Pomona Municipal Code § 54-33 Procedures for granting

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Cable communications system means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the city, but such term does not include the following:

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

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

(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Cable Communications Policy Act of 1984, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

(4) Any facilities of any electric utility used solely for operating its electric utility systems;

Cable television means a cable communications system.

Franchise means and includes any authorization granted under this article in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable communications system in the city. Any such authorization, in whatever term granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city in accordance with article VIII of chapter 50.

Grantee means the person to whom a franchise is granted by the council under this article and the lawful successor, transferee or assignee of such person.

Gross annual receipts means any and all compensation and other consideration in any form whatever derived from subscribers and any contributing grant or subsidy received in payment for television of FM radio signals or service received within the city. Gross annual receipts shall not include any taxes on services furnished by the grantee imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the grantee for such governmental unit.

Hidden Valley service area means the area bordered by the 60 Freeway on the north, the Los Angeles County/San Bernardino County line on the east, Scenic Ridge Drive on the south and Phillips Ranch Road on the west.

Property of the grantee means all property owned, installed or used by the grantee in the conduct of a cable communications business in the city under the authority of a franchise granted pursuant to this article.

Street means the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or drive, existing as such within the city.

Subscriber means any person receiving for any purpose the cable communications service of the grantee.

(Code 1959, § 11.1-1; Ord. No. 3541, § 2 (part); Ord. No. 3918, § 1)

Cross reference— Definitions generally, § 1-2.

(a) Regulatory authority. The city shall exercise regulatory authority under this article and applicable law. Such authority shall be vested in the city.

(b) Regulatory responsibility. Regulatory responsibility shall be as follows:

(1) The city shall have the following regulatory responsibility:

a. Administration and enforcement of this article, the franchise agreement, and other pertinent state and federal laws and regulations.

b. Performance evaluation.

c. Franchise award or renewal.

d. Service regulation, to the extent set forth.

(2) The city also reserves the right, at its option, to perform the following functions:

a. Coordinating the operation of government programming.

b. Coordinating plans for expansion and growth of cable services.

c. Analyzing the possibility of integrating cable communications with other city, regional or state telecommunications networks.

d. Formulating and recommending long range telecommunications policy and service capability for the city.

(c) Supervision of franchise. It is the intent of the city to provide day-to-day administration and enforcement of the provisions of the franchise. Responsibilities of the city include, but shall not be limited to, the following:

(1) Monitor and recommend to the city council appropriate action related to sections of this article, related ordinances, and franchise agreements.

(2) Develop objectives and coordinate activities related to governmental programming.

(3) Provide the administrative effort necessary to conduct required performance evaluations, as outlined in this article.

(4) Monitor the grantee's process of handling citizen complaints and periodically inspect and analyze the records related to such complaints.

(5) Monitor the grantee's adherence to construction and installation schedules and its line extension policy.

(6) Ensure compliance with applicable laws and ordinances.

(7) Monitor operational standards.

(8) At the council's direction, arrange for the tests and analyses of equipment and performance.

(9) Ensure continuity in service.

(10) Examine all data and reports required to be filed by this article.

(d) Franchise applications. Procedures for franchise applications shall be as follows:

(1) Form. Each application for the granting of a franchise under this article shall be made in a form approved by the city, filed with the city clerk, within the time limits set by the city council, and shall contain the following information:

a. The name, address, and telephone number of the applicant.

b. A statement of the organization of the applicant, including the names and business addresses of all officers, directors, and persons and entities having, controlling, or being entitled to have or control five percent or more of the ownership of the applicant and his respective shares. If the applicant is a partnership or a subsidiary of either a corporation or partnership, the same information shall be provided for each of the partners and/or the parent entities of the applicant.

c. A detailed and complete financial statement of the applicant and any parent entities shall be prepared by a certified public accountant. If the applicant intends to finance the construction and operation of the cable communications system, it shall also file a letter or evidence of the existence of the financial agreement, which shall be addressed to the city, setting forth its intention to finance the construction and operation of the system.

d. A description of the franchisee's current cable operations in areas outside of the city and a description of all discontinued cable communications system operations of the previous two years due to reasons of sale or transfer of assets, franchise revocation, or other relevant circumstances. The applicant shall also include a statement or schedule of all other franchises where the applicant currently has applications pending.

e. A detailed proposal for the operation of the cable communications system, including, but not limited to, the following:

1. A map indicating that all areas of the city are proposed to be served and shall be served by the cable communications system, along with a proposed construction schedule and line extension policy, if any;

2. The number and identification of channels proposed to be carried on the system;

3. A detailed statement of equipment and operational standards proposed by the applicant;

4. A schedule setting forth all proposed services, along with a schedule of rates and charges for each service or combination services;

5. A statement regarding proposed public access, educational access, local access, and local origination channels and equipment; and

6. A proposed subscriber complaint procedure.

f. A statement of technical ability, financial capability, and legal qualifications to own and operate a franchise.

g. Any other information requested by the city.

h. A nonrefundable application fee in an amount to be determined by the council.

(2) Advertisements for bids. At least 90 days prior to the date that all applications for the cable communications franchise are due, the city shall, by advertisement or by any other means, solicit applications for cable communications service and may make any other conditions or limitations respecting the solicitation for bids and making and receiving the applications.

(3) Report. Upon notification of the receipt of the applications by the city clerk, the city shall prepare a report and recommendations respecting the applications to the city council. The report shall be made public and shall be concluded within 90 days of the date for the filing of the franchise applications, unless otherwise extended for additional periods of time by the city council.

(4) Notice of public hearing. Within 45 days of the date the city report on the franchise applications is completed, the council shall adopt a resolution of its intention to grant the franchise, and it shall schedule a public hearing for the consideration of the competing applications not less than 30 days from the date of the adoption of the resolution. The city clerk shall publish a notice of the intention to hold the hearing at least once in a newspaper of general circulation within the city at least ten days prior to such hearing.

(5) Public hearing. At the time of the hearing, the council shall hear all interested persons concerning the granting of the cable communications system franchise. It shall then consider the competing applications, if any, and consider such factors as system size; channel capacity; technical quality; rates to the subscribers; income to the city; the experience, character, and financial responsibility of the applicants and their willingness and ability to meet the construction requirements; and any other considerations deemed relevant by the council. The council shall not be limited to any one particular factor in determining which franchise should be granted, but it may consider each application as a whole. The council shall not be limited to weighing each factor as may be recommended, and it shall make an independent determination of the applications. At the conclusion of the hearing or any extension thereof, the council shall, in its sole discretion, determine that:

a. All applications should be rejected and new applications solicited pursuant to this section or section 54-33; or

b. One or more applications be accepted and the remainder be rejected. The council may condition such acceptance on terms and conditions that it specifies at the conclusion of the hearing. These terms and conditions may be the same as or different from those specified in the initial resolution to seek applications and may also be the same as or different from the proposed terms and conditions for the franchise contained in the applicant's application.

(6) Franchise negotiations. Upon the conclusion of the hearing, the city and the acceptable applicants shall enter into negotiations for the determination of the franchise agreement. The franchise agreement shall contain the terms and conditions set forth in this section, as well as those required by the council at the conclusion of the hearing. Upon the successful conclusion of the negotiations for the franchise agreement, the council may, by resolution, approve the proposed agreement. Upon acceptance of the agreement by the council and the applicant, the franchise shall become binding upon the effective date. If the applicant and the city are unable to agree on the terms of the franchise agreement, the city may conclude the negotiations, and the council may enter into negotiations with any other applicant or may solicit new applications.

