Laguna Woods Municipal Code Ch. 6.34 Cable Television

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State Law reference— Cable television franchising, Government Code § 53066 et seq.

This chapter is enacted by the City of Laguna Woods under its authority as recognized by the Cable Act, and also separately by its police power authority and its authority and right to control the use of and encroachment upon the public right-of-way within the City.

(Ord. No. 01-02, § 1(5.40.020), 2-21-2001)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Words not defined herein shall be given the meaning set forth in the Cable Communications Policy Act of 1984 ("Cable Act"), 47 U.S.C.§ 521 et seq. and as hereinafter may be amended, and if not defined therein, their common and ordinary meaning.

(05) Access corporation. A nonprofit, public corporation established or authorized by the City, whose duties shall include the management and operation of the PEG Access Channels.

(10) Affiliate. Any person directly or indirectly Controlling, Controlled by or under common Control of grantee.

(15) Application or proposal. A formal response by a qualified cable company in accordance with the City specifications to provide cable services to residents, businesses, industries, and institutions within the City, which has been submitted to and received by the City.

(20) Cable Act. The Cable Communications Policy Act of 1984, 47 U.S.C. Section 521 et seq. and as hereinafter may amended.

(25) Cable service. The transmission on a cable system of any signals, including, but not limited to, video, audio, data, other programming, programming related services, or subscriber interaction. As defined here, cable service is intended to encompass at least those services included within the Cable Act definition of cable service (47 U.S.C. Section 522(6)) as it existed at the time the ordinance from which this chapter is derived was enacted.

(30) Cable system. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that has an intended primary function of receiving and distributing video programming to multiple subscribers within the City. Such term does not include:

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

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

(3) A facility that operates under any other telecommunications franchise issued by the City.

(35) City manager. The City Manager of the City of Laguna Woods, or designee.

(40) Completion of construction. The point in time when all transmission equipment, facilities and construction work is installed and completed, and that all appropriate tests have been completed such that applicable performance standards pertaining to or dependant upon such construction is verified. The term "completion of construction" does not include marketing and installation of subscriber service.

(45) Control. The possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified person, whether through the ownership of voting securities, by contract or otherwise.

(50) Distribution facilities. Cable equipment which is not specific to a subscriber, including trunk and distribution lines, but excluding drop lines to specific locations.

(55) Drop. The cable and related equipment connecting the system's plant to equipment at the subscriber's premises.

(60) Educational channel. A channel which designates educational institutions as the primary programmer(s).

(65) FCC. The Federal Communications Commission or its designated representative.

(70) Franchise. The right to construct, operate and maintain a cable television system in designated locations within the City pursuant to the terms and conditions of this chapter, the franchise agreement, any resolution approving the transfer of the franchise, any rate order of the City, and any agreement or contract between the City and grantee.

(75) Franchise agreement. An ordinance granting a franchise pursuant to the terms of this chapter. Any conflict between the terms of this chapter and the franchise agreement shall be resolved in favor of the franchise agreement.

(80) Franchise area. The geographic area within the City designated in a franchise where grantee may operate a cable system, as defined in the franchise agreement.

(85) Government channel. A channel which designates a local government agency or agencies as the primary programmer.

(90) Grantee. Any person to whom a valid franchise is granted by the City under this chapter, and the lawful successor, transferee or assignee of said person.

(95) Gross revenues. Any and all revenue (including without limitation revenue, payments, cash, credits, real property, personal property, or any form of consideration) which is received, whether directly or indirectly, by grantee, its affiliates, or any other person in which grantee has a financial interest, from or in connection with the operation of the subject cable system, or any part of such system. Such revenue shall include but not be limited to the following:

(1) Any and all fees charged to subscribers for cable service including without limitation fees for any and all basic service, optional service, tier service, audio service, commercial service, premium service, pay television service, pay-per-view service and related per event service, or for the distribution of any other cable service over the cable system;

(2) Any and all fees charged to subscribers for installation, disconnection, reconnection, change in service and similar fees;

(3) Any and all fees charged to subscribers for converters, remote controls, modems or other equipment leased, rented or sold to subscribers in connection with the delivery of cable services;

(4) Any and all fees charged to subscribers for service charges and/or late fees attributable to delinquent accounts;

(5) Any and all revenue collected by grantee from its subscribers for direct payment to a third party as a cost of doing business (including without limitation possessory interest tax, copyright fees, program license fees and subscriber payments for PEG access);

(6) Any and all revenue received from service related activities (as defined herein) including without limitation any and all revenue received from leased access programmers and other users, or the use, license or lease of studio rental and production equipment, or the sale, exchange or cablecast of any programming developed on or for community service channels or institutional users, or the sale of advertising or the lease of channel capacity on a cable system, without deduction for any commission paid to an advertising agency in connection with the sale of advertising on a cable system.

(7) Any and all revenue of any person which is derived directly or indirectly from or in connection with the operation of a cable system, including but not limited to revenue or compensation which is paid by any of the following: (i) the subscribers or users of such cable system, or (ii) the advertisers on such cable system, or (iii) any other party; and is paid to any of the following: (i) the suppliers of programming on such cable system, or (ii) home shopping services in connection with the sales of products or services derived from programming transmitted over such cable system, to the extent such revenue represents payment, in whole or in part, for the use of a channel on the system; or (iii) leased access programmers for programming transmitted over such cable system; and

(8) Refundable deposits.

a. Gross revenues shall not include any tax of general applicability imposed upon grantee by the City, State, Federal or any other governmental entity and required to be collected by grantee and passed through to the taxing entity, provided such taxes are identified as a separate line item on subscriber statements. The franchise fee shall be included in gross revenue.

b. In computing gross revenues from sources other than subscribers, including but not limited to revenue from the sale of advertising, lists of the names and addresses of grantee's, subscribers, home shopping services, guide sales, or the lease of channel capacity over its cable system, which revenue is attributable both to the operation of grantee's cable system inside the City and in areas outside the City, the aggregate revenue received by grantee from such other sources shall first be multiplied by a fraction, the numerator of which shall be the number of grantee's subscribers in the City as of the last day of the relevant billing period and the denominator of which shall be the number of subscribers within all relevant areas served by grantee for that specific service as of the last day of such period, and then assessed for franchise fees.

(100) Normal operating conditions. Those service conditions that are within the control of grantee. Those conditions that are ordinarily within the control of grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. Those conditions that are not in control of grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions.

(105) Person. A natural person, legal entity or other entity, including without limitation, a corporation, trust, partnership, company, business, firm, joint venture, governmental entity, or any other association.

(110) Public right-of-way. Any of the following that are controlled, used or dedicated for use by the public and located within the City's jurisdictional limits: Streets, roadways, highways, avenues, lanes, alleys, sidewalks, rights of way and similar public property within which grantee may place its facilities for operating a cable system.

(115) Service interruption. The loss or impairment of the cable services on one or more channels or frequency bands of the cable system used in connection with the provision of cable services to any subscriber.

(120) Service related activity. Any activity or function for which grantee receives revenue from any user or person other than a subscriber and which is directly associated with the operation of the cable system, or the production or distribution of any cable service or other communications services over the cable system, provided that such revenues are derived from cable services or other communications services transmitted over or used in connection with the cable system serving the City. Service related activity includes, but is not limited to, revenues from advertising sales, home shopping commissions, the sales of products or services, program guide payments, payments from the lessors or purchasers of leased access channel capacity, payments for studio and other facilities or equipment rentals, billing services, audience promotions, and the installation, lease, rental or sale of equipment,

(125) Subscriber. Any person authorized to receive or transmit for any purpose cable services offered by grantee.

(Ord. No. 01-02, § 1(5.40.030), 2-21-2001)

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

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

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

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

(e) This section shall be construed to require a franchise in every instance, except to the extent that such requirement is preempted by State and/or Federal law.

(Ord. No. 01-02, § 1(5.40.040), 2-21-2001)

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

(Ord. No. 01-02, § 1(5.40.050), 2-21-2001)

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

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

(Ord. No. 01-02, § 1(5.40.060), 2-21-2001)

(a) Any franchise granted under this chapter shall be nonexclusive and for a limited duration.

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

(c) The grant of a franchise, right or license to use public right-of-way for purposes of providing cable service shall not be construed as a right or license to use such public right-of-way for any other purpose. If the definition of cable services contained in this Code is reduced or limited by legislative, judicial, or administrative action, then this section shall apply to any such removed or excluded service.

