Port Hueneme Municipal Code Part B Cable Television Systems

For the purpose of Part B of this Chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words used in the singular number include the plural number. Words not defined herein shall be given their common and ordinary meaning. Approvals, consents, agreements, requirements, judgments or satisfactions shall, unless otherwise expressly provided in Part B of this Chapter, not be unreasonably withheld by the person holding the right to approve, consent or agree or make a requirement or judgment or who must be satisfied.

"Access channel" shall mean a channel dedicated in whole or in part for public, educational or governmental access programming (sometimes referred to as "PEG" or "Access Programming").

"Access corporation" shall mean the nonprofit corporation or other entity which may be designated by the City and operated for the purpose of coordinating the provisions of public and educational access programming and providing other services within a franchise area.

"Access programming" shall mean local programming that is (i) related to a government, public or education purpose, and (ii) produced utilizing funds derived from franchise fees, or other fees or services required to be provided by a cable operator in the City in exchange for its cable television franchise, or (ii) produced primarily for distribution on an access channel by or at the direction of the City, by any franchised cable operator at the direction of the City or pursuant to an obligation contained in its cable franchise, or by an educational institution, access corporation or other person designated by the City.

"Basic service" shall mean the service tier which includes the retransmission of local television broadcast signals and PEG access channels.

"Cable services" shall mean the: (i) the one-way transmission to subscribers of video programming or other programming service and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Cable system" or "system" shall mean any 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 a community, but such term does not include (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right-of-way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of the Communications Act of 1934, except to the extent such facility is used in the transmission of video programming directly to subscribers; or (iv) any facilities of an electric utility used solely for operating its electric utility system.

"Channel" shall mean a band of frequencies in the electromagnetic spectrum, or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which has the technical capability of carrying a video signal in the National Television Systems Committee (NTSC) or similar format, or in any format devised or approved in the future by the Federal Communications Commission (FCC), or an audio signal, a voice signal or data signal. All video channels shall include their vertical blanking intervals, all other video components, all aural components including subcarriers, and all closed captioning intended for general reception by the hearing impaired and others, to the extent required by applicable FCC and copyright rules.

"City" shall mean the City of Port Hueneme, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form, its City Council, boards, departments, or any other entity of, or acting on behalf of, the City, or any officer, official, employee, or agent thereof, its designee, or any successor thereto.

"Complaint" shall mean any verbal or written allegation or assertion of dissatisfaction with the cable services, other communications services or operations of the grantee, including but not limited to issues of signal quality and customer billing, made by a person to either the grantee or the City, which requires (i) dispatch of a technician or a service call or (ii) the referral of a complaint to a supervisor or to management.

"Completion of construction or reconstruction, "complete system construction," "satisfactorily complete" and "fully activate" apply to both initial cable system construction as well as any upgrade or rebuild of an existing cable system and shall mean that in each instance that strand has been put up and all necessary cable (including trunk and feeder cable) has been lashed—or, for underground construction, that all cable has been laid and trenches refilled, all road surfaces restored and, except as prevented by weather conditions or delayed because of seasons, landscaping restored; that all amplifier housings and modules have been installed (including modules for return path signals if required to be activated); that power supplies have been installed and all bonding and grounding has been completed; that construction or reconstruction of the headends or hubs has been completed and all necessary processing equipment has been installed; and that any and all other construction or reconstruction necessary for the cable system to deliver cable service to subscribers has been completed pursuant to the plans and specifications submitted to and approved by the City. The term "completion of construction or reconstruction" does not include marketing and installation of subscriber service.

"FCC" shall mean the Federal Communications Commission, its successor or such other administrative agency or agencies to which its duties are transferred.

"FCC rules" shall mean the rules and regulations adopted from time to time by the Federal Communications Commission pursuant to the Communications Act of 1934, as amended, or other federal law.

"FCC technical standards" shall mean the technical standards of the Federal Communications Commission (e.g., as set forth in Part 76, Subpart K (Technical Standards) of the FCC's Rules, 76 C.F.R. Section 76.601 et seq., as from time to time amended).

"Franchise area" shall mean the area consisting of the territorial limits of the City as the same may be changed from time to time.

"Franchisee" or "grantee" shall mean GTE Media Ventures Incorporated and its successors and assignees.

"Gross revenues" shall mean and include, to the extent permitted under federal law, as amended, all amounts which are received, directly or indirectly, by grantee from or in connection with the offering of cable services via the cable system located within the franchise area and utilizing public streets and rights-of-way, including but not limited to:

(a) Any revenue received from subscribers for cable service, including but not limited to revenue for basic service, tier service, additional outlets, audio service, commercial service, premium service, pay-per-view service and related per-event services, or for the distribution of any cable service over the system;

(b) Any revenue received from subscribers for installation, change in service and reconnection charges and similar fees;

(c) Any revenue received from subscribers for converters, remote controls or other equipment leased or rented to subscribers in connection with the delivery of cable services to such subscribers;

(d) Any revenue received from subscribers for service charges and late fees attributable to delinquent accounts; and

(e) Any revenue received from service-related activities, including but not limited to, revenue received from leased access programmers and other users, and revenue over ten thousand dollars ($10,000.00) derived from or equivalent to the fair market value of trades and barters, but not including revenue received from the sale of advertising. Revenues from the sale of advertising shall be included in this definition of gross revenue only if permitted by federal law and only when all other franchised cable operators in the City are also required to include such revenues when determining gross revenues or receipts for the purposes of calculating franchise fees payable to the City.

There shall be deducted from gross revenues, bad debts written off by grantee in the normal course of its business (provided, however, that bad debt recoveries shall be included in gross revenue) and refunds made to subscribers or other third parties, but only to the extent the revenue related to such bad debts written off or refunds was included in gross revenues. Except as the City may require if permitted under federal law, gross revenues shall not include any franchise fee or tax of general applicability imposed upon a Grantee or upon the Grantee's Subscribers by the City, State, federal or any other governmental entity and required to be collected by the Grantee and passed through to the taxing entity (including, but not limited to, user taxes, franchise fees, service taxes and communications taxes), provided such taxes or fees are identified as a separate line item on subscriber statement.

"Initial activation of cable service," or "initially providing cable service" shall mean with respect to a particular segment, group of segments or the entire cable system, as the case may be, that all proposed cable services and cable system capabilities as stated in a franchise agreement are available and/or in place, construction or reconstruction has been completed (see above definition of construction) and the completed segment or segments in question or the entire cable system, as the case may be, have been activated pursuant to the plans and specifications submitted to and approved by the City.

"Ordinance" or "Franchise Ordinance" shall mean the ordinance codified in Part B of this Chapter, together with the appendices thereto, and all amendments, extensions or renewals thereof.

"Other communications services" shall mean those services provided by the grantee which do not improve the transmission to subscribers of video programming or other cable services, which other communications services shall include, but not be limited to, telephony, voice, data transmission, interactive services and other broadband information services.

"Person" shall mean an individual, corporation or other entity, whether for profit or not for profit, but not the City.

"Property of grantee" shall mean all the tangible or intangible property owned, installed, rented, leased or used by a grantee in the conduct of cable system business in the City.

"Standard service drop" shall mean a cable connection, either aerial or underground, that is made available to all subscribers at a uniform installation fee or hourly service charge. A standard service drop shall require no more than a one hundred fifty (150) foot drop measured from the nearest point of a subscriber's residence or place of business to the nearest active tap on the cable system and shall involve only one outlet and standard materials. A standard drop shall exclude custom installation work, including specific subscriber requested work that requires non-standard inventory or cable routing requiring construction methods exceeding reasonable underground or aerial work.

"State-of-the-art" shall mean a cable system with technical performance, capacity, equipment, components, construction techniques and service equal to that which has been developed and demonstrated by existing cable television system operators and reputable equipment suppliers to be workable in the field, which is more modern and technologically advanced than generally accepted, which is reasonably available and feasible to install, which is in use by at least some other cable systems in comparable areas of equivalent population, which customers have paid for in at least one other comparable market for at least a year, which is justified by reasonably predictable subscriber demand and a willingness to pay a reasonable rate for such services, which is based on a reasonable projected rate of return on investment derived from the additional or upgraded network capacity, and which investment can be amortized over a period of time which is both reasonable and customary in the cable television industry.

"Street," "public street" or "public right-of-way" shall mean only a street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, public service easement or drive which is owned by a public entity in fee or to which a public entity has been granted an easement or which has been dedicated for street purposes or other compatible uses, and with respect to which, and to the extent that, the city has a right to grant the use of the surface of, and space above and below, in connection with a franchise for a cable system or other compatible uses. For purposes of this definition, "other compatible uses" shall include easements dedicated for, or utilized in connection with, telephone, communications, electric, gas, water, sewer, cable television and similar purposes.

"Subscriber" shall mean any customer, consumer or other person lawfully receiving or otherwise utilizing cable services or other communications services delivered over the transmission system of the grantee.

"Two-way communication" shall mean the transmission of telecommunications signals, including without limitation video, audio, voice and data signals, from subscriber locations or other points throughout the cable system back to the cable system's control center as well as transmission of signals from the control center to subscriber locations.

(Ord. 614 (part), 1997)

(a) Authorization to Operate a Cable System. The city hereby grants to Grantee the right and authority to engage in the non-exclusive business of operating a cable system and providing cable services in the city, and for that purpose, subject to the city's encroachment and construction permitting process, to erect, install, construct, repair, replace, rebuild, reconstruct, maintain and retain in, on, over, under, upon, across and along any public streets or ways such poles, wires, cable, fiber optics, conductors, ducts, conduit, vaults, manholes, amplifiers, bridgers, line extenders, power supplies, optical devices, optoelectronic equipment, taps, pedestals, appliances, attachments and other property as may be necessary or appurtenant to the cable system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other grantee franchised or permitted to do business in the city. The grantee shall be authorized to provide cable services within the territorial limits of the city, as from time to time existing.

(b) Authorization to Use Public Rights-of-Way. This franchise shall also confer upon the grantee, subject to the City's encroachment and construction permitting process, the right or privilege to enter upon the public rights-of-way and public service easements in City streets and other easements within the scope thereof, and through public rights-or-way and public service easements within the franchise area which have been dedicated to the City for street purposes or are otherwise dedicated to or used for other compatible uses, including but not limited to, easements or rights-of-way dedicated for electric, gas or other utility transmission. Whenever grantee undertakes construction, operation or maintenance using public or public service easements or rights-of-way, grantee shall provide affected residents with reasonable prior notice as provided in Section 7359.

(c) Franchise nonexclusive. This grant of authority to operate a cable system in the City and the right to use and occupy the public streets and ways for the purposes herein set forth shall not be exclusive. The city reserves the right, at its discretion, to grant other franchises or franchise renewals to other cable operators; provided that the city shall not authorize or permit another person to construct, operate or maintain a cable system, or otherwise to utilize a public street or public right-of-way for the delivery of cable services or other communications services or grant a renewal of an existing franchise within the service area of grantee (other than de minimus overlaps), on material terms and conditions which are in the aggregate more favorable or less burdensome than those applied to grantee, to the extent that such terms and conditions are within the legal control of the City, and taking into consideration the totality and reasonable proportionality of their respective obligations.