(7) Franchise processing costs. The applicant shall bear all the costs of processing the franchise application, including, but not limited to, the following:

a. All costs of publication of notices and publications of the ordinance codified in this article;

b. The cost of any consultant hired to evaluate the franchise proposals;

c. The additional cost of the city attorney; and

d. Any other expenses reasonably incurred by the city.

(Code 1959, § 11.1-2; Ord. No. 3541, § 2 (part))

Cross reference— Administration, ch. 2.

(a) Grant. If the city shall grant to the grantee a nonexclusive, revocable franchise to construct, operate and maintain a cable communications system within the city, such franchise shall constitute both a right and an obligation to provide the services of a cable communications system as regulated by this article and the franchise agreement. The franchise agreement may include by reference those provisions of the grantee's proposal for a franchise that are finally negotiated and accepted by the city and the grantee.

The franchise shall be granted under the terms and conditions contained in this article, consistent with the city's Charter and/or other applicable statutory requirements. If a conflict occurs between the terms and conditions of this article, the franchise agreement, or the terms and conditions on which the city can grant a franchise, the Charter and/or statutory requirements shall control.

Any franchise granted by the city is hereby made subject to the Charter and other general ordinance sections in effect and made effective. Nothing in the franchise agreement shall be deemed to waive the requirements of the various codes and ordinances of the city regarding licenses, permits, fees to be paid, or manner of construction unless expressly agreed to by the city.

(b) Franchise boundary. The service area shall be the entire city, and the grantee shall provide service to the entire city. Notwithstanding the aforementioned, the grantee may be excused from servicing the Hidden Valley service area, and a franchise may be granted to serve only the Hidden Valley service area.

(c) Use of public streets and ways. For the purpose of operating and maintaining a cable communications system in the city, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the franchise area such optical fibers, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary for the operation of a cable communications system.

All installations shall be under ground in those areas of the city where public utilities providing both telephone and electric service are under ground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, the grantee may install its facilities above ground, provided that, at such time as those facilities are placed under ground, the grantee shall likewise place its facilities under ground without additional cost to the city. Where not otherwise required to be placed under ground by this article, the grantee's system shall be located under ground at the request of the adjacent property owner, provided that the excess cost over the aerial installation shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit.

Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate city agencies, complete use agreements with the utility companies, obtain all construction permits and receive written approval from the city before proceeding, which approval shall not be unreasonably withheld.

(d) Use of city facilities. At the city's option, the city may require the grantee to utilize city-owned conduit or other facilities for any portion of its cable communications system. The consideration for the use of city conduit or other facilities shall be as stated in the franchise agreement. A reasonable fee for the use of city facilities shall be established in the franchise agreement and may be adjusted at the periodic performance evaluations, so long as the cost of utilizing city-owned conduit does not exceed available alternatives.

(e) Use of grantee's facilities. No poles shall be erected by the grantee on city property without prior approval of the city with regard to location, height, type and any other pertinent aspect. The location of any pole of the grantee on city property shall not become a vested right, and such poles shall be removed or modified by the grantee at its own expense whenever, after public hearing and review of available alternatives, the city determines that the public interest requires. The grantee shall utilize existing poles and conduits, where possible. The city shall have the right, during the life of the franchise, to install and maintain free of charge, upon any poles owned by the grantee, any wire and pole fixture that does not unreasonably interfere with the operation of the cable communications system.

(f) Franchise required. No cable communications system shall be allowed to occupy or use the streets of the city or be allowed to operate without a franchise defined and granted by the city unless the city expressly grants permission. Where property on both sides of a street is under common ownership, a conduit may be installed upon receipt of an excavation permit issued by the department of public works.

(g) Agreement and incorporation of application by reference. Upon adoption of the ordinance from which this article is derived and acceptance by the grantee of an execution agreement, the grantee agrees to be bound by all the terms and conditions contained in this article. The grantee also agrees to provide all services specifically set forth in this article to provide a cable communications system within the city, and by its acceptance of the franchise the grantee specifically acknowledges and agrees that this article is thereby incorporated by reference and made a part of the franchise agreement. If a conflict occurs between the sections of this article and the franchise agreement, the provision which provides the greatest benefit to the city shall prevail.

(h) Duration and acceptance of franchise. The franchise and the rights, privileges and authority granted thereunder shall continue in force and effect for the term of years specified in the franchise agreement, beginning with its effective date. The grantee shall promise to comply with and abide by all the provisions, terms and conditions of the franchise agreement.

(i) Franchise nonexclusive. The city specifically reserves the right, subject to the same minimum standards set forth in this franchise, to grant at any time such additional franchises in the same franchise area and on the same terms specified in the grantee's franchise agreement for a cable communications system as it deems appropriate.

(j) Time is of the essence. Whenever the franchise shall set forth any time for an act to be performed by or on behalf of the grantee, such time shall be deemed of the essence.

(k) Governing law. In any controversy or dispute under this article or the franchise agreement, the laws of the state shall apply to the exclusion of all other state laws.

(l) Severability. If any section, subsection, sentence, clause, phrase or portion of this article or franchise agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof.

(m) Transfer of ownership or control. Procedures for transfer of ownership or control shall be as follows:

(1) Any franchise granted under this article cannot in any event be sold, transferred, leased, hypothecated, assigned or disposed of, including, but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means, without the conditions as the city may establish, within the city's scope of review set forth in subsection (m)(2) of this section. No conditions of transfer shall add to the burdens of the grantee under this article or a franchise agreement.

(2) The grantee shall promptly notify the city of any actual or proposed change or transfer or acquisition by any other party of the control of the grantee. The word "control" as used in this subsection is not limited to major stockholders, but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of ten percent of the voting shares of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the city shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the scope of the city's review shall be limited to the financial, character, legal and technical qualifications. The city may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the city in such inquiry.

(3) The city shall specify documents required to properly evaluate the proposed transfer.

(4) The consent or approval of the city council to any transfer of the grantee shall not constitute a waiver or release of the rights of the city, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this article and the franchise agreement.

(5) In the absence of extraordinary circumstances, the city will not approve any transfer or assignment of the franchise prior to completion of construction of the proposed system.

(6) In no event shall a transfer of ownership or control be approved without a successor in interest becoming a signatory to the franchise agreement and expressly agreeing to all its terms and conditions.

(7) The transferee shall file with the city a copy of the instrument of assignment within ten days after the transfer is completed.

(n) Franchise award upon completion of initial franchise term. Procedures for award of a franchise upon completion of the initial franchise term shall be as follows:

(1) Formal renewal procedure. During the six-month period which begins with the 36th month before the franchise expiration, the city may, on its own initiative, and shall, at the request of the grantee, begin renewal proceedings in conformity with the renewal process as defined in the Cable Communications Policy Act of 1984, with any subsequent modifications or any applicable succeeding regulations. The city may either grant or deny a renewal as a result of the proceedings. The grantee has a right to appeal an adverse decision by the city to a court with appropriate jurisdiction.

(2) Informal renewal procedure. Notwithstanding the procedure in subsection (n)(1) of this section, the grantee may submit a proposal for franchise renewal at any time, and the city may, after notifying the public and giving them an opportunity to comment, grant or deny the proposal at any time. This informal procedure is independent of and not subject to the formal procedure cited in subsection (n)(1) of this section.

(o) Police powers. In accepting the franchise, the grantee acknowledges that its rights under this article are subject to the police power of the city to adopt and enforce general ordinances necessary for the health, safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the city pursuant to such power. Any conflict between the sections of this article or the franchise agreement and any lawful exercise of the city's police powers shall be resolved in favor of the latter.