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

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

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

(Ord. No. 01-02, § 1(5.40.070), 2-21-2001)

(a) Subject to those restrictions, if any, that are mandated by law, neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the City from granting additional franchises.

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

(c) Neither the granting of any franchise hereunder, nor any of the provisions contained herein, shall constitute a waiver or bar to the exercise of any governmental right or power of the City, now existing or hereafter granted.

(d) Nothing herein shall be deemed or construed to impair or affect, in any way, or to any extent, the right of the City to acquire the property of grantee through the exercise of the right of eminent domain, at a fair and just value in accordance with applicable law. Nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City's right of eminent domain.

(e) The City Council may do all things which are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Manager is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, in the best interest of the public.

(f) Grantee or any member of the public may appeal a decision of the City Manager to the City Council for hearing and determination within 30 days of receipt of notice of such decision. If no such appeal is made, such decision shall be deemed final. The City Council may accept, reject or modify the decision of the City Manager and may settle or compromise any controversy or cancel any charge arising from the operations of grantee or from any provision of this chapter. Grantee shall have 60 days subsequent to the date of any such action by the City Council (including without limitation a determination of any question of fact) to file an appeal therefrom with an appropriate State or Federal court or agency. All actions by the City Council under this chapter shall be after hearing upon ten days advance written notice to grantee at its address on file with the City. Such actions may be by resolution or minute motion, except that revocation of a franchise shall be by ordinance.

(Ord. No. 01-02, § 1(5.40.080), 2-21-2001)

(a) No franchise shall be transferred, sold, hypothecated, or assigned, nor shall any of the rights or privileges therein be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except grantee, without the prior consent of the City expressed by resolution of the City Council.

(b) Transfer of a franchise includes but is not limited to any transaction in which control of the franchise is transferred from one person or group of persons to another person or group of persons, or ownership or other interest in grantee or its cable system is transferred from one person or group of persons to another person or group of persons, or the rights and/or obligations held by grantee under the franchise agreement are transferred or assigned to another person or group of persons. In addition, a transfer of the franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of 20 percent of (1) the voting interest of grantee, or (2) the person exercising management authority over grantee.

(c) Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("transfer application"). The transfer application shall meet the requirements of Section 6.34.100 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, technical and other qualifications of the transferee.

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

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

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

(Ord. No. 01-02, § 1(5.40.090), 2-21-2001)

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

(b) Territory annexed to the City ("annexed territory") which is not within the franchise area of an existing franchise may be added to grantee's franchise pursuant to City Council resolution adopted after conducting a noticed public hearing.

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

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

(Ord. No. 01-02, § 1(5.40.100), 2-21-2001)

(a) Applications for the grant of a new franchise may be submitted by any person pursuant to the requirements of this chapter. The City may, by advertisement or any other means, solicit applications for a new franchise pursuant to a request for proposal (RFP). The terms and conditions for application made in response to an RFP, including the date by which an application must be received, shall be described therein.

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

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

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

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

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

b. The names, residence and business address of all officers, persons and entities having any share of the ownership of the applicant and the respective ownership share of each person or entity;

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

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

e. A detailed and complete financial statement of the applicants certified by an independent certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the City Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent, in writing, as a recognized lending institution or funding source, to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in the City, or a statement from an independent certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed cable system in the City;

f. A detailed financial plan (pro forma) describing for each year of the franchise, the projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements and a sources and uses of funds statement. All information is to be presented in the format required by the City; and

g. A statement identifying by place and date, any other cable system franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such franchised cable system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;

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

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

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

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

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

e. A detailed statement setting forth in its entirety any and all agreements and undertakings whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate to, pertain to, or depend upon the application and the granting of the franchise;

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

(5) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the City Council in any applicable request for proposal, or by any applicable provision of law.

(Ord. No. 01-02, § 1(5.40.110), 2-21-2001)

(a) Upon receipt of an application for a franchise, the City Manager shall cause to be prepared a report, including recommendations respecting such application, which shall be filed with the City Council, each applicant, and existing grantees.

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

(c) If, upon receiving the City Manager's report, the City Council decides to further consider any application, it shall pass a resolution setting a public hearing for such consideration fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or who wish to file objections may file written comments and appear before the City Council and be heard, and directing the City Clerk to publish said resolution at least once within ten days of the passage thereof in a newspaper of general circulation within the City.

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

(e) At the time set for the hearing, or at any adjournment thereof, the City Council shall proceed to hear all comments. Thereafter, the City Council shall make one of the following determinations:

(1) That such application be denied; or

(2) That a franchise be granted on specified terms and conditions.

(f) Any decision of the City Council concerning award of a franchise pursuant to this chapter shall be final.

(Ord. No. 01-02, § 1(5.40.120), 2-21-2001)

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

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

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

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

(Ord. No. 01-02, § 1(5.40.130), 2-21-2001)

(a) In connection with any application for a new franchise, a franchise renewal or a franchise transfer, each applicant shall pay a filing fee equal to the City's actual costs in processing and analyzing the application. Each applicant shall furnish with its proposal a deposit toward the filing fee in the amount of $15,000.00, by certified or cashier's check made payable to the City. No application shall be considered without receipt of said deposit. The City may draw funds from the deposit as costs are incurred. If the City's actual costs in processing and analyzing the application are less than the amount of the deposit, any remaining funds from the deposit shall be refunded to the applicant within 60 days after final approval or denial of their application. In the event that the deposit is less than the City's actual costs, grantee shall restore the deposit to the original amount within 30 days after written notice from the City that an amount has been withdrawn.

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

(Ord. No. 01-02, § 1(5.40.140), 2-21-2001)

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

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

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

(d) On an annual basis, grantee shall, if requested by the City in accordance with Section 6.34.700, file a complete and accurate statement certified by grantee's chief financial officer, indicating all gross revenues for said year, listing every revenue source, and depicting gross revenue computations. If the City has any concerns or issues relating to contents of said report, the City shall have 60 days to notify grantee and request additional information. Grantee shall have 60 days to provide additional input and data to resolve any concerns or issues to the City's satisfaction. Thereafter, the City may, at its sole discretion, request that said statement be certified by an independent certified public accountant, at grantee's sole cost; provided, however, that any such request shall be made within 60 days after grantee's response is received.

(e) At any time during the term of a franchise, the City shall have the right to conduct, or require grantee to obtain, an independent audit by certified public accountants of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall cooperate with any such audit making readily available any and all information requested by the City relating to the audit. Grantee shall pay all costs of said audits, including all reasonable costs incurred by the City for any technical assistance deemed necessary by the City for obtaining independent verification of technical compliance with all franchise standards and this Code. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this Code and any franchise agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to. This right shall be in addition to City's right to conduct any other audit.

(f) In the event that any franchise fee payment is not made on or before the applicable dates heretofore specified, interest shall be charged monthly at a monthly rate of one and one-half percent. In addition, if any franchise fee is not paid in full within 15 days after receipt of notice from the City as to the delinquency of such payment, a late fee in amount of five percent of the delinquent amount shall be assessed.

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

(Ord. No. 01-02, § 1(5.40.150), 2-21-2001)

State Law reference— Franchise fee, Government Code § 53066.

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

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

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

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

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

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

(6) Failure to provide at least 80 percent of subscribed cable services over all or a substantial portion of the cable system for a period of five days;

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

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

(9) Failure to provide or maintain in full force and effect any of the liability and indemnification coverage, letter of credit or bonds required by the franchise;

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

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

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

(Ord. No. 01-02, § 1(5.40.160), 2-21-2001)

(a) Prior to imposing any sanction or penalty upon grantee, including termination of the franchise, the City Council, the City Manager, or their designee, shall demand in writing that grantee cure said breach within a specified period, which period shall not be less than 30 days following notification. Only 15 days' notice shall be required in the case of failure to pay monies due. In addition, the City may, in an emergency, prescribe a notice less than 30 days consistent with the nature of the emergency.

(b) Should grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by grantee, then the City may, in its sole discretion, elect to either place the issue of termination or other penalty before the City Council or refer said issue to an appropriate hearing officer for his determination.

(Ord. No. 01-02, § 1(5.40.170), 2-21-2001)

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

(b) Should the City Council find that there has been a material breach of the franchise, but that termination of the franchise is inappropriate, then the Council may asses and levy monetary penalties against grantee. This penalty provision is separate and apart from the City's right to enforce the provisions of the construction and performance bonds and liquidated damages.

