning, holding, or controlling any corporate stock or other ownership interests in the company;

3. Any affiliated person; and

4. Any person, firm, or corporation acting or serving in the capacity of a holding or controlling company of the company.

(Ord. No. 07-14, § 3, 5-22-07)

A. Payments to city.

1. As compensation for any franchise to be granted, and in consideration of permission to use the City's streets and public rights-of-way for the construction, operation, maintenance, and reconstruction of a system, a company shall pay to the City the amounts and in the manner specified herein and in the franchise.

a. Payments due the City shall be computed quarterly, and shall be paid within 45 days after the close of each calendar quarter. The payment shall be accompanied by a report showing the basis for the computation and such other relevant facts as may be required by the City to determine the accuracy of the payment. A final annual reconciliation, and payment, if any, shall be delivered to City by company within 90 days after the end of each calendar year.

b. If any franchise payment or recomputed amount is not made on or before the dates specified above in Subsection a, company shall pay as additional compensation the greater of the following:

i. An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus one percent.

ii. A sum of money equal to $5,000 for each month, or part thereof, of delay, which sum shall also bear interest from the due date at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus one percent.

c. In addition to any late payment made pursuant to this section, if a payment is late by 60 days or more, company shall pay a sum of money equal to five percent of the amount due in order to defray additional expenses and costs incurred by City as a result of such delinquent payment.

d. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this chapter, or for any other performance by company of an obligation hereunder.

2. Payments of compensation made by a company to the City pursuant to the provisions of this chapter are in addition to, and exclusive of, any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect or subsequently adopted in accordance with State and federal law.

B. Financial security. The franchise shall require that the company provide financial security pursuant to this section. The City shall determine the appropriate level of financial security, which may include all of the following protections for the City against company default or failure to comply with this chapter or the franchise. The Director shall determine the appropriate level of financial security to adequately repair public facilities or public rights-of-way. This security shall include:

1. Security fund.

a. The City shall require the company to deposit into a bank account established by the City, and to maintain on deposit through the duration of the franchise term, security ("security fund") for the faithful performance by company of all of the provisions of the company's construction plan, compliance with this chapter, with all orders, permits and directions of the City, or any designated representative of the City having jurisdiction over company's acts or defaults, as security for the payment to the City of any claims, fees, liens, maintenance obligations relating to ground facilities, or taxes due the City which arise by reason of the construction, operation, and maintenance of the facilities, and to satisfy any actual or liquidated damages arising out of a breach. In lieu of a security fund, the City may accept a bond or letter of credit for an equivalent amount in a form and from a financial institution acceptable to the City.

b. If the company fails, after 45 days written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such 45 days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the company, or if company fails to comply with any provision of this chapter and the City determines that the failure was without just cause and, in a manner consistent with the procedures specified in this chapter, the Director reasonably determines that the default can be remedied by a withdrawal from the security fund or is nevertheless subject to liquidated damages, then, in any such event, the Director may immediately withdraw the amount thereof from the security fund, with interest and any liquidated damages. Upon such withdrawal, the Director shall notify the company of the amount and the date of withdrawal.

c. Within 30 days after notice to company that any amount has been withdrawn by City from the security fund, the company shall deposit a sum of money sufficient to restore the security fund to the original amount.

d. The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, and no action, proceeding or exercise of any right with respect to such security fund shall affect any other right the City may have.

2. Construction bond. Prior to issuance of any PROW permit to construct facilities in the public right-of-way, the Director shall require company to furnish proof of the posting of a faithful performance bond and/or labor and materials bond in favor of the City, with corporate surety approved by the Director in the sum specified in any PROW permit, and conditioned that the company shall well and truly observe, fulfill, and perform each term and condition of any PROW permit; provided, however, that such bond(s) shall not be required after certification by Director of the completion of construction. The corporate surety must be authorized to issue such bonds in the State of California, and the bond must be obtained and secured through an agent approved by the Director. During the course of construction, the amount of the bond(s) may from time-to-time be reduced, as provided in any PROW permit. Written evidence of payment of premiums shall be filed with the Director.

3. Letter of credit.

a. As required by a franchise, a company shall post an irrevocable letter of credit, issued by a bank, in the amount specified in the franchise. Said letter of credit shall incorporate wording enabling City to draw from time-to-time such funds as the City may determine to be necessary to satisfy any material defaults of company or to make any payments due City under or in connection with this chapter or company's franchise, upon not more than 10 days' written notice to the issuer of the letter of credit with a copy by certified mail to company. Said letter of credit shall further provide for 60 days' written notice by certified mail from its issuer to city of any pending expiration or cancellation. City shall be entitled to draw upon such letter of credit upon compliance with the procedures regarding letters of credit set forth in the franchise.

b. If City requires such a letter of credit, City shall pay all fees or other charges required to keep it in force and shall, within 30 days of any draw by City, restore its face value to the original amount.

c. All provisions herein applicable to bonds shall also apply to letters of credit.

(Ord. No. 07-14, § 3, 5-22-07)

A. Services to be provided. A cable system shall provide, as a minimum, the broad programming categories specified in the franchise.

B. Changes in services. Company shall inform City and its subscribers at least 30 days in advance of making any changes in rates, programming services or channel position in the system.

C. Non-discrimination.

1. A company shall not discriminate between or among subscribers within one type or class in the availability of services, at either standard or differential rates according to published rate schedules, except as otherwise authorized by law. No charges may be made for services except as listed in published schedules which are available for inspection by anyone at company's office, quoted by company on the telephone, and displayed or communicated to all potential subscribers.

2. The company shall furnish and maintain cable services to each person who makes a bona fide request to receive any programming service. Nothing in this chapter shall limit the right of the company to deny cable service to any household or individual which has a negative credit or service history with the company, which may include non-payment of bills or theft or damage to the company's equipment, or who has threatened or assaulted employees of the company in the course of their employment.

D. Prepayment. Company may not charge subscribers for services more than one month in advance unless an individual subscriber requests a longer period. Bills may be due and payable upon mailing but shall not be delinquent, and no late charge penalties shall be assessed, except as provided in State law. All bills and billing statements shall clearly indicate the billing period, and the actual due date.

E. Disconnect for cause. Company may disconnect a subscriber only for cause, which shall include, without limitation, the following:

1. Payment delinquency in excess of 45 days.

2. Willful or negligent damage to or misappropriation of company's property.

3. Monitoring, tapping, or tampering with company's system, signals, or service.

4. Threats of violence to company's employees or property.

F. Reconnection. Company shall, upon subscriber's written request, reconnect service that has been disconnected for payment delinquency when payment has removed the delinquency. If authorized by applicable law, a published standard charge may be made for reconnection. Company shall not be required to make more than three reconnections for the same subscriber if the disconnections involved were caused by payment delinquency within any previous 24-month period. Reconnection for disconnections covered by Subsections (E)(2), (3), and (4) shall be at company's sole discretion.

G. Installations.

1. Company shall promptly provide and maintain service as specified in the franchise to the residential structures in the service area, as defined in the franchise, upon request of the lawful occupant or owner.

2. Where a new drop is required to provide service, company shall advise each subscriber that the subscriber has the right to require that installation be done over any route on the subscriber's property, and in any manner the subscriber may elect which is technically feasible, consistent with the Building Code, and consistent with proper construction practices. If the subscriber requests installation other than a standard installation, then the subscriber may be required to pay the fee required in Subsection H of this section.

3. For purposes of this subsection, a standard installation shall include installation of drop cable with fittings up to 150 feet from the CATV distribution system measured along the cable from the centerline of the street or utility easement through the house wall or, at the subscriber's option, through the floor from a house vent or crawl space directly to the subscriber's television set with five feet of cable from the wall or floor entry to the TV set. Also included as part of a standard installation is the grounding cable, fine tuning of the television set in order to ensure the reception of cable service, and the provision by the company of the appropriate literature and information. If a connection requires more than a standard 150-foot aerial drop line, or requires an underground service connection, a resident shall be given the option of paying for a non-standard installation as set forth below.

4. After cable service has been established by activating trunk or distribution cables for any area, company shall provide cable service to any person requesting cable service in that area within nine calendar days from the date of request, provided that the company is able to secure all access rights necessary to extend service to that potential subscriber within that nine-day period on reasonable terms and conditions.

H. Nonstandard installations. For each non-standard installation, a company may charge the subscriber for the cost of material and labor in excess of that required for a standard installation. Company shall provide each subscriber a written estimate of all charges for a nonstandard installation prior to installation and obtain subscriber's written authorization in advance for all nonstandard installation charges.

I. Converters/terminals. At the time a converter or terminal is required for subscribers to have access to all services on its system, company shall make them available to subscribers for a fee. Company may require each subscriber who elects to install a converter or terminal to furnish a security deposit.

1. Each converter or terminal device shall be and remain the property of the company. Company shall be responsible for maintenance and repair of all equipment owned by company and may replace it as company may from time-to-time elect, except that subscriber shall be responsible for loss of or damage to any device while in the subscriber's possession.

2. Upon termination or cancellation of a subscriber's service, the subscriber shall promptly return company's property to company in the same condition as received excepting reasonable wear and tear.

3. Company may apply the security deposit against any sum due from subscriber for loss of or damage to a converter or terminal exceeding reasonable wear and tear. In the event that no security deposit has been required, the company may charge the subscriber for any damage exceeding reasonable wear and tear.

4. If company has no claim against the subscriber's security deposit, company shall return it, or the balance, to the subscriber within 30 days of return of the converter or terminal.

