Long Beach Municipal Code Ch. 15.74 Cable System Regulatory Ordinance of the City of Long Beach

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Note— Prior ordinance history: Ords. C-6175, C-6202, C-6539 and C-7021.

A. Authority. The City of Long Beach ("City"), pursuant to applicable federal and State law, is authorized to grant one (1) or more nonexclusive franchises to own, construct, operate, maintain and reconstruct cable systems within the City limits.

B. Findings. The City Council of the City of Long Beach ("City Council") finds that the development of cable television and telecommunications systems has the potential of having great benefit and impact upon the residents of the City. Because of the complex and rapidly changing technology associated with cable systems, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City may designate. It is the intent of this Chapter to provide for and specify the means to attain the best possible cable and telecommunications service to the public and any franchises issued pursuant to this Chapter shall be deemed to include this as an integral finding thereof. It is the further intent of this Chapter to establish regulatory provisions that permit the City to regulate cable system franchises to the extent permitted by federal and State law, including, but not limited to, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, applicable Federal Communications Commission regulations and applicable California law.

(Ord. C 7471 § 1, 1997)

The title of the ordinance codified in this Chapter shall be the Cable System Regulatory Ordinance of the City of Long Beach, and it may be so cited.

(Ord. C 7471 § 1, 1997)

As used in this Chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning consistent with the context in which such words are used and the purposes of this Chapter.

A. "Basic cable service" means any service tier which includes the retransmission of local television broadcast signals.

B. "Cable service" means:

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

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

C. "Cable system", or "system", means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and any other lawful telecommunications services and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to transmit television signals of one (1) or more television broad cast stations;

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier, which is subject in whole or in part to the provisions of Title II of the Federal Telecommunications Act of 1996, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers unless the extent of such use is solely to provide interactive on demand services; or

4. An open video system that complies with Section 653 of the Federal Telecommunications Act of 1996; or

5. Any facilities of any electric utility used solely for operating its electric utility system.

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

E. "City" means the City of Long Beach as represented by the City Council or any delegate, acting within the scope of its jurisdiction.

F. "City Council" means the City Council of the City of Long Beach.

G. "Franchise" means an initial authorization, or renewal or extension thereof, issued by the City Council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system. Any such authorization, in whatever form granted, shall not supersede the requirement to obtain any other license or permit required for the privilege of transacting business within the City as required by the other ordinances and laws of the City.

H. "Franchise agreement" means a franchise grant ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including references, specific provisions of the franchise granted, including references, specifications, requirements and other related matters.

I. "Franchise fee" means any fee or assessment of any kind imposed by the City on a grantee as compensation for grantee's use of the public rights-of-way. The term "franchise fee" does not include:

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

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

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

4. Any fee imposed under Title 17, United States Code.

J. "Grantee" means any "person" receiving a franchise or renewal pursuant to this Chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.

K. "Gross annual cable service revenues" means the annual gross revenues received by a grantee from the provision of cable service within the City. Ancillary revenues from the provision of cable service, including, but not necessarily limited to, local advertising, home shopping channel commissions and leased access revenues shall be included in gross annual cable service revenues, but refundable deposits, rebates or credits, and any sales, excise or other taxes or charges collected for direct pass-through to local, State or federal government shall not be included in gross annual cable service revenues. Revenues collected as franchise fees from subscribers shall not be included in gross annual cable service revenues pending the outcome of litigation of the FCC's decision with respect to the franchise fee issue in United Artists Cable of Baltimore, 77 RR 2d 1306 (released April 6, 1995) If the final decision (following all judicial appeals) in this case results in a determination that franchise fees should be included in gross annual cable service revenues, then grantee shall pay any underpayment of franchise fees owed to City, based on such determination, including interest from the date originally due, within ninety (90) days of the final decision.

L. "Gross annual telecommunications service revenues" means the annual revenues received by a grantee from the operation of a cable system to provide telecommunications services other than cable service.

M. "Installation" means the connection of the cable system to subscribers' terminals, and the provision of service.

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

O. "Public, educational or governmental access facilities" or "PEG access facilities" means the total of the following:

1. Channel capacity designated for noncommercial public, educational, or governmental use; and

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

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

Q. "Section" means any Section, Subsection or provision of this Chapter.

R. "Service area" or "franchise area" means the entire geographic area within the City as it is now constituted or may in the future be constituted, unless otherwise specified in the franchise granting ordinance or franchise agreement.

S. "Service tier" means a category of cable service or other services provided by a grantee and for which a separate rate is charged by a grantee.

T. "State" means the State of California.

U. "Subscriber" or "customer" or "consumer" means any person who or which elects to subscribe to, for any purpose, a service provided by a grantee by means of or in connection with a cable system, and who pays the charges therefor.

V. "Telecommunications service" means any service, other than cable service, delivered over the facilities of the cable system.

W. "Video programming" means programming generally considered comparable to programming provided by a television broadcast station.

(Ord. C-7471 § 1, 1997)

A. Franchise purposes. A franchise shall encompass the following purposes:

1. To engage in the business of providing cable service, and such other telecommunications service as may be permitted by law, which a grantee chooses to provide to subscribers within the designated service area.

2. To own, erect, install, construct, repair, rebuild, reconstruct, replace, maintain, locate, relocate and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across the public rights-of-way within the designated service area.

3. To maintain and operate said franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable service, and such other services as may be permitted by law.

4. To set forth the obligations of a grantee under the franchise.

B. Franchise required. It shall be unlawful for any person to construct, install or operate a cable system in the City without a properly granted franchise awarded pursuant to the provisions of this Chapter.

C. Term of the franchise.

1. A franchise granted hereunder shall be for a term established in the franchise agreement, commencing on City's adoption of an ordinance or resolution authorizing the franchise.