(p) Franchise fees. Franchise fees shall be as follows:

(1) The streets in the city to be used by the grantee in the operation of its cable communications system are valuable public properties acquired and maintained by the city at great expense to its taxpayers. As such, the right to use such streets is a valuable property right without which the grantee would be required to invest substantial capital in right-of-way costs and acquisitions. Therefore, the grantee shall pay to the city an annual fee in an amount designated in the franchise agreement of the gross annual receipts, subject to whatever limit may be imposed by state or federal law. This annual franchise payment shall be in addition to any other general business fees and licenses required by city ordinance and commence as of the effective date of the franchise agreement. The city shall be furnished a statement of such payment by a financial officer of the grantee reflecting the total amounts of the annual gross revenues, receipts and such charges and computations for the period covered by the payment.

(2) The franchise fee payment shall be in addition to any other tax or payment owed by the grantee to the city or other taxing agency.

(3) Acceptance by city. No acceptance of any payment by the city shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable as a franchise fee under this article or for the performance of any other obligation of the grantee.

(4) Failure to make required payment. If any franchise fee payment or recomputed amount is not made on or before the dates specified in this article or the franchise agreement, the grantee shall pay, as additional compensation, an interest charge, computed from such due date, at the annual rate in effect upon the due date.

(5) The franchise fee shall be payable annually to the city treasurer. The grantee shall file with the city clerk a complete statement of all gross annual receipts earned within the city during the period for which such payment is made, and such payment shall be made to the city not later than 60 days after the expiration of the calendar year.

(6) The city shall have the right to inspect the grantee's income records and the right to audit and to recompute any amounts determined to be payable under this article and the franchise agreement; provided, however, that such audit shall take place within 36 months following the close of each of the grantee's fiscal years. Any additional amount due to the city as a result of the audit shall be paid within 30 days following written notice to the grantee by the city, which notice shall include a copy of the audit report.

(q) Revocation and forfeiture. Procedures for revocation and forfeiture shall be as follows:

(1) Grounds for revocation. The city reserves the right to revoke any franchise granted under this article and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and a substantial violation under this article and the franchise agreement:

a. If the grantee shall default on the payment of any court judgments or in the performance of any of the material obligations under this article or the franchise agreement or other lawful requirement imposed by the city permitted by law.

b. If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required in section 54-36.

c. If the grantee shall violate any material orders or rulings of any regulatory body having jurisdiction over the grantee relative to this article or the franchise agreement.

d. If the grantee attempts to evade any of the material sections of this article or the franchise agreement or practices any fraud or deceit upon its subscribers or the city.

e. If the grantee's construction schedule is delayed later than the schedule contained in the franchise agreement or beyond any extended date set by the city.

f. If the grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.

g. If the grantee fails to restore service after ten consecutive days of interrupted service, except when approval of such interruption is obtained from the city.

h. If the grantee makes any material misrepresentation of fact in the application for, negotiation of, or renegotiation of the franchise.

i. If the grantee, due to its fault, ceases to provide any material services agreed to in the franchise agreement.

(2) Effect of circumstances beyond control of grantee. The grantee shall not be declared at fault or be subject to any sanction under any section of this article in any case in which performance of any such section is prevented for reasons beyond the grantee's control. A fault shall not be deemed to be beyond the grantee's control if committed by a corporation or other business entity in which the grantee holds a controlling interest, whether held directly or indirectly. Pending litigation against the grantee shall not exclude the grantee from the performance of its obligations under this article and under the franchise agreement. Failure of the grantee to perform such obligation because of pending litigation may result in revocation or forfeiture pursuant to this subsection.

(3) Procedure prior to revocation. The procedure prior to revocation shall be as follows:

a. The city shall make written demand by certified mail that the grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of 30 days following such written demand, the city shall place its request for termination of the franchise upon a regular council meeting agenda. The city shall cause to be served upon such the grantee, at least 15 days prior to the date of such council meeting, a written notice of intent to request such termination and the time and place of the meeting, notice of which shall be published by the city clerk at least once ten days before such meeting in a newspaper of general circulation within the city.

b. The council shall hear from any persons interested in the revocation and shall determine in its discretion whether or not any failure, refusal or neglect by the grantee was with just cause.

c. If such failure, refusal or neglect by the grantee was with just cause, as defined by the city, the council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

d. If the council shall determine such failure, refusal, or neglect by the grantee was without just cause, the council shall declare that the franchise shall be terminated and revoked, unless there is compliance by the grantee within 90 days or by any other later time determined by the council.

(4) Disposition of facilities. If the franchise expires, is revoked or otherwise terminated, the city may in its sole discretion do one of the following:

a. Purchase the system under the procedures set forth in section 54-38(k), which pertains to rights reserved to city.

b. Order the removal of the system facilities from the city within a reasonable period of time or require the original grantee to maintain and operate the system facilities until a subsequent grantee is selected.

(5) Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The city shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability and indemnity insurance and the performance bond required in this article shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this subsection and this article.

(6) Restoration by city. If the grantee fails to complete any work required by section 54-35 or 54-37 or any other work required by city law or ordinance within the time established and to the satisfaction of the city, the city may cause such work to be done. The grantee shall reimburse the city the cost thereof within 30 days after receipt of an itemized list of such costs, or the city may recover such costs through the surety bond provided by the grantee. The city shall be permitted to seek legal and equitable relief to enforce this subsection.

(7) Extended operation. Upon either the expiration or revocation of the franchise, the city may require the grantee to continue to operate the system for an extended period of time, not to exceed six months, unless the city deems a longer period would be in the public interest, from the date of such expiration or revocation. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this article and the franchise agreement and shall continue to provide the regular subscriber service and any and all of the services that are provided at the time. The city shall be permitted to seek legal and equitable relief to enforce this subsection.

(8) City's right not affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the city under the franchise or any provision of law.

(r) Receivership and foreclosure. Procedures for receivership and foreclosure shall be as follows:

(1) Termination by insolvency. The franchise shall, at the option of the city council, cease to exist and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of the grantee, whether in a receivership reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of such 120 days or unless:

a. Such receiver or trustee shall have, within 120 days after his election or appointment, fully complied with all the terms of this article and the franchise granted pursuant to this article and the receiver or trustee, within such 120 days, shall have remedied all defaults under the franchise; and

b. Such receiver or trustee shall, within such 120 days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every term, provision and limitation of the franchise granted in this article.

(2) Termination of judicial action. If a foreclosure or other judicial sale of the plan, property and equipment of the grantee or any part thereof occurs, the council may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise granted in this article and all rights and privileges of the grantee under this article shall cease and terminate 30 days after service of such notice, unless:

a. The council shall have approved the transfer of the franchise, as and in the manner this article provides; and

b. Such successful bidder shall have agreed with the city to assume and be bound by all the terms and conditions of this franchise.

(s) Notices. All notices from the grantee to the city pursuant to the franchise agreement shall be to the city manager. The grantee shall maintain within the city, throughout the term of its franchise, an address for service of notices by mail. The grantee shall also maintain within the city payment stations where customers can pay bills, unless otherwise approved by the city and a business office and telephone and shall be required to advise the city of such address and telephone number and any changes thereof.

(t) Failure of city to enforce franchise terms. The grantee shall not be excused from complying with any of the terms and conditions of the franchise by any failure of the city to act upon, to insist upon, or to seek compliance with any such terms or conditions of such franchise, on any one or more occasions.

(Code 1959, § 11.1-3; Ord. No. 3541, § 2 (part); Ord. No. 3918, §§ 2, 3)

State Law reference— Cable television franchises authorized, Government Code § 53066.