(Ord. No. 07-14, § 3, 5-22-07)

A. Promotion of undergrounding. It is the policy of City to promote undergrounding of facilities whenever and wherever feasible. Whenever existing facilities are located underground along a particular PROW, new facilities must be installed, at company's sole expense, underground along that PROW. Further, whenever any above ground facilities are located or relocated underground by a public utility provider along a particular PROW, other companies shall concurrently relocate company's facilities underground on a cost-sharing basis for all companies involved in a manner consistent with applicable law. No new above ground facilities will be allowed in areas where facilities are undergrounded.

B. Limits on above ground facilities (AGF). It is the additional policy of the City to limit the number and control the location of AGF used in conjunction with underground facilities consistent with the technical requirements for providing high quality service. Companies shall place all newly installed facilities underground or flush mounted vaults, whenever feasible. Companies shall coordinate with all affected property owners to locate all newly installed AGF to minimize inconvenience and disruption to residents.

C. Excess capacity. Facilities shall be installed within existing underground ducts or conduits whenever excess capacity is available on reasonable terms.

(Ord. No. 07-14, § 3, 5-22-07)

In addition to any agreement, license, permit or franchise required by this chapter or any other chapter of this Code, and in addition to any other permit or entitlement required by local, State or federal law, company shall obtain a PROW permit prior to performing any work in the PROW and shall pay all fees required by this Code.

(Ord. No. 07-14, § 3, 5-22-07)

An application for a PROW permit, along with payment of any fees or deposit required by the City, shall be filed with the Director, in the form and manner required by the Director and shall contain, at a minimum, all of the following:

A. The identity of company. If the application is made by an authorized agent of company, written authorization shall be provided.

B. Engineering plans, specifications and a network map of the facilities to be located within the PROW, including a map in electronic and/or other form required by the City. The plans and specifications shall show:

1. The location of all existing and proposed facilities in the PROW along proposed route, including the type and location of existing and proposed pedestals and other above ground facilities, along with, if required by the Director, photographs or artists renderings, of all above-ground visible equipment, from which their fully-dimensioned size must be apparent. The submission may be required to include a detailed description of the equipment included within the above-ground installation including the electronic components, natural gas generator, electrical fans, and the anticipated noise levels during winter and summer months and the emergency backup operations and the proposed maintenance schedule for the facilities. For all facilities, proof shall be made to the satisfaction of the Director that the public notice requirements of this chapter have been fulfilled or the manner in which they will be fulfilled.

2. The specific trees, structures, improvements, facilities and obstructions, if any, that company proposes to temporarily or permanently remove or relocate.

3. Reference to or documentation of company's franchise, CPCN or other legally established right to use the PROW for the services to be provided.

C. Excess capacity. If company is proposing an underground installation within new facilities to be constructed within the PROW, it shall agree to provide, upon request, information regarding any excess capacity that will exist in such ducts or conduits after installation of company's facilities, to the City or a subsequent permit applicant.

D. A construction plan. A construction disclosing, at a minimum, construction schedule, final completion date, and specific construction benchmark dates as to identified portions of the project and those items specified in Section 2-11-212.

E. A traffic control plan. In accordance with such guidelines established by the City.

F. A public notification plan. Companies may be required by the Director to provide reasonable advance notice to the public via a public notification plan of the proposed quantity, precise dimensions, design, color, type, potential noise, and location of above ground facilities pursuant to guidelines promulgated by the Director. The plan is subject to the prior approval of the Director. The guidelines shall take into account the area covered and impacts of the AGFs.

G. Certifications. Upon request, company shall provide copies of certifications, licenses, permits, franchises or other applicable approvals to construct and operate the facilities and to offer or provide the services. Company shall also provide a certification that the company will comply with all applicable local State and federal requirements in the installation, operation, maintenance, or removal of its facilities.

H. Contact with other companies. Company shall first seek to use technically compatible excess capacity of other companies by contacting the companies specified by the Director in writing. If use of excess capacity is not technically compatible, company shall provide an explanation to Director as to why any excess capacity cannot be used. It shall also provide reasonable advance notice to other companies specified by the Director in writing and provide them an opportunity to jointly install facilities in the property which is proposed to be the host of company's facilities.

I. Other. Other information relating directly to PROW management and use as may reasonably be required by the Director.

(Ord. No. 07-14, § 3, 5-22-07)

A. Each PROW permit shall be subject to the criteria and provisions of this chapter. The PROW permit shall be promptly issued upon review of a completed application and a determination by the Director that company has complied or will comply with all applicable requirements of this chapter.

B. Criteria. The determination to grant or deny a PROW permit shall be based upon the criteria set forth in this section. The Director shall consider the following:

1. The capacity of the PROW to accommodate company's proposed facilities and facilities known to be needed in the future.

2. The capacity of the PROW to accommodate known additional facilities if the permit is granted.

3. The damage or disruption, if any, to the PROW or any public or private facilities, improvements, aesthetics, services, pedestrian or vehicle travel or landscaping if the permit is granted.

4. The availability of technically compatible, existing facilities or excess capacity, or alternate routes and/or locations for the proposed facilities which would be less disruptive or which better protects the PROW for its dedicated use.

5. The adverse aesthetic or blighting effect of any above ground facilities by virtue of their design, color, dimensions, locations, and quantity.

6. Compliance with the requirements of this chapter, the Code and other federal, State and local requirements.

7. Completion of any environmental review required under the California Environmental Quality Act (CEQA) (Public Resources Code § 21000 et seq.).

8. The extent and legal basis to which company has a legal right to use the PROW.

C. Modifications. Any approval of a permit may require modifications to the proposed activities pursuant thereto as a result of the Director's consideration of the factors set forth above, including by limiting or changing the number, size, color, and location of the above ground facilities proposed to be installed and/or requiring the installation of landscape or other camouflaging techniques or requiring undergrounding to minimize adverse visual impacts and obstructions.

D. Fees. As a condition of the issuance of any permit, company shall pay and submit all applicable cost-based fees assessed by resolution of the City Council, which may be amended from time-to-time.

E. Right to inspect. Upon the provision of reasonable notice by the city, company shall allow the City the unrestricted right to inspect company's work at any time the city deems appropriate.

F. Duration and validity. Permits shall be void if the work has not begun within 90 calendar days of the start date specified in the permit, if the excavation is not prosecuted diligently to its conclusion, or if the excavation, including restoration, has not been completed within the specified duration; provided, however, that the Director may, upon good cause, issue extensions to the start date, the duration of excavation, or both upon request from company.

G. Permit available on-site. The permit or a photo duplicate shall be available for review at the site of the excavation for the duration of the excavation and shall be shown, upon request, to any police officer or any employee of a City agency, board, commission, or department with jurisdictional responsibility over activities in the PROW.

(Ord. No. 07-14, § 3, 5-22-07)

A. Submittal requirements. Not less than 30 days prior to proposed commencement of any work in the PROW, company shall submit to the Director for his or her review a construction plan containing the following information:

1. Date for work completion. Company shall identify a completion date for the work and shall complete the system construction authorized by the PROW permit no later than the date specified in the permit. If company requires additional time to complete work, it shall so notify Director and Director may grant a work completion extension.

2. Facility information. The construction plan shall include photographs or artist renderings of all proposed facilities for the work area as well as their locations, dimensions, and color. Any modifications to construction plans must be reviewed and approved by Director before modifications can be implemented by company. In addition, company shall provide the Director with engineering base maps identifying company's existing underground and aerial utility facilities, poles, trench routes, and locations for above-ground equipment in the work area within the construction plan in both electronic form (digital or otherwise as specified by director) to the extent available and hard-copy form.

3. Hours of construction. All construction shall be accomplished and maintained between the hours specified by the Director. Construction shall not interfere with the existing or known future services of the City or private or public third parties.

4. Traffic control plan. At the request of Director, company shall furnish a detailed traffic control plan to the Director prior to the commencement of any construction activities which may interfere with traffic in arterial streets a traffic control plan.

5. Telephone contact. Company shall provide the Director with a telephone contact number, answered 24 hours a day during the construction period, to enable the Director to report any concerns regarding construction of the facilities. After business hours such calls will be routed to an on-call supervisor. In the event that the Director reports any concerns to company, company shall respond in a timely manner. Company shall immediately correct any adverse impact to the City's use or operations or the use or operations of a third party caused by company construction activities in the PROW at no cost to the City. Safety violations will be cause for immediate project shut-down.

B. Emergency excavation. Nothing contained in this section shall be construed to prevent company from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by company when such necessity arises during days or times when the Department is closed. In the event that company takes any action to excavate or cause to be excavated the PROW pursuant to this section, company shall apply for an emergency permit within 24 hours after the Department's offices first opened. The applicant for an emergency permit shall submit a written statement the basis of the emergency action and describe the excavation performed and work remaining to be performed.

C. Blanket permits. The Director may issue blanket permits to company to make excavations for utility service connections, for the location of trouble in utility conduits or pipes and for making repairs thereto, or for emergency purposes. Blanket permits shall be issued on a yearly basis only, and shall authorize only excavations referred to in this section. Except as specifically provided otherwise in this chapter, excavations authorized by this section shall be subject to all fees and requirements of this chapter.

D. Construction status report. During construction, company shall, at the request of the Director, submit to the Director regular progress reports describing in detail the status of construction in relation to the construction plan. The first report shall be submitted within seven days after commencement of construction and shall be updated days thereafter, as may be required by the permit. Work plans shall be provided in advance to the Director for review and approval.

E. Notification. Company shall provide written notification to the Director of any construction and/or maintenance activities undertaken in PROW, whether undertaken pursuant to permit or otherwise, within five business days of commencement of such activities unless the activities have been previously reported to the Director.