2. A franchise granted hereunder shall be renewed upon application by grantee pursuant to the provisions of applicable State and federal law and of this Chapter.

D. Franchise territory. Any franchise shall be valid within all the territorial limits of the City, and within any area added to the City during the term of the franchise, unless otherwise specified in the franchise granting ordinance or franchise agreement.

E. Federal or State jurisdiction. This Chapter shall be construed in a manner consistent with all applicable federal and State laws, and shall apply to all franchises granted or renewed after the effective date of this Chapter to the extent permitted by applicable law.

F. Franchise nontransferable.

1. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of City Council and then only upon such terms and conditions as may be prescribed by City Council, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of City Council shall be null and void. No consent shall be required for a transfer in trust, mortgage or other hypothecation, in whole or part, to secure an indebtedness, except that when such hypothecation shall exceed twenty-five percent (25%) of the market value of the property used by a grantee in the conduct of the cable system, prior consent of City Council shall be required. For the purpose of considering applications for consent for hypothecation, any ratio of the amount of secured indebtedness to the market value of the property used by a grantee in the conduct of the cable system which does not exceed 0.775:1 will be deemed reasonable.

2. In the event that grantee shall assign, convey, sell or otherwise dispose of the system, whether voluntarily or involuntarily, the increase in rates, if any, shall be governed by applicable law.

3. The requirements of Subsection 15.74.020.F.1 shall apply to any change in control of grantee. The word "control" as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In the event that grantee is a corporation, prior authorization of City Council shall be required where ownership or control of more than ten percent (10%) of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom, singularly or collectively, own or control fifty percent (50%) or more of the voting stock of grantee as of the effective date of the franchise, or the date of the last consent, if any, by City to any transfer of control.

4. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, City may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist City in such inquiry. In seeking City's consent to any change of ownership or control, grantee shall have the responsibility of ensuring that grantee and/or the proposed transferee complete an application in accordance with Federal Communications Commission Form 394 ("Form 394") or equivalent, or any successor form. An application shall be submitted to City not less than one hundred twenty (120) days prior to the proposed date of transfer. In addition to the information required by Form 394, grantee and/or the prospective transferee shall provide City with such other information as reasonably requested by City relating to the legal, technical, financial qualifications of the proposed transferee.

5. Consistent with applicable law, the proposed transferee shall be required to establish that it possesses the legal, technical and financial qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, technical and financial qualifications of the proposed transferee are satisfactory to City, City shall consent to the transfer of the franchise. The consent of City to such transfer shall not be unreasonably denied or delayed.

6. Any financial institution having a pledge of grantee or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify City that it or its designee satisfactory to City shall take control of and operate the cable system, in the event grantee defaults of its financial obligations. Said financial institution shall also submit a plan for such operation within ninety (90) days of assuming such control that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one (1) year, unless extended by City in its discretion, and during said period of time it shall have the right to petition City to transfer the franchise to another grantee.

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

8. Upon transfer, grantee shall reimburse City for City's reasonable out-of-pocket processing and review expenses in connection with the transfer of the franchise or of control of the franchise. Any such reimbursement shall not be charged against any franchise fee due to City during the term of the franchise.

G. Geographical coverage.

1. Grantee shall design, construct and maintain the cable system to have the capability to pass every dwelling unit in the City, subject to any service area line extension requirements of the franchise agreement.

2. A grantee shall only be excused from providing cable service to those buildings, streets, areas or locations specifically designated in its proposal as being technically impossible to service, it being the City's intention that cable service shall be provided to all persons in the City unless it is technically impossible to do so. Commercial impracticability, expense or other economic reasons shall not excuse or justify a grantee's failure to provide cable service to any location in the City that is not specifically listed in a grantee's proposal as being technically impossible to serve. Litigation instituted by a third party shall not suspend a grantee's obligation to construct and install the cable system in accordance with a time schedule contained in a franchise agreement.

3. After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area within thirty (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 thirty (30) day period on reasonable terms and conditions.

H. Nonexclusive franchise. Any franchise shall be nonexclusive. City specifically reserves the right to grant, at any time, such additional franchises as it deems appropriate, subject to applicable State and federal law, provided that if City grants an additional franchise on terms more favorable to another grantee (whether by the grant of greater benefits or the imposition of lesser obligations), or if another entity utilizing the public rights-of-way pursuant to a franchise offers cable service competitive with grantee, then the initial grantee shall have the right to renegotiate its franchise to achieve competitively neutral and nondiscriminatory treatment.

I. Multiple franchises.

1. City may grant franchise to any person at any time and in any area of the City or for the entire City, if City determines, in its sole discretion, that the granting of more than one (1) franchise is in the public interest. City may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

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

b. The benefits that may accrue to Subscribers as a result of cable system competition, such as lower rates and improved service.

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

2. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two (2) cable systems and dedicate the use of such conduit to the City.

3. City may require that any new grantee be responsible for its own underground trenching and the costs associated therewith, if, in City's opinion, the rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables.

(Ord. C-7471 § 1, 1997)

A. Filing of Applications. Any Person desiring Franchise shall file an application with the City. A reasonable application fee established by the City shall accompany the application to cover all costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. The application fee shall be nonrefundable, regardless of the nature or outcome of any specific matter under consideration by City. In the event such costs exceed the application fee, the selected applicant(s) shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs.

B. Applications—Contents. An application for Franchise shall contain, where applicable:

1. A statement as to the proposed Franchise and Service Areas;

2. A resume of the prior relevant history of the applicant, including the expertise of the applicant in operating a Cable System;

3. A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a corporation;

4. A list of officers, directors and managing employees of applicant, together with a description of the background of each such Person;

5. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant;

6. A current financial statement of applicant verified by a Certified Public Accountant audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the City;

7. A proposed construction and service schedule;

8. Any reasonable additional information that the City deems applicable, consistent with law.

C. Consideration of Initial Applications.

1. Upon receipt of any application for a Franchise, the City Manager or a delegate shall prepare and deliver a report covering such application to the City Council.

