Ontario Municipal Code Art. 2 Procedures for Granting, Renewing, Transferring, and Acquiring Video…

(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 video programming, by means of a video provider system, unless a license therefore is first obtained pursuant to the provisions of this chapter, and unless such license is in full force and effect. Subject to applicable law, upon its enactment, this chapter shall apply equally and generally to all video providers regardless of the date on which they first provided video programming within the City.

(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 video programming, by means of a video provider system, unless a license authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such license 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 licensed video provider system within this City for the purpose of enabling him or herself or others to receive any video programming carried on a video provider 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 video provider system.

(e) This section shall be construed to require a license in every instance, except to the extent that such requirement is preempted by state or federal law.

(f) The City's regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance or operation of a video provider's telecommunications facilities.

(§ 1, Ord. 2833, eff. August 5, 2006)

The City may by ordinance or resolution grant a license to any person, whether operating pursuant to an existing license or not, who offers to provide video programming, by means of a video provider system, pursuant to the terms and provisions of this chapter.

(§ 1, Ord. 2833, eff. August 5, 2006)

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

(b) A license may be renewed by the City upon application of grantee, subject to applicable federal and state law.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Any license granted under this chapter shall be nonexclusive and for the term specified by the license agreement.

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

(c) The grant of a license to use the public rights-of-way for purposes of providing video programming, by means of a video provider system, shall not be construed as a right or license to use such public right-of-way for any other purpose for which a right or license to use the public right-of-way is required.

(d) Any privilege claimed by grantee under a license in a public rights-of-way or any other public property shall be subordinate to any prior or subsequent lawful, non-competitive occupancy or use thereof, or easement therein, by the City or other government entity for the public health, safety or welfare.

(e) A license granted hereunder shall not relieve grantee of any obligation related to obtaining pole and/or conduit space from any department of the City, utility company, or from others maintaining poles and/or conduits in the public rights-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.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to those restrictions, if any, that are mandated by state or federal law, including the requirements of Cal. Gov't Code § 53066.3, neither the granting of any license nor any of the provisions of this chapter shall be construed to prevent the City from granting additional licenses.

(b) Grantee, by its acceptance of any license, agrees to be bound by all lawful, non-discriminatory ordinances and regulations of general application now in effect and to comply with any action or requirements of the City in the exercise of its police power; provided, however, that such ordinances and regulations shall not materially affect grantee's rights or obligations under the license.

(c) Neither the granting of any license, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

(d) This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of grantee through the exercise of the power of eminent domain, in accordance with applicable law.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) No license shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the license be transferred, sold, or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any person without the prior consent of the City granted by resolution of the City Council. Consent shall not be unreasonably withheld or delayed. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section.

(b) Transfer of a license includes, but is not limited to, any transaction in which control of the license 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 video provider system is transferred from one person or group of persons to another person or group of persons so that control of grantee is transferred, or the rights and obligations held by grantee under the license agreement are transferred or assigned to another person or group of persons.

(c) Notwithstanding the foregoing, a transfer shall not include a transfer of an ownership or other interest in grantee to the parent of grantee or to another affiliate of grantee; transfer of an interest in the license or the rights held by grantee under the license to the parent of grantee or to another affiliate of grantee; or any action which is the result of a merger of another affiliate of grantee. With respect to any of the foregoing transactions in subsection (b) of this section, grantee shall promptly notify the City in writing of the proposed transfer and the proposed transferee shall agree in writing that it will abide by and accept all terms of this chapter and the license agreement, and assume the obligations and liabilities of the previous grantee under the license.

(d) 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 § 4-20.11 (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, and technical qualifications of the transferee.

(e) In making a determination on whether to approve the transfer application, the City Council shall, to the extent permitted by applicable law, consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the transferor video provider is in compliance with its license 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 the delivery of video programming to subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law.

(f) A transfer application shall not be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter and the license agreement, assume the obligations and liabilities of the previous grantee under the license, and assume such other conditions as may be lawfully prescribed by the City Council resolution approving the transfer.

(g) 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 license agreement, whether arising before or after the date of the transfer.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) The license area shall be established by the license agreement. In determining the license area, the City shall assure that access to video programming is not denied to any group of potential residential subscribers because of the income of the residents of the local area in which such group resides.

(b) Territory annexed to the City ("Annexed Territory") that is not within the license area of an existing license may be added to grantee's license pursuant to the license agreement.