(c) The City shall cause grantee to be served with written notice of any action taken by the City Council following such public hearing. The decision of the City Council as to such matters shall be final.

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

(Ord. No. 01-02, § 1(5.40.180), 2-21-2001)

(a) The City Manager may, at his sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the franchise or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance or termination. Such hearing proceedings shall be initiated by the City Manager by written notice to grantee.

(b) The hearing officer shall be a retired California Superior Court Judge, retired Appellate Court Judge, retired Federal Court Judge, or other qualified, experienced, and reasonably impartial officer, and shall be selected by the City Manager at his sole discretion.

(c) The hearing officer shall commence a hearing within 90 days of his selection unless the parties and the hearing officer otherwise agree in writing.

(d) Any party to the hearing may issue to the other party a request for production of documents, and/or a total of not more than 25 written interrogatories, and shall be provided with an appropriate response thereto, in the manner and form prescribed by California Code of Civil Procedure §§ 2030 and 2031. Any dispute that is not resolved after a good faith attempt to "meet and confer" shall be submitted to the hearing officer for resolution, and the hearing officer's determinations as to such matter (which may include imposition of appropriate sanctions) shall be final. Neither party shall be required to make any other form of discovery available to the other party.

(e) The hearing officer shall be vested with quasijudicial authority, and shall be empowered to (i) order grantee to undertake remedial action to cure any breach of its obligations under its franchise, (ii) assess liquidated damages and/or levy a penalty upon grantee in accordance with the terms of this chapter and the franchise agreement, (iii) determine that grantee has not violated any of its obligations under its franchise and/or (iv) terminate the franchise. The hearing officer shall enter conclusions of law and findings of fact which must be supported by a preponderance of the evidence.

(f) Except as may be apportioned by the hearing officer in his discretion, each party shall bear one-half of the fees and expenses of the hearing officer, together with any other expenses of the hearing proceedings incurred or approved by the hearing officer. Each party shall bear its own witness and attorneys' fees or other expenses.

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

(h) The decision of the hearing officer shall be final and subject to judicial review pursuant to California Code of Civil Procedure § 1094.5.

(Ord. No. 01-02, § 1(5.40.190), 2-21-2001)

In the event grantee's performance of any of the terms, conditions or obligations of the franchise is prevented by any cause beyond grantee's reasonable control, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified the City in writing within 30 days of its discovery of the occurrence of such an event. In such an instance, grantee shall continue to use its best efforts to perform its obligations, cure any breach and offer appropriate substitute performance where applicable. For the purpose of this section, causes or events not within the control of grantee shall include, but not be limited to acts of God, strikes, sabotage, riots or civil disturbances, epidemic, labor disputes, shortage of labor, freight embargoes, shortages or unavailability of materials and supplies, explosion, natural disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of grantee to perform or failure of grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee.

(Ord. No. 01-02, § 1(5.40.200), 2-21-2001)

The City Council or hearing officer may impose the following penalties for any breach of the franchise, including any breach of subscriber service standards:

(1) Up to $250.000 for each day of each material breach, or such other amount provided in the franchise agreement.

(2) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to twice the maximum penalty allowed for the first such breach.

(3) For a third or further material breach of the same nature occurring within 12 months of the first such breach, where a fine or penalty was previously assessed, up to four times the maximum penalty allowed for the first such breach.

(Ord. No. 01-02, § 1(5.40.210), 2-21-2001)

(a) By acceptance of the franchise granted by the City, grantee understands and agrees that failure to timely comply with any performance requirements as stipulated in this chapter and the franchise agreement deemed material by the City will result in damage to the City, and that it is and will be impractical to determine the actual amount of such damage in the event of delay or nonperformance; the franchise agreement shall include provisions for liquidated damages to be paid by grantee, in amounts set forth in the franchise agreement and chargeable to any security, including without limitation a construction bond, performance bond or letter of credit, for any breach of the franchise, including but not limited to any of the grounds for material breach referred to in Section 6.34.150 of this chapter.

(b) If the City Manager, following prior reasonable notice to grantee to cure any problem that might result in liquidated damages, concludes that grantee is in fact liable for liquidated damages, he shall cause to be issued to grantee by certified mail a notice of intent to assess liquidated damages. The notice shall set forth the basis of the assessment, and shall inform grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council, and the City Council rules that (1) there was no violation, (2) the violation has been corrected, or (3) an extension of time or other relief should be granted in lieu of liquidated damages.

(c) If grantee desires a hearing before the City Council, then grantee shall send a written notice of appeal by certified mail to the City Manager within ten days of the date on which the City sent the notice of intention to assess liquidated damages. The hearing on grantee's appeal shall be within 30 days of the date on which the City mailed the notice of intention to assess liquidated damages. After the hearing, if the City Council sustains in whole or in part the City Manager's assessment of liquidated damages, the City Manager may at any time thereafter draw upon any of the security funds provided for by this chapter and/or the franchise agreement. Unless the City Council indicates to the contrary, said liquidated damages shall be assessed beginning with the date on which the City sent the notice of the intention to assess liquidated damages and continuing thereafter until such time as the violation ceases, as determined by the City Manager. Grantee may appeal any determination of the City Council to an appropriate forum.

(Ord. No. 01-02, § 1(5.40.220), 2-21-2001)

The remedies provided in this chapter are cumulative and in addition to all other rights the City may have at law or equity or under the franchise, which remedies may be exercised at any time. In no event shall the amount of any bond or letter of credit be construed to limit grantee's liability for damages.

(Ord. No. 01-02, § 1(5.40.230), 2-21-2001)

(a) Subject to applicable law, in the event that a franchise is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the City, and at its sole expense, promptly remove all or any portion of its cable system. In removing its cable system, grantee shall refill, at its own expense, any excavation it made and leave all streets in as good condition as that prevailing prior to grantee's removal of its cable system without materially affecting the electrical or telephone cable, wires, or attachments. The liability, indemnity, insurance, security fund and bonds required under the franchise shall continue in full force and effect until such removal is accepted as complete by the City.

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

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

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

(Ord. No. 01-02, § 1(5.40.240), 2-21-2001)

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

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

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

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

(Ord. No. 01-02, § 1(5.40.250), 2-21-2001)

Grantee may be required to obtain and maintain throughout the period of any construction (or reconstruction), at its sole cost and expense, a corporate surety bond from a company authorized to do business in the State of California. Such bond will guarantee the timely construction (or reconstruction) and full activation of the cable system, and the safeguarding of damage to private property and restorage of damages incurred by utilities. The bond shall be filed with the City Clerk at least 30 days prior to the commencement of any construction, and shall be in the form specified and approved by the City Attorney. Bond requirements, including amount, shall be specified in the franchise agreement.

(Ord. No. 01-02, § 1(5.40.260), 2-21-2001)

Grantee may be required to obtain and maintain throughout the term of the franchise, at its sole cost, a corporate surety bond from a company authorized to do business in the State of California. The bond will guarantee performance by grantee of all the provisions and obligations of the franchise (other than construction). The bond shall be filed with the City Clerk within 45 days after the award, renewal or transfer of a franchise and shall be in the form specified and approved by the City Attorney. Bond requirements, including amount, shall be specified in the franchise agreement.

(Ord. No. 01-02, § 1(5.40.270), 2-21-2001)

(a) Grantee shall establish and maintain throughout the term of its franchise a letter of credit in favor of the City. The letter of credit shall serve as security for the faithful performance by grantee of all the provisions and obligations of the franchise. The letter of credit shall be established within 45 days after the award, renewal or transfer of a franchise and shall be in the form specified and approved by the City Attorney. Specific requirements pertaining to the letter of credit, including amount, shall be specified in the franchise agreement.

(b) Grantee shall restore the letter of credit to the original amount within 30 days after notice from the City that an amount has been withdrawn.

(c) Failure to maintain the letter of credit in the required amount shall be considered a material breach of the franchise.

(Ord. No. 01-02, § 1(5.40.280), 2-21-2001)

(a) Grantee shall fully indemnify, defend and hold harmless the City, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities, and judgments for damages, including but not limited to, expenses for legal fees, whether suit be brought or not, and disbursements and liabilities incurred or assumed by the City in connection with:

(1) Damage to persons or property, in any way arising out of or through the acts or omissions of grantee, its servants, officials, agents, attorneys, representatives or employees or to which grantee's negligence or that of their servants, agents, officials, attorneys, representatives or employees shall in any way contribute;

(2) Requests for relief arising out of any grantee action or inaction which results in a claim of invasion of the right of privacy; for defamation of any person, firm or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark or patent; unfair competition or of any other right of any person, firm, or corporation;

(3) Any and all claims arising out of grantee's failure to comply with the provisions of this chapter or a franchise or any Federal, State or local law, ordinance or regulation applicable to grantee, the cable system or cable services. Grantee will not be required to indemnify the City from claims, demands, actions, suits, liabilities and judgments arising out of the sole acts or omissions of the City.