2. A public hearing shall be set prior to any initial Franchise grant, at a time and date approved by City Council. Within thirty (30) days after the close of the hearing, City Council shall make a decision based upon the evidence received at the hearing as to whether or not the Franchise(s) should be granted, and, if granted, subject to what conditions. City Council may grant one or more Franchises, or may decline to grant any Franchise.

D. Franchise Renewal. Franchise renewals shall be reviewed and considered in accordance with applicable law. City and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of a Franchise.

(Ord. C-7471 § 1, 1997)

A. Operational Standards. Except as otherwise provided in the Franchise Agreement, Grantee shall maintain the necessary facilities, equipment and personnel to comply with the following consumer protection and service standards under normal conditions of operation:

1. Sufficient toll-free telephone line capacity during normal business hours to assure that telephone calls shall be answered before the fourth ring; telephone answer time by a customer service representative, including wait time, shall not exceed thirty (30) seconds; and callers needing to be transferred shall not be required to wait more than thirty (30) seconds before being connected to a service representative during normal business hours. Under normal operating conditions, a caller shall receive a busy signal less than three percent (3%) of the time.

2. Emergency toll-free telephone line capacity on a twenty-four (24) hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

3. A conveniently located business and service and/or payment office within the City, open during normal business hours at least eight (8) hours daily, and at least four (4) hours weekly on evenings or weekends, and adequately staffed to accept Subscriber payments and respond to service requests and complaints.

4. An emergency system maintenance and repair staff, capable of responding to and repairing major Cable System malfunction on a twenty-four (24) hour per day basis.

5. An installation staff, capable of installing service to any residential Subscriber requiring a standard installation within seven (7) days after receipt of a request. "Standard installations" shall be those that are located up to one hundred twenty-five feet (125') from the existing distribution System, unless otherwise defined in any Franchise Agreement.

6. Grantee shall schedule, within a specified four (4) hour time period during normal business hours, all appointments with Subscribers for installation of service, service calls and other activities at the Subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the express convenience of the customer. Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a representative of Grantee is running late for an appointment with a Customer and will not be able to keep the appointment as scheduled, the Customer shall be contacted and the appointment rescheduled, as necessary, at a time which is convenient for the Customer.

7. The standards of Subsections 15.74.030.A.1 through 15.74.030.A.6 above shall be met not less than ninety percent (90%) of the time, measured on a quarterly basis.

B. Service Standards.

1. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the Cable System, preferably between midnight and six a.m.

2. Grantee shall maintain a repair force of technicians normally capable of responding to Subscriber requests for service within the following time frames:

a. For a System outage: Within two hours, including weekends, of receiving Subscriber calls or requests for service which by number identify a System outage of sound or picture of one or more channels, affecting at least ten percent (10%) of the Subscribers of the System.

b. For an isolated outage: Within twenty-four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one (1) or more channels that affects three (3) or more Subscribers. On weekends, an outage affecting fewer than three (3) Subscribers shall result in a service call no later than the following Monday morning.

c. For inferior signal quality: Within forty-eight (48) hours, excluding Sundays and holidays, of receiving a request for service identifying a problem concerning picture or sound quality.

3. Grantee shall be deemed to have responded to a request for service under the provisions of this Section when a technician arrives at the service location and begins work on the problem. In the case of a Subscriber not being home when the technician arrives, the technician shall leave written notification of arrival.

4. Grantee shall not charge for the repair or replacement of defective or malfunctioning equipment provided by Grantee to Subscribers, unless the defect was caused by the Subscriber.

5. Unless excused, Grantee shall determine the nature of the problem within forty-eight (48) hours of beginning work and resolve all Cable System related problems within five (5) business days unless technically infeasible.

C. Billing and Information Standards.

1. Subscriber bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

2. In case of a billing dispute, a Grantee shall respond to a written complaint from a Subscriber within thirty (30) days.

3. Except for acts of God, and except in circumstances where prior approval has been obtained from the City, in the event that service to any Subscriber or user is interrupted, and the interruption is under the control of Grantee, a Grantee shall, upon request, rebate a percentage of the monthly fee to affected Subscribers or users as follows:

a. Twenty-four (24) consecutive hours: five percent (5%) rebate of the monthly fee;

b. Twenty-four (24) to forty-eight (48) consecutive hours: fifteen percent (15%) rebate of the monthly fee;

c. Forty-eight (48) to seventy-two (72) consecutive hours: twenty-five percent (25%) rebate of the monthly fee;

d. Greater than seventy-two (72) consecutive hours: fifty percent (50%) rebate of the monthly fee.

For Subscribers terminating service, refunds shall be issued promptly, but no later than thirty (30) days after the return of any Grantee-supplied equipment.

4. Grantee shall provide written information on each of the following areas at the time of the installation of service, at least annually to all Subscribers, and at any time upon reasonable request:

a. Products and services offered; and

b. Prices and options for programming services and conditions of subscription to programming and other services; and

c. Installation and service maintenance policies; and

d. Instructions on how to use the Cable Service; and

e. Channel positions of programming carried on the System; and

f. Billing and complaint procedures, including the address and telephone number of City office designated for dealing with cable-related issues.

5. Subscribers shall be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the Cable System and in writing. Subject to applicable law, notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the information required in Subsection 15.74.030.C.4.d above.

D. Verification of Compliance with Standards.

1. Upon five (5) days' notice, Grantee shall establish its compliance with any or all of the standards required above. Grantee shall provide sufficient documentation to permit City to verify the compliance.

2. A repeated and verifiable pattern of noncompliance with the consumer protection standards of Subsections 15.74.030.B.1 through 15.74.030.B.5 above, after Grantee's receipt of due notice and an opportunity to cure, may be deemed a material breach of the Franchise Agreement.