F. Approvals of construction plan. No permits shall be issued until the construction plan is reviewed pursuant to all relevant public health, safety, and welfare criteria and approved by the Director.

(Ord. No. 07-14, § 3, 5-22-07)

A. All facilities of company shall be so located, constructed, installed, and maintained so as not to endanger, interfere with or limit the usual and customary use and/or traffic and travel upon the PROW as well as adjacent private property pursuant to a routing plan to be approved by the Director.

B. In the event company creates a hazardous or unsafe condition or an unreasonable interference with property, such company shall remove or modify that part of the facility to eliminate such condition from the subject property.

C. Company shall not place equipment where it will interfere with existing and known future City uses of the PROW, with the rights of private property owners as determined by the Director, with gas, electric, sewer or telephone fixtures, with water hydrants and mains, with sewers, storm drains or v-ditches, or any wastewater stations, with any traffic control system, or any other city facility.

D. Company, at its own expense and pursuant to a timeline approved by the Director, shall protect the PROW and support or temporarily disconnect or relocate any of company's facilities when necessitated by reason of:

1. Traffic conditions;

2. Public safety;

3. Temporary or permanent street closing not for the benefit of a private party;

4. Street construction or resurfacing;

5. A change or establishment of street grade; and

6. Installation of sewers, drains, water pipes, storm drains, lift stations, force mains, street light facilities, traffic signal facilities, tracks, or any other public use of the PROW.

E. It shall be the responsibility of company to mark its facilities with search wire if possible and to locate and mark or otherwise visibly indicate and alert others to the location of its underground facilities before employees, agents, of independent contractors of any entity perform work in the marked-off area. Company shall participate in and adhere to the practices of underground services alert ("USA") or its successor notification system and provide at least 48 hours prior notice to USA prior to any excavation.

(Ord. No. 07-14, § 3, 5-22-07)

A. Applicability. Each excavation and/or installation of AGF in the PROW pursuant to this chapter shall be performed in accordance with this chapter and with the standard plans and specifications of the Department and any Department orders or regulations, except where the Director, at his or her discretion, grants prior written approval to deviate from the standard plans and specifications, orders, or regulations. The Director shall develop guidelines to implement the granting of waivers authorized pursuant to this chapter.

B. Notices. The Director may require reasonable notice from company if company excavates, causes an excavation or proposes to install AGF in the PROW in a manner that, due to duration or location of the excavation, has the potential to disrupt traffic flow or impact adjacent properties, as follows:

1. Post and maintain notice at the site of the excavation. The notice shall include the name, telephone number, and address of company, a description of the excavation or installation to be performed and the duration of the excavation or installation. The notice shall be posted along any street where the excavation or installation is to take place at least 72 hours prior to commencement of the excavation or installation;

2. At least 10 calendar days prior to commencement of the excavation or installation, company shall provide written notice delivered by United States mail to each property owner on the street affected by the excavation or installation and each affected neighborhood and merchant organization that is listed in the latest assessor's roll for names and addresses of property owners shall be used for the mailed notice. This notice shall include the same information that is required for the posted notice pursuant to Subsection B.1 and the name, address and 24-hour telephone number of a person who will be available to provide information to and receive complaints from any member of the public concerning the excavation or installation; or

3. At least 10 calendar days prior to commencement of the excavation or installation, company also shall deliver a written notice to each dwelling unit on the block(s) affected by the excavation or installation. This written notice shall include the same information that is required for the written notice pursuant to Subsection B.2 of this section.

C. Notice for emergency excavation or installation. For emergency excavation or installation, company shall post and maintain notice at the site of the excavation or installation during the construction period. The notice shall include the name, telephone number, and address of company, a description of the excavation or installation to be performed, and the duration of the excavation or installation. The notice shall be posted along any street where the excavation or installation is to take place.

D. Marking of subsurface facilities. If company excavates in the PROW, it shall comply with the requirements of the underground service location regarding notification of excavation or installation and marking of subsurface facilities. Company shall provide underground service location with the assigned number of the permit to excavate or other information as may be necessary to properly identify the proposed excavation or installation.

E. Limits on excavation in the public right-of-way.

1. Scope. It is unlawful for company to make, cause, or permit to be made, any excavation in the PROW outside the boundaries, times, and description set forth in the permit.

2. Rock wheel and trenchless technology. Use of a rock wheel or other trenchless technology to excavate in the PROW is unlawful without prior written approval of the Director.

3. Single excavation maximum of 1,200 feet. No single excavation site shall be longer than 1,200 feet in length at any time except with the prior written approval of the Director.

4. Moratorium streets. The Department may not issue any permit to excavate in any street that has been reconstructed or resurfaced by the Department or any other owner or person in the preceding five-year period. However, the Director may, in his or her discretion, grant a waiver of this subsection for good cause. Good cause shall include the fact that the need to excavate arose in spite of company's full compliance with the coordination of excavation provisions. The Director is authorized to grant a waiver for an excavation that facilitates the deployment of new technology or new service as directed pursuant to official City policy. The Director shall issue his decision on a waiver within a reasonable period after receipt of a written request for a waiver.

F. Excavation sites. Company shall be subject to requirements for excavation sites that are set forth in Department orders or regulations, these orders or regulations shall include, but not be limited to, the following measures:

1. Protection of the excavation. Company shall cover open excavation with non-skid steel plates ramped to the elevation of the contiguous street, pavement, or other PROW, or otherwise protected in accordance with guidelines prescribed by the Department.

2. Housekeeping and removal of excavated material. Company shall keep the area surrounding the excavation clean and free of loose dirt or other debris in a manner deemed satisfactory to the City. Excavation sites shall be cleaned at the completion of each workday. In addition, company shall remove all excavated material from the site of the excavation no later than the end of each workday.

3. Storage of materials. Materials and equipment used for the excavation within seven calendar days may be stored at the site of the excavation, except that fill material, sand, aggregate, and asphalt-coated material may be stored at the site only if it is stored in covered, locked containers.

4. Hazardous material. Company shall be subject to hazardous material guidelines for data collection; disposal, handling, release, and treatment of hazardous material; site remediation; and worker safety and training. The guidelines shall require company to comply with all federal, State, and local laws regarding hazardous material purposes of this subsection. Hazardous material means any gas, material, substance, or waste which, because of its quantity, concentration, or physical or chemical characteristics, is deemed by any federal, State, or local authority to pose a present or potential hazard to human health or safety or to the environment.

5. Water quality management plans or stormwater pollution prevention plans. The Director may require the development and implementation of a WQMP or SWPPP for any excavation project.

G. Stop work orders, permit notification, permit revocation. If the Director has determined that company has violated this chapter or that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to public health, safety, or welfare, or when the Director determines that there is a paramount public purpose, the Director is authorized to issue a stop work order, to impose new conditions upon a permit, or to suspend or revoke a permit by notifying company of such action in a written, electronic, or facsimile communication.

H. Restoration of the PROW.

1. Restoration. In any case in which the sidewalk, street, or other PROW is or is caused to be excavated, company shall restore or cause to be restored such excavation in the manner prescribed by the orders, regulations, and standard plans and specifications of the Director. At a minimum, trench restoration shall include resurfacing to a constant width equal to the widest part of the excavation.

2. Backfill, replacement of pavement base and finished pavement. Activities concerning backfilling, replacement of pavement base, and finished pavement shall be performed in a manner specified by the orders, regulations, and standard plans and specifications of the Director. In addition, these activities shall subject to the following requirements:

a. Backfill. Each excavation shall be backfilled and compacted within 72 hours from the time the construction related to the excavation is completed.

b. Replacement of pavement base. Replacement of the pavement base shall be completed within 72 hours from the time the excavation is backfilled.

c. Finished pavement. Finished pavement restoration shall be completed within 10 days or sooner as directed by the Director.

3. Modification to requirements. Upon written request from company, the Director may grant written approval for modifications to the requirements of this section.

4. Incomplete excavation—Completion by the City. In any case where an excavation is not completed or restored in the time and manner specified in the permit, this chapter, or the orders, regulations, and standard plans and specifications of the Department, the Director shall order company to complete the excavation as directed within 24 hours. If company should fail, neglect, or refuse to comply with the order, the Director may complete or cause to be completed such excavation in such manner as the Director deems expedient and appropriate. The company shall compensate the City for any costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the City or other agencies, boards, commissions, departments of the City that were made necessary by such excavation. The cost of such work also may be deducted from company's security fund.

5. Subject to the limitation set forth in this chapter, completion of an excavation or restoration by the Department in accordance with this chapter shall not relieve the owner or company from liability for future pavement failures at the excavation site.

(Ord. No. 07-14, § 3, 5-22-07)

A. Repair and maintenance obligation of company. Each company that excavates or causes to be made an excavation in the PROW shall be responsible to maintain, repair, or reconstruct the site of the excavation so as to maintain a condition acceptable to the Director until such time as the site of the excavation is repaved or resurfaced by the Department, or pursuant to a subsequently issued PROW permit.

B. Subsurface or pavement failures. In the event that subsurface material or pavement over or immediately adjacent to any excavation should become depressed, broken, or fail in any way at any time after the work has been completed, the Director shall exercise his or her best judgment to determine the person(s) responsible, if any, for the failure in the subsurface or surface of the PROW and shall designate such person as the responsible party. The Director shall notify such person(s) of the condition, its location, and the required remedy, and such person(s) shall repair or restore, or cause to be repaired or restored, such condition to the satisfaction of the Director within 72 hours of the notification, unless, in the interest of public safety, the Director extends the time for the responsible party to repair or restore the affected PROW.