The city council, in its discretion, may award a separate franchise solely for the Hidden Valley service area. The grantee for such service area would be required to comply with all of the sections of this article. However, the city council shall have the discretion, in awarding such franchise, to modify the requirements of section 54-32(d)(1), which pertains to the form of franchise applications; 54-32(d)(2), which pertains to advertisements for bids for franchise applications; section 54-36(a), which pertains to security/performance bonds; section 54-36(b), which pertains to liability and insurance; section 54-38(a)(5), which pertains to service provision of community programming; 54-38(a)(6) to more appropriately address the needs of the reduced service area.

(Code 1959, § 11.1-3.5; Ord. No. 3918, § 4)

(a) Authority to construct. Authority to construct a cable communications system shall be in accordance with the following:

(1) Authorization to commence construction and application procedures. Within 30 days of the acceptance by the grantee of a franchise under this article, the grantee shall register the cable communications system with the Federal Communications Commission and apply for pole attachment contracts with the relevant local public utilities. Within 30 days after completion of the make-ready survey identifying the routes of the system facilities, the grantee shall apply for all additional licenses from the state, city or other necessary parties. All necessary applications for permits, licenses, certificates and authorizations shall be applied for in a timely fashion so that such filing and processing shall not interfere with or cause delay with the construction schedule as outlined in the franchise agreement. Failure to make such timely application and timely filing shall constitute a substantial violation within the meaning of section 54-33.

(2) Power to contract. Upon grant of the franchise and in order to construct and maintain a cable communications system in the city, the grantee may:

a. Enter into contracts with any public utility companies or any other owner or person;

b. Lease any poles or underground areas located within or without the city;

c. Obtain right-of-way permits from appropriate city, county, state, and federal officials necessary to cross or otherwise use highways or roads under their respective jurisdictions;

d. Obtain permission from the Federal Aviation Administration to erect and maintain antennas; or

e. Obtain whatever other permits a city, county, state or federal agency may require.

(b) Construction and technical standards. Construction and technical standards shall be as follows:

(1) The grantee shall install, operate, and maintain a cable communications system in accordance with the highest and best accepted standards of the industry, to the extent that subscribers receive the finest quality service possible. Specifically, the system shall be maintained in a manner consistent with all laws, ordinances, construction standards, governmental requirements, and the Federal Communications Commission technical standards.

(2) Prior to the erection or installation by the grantee of any towers, poles, underground conduits or fixtures for use in connection with the installation, construction, maintenance or operation of the cable communications system under this article, the grantee shall first submit to the city and other designated parties for approval a concise description of the facilities proposed to be erected or installed, including engineering drawings if required, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, or underground conduit for use in a cable communications system shall be commenced by any person until any necessary approval has been received from the city, provided, further, that such approval shall not be unreasonably withheld. After completion of construction the grantee shall submit as-built plans of the completed system and updates as required.

(3) Contractor qualifications. Any contractor or subcontractor hired for any proposed work, construction, installation, maintenance and repair of system equipment must be properly licensed under laws of the state and all local ordinances. In addition, the grantee shall evidence a commitment to hiring persons locally and meeting federal mandates.

(4) The grantee's system and associated equipment erected within the city shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of such streets, alleys or other public ways.

(5) Substructure location. The city does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public rights-of-way, where necessary, the location shall be verified by excavation. The grantee must contact the underground service alert or other established regional notification service prior to any excavation.

(6) Additional specifications shall be as follows:

a. Construction, installation and maintenance of the cable communications system shall be performed in an orderly and workmanlike manner, in accordance with then-current technological standards. All cables and wires shall be installed, where possible, parallel with electric and telephone lines.

b. The grantee shall at all times comply with the following:

1. The National Electrical Safety Code, 2002 edition (IEEE-SA).

2. The California Electrical Code.

3. The state public utility commission general orders 95 and 128.

4. Applicable Federal Communications Commission or other federal, state and local regulations.

c. In any event, the system shall not endanger or interfere with the safety of persons or property in the franchise area or other areas where the grantee may have equipment located.

d. Any antenna structure used in the cable communications system shall comply with construction, marking, and lighting of antenna structure standards as required by federal and state law or regulation.

e. All worker facilities, conditions and procedures that are used during construction, installation and maintenance of the cable communications system shall comply with the standards of the Occupational Safety and Health Administration and/or CAL OSHA, whichever application is the more stringent.

f. RF leakage shall meet the standards promulgated by the Federal Communications Commission. The cable communications system shall cause no measurable interference with signal reception to any operating receiver not connected to the system.

g. The grantee shall provide standby power-generating capacity at the cable communications system control center, at each mainline transmission amplifier location, rated for at least four-hour duration.

(7) The city shall, at its own expense, have the right to inspect all construction and installation work performed subject to this article and applicable franchises and shall make such tests as it shall find necessary to ensure compliance to such provisions; provided, however, that the city shall be permitted to charge the grantee its usual and customary fees for the inspection of construction in the streets and provided, further, that such inspection and tests shall not interfere with the provision of subscriber services. Any delays in construction due to such inspections shall not be reason for default.

Charter reference— Adoption by reference, § 512.

State Law reference— Adoption by reference, Government Code § 50022.1 et seq.

(c) Use of streets. Use of streets shall be in accordance with the following:

(1) Interference with persons, improvements, public and private property and utilities. The grantee's system facilities, including poles, lines, equipment and all appurtenances, shall be located, erected and maintained so that such facilities shall not:

a. Endanger or interfere with the health, safety or lives of persons;

b. Interfere with any planned improvement of the city, county, or state;

c. Interfere with the free and proper use of public streets, alleys, bridges, easements or other public ways, places or property, except to the minimum extent necessary during actual construction, maintenance or repair;

d. Interfere with the rights and reasonable convenience of private property owners, except as necessary during construction, maintenance or repair; and

e. Obstruct, hinder or interfere with any gas, electric, water or telephone facilities or other utilities located within the city.

(2) Restoration to prior condition. If any damage to pavement, sidewalk, driveway or other surfaces occurs, the grantee shall, at its own cost and expense and in a manner approved by the city, replace and restore all paving, sidewalks, driveways, landscaping, or surface of any street or alley disturbed in as good condition as before such work was commenced and in a good workmanlike, timely manner in accordance with standards for such work set by the city. Such restoration shall be undertaken within no more than ten days after the damage is incurred and shall be completed as soon as possible thereafter.

(3) Erection, removal and common use of poles. Erection, removal and common use of poles shall be in accordance with the following:

a. Where poles already exist for use in serving the city and available for use by the grantee, but it does not make arrangements for such use, the city may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable.

b. Where a public utility serving the city desires to make use of the poles or other wire-holding structures of the grantee, but agreement thereof with the grantee cannot be reached, the city may require the grantee to permit such use for such consideration and upon such terms as the city determines that the use would be in the public interest and would not unduly interfere with the grantee's operation.

(4) Relocation of facilities. If, at any time during the period of the franchise, the city, county or state shall lawfully elect to alter or change the grade of any street, alley or other public way, the grantee, upon reasonable notice by the proper authority, shall remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

(5) Cooperation with building movers. The grantee shall, on the request of any person holding a building move permit issued by the city, temporarily raise or lower its wires to permit the movement of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the removal, raising or lowering, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than five nor more than ten working days' notice to arrange for such temporary wire changes.

(6) Tree trimming. If the grantee deems it necessary to trim trees upon and overhanging the public right-of-way so as to prevent the branches of such trees from coming in contact with the cable communications system, the grantee shall obtain from the community services department all required inspection job permits prior to initiation of such tree trimming activity.