E. Subscriber Complaints and Disputes.

1. Grantee shall establish written procedures for receiving, acting upon and resolving Subscriber complaints without intervention by City. The written procedures shall prescribe the manner in which a Subscriber may submit a complaint either orally or in writing specifying the Subscriber's grounds for dissatisfaction. Grantee shall file a copy of these procedures with City. Said procedures shall include a requirement that Grantee respond to any written complaint from a Subscriber within thirty (30) days of receipt.

2. City shall have the right to review Grantee's response to Subscriber complaints in order to determine Grantee's compliance with the Franchise requirements, subject to the Subscriber's right to privacy.

3. It shall be the right of all Subscribers to continue receiving Cable Service insofar as their financial and other obligations to Grantee are honored. In the event that a Grantee elects to rebuild, modify, or sell the System, or City gives notice of intent to terminate or not to renew the Franchise, Grantee shall act so as to ensure that all Subscribers receive service so long as the Franchise remains in force.

4. In the event of a change of control of Grantee, or in the event a new operator acquires the System, the original Grantee shall cooperate with City, new Grantee or operator in maintaining continuity of Cable Service to all Subscribers.

F. Other Requirements.

1. In the event a Grantee fails to operate the System for seven (7) consecutive days without prior approval or subsequent excuse of City, City may, at its sole option, operate the System or designate an operator until such time as Grantee restores service under conditions acceptable to City or a permanent operator is selected. If City should fulfill this obligation for Grantee, then during such period as City fulfills such obligation, City shall be entitled to collect all revenues from the System, and Grantee shall indemnify City against any damages City may suffer as a result of such failure.

2. In the carrying out of the construction, maintenance and operation of the cable television system, a Grantee shall not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, sexual orientation, age, disability or handicap, disabled or Vietnam era veteran status.

3. A Grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, sex, sexual orientation, age, disability or handicap, disabled or Vietnam era veteran status. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection of training, including apprenticeship.

4. A Grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

5. A Grantee shall, in all solicitations or advertisements for employees placed by or on behalf of Grantee, state that all qualified applicants shall receive consideration for employment without regard to race, creed, color, sex, age or national origin.

6. A Grantee shall incorporate the foregoing requirements in all of its contracts for work relative to construction, maintenance and operation of cable television system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work.

7. In the event that any provision of this Section 15.74.030 is found to be inconsistent with provisions of Section 634 of the United States Cable Communications Act of 1984, the provisions of Section 634 shall control.

8. All officers, agents or employees of a Grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto Subscribers' premises shall carry a photo-identification card in a form approved by City. Grantee shall account for all identification cards at all times. Every vehicle of a Grantee and its major subcontractors shall be clearly identified as belonging to Grantee or subcontractor, as the case may be.

9. Additional service standards and standards governing consumer protection and response by Grantee to Subscriber complaints not otherwise provided for in this Chapter may be established in the Franchise Agreement or by separate ordinance, and a Grantee shall comply with such standards in the operations of the Cable System. A verified and continuing pattern of noncompliance may be deemed a material breach of the Franchise, provided that a Grantee shall receive due process, including written notification and an opportunity to cure, prior to any sanction being imposed.

(Ord.C-7471 § 1, 1997)

A. Franchise Fee. Following the issuance and acceptance of the Franchise, Grantee shall pay to City a Franchise Fee on Gross Annual Cable Service Revenues in the amount and at the times set forth in the Franchise Agreement. For Telecommunications Service revenues, a Grantee shall pay an in-lieu-of-franchise-fee payment in the maximum amount permitted by applicable law.

1. City, on an annual basis, shall be furnished a statement within one hundred twenty (120) days of the close of the calendar year, either audited and certified by an independent Certified Public Accountant or certified by an officer of Grantee, reflecting the total amounts of gross revenues and all payments, deductions and computations for the period covered by the payment. Upon thirty (30) days prior written notice, City shall have the right to conduct an independent audit of Grantee's records, in accordance with generally accepted accounting procedures, and if such audit indicates a Franchise Fee and/or in-lieu fee underpayment of two percent (2%) or more, Grantee shall assume all reasonable costs of such audit.

2. Except as otherwise provided by law, no acceptance of any payment by City shall be construed as a release or as an accord and satisfaction of any claim City may have for further or additional sums payable as a Franchise Fee and/or in-lieu fee under this Chapter or for the performance of any other obligation of Grantee.

3. In the event that any Franchise and/or in-lieu fee payment or recomputed amount is not made on or before the dates specified in the Franchise Agreement, Grantee shall pay as additional compensation:

a. An interest charge, computed from such due date, at an annual rate equal to the prime lending rate of the Chase Manhattan Bank, N.A., plus one percent (1%) during the period for which payment was due; and

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

4. Franchise Fee and/or in-lieu fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement.

B. Security Fund. City may require Grantee to provide a security fund, in an amount and form established in the Franchise Agreement. The amount of the security fund shall be established based on the extent of Grantee's obligations under the terms of the Franchise.

1. The security fund shall be available to City to satisfy all claims, liens and/or taxes due City from Grantee which arise by reason of construction, operation, or maintenance of the System, and to satisfy any actual or liquidated damages arising out of a breach or default under the Franchise, subject to the procedures and amounts designated in a Franchise Agreement.

2. If the security fund is drawn upon by City in accordance with the procedures established in this Chapter and the Franchise Agreement, Grantee shall cause the security fund to be replenished to the original amount no later than thirty (30) days after notice of a withdrawal by City. Failure to replenish the security fund shall be deemed a material breach of the Franchise.

(Ord. C-7471 § 1, 1997)

A. System Construction and Upgrade.

1. Every Grantee under this Chapter shall, from time to time, upgrade its facilities, equipment and service so that its Cable System is as advanced as the then-current state of technology will allow. Among other things, Channel capacity shall be kept equal to reasonable user demand.