(b) Grantee shall at its sole cost defend the City against any suit brought or threatened against the City in connection with the above matters. Grantee shall pay all such defense costs that accrue or are incurred after the City provides notice to grantee of such suit. Such costs include, but are not limited to, attorney's fees and the reasonable value of services rendered by the City of any of its employees, officials, attorneys, servants, agents or representatives.

(c) The City shall indemnify, and hold harmless grantee, its affiliates and their respective officers, directors, employees and shareholders from and against any and all damages, penalties, judgments and liability of any kind, and defend all claims, actions or causes of action arising as a result of the City's use of PEG channels. This indemnity shall not apply with respect to any programming provided by grantee and carried on such access channels.

(Ord. No. 01-02, § 1(5.40.290), 2-21-2001)

(a) Within 45 days after the effective date of the franchise agreement, grantee shall file with the City Clerk, and shall thereafter during the entire term of such franchise, maintain in full force and effect, at its own expense, a general comprehensive liability insurance policy or policies which shall insure grantee and provide primary coverage for the City, its officers, boards, commissions, agents and employees, against liability for loss or liability for personal injury, death, property damage (both automobile and nonautomobile cause), premises operations, explosion and collapse hazard, underground hazards, or other damages. Such policy or policies shall include insurance against damages from, and any failure by grantee to secure consents, occasioned by any activity or operation of grantee under such franchise, and regardless of any claimed or actual activities of the City, its officers, boards, commissions, agents and employees. Grantee shall also provide a standard broadcaster's liability policy. Each such policy shall contain the standard cross-liability endorsement, shall be issued by a company approved by the City Risk Manager and shall be in a form approved by the City Attorney, with minimum combined single limits of liability coverage or the equivalent thereof in the amount of not less than $5,000,000, or such other amount if expressly stated in the franchise agreement.

(b) The policy or policies shall name the City, its officers, boards, commissions, agents and employees as additional insured (except broadcaster's liability coverage) at no cost to the City, and shall contain a provision that a written notice of any cancellation, modification or reduction in coverage of said policy shall be delivered to the City Clerk 30 days in advance of the effective date thereof. Grantee shall also provide worker's compensation coverage consistent with California statutory requirements.

(Ord. No. 01-02, § 1(5.40.300), 2-21-2001)

The cable system shall be constructed in accordance with the design requirements and construction schedules contained in the franchise agreement.

(Ord. No. 01-02, § 1(5.40.310), 2-21-2001)

Subject to such other conditions provided herein and in the franchise agreement, grantee shall design and construct a cable system that provides at least one drop to every residential dwelling unit within the franchise area. Cable television system construction and provision of service shall be nondiscriminatory, and grantee shall not deny service to any section of the franchise area on the grounds of economic preference.

(Ord. No. 01-02, § 1(5.40.320), 2-21-2001)

(a) Every cable system shall provide, at a minimum:

(1) The operational capability of relaying to subscriber terminals the number of channels of video programming set out in its franchise agreement;

(2) Reception and transmission of broad categories of video programming, subject to economic and commercial feasibility, including local broadcast stations, children's programming, foreign language and multi-cultural programming news and sports channels, premium service programming, and local origination and educational and governmental access channels;

(3) Such PEG facilities, equipment and services as specified in the franchise agreement.

(b) Grantee shall bi-annually poll subscribers to determine subscriber viewing preferences for services and/or programs not currently offered by grantee. The results of said poll shall be provided to the City within 30 days of receipt by grantee.

(Ord. No. 01-02, § 1(5.40.330), 2-21-2001)

After cable service is established in a particular area by activating distribution facilities for the area, grantee shall provide cable service to any requesting subscriber within such area within 30 days from the date of request, provided that grantee is able to secure all rights-of-way necessary to extend service to such subscriber within such 30-day period on reasonable terms and conditions, and subject to the line extension policies of this chapter and the franchise agreement.

(Ord. No. 01-02, § 1(5.40.340), 2-21-2001)

Grantee shall offer access to leased channel(s) to unaffiliated third parties in accordance with the provisions of the Cable Act as amended, any other applicable Federal, State, or local law, and the franchise agreement.

(Ord. No. 01-02, § 1(5.40.350), 2-21-2001)

(a) Grantee shall provide channel capacity for PEG access programming and for local origination programming, as specified in the franchise agreement. Grantee shall not exercise any editorial control over PEG Access channels provided pursuant to this chapter. The City may establish an access corporation to manage and operate the PEG access channels, including receiving funding for operation of the channels.

(b) If specified in the franchise agreement, the City may permit the grantee to utilize unused PEG channel capacity pursuant to a written agreement and subject to any conditions of the franchise agreement.

(Ord. No. 01-02, § 1(5.40.360), 2-21-2001)

Grantee shall provide at least 30 days' advanced written notice to the City and subscribers prior to dropping, retiering or adding any channel to the cable system.

(Ord. No. 01-02, § 1(5.40.370), 2-21-2001)

(a) At no time shall grantee place cable underground without appropriate conduit.

(b) The cable system shall be placed underground in all portions of the franchise area where either telephone or electric lines are underground. Whenever the poles on which the cable system is constructed are eliminated, grantee shall concurrently replace its aerial facilities with underground facilities. At no time shall the cable system be the only aerial facility in any given area.

(c) Where the cable system is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all applicable City, State, Federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures which may from time to time be defined by the City or other applicable government agency. Grantee shall provide a procedure for undergrounding taps and pedestals at subscriber expense and relocating the taps and pedestals within the technical constraints of the cable system.

(Ord. No. 01-02, § 1(5.40.380), 2-21-2001)

Grantee shall be authorized to utilize existing poles, conduit, and other facilities of a public utility, but shall not be authorized to construct or install any new, different, or additional poles in any City streets without prior written approval by the City.

(Ord. No. 01-02, § 1(5.40.390), 2-21-2001)

Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with applicable California Public Utility Commission pole attachment standards, electrical codes and industry standards of the cable television industry generally applicable to the type of cable system which grantee has constructed, owns or operates. Grantee shall adhere to all building and zoning codes currently in force or hereafter enacted. Grantee shall repair and warrant any cuts and/or trenching in the roadway or sidewalks to City standards. Grantee shall locate and maintain its line, cables, and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of said public property by any person.

(Ord. No. 01-02, § 1(5.40.400), 2-21-2001)

The City Manager or designee shall approve the location and method of construction of all underground facilities and equipment located on public right-of-way (including any above-grade portion of such facilities and equipment). The City Manager or designee shall also approve the location and installation of all new aerial facilities consistent with Public Utilities Commission, General Order 95. All construction shall be subject to City permit and inspection fees as may be required by other applicable laws or regulations heretofore or hereafter adopted, including, but not limited to, those pertaining to works and activities in, on, under or over the public rights-of-way.

(Ord. No. 01-02, § 1(5.40.410), 2-21-2001)

Grantee shall file with the City "as-built" drawings of the entire cable system. Additionally, within 30 days after completion of any material modification of the cable system (e.g., a system rebuild or distribution facility replacement), grantee shall file appropriately "as-built" drawings of the modified cable system.

(Ord. No. 01-02, § 1(5.40.420), 2-21-2001)

(a) Grantee shall remove or relocate at its sole cost any facilities installed, used or maintained in connection with the franchise if and when such removal or relocation is made necessary by any project. For purposes of this section, the word 'project' means any lawful change of grade, alignment or width of any public street, way, alley or place, including but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, area of benefit, reimbursement agreement or generally applicable impact fee program. This section shall not apply to any assessment district for the undergrounding of aerial facilities on residential collector streets.

(b) In the event that such removal or relocation is required, grantee shall commence physical field work on the removal or relocation on or before 120 days after written notice of such requirement is provided by the City Manager. If, despite its reasonable efforts, grantee is unable to commence removal or relocation within such period, grantee shall provide the City Manager with written notice explaining in detail the reason(s) for the delay and a date certain upon which such removal or relocation is expected to commence. Grantee shall diligently proceed and promptly complete all such removal or relocation after it is commenced.