(c) All rights acquired under a license or license granted by a public entity other than the City ("Foreign License") shall terminate by operation of law as to annexed territory where grantee of such license or license has not commenced installation of a video provider system in the annexed territory before the date such annexation becomes effective. Where feasible, City shall provide notice to the holder of a foreign license 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 license.

(d) Where grantee of a foreign license has commenced installation of a video provider system in annexed territory on or before the date such annexation becomes effective, grantee may continue to provide video programming, by means of a video provider system, to the annexed territory for the balance of the initial term of said license (exclusive of any renewal or extension not granted by the City), subject to the terms and conditions then in effect under such license, and the timely payment to the City of all license fees paid in connection with such service.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Applications for the grant of a new license 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 license pursuant to a request for proposal ("RFP").

(b) An application for a new license to construct, operate, or maintain any video provider system in the City shall be filed with the City Manager and shall be on forms prescribed by the City. The City may, at its sole discretion, request new or additional proposals.

(c) Unless waived in writing by the City, all applications for a license shall at the minimum contain the following:

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

(2) For open video systems, copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR § 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant to operate an open video system in accordance with § 653(a)(1) of the Communications Act and the FCC's rules. For all video provider systems, a sworn affidavit, signed by an officer or another person authorized to bind the applicant, that the applicant has filed or will timely file with the FCC all forms required by the FCC before offering cable service or video service within the City.

(3) A description of the applicant's build-out plans and timelines consistent with this chapter and applicable law.

(4) A description of the video programming services that will be offered by the applicant over its existing or proposed facilities.

(5) A description of the transmission medium that will be used by the applicant to deliver the video programming services.

(6) Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the video provider system described in the application.

(7) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to:

(i) Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the City.

(ii) Comply with the City's public, educational, and government access channel requirements.

(iii) Comply with the City's requirement that grantee pay a license fee equal to five percent (5%) of gross revenue.

(8) An accurate map showing the location of any existing facilities, including telecommunications facilities, within the public rights-of-way that the applicant intends to use, to purchase, or to lease.

(9) A copy of any agreement, if existing, between the applicant and any public utilities providing for the use of any facilities of the utility, including, but not limited to poles, lines or conduits.

(10) If the applicant's operation of the video provider system will require the construction of new physical plant, modification of existing plant, or addition of new or additional equipment, in the public rights-of-way (but not including telecommunications facilities), the following additional information must be provided:

(i) A preliminary construction schedule and completion dates.

(ii) Preliminary engineering plans, specifications, and a network map of any new facilities, modification of existing plant, or addition of new or additional equipment to be constructed in the City, in sufficient detail to identify:

(A) The locations and routes requested for the applicant's proposed facilities, whether new or modified.

(B) The locations, if any, for interconnection with the facilities of other service providers.

(C) The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis.

(iii) The applicant's statement that, in constructing any new physical plant, modifying existing plant or adding additional equipment, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required permit and processing fees.

(11) The information and documentation that is required to be submitted to the City by a video provider, as specified below in § 4-20.36.

(12) Any other details, statements, or information pertinent to the subject matter of such application which shall be required or requested by the City.

(13) A nonrefundable filing fee in an amount established by resolution of the City Council.

(d) If any item of information specified above in subsection (c) of this section is determined under paramount federal or state law to be unlawful, or is determined by the City Manager to be inapplicable or unnecessary for the City's consideration of the application, the City Manager is authorized to waive the requirement that such information be included in the application.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Within thirty (30) days after receipt of an application filed under § 4-20.11 that is deemed to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate a license agreement setting forth the terms and conditions under which the operation of the proposed video provider system will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and the applicant.

(b) The license shall be deemed granted as of the effective date of the license agreement.

(c) Any provisions in the license agreement which vary materially from this chapter to the potential competitive disadvantage of any other licensee shall require an amendment to the license agreement(s) of any existing licensee(s) to ensure parity, subject to the further approval of the City Council.

(§ 1, Ord. 2833, eff. August 5, 2006)

License renewals shall be processed and reviewed in accordance with then applicable law. The City and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the license.

(§ 1, Ord. 2833, eff. August 5, 2006)

The City may, in exercise of its reasonable discretion, limit the number of licenses granted at any one time based upon its consideration of all appropriate criteria which shall include but not be limited to the following:

(a) The capability of the public rights-of-way to accommodate the facilities of any proposed additional video provider systems.