(d) Franchise Term. This grant of authority shall run for a term of ten (10) years, beginning upon the acceptance of this franchise (the effective date of the franchise).

(Ord. 614 (part), 1997)

This Franchise Ordinance is subject to and shall be governed by all requirements of the Communications Act of 1934, as amended, and other applicable federal, State, local and City laws, ordinances and regulations. Subject to the City's reservation of rights in Section 7354 below, in the event of conflict between the language of this Ordinance and any other local or City law, the terms and conditions of this Ordinance shall control.

(Ord. 614 (part), 1997)

(a) Insofar as it is not preempted by federal or State regulations, the City reserves the right to exercise its lawful police powers to protect the public health, safety or welfare, its powers of taxation or its powers of eminent domain, as well as such powers as may be conferred upon the City by federal or state law independent of this Franchise Ordinance. Grantee reserves its general rights against an impairment of contract or abrogation of contractual rights or obligations of the Grantee protected under federal or State law. Each proposed ordinance or regulation which shall be applicable to grantee, to be adopted by the City from and after the effective date of this Franchise Ordinance, shall be considered in one or more public hearings before the City Council, notice of which shall be provided to the grantee at least ninety (90) days preceding the first such public hearing. The City shall provide the grantee with the opportunity to meet and confer oncoming changes to or modifications of such proposed ordinance or regulation. Additional lawful ordinances or regulations adopted by the City shall be complied with by the grantee within the time period provided for in such ordinances or regulations. Grantee shall promptly and in writing file a request with the City asking for an extension of time in which to comply. The City shall promptly respond and shall grant such requests for additional time if the grantee provides the City with reasonably sufficient information to demonstrate that additional time is reasonably necessary to affect compliance and that grantee is actively and expeditiously attempting to obtain compliance with such regulations.

(b) Should there be any change to the Communications Act of 1934, as amended, or to the federal regulations promulgated thereunder, or to any other federal or State law so as to expand the City's discretionary powers pertaining to cable television, which changes should give the City the discretion, but not the unilateral power, to seek modifications of this Ordinance, which modifications fall outside the purview of the City's police power or powers of eminent domain and taxation, grantee will meet at the request of the City and negotiate in good faith concerning any modifications to this Franchise Ordinance which the City may request or be authorized to request or otherwise secure with respect to such change, with the decision to agree to such requested modifications to be left to grantee's reasonable discretion; provided, however, that the exercise of such rights and powers does not otherwise abridge grantee's general rights against an impairment of contract or abrogation of contractual rights or obligations of the grantee protected under federal or State law.

(Ord. 614 (part), 1997)

(a) Diligent Prosecution of Governmental Permits. Grantee shall use its good faith efforts, at its own expense, actively and diligently to conduct the prosecution of all applications to the FCC, other governmental regulatory bodies or private parties necessary to permit construction and operation of its cable system in accordance with this Franchise Ordinance. Grantee is not required to extend its system or construct plant within private rights-of-way for which grantee is unable to secure easements or other rights of access on reasonable terms and conditions after good faith, active and diligent efforts at application for such agreements or rights of access. At City's request, grantee shall provide city with documentation to demonstrate the efforts it has made to gain such rights of access to private rights-of-way. Whenever grantee has refused or failed to grant requests for extension of its system, plant or service to any potential customer, whether such extension required the use of public or private rights-of-way, grantee shall provide that customer with written notice that he or she may contact the city to report such refusal of service, and such notice shall contain the name, address and telephone number of the official designated by the City to receive such reports.

(b) Copies of FCC and other Governmental Filings. On request by the City, grantee shall provide to the City Manager copies of all publicly available pleadings, petitions, applications, reports and documents of any kind submitted by the grantee to the FCC or any other federal or state regulatory commissions, agencies or courts having jurisdiction in respect to any matters affecting the system.

(Ord. 614 (part), 1997)

(a) System Capacity. Grantee agrees to construct a cable system with a capacity of not less than 550 MHz. Each channel delivered to the Subscriber shall be in NTSC format and shall meet all FCC standards and rules.

(b) Minimum Services. Upon completion of construction of its system, grantee agrees to activate and program a minimum of seventy-seven (77) activated and programmed services; provided that grantee may utilize alternative technologies (including compression or servers) to deliver such services.

(c) Subsequent Upgrade. On or before December 31, 2001, grantee shall have a cable system in place, or physically rebuild, upgrade or otherwise modify its outside plant system to be capable of transmitting at least seventy-seven (77) video programming choices to subscribers plus an architecture which can support in excess of twenty (20) additional programming options. A rebuild, upgrade or modification in which amplifiers are spaced for, and passive devices rated for no less than, 750 MHz, but active electronics are installed for at least 550 MHz, shall be one means for satisfying this requirement. However, grantee may utilize alternative technologies (including compression or servers) to deliver such programming choices and options. The requirements of this section shall be suspended if the current cable franchise holder within the city does not physically rebuild, upgrade or otherwise modify its outside plant systems to be capable of transmitting at least seventy-seven (77) video programming choices to subscribers plus an architecture which can support in excess of twenty (20) additional programming options within the same time period. Nothing in this subsection shall be interpreted to relieve grantee of its obligations outlined in subsection (b) of this section.

(d) Triennial Report on State-of-the-Art. Not more than once every three (3) years following the effective date of this Franchise Ordinance, and with at least three (3) months prior notice, grantee will meet with the City to discuss the extent to which grantee's system and its technology and services are keeping up with the state-of-the-art. In addition, at the time that the City requests such a meeting, the City may also request, and Grantee shall provide no later than one month before such meeting, a brief summary of State-of-the-Art cable services or technologies it has recently incorporated into its cable system and its plans for implementing new state-of-the-art technologies and services into its cable system over the next three (3) years. If other cable operators within the city are making services or technologies available to subscribers which grantee is not, and if grantee does not intend to make such services or technologies available in the city during the next three (3) years, then grantee shall provide an explanation for this position. Grantee shall not be required to make any such state-of-the-art cable services or technologies available over its cable system or take any action with respect thereto, notwithstanding the information contained in this summary.

(e) Plans and Specifications Required. After the initial construction of grantee's cable system, if any subsequent major construction or reconstruction plan is undertaken, including system upgrades or rebuilds but not line extensions and related activity, grantee shall submit plans relating to such construction at least ninety (90) days before the start of construction, unless such ninety (90) day time period shall be reasonably shortened by City. The plan shall include construction timetables, equipment specifications and design performance criteria. The grantee shall make reasonable efforts to avoid negative aesthetic impacts in its plan. The grantee shall also submit to the City a map of the entire franchise area which shall clearly delineate the following:

(1) Areas within the franchise area where the cable system will be available to subscribers, including a time schedule of construction or reconstruction for each year that construction or reconstruction is proposed; and

(2) Areas within the franchise area where extension of the cable system cannot reasonably be done due to lack of present or planned development, with the areas and the reasons for not serving them clearly identified on the map. Such maps, using standard industry designations, shall at a minimum disclose (i) cable routes, (ii) locations and identifications of aerial and above and below ground appurtenances (such as risers, vaults, pedestals and power supplies) and (iii) physical locations and identifications of system components, including but not limited to cables and active and passive electronics. Grantee need not disclose the electrical values of its taps, splitters or directional couplers; however, City shall have the power to review such materials at grantee's office. The City shall have the power to review and approve such plans, to assure that they are consistent with applicable statutes, ordinances, codes, regulations, determinations and rulings governing construction within the public streets of the City, including without limitation the Public Works Code, zoning ordinances and traffic safety standards. Where such plans and specifications are not in compliance with such statutes, ordinances, codes, regulations, determinations and rulings, the grantee shall modify or revise such plans and specifications so as to achieve such compliance. The City shall also have the power to review such plans to avoid negative aesthetic impacts. Where timely requested by City, grantee shall reasonably relocate facilities within technical design constraints where such relocation will not result in material costs. Grantee must comply with the requirements of applicable state and local statutes, ordinances, codes and regulations governing the location of subsurface installations, including without limitation the provisions of Section 4216 et. seq. of the California Government Code, with respect to notification to or from a regional notification center (such as Underground Service Alert) concerning proposed excavation work. If, after construction begins, the City determines that the planned placement of specific equipment by grantee may cause a negative aesthetic impact, then the grantee will make reasonable efforts to minimize such an impact within technical design constraints only where such efforts will not result in material costs. If the grades or lines of any street are changed at any time during the term of this franchise, grantee shall, at its own cost and expense and upon reasonable written notification and request of the grantor, protect or promptly alter or relocate the system, or any part thereof, so as to conform with such new grades or lines. In the event that grantee refuses or neglects to so protect, alter, or relocate all or part of the system, grantor shall have the right to break through, remove, alter or relocate all or any part of the system without any liability to grantee or any other person, and grantee shall pay to the grantor the documented costs incurred in connection with such breaking through, removal, alteration or relocation.

(f) Two-Way Services. To the extent that grantee chooses to design its cable system for two-way capability, grantee shall use all reasonable efforts to design such two-way capability so as to permit the future implementation of upstream signal carriage without requiring modifications to its design. Grantee shall be required to offer two-way services for subscribers only following satisfaction of each of the following conditions: (1) the offering of such two-way services is permissible under applicable federal and state laws, ordinances, rules and regulations, (2) the grantee has secured all certificates, licenses, authorizations and approvals from federal and state agencies necessary for the offering of such services, provided, however, that grantee shall seek to obtain such approvals in a diligent and timely manner, (3) cable subscribers and/or potential cable subscribers have a demonstrable interest in subscribing to such two-way services, together with a demonstrable willingness to pay a reasonable rate for such services, in each case as evidenced by at least one statistically significant survey, provided, however, that upon the reasonable written request of the City it shall be the grantee's burden to demonstrate to the City's reasonable satisfaction that such subscriber interest is insufficient, and (4) the investment necessary to implement such two-way capability, together with a reasonable rate of return, can be reasonably expected to be recovered from the incremental revenue anticipated from the provision of such services over a period of time which is reasonable and customary in the cable television industry for such investments, and such investment shall not be recovered from subscribers to other or non-two-way services.

(g) Home Subscriber Terminal Equipment. Grantee shall, upon construction of the rebuild or upgrade described in Section 7356(c) of this agreement, offer some form of addressable or alternative technology which is commercially available, in use by other systems and easy to use. Such equipment and cable system shall be designed to eliminate subscriber confusion in their attempts to utilize cable-ready television sets, VCRs, cable system converters and remote control units. Addressable subscriber terminal equipment shall (1) permit the grantee to change the level of those services secured by such addressable technology promptly at the subscriber's request and (2) permit a subscriber to order single events (such as first-run movies, sporting events, etc.). The grantee may use alternative technology to secure premium services and/or the delivery of individual events from time to time over the term of the grantee's franchise.

(h) Parental Control. Grantee shall provide a parental control option, trap or other device to subscribers requesting the capability of removing objectionable video programming and its audio track from any cable service or any premium or pay-per-view channel that is scrambled or otherwise withheld from any subscriber, which device must, at the subscriber's request and without charge, effectively block both the video and audio portions of the channel. There shall be no continuing charge for use of such parental control option, trap or other device, nor any continuing charge if the option is a feature of an installed device (such as a decoder) for which the subscriber is already paying.