(Ord. No. 01-02, § 1(5.40.430), 2-21-2001)

Should grantee fail, refuse or neglect to properly perform any maintenance or construction work required by the franchise following due notice from the City and a reasonable opportunity to cure as provided for under this chapter, or should grantee fail to commence performance of such work within the period of time allowed therefore, or fail to diligently proceed and promptly complete such work thereafter, the City Manager may, upon five days' prior written notice to grantee (except in cases of emergency), cause such work or other act to be completed in whole or in part by the City forces or others, and upon so doing shall submit to grantee an itemized statement of the costs thereof. Grantee shall, within 30 days after receipt of such statement, pay to the City the entire amount thereof, without off-set or deduction. In the event grantee fails to pay said costs for a period of at least 30 days after they are due, the City may assess the letter of credit provided for in this chapter, in accordance with the provisions of this chapter.

(Ord. No. 01-02, § 1(5.40.440), 2-21-2001)

Grantee shall comply at all times with FCC technical standards and such other standards that may from time to time be established by the City or any other authorized agency by any law. Any such standards established by the City shall be consistent with its authority to do so, as cited in Section 6.34.010, and made by resolution on the basis of the evidence presented at a noticed public hearing.

(Ord. No. 01-02, § 1(5.40.450), 2-21-2001)

(a) Upon request by the City not to exceed once per year, grantee shall perform at its sole cost and expense all tests necessary or reasonable to verify its compliance with all applicable technical standards. Such tests shall commence within 30 days after the City makes any such request and shall conclude within a reasonable time thereafter. Grantee shall provide the City a copy of its test results within 30 days after the tests are complete. The City shall have the right to witness any such testing if it so desires.

(b) If at any time the City receives a substantial number of complaints or other evidence which indicates that grantee may not be in compliance with applicable technical standards, the City may order grantee to perform additional tests to verify compliance with such standards. The cost of any such tests, and any necessary retests, shall be borne entirely by grantee.

(c) Grantee shall at all times permit reasonable access to the cable system to permit the City or its consultants to conduct their own tests. In the event that grantee is determined by such tests to be noncompliant with applicable technical standards, grantee shall pay the full cost of such tests. Otherwise, such costs shall be paid by the City.

(Ord. No. 01-02, § 1(5.40.460), 2-21-2001)

(a) Grantee shall interconnect the PEG channels of its cable system which serve the City with those of competing cable systems within the City. The manner and time of such connection may be prescribed by the City unless expressly provided for in the cable agreement.

(b) Immediately upon request by the City, grantee shall contact all owners of competing cable systems regarding PEG channel interconnection with such systems and make a report to the City Manager within 60 days thereafter. Such report shall state the terms, conditions, timing, and cost of interconnecting the City's PEG channels with those of each such competing cable system.

(Ord. No. 01-02, § 1(5.40.470), 2-21-2001)

Grantee shall comply with the FCC customer service guidelines contained at Section 76.309 of Title 47 of the Code of Federal Regulations, and such additional standards that may be imposed by ordinance, and each of the following requirements:

(1) The grantee shall maintain a local, toll-free or collect call telephone access line (access line) which will be available to its subscribers 24 hours a day, seven days a week.

(2) Trained, knowledgeable and qualified customer service representatives will be available to respond to customer telephone inquiries during normal business hours. Which shall be a minimum of 59 hours weekly, from 7:00 a.m. to 6:00 p.m., Monday through Friday, and at least four additional hours one evening per week or on Saturdays (or such other times as are approved in writing by the City Manager).

(3) During nonbusiness hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received during such hours must be responded to by a trained company representative during the next business day.

(4) A business and service office located within the City shall be open Monday through Friday from 7:00 a.m. to 6:00 p.m., and adequately staffed to accept subscriber payments and respond to service requests and complaints. Additionally, grantee will staff the business and service office at least four additional hours one evening per week or on Saturdays, other locations and hours are permissible as are appeared in writing by the City Manager.

(5) Telephone answer time by grantee's customer service representatives, including waiting time, shall not exceed 30 seconds after a connection is made, and a busy signal shall not be obtained more than three percent of the time. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90 percent of the time under normal operating conditions, measured on a quarterly basis. Grantee shall have equipment and perform surveys to measure compliance with these telephone answering standards. The results of the surveys shall be submitted to the City quarterly.

(6) Grantee shall provide and maintain an emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24 hour basis.

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

(8) Under normal operating conditions, grantee shall respond to subscriber requests for service within the following time frames no less than 95 percent of the time measured on a quarterly basis:

a. System outages. Within two hours, including weekend days, of receiving subscriber calls which, by number of calls, identify a cable system outage of sound or picture of one or more channels, or a loss of any other cable service, affecting five percent or more of the subscribers of the cable system.

b. Service interruptions. Within 24 hours, excluding Sundays and holidays, after the interruption becomes known.

c. Inferior reception quality. Within 48 hours after receiving a request for service identifying a problem concerning picture or sound quality.

(9) Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location, if necessary, or otherwise begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival.

(10) The appointment window alternatives for installations, service calls, and other installation activities offered to a subscriber will be either a specific time or, at a maximum, a four-hour time block during normal business hours. A grantee may schedule service calls and other installation activities outside of normal business hours or outside the parameters of response time outlined above for the express convenience of the subscriber.

a. A grantee shall, in accordance with California Civil Code § 1722(b), inform subscribers of their right to service connection or repair within a four-hour period, if the presence of the subscriber is required, by offering the four-hour period at the time the subscriber calls for service connection or repair. Grantee also agrees to notify all subscribers by mail of their rights under California Civil Code § 1722(b) at least annually during each year of the franchise.

b. If the service connection or repair is not commenced within the specified four-hour period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of a grantee, the subscriber may bring an action in small claims court against the grantee for lost wages, expenses actually incurred, or other actual damages, not exceeding a total of $500.00 in accordance to State law.

(11) Standard installations will be performed within seven business days after an order has been placed. Standard installations are those that are located up to 150 feet from the existing distribution system. If the grantee cannot perform the standard installation within seven business days of request by a subscriber, the subscriber may request and is entitled to receive a $10.00 credit. If the grantee fails to provide the $10.00 credit and the request was made by the subscriber within 45 days of the installation request, the City may direct the grantee to issue the credit.

(12) In the event that any services to any subscriber are interrupted for forty-eight or more hours in any seven-day period, except for acts of God or other circumstances beyond grantee's control and outside the system, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager, grantee shall provide a 20 percent rebate of the monthly fees to affected subscribers.

(13) Grantee shall have equipment and perform surveys to measure compliance with the telephone answering standards set forth in this section. The results of the surveys shall be submitted to the City quarterly. After one year of submitting telephone-answering surveys to the City, grantee may request that it be relieved of the requirement of submitting such surveys. The City Manager, or designee, may relieve grantee of the survey requirement if he finds, based on the surveys and the level of customer complaints, that grantee is in full compliance with telephone answering standards. City reserves the right to reinstitute this requirement if the City receives three complaints in any 12-month period of grantee failing to meet these telephone answering standards.

(Ord. No. 01-02, § 1(5.40.480), 2-21-2001)

All personnel, agents and representatives of grantee who have contact with subscribers and/or the public, including subcontractors, shall wear photo identification badges. Grantee shall provide a list of current employees, contractors and subcontractors to the City upon request.

(Ord. No. 01-02, § 1(5.40.490), 2-21-2001)

Grantee shall provide written information on each of the following areas at the time of installation of service, and at least annually, to all subscribers and at any time upon request by any resident of the City:

(1) Products and services offered;

(2) Prices and options for programming services and conditions of subscription to programming and other services;

(3) Installation and service maintenance policies;

(4) Instructions on how to use the cable service;

(5) Cable channel positions and identification;

(6) Customer service telephone number and office hours;

(7) Billing and complaint procedures, including how to resolve subscriber billing disputes;

(8) Credit procedures;

(9) Employee identifications;

(10) Service call response time scheduling;

(11) Time allowed to pay outstanding bills;

(12) Grounds for termination of service;

(13) Steps grantee must take before disconnecting or terminating service, and the steps necessary to have service reconnected after involuntary termination;

(14) The subscriber's right to speak with a supervisor and, if none is then available, that a supervisor shall return the subscriber's call within one working day;

(15) The appropriate regulatory authority with whom to register a complaint, including any rate complaint, and how to contact such authority.