(b) Any other consideration necessary to safeguard the public interest.

(§ 1, Ord. 2833, eff. August 5, 2006)

All actual and reasonable charges and fees incidental to awarding any license shall be paid by the licensee or applicant in accordance with § 542 of the Communications Act. No application shall be considered without payment of a deposit with the City covering such fee.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) As compensation for any license granted, and in consideration of permission to use the public right-of-way in the operation of its video provider system, and because the City will incur costs in regulating and administering the license, grantee shall pay to the City a license fee in the amount equal to five percent (5%) of grantee's gross revenues.

(b) The license fee assessed shall be paid quarterly, to be received by the City Treasurer not later than forty-five (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 an authorized representative of grantee with reasonable personal knowledge of the accuracy and completeness of such statement, indicating gross revenues for the past quarter, listing every revenue source by category, and depicting gross revenue computations.

(d) On an annual basis, grantee shall file a complete and accurate statement verified by an authorized representative of grantee with reasonable personal knowledge of the accuracy and completeness of such statement, indicating all gross revenues for said year, listing every revenue source, by category, and depicting gross revenue computations. If the City has any concerns or objections relating to such report, the City shall have sixty (60) days to notify grantee and request additional information. Grantee shall have sixty (60) days to provide additional information to resolve any concerns or objections to the City's satisfaction. Thereafter, the City may, at its sole discretion, request that such statement be certified by an independent certified public accountant, at grantee's sole cost; provided, however, that any such request shall be made within sixty (60) days after grantee's response is received.

(e) Upon reasonable notice, at any time during the term of a license, 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 pay the costs of such audit not more frequently than once every three (3) years in the event such audit reveals an underpayment of five percent (5%) or more. Grantee shall cooperate with any such audit making readily available any and all relevant information requested by the City. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this chapter and the license fee requirements of the license agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four (4) 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 license fee payment is not paid by the due date, interest shall be charged monthly at a monthly rate of one and one-half percent (1-1/2%), or the highest rate allowed by law, whichever is lower. In addition, if any license fee is not paid in full within fifteen (15) days after receipt of notice from the City as to the delinquency of such payment, a one-time late fee in the amount of five percent (5%) of the delinquent amount shall be assessed.

(g) In the event grantee claims to have overpaid by more than five percent (5%) the amount of license fee actually due during any given quarter, it shall file an application with the City within one (1) year after said payment was made; provided, however, that notwithstanding the foregoing, grantee shall be permitted to seek refund of overpaid amounts that are revealed by an audit conducted in accordance with subsection (e) of this section, and the grantee requests such refund within sixty (60) days of the audit's release. The failure to timely and properly make such claim shall constitute a waiver by grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodation, except to the extent the overpayment is revealed by an audit conducted in accordance with subsection (e) of this section. 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 relevant by the City. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final.

(h) If grantee bundles video programming services with non-video service, grantee agrees that it will allocate the discount associated with such bundle consistent with the portion allocated in grantee's books and records kept in the regular course of grantee's business. If grantee bundles video programming services with non-video services, grantee agrees that it will not intentionally or unlawfully allocate such revenue for the purpose of evading license fee payments under its license. The parties agree that tariffed telecommunication services that cannot be discounted by state or federal law or regulation are to be excluded from the bundled discount allocation basis.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) The terms and provisions of a license agreement for the operation of a video provider system may include, without limitation, the following subject matters:

(1) The nature, scope, geographical area, and duration of the license, including a reasonable period of time for the grantee to become capable of providing video programming to all households in the license area.

(2) The applicable license fee to be paid to the City, including the percentage amount, the method of computation, frequency of payments and the time for payments.

(3) Requirements relating to compliance with state and federal laws and regulations pertaining to the operation of the video provider system and the provision of video programming.

(4) Requirements relating to the construction, upgrade, or rebuild of the video provider system (but not including telecommunications facilities), as well as the provision of special services, such as the provision of services to public buildings, including public schools, emergency alert capability, and parental control devices.

(5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the license agreement.

(6) Requirements relating to liability insurance, workers' compensation insurance, and indemnification.

(7) Additional requirements relating to consumer protection and customer service standards, including the resolution of subscriber complaints and disputes and the protection of subscribers' privacy rights.