2. Grantee shall not construct any Cable System facilities until Grantee has secured the necessary permits from City, or other cognizant public agencies.

3. In those areas of the City where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, Grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground.

4. In those areas of the City where Grantee's cables are located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then Grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above ground enclosures, unless otherwise provided in the Franchise Agreement.

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

a. Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles or conduits whether on public property or on privately owned property unless and until all required permits have been obtained. Existing agreements or wires on poles making use impossible or likely to cause delays which would interfere with the time schedule for construction, shall not suspend Grantee's obligation to construct and install the System in accordance with the time schedule contained in a Franchise Agreement. In such cases Grantee shall underground the cable.

b. Grantee shall assume all responsibility for gaining permission from any electric, gas or telephone utility in the City for the use, rental or lease of poles, underground conduits and other structures and facilities for the purpose of extending, carrying or laying franchisee's wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the establishment and operation of the cable system. Whenever grantee does not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities are located beneath the surface of the streets, or whenever the City undertakes a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to a grantee, any such conduits or other facilities of grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of grantee, whose costs shall be determined as in the case of public utilities.

c. City shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled, or maintained exclusively by or for grantee in any street, provided such use by City does not interfere with the use by grantee.

6. All transmission and distribution structures, lines and equipment erected by grantee shall be located so as not to interfere with the proper use of public rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said public rights-of-way, and not to interfere with existing public utility installations.

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

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

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

d. If, during the period of any franchise, City shall lawfully elect to alter or change the grade or location of any public rights-of-way, grantee shall, upon reasonable notice by City, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense, and in each instance comply with the requirements of City.

e. Grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such poles, conduits or other fixtures placed in any public rights-of-way shall be so placed as to comply with all ordinances of City.

f. Grantee may be required by City to permit joint use of its property and appurtenances located in the public rights-of-way, by utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rent therefor; provided that in the absence of agreement regarding such joint use, City Council shall provide for arbitration of the terms and conditions of such joint use and the compensation to be paid therefrom, which award shall be final.

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

h. Grantee shall have the authority, except when in conflict with existing City ordinances, to trim any trees upon and overhanging the public way so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee, except that at the option of City, such trimming may be done by it, or under its supervision and direction, at the expense of grantee.

B. Multiple franchises. In the event that more than two (2) franchises are awarded, City reserves the right to limit the number of drop cables per residence, or to require that the drop cable(s) be utilized only by the cable operator selected by the resident to provide service.

(Ord. C 7471 § 1, 1997)

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

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

(Ord. C 7471 § 1, 1997)

A. Grantee shall defend, indemnify and hold harmless the City, its officials, employees and agents from and against all claims, demands, damage, causes of action, proceedings, loss, liability, costs and expenses (including reasonable attorney fees) of any kind (collectively in this Section, "claim") alleging injury to or death of persons or damage to property and that such injury, death or damage arises from or is attributable to or caused by the activities of grantee under the franchise agreement.

B. On or before commencement of operations under the franchise agreement and at all times during the term of the franchise agreement, grantee shall, at its sole cost, maintain in full force and effect insurance as prescribed in regulations issued by the City Manager pursuant to Section 2.84.040.

The procuring of said insurance shall not be construed as a limitation on grantee's liability or as full performance on grantee's part of the indemnity provisions of this Chapter.

If grantee fails to maintain insurance, City shall, on forty-eight (48) hours' notice to grantee, have the right to procure the required insurance and grantee shall promptly pay the cost thereof to the City. City shall also have the right to suspend the effectiveness of the franchise agreement during any period that grantee fails to maintain said insurance. City may order grantee to increase the amounts of insurance required in the franchise agreement after conducting a duly noticed public hearing. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks.

(Ord. C 7934 § 22, 2004: Ord. C 7471 § 1, 1997)

A. Records required. Grantee shall at all times maintain:

1. A record of all service calls and interruptions or degradation of service experienced for the preceding two (2) years, provided that such complaints result in or require a service call, subject to the subscriber's right of privacy.

2. A full and complete set of plans, records and "as built" maps showing the locations of the cable system installed or in use in the City, exclusive of subscriber service drops and equipment provided in subscriber's homes.

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

a. Subject to applicable law, City may impose reasonable requests for additional information, records and documents from time to time, provided they reasonably relate to the scope of the City's rights under this Chapter or a franchise agreement.

b. Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of City of all franchise property and facilities, together with any appurtenant property and facilities of grantee situated within or without the City, and all records relating to the franchise, provided they are necessary to enable City to carry out its regulatory responsibilities under this Chapter or the franchise agreement. Grantee shall have the right to be present at any such examination.

B. Reports—Requirements. Within one hundred twenty (120) days after the end of each year during the term of a franchise agreement, grantee shall submit a written report to the City Manager, in a form approved by the City Manager, including, but not limited to, the following information regarding the previous calendar year:

1. A summary of activities in the development of the system, including, but not limited to, services begun or discontinued, total number of subscribers, homes passed, subscribers added or discontinued and institutional network development and user participation, all in accordance with the provisions of this Chapter and the franchise agreement.

2. A list of all service related complaints received and system "downtime" experienced during the reporting period. All such submitted data shall include complaint disposition and response time. For the purposes of this Section, certified copies of the complaint log book reflecting all such incidents will suffice.

3. A summary by category of complaints, identifying the number and nature of complaints and their dispositions.

4. Financial statements to be audited by an independent certified public accountant which include a balance sheet, detailed statement of income, detailed statement of operating expense, detailed statement of capital assets with a schedule of depreciation and a statement of changes in financial position.

5. A current statement of construction costs by category if any are incurred during the reporting period.

6. A projected income statement, balance sheet, statement of changes in financial position and statement of projected construction for the next two (2) years.