(16) Instructions on the channel compatibility problems that occur when using a set-top channel converter to view scrambled or encrypted programming, including that subscribers may not be able to use special features and functions of their TV receivers and videocassette recorders.

(17) Instructions regarding the availability of remote control equipment from other sources, such as retail outlets, and a list of the models of remote control units currently available from retailers that are compatible with grantee's converters.

(Ord. No. 01-02, § 1(5.40.500), 2-21-2001)

(a) Grantee shall demonstrate compliance with all of the standards contained in (or referenced by) Section 6.34.470 by providing quarterly customer service reports to the City. The reports shall provide the following information:

(1) Volume of telephone calls received by the customer service department.

(2) Percentage of time trunk lines were busy, and the abandonment rate.

(3) Average time to complete out-of-service calls, and all other service calls.

(4) Average time to complete new installations.

(5) Detailed customer complaint and outage reports.

(b) Grantee shall maintain a written log or an equivalent stored in computer memory and capable of access and reproduction, for three years indicating the time and date of all service interruptions, requests for cable service or repairs, and responses to request for cable service or repairs.

(Ord. No. 01-02, § 1(5.40.510), 2-21-2001)

(a) Grantee's complaint handling procedures shall be designed to accomplish the following:

(1) Receive and acknowledge any complaint made in person or by telephone within 15 minutes, regardless of the time the complaint is made.

(2) Acknowledge any complaint received by mail within three business day of the date such complaint is received.

(3) Complaints not resolved within 24 hours of receipt shall be listed in a log of "delayed action on complaints" which shall give the detailed reasons for nonresolution within the 24-hour period.

(4) Provide the complainant access to the grantee's senior management personnel on a basis convenient to the complainant in the event resolution is not immediately obtained by grantee's personnel normally assigned to handling complaints.

(5) Provide complete information to the complainant regarding his ability to take his complaint to the grantor's representative if it is not resolved by the grantee.

(6) Grantee shall include notices of proposed rate adjustments in its regular billings at least one month prior to the public hearing on the rate request.

(b) Grantee shall establish procedures receiving, acting upon and resolving subscriber complaints to the reasonable satisfaction of the City Manager. The grantee shall furnish a notice of such procedures to each subscriber at the time of initial subscription to the system.

(c) Grantee shall maintain a written record, or "log" listing date and time of customer complaints, identifying the subscriber and describing the nature of the complaints and when and what action was taken by the grantee in response thereto; such record shall be kept at grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection during regular business hours without further notice or demand by the City Manager.

(d) As subscribers are connected or reconnected to the cable system, the grantee shall, by appropriate means such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of grantee's employee or agent to whom such inquiries or complaints are to be addressed and furnish information concerning the City office responsible for administration of the franchise with the address and telephone number of the office.

(e) Grantee shall provide written notice to each subscriber at intervals not to exceed one year of the procedure for reporting and resolving subscriber complaints, including the subscriber's right to complain in writing to the City of grantee's failure to resolve a service complaint which is preventable and reasonably with grantee's control. The proper address of the City and grantee to which complaints may be directed shall be included in said notice.

(f) In the event that a customer complaint is not resolved to the mutual satisfaction of the customer or the grantee, either the customer or the grantee may request that the matter be presented to the City Manager for a hearing and resolution.

(g) In the event that the decision by the City Manager is unsatisfactory to either party, the City Manager may submit the complaint to arbitration under the rules of the American Arbitration Association. In such a case, the decision of the arbitrator shall be final. The losing party shall pay all costs associated with the arbitration process.

(Ord. No. 01-02, § 1(5.40.520), 2-21-2001)

(a) The grantee shall not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate either a substantial problem with theft of basic tier service or a strong need to scramble basic signals for other reasons.

(b) The grantee shall comply with equipment compatibility rules and commercial availability of navigation equipment rules of the FCC.

(c) The grantee shall offer subscribers the option to receive an A/B switch at the time of initial cable service installation and shall provide subscribers with written information as to how to use such a switch. The grantee may charge a reasonable price for said switch. Upon subscriber request, the grantee shall provide an A/B switch after the initial installation of cable service. If the subscriber requests installation of such a switch (to receive broadcast television without cable hookup), the grantee may charge reasonable fees for such installation and equipment.

(Ord. No. 01-02, § 1(5.40.530), 2-21-2001)

In the event that the system fails to meet any performance standards for a full three-month period, grantee shall reduce all subscribers fees by 25 percent until all performance standards are met. The City Manager shall notify the grantee during the first month of the three-month period that the system has failed to meet performance standards.

(Ord. No. 01-02, § 1(5.40.540), 2-21-2001)

The City may regulate a grantee's rates, charges, and prices to the maximum extent permitted by law now or at a future time.

(1) Filing of rates and charges. Throughout the term of any franchise agreement entered into pursuant to this chapter, grantee shall maintain on file with the City a complete schedule of all rates and charges related to providing cable services under the franchise, in a form satisfactory to the City.

(2) Changes in rates and charges. Grantee shall provide written notice to the City and subscribers at least 30 days in advance of any proposed changed in rates and charges within the control of grantee.

(3) Regulation of equipment for hearing impaired. To the extent authorized by law, the City reserves the right to require and regulate the installation or rental of equipment which facilitates the reception of cable service by hearing impaired individuals.

(Ord. No. 01-02, § 1(5.40.550), 2-21-2001)

Billing procedures shall be as follows:

(1) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including:

a. A list of each service or package received for that billing period;

b. The rate or charge for each service or package received;

c. The period of time over which said services are billed;

d. The total charges due for the monthly period, separate from any previous balance due;

e. Credits posted during the month; credits for service will be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.

f. A specific date by which payment is required; and

g. The customer service telephone number to which billing inquiries or complaints can be directed.

(2) A grantee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.

(3) A grantee's billing statement must show a specific payment due date, and no late payment fee may be imposed on a subscriber earlier than 30 calendar days from the due date on the billing statement. Any balance not received within 30 calendar days of the due date may be assessed a late fee consistent with this chapter. Any late fee assessed must appear on the following month's billing statement.

(4) A grantee must notify the subscriber that he can remit payment in person at the grantee's office located in or near the City and inform the subscriber of the address of that office.

(5) Every customer who pays his bill directly shall have at least 15 days from the date of the bill for services is mailed to pay the listed charges. Customer payments shall be posted promptly. The grantee shall not terminate any residential service for nonpayment of a delinquent account without 15 days prior written notice. Such notice shall not be mailed until after the 16th day from the time the bill for services was mailed to the customer. The grantee may not assess a late charge earlier than the 22nd day from the time the bill for services has been mailed.

(6) In case of a billing dispute, the grantee must respond to a written complaint from a subscriber within 30 days.

(7) At the time of the initial complaint, grantee shall provide written or verbal notice to customer that in the event of a billing dispute, the grantee, upon resolution of the dispute when grantee is at fault, shall waive a late fee.

(8) Subscribers shall not be charged a late fee or otherwise penalized for any failure by the grantee, its employees, or contractors, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscribers for a payment made in a timely manner.

(9) Every notice of termination of service shall include: name and address of subscriber whose account is delinquent; the amount of the delinquency; the date by which payment is required in order to avoid termination of service; the telephone number of the grantee for additional information and/or to handle complaints or initiate an investigation concerning service and charges in question.

(10) Service may only be terminated on days and at times in which the subscriber can reach a customer service representative of the grantee either in person or by telephone.

(11) The grantee shall afford each subscriber of the cable system with a right to rescind the subscriber's ordering of service within three days after ordering, provided that such right of rescission shall end upon activation of the service ordered

(12) The grantee will not pass-through franchise fees to subscribers which exceed 5.25 percent of the amount shown on the bill for cable services and equipment. Pass-through of ancillary revenue such as advertising and home shopping is expressly prohibited.

(13) The grantee's late fees shall closely approximate the actual loss suffered as the result of late payments. If the City believes that grantee's late fee structure is above actual costs, the City shall provide written notice of its belief to grantee. Within 15 days of receipt of that written notice, grantee shall provide to City sufficient evidence to show its actual costs, and if necessary shall adjust the amount of its late fees accordingly. In no event shall a late fee exceed the maximum amount permissible under California law.

(14) Any franchise agreement entered into pursuant to this chapter may contain provisions for a discount on basic and cable programming tiers or any other cable services for persons with specific income and disability qualifications.