C. Repair by the city.

1. In the event that any person(s) fails, neglects, or refuses to repair or restore any condition pursuant to the Director's notice, the Director may repair or restore, or cause to be repaired or restored, such condition in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department for any costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the City that were made necessary by reason of the repair or restoration undertaken by the Department. The cost of such work also may be deducted from Company's security fund.

2. Repair or restoration by the Department in accordance with this section shall not relieve the person(s) from liability for future pavement failures at the site of the repair or restoration.

D. Emergency remediation by City.

1. If, in the judgment of the Director, the site of an excavation is considered hazardous or if it constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the Director may order the condition remedied by a written, electronic, or facsimile communication to the person(s) responsible, if any, for remedying the condition and shall designate such person as the responsible party.

2. If the responsible party is inaccessible or fails, neglects, or refuses to take immediate action to remedy the condition as specified in the communication, the Director may remedy the condition or cause the condition to be remedied in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department for any reasonable costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the Department or other agencies, boards, commissions, departments of the City that were made necessary by reason of the emergency remediation undertaken by the Department. The cost of such work also may be deducted from company's security fund.

3. Remediation by the Department in accordance with this section shall not relieve the person(s) from liability for future pavement failures at the site of the remediation.

(Ord. No. 07-14, § 3, 5-22-07)

A. Advanced planning.

1. On the first day of April and October, or the first regular business day immediately thereafter, each company that requests a permit under this chapter shall prepare and submit to the Department a plan, in a format specified by the Department, that shows all major work anticipated to be done in the PROW in the next two years ("two-year plan"). Any company that does not prepare a two-year plan shall submit a statement that no such major work is anticipated and shall immediately report any major work to the Department as soon as it becomes reasonably foreseeable.

2. Unless applicable law provides otherwise, the Department may disclose information contained in a two-year plan to any company only on a need-to-know basis in order to facilitate coordination among excavators and to avoid unnecessary excavation in City streets. To the maximum extent permissible under federal, State, and local laws applicable to public records, the City shall not otherwise disclose to the public any information contained in a two-year plan submitted by company except to the extent necessary to coordinate with other permit applicants or projects, or to the extent the information is proprietary, trade secret or is otherwise protected from disclosure; provided, however, the City shall have no duty to decline to disclose any information that company has not identified on its face as proprietary, trade secret or otherwise protected from disclosure. The Department shall notify company of request for inspection of public records that calls for disclosure of any two-year plan on which any information has been identified as proprietary, trade secret or protected from disclosure. The Department shall consult with the city attorney regarding any such request and shall inform company either that the Department will refuse to disclose the protected information or, if there is no proper basis for such refusal, that the Department intends to disclose the requested information unless ordered otherwise by a court. The City shall be under no obligation to initiate or defend any litigation relating to this provision.

B. Coordination. The Department shall review the two-year plans and identify conflicts and opportunities for coordination of excavations. The Department shall notify affected owners and company of such conflicts and opportunities to the extent necessary to maximize coordination of excavation. Each applicant shall coordinate, to the extent practicable, with each potentially affected owner and company to minimize disruption in the PROW.

(Ord. No. 07-14, § 3, 5-22-07)

A. The Director may order company to remove its facilities from public property or PROW at its own expense whenever the following occurs:

1. A company ceases to operate all, or part of the facility for a continuous period of 12 months;

2. A company ceases and fails to complete construction of the facility outlined in the PROW permit within the term or duration of the PROW permit; or

3. The company's PROW permit is revoked.

B. If not removed voluntarily by company, then the Director may notify company that should removal of the property not be accomplished within a reasonable time specified by the Director, the Director may order the removal of the facilities at that company's expense. The security fund shall be available to pay for such work.

C. If officials or representatives of the City remove facilities, and if company does not claim the property within 30 days of its removal, then the City may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale going to the City.

D. When such company removes its facilities from the PROW, company shall, at its own expense, and in a manner approved by the Director, replace and restore such PROW to a condition comparable to that which existed before the work causing the disturbance was done.

E. Company shall maintain the deactivated facilities at no cost to the City until removed by company. The company shall provide a written list to the Director of all deactivated facilities located within the City at annual intervals. The company shall remove or disable non-useful facilities in accordance with a removal plan approved by the Director. The company shall provide the Director with a list of the specific facilities to be removed and their locations. The company shall remove all these facilities within 90 days after deactivation unless another period is specified by the Director.

F. Director may, upon written application by company, approve the abandonment of any property in place by company under such terms and conditions as the Director may approve. Upon Director-approved abandonment of any property in place, company shall cause to be executed, acknowledged, and delivered to City such instruments as Director shall prescribe and approve transferring and conveying the ownership of such property to City.

(Ord. No. 07-14, § 3, 5-22-07)

A. Methods of construction, installation, maintenance, and repair of any facilities shall comply with the most current editions of the Zoning Codes, Building Codes, Excavation Codes, Construction Codes, Plumbing Codes, National Electrical Safety Code, the National Electric Code, the Codes, the City-adopted Public Works Construction Standards, specifications and plans, the Municipal Code, as they are adopted by the City and modified from time-to-time, and any applicable federal, State or local statutes, regulations, guidelines, or requirements.

B. All construction, installation, maintenance, and repair shall treat the aesthetics of the property as a priority and shall not substantially affect the appearance or the integrity of any structure.

C. To the extent permitted to remain above ground, company shall place all AGF in flush mounted or low profile waterproof pedestals whose design, size, location, color within manufacturer's specifications, appearance, and placement have been previously approved by the Director in writing and shall be in conformity with the Code and all applicable City ordinances, regulations, rules, and guidelines.

D. Cabinet treatment and graffiti mitigation. The exterior of AGFs shall resist graffiti or be painted with anti-graffiti paint and be maintained in a "like-new" condition. Nothing in this subsection shall require company to treat or paint an AGF with a material that invalidates the AGF's warranty. Applications for AGFs must include a graffiti mitigation plan detailing how company will maintain the AGFs free from graffiti and other defacements (i.e., stickers, posters, decals, and other markings). The graffiti mitigation plan shall commit to the AGFs' inspection at least two times a year and shall include identification of the resources dedicated to mitigating graffiti. Additionally, the graffiti mitigation plan shall provide the name, mailing address, phone number, and e-mail address of a single point of contact responsible to resolve graffiti issues should they occur. The graffiti mitigation plan shall clearly state that graffiti shall be removed within 48 hours of the time at which company is notified of graffiti and that the AGFs' surfaces shall be restored to their original exterior appearance.

E. Each visible facility installed in the PROW shall be clearly identified with the name of the owner of the facility and a toll-free telephone number for company. The Department shall adopt orders or regulations to specify other appropriate methods for identification.

F. During construction and maintenance, company shall identify its construction sites by name and category with sufficient clarity so that traffic flowing in both directions can determine the nature of the project and the entity upon whose behalf the construction is being undertaken.

G. Company assumes all responsibility for damage or injury resulting from the maintenance of any aboveground component. If company fails to comply with any written Director's demand relating thereto, the City may perform said work and withdraw its costs and expenses from the security fund or other security provided by company.

H. Deviation procedure for nonconforming situations.

1. In instances where company cannot conform to any of the regulations of this chapter, company may apply for a deviation.

2. A request for a deviation shall be submitted and approved by the Director prior to the submittal of any permit for installation of any facilities.

3. The deviation will be reviewed and a determination made by the Director.

4. A deviation request shall be submitted by letter form to the Director and contain the following:

a. An exhibit showing the proposed location and type of facilities to be installed.

b. The names and telephone numbers of any property owner, tenant, or home owners association that may be affected by the deviation request.

c. Documentation that any property owner, tenant, or home owners association that may be affected by the deviation request has been contacted and informed about the deviation request.

d. A detailed explanation and justification for the proposed deviation request and references to the appropriate section(s) of this chapter which relief is being requested.

5. A deviation shall be reviewed and a determination made based on whether all of the following findings can be made:

a. That the proposed request is in the public interest;

b. That the proposed request cannot conform to the regulations of this chapter due to extenuating circumstances beyond the control of company, such as, but not limited to:

(1) Existing location of utilities from another utility provider; or

(2) Existing conditions which prohibit installation (e.g., walls/fences or existing structures); and

c. That the proposed request does not cause the accumulation of facilities in close proximity or otherwise detrimentally impact the PROW.

(Ord. No. 07-14, § 3, 5-22-07)

A. Upon the failure, refusal or neglect of company to cause any construction, repair, or to comply with the terms of any permit thereby creating an adverse impact upon public safety or convenience, the Director may (but shall not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to company an itemized statement of costs. The company shall be given reasonable advance notice of the Director's intent to exercise this power, and a reasonable opportunity to cure the default. The company shall, within 45 days of billing, pay to the City the actual costs incurred. The City may deduct amounts not so timely paid from the security fund, performance bonds or any deposit.

B. Whenever construction is being performed in a manner contrary to the provisions of this chapter, the Director may order the work stopped by notice served on any person or company engaged in or causing the construction. Any work stopped shall not resume until authorized in writing by the Director.

(Ord. No. 07-14, § 3, 5-22-07)

In the event any PROW or portion thereof used by company shall be vacated by the City for a governmental purpose, upon reasonable notice company shall forthwith remove its facilities from the PROW unless specifically permitted to continue. As a part of the removal, company shall restore, repair or reconstruct the area where the removal has occurred, to a condition as may be required by the Director, but not in excess of the original condition. In the event of any failure, neglect or refusal of company, after 30 days notice by the Director, to do such work, Director may cause it to be done, and company shall, within 45 days of billing, pay to City the actual costs incurred.