(7) Easements. All necessary easements over and under private property shall be available to the grantee by operation of law or shall be arranged by the grantee with the owner of such property. On public rights-of-way, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets, ways and easements within the franchise area in order to develop and maintain a cable communications system.

(8) Failure to commence, pursue, or complete work. Upon failure of the grantee to commence, pursue, or complete any work required by law or by this article or by its franchise to be done in any street or other public place within the time prescribed and to the satisfaction of the city, the city may, at its option, cause such work to be done. The grantee shall pay to the city the cost thereof in the itemized amounts reported by the city to the grantee within 30 days after receipt of such report.

(Code 1959, § 11.1-4; Ord. No. 3541, § 2 (part))

(a) Security/performance bonds. The grantee under this article shall file with the city clerk and shall at all times maintain in force and effect for the term of the franchise and any renewal a security bond for faithful performance and labor and material liens, in the amount of $10,000.00. The bond may be used to compensate the city for any failure by the grantee to perform its obligations, including, but not limited to, obligations to pay the following:

(1) Liquidated damages, claims, liens, and/or taxes due the city or other governmental entities or authorities, which are due to the construction, operation, maintenance, and/or removal of the system.

(2) Fines, damages, and costs arising out of noncompliance with orders, permits, and/or directions of any city department having jurisdiction over the grantee's acts or defaults under this article or the franchise. Reasonable attorney's fees and other legal expenses incurred are included in this subsection.

(3) Damages, losses, and/or costs suffered by the city by reason of the failure of the grantee to satisfactorily complete and activate the system as provided in this article and/or in the franchise.

(b) Liability and insurance. On and after the effective date of the franchise and continuously throughout the duration of the franchise and any renewal, the grantee shall file with the city clerk certificates of insurance, in a form acceptable to the city. Failure to furnish and maintain such certificates of insurance in a timely manner shall constitute a substantial violation of this article. Evidence of insurance shall be filed within 45 days of its renewal date. The grantee shall maintain and by its acceptance of the franchise specifically agrees to maintain throughout the term of the franchise general liability insurance covering the grantee in the minimum of: (i) $1,000,000.00 for property damage, per occurrence; (ii) $5,000,000.00 for property damage, aggregate; (iii) $5,000,000.00 for personal bodily injury to any one person; and (iv) $10,000,000.00 for bodily injury, aggregate, per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive form, premises, operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. The grantee shall maintain and by its acceptance of the franchise specifically agrees to maintain throughout the term of the franchise automobile liability insurance for owned, nonowned, or rented vehicles in the minimum amount of: (i) $1,000,000.00 for bodily injury and consequent death to any one person; (ii) $2,000,000.00 for bodily injury and consequent death per occurrence; and (iii) $500,000.00 for property damage per occurrence. The grantee shall maintain and by its acceptance of the franchise agrees to maintain throughout the term of the franchise workers' compensation and employer's liability insurance, valid in the state, in the minimum amount of: (i) the statutory limit for workers' compensation; and (ii) $100,000.00 for employer's liability. Any certificate of insurance obtained by the grantee in compliance with this section shall be filed and maintained with the city clerk during the term of the franchise, and may be changed from time to time to reflect changing liability limits. The grantee shall immediately advise the city of any litigation that may affect this insurance. All insurance policies maintained pursuant to the franchise shall contain the following endorsement: "It is understood and agreed that in the event this insurance policy is canceled or denied renewal by the insurance company city shall first be provided 30 days' written notice of such intention to cancel or not to renew." All insurance policies provided under the provisions of the franchise agreement shall be written by companies authorized to do business in the state and approved by the state department of insurance. At any time during the term of this article the city may request that the grantee include the city as an additional named insured for all insurance policies written under the provisions of the franchise agreement.

The grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the city, its officers, boards and commissions, and city employees against any and all claims, suits, actions, liability and judgments for damages, including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the city in connection therewith:

(1) Arising out of or through the acts or omissions of the grantee, its servants, agents or employees or to which the grantee's negligence shall in any way contribute;

(2) Arising out of any claim for invasion of the right of privacy, for any person, or the violation or infringement of any copyright, trademark, trade name, service mark or patent or of any other right of any person caused by the grantee, its servants, agents or employees;

(3) Arising out of the grantee's failure to comply with the provisions of any federal, state, or local statute, ordinance or regulation applicable to the grantee.

The foregoing indemnity is conditioned upon the following: The city shall give the grantee prompt notice of the making of any claim or commencement of any action, suit or other proceeding covered by this section. Nothing in this section shall be deemed to prevent the city from cooperating with the grantee and participation in the defense of any litigation by its own counsel at its sole cost and expense.

(c) Indemnification. The city and the grantee each hereby agree to indemnify, defend and hold harmless the other against any and all claims, suits, actions, liability and judgments against the indemnifying party for the indemnifying party's negligence or other bad acts.

(Code 1959, § 11.1-5; Ord. No. 3541, § 2 (part))

(a) Books and records available to city. Under this article The grantee shall maintain an office within the franchise area or at a location which subscribers may call without incurring added message or toll charges unless otherwise approved by the city and shall manage all of its operations in accordance with a policy of totally open books and records. The city shall have the right to inspect at any time during normal business hours all books, records, maps, plans, income tax returns, financial statements, service complaint lots, performance test results and other like materials of the grantee which relate to the operation of the franchise. Access to such records shall not be denied by the grantee on the basis that such records contain proprietary information.

(b) Reports required. The grantee shall file with the city the following reports:

(1) Federal Communications Commission annual report. An annual report of the cable television system (FCC form 325, schedules 1, 2, 3 and 4).

(2) Facilities report. An annual total system facilities report setting forth the physical miles of plant construction, rebuilt or in operation during the fiscal year. Such report shall also contain any revisions to the system as-built maps filed with the city.

(3) Printed material. The grantee's schedule of charges, its contract or application forms for subscriber service, its policy regarding the processing of subscriber complaints, its delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee's policy in connection with its subscribers shall be filed with the city and conspicuously posted in the grantee's local office. Subsequent changes or updates of these materials shall be promptly filed with the city.

(4) Regulatory communications. All petitions, applications and communications related to the operation of the cable communications system submitted by the grantee to the Federal Communications Commission, the Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the grantee's system shall be submitted simultaneously to the city by delivery to the city clerk who shall advise interested city departments of such filing.

(5) System reports. The following financial and operational reports shall be submitted annually to the city clerk within 60 days of the end of the calendar year:

a. The corporate surety bond for faithful performance and labor and material liens or a certified copy thereof and written evidence of payment of the required premium.

b. All certificates of insurance or certified copies thereof.

c. A financial report for the previous calendar year, including gross annual receipts, itemized in a fashion to permit calculation of the franchise fee payable to the city.

d. All consumer rules, regulations, terms and conditions which it has adopted for the conduct of its business.

e. A summary of the previous year's activities, including but not limited to subscriber totals and new services.

f. A summary of complaints received and the disposition of such complaints for the previous year.

g. City staff and the grantee shall meet at least once a year to discuss the grantee's operations and cable industry issues.

(6) Additional reports. The grantee shall prepare and furnish to the city at the times and in the form prescribed such additional reports with respect to its operation, affairs, transactions or property as the city and the grantee agree may be reasonably necessary and appropriate for the performance of any of the rights, functions or duties of the city in connection with the franchise.

(c) Records required. The following records shall be required:

(1) Mandatory records. The grantee shall at all times maintain the following:

a. A record of all written complaints received.

b. A full and complete set of plans, records and as-built maps showing the exact location of all cable communications system equipment installed or in use in the city, exclusive of subscriber drops.