(15) Grantee will set rates for equipment deposits no higher than the actual replacement value of the equipment for which the deposit is applied. Equipment deposits shall be promptly returned to subscribers upon the return in good working condition to the grantee of the equipment for which said deposit was required.

(Ord. No. 01-02, § 1(5.40.560), 2-21-2001)

(a) Refund checks will be issued promptly, but no later than either:

(1) The subscriber's next billing cycle following resolution of the request or 30 days, whichever is earlier, or

(2) In cases involving the return of the equipment supplied by the grantee if service is terminated for any reason, by the subscriber's next billing cycle following resolution of the request or 30 days, whichever is earlier.

(b) If the grantee does not mail a check for a refund to any subscriber disconnecting service with an outstanding credit within the next billing cycle or 30 days, whichever is earlier, the subscriber may request and is entitled to receive a $10.00-payment. In addition to the initial refund (and applicable interest) due, if the grantee fails to provide the $10.00-payment and the request was made by the subscriber within 45 days after failure to receive the refund, the City may direct the grantee to provide the $10.00-payment as well as any outstanding refund (and applicable interest) due.

(Ord. No. 01-02, § 1(5.40.570), 2-21-2001)

Grantee shall provide written notice to the City and subscribers at least 30 days in advance of the implementation of changes in any of its rates and charges which are not subject to regulation by the City.

(Ord. No. 01-02, § 1(5.40.580), 2-21-2001)

(a) Service availability.

(1) No person, firm or corporation in the existing service area of a grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge hereby authorized.

(2) A grantee shall not deny any cable service or otherwise discriminate against subscribers or others on the basis of race, color, religion, national origin, sex, age or sexual preference. A grantee shall strictly adhere to the equal employment opportunity requirements of Federal, State or local governments and shall comply with all applicable laws and executive and administrative orders relating to nondiscrimination.

(3) A grantee may not require the subscription to any tier other than the basic service tier as a condition of access to video programming offered on a per channel or per program basis. A grantee may not discriminate between subscribers to the basic service tier and other subscribers with regard to the rates charged for video programming offered on a per channel or per program basis.

(4) A grantee will abide by all customer privacy requirements of Federal and State law. At least annually, a grantee shall provide notice in the form of a separate, written statement to each subscriber, which clearly and conspicuously informs the subscriber of:

a. The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information;

b. The nature, frequency and purpose of any disclosure, which may be made of such information, including the identification of the types of persons to whom the disclosure may be made;

c. The period during which such information will be maintained by the grantee;

d. The times and place at which the subscriber may have access to such information in accordance with Federal and State law; and

e. The limitations provided in Federal and State law with respect to the collection and disclosure of information by a grantee and the right of the subscriber under law.

(b) Data collection. A grantee's data collection and dissemination practices regarding subscribers shall be in compliance with the Cable Act (including Section 631) and this chapter.

(c) Revealing subscriber preferences.

(1) A grantee shall not reveal 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 prior written consent of the subscriber.

(2) Such written consent, if given, shall be limited to a period of time not to exceed one year or a term agreed upon by the grantee and subscriber.

(3) A grantee shall not condition the delivery or receipt of cable services to any subscriber on any such consent.

(4) Such a subscriber may revoke without penalty or cost any consent previously made by delivering to the grantee in writing a substantial indication of his intent to so revoke.

(d) Revealing subscriber lists. A grantee shall not reveal, or sell, or permit the release or sale of its subscriber list without the prior affirmative written consent of each subscriber, provided that the grantee may use its subscriber list as necessary for the construction, marketing, and maintenance of the grantee's services and facilities authorized by its franchise, and the related billing of subscribers for cable services. Consistent with applicable law, City may use grantee's subscribers list for the purpose of communication with subscribers in connection with matters relating to operation, management, and maintenance of the cable system, except in accordance with Section 631 of the Cable Act.

(e) Other persons affected. This section shall apply to all of the following as well as to any grantee:

(1) Officers, directors, employees and agents of the grantee;

(2) General and limited partners of the grantee;

(3) Any person or combination of persons owning holding or controlling five percent or more of any corporate stock or other ownership interest of the grantee;

(4) Any affiliated or subsidiary entity owned or controlled by the grantee, or in which any officer, director, stockholder, general or limited partner or person or group of persons owning, holding or controlling any ownership interest in the grantee, shall own, hold or control five percent or more of any corporate stock or other ownership interest;

(5) Any person, firm or corporation acting or serving in the capacity of holding or controlling company of the grantee.

(Ord. No. 01-02, § 1(5.40.590), 2-21-2001)

Under normal operating conditions, grantee shall provide written or oral notice, in light of circumstances, prior to entry whenever desiring to enter any private property.

(Ord. No. 01-02, § 1(5.40.600), 2-21-2001)

Subscribers shall be given at least 30 days written notice of any scrambling of a channel, and any de-scrambling of a channel(s) containing R-rated or stronger programming. Subscribers do not need to be notified of black-out periods required of the grantee by programmers.

(Ord. No. 01-02, § 1(5.40.610), 2-21-2001)

(a) Grantee shall provide cable services in accordance with its franchise, including at a minimum the following broad categories of programming: general entertainment; sports; local broadcast stations; cultural programming; news; classic, foreign, and special interest films; contemporary movies; documentaries and information programming; government programming; children's programming; and foreign language programming.

(b) If any listed broad category of programming shall become unavailable, or cannot be provided under existing FCC regulations, grantee shall provide substitute programming of the same category if possible.

(c) At least once every three years, the grantee at its expense shall survey its subscribers to evaluate their programming interests and quality of grantee's services and operations and report the results to the City. Such survey shall be prepared and performed by professionally qualified independent survey specialists who are not affiliated with the grantee. The City shall be permitted to review the qualifications of the survey specialists and shall also be consulted as to the questions to be asked in the survey and for any other suggestions that might assure the quality, objectivity and statistical validity of the survey. Grantee shall provide the City with a copy of each survey and supporting documentation within 30 days of receipt of the survey results or report from the survey specialists by the grantee.

(Ord. No. 01-02, § 1(5.40.620), 2-21-2001)

Grantee shall provide support for PEG programming pursuant to the provisions of the franchise agreement.

(Ord. No. 01-02, § 1(5.40.630), 2-21-2001)

(a) Grantee shall extend energized distribution facilities from any existing terminus of the cable system to any area immediately adjacent thereto located within grantee's franchise area having a density of at least 20 residential dwelling units per mile as measured from that terminus, or prorated portion thereof, provided that each such dwelling unit is to be located within a distance of no more than a standard 150-foot-drop as measured from the anticipated location of such distribution facilities, and the grantee is able to secure all necessary easements or rights-of-way for purposes of locating its cable system in the area of such extension, including the location of all distribution facilities and drop cables, on reasonable terms and conditions. Each unit in a multiple dwelling unit shall be considered in establishing the minimum density required for a mandatory line extension.

(b) Grantee shall extend cable television services to any isolated residences or commercial premises located within the City but not satisfying the terms of Subsection (a) of this section, at a premium installation rate and upon request by the resident or owner. The premium installation rate charged shall be the actual time and materials expended making the extension, including the costs, if any, of improving the distribution facilities to permit such extension. Grantee may request advance payment for such installation.

(Ord. No. 01-02, § 1(5.40.640), 2-21-2001)

It is the City's intent that tenants not be discriminated against in the ability to subscribe to cable services. Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by grantee, to the following:

(1) Grantee's providing the service to units of the facility on such terms and conditions as are reasonable, provided that the owner of the facility shall not seek to charge grantee any fee or consideration for access to the facility or for the right of providing cable service to the dwelling units within the facility, grantee shall not seek to charge the owner of the facility any fee or consideration for installing such service other than its actual costs as provided for herein, and such terms and conditions shall be in compliance with applicable law;

(2) Reasonable access to the premises by grantee for installation, maintenance, and inspection of the system on the premises;

(3) Reasonable conditions promulgated by grantee to protect grantee's equipment and to encourage widespread use of the system;

(4) The owner shall not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not; and

(5) The owner shall provide all easements, rights-of-way and other rights of access deemed reasonably necessary or appropriate by grantee for purposes of providing cable television service to the facility.

(Ord. No. 01-02, § 1(5.40.650), 2-21-2001)

(a) Subscribers shall have the right to continue to receive service so long as their financial and other obligations to grantee are honored. Grantee shall at all times, and under all conditions, to the greatest extent economically and technically possible, maintain continuity of service. In the event of an assignment of the cable system, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all subscribers.