(i) Stereo Availability. Grantee shall offer and make available stereo audio as part of the video and audio signals delivered to subscribers, provided that those signals are available for reception as stereo audio signals at the grantee's headend or other signal processing point.

(j) Signal Ingress Protection. Grantee shall take all reasonable steps necessary to minimize interference visible to subscribers, which interference is caused by, among other things, signal ingress at the grantee's headend, trunk and distribution system or other facilities from equipment of licensees of the Federal Communications Commission operating in compliance with their authorizations. At the city's request, grantee shall provide City with information explaining what reasonable steps it has taken to minimize such interference. This section shall not require that the grantee eliminate such visible interference, but shall only require that the grantee undertake reasonable efforts to minimize such interference and shall not require that the grantee minimize or eliminate any such visible interference as may be attributable to causes other than the grantee's cable system and beyond grantee's control, including without limitation subscriber equipment. Grantee shall comply with the FCC's Technical Standards applicable to such signal ingress with respect to its Cable System.

(k) Underground Construction. Unless waived in writing for specific locations by the City Engineer, grantee shall place all cables and wires underground in areas of the City where such facilities of all other utilities are underground. Otherwise, grantee shall be free to use, at its sole option, either underground or aerial construction methods, grantee agrees to underground previously installed aerial cables and wire, in concert and on a cost-sharing basis with all other utilities, when all of such utilities convert from aerial to underground construction. All underground construction shall be subject to the city's encroachment permitting process. Grantee shall not be required to obtain encroachment permits for aerial construction, so long as grantee is attaching its cable and wire to already existing poles. Unless waived in writing for specific locations by the City Engineer, grantee shall place all pedestals containing passive devices underground (flush mount) in those areas of the City in which any existing cable television system has previously located such passive devices underground. All other pedestals containing passive devices, as well as all active electronic and optical components, including without limitation, amplifiers, bridgers, line extenders, power supplies, lasers, optical equipment and optoelectronic devices, may be located above-grade when cable plant is located underground, provided that the above-grade placement of such components:

(1) Complies with the requirements of all State and federal law;

(2) Are placed so as not to create a safety hazard for vehicle and/or pedestrian traffic; and

(3) Are placed in such locations so as not to be obtrusive or unsightly within the right-of-way (with grantee to provide landscaping as needed to improve any adverse aesthetic impacts).

(l) Removal of Replaced Plant. Grantee shall remove or "wreck out" all of its aerial cable plant, together with above-grade pedestals containing passive devices utilized in connection with underground plant, which have been replaced by the grantee in the course of any system rebuild, upgrade and/or modernization and are no longer required for proper operation of the cable system, provided that the grantee need not remove or wreck out such portion of its aerial cable system which has been overlashed with new cable and related facilities in connection with a rebuild or upgrade of its cable system. Such portions of the plant must be removed within thirty (30) days following receipt of written notice from the City, or, if more than thirty (30) days is reasonably required to effect such removal or wreck out, the grantee must promptly commence the work of removal or wreck out within such thirty (30) day period and diligently complete the work thereafter. However, the grantee will not be required to remove or wreck out, and will be permitted to abandon in place, any underground plant which has been rebuilt or replaced, provided that no portion of the abandoned plant is accessible to the public or is capable of causing a safety hazard, that the grantee shall indemnify and defend the City for any harm or damage that is caused by any abandoned plant (except as may be due to the negligent acts or omissions of the City, its employees, contractors or agents), and that the City may require the grantee immediately to remove underground plant which interferes with roadwork or other road construction.

(m) Compliance with Technical Testing Standards. Grantee shall construct, install, operate and maintain its cable system consistent with the technical standards of the FCC set forth in Part 76, Subpart K (Technical Standards) of the FCC's Rules, 47 C.F.R. Section 76.601 et seq., including without limitation performance tests, technical standards, signal leakage performance criteria and cable television system monitoring.

(n) Line Extension Policy. Grantee shall design and construct its cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, agency and business establishment within the franchise area. Services shall be provided to subscribers in accordance with the following line extension policies:

(1) Grantee shall be required to extend its cable system from any existing lines of the cable system over which services are being provided to any area immediately adjacent thereto within the City which includes residential property having a density of at least thirty (30) single-family residential dwelling units or potential subscriber units per mile, or prorated portion thereof, as measured in linear trench or aerial strand footage from the nearest technically feasible point on the grantee's existing cable system to the end of the proposed line extension. The extension of the distribution system (excluding drops) shall be completed at grantee's cost within ninety (90) days after the requirements of this section become operative and all necessary permits are obtained, provided that:

(i) Each such residential unit is, or is anticipated to be, located within a distance of no more than one hundred fifty (150) feet from the anticipated location of such extension, or each such residential unit which is in excess of one hundred fifty (150) feet from the anticipated location of such extension agrees to pay and does in fact pay the actual cost of that portion of the extension in excess of one hundred fifty (150) feet.

(ii) The grantee is able to secure all necessary easements or rights-of-way for purposes of locating its system in the area of such extension, including the location of all trunk, distribution and drop cables, on reasonable terms and conditions after good faith efforts to do so.

(iii) Each such residential unit is in existence, or is anticipated to be constructed within six (6) months from the date of such extension, provided that the grantee will place conduit in open trench where it exists and where construction will be completed in a period estimated to be longer than six (6) months, but less than twenty-four (24) months, where the area of such extension has been platted with at least thirty (30) single-family residential dwelling units per mile (or prorated portion thereof) as measured in linear trench footage from the nearest technically feasible point of the grantee's activated coaxial distribution system to the end of the proposed line extension.

(2) A multiple dwelling unit shall be considered in establishing the minimum density required for a mandatory line extension where the owner of such multiple dwelling unit has agreed to enter into a service contract with the grantee for the units of such complex or has otherwise requested that cable service be furnished directly to the owners or occupants of the units within such complex and, in either such instance, such complex satisfies each of the criteria for extension set forth in this section, including without limitation the grantee securing all necessary easements or rights-of-way to such complex, as well as within such complex, for purposes of constructing its system. Where such a cable service contract has been arranged consistent with the requirements of this section and cable service is to be provided directly to, and all charges for such cable service are the responsibility of, the occupants or owners of individual dwelling units within multi-dwelling unit buildings or the owner of the multi-dwelling unit buildings, such units will be counted separately for purposes of mandatory line extension; where cable service is to be provided indirectly to such occupants through bulk billing services or other discounted rates, units will be counted based on their equivalency to regular rate paying units (e.g., if the grantee receives one-half (½) the normal service charge for twenty (20) units in a multiple dwelling unit complex, this will be deemed to be the equivalent of ten (10) full paying units, and they will only be counted as ten (10) units for purposes of this determination). Extension of cable service to any multiple dwelling unit does not require grantee to wire the multiple dwelling unit at its cost and expense but rather only to extend such service up to such multiple dwelling unit complex in the public right-of-way in closest proximity to such complex.

(3) In areas not meeting the requirements for mandatory extension of cable service, grantee shall provide, upon the request of one or more potential subscribers desiring cable service, an estimate of the costs required to extend cable service to such subscribers, which estimate shall be reasonably determined by the grantee and shall include labor (wages, benefits and payroll taxes), material and a reasonable allowance for overhead. Grantee shall then extend cable service upon request of said potential subscribers upon payment of cost for such extension and consistent with grantee's labor needs. Grantee may require advance payment or assurance of payment satisfactory to grantee. The amount paid by subscribers for early extension shall be nonrefundable, and in the event the area subsequently reaches the density required for mandatory extension, such payment shall be treated as consideration for early extension.

(4) Nothing in this section shall be construed to prevent grantee from serving areas not covered under this section upon agreement with developers, property owners or residents.

(5) Whenever grantee has not extended its cable system or service to any potential residential subscriber requesting such an extension, whether such extension required the use of public or private rights-of-way, grantee shall provide that subscriber with written notice that he or she may contact the City to report such circumstances, and such notice shall contain the name, address and telephone number of the official designated by the City to receive such reports.

(6) Grantee shall extend service to commercial, industrial, and nonresidential customers as follows: Within ninety (90) days following a request for service from any potential commercial, industrial or nonresidential customer, grantee shall estimate the costs per customer of supplying services to all the potential contiguous customers within an area reasonably defined by grantee, including the potential customer requesting service. Grantee shall (i) provide the potential customer requesting service with a written estimate of the costs of providing that customer with service, along with a statement that such costs shall only apply if all (or a specified percentage) of the other potential commercial, industrial or nonresidential customers in the service area defined by grantee also request comparable service, and (ii) offer to provide the potential customer requesting service as well as all the other potential contiguous customers, with a list of the names and addresses of all the potential customers in the area defined by grantee. If the potential customer requesting service asks grantee in writing for such a list of names and addresses, grantee shall, at its cost, provide the potential customer requesting service and all the other potential customers in the defined service area with a copy of such written estimate of costs and the names and addresses of all such potential customers in the defined service area, thereby enabling the potential customer requesting service and all the other potential customers in the defined area jointly to agree to obtain service at the lowest possible group rates; provided, however, that grantee shall only be required to provide such a list of names and addresses if a commercial service is reasonably available to provide grantee with such a list. Grantee may require that such customer or customers enter contracts which will reasonably assure adequate revenues to provide grantee with recovery of the full costs and expenses of constructing and operating the line extension, including a reasonable return on investment over the first five (5) years of operation. Grantee shall provide the city with one copy of the written cost estimates and any list of names and addresses of potential customers provided to the potential customer requesting service.

(7) Grantee shall be exempt from and the city hereby waives Grantee compliance with the obligations of this subsection (n) of this section for a period of eighteen months following the commencement of construction by grantee of its cable system in the City.

(o) Service Drops. Grantee shall make service available to any subscriber within the City upon subscribers request and at the standard connection charge if the connection requires no more than a one hundred fifty (150) foot aerial or underground drop, measured from the new subscriber's residence or place of business to grantee's nearest activated coaxial distribution line, and includes one outlet and standard materials. If making service available requires more than a standard drop (such as a wall fish installation), grantee may, after so informing the subscriber, charge the subscriber (i) the standard connection charge and (ii) an amount equal to the reasonable actual labor (including wages, benefits and payroll taxes), material and other costs incurred by grantee for the additional facilities and work (including a reasonable allowance for overhead); in the alternative, grantee may charge an appropriate hourly service charge for the entire installation. Standard drops shall be accomplished, no less than ninety-five (95) percent the time measured on a quarterly basis under normal operating conditions, within five (5) business days of subscriber's requested installation date; a nonstandard drop shall be accomplished within fifteen (15) calendar days of a subscriber's request and payment. The ability of grantee to extend a drop within such time periods is predicated upon the assumptions that grantee is able to secure all necessary rights-of-way at the location of the drop upon reasonable terms and conditions, that the schedule or preferences of the person requesting the installation have not been responsible for delay, and that all applicable fees and charges have been timely paid and collected. Should grantee or the City receive a valid complaint from any resident of the City that cable service was not installed for that resident within the time periods stated above, grantee shall complete such installation within two (2) business days after notice to grantee of such complaint, subject to the provisions of this paragraph, and that resident shall be charged no installation fee for such installation. Grantee's inability to meet any specific installation in a timely manner shall not be deemed noncompliance if in the aggregate grantee has complied with these standards ninety-five (95) percent of the time measured on a quarterly basis under normal operating conditions. In those situations where extensions of cable systems into new areas or post-wiring of multiple dwelling units is required, installation shall be completed within ninety (90) days following satisfaction of each of the conditions set out above, unless otherwise agreed by grantee and the subscriber(s). Grantee shall notify the City in writing whenever installations, measured on a quarterly basis, exceed the periods specified above. Grantee shall be exempt from and the city hereby waives grantee compliance with the obligations of this subsection for a period of eighteen (18) months following commencement of construction by grantee of its cable system in the City.