7. A reconciliation between previously projected construction and financial estimates, as the case may be, and actual results.

8. A list of officers and members of the Board of Directors of grantee and its parent, subsidiary or affiliate corporations, if any.

9. A list of stockholders holding three percent (3%) or more of the voting stock of grantee or its parent, subsidiary and affiliate corporations, if any.

10. A copy of grantee's annual report and those of its parent, subsidiary and affiliate corporations, if any.

11. A full schedule of all subscriber and user rates, advertising rates, leasing rates, fees and charges for all cable services provided.

12. Such other information or reports as the City Manager may request, including, but not limited to, the following special reports:

a. A biennial opinion survey report which identifies subscriber satisfaction/dissatisfaction with cable system services offered by grantee. Surveys required to make such report shall be conducted in conformance with such requirements, including supervision, as the City may prescribe. The cost of such survey shall be borne by grantee.

b. Annual plant survey report which shall be a complete survey of Grantee's plant and a full report thereon. The purpose of such report is to assure the City that the technical standards of the FCC and City are achieved and maintained. Such report shall include, but not be limited to, an appropriate engineering evaluation including suitable electronic measurements and shall be conducted in conformance with such requirements, including supervision, as the City may prescribe.

c. A copy of Subscriber and user agreements used by Grantee.

13. The reports submitted pursuant to this Section shall be available for public inspection in the office of the City Clerk during City business hours.

14. Grantee shall file simultaneously with the City, a copy of any document Grantee files with the FCC, the Securities and Exchange Commission or any other regulatory agency with jurisdiction pertaining to the Cable System. To the extent that such documents contain, to the satisfaction of the City Manager, the information required by other reports required by this Chapter, the City Manager may suspend the requirements to file such other reports with City so as to avoid duplication and the administrative costs attendant thereto.

15. Any material misrepresentation made by Grantee in any report required by this Section shall subject Grantee to the penalty provisions of this Chapter and shall subject Grantee to all remedies available to City.

16. City reserves the right during normal business hours and upon the giving of reasonable notice, to examine, audit, review and obtain copies of Grantee's contracts, engineering plans, accounting, financial data and service records relating to the property and operations of Grantee and to all other records required to be kept pursuant to Subsection 15.74.055.A herein. City may, by written request, require Grantee to have a special review prepared by certified independent Auditors to explain any discrepancies between revenues used to calculate the Franchise Fee and revenues reported to Grantee's annual audited financial statements.

17. Grantee shall keep full, true, accurate and current books of account reflecting Grantee's investment and operations under Grantee's Franchise, and said books shall be made available for inspection and copying by an authorized representative of the City at reasonable times. The chart of accounts and accounting systems used in such books of account shall be designed to accurately determine Grantee's cost of operations as well as Gross Annual Cable Service Revenues in accordance with generally accepted accounting principles and this Chapter, and shall be in a form satisfactory to City.

C. Reports—Filing, Inspection and Follow-up. The reports required by Subsection 15.74.055.B shall be examined by the City Manager for compliance with the requirements of the Franchise Agreement, this Chapter and any specifications established by the City Manager governing their form. The City Manager shall inform Grantee in writing within forty-five (45) days of the date of receipt of the reports whether the reports are or are not in compliance with such requirements. If found not in compliance, the reports, or portions thereof, shall be rejected and returned to Grantee with a statement of reasons for such rejection. Any such information so rejected shall be null and void. Grantee shall, within fifteen (15) days of written rejection from the City Manager, submit amended reports, or portions thereof, to the City Manager.

D. Reports—Confidentiality. Notwithstanding anything to the contrary contained in this Chapter, all reports or documents required to be delivered or otherwise disclosed under this Chapter, except those required by law or agreement to be kept confidential, shall be available for public inspection in the City's offices during normal business hours.

E. Examination of Records. At all reasonable times, Grantee shall permit any duly authorized representative of the City to examine all property of Grantee, together with any appurtenant property of Grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by Grantee or under its control which deal with the operations, affairs, transactions or property of Grantee with respect to its Franchise. If any such maps or records are not kept in the City or, upon reasonable request, made available in the City within five (5) days of request by City, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by Grantee.

(Ord. C-7471 § 1, 1997)

A. Performance Evaluation Sessions—Purpose and Procedure. To provide for technological advances in the state of the art in Cable Systems, to promote the maximum degree of flexibility and utilization of the System, to evaluate Grantee's performance and compliance with the provisions of this Chapter and any Franchise awarded pursuant thereto, to respond to regulatory changes and to achieve a continuing, advanced, modern Cable System, City and Grantee shall comply with the following review procedures:

1. City may hold a regularly scheduled review session within thirty (30) days of the second anniversary date of the execution of the Franchise Agreement and subsequently every two (2) years thereafter. All review sessions shall be open to the public, and notice of date, time, location and agenda shall be given by Grantee, at Grantee's cost, by publication at least once in a newspaper of City-wide general circulation at least one (1) week prior to each session. In addition, Grantee shall announce the date, time and location of each session on each of at least five (5) days immediately preceding each session at a minimum of six (6) regularly scheduled intervals daily on at least two (2) Channels and shall notify all Subscribers by including notice with the previous monthly billing.

2. Topics for discussion and review at the regular review session shall include, but not be limited to, the following: rate structure, free or discounted services, application of new technologies, System performance, services provided, programming, Subscriber complaints, user complaints, rights of privacy, construction progress, community service Channel implementation and utilization, amendments to this Chapter, undergrounding process and developments in the law. Either City or Grantee may select additional topics for discussion at any regular or special review session conducted pursuant to this Subsection or Subsection 15.74.060.B below.