(2) Other records. The city may impose reasonable requests for additional information, records and documents from time to time.

(3) Inspection of property. At all reasonable times, the grantee shall permit examination by any duly authorized representative of the city of all franchise property, together with any appurtenant property situated within or without the city for the purpose of enforcement of franchise requirements. The grantee shall also permit any duly authorized representative of the city to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control concerning the operations, affairs, transactions or property of the grantee for the purpose of enforcement of franchise requirements. All travel and related expenses necessarily incurred in making such examination outside the county shall be paid by the grantee.

(Code 1959, § 11.1-6; Ord. No. 3541, § 2 (part))

(a) Services to subscribers. Under this article the grantee shall provide all services to subscribers as follows:

(1) The grantee shall notify the subscribers and the city of any planned changes in the grantee's rate schedule 30 days before the effective date of such changes.

(2) The grantee shall use its best efforts to ensure diversity of programming. Should the grantee desire to change the selection of the programs or services currently offered on any of its tiers, it shall use its best efforts to notify subscribers and the city not less than 30 days prior to the proposed implementation date.

(3) A basic service taking into account trends in the industry and changes in marketing strategy, exclusive of any pay services, shall be offered to subscribers throughout the term of this franchise. This shall not preclude the grantee from exploring new trends in the industry.

(4) The grantee shall provide leased access channels, in accordance with the Federal Cable Communications Policy Act of 1984 or its successor regulations.

(5) Community programming. The grantee shall provide and maintain on the basic service a minimum of one local origination channel. The grantee shall cooperate with the city in developing programs for this channel; however, responsibility for the development of local programming will rest solely with the grantee. At such time as the local origination channel is programmed with original video programming at least 80 percent of the time, the grantee shall, at the request of the city, seek to designate an additional channel for local origination programming within six months of the date of request. The grantee shall cooperate with the city to facilitate the cablecasting of city training programs as requested by the city.

(6) The grantee shall provide one full basic service drop to all city buildings and public educational agencies at the request of the city, free of charge, if such buildings are within 150 aerial feet of a passing feeder line.

(b) Services to institutions. In any emergency or disaster, the grantee shall, upon request of the city council, make available its facilities to the city for emergency use during the emergency or disaster period.

(c) Lockout devices. The grantee shall provide to the potential subscriber, as part of its promotional literature, information concerning the availability of a lockout device for use by a subscriber. Such a device shall be made available by the grantee to any premium subscriber, upon request. Such device shall permit the subscriber to prevent reception on tiers or channels containing objectionable program material. The grantee reserves the right to charge for the use of the lockout device. The lockout device described in this subsection shall be made available to all subscribers requesting it, beginning on the first day that any cable service is activated.

(d) Grantee services. The grantee shall provide at least the following services:

(1) Standard installation. Standard installation shall consist of an aerial drop not exceeding 150 feet from the centerline of the street to the subscriber's receiver. The charge to the subscriber for an aerial drop in excess of 150 feet and service requiring an underground drop or concealed wiring shall not exceed the additional installation costs incurred by the grantee. The subscriber shall be notified, in writing, of the estimated additional installation costs before installation begins. Permission of the property owner regarding installation to the residence shall be obtained prior to such installation. Runs in building interiors shall be as unobtrusive as possible. The grantee shall use due care and shall repair any damage to the subscriber's property caused by such installation. Restoration shall be undertaken within ten days after notification to the grantee of damage and shall be completed as soon as possible thereafter.

(2) Additional outlets. The grantee shall provide additional outlets as customers may request according to the grantee's rate schedule.

(3) Transfers. When a current customer moves from one address within the franchise area to a second address within the franchise area and there is no lapse in service, the grantee shall transfer service at a rate according to the grantee's rate schedule.

(4) Reconnection. The grantee shall restore service to subscribers wishing restoration of service, provided the subscriber shall first satisfy any previous obligations owed to the grantee.

(5) Relocation or extension of cable. The grantee shall relocate or extend a subscribers' cable for a charge stated in the grantee's rate schedule.

(6) Discontinuance of existing service areas. The grantee shall not discontinue any cable communications service to areas already served within the city unless and until permission has been given by the city council to do so, after a public hearing has been duly noticed and heard by the council. Discontinuance of such service without council consent may be grounds for revocation of the franchise. The city may reinstate the requirement of a citywide service area when such service is deemed economically feasible by the city after a public hearing thereon.

(7) Prohibited activities. Neither the grantee nor its officers, employees, or agents shall directly or indirectly repair or maintain television sets, receivers, or antennas not provided as the grantee's service, except that nothing shall prohibit the grantee, at the subscriber's request and without payment, from examining or adjusting the customer's terminal to determine whether reception difficulties originate in the terminal or in the grantee's system.

(e) Extension of service. Service shall be extended in accordance with the following:

(1) The grantee shall provide service to any new dwelling units within the service area and any additional areas annexed to the city where there are at least 50 dwelling units per proposed aerial cable plant mile or 100 dwelling units per proposed underground plant mile.

(2) In areas with less than 50 dwelling units per proposed aerial cable plant mile or 100 dwelling units per proposed underground cable plant mile, the grantee shall offer a cost sharing arrangement with residents. The cost sharing arrangement shall consist of the following:

a. On the request of five or more potential subscribers desiring service, the grantee shall prepare at its cost an engineering survey and cost analysis to determine the cost of plant extension required to provide service to each subscriber from the closest point where available quality signals exist.

b. The grantee shall contribute 50 percent of the total construction cost to extend the line.

c. Initially, each new subscriber shall contribute a proportional amount of the remaining 50 percent of the cost of the cable transmission system.

d. Any subsequent additional subscribers desiring service along the route of an extended line shall contribute an amount equal to 50 percent of the cost to provide service from the last upstream point where the activated plant would have existed, if it were not already extended.

(3) For new construction or property development where utilities are to be placed underground, the developer or property owner shall give the grantee reasonable notice of such construction or development and at least five days' advance notice of the particular date on which open trenching will be available for the grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided at the grantee's expense. The grantee shall also provide specifications as needed for such trenching. Notwithstanding the foregoing, the city shall notify the grantee of the issuance of all trenching permits to any developer. The cost of trenching and acquisition of easements required to bring service to the development shall be borne by the developer or property owner. However, if the grantee fails to install its conduit, pedestals and/or vaults and laterals within five working days of the date the trenches are available, as designated in the notice given by the developer or property owner, should the trenching be closed after the five-day period, the cost of new trenching is to be borne by the grantee. Except for the notice of the particular date on which trenching will be available to the grantee, any notice provided to the grantee by the city of a preliminary plant request shall satisfy the requirement of reasonable notice if sent to the local general manager or system engineer of the grantee prior to approval of the preliminary plant request.

(f) Service calls and complaint procedures. Procedures for service calls and complaints shall be as follows:

(1) Unless otherwise approved by the city, the cable communications company shall establish, operate and maintain in the city or at a location which subscribers may call without incurring a message or toll charge a business office and maintenance and repair facility for the purpose of receiving inquiries, requests and complaints concerning all aspects of the establishment, construction, maintenance, and operation of the system and for the payment of subscribers' service charges and providing facilities for the production of local programming or at a location mutually agreed upon by city and the grantee.

(2) The grantee shall have a listed local telephone number for service calls, and such telephone service shall be available 24 hours a day, seven days a week. Such number shall be within the local calling area of all residents of the service area and shall be made available to subscribers and the general public.