(p) Cost of Drops in Excess of One Hundred Fifty (150) Feet. With respect to requests for connection requiring an aerial or underground drop line in excess of one hundred fifty (150) feet from the nearest activated distribution lines, grantee must extend and make available cable service to such subscribers at a connection fee not to exceed the greater of grantee's standard connection fee, if any, plus the actual installation costs incurred by the grantee for the distance exceeding one hundred fifty (150) feet, or grantee's hourly service charge for the entire installation. Actual installation costs include reasonable actual labor or hourly service charges (including wages, benefits and payroll taxes) and material costs incurred by grantee for the additional work beyond one hundred fifty (150) feet, together with a reasonable charge for overhead.

(q) Subscriber-Provided Trenching and Conduit. In the event that a subscriber independently provides for his or her own trenching and conduit (including any necessary boring, backfilling, replacing and/or replanting), which trenching and conduit must comply with the City's and grantee's construction standards, the installation charge shall be the same as for a standard installation, if such an installation is standardized, or at reasonable rate and charges; provided, however, that the subscriber agrees, in writing and in a form acceptable to the grantee and the City, to hold the grantee and the City harmless for any injury, loss or damage caused by or related to the work so undertaken by the subscriber, and that the grantee shall not be responsible for any service problems caused as a result of the work performed by the subscriber. In such case the installation by the grantee will consist of a standard service drop.

(r) Construction Timetable. Grantee acknowledges its intent to complete construction of its cable system, as initially designed and submitted to the City within eighteen (18) months after commencing construction within the City and agrees that such construction shall be substantially completed no later than thirty-six (36) months after commencing construction within the City. Grantee shall be excused from its obligation hereunder if it is delayed from completing construction because of street-cutting moratoriums or similar restrictions or a failure by the City to issue encroachment permits in a timely manner.

(s) No Discrimination. Grantee shall not unlawfully discriminate on the basis of race or economic status in selecting the residential areas in which it will build its cable network within the City.

(t) Location of Trenches. The location of grantee's trenches is subject to approval in the City's normal permitting process, but the City and grantee acknowledge the City's expectation that any trenching done in the paved area of the City's streets will be placed along the concrete gutter line at the side of the affected streets, only when construction of grantee's facilities is within the paved areas of the City's streets shall grantee be required to place its cable plant in conduit.

(Ord. 614 (part), 1997)

(a) Basic Service Requirements. Grantee shall provide all access channels on its system on its lowest basic service tier. Grantee shall also provide a variety of broadcast and cable television satellite programming channels, including programming substantially oriented toward news and current events, weather or weather advisory programming, children's programming, cultural programming, educational programming, national and state governmental and public affairs programming, and minority-oriented programming of interest to minority audiences in the franchise area.

(b) Programming Guide. Grantee shall, no later than six (6) months following completion of the rebuild or upgrade described in Section 7356(c) of this agreement, establish in its basic tier of channels a programming or menu-driven service which will allow viewers to obtain a continuously updated schedule of programming available on its cable system indicating the channel number, specific program description and the time of day the program can be seen.

(c) Billing Practices, Information and Procedures. Grantee shall inform all subscribers and prospective subscribers of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services and refund and credit policies, upon solicitation of service or concurrently with the consummation of any agreement for installation of service. Such information shall be provided to subscribers in easy-to-understand language.

(d) Required Services for Disabled Individuals. If GTE California Incorporated, as the local telephone utility, discontinues the provision of telecommunications devices for the deaf (TDD) or equivalent services, grantee shall provide TDD or equivalent services that will allow such subscribers to contact the grantee for any reason related to the cable system.

(Ord. 614 (part), 1997)

(a) Standard Drop at Each Public Facility. Grantee shall provide a standard service drop from the subscriber network to one point determined by the city in each city building, fire station, community center, library, and other public facilities, as they develop within the City, and to one point determined by each educational institution for each public primary, middle, secondary, higher education and technical school located within the grantee's service areas, including schools constructed subsequent to the effective date of this franchise ordinance, with cable service including the basic service tier containing over-the-air local broadcast stations and all public, educational and governmental access channels required to be carried on basic, together with the immediately subsequent tier of programming (if any) containing basic satellite services (such as CNN, Discovery, ESPN and USA), but excluding any subsequent or higher tier of programming, including ala carte services, premium and related services (such as DMX, Disney, HBO and Showtime) and any pay-per-view or per-event programming (such as Action, Request or Viewer's Choice). Such cable service shall be provided without charge and at no monthly service charge for the first connection or drop, and with additional outlets to be provided to any public facilities at the request of the City Manager at the cost of labor and materials; provided, however, (i) that each such facility be located within one hundred fifty (150) feet of grantee's existing activated coaxial distribution system; (ii) that wiring provided for facilities beyond one hundred fifty (150) feet of grantee's activated distribution system be provided for a fee based upon the actual installation costs incurred by the grantee for the distance exceeding one hundred fifty (150) feet; (iii) that grantee is able (and makes all reasonable attempts) to secure all necessary rights-of-way upon reasonable terms and conditions; (iv) that the location of the outlet provided with basic service is reasonably positioned in relation to the entry point of the drop into the facility; (v) that Grantee not be required to relocate any existing outlet in any public facility now provided with free basic service; (vi) that grantee be required to provide such service to government employees, but not transient members of the public, in police stations providing overnight occupancy; (vii) that grantee be required to provide such service to municipal or public facilities, but not to private for profit or non-profit hospitals or other organizations; and (viii) that wiring provided by grantee for additional outlets, if not installed by the City or the recipient of such additional outlets, shall be provided by grantee on the basis of actual costs for labor and materials, together with a reasonable allowance for overhead not to exceed fifteen (15) percent, and grantee shall provide the recipient of such wiring with a written estimate of such costs in advance of installation. The grantee shall have a period of up to eighteen (18) months from and after the effective date of the franchise within which to provide basic cable service to any municipal or public facility.

(b) Emergency Messages. Grantee shall provide, within three (3) months of the provision of commercial cable service in the City, an emergency audio override capability to permit the City to interrupt the audio portion of all video channels carried over the cable system for purposes of providing an audio message on all such channels simultaneously in the event of disaster or public emergency. The procedures governing the use of such emergency alert capability shall include the following:

(1) The emergency alert system shall be accessed only in the event of a local emergency as defined in Section 8558(c) of the California Government Code and duly proclaimed in accordance with the provisions of Section 8630 of such Government Code. If possible under the circumstances, the City shall use reasonable efforts to contact the Grantee prior to accessing the emergency alert system.

(2) The emergency alert system shall only be accessed by the Mayor or the City Manager or those individuals specifically designated by the City Manager.

(3) The City acknowledges that the grantee's cable system services many communities utilizing an integrated technical configuration, not all of which will necessarily be affected by a local emergency affecting the City. If the City utilizes the emergency alert system, all of the grantee's subscribers served by the headend or signal collection point serving the City will be capable of receiving the alert, including subscribers in other communities. Therefore, the City shall exercise due care and diligence with respect to (i) those individuals authorized to access the emergency alert system and (ii) the circumstances in which the emergency alert system is actually used.

(c) Interconnection with other Local Cable Systems. Grantee shall promptly interconnect the access channels of its cable system with the access channels of all other local cable systems in order that access programming on such channels can be universally available to all cable subscribers within the City. Grantee shall agree upon the most mutually convenient and cost-effective interconnection point and method with such other operators. If grantee is unable to reach such an agreement within thirty (30) days after sending or receiving a written request to interconnect to or from another local cable operator, the City may assist in mediating such dispute. If no such agreement is reached within an additional thirty (30) days, grantee agrees that the City may designate the place of interconnection. Each cable operator shall pay its own costs to reach the agreed to or designated interconnection point and will share equally all costs of actual interconnection, including but not limited to labor, connectors, equipment, construction or facilities.

(d) Transmission of Access Programming. Grantee shall carry and transmit all of the access programming carried upon interconnected cable operators' access channels, so long as the signal for such programming is of high quality and is made reasonably available to grantee at no fee. Grantee shall negotiate in good faith to seek agreement with and between all interconnected local cable operators on the channel numbers to be used to carry this programming so that all cable subscribers within the City can locate such programming on the same channel regardless of their provider of service, subject to technical or capacity limitations.

(e) Sharing of Access Programming. To the extent grantee is required by this Franchise Ordinance to provide, maintain or operate any facilities or equipment used to produce access programming, grantee shall do so for the benefit of itself and all interconnected cable operators. Without the City's express written permission to do otherwise, grantee shall not use its brand name or send any promotional or other announcements with respect to grantee's service on any access channel or use such channels in any manner that would make distribution of the access programming on such channels unsuitable for any interconnected cable operator, except as permitted in subsection (f) of this section.

(f) Commercial or Promotional Use of Access Channels. Notwithstanding anything to the contrary in this section or elsewhere in this Ordinance, grantee shall have the right to use unused access channel capacity for commercial and promotional purposes. Grantee shall not use any unused access channel capacity for commercial or promotional uses in a manner that would prevent an authorized provider of access programming from distributing its access programming in a timely and reasonable manner on the appropriate access channel. Further, grantee may not distribute any commercial or promotional programming on an access channel without providing a means to signal or warn interconnected cable operators of the presence of such programming, in a timely manner, so that such operators may block such programming or replace it with their own programming. Grantee hereby agrees that it will use all reasonable efforts to block and not distribute any commercial or promotional programming transmitted by interconnected cable operators on any access channel, without the prior written consent of the cable operator distributing such programming. Nothing in this section shall prohibit grantee in any way from distributing access programming on the access channels of its cable system.

(g) Cooperation from other System Operators. Grantee shall provide a quality signal at no fee to interconnected cable operators for all of the access programming carried upon grantee's access channels. The City shall cause all other cable operators providing interconnection or carriage of access programming to agree to obligations similar to these contained in this section in any renewal or extension of an existing franchise agreement or in any agreement granting a new franchise.

(Ord. 614 (part), 1997)

(a) Permits and Fees. Grantee's construction and operation of its cable system shall conform with all applicable State, federal and City laws and regulations. Grantee shall obtain encroachment permits or other required permits for all underground construction to be performed within the public right-of-way, or within the public utility easements or public service easements located on private property. At the City's option, grantee shall pay the City's normal permit fees associated with the construction of its cable system, or in lieu of such fees, grantee shall reimburse the City all direct labor and supervisory costs, including customary and reasonable overheads, incurred by the City in connection with the construction including, plan checking, testing, inspections, water used for construction, supervision and overhead. The City shall provide, at the request of grantee, supporting documentation for such costs, such as time cards, vendor/contractor invoices and other accounting records.