(Ord. No. 07-14, § 3, 5-22-07)

No PROW permit shall relieve company of any obligations involved in obtaining pole or conduit space from any department of City, any utility company, or from others maintaining utilities in PROW.

(Ord. No. 07-14, § 3, 5-22-07)

To the extent available, company shall provide the Director with data in a digital or other format specified by the Director which details and documents all the geographic locations of facilities located in PROW. The computer disk or other record shall be updated whenever there have been significant changes in the location of the facilities or at the Director's discretion. Prior to disclosing this information to any party, the City shall notify company and shall endeavor not to disclose system location data to the extent the system location data is exempt under federal or State law or regulation for national security reasons. In addition, company shall maintain in its local office a complete, fully dimensioned, and up-to-date set of as-built system maps and drawings upon completion of construction. As-built drawings shall show all facilities. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size.

(Ord. No. 07-14, § 3, 5-22-07)

If company is aggrieved by any decision of the Director under this chapter, company may appeal the decision to the City Manager by filing with the City Clerk a statement addressed to the City Manager setting forth the facts and circumstances regarding the Director's decision and the basis for the appeal. The appeal shall be accompanied by a fee as established by resolution of the City Council, which may be amended from time-to-time. The City Manager, not less than 10 days from the date on which the appeal was filed with the City Clerk, shall hear the appeal all relevant evidence, and shall determine the merits of the appeal. The City Clerk shall provide written notification of the time and place set for hearing the appeal. The City Manager may sustain, overrule or modify the action of the Director, and decision of the City Manager shall be final.

The right to appeal to the City Manager shall terminate upon the expiration of 10 days following personal delivery to company or the deposit of a letter in the United States mail advising company of the action of the Director and of the right to appeal such action to the City Manager.

(Ord. No. 07-14, § 3, 5-22-07)

A. Customer service standards. The company shall comply with the following standards for customer service:

1. Service area office. The company shall maintain an office in the service area, or at another location as is approved by the City in writing. That office must be open during all usual business hours, but in no case less than 48 hours per week, including during at least one weekend day per week.

2. Customer service center.

a. Company shall have a publicly listed, non-long-distance-charge telephone number that is in operation to receive subscriber complaints and requests on a 24-hour basis. This telephone number shall be listed prominently on the front page of subscribers' billing in bold print.

b. A company shall have a telephone service system to receive all construction and service complaints. This telephone service shall be in operation no less than 48 hours each week, including eight hours at least one weekend day.

c. A sufficient number of customer service representatives shall be provided so that, under normal operating conditions, callers are not required to wait more than 30 seconds before being connected to a customer service representative 90 percent of the time, measured quarterly, or to receive busy signals more than three percent of the time, measured quarterly.

d. The telephone number of the local office shall be listed in the telephone directory serving the City of Irvine.

e. The telephone service system shall be capable of generating reports relating to answer times, response times, hold times, and abandoned calls.

f. Customer service personnel shall identify themselves immediately and, when requested, a Spanish-speaking representative will be available for non-English speaking subscriber complaints.

g. Subscribers shall have the right to speak with a supervisor, and if none is available, a supervisor shall return the customer's call within one working day.

3. Subscriber complaint log. The company shall maintain information of all complaints and their disposition, and a summary thereof shall be submitted to City upon request.

4. Complaint response times and verification. The company shall respond to complaints as follows:

a. Within eight hours after receipt of a request for repairs relating to a cable service interruption affecting at least 10 percent of the subscribers of the system;

b. Within 24 hours after receipt of requests for service related to all other cable service interruptions; and

c. Within 48 hours for all other complaints and requests for repair.

All cable system related problems shall be resolved within five business days unless technically infeasible. Verification of subscriber complaints, including, but not limited to, billing complaints, and resolution must occur within 48 hours (provided that the schedule or preferences of the person requesting installation have not been responsible for the delay); and in any event, resolution must occur within one week. Those matters requiring additional maintenance, repair, or technical adjustments that are documentable as necessitating in excess of one week to reasonably complete, must be finally resolved within 30 days of the initial complaint. The City Manager's Office may require reasonable documentation to be provided by the company to substantiate the request for additional time to resolve a complaint.

5. Identification. All officers, agents, or employees of a company, including its contractors or subcontractors, who come into contact with members of the public shall wear at all times on their outer clothing a photo-identification card in a form reasonably acceptable to City. Company shall account for all identification cards at all times. Every vehicle of company, or its major subcontractors, shall be clearly identifiable as working for that company.

6. Charges for repairs. No charge shall be made to a subscriber for service or repairs, except that company may charge for service calls not related to its cable system, or that are caused by the subscriber or members of its household, or the subscriber's agents or guests.

B. System performance audit. The franchise shall direct the following:

1. City may require that a system performance audit be conducted biannually at company's expense by an independent technical consultant selected by City to verify that the system complies with all technical standards, including, but not limited to, signal strength, and other specifications of the franchise. Upon completion of an audit, the company and City shall meet to review the performance of the cable system. The reports required by this chapter regarding subscriber complaints, the records of performance audits and tests, and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit complaints prior to or during the review meetings, either orally or in writing, and these shall also be considered.

Within 30 days after the conclusion of the system performance audit review meetings, City shall issue findings with respect to the adequacy of system performance and quality of service. If areas of noncompliance are found, City may direct company to correct the noncompliance within a period of time as City determines is reasonable.

2. Participation by the City and the company in this process shall not waive any rights they may possess under applicable federal or State law.

3. In addition to the performance audit described above, City may conduct audits of the same or lesser magnitude, at its sole expense, when and if determined necessary or appropriate by City.

C. System technical data. Company shall provide and maintain system technical data, including, but not limited to, signal strength testing information. All technical data reasonably necessary to demonstrate a company's compliance with FCC regulations, this chapter, and the franchise shall be available for City's inspection during normal business hours upon two business days notice. In the event of system failure or other operating emergency, the technical data will be made available at any time, so long as the provision of the data does not unreasonably interfere with company's operations.

D. Emergency repair capability. It shall be company's responsibility to assure that its personnel, qualified to make repairs, are available at all reasonable times and that they are supplied with keys, equipment location instructions, and technical information necessary to begin repairs upon notification of the need to maintain or restore continuous service to the system.

E. Refund. When a subscriber voluntarily discontinues service, company shall refund, within 30 days of the discontinuance of service, the unused portion of any advance payments or deposits after deducting any charges currently due through the date of discontinuance. Unused payment portions shall be the percentage of time for which subscriber has paid for service yet will not receive the service because of the subscriber's discontinuation of service.

F. Disabled access.

1. The company shall provide maximum practicable availability of cable services and facilities of the system to disabled persons. At a minimum, the company shall provide a single remote control device for each television set connected to the service to those subscribers who are paraplegic or quadriplegic.

2. Upon initiation of service in the City, the company shall submit to the City a plan and/or report describing the equipment, facilities, and ongoing services the company intends to or does make available to disabled persons. Information regarding the facilities, equipment, and ongoing services for disabled persons shall be kept updated and the company shall promptly submit to the City notification of any deletions or additions to the information.

3. The company shall provide within 45 days of a request from a subscriber, for rental or purchase, equipment which facilitates the reception of all cable channels by hearing-impaired subscribers in accordance with the FCC's regulations regarding closed captioning. The company shall also provide TDD (or equivalent) equipment at the company office that will allow the subscribers to contact the company for any reason related to the system.

G. Installations.

1. All installations will include appropriate grounding, adjustment of the television set in order to receive service, and the provision of required subscriber information and literature to instruct the subscriber in the utilization of cable services.

2. The company shall offer subscribers the option to receive an A/B switch at the time of initial service installation for no additional installation cost, and shall provide subscribers with written information on how to use an A/B switch.

3. Upon subscriber request, the company shall provide an A/B switch after the initial installation of service. If the subscriber requests installation of the A/B switch, the company may charge reasonable fees for the installation, which fee shall not exceed the maximum rate permitted by applicable law.

4. When applicable, and under normal operating conditions, if the company cannot perform standard installations within nine calendar days of request by a subscriber (provided that the schedule or preferences of the person requesting installation have not been responsible for the delay), the subscriber may request and is entitled to receive a $20 credit. Repeated failure to perform standard installations within the nine calendar days or to provide the credit for late installations shall be grounds for franchise revocation or other enforcement actions.

H. Service interruptions and other service problems.

1. The company shall render efficient service, make repairs promptly, and interrupt service only if unavoidably necessary and for the shortest period possible. The interruptions, insofar as possible, shall be preceded by reasonable notice to each affected person and shall occur during periods of minimum system use.

2. The company shall promptly notify the City of any significant "service interruption" in the operation of the system. For the purposes of this section, a "significant service interruption in the operation of the system" means any interruption of cable services of at least four continuous hours to at least 10 percent of the subscribers in the area or areas served by the company.

3. The company shall exercise its best efforts to limit any service interruption for the purpose of maintaining, repairing of the system to periods of minimum use. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, the company may schedule a service interruption for a period of more than four hours during any 24-hour period only after the City and each affected subscriber in the company have been given 24 hours' prior notice of the proposed interruption.

4. Technicians employed by the company and capable of performing service-related emergency repairs and maintenance must be available 24 hours a day, every day, including weekends and holidays.

5. Excluding conditions beyond the control of the company, the company will begin working on service interruptions promptly and in no event later than 24 hours after the interruption becomes known (including weekends and holidays). "Working on" constitutes taking positive steps toward rectifying the problem and not merely acknowledging the problem.