(8) Requirements relating to the grantee's support of local video programming, including the provision of public, educational, and government access channels, the coverage of public meetings and special events, and financial or technical support for public, education, and governmental access uses.

(9) Requirements relating to construction, operation, and maintenance of the video provider system within the public rights-of-way (but not including telecommunications facilities), including compliance with all lawful, non-discriminatory building codes and permit requirements of general application, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.

(10) Requirements relating to recordkeeping, accounting procedures, reporting, periodic financial and technical audits, and performance reviews, and the inspection of grantee's books and records.

(11) Acts or omissions constituting material breaches of or defaults under the license agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination.

(12) Requirements relating to the sale, assignment, or other transfer or change in control of the license.

(13) The grantee's obligation to maintain continuity of service.

(14) Such additional requirements, conditions, representations and warranties, policies, and procedures as may be mutually agreed upon by the parties to the license agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety.

(§ 1, Ord. 2833, eff. August 5, 2006)

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

(b) Filing of rates and charges.

(1) Throughout the term of any license 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 video programming services under the license.

(2) Changes in rates and charges. Grantee shall provide written notice to the City and subscribers at least thirty (30) days in advance of any proposed change in rates and charges within the control of grantee. Such notice shall be provided in the subscriber's bill, or in a separate mailing.

(c) 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 that facilitates the reception of video programming by hearing impaired individuals.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) 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 license and all rights and privileges of grantee, revoke any license, 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 provision of this chapter, the license agreement or any rule, order, regulation or directive issued in connection with the license;

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

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

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

(5) Failure to restore video programming after seventy-two (72) consecutive hours of interrupted video programming, except in the event of force majeure or where 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 eighty percent (80%) of subscribed services over the video provider system for a period of five (5) days, except in the event of force majeure or where 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;

(7) Failure to consistently meet customer service standards established in the license or this chapter for the relevant measurement period specified in the license or this chapter, as the case may be;

(8) Failure to initiate or achieve complete system construction, or reconstruction within the time set forth in the license, unless the City Manager expressly approves the delay in writing, due to the occurrence of conditions beyond grantee's control;

(9) Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the license agreement;

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

(11) Failure to provide, upon written request, relevant data, documents, reports or information required by this chapter or the license agreement; provided, however, that grantee shall be afforded a reasonable amount of time to seek available protections concerning its confidential information, and/or redact confidential portions of such materials so as to protect grantee's confidential information from public disclosure; and

(12) Dissolution, liquidation or ceasing to conduct business; abandonment of the video provider system; or the transfer of the video provider system and/or license (including, but not limited to, by means of a sale of all or substantially all of grantee's assets) without the City's consent as provided in this chapter or the license agreement.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Prior to imposing any liquidated damages, sanction or penalty upon grantee, including termination or revocation of the license, the City Manager, shall demand in writing that grantee cure such breach or diligently commence a cure of such breach within a specified period, which period shall not be less than thirty (30) days following notification. However, only fifteen (15) days notice shall be required in the case of failure to pay undisputed monies due to the City. In addition, the City may, in an emergency, prescribe a notice less than thirty (30) days consistent with the nature of the emergency. An emergency under this subsection (a) means an occurrence or condition that creates an actual or imminent danger to life or property.

(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 Manager shall place the issue of termination, revocation or other penalty before an appropriate hearing officer for his or her determination pursuant to § 4-20.21. The hearing officer shall issue a recommended decision, which will then be acted upon by the City Council pursuant § 4-20.22.

(c) The City Manager, or any hearing officer authorized to act pursuant to this chapter shall have the power to issue subpoenas in order to carry out the fact-finding activities authorized by this chapter. The process for the issuance and enforcement of such subpoenas shall be governed by the California Code of Civil Procedure.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) The City Manager may, at his or her sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the license 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 at least thirty (30) days prior to the hearing, which will specify the time, place and purpose of such hearing, and provide grantee the opportunity to be heard.

(b) The procedures set forth in § 1-5.08 shall govern the conduct of such administrative hearing.

(c) The hearing officer shall be vested with quasi-judicial authority, and shall be authorized to issue a recommended decision:

(1) Ordering grantee to undertake remedial action to cure any breach of its obligations under its license;

(2) Assessing liquidated damages and/or levying a penalty upon grantee in accordance with the terms of this chapter and the license agreement;

(3) Determining that grantee has not violated any of its obligations under its license; and/or

(4) Recommending to the City Council grounds for the revocation of the license.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Based on the hearing officer's recommended decision pursuant to § 4-20.21, the City Council shall determine, in writing, in its discretion whether or not a material breach occurred and whether to terminate the license or take other appropriate action.