(b) Construction Plan and Schedule. Either prior to or not less than within thirty (30) days from the effective date of this Ordinance, and from time to time thereafter, Grantee shall file with the City Manager or other designated employees of the City, a general construction plan for its cable system, including areas to be served, an estimated time schedule for such construction and a twenty-four (24) inch by thirty-six (36) inch general engineering map in a format acceptable to the City. Grantee shall have the right to modify the general construction plan at any time in its sole discretion upon notice to the City. The City shall promptly, and in no case longer than fifteen (15) business days following receipt of the general construction plan or any changes thereto, review and notify grantee in writing of any reasonable objection with regard to the general construction plan or the prompt of processing of permits. The process described in this section is not intended to replace or modify the City's normal encroachment permitting process.

(c) Access to Grantee's Trenches by other Utilities. During cable system construction or rebuilding, grantee shall permit the City and other public utilities, to install and maintain compatible facilities in trenches constructed or controlled by grantee, while they are open, provided that grantee is the permittee as authorized by the City Engineer and that grantee determines, in the exercise of its reasonable good faith discretion, that no undue interference with its use or occupancy of such trenches, or undue delay in its construction, will result or that such compatible facilities will not be used in any way to provide cable services or other telecommunications services.

(1) Grantee may require other users of such trenches, as a condition to the occupancy of those trenches, to enter into a written agreement with grantee to bear their pro rata share of the costs of constructing such trenches, including design, redesign, permits, approvals, and all additional costs of providing wider or deeper trenches or other modifications to accommodate such users, and to represent and warrant to grantee that the facilities being placed in such trenches will not be used to provide cable services or other telecommunications services.

(2) Written notice of any intended co-location in grantee's trenches shall be given to the grantee by the City, or any other potential co-located user of such trenches, not less than thirty (30) days after submission of grantee's general construction plan as provided in subsection 7359(c)(1) of this section. Such notice shall include such user's planned system design and requirements. If grantee fails to receive timely written notice or if grantee is not able to negotiate a written agreement with any potential user requesting co-location within thirty (30) days after grantee's receipt of such notice, grantee shall be permitted to proceed with construction without the participation of such potential user.

(3) Notwithstanding anything to the contrary in subsection (c) of this section, grantee shall negotiate in good faith with potential co-located users of grantee's trenches which desire to use such co-located facilities to provide cable services or other telecommunications services, only to allow co-location of such facilities in grantee's trenches to be dug in the paved area of the City's streets. Grantee's obligation pursuant to subsection (c)(3) of this section is subject to the limitations contained in subsections (c)(1) and (c)(2) and to such potential co-located user's agreement, in addition to those terms required in subsection (c)(1) of this section, to grantee's placement or construction of any such co-located facilities on behalf of such user and to the prompt reimbursement of grantee for all fully-allocated costs (including overhead allocations) associated with such facilities and construction.

(d) Notice of Construction/Repair to Residents. Grantee shall notify the City and residents or business owners on affected streets of any material construction, including rebuilds, upgrades, line extensions or substantial repair and maintenance activities, resulting in material interference with the use of local rights-of-way, or major repairs including any which require street or sidewalk trenching, but excluding routine repair and maintenance activities which do not cause material interference with the use of local rights-of-way, at least forty-eight (48) hours prior to commencement of such work. Notification may be provided on a phase-in basis to notify residents or business owners in areas immediately affected rather than to all residents or business owners generally. Grantee shall provide such notification, by either leaving one appropriate notice (e.g., a door hanger notice) at each affected residence or place of business or by sending one appropriate notice by first-class mail, whichever form of notification, in the reasonable judgment of Grantee, is more likely to reach all affected persons with adequate advance notice at least forty-eight (48) hours prior to work commencement. Such notice shall include a local or toll-free telephone number of grantee where such affected persons may call for further information.

(Ord. 614 (part), 1997)

Grantee shall provide to its subscribers in the City access to the public, educational and governmental access channels and access programming provided to subscribers to its cable system in the City of Oxnard. Grantee shall be deemed to have satisfied the obligation described in this section, if such channels are accessible by not less than ninety (90) percent of homes passed by grantee's cable system in the City.

(Ord. 614 (part), 1997)

Grantee shall provide financial support for the production of access programming as follows:

(a) One-Time Grant. Grantee shall provide a one-time grant to the city in the amount of seventeen thousand dollars ($17,000.00) to be used exclusively by the City, as it may determine after consultation with the grantee, to support the production of access programming and/or to reimburse the City for the actual and reasonable costs incurred in connection with the awarding of this franchise, including, but not limited to, all costs for legal services, outside consultants, extra staff time, administrative overhead and publication costs. The payment shall be delivered to the City within sixty (60) days after the effective date of the franchise. The City shall provide an accounting to grantee for the use of such funds.

(b) Educational Programming Grant. Grantee shall provide an ongoing annual grant to the City to be used exclusively to support the production of educational access programming. This grant shall be in lieu of or may be replaced by any payments that may be required of local cable operators pursuant to any federal, State or local law, to support educational programming or other education-related telecommunications activities. The grant provided by grantee hereunder shall be the sum of one dollar and sixty cents ($1.60) times the average number of subscribers in the City to grantee's cable system's basic service tier for the immediately preceding year up to a maximum amount of eight thousand dollars ($8,000.00) for any one year. The payment, along with a brief summary of the subscriber information upon which it is based, shall be delivered to the City within sixty (60) days after each year of this agreement. For the purposes of determining the average number of subscribers in this section, the number of subscribers in multiple dwelling units shall be determined in the same manner described in Section 7356(n) for determining the number of homes for tine extension purposes. The City must use such funds to offset the costs of its incumbent cable operator, or its successors, transferees or assigns, incurred under its current franchise obligation to provide an annual grant to the Port Hueneme School District of eight thousand dollars ($8,000.00). If the City's incumbent cable operator, or its successors, transferees or assigns, goes out of business or otherwise does not fulfill its franchise obligation to provide its annual grant to the Port Hueneme School District, the City shall forward the funds granted by grantee hereunder directly to the school district. In addition, during the period of this franchise or the period that the Hueneme School District is a member of the consortium of school districts in the Oxnard area (the "Joint Powers Authority"), whichever is shorter, the Hueneme School District schools located in the City shall be entitled to the benefits described in Section 3 of Appendix B of the Franchise Agreement between grantee and the City of Oxnard.

(c) Grants not Part of Franchise Fees. The grants provided for hereunder shall not be considered as credits against grantee's franchise fee. The City shall provide to grantee a complete accounting annually for the use of funds granted pursuant to this section. Because the grants provided for hereunder by grantee will be used to meet capital and operating funding costs of access programming services, facilities and production, grantee may, to the extent appropriate under local or federal rate regulations, recover all of such capital contributions as incremental "externals." Capital costs required to be expended at any time during the first two (2) years may be amortized and recovered over no less than the first eight (8) quarters of this franchise, following the construction of grantee's cable system. Ongoing operational expenses and capital costs expended after the first two (2) years may be recovered as they are incurred. City agrees that it such externals, when accurately calculated, amount to no more than fifty-one cents ($0.51) per subscriber per month, the pass through of such externals may begin thirty (30) days after notice and submission of FCC Form 1210 (or equivalent form) to the City for its review, and the City shall not toll, delay or reject such pass through of such externals.

(Ord. 614 (part), 1997)

(a) Five (5) Percent Franchise Fee. During the term of the franchise, grantee shall pay the City an annual franchise fee to compensate the City for the grantee's use of the public rights of way in which its cable system is located. Such franchise fee shall be an amount equal to five (5) percent of grantee's gross revenues for the immediately preceding year. Notwithstanding anything to the contrary in this Ordinance, the franchise fee set forth in this section shall not be increased, during the initial term of this franchise, above five (5) percent, notwithstanding any change in federal or State law permitting a municipality to assess a franchise fee in excess of five (5) percent.

(b) Revenues for Other Communications Services. For the purposes of this Ordinance, gross revenues shall not include any revenue received by the grantee from the delivery of other communications services over its cable system, including without limitation, telephony, data transmission, interactive services and other broadband information services. If at any time during the term of the franchise, the City should gain the right to assess franchise fees under federal or State law with respect to other telecommunications services such as telephony, data transmission, interactive services and other broadband information services, grantee shall pay the City a franchise fee on the gross revenues associated with such other telecommunications services based on a percentage that does not exceed the percentage paid to the City as franchise fees for such services by all other providers of such services in the City.

(c) Reports. The grantee shall file a complete, accurate and certified statement of all collected gross revenues within the City during the period for which such payment covers, and such payment shall be made to the City Treasurer not later than sixty (60) days after the end of each year.

(d) Right to Audit. The City shall have the right to inspect and examine all of the grantee's books of account, income records and other records and documents relevant to an accurate determination of the total amount of gross revenues derived by the grantee from the provision of cable services within the City, including such income and subscriber records as may be necessary to determine the accuracy of the grantee's pro rata allocation of revenue to the franchise. The City shall have the right to audit and to recompute any amounts determined to be payable under this Franchise Ordinance; provided, however, that such audit shall commence within thirty-six (36) months following the close of each of the grantee's fiscal years (unless subsequent information indicates fraud or improper withholding of information, in which case the thirty-six (36) month limitation shall not apply), and that the City shall not conduct such an audit more frequently than twice in one year, with each audit relating to a different time period. The grantee shall make such records available to the City within fourteen (14) days of request. Such records shall be available for inspection by the City upon reasonable notice during normal business hours and shall be retained by the grantee for a period of three (3) years. The City will bear the cost of any such audit; provided, however, that if such audit indicates a franchise fee underpayment of ten (10) percent or more of the amount due, grantee shall assume all reasonable costs of such audit and pay such costs at such time as any proceedings contesting the City's audit are completed. Any additional amount due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the grantee by the city, and said notice shall include a copy of the audit report. The grantee has the right to contest, by appropriate proceedings, the results of any audit conducted by the City, in which case the grantee shall not be required to pay the City such additional franchise fee as is determined to be due and owing until such proceedings have become final. The grantee shall not be entitled to claim a refund for franchise fee overpayment with respect to payments made more than thirty-six (36) months prior to the date on which such a claim is made, unless such claim for refund is based upon a change in federal laws or regulations.

(e) No Accord and Satisfaction. No acceptance by the City of any payment from grantee shall be construed as a release or as an accord and satisfaction of any claim City may have for further or additional sums payable as a franchise fee under this Ordinance or for the performance of any other obligation of the grantee. All amounts paid shall be subject to audit and recomputation by City. However, if the City requires grantee to conduct an audit, or the City conducts its own audit, and the results of such an audit have become final under the provisions of this Ordinance, there shall be an accord and satisfaction with respect to any sums paid by grantee arising with respect to the period subject to audit. Moreover, there shall be an accord and satisfaction with respect to any payment not subject to audit within thirty-six (36) months following the close of the fiscal year to which such payment relates, unless there is subsequent evidence that grantee has engaged in fraud or has improperly withheld relevant records which relate to such payments.