6. Automatic credits.

a. Outage of all channels. The company shall provide an automatic credit to all affected subscribers within the outage area when there is an outage of all channels for a period of 24 consecutive hours or more, regardless of the cause of the outage. The credit for an outage shall equal, at a minimum, the value of one-thirtieth of each subscriber's monthly bill for the first 24-hour consecutive-hour period and prorated for each additional four-hour period or portion thereof that the outage continues.

b. Outage of premium service. The company shall provide an automatic credit to all affected subscribers when there is an outage of any premium service for a period of 24 consecutive hours or more which affects an entire franchise area, or other discrete area served by the company, regardless of the cause of the outage. The credit shall equal, at a minimum, the value of one-thirtieth of each subscriber's monthly bill for that premium service for the first 24-hour consecutive-hour period and prorated for each additional four-hour period or portion thereof that the outage continues.

c. Outage of nonpremium service. The company shall provide a credit to a subscriber whenever an outage or outages of four or more hours in a 24-hour period has affected any of the nonpremium channels received by a subscriber as part of their cable service. The credit shall equal the value of one-thirtieth of each subscriber's monthly bill for outages of four hours or greater duration occurring in a 24-hour period. In the event that a premium channel is affected by the outage, the credit shall equal the value of one-thirtieth of the subscriber's monthly premium rate for each outage of four hours or greater duration occurring in a 24-hour period. The company need not provide a credit under this subsection if the company has provided a credit under Subsection a or b to the same subscribers for the same outage.

7. Repeated failure to provide the proper credit for outages shall be grounds for franchise revocation or other enforcement actions.

I. Service appointments.

1. The "appointment window" alternatives for installations, service calls for cable service, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. The company may schedule services calls for cable service and other installation activities outside or normal business hours for the convenience of the subscriber.

2. If the company does not arrive for appointments for installations or service calls within a designated four-hour time frame agreed to by the subscriber, the subscriber may request and is entitled to receive a $20 credit. If the company fails to provide a credit, and the request was made by the subscriber within 60 days of the missed appointment, the city may direct the company to issue the credit. Repeated failure to provide the credit shall be grounds for franchise revocation.

3. The company may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

4. If the company's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the company will document a diligent effort to contact the subscriber directly. If, however, the subscriber is unavailable at the time the contact attempt is made, the company will attempt a second documented contact at least one more time during the previously agreed upon appointment window. The appointment will be rescheduled, as necessary, at a time which is convenient to the subscriber. Contacting the subscriber will not necessarily excuse a missed appointment. In the event that it is necessary for company to contact the subscriber regarding the scheduled appointment and subscriber is not available, company will use its best efforts to provide the subscriber with a phone number to contact company.

J. Annual notice. At least once a year, the company shall communicate in writing with all subscribers. At a minimum, this communication shall comply with federal regulations and shall contain statements or provisions addressing each of the following issues:

1. Complaint handling. Any complaints or inquiries not satisfactorily handled by the company may be referred to the company manager, whose phone number shall be shown on the communication.

2. Schedule. A complete schedule of all current programming services, excluding pay-per-view, rates and charges, and promotional offers.

3. Subscriber bill of rights. The company shall provide subscribers with the subscriber bill of rights ("SBR"). The SBR may be in a form commonly distributed by a company throughout its service area. The SBR shall describe:

a. The subscriber's rights and obligations that are generally provided under the franchise and federal law, including a description of how to contact the company and, if necessary, the City, in the event of an unresolved subscriber complaint;

b. The subscriber's rights to credits or free service when any of the conditions described in this chapter apply.

K. Notices of rate, pricing, or services changes.

1. Notice of any pricing changes or additional charges and/or any changes in programming services must be made as soon as possible. In no instance shall company increase rates or change a programming schedule without at least 30 days' advance notice of the changes except for changes in programming that are outside of the control of the company.

2. Notices of changes in rates shall indicate the new rate inclusive of all fees and/or other fees and the amount the rate has increased or decreased from the current rate.

3. Notices of changes of programming services and/or channel locations shall include a description of the new programming service, the specific channel location, and the hours of operation of that programming service. In addition, should the channel location, hours of operation, or existence of other programming services be affected by the introduction of a new service, this information must also be included in the notice.

4. In order that subscribers are fully apprised of the charges they may incur, the company shall advertise rates that include all costs and fees.

L. Other notices.

1. Free programming. If company offers any channels with programming rated NC-17, R, X, or the equivalents thereof full- or part-time without charge, company shall include the rating(s) of the programming to be made available for viewing and the right of the subscriber to have the company block the programming. The company shall provide, by sale or lease, a device for blocking this programming.

2. Notices to new subscribers. Before providing cable service to any subscriber, company shall provide the subscriber bill of rights to subscriber and shall include a written notice to the subscriber containing substantially the following information:

"Subscriber understands that (insert Name of company) uses Public Rights-of-Way and other Facilities of the City of Irvine in providing Service and that this continued use cannot be guaranteed. Subscriber agrees not to make any claims against the City of Irvine or its officers or employees in the event that the use is denied for any reason, or (insert Name of company) is unable, in its discretion, to provide Service over alternate routes."

M. Disconnections/denial of service.

1. The company shall not terminate residential service for nonpayment of a delinquent account unless the company furnishes a notice of the delinquency and impending termination at least 15 days prior to the proposed termination. The notice shall be mailed, postage prepaid, to the subscriber to whom the service is billed. This notice shall not be mailed until the 16th day after the date the bill for services was mailed to the subscriber. The notice of delinquency and impending termination may be part of a billing statement.

2. Notice of termination. Every notice of termination of service shall include all of the following information:

a. The name and address of the subscriber whose account is delinquent;

b. The amount of the delinquency;

c. The date by which payment is required in order to avoid termination of service;

d. The telephone number of a representative of the company who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question.

3. The company shall only terminate cable service on days when the subscriber can reach a representative of the company either in person or by telephone. Cable service terminated without good cause must be restored without charge for the cable service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar subscriber actions.

N. Deposits, refunds and credits.

1. The company may require refundable deposits in circumstances where deposits are necessary to protect equipment or to ensure payment where there is reasonable evidence of a risk of nonpayment, provided that the company shall be required to pay simple interest at a rate of one-half percent per month (six percent per year). Interest shall be accrued and payable upon termination of service. Upon termination of cable service for any reason, subscribers will be entitled to receive a refund or credit against amounts owed the company equal to the deposit plus accumulated interest.

2. Refund checks will be issued promptly following the resolution of the event giving rise to the refund; and by the earlier of either:

a. The subscriber's next billing cycle; or

b. 45 days.

3. If the company does not mail a check for a refund (including applicable interest) to any subscriber disconnecting cable service with an outstanding credit within 30 days of the date cable service is ended, and the subscriber has returned all company owned equipment, the subscriber may request and is entitled to receive a $4.75 (or such other amount as may be permitted pursuant to State law) payment, in addition to the total refund (and applicable interest) due. If the company fails to provide the $4.75 payment and the request was made by the subscriber within 60 days after failure to receive the refund, the City may direct the company to provide the $4.75 payment as well as any outstanding refund (and applicable interest) due. Repeated failure to provide the $4.75 payment shall be grounds for franchise revocation and/or other enforcement actions.

4. Credits for cable service will be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.

O. Rates, fees and charges.

1. The company shall not, except to the extent expressly permitted by law, impose any fee or charge on any subscriber for:

a. Any service call to a subscriber's premises to perform any repair or maintenance work related to company, installed equipment necessary to receive service, except any work which was necessitated by a negligent or wrongful act of the subscriber; or

b. The disconnection of any services to a subscriber, provided that the company may impose appropriate charges if, at the time of disconnection, some or all of the company's equipment is not returned to the company or the subscriber has not paid all outstanding fees and charges due to the company; or there is damage to the equipment of the company, excluding normal wear and tear and the circumstances described in the next subsection below.

2. Where the actions of the company, its agent(s) or subcontractor(s) can be shown upon a reasonable demonstration of evidence to have contributed to the theft, loss or damage of a converter or other equipment lawfully used by a subscriber, the subscriber's liability with respect to the converter or other equipment shall be reduced to the extent of the contributing actions.

3. All charges for cable services must be applied on a nondiscriminatory basis recognizing that the Cable Act allows for reasonable discounts to senior citizens and/or the economically disadvantaged and that a company may, upon reasonable notice to subscribers, conduct promotional campaigns in which rates are discounted or waived, and may offer bulk rate discounts for multiple dwelling units, hotels, motels, and similar institutions.

P. Enforcement.

1. Repeated failure to comply with any or all of the provisions delineated above shall be grounds for franchise revocation in accordance with the franchise revocation procedures and/or other enforcement actions.

2. The city may seek injunctive relief or any other judicial remedy available pursuant to State or federal law in order to enforce compliance with these standards.

Q. Rights reserved by city.

1. Additional subscriber service standards. The City reserves the right to establish additional, reasonable subscriber cable service standards from time-to-time, as may be necessary, after making a finding of need and after notice to and opportunity to be heard from the company has been afforded.

2. Rate regulation. The City reserves the right to regulate rates for cable service to the fullest extent permitted by law. Notwithstanding anything in these standards to the contrary, in the event that the Cable Act is amended or repealed, or restrictions on the authority of the City to regulate rates are otherwise removed or lessened, or the FCC or any court permits the City to regulate rates, the City may, at its discretion, establish additional procedures and standards for rates and regulate rates to the fullest extent of its regulatory authority under federal, State, and local laws.

3. Performance meetings. Upon request of the City, the company shall meet with the City to review the requirements set forth in this chapter or the franchise.