(b) Should the City Council find that there has been a material breach of the license, but that termination of the license is inappropriate, then the Council may assess and levy or impose such other relief as the Council deems appropriate, pursuant to this chapter or the license agreement, including, but not limited to, any relief specified in §§ 4-20.21(c), 4-20.23 or any combination thereof. Failure of grantee to fully and promptly comply with an order of the City Council shall be deemed a material breach of the license.

(c) The City shall cause grantee to be served with written notice of any action taken by the City Council. The decision of the City Council as to such matters shall be final, but may be challenged by grantee in a court of competent jurisdiction.

(d) Nothing herein is intended to limit the City Council's right to make other determinations that are reasonably related to the license, 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 license.

(§ 1, Ord. 2833, eff. August 5, 2006)

The hearing officer or City Council may, following notice and opportunity to cure as herein provided, impose the following penalties for any breach of the license, except any breach of subscriber service standards, which shall be governed by § 4-20.38, and non-payment of fees, which shall be governed by § 4-20.16(f):

(a) Up to Five Hundred Dollars ($500.00) for each day of each material breach, or such other amount provided in the license agreement.

(b) For a second material breach of the same nature occurring within twelve (12) months where a fine or penalty was previously assessed, One Thousand Dollars ($1,000.00) for each day of each material breach.

(c) For a third or further material breach of the same nature occurring within twelve (12) months of the first such breach, where a fine or penalty was previously assessed, Two Thousand Dollars ($2,000.00) for each day of each material breach.

(§ 1, Ord. 2833, eff. August 5, 2006)

The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City's rights under the license in lieu of revocation of the license. In no event shall the amount of any insurance, bond, letter of credit or any other security instrument be construed to limit grantee's liability for damages.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to applicable law, in the event that a license is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the City, and at grantee's sole expense, promptly remove all or any portion of its video provider system from the public rights-of-way, except with respect to telecommunications facilities. With respect to telecommunications facilities, grantee shall certify to the City that the portion of the facilities responsible for delivering video programming has been disabled. In removing its video provider system, grantee shall restore all streets to the City's standard specifications and repair any damage to utilities or other infrastructure caused by such removal. The liability, indemnity, insurance, security fund and bonds required under the license 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 license is not renewed and the City acquires ownership of a video provider system or effects a transfer of ownership of a video provider system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the video provider system valued as a going concern, but with no value allocated to the license itself. If a license is revoked for cause and the City acquires ownership of the video provider system or effects a transfer of ownership of the video provider system to another person, any such acquisition or transfer shall be at an equitable price. The value of a video provider system (fair market value or equitable price) shall be determined by an appraisal committee consisting of three (3) disinterested appraisers. The City and grantee shall each select one (1) appraiser, and the two (2) selected appraisers shall agree upon and appoint a third appraiser. The foregoing shall not apply to telecommunications facilities.

(c) If a grantee's plant, or a portion thereof, is deactivated for a continuous period of thirty (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, except any property comprising telecommunications facilities. The grantee must promptly restore the streets or other public areas from which its property has been removed to the condition existing prior to the grantee's use.

(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 such instruments as the City may prescribe in order to transfer and convey ownership of the abandoned property to the City.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to applicable provisions of the United States Bankruptcy Code, any license shall, at the option of the City, cease and terminate one hundred twenty (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 one hundred twenty (120) days, or unless:

(1) Such receiver or trustee shall have, within one hundred twenty (120) days after his or her election or appointment, fully complied with all terms of the license and remedied all breaches of the license 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 one hundred twenty (120) days, execute an agreement duly approved by the Court having jurisdiction, under which such receiver or trustee agrees to be bound by each and every term, provision and limitation of the license.

(b) Upon the foreclosure or other judicial sale of all or a substantial part of a video provider system, grantee shall notify the City 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.

(§ 1, Ord. 2833, eff. August 5, 2006)

Subscribers shall have the right to continue to receive service so long as their financial and other obligations to video provider are honored. Video provider 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 video provider system, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all subscribers.

(§ 1, Ord. 2833, eff. August 5, 2006)