(Ord. 614 (part), 1997)

Grantee shall, during the entire term of such franchise, maintain in full force and effect at its own expense, an insurance policy or policies which shall insure grantee and provide primary coverage for the City, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees, against loss or liability for personal injury, death, property damage (both automobile and nonautomobile cause), or other damages. Such policy or policies shall include insurance against damages from copyright infringement (common law or statutory) and a failure of grantee to secure trademark rights, occasioned by any activity or operation of grantee under a cable television franchise, and regardless of any claimed or actual activities of City, its officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees. The City Attorney may waive the requirement for insurance from one or more perils mentioned in the last preceding sentence upon a finding that such insurance cannot be procured or cannot be procured at a reasonable cost, and in connection therewith may reduce the otherwise required limits on coverage hereafter set forth. However, if such insurance cannot be procured, the grantee's insurance broker or agent must document its unavailability by showing a good faith effort to obtain such insurance. Such policy shall contain a cross-liability endorsement. Such policy or policies shall be issued by a company authorized to transact insurance business in California and shall have a rating of A or better as set forth in the most current edition of Bests Insurance Guide, with minimum combined single limits of liability coverage in the amount of three million dollars ($3,000,000.00) per occurrence, for bodily injury and property damage, including coverage for comprehensive general liability, contractual liability, owned automobiles, non-owned automobiles, and for-hire automobiles. Such limits of coverage may be subject to reasonable deductibles. The policy or policies shall name the city, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees as additional insureds and contain a provision that a written notice of any cancellation, modification that relates to a diminution in the scope of coverage under this section or reduction in the limits of coverage of such policy shall be delivered to the City Clerk thirty (30) days in advance of the effective date thereof. The Grantee shall provide the City Attorney with certificates of insurance and any and all amendments thereto, including but not limited to all endorsements, exclusions and provisos. The City Attorney shall review such certificates of insurance and shall approve the same if the terms and conditions of the insurance represented thereby are consistent with the requirements of this section. If any such certificates of insurance and amendments, endorsements, exclusions and provisos thereto fail to evidence the coverage required under this section, the grantee shall take such action as shall be necessary to secure such coverage within ten (10) business days following receipt of notice thereof from the City. Upon the effective date of the franchise, and annually thereafter, grantee shall provide the City with evidence that it has in effect employer liability insurance or worker's compensation coverage and/or has undertaken self-insurance in accordance with Section 3700 et seq. of the California Labor Code and is maintaining a policy or policies of employers' liability insurance with minimum limits as prescribed by State law.

(Ord. 614 (part), 1997)

Grantee shall furnish to and maintain with the City, in a form acceptable to the City Attorney, a nonrevocable, performance and payment bond or bonds in the following amounts:

Such amounts are to ensure the faithful performance of all provisions of the Franchise Ordinance, including without limitation the payment of grantee's franchise fees to the City. The City shall have the right to obtain payment under such bond or bonds after providing grantee with prior notice and opportunity to cure the failure to perform any such obligation as provided in the Franchise Ordinance, or, if no such notice and opportunity to cure is provided for in the Ordinance, after at least seven (7) days' notice and opportunity to cure following grantee's receipt of notice from the City by U.S. Certified Mail. No defense against the City shall be asserted by a company or companies issuing performance and payment bonds with regards to the payment of any franchise fee due under this Ordinance.

(Ord. 614 (part), 1997)

Grantee shall comply with the following consumer service and refund standards:

(a) Telephone Access. Grantee shall provide a local or a toll-free telephone number and adequately trained customer service representatives to receive and act upon requests for repairs and consumer complaints. Such telephone numbers shall be so operated that calls can be received and responded to on a twenty-four (24) hour basis, seven (7) days a week, including weekends and holidays. When a regular customer service representative is not on duty, an adequately trained answering service or automated response unit shall take the name, address and telephone number of each caller to report back to the grantee. For purposes of this section "adequately trained" includes the capability to provide for the dispatch of technical personnel and information as to business hours and appropriate telephone numbers for business hour contacts.

(b) Referrals to Supervisors. If a subscriber states that he or she is unsatisfied with the response of a customer service representative, or asks to speak with a customer service supervisor or any qualified supervisor, the matter shall be immediately referred to a qualified supervisor for resolution. If no customer service supervisor or other qualified supervisor is available, the customer service representative must record the pertinent information and a qualified supervisor shall return the telephone call within eight (8) business hours. If that call does not achieve contact with the subscriber, the supervisor must utilize reasonable efforts to do so, including, without limitation, calling periodically, leaving a telephone message or writing the subscriber to give a direct dial or extension number to reach the supervisor directly. If a subscriber remains dissatisfied with the resolution of his or her complaint following review by a qualified supervisor, the subscriber shall be referred to the manager or director of customer service for final resolution.

(c) Name of Customer Service Representatives. A customer service representative, manager or director must give his or her true name, or first name, or grantee-sanctioned pseudonym or identification number when so requested by a subscriber.

(d) Telephone System Standards. Grantee shall obtain and maintain sufficient telephone lines and staffing so as not to delay unreasonably the answering of all telephone calls. Trained customer service representatives shall be available to respond to customer telephone inquiries during normal business hours, defined as not less than nine (9) hours per business day Monday through Friday and four (4) hours on Saturday. Grantee shall connect a telephone caller within thirty (30) seconds after the caller dials and ringing begins. This standard shall be deemed satisfied when a connection is made either to an automated attendant, an automatic response unit, or a customer service representative capable of responding to the subscriber's inquiry. Under normal operating conditions, the caller will receive a busy signal less than five (5) percent of the time. If the call needs to be transferred, if the caller needs to be placed on hold, or if the caller wishes to be transferred, such transfer or hold time shall not exceed sixty (60) seconds. Each of the standards set forth in this paragraph shall be met no less than ninety (90) percent of the time, measured on a quarterly basis, under normal operating conditions; in which case failure to meet the standard with respect to any particular call shall not be deemed noncompliance. During the hours when a customer service representative of grantee is not on duty to receive calls, a qualified employee or contractor shall either be available to an adequately trained answering service by a paging system or shall call the dispatcher or answering service not less frequently than once every four (4) hours to receive and act upon subscriber calls to correct service interruptions or technical deficiencies in cable service as provided in this subsection.

(e) Traffic Study. If the City Manager, or a designee, reviews the telephone usage complaints against a grantee and finds them to reflect a significant failure to comply with the standards of subsection (d) of this section, the City Manager, or a designee, shall direct the grantee to provide to the City Manager, at the grantee's cost, an industry acceptable traffic study which shall identify the grantee's compliance with the requirements of subsection (d) of this section and propose remedies to correct any deficiencies in compliance. This study shall be delivered to the City within one hundred twenty (120) days following receipt of written notice from the City specifying the need for such study. The study shall be conducted over a period of ninety (90) days so as to determine whether the standards set forth in Section 7365(d) have been satisfied no less than ninety (90) percent of the time, measured on a quarterly basis, under normal operating conditions. In the event that the City Manager reasonably determines that the grantee has failed to meet the standards set out in subsection (d) of this section based upon such study, the Grantee shall have ninety (90) days from written notification of such noncompliance by the City Manager to cure the same.

(f) Training of Customer Service Representatives. Customer service representatives shall be kept fully informed of subscriber options for service, and shall be required to advise subscribers of those options, where reasonably appropriate, when subscribers telephone or otherwise contact grantee's customer service representatives, including, but not limited to, the following:

(1) Advising subscribers, whenever applicable, that they may either schedule converter boxes for at-home pickup or exchange by grantee's personnel or may themselves bring converter boxes to the grantee's business office;

(2) Advising subscribers, whenever applicable, that programming promotions are currently being, or may be within a week, offered at discounted rates or prices;

(3) Advising subscribers, whenever applicable, that known or planned service outages may affect subscribers' cable reception, provided, however, that in lieu of this grantee may use a character generator to disclose such information on an appropriate and convenient channel.

(g) Written Inquiries. Grantee shall respond to written subscriber inquiries and complaints received by the grantee at any of its office addresses.

(h) Notice of Customer Requirements. Customers requesting installation and/or service shall be informed of all service delivery performance requirements at the time of requesting service, including the need to be at home (if applicable) or provide cash payment (if applicable for installations, connections or reconnections).

(i) Prompt Response Required. Grantee shall respond to requests for service and complaints promptly. Grantee may respond to a service request or complaint by telephone where the service request or complaint does not reasonably require dispatching an employee or contractor to address or resolve such request or complaint. When a telephonic response is insufficient and a service call is necessary, the grantee shall be deemed to have responded to a request for service when a qualified employee or contractor arrives at the subscriber's location or other location where necessary to address the complaint and begins work, provided that the employee or contractor continues such work without cessation to completion where practicable. If a work interruption is reasonably necessary (for example, to obtain unforeseeable but necessary permits, tools, materials, equipment or additional personnel), the employee or contractor shall complete such work at the earliest reasonable date that is convenient to the customer. If a subscriber is not at home when the employee or contractor arrives, the employee or contractor shall attempt to repair any problems which can be reasonably repaired from outside the customer's premises (for example, a repair to a cable drop between the front of customer's residence and the street). If such a repair is not possible, the employee or contractor shall leave a door hanger at the customer's location which shall notify the customer that a repair was attempted and ask the customer to call the grantee to reschedule another mutually convenient service call.

(j) Adequate Personnel. Grantee shall maintain a repair force of service and maintenance personnel capable of responding to subscriber requests for service and complaints under normal operating conditions within the following time frames (unless a subscriber requests a different date that is more convenient to the subscriber and that is beyond the following performance standards):

(1) System service interruption. Within four (4) hours, including weekends and holidays, of receiving subscriber calls which by number identify a service interruption of sound or picture of all services affecting three (3) or more subscribers in a related geographic area.

(2) Isolated service interruption. Within one business day, excluding weekends and holidays, of receiving requests for service identifying an individual service interruption.

(3) Inferior reception quality; defective converter. Within two (2) business days, excluding weekends and holidays, of receiving a request for service identifying a problem concerning picture or sound quality, or requesting exchange of defective converter.

(k) Written Records. Grantee shall maintain for one year a written record (or an equivalent stored on magnetic, electronic or optical media capable of reproduction in printed form by the grantee) of all requests for cable installations, and cable service which require a service call (a truck roll) to a subscriber's residence, place of business or other location, and their disposition, whether such requests are made by telephone, in writing, in person, or otherwise, including the name of the person requesting installation or service, the date and time of the request, the nature of the request, the date and time of the grantee's response, and a brief description of the response or the service problem reported and resolved. Such written, electronic or optical record shall be made available to the City Manager upon request.

(l) Identification. All personnel, agents and representatives of grantee, including subcontractors, that have occasion to deal in their official capacity directly with subscribers or members of the public at their residences or places of business shall wear photo identification badges, when acting on behalf of the grantee, except in cases of emergency provided it is impracticable to do so.

(m) Subcontractors. Grantee shall accept full responsibility and liability for the actions of its contractors and subcontractors and shall not advise any subscriber with a contractor- or subcontractor- related problem that it is up to the subscriber to deal with the contractor or subcontractor directly.

(n) Approvals and Authorizations. Grantee must obtain approvals or authorizations for the use or occupancy of private property or private rights-of-way from their owners prior to such use or occupancy, unless otherwise provided under existing easements, licenses, rights of occupancy or other authorizations or as otherwise may be provided by applicable law.