(Ord. No. 07-14, § 3, 5-22-07)

A. Use of public streets. Pursuant to Section 1100 of the City Charter, it is unlawful for any person to construct, install, or maintain in any public place within the City, or upon any easement owned or controlled by a public utility provider, or within any other public property of City, or within any privately owned area within City's jurisdiction which is not yet, but is designated as, a proposed public place on a tentative subdivision map approved by City, any equipment, facilities, or system for distributing signals or services through a cable system, without a valid franchise.

B. Unauthorized connections. Except as otherwise provided in State or federal law, it shall be unlawful for any person to make or use any unauthorized connection to, or to monitor, tap, receive or send any signal or service via a franchised system, or to enable any person to receive or use any service, television or radio signal, picture, program, or sound, or any other signal without payment to the owner of the system.

C. Tampering with facilities. It is unlawful, without the consent of the owner, to willfully attach to, tamper with, modify, remove or injure any physical part of or signals on a franchised system.

(Ord. No. 07-14, § 3, 5-22-07)

A. Material breach.

1. In the event that the company fails to comply with a material provision of any franchise, then, in accordance with the procedures provided herein, the City may revoke the franchise granted herein and terminate any franchise in accordance with the procedure set forth below.

2. A failure to comply with a material provision of any franchise shall include, without limitation, any of the following acts or failures to act by the company, an affiliated person or the guarantor of any of the following events, unless excused by the City:

a. Substantial failure to provide required financial information;

b. Substantial failure to satisfy the requirements regarding system characteristics or repeated failure to meet the technical performance standards, as provided in any franchise;

c. Substantial or repeated failure to provide any cable service to any person as required by any franchise;

d. Substantial failure to maintain the mix, level, and quality of services within the broad categories of video programming and other services as set forth in any franchise;

e. Abandonment of the system, in whole or in material part, without the prior written consent of the City;

f. Substantial failure to supply the PEG channels and related facilities and equipment after the date by which the items must be supplied, as provided in any franchise;

g. Substantial failure to comply with interconnection requirements as provided in any franchise;

h. Substantial and repeated imposition of any nonstandard installation and other charges for basic service which are discriminatory;

i. Substantial and repeated failure to comply with consumer service standards;

j. Substantial failure to comply with the privacy rights of subscribers as provided in this chapter, any franchise, or Section 631 of the Cable Act or California Penal Code § 637.5;

k. Substantial failure to make any of the franchise fee compensation payments as provided herein, or any other payments required by this chapter or any franchise, or to maintain the bond or other instrument in the amount required herein;

l. Substantial failure to comply with any rules, laws, regulations, orders or other directives of the City issued pursuant to the police powers or pursuant to this chapter or any franchise;

m. The taking of any material action which requires the approval or consent of the City Council without having first obtained the approval or consent;

n. Substantial failure to furnish and maintain throughout the term of any franchise the liability and indemnification insurance coverage;

o. To engage in a course of conduct intentionally designed to practice any fraud or deceit upon the City, any subscriber, or any other use of the system;

p. Failure to cooperate fully and faithfully with any lawful investigation, audit or inquiry conducted by a governmental agency;

q. Any material written misrepresentation, intentionally made by or on behalf of the company in its proposal for the franchise granted pursuant to any franchise, or in connection with the negotiation or renegotiation of, or any amendment, transfer, or other modification to any franchise, to the extent that any misrepresentation was relied upon by the City;

r. The conviction or determination of factual guilt, of the company, any affiliated person, any director or executive officer of the company or of an affiliated person, any person holding control of or a controlling interest in the company, or any employee or agent of the company or of any affiliated person acting under the express direction or with the actual consent of the company, its directors or officers, of any criminal offense, including, without limitation, bribery, fraud or misrepresentation arising out of or in connection with the award, transfer, application for rate increase, or other regulation of any franchise, provided that the right to terminate any franchise in the event of the convictions shall arise only with respect to any of the foregoing convictions of the company itself and, in the event of the conviction of any other persons specified in this subsection, if the company fails to disassociate itself from, or terminate the employment of, other persons with respect to activities in the franchise area or any other activities affecting the system, within 30 days after the time in which appeals from a conviction may be taken, or within 30 days following the final determination of all appeals which are in fact taken;

s. The conviction of any City officer, City employee, or City agent of the offense of bribery or fraud which arises out of or in connection with any intentional action by the company, any affiliated person, any director or executive officer of the company or of any affiliated person, any person holding control of or a controlling interest in the company, or of any employee or agent of the company or of any affiliated person acting under the express direction or actual consent of the company or any of the foregoing, which act was undertaken for the benefit of the company;

t. Any material false entry knowingly made in the books or accounts or records of the company, or any substantial false statements knowingly made in any report or filing to the City or any governmental agency or otherwise by the company, any director, officer, or other person holding a controlling interest in the company, any affiliated person, or any employee or agent of the company acting under the express direction or with the actual consent of the company;

u. Failure to comply with a duly constituted lawful order or ruling of any City regulatory body having jurisdiction over the company with respect to a violation of the franchise;

v. Substantial failure to comply with the access origination point requirements as set forth in any franchise; or

w. Substantial failure to comply with the construction requirements set forth in any franchise or this chapter.

Notwithstanding the foregoing, if, as a result of a failure or alleged failure to comply with a material provision of any franchise as delineated in the foregoing subsections, the company is unable to comply with any other material provision(s) which necessarily and directly arise(s) out of the failure or alleged failure as delineated in the subsections, the inability to comply with the other provision(s) shall not be deemed to be an independent failure to comply with a material provision of any franchise.

3. The City Council may exercise its right to revoke and terminate the franchise for a failure by the company to comply with a material provision of this chapter and/or any franchise in accordance with the following procedures:

a. The City shall notify the company, in writing, of an alleged failure to comply with a material provision of the franchise. The notice shall specify the alleged failure with reasonable particularity. The company shall, within 45 days after receipt of the notice, either cure the alleged failure or, in the event the failure cannot be reasonably cured within 45 days, within a reasonable time, provided the company commences to cure within the 45 days and diligently pursues the cure to completion, or, in a written response to the City, the company shall either present facts and arguments in refutation or excuse of the alleged failure or state that the alleged failure will be cured and set forth the method and time schedule for accomplishing the cure.

b. The City shall investigate:

(a) Whether a failure to comply with a material provision has occurred;

(b) Whether the failure is excusable; and

(c) Whether the failure has been cured or will be cured by the company.

c. If the City determines that a failure to comply with a material provision has occurred and that either the failure is not excusable or has not been or will not be cured by the company, then the City shall so notify the company.

d. At the conclusion of or in the event that the investigation is not concluded, as provided above, the City shall, within 30 days, provide notice of a public hearing at which the company shall have the opportunity to respond to the claim that a material breach has occurred and to present facts and arguments in refutation or excuse of an alleged breach, or to demonstrate that a failure shall be cured as provided in any franchise.

e. All final determinations with respect to revocation or termination must be made by the City Council. Notwithstanding any final determination by the City Council, the company maintains its rights of appeal, if any, under applicable law.

4. Circumstances beyond control of the company. The company shall not be subject to sanction when its performance is prevented for reasons beyond its control, unless the occurrences or conditions are intentionally caused or created by the company, or by an affiliated person at the company's express direction.

5. Pending litigation. Except when enjoined by a court of law, litigation pending against the company shall not excuse the company from the performance of its obligations under this chapter. The company may petition the City to be excused from the performance of its obligation under this chapter because of pending litigation which the City may grant or deny in the exercise of its discretion.

B. Termination.

1. The termination of any franchise and the company's rights therein shall become effective upon the earliest to occur of the:

a. Revocation of the franchise by action of the City Council;

b. Abandonment of the system, in whole or material part, by the company without the express prior approval of the City; or

c. Expiration of the term of the franchise, if not renewed or extended. In the event of any termination, the City shall have all rights as provided in any franchise, including, without limitation, the right to order the company to continue to operate the system or to then or thereafter remove the system, or to acquire or affect a transfer of the system. In any event, the company maintains its rights of appeal, if any, under applicable law.

2. In the event of any termination of any franchise, the City Council may direct the company to operate the system on behalf of the City pursuant to the provisions of this chapter and additional terms and conditions as are equitable and mutually agreeable to the City and the company or a third party, for a period of up to 12 months, unless a sale of the system can be closed sooner or company demonstrates that it needs additional time to complete the sale.

3. Upon the termination of any franchise due to the expiration of the term of the franchise granted herein, if not renewed or extended, the company shall be entitled to cancel the performance bond or letter of credit, after account is taken for all offsets necessary to compensate the city for any uncured failure to comply with any provision of any franchise as herein provided. If the company continues to operate the system following the termination of any franchise, the company shall not be entitled to cancel a bond or letter of credit until the end of continued operation. In the event of a termination of any franchise for cause due to a material breach by the company or otherwise, the bond or letter of credit shall become the property of the City to the extent necessary to cover any costs, loss, or damage incurred by the City as a result of the termination or material breach, provided that any amounts in excess of the costs, loss or damage shall be refunded to the company or surety, as applicable.

4. In the event of any termination, the City may purchase the cable system in accordance with the procedures of this section. In this event, the price to be paid for the cable system to company shall be the price the Cable Act requires.

5. Upon any acquisition or transfer, and, if applicable, receipt of payment by the company from the City, the company shall:

a. Cooperate with the City in maintaining the distribution of all cable services over the system during acquisition or transfer of ownership;

b. Promptly execute all appropriate documents to transfer to the City or third party, free of any and all encumbrances, title to the system, as well as all contracts, leases, licenses, and rights necessary to maintain the system and the distribution of services over the system; and

c. Promptly supply the City with all necessary records to operate the system, including, without limitation, all subscriber records and plant equipment layout documents.