B. Special Review. When there have been complaints made or where there exists other evidence which, in the judgment of City, casts reasonable doubt on the reliability or quality of Cable Service to the effect that Grantee is not in compliance with the requirements of this Chapter or its Franchise, City shall have the right to compel Grantee to test, analyze and report on the performance of the System in order to protect the public against substandard Cable Service. City may not compel Grantee to provide such tests or reports unless and until City has provided Grantee with at least thirty (30) days' notice of its intention to exercise its rights under this Section and has provided Grantee with an opportunity to be heard prior to its exercise of such rights. Such test or tests shall be made and the report shall be delivered to City no later than thirty (30) days after City notifies Grantee that it is exercising such right, and shall be made at Grantee's sole cost. Such report shall include the following information: the nature of the complaints which precipitated the special tests, what System component was tested, the equipment used and procedures employed in said testing, the results of such tests, and the method by which such complaints were resolved. Any other information pertinent to the special test shall be recorded.

(Ord. C-7471 § 1, 1997)

A. Remedies for Violations. Subject to Section 15.74.070 of this Chapter, if Grantee fails to perform in a timely manner any material obligation required by this Chapter or a Franchise granted hereunder, following notice from City and an opportunity to cure such nonperformance in accordance with the provisions of Subsection 15.74.065.B, City may at its option and in its sole discretion:

1. Cure the violation and recover the actual cost thereof from the security fund established herein if such violation is not cured within thirty (30) days after written notice to Grantee of City's intention to cure and draw upon the security fund;

2. Assess against Grantee liquidated damages in an amount set forth in the Franchise Agreement for any such violations(s) if such violation is not cured, or if Grantee has not commenced a cure, on a schedule acceptable to City, within thirty (30) days after written notice to Grantee of City's intention to assess liquidated damages. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by City of any other right or remedy it may have under the Franchise or applicable law, including without limitation, its right to recover from Grantee such additional damages, losses, costs and expenses, including reasonable actual Attorney fees, as may have been suffered or incurred by City by reason of or arising out of such breach of the Franchise.

B. Procedure for Remedying Franchise Violations. Prior to imposing any remedy or other sanction against Grantee specified in this Chapter, City shall give Grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

1. City shall first notify Grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than twenty (20) days in the case of the failure of Grantee to pay any sum or other amount due City under this Chapter or Grantee's Franchise and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed or if Grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, City shall then give written notice of not less than twenty (20) days of a public hearing to be held before the City Council. Said notice shall specify the violations alleged to have occurred.

2. Subsequent to the public hearing, City Council shall hear and consider all other relevant evidence, and thereafter render findings and its decision.

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

4. In the event City Council finds that material violations exist and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from City and is not diligently proceeding to fully remedy such violation, City Council may impose one (1) or more of the remedies provided in this Chapter and the Franchise Agreement as it, in its discretion, deems appropriate under the circumstances.

C. City's Power to Revoke. City reserves the right to revoke any Franchise granted pursuant to this Chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by Grantee and a material breach under the Franchise:

1. If Grantee shall default in the performance of its material obligations under this Chapter or the Franchise Agreement and shall continue such default after receipt of due notice and reasonable opportunity to cure the default;

2. If Grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required in the Franchise Agreement;

3. If Grantee shall violate any order or ruling of any regulatory body having jurisdiction over Grantee relative to the Franchise, unless such order or ruling is being contested by Grantee by appropriate proceedings conducted in good faith;

4. If Grantee practices any fraud or deceit upon City;

5. If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.

Termination and forfeiture of the Franchise shall in no way affect any right of City to pursue any remedy against Grantee under the Franchise or any provision of applicable law.

(Ord. C-7471 § 1, 1997)

In the event Grantee's performance of any of the terms, conditions or obligations required by this Chapter or a Franchise is prevented by a cause or event not within Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a Grantee from the obligations imposed by Section 15.74.030 pertaining to refunds and credits for interruptions in Cable Service. For the purpose of this Section, causes or events not within the control of Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, 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, or the failure of Grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the Cable System where Grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(Ord. C-7471 § 1, 1997)

A. Abandonment or Removal. In the event that the use of any property of Grantee within the Public Rights-of-Way is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that Franchise property. Any part of the Cable System that is parallel or redundant to other parts of the System and is intended for use only when needed as a backup for the System or a part thereof, shall not be deemed to have been abandoned because of its lack of use.

1. City, upon such terms as City may impose, may give Grantee permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this Chapter, Grantee shall remove all abandoned above ground facilities and equipment upon receipt of written notice from City and shall restore any affected Public Rights-of-Way to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave the Public Rights-of-Way in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. City shall have the right to inspect and approve the condition of the Public Rights-of-Way, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this Chapter and the security fund as provided herein shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section.

2. Upon abandonment of any Franchise property in place, Grantee, if required by City, shall submit to City an instrument, satisfactory in form to City, transferring to City the ownership of the Franchise property abandoned.

3. At the expiration of the term for which a Franchise is granted, or upon its revocation or earlier expiration, as provided herein, in any such case without renewal, extension or transfer, City shall have the right to require Grantee to remove, at its own expense, all above ground portions of the Cable System from the Public Rights-of-Way within the City within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

4. Notwithstanding anything to the contrary set forth in this Chapter, Grantee may abandon any underground Franchise property in place so long as it does not materially interfere with the use of the Public Rights-of-Way in which such property is located or with the use thereof by any public utility or other Grantee.

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

C. Extended Operation and Continuity of Services. Upon expiration or revocation of the Franchise, City shall have the discretion to permit Grantee to continue to operate the Cable System for an extended period of time. Grantee shall continue to operate the System under the terms and conditions of this Chapter and the Franchise Agreement and to provide Cable Service and any and all of the services that may be provided at that time. It shall be the right of all Subscribers to continue to receive all available services provided that financial and other obligations to Grantee are honored. Grantee shall use reasonable efforts to provide continuous, uninterrupted Cable Service to its Subscribers, including operation of the System during transition periods following Franchise expiration or termination.