(3) The grantee shall respond to and resolve subscribers' complaints or requests for service in connection with repairs and maintenance and malfunctions of system facilities as quickly as possible, but shall in any case respond within 24 hours on regular workdays. Outages and complaints or requests which may pose a potential health and safety hazard shall be responded to immediately. The grantee shall respond to billing complaints within seven business days.

(4) The grantee shall prepare and file with the city copies of all of its procedures with regard to the handling of general inquiries, billing inquiries, service requests, and complaints from subscribers. This shall include the name, address and local telephone number of the employee or agent to whom such inquiries or complaints are to be addressed and shall include information concerning the city office responsible for the administration of the franchise, such as the address and local calling telephone number of such office to contact. Such information shall be made available to the public upon request.

(5) When there have been similar complaints made or where there exists other evidence which, in the judgment of the city, casts doubt on the reliability or quality of the cable service, the city shall have the right and authority to request that the grantee test, analyze, and report on the performance of the system. The grantee shall fully cooperate with the city in performing such testing and shall prepare results and a report, if requested, within 14 days after notice. Such report shall include the following information:

a. The nature of the complaint or problem which precipitated the special tests.

b. What system component was tested.

c. The equipment used and procedures employed in testing.

d. The action taken, if any, to resolve the problem.

e. Any other information pertinent to such tests and analyses which may be required. Where there are recurring service problems the city may require that tests be supervised and/or conducted, at the grantee's expense, by a professional licensed cable TV engineer. The engineer shall sign all records of special tests and forward to the city such records with a report interpreting the results of the tests and recommending actions to be taken.

(6) The grantee shall keep full records in connection with all written inquiries, complaints and requests in connection with the performance and operation of the system. Such records shall identify the person contacting the grantee and the person responding on behalf of the grantee, the subject matter of the contact, the date and time it was received, the resolution of the matter in question or the action taken by the grantee in connection with the contact and the date and time thereof, and such other information as may be deemed pertinent by the grantee or the city. These records shall be maintained for at least three years and made available for periodic inspection by the city.

(7) The grantee shall service or replace all defective or inoperable equipment it provides to the subscriber without charge; provided, however, the grantee may charge a subscriber for service to or replacement of any equipment damaged intentionally or negligently or lost by such subscriber.

(8) The city may review and monitor unresolved customer complaints.

(9) The grantee shall provide a standard identification document to all employees and subcontractors who will be in direct contact with the public. Such document shall include a telephone number that can be used to verify identification.

(g) Tests and performance monitoring. Tests and performance monitoring shall be conducted in accordance with the following:

(1) Not later than 90 days after any new or substantially rebuilt portion of the system is made available for service to subscribers, technical performance tests as required by the Federal Communications Commission shall be conducted by the grantee to demonstrate full compliance with technical standards established by the Federal Communications Commission.

(2) Such tests shall be performed by or under the supervision of a qualified cable television professional engineer. A copy of any report submitted to the Federal Communications Commission shall be submitted to the city, describing test results, instrumentation, calibration, and test procedures, and the qualifications of the engineer responsible for the test.

(3) System monitor test points shall be established at or near the output of the last amplifier in the longest feeder line and at or near trunk line extremities. Such periodic tests shall be made at the test points as shall be required by the Federal Communications Commission.

(4) A copy of the annual performance tests report required by the Federal Communications Commission shall be submitted to the city within 60 days of its completion.

(h) Antennas. The grantee shall not, as a condition to providing cable communications service, require any subscriber or potential subscriber to remove any existing antenna structures for the reception of over-the-air television signals.

(i) Rights of individuals. Rights of individuals shall be as follows:

(1) Nondiscrimination required. The 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, sex or mental or physical handicap, provided that the subscriber shall pay all applicable fees for the service desired. The grantee shall comply at all times with all other applicable federal, state and local laws and regulations and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this article by reference.

(2) Privacy; monitoring. The grantee shall not permit the transmission of any signal (aural, visual or digital), including polling or monitoring the channel selection, from any subscriber's premises without first obtaining written permission of the subscriber. This is not intended to prohibit the use or transmission of signals useful only for signal transmission control or measurement of system performance. The grantee shall not permit the installation of any special terminal equipment in any subscriber's premises of two-way services utilizing aural, visual or digital signals without first obtaining written permission of the subscriber. The grantee shall not predicate regular subscriber service on the subscriber's grant of such permission. Without written authorization from the subscriber, neither the grantee nor any other person shall activate, use, operate, or tap any channel from a subscriber's location. A subscriber may revoke any authorization previously given by delivering to the grantee a written statement of the intent. The grantee shall not tabulate nor permit others to tabulate any subscriber use of the cable communications system which would reveal the opinions or commercial product preferences of individual subscribers, whether residential or business, or of any occupant or user of the subscriber's premises. However, if a subscriber has given written authorization for his participation in a shop-at-home or similar service, the grantee may tabulate responses essential to the functioning of that shopping service, but may not use any such tabulation of individual preferences for any other purposes. Tabulations of aggregate opinion or preference are permitted, provided the aggregations are sufficiently large to ensure individual privacy.

(3) Disclosure of subscriber information. The grantee shall at all times comply with the privacy provisions of the Cable Communications Policy Act of 1984.

(4) Information accessibility. Information shall be made accessible as follows:

a. Each individual shall have the right to information concerning this article and the rules and regulations formulated pursuant to it by the city or the grantee. The location and hours of operation for the delivery of such information shall be published in the newspaper of the greatest circulation at least once a year within the city and in such other medium as the city may determine.

b. At the time of service installation, the grantee shall provide all subscribers with the following information:

1. A complete schedule of rates, fees, charges, and terms and conditions of service currently applicable to the type of installation and service ordered.

2. A complete statement of the subscriber's right to privacy.

3. The address and telephone number of the grantee's office responsible for handling complaints.

c. Such information as may be prescribed in this subsection shall be made available to the public and individual subscribers in such form required for reasonable understanding and as may be agreed upon by the city and the grantee.

d. Each document required to be filed or submitted under this article or pursuant to it, except those which contain personally identifiable information about any subscriber of those required and designated confidential by the Federal Communications Commission, is a public document, available for public inspection and copying at the requester's expense, at the city during normal business hours. The charge for such copying shall approximate the cost of mechanical reproduction and shall not include a charge for labor.

e. Each individual citizen of the city shall have the right to appear before such boards, commissions, agencies or other entities created by the city pursuant to this article. Such appearances shall be in the manner and form as the city may determine.

(j) Continuity of service mandatory. Continuous service shall be maintained in accordance with the following:

(1) Right of subscribers. It shall be the right of all subscribers to receive continuous uninterrupted service insofar as they meet the financial and other obligations required by this article and the franchise agreement. If the grantee elects to overbuild, rebuild, modify or sell the system or the city gives notice of intent to terminate or fails to renew the franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service for a period of six months following actual termination or sale. If the grantee changes or if a new operator acquires the system, the grantee shall cooperate with the city and the new grantee in maintaining continuity of service to all subscribers. During such period the grantee shall be entitled to the revenues and shall be obligated to pay expenses for any period during which it operates the system.

(2) Failure to provide continuity. If the grantee fails to operate the system for a period of ten consecutive days or more without prior approval of the city or without just cause, the city may, at its option, take over operation of the system or designate a company to operate the system until service is restored under conditions acceptable to the city. If the city is required to fulfill this obligation for the grantee, the grantee shall reimburse the city for all reasonable costs or damages in excess of revenues received by the city that are the result of the grantee's failure to perform.