(o) Subscriber Notice. Grantee shall notify subscribers of the expected time of visits for installations, service or other activities, and shall offer to schedule such visits either at a specific time or, at maximum, within a four (4) hour time block during normal business hours. Grantee may also schedule such visits outside of normal business hours for the express convenience of the customer. Grantee shall offer subscribers a choice of either morning visits, afternoon visits or, if grantee makes service calls later into the evening, visits up to the close of service. In each case, the subscriber shall be advised of the time block during which the service representative is scheduled to arrive. If a subscriber requesting service on a given day cannot be scheduled within a specific time period and is advised that the grantee's service personnel may arrive at any point during the business day, the subscriber may request the grantee to make an appointment for service on the next business day in which such time periods are available. If, under circumstances which depart from normal operating conditions, a grantee is unable to keep a scheduled appointment, grantee shall attempt to make prompt contact with subscriber to inform the subscriber of the delay and to reschedule the service visit at a time meeting the subscriber's convenience.

(p) Disconnection or Termination of Service. Grantee shall only disconnect or terminate a subscriber's service for good and just cause. The grantee shall not disconnect service for nonpayment until the grantee has provided the subscriber with written notice, provided on or after the due date of the subscriber's billing and separately from that billing, at least ten (10) calendar days in advance of the disconnection. Such notice shall specify:

(1) Proposed date subject to disconnection;

(2) Total payment required to avoid disconnection, with an itemization of component charges if such itemization has not previously been supplied to the subscriber;

(3) Total amount in arrears if that amount differs from above;

(4) Telephone numbers and office hours to contact a customer service representative.

In no event shall involuntary disconnection or termination for nonpayment occur less than fourteen (14) calendar days alter the end of any billing period for which charges are delinquent. Where grantee has improperly discontinued service, it shall provide free reconnection within twenty four (24) hours of being made aware of improper disconnection.

(q) Refunds for Disconnection. In the event a refund is due to a subscriber at the time of service disconnection, such refund must be made to the subscriber within thirty (30) business days.

(r) Right to Cancel. Grantee shall afford subscribers with a right to cancel or rescind any contract or agreement for cable services by midnight of the third business day, excluding Sundays, after the day on which the subscriber enters such an agreement, except that such right of rescission shall end upon initiation of installation of service whether physically or electronically on the subscriber's premises.

(s) Termination of Promotional Offers. Grantee shall automatically terminate the subscriber's reception of any promotional no-cost or discounted premium channel offering at the end of the established or extended promotional period, and shall not continue to assess or collect a charge for such service offering, unless the subscriber affirmatively and specifically elects, either orally, in writing or by telephone, to continue that service for the applicable charge(s). This election may be made by the subscriber at any time prior to the imposition of the applicable charge, including at any time prior to first receiving the service for no charge. This provision does not apply to the addition of any service to an existing package, tier or service offering or to any restructuring or retiering of any package, tier or service offering, provided that the subscriber is receiving the package, tier or service offering at the time of the addition, restructuring or retiering.

(t) Written Customer Service Standards. Before or concurrently with providing initial cable service to each subscriber, and at least annually thereafter, a grantee shall provide each subscriber with a copy of its written customer service standards and shall advise each subscriber, in writing, either in its written customer service standards or a current rate card or otherwise, of:

(1) The availability of the signal control device or parental control option (lock box) required by Section 624(d)(2)(A) of the Communications Act of 1934, as amended;

(2) All cable service offerings and options, the fees, charges, deposits, and associated terms and conditions which apply to all cable services then being distributed over the system which the subscriber may elect to receive;

(3) Procedures for ordering changes in or termination of services, as well as grantee's obligation to provide subscribers with thirty (30) days prior written notice of any changes in such services, fees, charges, deposits, procedures, policies or associated terms and conditions, excluding temporary marketing and sales discounts on offers and adjustments in rates for pay-per-view and similar per-event programming;

(4) All refund and credit policies, including but not limited to subscribers right to a credit or pro rata refund of monthly subscription fees for any loss or interruption of cable service and to a refund of all fees, deposits or pro rata payments to which the subscriber is entitled;

(5) Grantee's practices and procedures for protecting subscriber privacy as required by federal, State and local law, including, but not limited to, Section 631 of the Communications Act of 1934, in the form of a separate, written statement to each subscriber which clearly and conspicuously informs the subscriber of his or her rights to privacy;

(6) Grantee's procedures for the receipt and resolution of subscriber complaints;

(7) The address, telephone number and business hours of the grantee's office to which complaints may be reported;

(8) The responsibility of the City Manager's Office for assistance in resolving cable complaints, together with the City's address and normal business hours and the title and telephone number of the person designated to receive such complaints;

(9) A general description of broadcast channel syndicated exclusivity, network nonduplication and sports blackout requirements which may affect subscribers' viewing of the grantee's cable services.

This notice and each other notice required under this agreement to be sent to all subscribers shall either be included in the subscriber's monthly billing statement, or provided separately without inclusion with any other materials, by U.S. Mail or such other timely method of delivery as shall be appropriate. Where cable service is provided to a multiple dwelling unit complex under a bulk-billed arrangement, the grantee shall make available to the owner, manager or agent of such complex copies of each such notice in sufficient numbers for distribution to the occupant of each unit within that complex by such owner, manager or agent. One copy of each such notice shall also be sent to the City Manager.

(u) Copies to City. Grantee shall supply the City with one copy of all current written materials, including promotional materials and a copy of all new and periodically updated materials, which it distributes to subscribers concurrently upon their distribution to subscribers.

(v) System Outages. Upon being notified of an unplanned system outage affecting at least ten (10) percent of its subscribers, grantee shall devise some reasonable method, such as an automated recording immediately to be placed on its incoming telephone lines, to advise subscribers of the nature and expected duration of the service interruption. If a recording is used, it shall also provide subscribers calling on other matters with the option of either obtaining information on such other matters through an automated response unit or choosing to speak with a live representative of grantee including, if outside normal business hours, grantee's answering service. Grantee shall, where practicable, also notify the City Manager's Office by telephone or facsimile as soon as such an outage is identified and promptly after it is repaired.

(w) Blackouts. With respect to syndicated exclusivity and network nonduplication blackouts, grantee shall either substitute another signal to avoid transmitting a blank screen on the blackout channel frequency or, by use of some reasonable device, such as a continuous character-generated notice, otherwise avoid transmitting a blank screen on the blocked-out channel frequency or otherwise conveying the impression that the channel is not working properly. With respect to blackouts of selected sports events, grantee shall prepare a character-generated notice to be superimposed on the affected channel, advising subscribers of the TV blackout of the particular sports event.

(x) Quarterly Reports to City. Grantee shall report to the City on a quarterly basis regarding its compliance with its customer service standards. A report form shall be developed in consultation between the City Manager and grantee that will provide the detail necessary to monitor grantee's compliance with these standards, and such report shall include, but not be limited to, a summary of subscriber complaints by type of complaint. Grantee shall comply with all procedures established by the city and the grantee regarding the handling of all complaints received directly by the City from City residents regarding cable television service.

(y) Annual Reports to City. Once a year, grantee shall provide the City with: (1) call service summaries, summaries of subscriber complaints received by the City and provided to the grantee in writing, summaries of subscriber complaints received by the grantee, and telephone access statistics, all for the preceding year; and (2) a review of the grantee's overall compliance with the terms and conditions of the franchise agreement.

(z) Uniform Billing. Grantee shall bill all subscribers to its cable services in a uniform, nondiscriminatory manner, regardless of the subscriber's level of service. In no case shall any subscriber be required (i) to pay for services more than thirty (30) days in advance of the start of the period of service for which the subscriber is being billed or (ii) to pay for more than thirty (30) days of such services at any one time, provided, however, that the subscriber may be required to pay for more than thirty (30) days of service if the account is or has been past due. Grantee shall clearly disclose on the billing statement both the date on which the payment is due and the date on which a delinquent fee may begin to accrue if payment has not been received. There shall be a minimum of fifteen (15) days from the date of the postmark on billing statements to the payment due date, and there shall be a minimum of forty five (45) days from the date of the postmark on the first billing statement to the imposition of a late fee.

(aa) Content of Bills. Grantee shall provide all subscribers with an itemized monthly bill that contains, at a minimum, the following information:

(1) A list of each service or package received for that billing period showing individual charges for the lowest basic tier, satellite tier, each pay-per-view usage, each premium service subscribed to on an a la carte (but not on a package) basis, and each remote control or other devices;

(2) The period of time over which such services are billed;

(3) The total charges due for the monthly period, separate from any previous balance due;

(4) A specific date by which payment is required: and

(5) Specific information on complaint procedures that are available to subscribers, or a local or toll-free telephone number that can be called to obtain copies of grantee's billing and complaint procedures.

(bb) Billing inquiries. Grantee shall clearly and conspicuously provide on all subscriber bills (1) a listing of grantee's business office address and telephone number and (2) a statement that customers shall direct any complaints to grantee's office, not to grantee's billing address (if the business office and billing addresses are different).

(Ord. 614 (part), 1997)

Grantee acknowledges that to the extent permitted by federal and state law, the City may regulate the grantee's rates for Cable Service. The grantee shall maintain a copy of its current rate schedule on file with the City.

(Ord. 614 (part), 1997)

(a) Indemnification by Grantee. Grantee shall protect, indemnify and hold harmless the City, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to, and to the extent proximately caused by, the acts or omissions of the grantee, its employees, contractors, volunteers or agents. This indemnification shall include, without affecting the scope of the foregoing, and without being limited to the following: claims, demands, actions, suits, liabilities and judgments advising in tort, contracts, infringements of constitutional rights, unfair competition, any infringement or violation, or alleged infringement or violation of any copyright, whether common law or statutory, violations of statutes, ordinances or regulations or failure of grantee to secure consents from owners, authorizing distributors or licensees of programs to be delivered by grantee's cable system. The City shall make reasonable efforts to provide grantee with written notice within ten (10), but within not later than twenty (20), days after being served with any lawsuit for which indemnification may be sought under this section.

Grantee shall, upon demand of the City or any other such indemnitee, appear in and defend the City, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees against and from any and all claims, demands, actions, suits, or other legal proceedings, whether judicial, quasi-judicial, administrative or otherwise, of every kind and nature and regardless of the merit of the same, advising out of or related to and to the extent proximately caused by the acts of omissions of the grantee, its employees, contractors, volunteers or agents, regardless of any claimed or actual negligence or conduct of the City or any such indemnitee. Where grantee has assumed the defense in any such proceeding, it may control the proceedings at issue, and the City may participate in such proceedings with counsel of its own choosing, provided that the City will be responsible for all costs and expenses of such counsel, as well as such counsel's accounting fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses. Should the grantee fail to undertake the defense of such claim following demand of the City or any other such indemnitee, the City may undertake the defense of such claim, in which case the grantee shall reimburse the City and any other indemnitee for any costs and expenses incurred in defending against such claim or demand or action, including any attorneys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expenses, and travel and living expenses. The foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder. Grantee may settle, compromise, adjust or otherwise dispose of any such claim, provided that grantee shall not settle, compromise, adjust or dispose of any such claim which would impose any obligation upon the City, its elected officials, officers, boards and board members, commissions and commission members, agents, consultants, volunteers and employees without the City's prior written consent, which consent shall not be unreasonably withheld. Should the grantee fail to defend any such claim, the City may settle, compromise, adjust or otherwise dispose of such claim on such terms as it may deem appropriate. Grantee shall promptly reimburse the City for the amount of all settlement payments and expenses, legal and otherwise, incurred by the City in connection with the defense or settlement of such claim. If no settlement of such claim is made, then the grantee shall satisfy any judgment rendered with respect to such claim before the City is required to do so, and pay all expense, legal or otherwise, incurred by the City in the defense of such claim. Except as specifically set forth above, the City shall not have the right to settle, compromise, adjust or dispose of any claim without the approval of the grantee, provided that if the grantee disapproves of such settlement, then it must assume the defense of such claim and reimburse the City for all expenses of the City to the date of assumption. If the City enters into any settlement, compromise, adjustment or other disposition of a claim for which indemnification is sought under the provisions of this section and has not complied with the provisions of this section for seeking grantee's approval of such settlement, grantee will be discharged from its obligations of indemnification under this Section. The party proposing a settlement, compromise, adjustment or other disposition of a claim shall give the other ten (10) days prior written notice of the proposed settlement, compromise, adjustment or other disposition for which indemnification is sought by the City under the provisions of this section. The party to whom such notice is given shall be required to accept, reject or modify the proposed settlement within such ten (10) day period.