D. Receivership and Foreclosure. A Franchise granted hereunder shall, at the option of City, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1) such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Chapter and the Franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied any and all defaults or breaches under this Chapter or the Franchise Agreement or provided a plan for the remedy of such defaults or breaches which is satisfactory to City in its sole discretion; and (2) such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement, in a form approved by the City Attorney and duly approved by the court having jurisdiction over the proceeding, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Chapter and the Franchise granted pursuant hereto.

1. In the case of a foreclosure or other judicial sale of the Franchise property, or any material part thereof, City may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the Franchise granted and all rights and privileges of Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless:

(a) City shall have approved the transfer of the Franchise, as and in the manner that this Chapter provides; and (b) such successful bidder shall have covenanted and agreed with City in writing in a form approved by the City Attorney, to assume and be bound by all provisions of this Chapter and the Franchise granted pursuant hereto.

(Ord. C-7471 § 1, 1997)

A. Reservation of City Rights.

1. In addition to any rights specifically reserved to City by this Chapter, City reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the Franchise. Without limitation upon the rights which City might otherwise have, City does expressly reserve the following rights, powers and authorities, and by its acceptance of the Franchise, Grantee agrees to be bound thereby by City rights and powers:

a. To grant multiple nonexclusive Franchises within the City to other Persons for the operation of Systems pursuant to this Chapter and as it may be amended;

b. To inspect all construction or installation work performed by Grantee;

c. To amend any section or part of this Chapter for any reason determined to be desirable or necessary by the City Council in the exercise of its legislative powers, including, but not limited to, new developments in the state of technology of the cable communications industry and changes in Federal or State laws, rules or regulations; provided, however, that any such amendments are reasonable. Such amendments shall be adopted only after a public hearing where Grantee shall have received written notice at least thirty (30) days prior to the hearing and is provided any opportunity to be heard.

2. In the event City terminates a franchise agreement pursuant to the provisions of Subsection 15.74.065.C, City shall have the first option, directly or as an intermediary, to purchase the System. The City shall have ninety (90) days prior to the effective date of termination to notify Grantee of the City's intent to exercise the option to purchase stated herein.

3. Upon notification of intent pursuant to Subsection 15.74.080.A.2, City and Grantee shall attempt to mutually agree upon the value of the System in accordance with the provisions of Subsections 15.74.080.A.3 and 15.74.080.A.4. However, if within a reasonable period of time they cannot agree upon a valuation, then such valuation shall be similarly determined by a three (3) member board of appraisers, one (1) selected by the City, one (1) selected by the Grantee, and one (1) selected by the appraisers themselves. The cost of such appraisal shall be borne equally by the City and the Grantee.

4. In the event of a termination of a Franchise Agreement by the City, the value of the System shall be solely based on the book value of the tangible assets of the System.

a. "Book value" is defined as the original or historical cost of the assets less accumulated depreciation, and no value shall be assigned to either the franchise itself, the franchise agreement or any right, privilege or expectancy arising out of the privilege to transact business under the franchise or the franchise agreement, nor shall any value be assigned to goodwill or as a going concern.

b. "Value" as referred to herein shall be determined by audit of system assets pursuant to generally accepted auditing principles, and shall be performed by a certified public accounting firm selected by the City at franchisee's expense.

c. Upon normal expiration of a Franchise Agreement, the value of the System shall be based solely on the basis of fair market value of the System, valued as a going concern, including both tangible and intangible assets. Nothing contained herein shall be construed to limit or restrict any right to renew a Franchise Agreement under the terms of the Franchise Agreement or applicable law.

5. There is reserved to City every additional right and power which is required to be herein reserved or provided by any law and Grantee, by its acceptance of the Franchise, agrees to be bound thereby and to comply with any action or requirements of City in its exercise of such rights or power, heretofore or hereafter enacted or established.

6. Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of City to acquire the property of Grantee through the exercise of the right of eminent domain.

7. In the event that the Federal Communications Commission elects to deregulate any area of cable communications over which it currently exercises jurisdiction, or grant authority to municipalities to regulate in these areas, any Franchise shall be automatically amended, except as specifically prohibited by a Franchise Agreement, without any additional act by any party to it, to reflect these new Municipal regulatory powers, and City may, if it so elects, adopt rules and regulations in these areas.

B. Waiver. City shall have the right to waive any provision of the Franchise, except those required by Federal or State regulation, if City determines (1) that it is in the public interest to do so, and (2) that the enforcement of such provision will impose an undue hardship on Grantee or the Subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of City. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the Franchise unless the statement so recites.

C. Rights of Individuals. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations relating to nondiscrimination.

1. Grantee shall adhere to the applicable equal employment opportunity requirements of Federal, State and local regulations, as now written or as amended from time to time.

2. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.

3. In the conduct of providing Cable Services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber's right of privacy or other personal rights through the use of the System as such rights are delineated or defined by applicable law. Grantee shall not without lawful court order or other applicable valid legal authority utilize the System's interactive two-way equipment or capability for unauthorized personal surveillance of any Subscriber.

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

5. Grantee, and any of its agents or employees, shall strictly observe and protect the rights of privacy and of property of Subscribers and users at all times in accordance with all applicable rules, regulations, laws, ordinances and orders of all governmental authorities having jurisdiction over such matters.

(Ord. C-7471 § 1, 1997)

If any provision of this Chapter is held by any court or by any Federal or State agency of competent jurisdiction, to be invalid as conflicting with any Federal or State law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provision shall be considered a separate, distinct, and independent part of this Chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision thereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on City and Grantee, provided that City shall give Grantee thirty (30) days' written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for Grantee to comply with such provision.

(Ord. C-7471 § 1, 1997)