(k) Rights reserved to the city. The following rights are reserved to the city:

(1) Right to purchase system. The city shall have the right to purchase the system in accordance with the following:

a. If the grantee attempts to sell or transfer the franchise or forfeits its right to the franchise or the city terminates the franchise pursuant to this article or at the normal expiration of the franchise term if the grantee does not seek renewal of the franchise or renewal is denied and all of the grantee's appeal opportunities have been exhausted, the city has the right of first refusal to purchase the cable communications system, at a price to be determined in accordance with this subsection.

b. The date of valuation shall be no earlier than the day following the date of the proposed sale, expiration or termination.

c. The price of the cable communications system shall be the price set forth in the purchase and sale agreement between the grantee and proposed purchaser for a sale or transfer. If forfeiture, termination or expiration occurs, the value shall be the fair market value of the operating cable communications system minus the value of the franchise.

d. Upon receipt of notice of the city's intent to purchase the system at the city's interpretation of the price established in subsection (k)(1)c. of this section, the grantee shall have 30 days within which to accept that price as the purchase price of the system. If the purchase price is not acceptable, the parties shall have 120 days in which to negotiate an acceptable purchase price.

e. If the city and the grantee are unable to agree upon the value price of the cable communications systems within the time limits set forth in subsection (k)(1)d. of this section, either party may require, by written notice to the other, that the value of the cable communications system be submitted to arbitration. In such event the purchase price shall be the value of the cable communications system as determined by the arbitration panel as follows:

1. The city and the grantee shall each select an arbitrator within 15 days after such written notice. Such arbitrator shall be a disinterested person with reasonable knowledge and experience relative to the subject to be arbitrated. The two arbitrators thus selected shall immediately thereafter select a third arbitrator who shall likewise be a disinterested person having reasonable knowledge and experience relative to the subject to be arbitrated.

2. Within 30 days after appointment of all arbitrators and upon ten days' written notice to the parties, the panel of arbitrators shall commence a hearing on the issue of valuation and shall receive all relevant information from the parties.

3. The hearing shall be recorded and may be transcribed at the request of either party. All hearing proceedings, debate and deliberations shall be open to the public and at such times and places as contained in the notice. However, if two arbitrators agree, debate and deliberations may be held in closed session.

4. The value of the system as determined by the arbitration panel shall be the current worth of the operating cable communications system minus the value of the franchise based upon what a willing buyer will pay a willing seller.

5. Within 30 days after the close of the hearing, the panel of arbitrators shall prepare findings and a decision agreed upon by all of the panel which shall be filed with the city and served by mail upon the grantee. Unless the parties extend by mutual agreement the time which the panel of arbitrators has to make decision, the proceedings shall become null and void and shall be started anew.

6. The decision of the panel regarding the value of the system shall be final and binding upon the parties.

7. Either party may seek judicial relief in the following circumstances:

i. A party fails to select an arbitrator.

ii. The arbitrators fail to select a third arbitrator.

iii. One or more arbitrators is alleged to be unqualified.

iv. Designated time limits have been exceeded.

v. The panel has not proceeded expeditiously.

vi. The decision was procured by corruption, fraud or undue means.

vii. The arbitration panel exceeded its authority.

viii. Based upon the record, the panel abused its discretion.

8. If a court of competent jurisdiction determines that judicial relief is appropriate, the court, in addition to its other authority, in its discretion may order the arbitration procedure repeated and issue findings, orders and directions.

9. The expenses of the arbitrators shall be borne by the parties, and the expenses of the third arbitrator and those expenses incurred by the panel as a whole shall be borne equally by the parties.

f. Upon receipt of the decision of the arbitration panel, the city shall have 30 days in which to notify the grantee of its intent to exercise its option to purchase the system. The purchase price shall be the value of the system as determined by the arbitration panel.

g. Upon exercise of this option and the payment of such sum by the city and its service of official notice of such action upon the grantee, the grantee shall immediately transfer to the city possession and title to all facilities and property, real and personal, of the cable communications system, free from any and all liens and encumbrances not agreed to be assumed by the city in lieu of some portion of the purchase price set forth in this subsection, and the grantee shall execute such warranties, deeds or other instruments of conveyance to the city as shall be necessary for this purpose.

h. The city shall have the right to employ qualified consultants if necessary or desirable to assist in the administration of this article or the franchise agreement.

(2) Right of inspection of records. There shall be kept in the city's designated office a separate record of relevant franchise documents. The grantee shall provide such information in such form as may be required by the city and such other records the city may require from time to time.

(3) Amendment of franchise or article. Neither the city nor the grantee may amend the franchise or this article without the express written acceptance of the other party.

(l) Rights reserved to grantee. Should the grantee become dissatisfied with any material decision or ruling of the city pertaining to cable communications matters, the grantee may pursue such other remedies as are available.

(m) Miscellaneous provisions. Miscellaneous provisions are as follows:

(1) The grantee and city shall agree to cooperate with each other in accordance to the terms of this article and the franchise agreement. Should either party believe that the other is not acting timely or responsibly within the confines of applicable regulations and procedures in responding to a request for action, that party shall notify the agents designated for that purpose by the other. The agent will use his best efforts to facilitate the particular action requested.

(2) Public notice of any public meeting relating to this article shall be given at least ten days prior to the meeting, by posting at city hall.

(3) The captions to sections throughout this article are intended solely to facilitate reading and reference to the sections and provisions of this article. Such captions shall not affect the meaning or interpretation of this article.

(4) The grantee shall not be relieved of its obligation to comply with any of the sections of this article by reason of any failure of the city to enforce prompt compliance with any section.

(5) Theft of services, vandalism, tampering.

a. No person, whether or not a subscriber of the cable system, may intentionally or knowingly damage or cause to be damaged or vandalize any wire, cable, conduit, equipment or apparatus of the grantee.

b. Persons convicted of violating the provisions of Penal Code § 593d will be subject to criminal penalties of fines, imprisonment, or both. Violators of Penal Code § 593d will be subject to civil liabilities as a result of a franchised cable communications operator's actions to enjoin or retain such violations, as referenced in Penal Code § 593d(a), (c).

(n) Schedule of damages. The schedule of damages shall be as follows:

(1) The following liquidated damages shall apply and liability therefor shall accrue from the date of mailing of notice as provided in section 54-36(a), except as otherwise provided in subsection (n)(2) of this section. Such damages shall be payable from the surety bond as provided in section 54-36:

a. Failure of the cable communications system to perform in a public emergency or vital information situation at the rate of $1,000.00 per occurrence, enforceable only after activation of the emergency transmission capability described in subsection (b) of this section.

b. Failure to provide the local origination channels or increased local origination capacity required at the rate of $200.00 per day every day until provided.

c. Failure to render payment for the reimbursement of the city's franchise expenses, franchise fee or damages payments at the rate of $100.00 per day every day from the time due until paid.

d. Failure to obtain and maintain the surety bond at the rate of $100.00 per day every day from the time due until paid.

e. Failure to deliver evidence of the grantee's insurance coverage within 45 days at the rate of $100.00 per day every day from the date due until compliance.

f. Failure to complete construction as outlined in the franchise proposal at the rate of $100.00 per day from the date of scheduled completion until construction is complete.

(2) No liquidated damages shall be assessed unless or until the grantee has been notified in writing of the alleged violation from the city and provided a minimum 60-day opportunity to cure. Any staff finding of any violation shall be subject to a public hearing and appeal to the city council. No appeal to the city council shall constitute a waiver of the grantee's right to judicial review of any finding.

(Code 1959, § 11.1-7; Ord. No. 3541, § 2 (part))

State Law reference— Customer service standards, Government Code § 53054 et seq.