(b) In the event grantee willfully fails to operate the cable system for a period of five consecutive days without prior approval of the City, the City may, in its sole discretion, elect to operate the cable system or designate an operator until grantee restores service under conditions acceptable to the City, or until the City selects a permanent operator. During the entire period while the City operates the cable system on behalf of grantee, or causes another party to do so, the City shall be entitled to collect any and all revenues from the operation of the cable system, and grantee shall reimburse the City for all reasonable costs or damages in excess of the revenues collected by the City that are caused by grantee's failure to perform.

(Ord. No. 01-02, § 1(5.40.660), 2-21-2001)

The City shall have the right, upon two business days advanced notice, to inspect all books, records, maps, plans, gross revenues, service complaint logs, performance test results and other like materials of grantee which reasonably relate to grantee's compliance with the provisions of the franchise. If the records are not located within Orange County, grantee shall pay all of the City's reasonable expenses in order to messenger the records to a suitable location in Orange County or for travel to and accommodations at the place where the records are located.

(Ord. No. 01-02, § 1(5.40.670), 2-21-2001)

(a) An accurate and comprehensive file shall be kept by grantee of any and all written complaints, inquiries, or requests for service or repairs regarding the cable system. This file and the records contained therein shall be open to the public during normal business hours and individuals shall be allowed to inspect their own files.

(b) Records of grantee's actions in response to all complaints or inquiries which result in a service call shall be entered into a data base, or log. For each complaint or request for service or repairs ("complaint"), the log shall list the date the complaint was made, identify the subscriber who made the complaint, describe the nature of the complaint, and identify the time and nature of the action taken by grantee in response to the complaint. A separate log shall identify system outages. All such records shall be maintained for a period of three years, and shall be available for inspection in accordance with Section 6.34.660. Summaries of all records identified in this section be available monthly and delivered quarterly to the City Manager or his designated representative.

(Ord. No. 01-02, § 1(5.40.680), 2-21-2001)

Any physical damage caused by employees, contractors or subcontractors of grantee to private or public property shall be promptly repaired or replaced at the sole cost of grantee. This section shall not affect any remedy that grantee may have against such employee, contractor or subcontractor respecting such costs.

(Ord. No. 01-02, § 1(5.40.690), 2-21-2001)

The City reserves the right to at any time condemn the franchise, or any other property or plant of grantee, in accordance with the Cable Act and any other applicable law.

(Ord. No. 01-02, § 1(5.40.700), 2-21-2001)

(a) Within 90 days after the close of grantee's fiscal year, grantee shall submit a written annual report, if requested, in a form approved by the City, which shall include without limitation the following information:

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

(2) A revenue statement in accordance with Section 6.34.140(d) of this chapter;

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

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

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

(6) Grantee's annual and other periodic public financial reports and those of its parent, subsidiary and affiliated corporations and other entities;

(7) A summary of the cable system which shall indicate miles and homes passed;

(8) Annual proof of performance tests, in sufficient detail to enable the City to ascertain that the technical standards of the franchise are achieved and maintained.

(b) In addition, grantee shall furnish to City any reports required by the franchise agreement in the time and manner specified in that franchise agreement.

(Ord. No. 01-02, § 1(5.40.710), 2-21-2001)

Copies of all reports materially adversely affecting the franchise submitted by grantee to the FCC or any other Federal or State agency shall be submitted to the City simultaneously with filing such reports with said agencies. Grantee's routine public correspondence to said agencies need not be automatically submitted to the City, but shall be made available to the City upon written request.

(Ord. No. 01-02, § 1(5.40.720), 2-21-2001)

The refusal, failure, or neglect of grantee to file any of the reports required under this chapter, or the inclusion of any materially false or misleading statement or representation made knowingly by grantee in any report, shall be deemed a material breach of the franchise, and shall subject grantee to all remedies, legal or equitable, which are available to the City under the franchise or otherwise.

(Ord. No. 01-02, § 1(5.40.730), 2-21-2001)

Grantee shall allow the City to make inspections of any of grantee's facilities and equipment relevant to the franchise at any time upon reasonable notice or, in a case of emergency, upon demand without prior notice.

(Ord. No. 01-02, § 1(5.40.740), 2-21-2001)

The City shall be provided with copies of all subscriber satisfaction surveys that grantee conducts.

(Ord. No. 01-02, § 1(5.40.750), 2-21-2001)

(a) At the City's sole election and discretion, within 90 days of the first anniversary of the effective date of a franchise, and every year thereafter throughout the term of the franchise, the City may hold a public hearing at which grantee shall be present and shall participate, to review the performance and quality of service of the cable system. The reports required herein regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing to be considered.

(b) Within 30 days after the conclusion of the public hearing, the City may issue a report with respect to cable system performance and quality of service. If any noncompliance with the franchise is found, the City may direct grantee to correct the noncompliance within a reasonable period of time in accordance with the provisions of this chapter.

(c) Grantee's failure, after due notice and opportunity to cure as set forth in this chapter, to correct the noncompliance shall be considered a breach of the franchise, and the City may, at its sole discretion, exercise any remedy within the scope of this chapter deemed by the City to be appropriate.

(Ord. No. 01-02, § 1(5.40.760), 2-21-2001)

To address technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, and to promote flexibility in the cable system, the following system and services review procedures are hereby established:

(1) At the City's sole election and discretion, the City may hold a public hearing on or about the first anniversary date of the franchise agreement at which grantee shall be present and shall participate, to review the cable system and cable services. Subsequent system and services review hearings may be scheduled by the City thereafter at no more frequently than one year intervals.

(2) Sixty days after receiving a written request therefore from the City, grantee shall submit a report to the City indicating the following:

a. Information reasonably available to grantee identifying cable services and related technologies reported in cable industry trade journals that are commonly provided on an operational basis, excluding tests and demonstrations, to communities in the United States with comparable populations, that are not provided to the City.

b. Any specific plans for provision of such new services and technologies by grantee.

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

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

(5) Not later than 60 days after the conclusion of each system and service review hearing, the City may issue a report, including specifically a listing of any cable services not then being provided to the City that are considered technically and economically feasible and for which there is a demonstrated demand among grantee's subscribers in relation to the cost thereof. The City may request, but not require, grantee to provide such services within a reasonable time.

(Ord. No. 01-02, § 1(5.40.770), 2-21-2001)

Subject to grantee's rights under its franchise agreement, grantee shall at all times comply with all applicable laws and regulations of the Federal, State, or local government, or any administrative agencies thereof. However, if any such law or regulation shall require grantee to perform any service, or shall permit grantee to delete any service, or shall prohibit grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the City, then as soon as possible following knowledge thereof, grantee shall notify the City of the point of conflict believed to exist.

(Ord. No. 01-02, § 1(5.40.780), 2-21-2001)

Grantee shall maintain within the County of Orange throughout the term of the franchise an address for service of notice by mail.

(Ord. No. 01-02, § 1(5.40.790), 2-21-2001)

(a) The design of the division of land shall provide each grantee an opportunity to construct, install and maintain, on land identified on the map as dedicated or to be dedicated to public utility use, any equipment necessary to extend cable services to each residential parcel in the subdivision. This division shall not apply to the conversion of existing dwelling units to condominiums, community apartments, or stock cooperatives.

(b) Subject to all applicable Federal and State laws, statutes and regulations, in the event of multiple cable television operators desiring to serve new residential developments in which the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements:

(1) The developer shall at its sole cost and expense contact and survey every person who lawfully provides cable services and/or related services to residents in the City using a cable system or similar transmission line system (collectively, "cable operator"), and thereby ascertain which such cable operator(s) desire or are required to service the development. The developer may establish a reasonable deadline to receive such responses. The final tract map shall indicate the cable operator(s) who have agreed to serve the development.

(2) If one or more cable operator(s) desire to service the development, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis.

(3) The developer shall provide at least ten working days' notice of the date that utility trenches will be open to the cable operators that have agreed to service the development.

(4) Sharing the joint utilities trench shall be subject to compliance with Public Utilities Commission and Utility Standards. If such compliance is not possible, or if three or more cable operators desire to provide service to the development, the developer shall provide a separate trench for the transmission lines, with the entire cost shared among the participating cable operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law.

(5) Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs; provided that if the developer failed to provide such cable operator timely written notice of the availability of such trenches as required herein, then the developer shall reimburse the operator for such costs.

(Ord. No. 01-02, § 1(5.40.800), 2-21-2001)