6. Upon any termination of any franchise, if so directed by the City, the company shall, at its own cost and expense, promptly remove that part of the system located in the right-of-way and shall replace or repair and restore to serviceable condition each affected facility therein.

(Ord. No. 07-14, § 3, 5-22-07)

Applicants for an initial franchise shall submit to the City, or to its designated representative, written application in a format provided by the City, at the time and place specified by the City for accepting applications, and accompanied by the designated application fee. A nonrefundable application fee, established by resolution of the City Council, which may be amended from time-to-time, shall accompany the application for an initial franchise to cover all costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, the costs of consultants (including technical and legal experts), notice and publication requirements, and document preparation expenses. In the event that costs exceed the application fee, the applicant shall pay the difference to the city within 20 days following receipt of an itemized statement of the costs. This provision is procedural and shall not constitute the grant of any right to a company to renewal or otherwise.

(Ord. No. 07-14, § 3, 5-22-07)

A. Company to provide records. All reports and records required under this section shall be furnished at the sole expense of the company.

B. Reports of financial and operating activity. No later than 90 days after the close of a company's fiscal year, the company shall submit an audited written report to the City which shall include:

1. A financial report, audited and certified by a financial officer of company, for all cable system activity in the City during the previous fiscal year, including gross annual receipts from all sources and gross subscriber revenues from each service. The report must set out separately all gross receipts from all sources in the City and gross subscriber revenues from each cable service in the city, and all payments, deductions, and computations of franchise fees.

2. A summary of the previous year's subscriber totals, new services offered and system construction activity.

3. A current list of company's officers, directors, and other principals if there has been any change in the previous year.

4. A list of stockholders or other equity investors holding five percent or more of the voting interests in company if there has been any change in the previous year.

C. Performance tests and compliance reports. Upon written request of City, a company shall provide a written report of any FCC or other performance tests conducted by the company. In addition, the company shall provide reports of the test and compliance procedures required by its franchise, or by this chapter, no later than 30 days after the completion of those tests and compliance procedures.

D. Additional reports and data. The company shall prepare and furnish to the City in writing, at the times and in the form prescribed by City, such additional reports or data as City may reasonably require to confirm and verify company's compliance with the provisions of its franchise and this chapter.

E. Examination of facilities. Upon two business days notice, and during normal business hours, a company shall permit examination, by any duly authorized representative of the City, of all facilities, together with any appurtenant property and facilities of the company situated within the PROW which are related to the cable system.

F. Right to audit.

1. In addition to any other inspection rights under this chapter or the franchise, upon 30 days prior written notice, the City shall have the right to inspect, examine, or audit, during normal business hours, all documents pertaining to a company or any affiliated person which are reasonably necessary to ascertain a company's compliance with its franchise or this chapter. All documents pertaining to financial matters which may be the subject of an audit by the City as set forth herein shall be retained by a company for a minimum of five years during the term of and following the termination of a franchise. Access by the City to any of the documents covered by this section shall not be denied by the company on grounds that the documents are alleged by the company to contain proprietary information.

2. The City may require written certification by a company's directors, officers, or other employees with respect to all documents referred to in this section.

3. Any audit conducted by the City pursuant to this section shall be conducted at City's expense. City shall prepare a written report containing its findings, a copy of which shall be mailed to a company. Company shall reimburse the City for the expense of this audit if, as the result of the audit, it is determined that there is a shortfall of more than two percent in the amount of franchise fees or other payments which have been made or will be made by a company to the City pursuant to the terms of the franchise.

G. Retention of experts. In the exercise of its rights under this chapter, the City shall have the further right to retain technical experts and other consultants on a periodic basis for the purpose of monitoring, testing, and inspecting any construction, operation, maintenance or reconstruction of the system, and all parts thereof, or to ensure compliance with and enforcement of the provisions of this chapter and the franchise. The City shall bear the cost of retaining the experts, provided that, unless prohibited by applicable law, the company shall reimburse the City for all expenses related to the retention of the experts where this chapter or the franchise so provide, or under either of the following circumstances:

1. The company has initiated proceedings which would normally require the City to retain the experts, such as the filing of a request for approval of a transfer or change in control, renewal to the extent allowed by law, expansion of the service area, or the modification or amendment of the franchise; or

2. The reports of the experts submitted to the City reveal that the company has failed to substantially comply with the terms and conditions of this chapter or of the franchise.

If company is required to reimburse City pursuant to Subsection G of this section, City shall send company an itemized description of the charges, and company shall pay the amount within 45 days after the receipt of the description.

(Ord. No. 07-14, § 3, 5-22-07)

A. To the maximum extent permitted by applicable law, a company shall at all times defend, indemnify, protect, save harmless, and exempt the City, the City Council, its officers, agents, servants, attorneys and employees, from any and all penalties, damages or charges arising out of claims, suits, demands, causes of action, award of damages, imposition of fines and penalties, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal or restoration of facilities within the City based upon any act or omission of a company, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole negligence or willful misconduct of the City, the City Council, its officers, agents, servants, attorneys and employees. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included as those costs which shall be recovered by the City.

B. Except as provided in or as supplemented by any franchise, license or permit, a company shall secure and maintain public liability, property damage insurance, and umbrella coverage in at least the following amounts:

1. Public liability. $2,000,000 per person/per occurrence;

2. Property damage. $2,000,000 per any one claim; or

3. Umbrella liability. $5,000,000.

C. The public and personal liability and property damage insurance policy shall specifically include the City, the City Council, its employees, and agents as additional insureds.

D. The public and personal liability and property damage insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and which has one of the three highest or best ratings from the Alfred M. Best Company.

E. The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the Director with at least 30 days written notice in advance of the cancellation of the policy.

F. Renewal or replacement policies or certificates shall be delivered to the Director at least 15 days before the expiration of the insurance which such policies are to renew or be replaced.

G. Before a company commences any construction, the company shall deliver the policies or certificates representing the insurance to the Director as required herein.

H. The Director may adjust the coverage amounts specified in Subsection B of this section provided that the adjustments result in the company meeting or exceeding the coverage specified in this section.

(Ord. No. 07-14, § 3, 5-22-07)

A. Captions. The section, subsection, paragraph, and subparagraph numbers and letters, and the captions throughout this chapter are intended to facilitate reading and reference. The numbers, letters, and captions shall not affect the meaning or interpretation of any part of this chapter.

B. Franchise references. A franchise which cites, refers to, or otherwise incorporates this chapter, or portions thereof, shall be deemed to be a franchise issued under and subject to this chapter.

C. Filing. When not otherwise specified in this chapter, all documents required to be filed with City shall be filed with the City's representative as designated by City.

D. Non-enforcement by the City. A company shall not be excused from complying with any of the requirements of this chapter, and of its franchise, and all laws and regulations, or any subsequently adopted amendments to this chapter, by any failure of the City on any one or more occasions to seek, or insist upon, compliance with the requirements or provisions of the chapter or franchise.

E. Continuity of service. It is the right of all subscribers to receive cable services so long as their financial and other obligations to a company are honored. In the event that a company elects to rebuild, modify, or sell the system, a company shall use due diligence and reasonable care to ensure that all subscribers receive continuous, uninterrupted service. In the event of a transfer of the system by company, the current company shall cooperate with the City or new company to operate the system for a temporary period, in order to maintain continuity of service to all subscribers. In the event that company, through its own fault, discontinues system-wide service for 72 continuous hours, and company is in material default of its franchise, or if the franchise is revoked by City (but not if City fails to renew the franchise), City may, by resolution, when it deems reasonable, cause to exist, assume operation of the system for the purpose of maintaining continuity of service. City's operation of the system may continue until the circumstances which, in the judgment of the City, threaten the continuity of service are resolved to City's satisfaction. City shall be entitled to the revenues for any period during which it operates the system.

F. Operation by City. During any period when the system is being operated by City pursuant to Subsection E above, City shall, as it may deem necessary, make any changes in any aspect of operations that, in City's sole judgment, are required for the preservation of quality of service and service continuity.

G. Management by City. City may, upon assuming operation of a system franchised hereunder, appoint a manager to act for it in conducting the system's affairs. The manager shall have the authority as may be delegated by City and shall be solely responsible to City for management of the system. Company shall reimburse City for all its reasonable costs, in excess of system revenues, incurred during City's operation if the franchise is in full force and effect during the period of City's operation.

H. Notices. All notices and other communications to company and to City shall be set forth in the franchise.

I. Force majeure—Company's inability to perform. In the event company's performance of any of the terms, conditions, obligations, or requirements of this chapter, or any franchise granted hereunder, is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, the inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result. The causes beyond company's reasonable control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes, utility interruptions, inability to obtain access to an individual's property on reasonable terms, and any inability of a company to secure all required authorizations or permits to utilize necessary poles or conduits, so long as company uses due diligence to timely obtain the authorization or permits.

J. Application. All of the provisions of this chapter shall be applicable to all cable operators, cable systems, OVS operators and OVS systems to the greatest extent permissible under applicable law.

K. Severability. If any provision of this chapter is determined to be void or invalid by any administrative or judicial tribunal, the provision shall be deemed severable and the invalidation shall not invalidate the entirety of this chapter or any other provision.

L. Possessory interest. By accepting any franchise and/or PROW permit granted pursuant to this chapter, company acknowledges that notice is and was given to company pursuant to California Revenue and Taxation Code § 107.6 that the use or occupancy of any public property may cause certain taxes to be levied upon such interest. Company shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of any PROW or public property pursuant to any right of possession, occupancy or use created by any PROW permit.

(Ord. No. 07-14, § 3, 5-22-07)