(b) Indemnification by City. The City shall indemnify, defend and hold the grantee, its affiliates and their respective officers, directors, shareholders and employees (the indemnitees) harmless from and against any and all liabilities and obligations asserted or other claims, actions, judgments, assessments, taxes, performance rights fees, residuals, charges, fines, penalties, damages, costs and expenses (including legal fees and disbursements) arising from or in any manner related to this franchise or the grantee's cable system to the extent caused by the acts or omissions of the City, its officers, employees, agencies, commissions, boards, contractors or agents, including without limitation any claim arising from or in any manner related to such acts or omissions involving the City's use of the grantee's cable system (including without limitation the use of the grantee's poles, conduit, towers or other property of the grantee), the use of the emergency alert system by or on behalf of the City (excluding any claim arising out of a physical or operational defect in the grantee's physical plant) and the City's use of access channels providing public, educational or governmental programming, provided that such public, educational or governmental channels are under the control of the City, including without limitation (1) the City's administration and operation of any such channels, (2) programming of the City carried on such channels and (3) the act or omission of any City officer, employee, agency, commission, board, contractor or agent or person involved in the administration, operation, programming or use of such channels, which obligation of indemnity shall include, without limitation, the solicitation, production, content, selection, rejection, scheduling, funding or presentation of such programming, as well as such liability as may arise from claims of libel, slander, defamation, invasion of privacy or infringement of copyright, musical performing rights or any other right of any other person.

(1) Upon the occurrence of any event which may give rise to an obligation for which the City is or may be liable under this section (any such event, a "claim"), the indemnitees shall promptly, after knowledge thereof, notify the City in writing and give the City a reasonable opportunity to attempt to defend or settle such claim, provided that the City shall not settle any claim which would impose any obligation upon the indemnitees without the indemnitees' prior written consent, which consent shall not be unreasonably withheld.

(2) Any indemnittee may, at its election and expense, participate in any attempt by the City to settle or defend any such claim subject to the understanding that control of the defense of any such claim remains with the City and its counsel.

(3) With respect to any claim which is ultimately determined to be an obligation for which the City is required to indemnify the indemnitees, in the event that the City fails to defend the indemnitees or employ counsel for the indemnitees for such purpose, then the indemnitees may defend against such claim in such manner as they deem appropriate and the indemnitees may settle such claim on such terms as they may deem appropriate. The City shall promptly reimburse the indemnitees for the amount of all settlement payments and expenses, legal and otherwise, incurred by the indemnitees in connection with the defense or settlement of such claim. If no settlement of such claim is made, then the City shall satisfy any judgment rendered with respect to such claim before the indemnitees are required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitees in the defense against such claim.

(4) Except as set forth above, the indemnitees shall not have the right to settle any claim without the approval of the City, provided that if the City disapproves of such settlement, then it must assume the defense of such claim and reimburse the indemnitees for all expenses of the indemnitees to the date of assumption. The failure of the City to assume such defense and to pay such reimbursement shall give the indemnitees the right to settle such claim on such terms as they consider appropriate. In such event, every expense of any attempt to settle or defend a claim, including without limitation expenses of proceedings, negotiations, investigations, settlements or suits (such as attorneys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expenses and travel and living expenses), shall be borne solely by the City. Notwithstanding any such attempt or the outcome thereof, the obligations of the City to the indemnitees under this section shall not be relieved, reduced or otherwise affected.

(Ord. 614 (part), 1997)

Grantee shall be exempt from and the City hereby waives grantee's compliance with any requirement to furnish or maintain a construction bond to the City for any construction by grantee of its cable system.

(Ord. 614 (part), 1997)

(a) Failure to Comply. Grantee's failure to comply with any time and performance requirements as stipulated in this Franchise Ordinance, following notice and an opportunity to cure such event of noncompliance, will result in damage to the City, and it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance; therefore, grantee shall be subject to liquidated damages specified below. Liquidated damages may only be assessed following notice to grantee and an opportunity to cure as provided in subsection (b) of this section. Liquidated damages will not be assessed if grantee's failure to comply with a requirement of this Franchise Ordinance is caused by an event of force majeure. Liquidated damages will be assessed on a daily basis for each breach or series of related breaches under this Franchise Ordinance but may not exceed the ceilings prescribed by State law (e.g., California Government Code, 53088.2(q)).

The following amounts may be chargeable against the Performance Bond provided for in Section 7364 for the following concerns:

(1) Failure to complete system construction, unless the City Council by resolution specifically approves the delay or provisions of force majeure apply; grantee shall pay five hundred dollars ($500.00) per day for each day, or part thereof, the delinquency continues;

(2) Failure to provide, upon written request, data, documents, reports or information required to be supplied under this Franchise Ordinance; grantee shall pay fifty dollars ($50.00) per day for each day, or part thereof, that each violation occurs or continues;

(3) Failure to test, analyze and report on the performance of the system as required herein; grantee shall pay one hundred dollars ($100.00) per day for each day, or part thereof, that such noncompliance continues;

(4) Failure to provide in a continuing manner the types of services set forth in Sections 7357, 7358, 7359 and 7360, of this Franchise Ordinance, unless the City Council specifically approves a delay or change or the grantee has obtained modification of its obligation, or provisions of force majeure apply; the grantee shall pay five hundred dollars ($500.00) per day for each day, or part thereof, that each noncompliance continues;

(5) Thirty (30) days following adoption of a resolution by the City Council determining a failure of the grantee to comply with system-wide operation, maintenance or technical standards, grantee shall pay one hundred dollars ($100.00) per day for each day, or part thereof, that grantee violates such operation, maintenance or technical standards for portions of its system;

(6) For breach of any consumer service standard, as set forth in Section 7365 of this Franchise Ordinance above, Grantee shall pay one hundred dollars ($100.00) per day for each day or part thereof, that such noncompliance continues. A breach shall be interpreted to mean that the City has evidence of the failure by Grantee to comply with its obligations under this Franchise Ordinance in the nature of (i) either a single material breach or (ii) repetitive (three or more) minor breaches occurring within three (3) calendar months;

(7) For any other breach not listed in this section, the grantee shall pay one hundred dollars ($100.00) for each day, or part thereof, that each violation occurs or continues.

(b) Access to Performance Bond. If grantee has failed to perform any of its obligations under this Franchise Ordinance, and such failure has not been remedied following notice and opportunity to cure within ten (10) days after receipt of written notice from the City, the City Manager may issue to grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis of the assessment, and shall inform the grantee that liquidated damages will be assessed from the date of the notice, unless the assessment notice is appealed for hearing before the City Council and the City Council rules that the failure has been corrected, or that an extension of the time or other relief should be granted. If Grantee desires a hearing before the City Council, it shall file a written notice of appeal by certified mail to the City Clerk within ten (10) days after receipt of the notice of intention to assess liquidated damages. After the hearing, if the City Council sustains in whole or in part the City Manager's assessment of liquidated damages, the City Manager may draw upon the performance bond required by Section 7364 of this Ordinance. Unless the City Council indicates to the contrary, such liquidated damages shall be assessed beginning with the date of the notice of intention to assess liquidated damages and continuing thereafter until such time as the violation ceases, as determined by the City Manager.

(Ord. 614 (part), 1997)

(a) Termination by City. In addition to all other rights and powers retained by the City, the City reserves the right to terminate, revoke or cancel this franchise and all rights and privileges of the grantee in the event of a material breach of its terms and conditions which breach has not been remedied following notice and opportunity to cure as provided in Section 7369(b).

(b) Termination by Grantee upon Change in Law. Grantee may terminate this franchise and all of its obligations under this Ordinance at any time following sixty (60) days' prior written notice to the City (or such shorter prior written notice as may be required under an applicable FCC or federal court order) if, pursuant to an applicable final order by the FCC or a federal court, grantee determines in the exercise of its good faith legal judgment that it is prohibited by federal or State law from constructing or operating a cable system within the City. In such event, grantee shall have the right to lease or transfer ownership of its cable system to its affiliated telecommunications company, GTE California Incorporated, who shall be entitled to utilize such network in any manner permissible by federal and State law, including, but not limited to, the offering of an open video system or a substantially similar service.

If grantee or GTE California Incorporated does provide an Open Video System or a substantially similar service as provided hereunder in this subsection, or provides any other substantially similar form of service which requires the filing of a tariff for such service, it shall include in its tariff or operating procedures for such service, or to the extent that no such tariff is required it shall nonetheless agree to sign in favor of the City, to the extent permitted by federal and State law, an agreement containing, provisions substantially similar to the provisions contained in this Ordinance covering the following: (1) providing to the City access to the number of PEG channels and ongoing financial support for development of PEG programming as described in this Ordinance, (2) paying to the City franchise-like fees not in excess of five (5) percent of its gross revenues from video programmers or cooperating with the City in charging and collecting from video programmers utilizing GTE's open video system franchise-like fees not in excess of five (5) percent of the gross revenues of such video programmers, and (3) constructing its network in accordance with the technical and construction requirements and permitting procedures set forth in this Ordinance.

(c) Conversion to Open Video System. Following sixty (60) days' prior written notice to the City, grantee may terminate this franchise and all obligations under this Ordinance at any time and lease or transfer ownership of its cable system to its affiliated telecommunications company, GTE California Incorporated, to utilize such network to provide an open video system or a substantially similar service, if it determines in the exercise of its good faith legal judgment that GTE California Incorporated will be permitted to include under federal and State law, and in fact does include, in its tariff or operating procedures for such service, or to the extent that no such tariff is required it is willing nonetheless to sign in favor of the City an agreement containing provisions substantially similar to the provisions contained in this Ordinance covering the following: (1) providing to the City access to the number of PEG channels and ongoing financial support for development of PEG programming as described in this Ordinance, (2) paying to the City franchise-like fees not in excess of five (5) percent of its gross revenues from video programmers or cooperating with the City in charging and collecting from video programmers utilizing GTE's open video service franchise-like fees not in excess of five (5) percent of the gross revenues of such video programmers, and (3) constructing its network in accordance with the technical and construction requirements and permitting procedures set forth in this Ordinance.

(d) Continuity of Obligations. Notwithstanding the provisions of subsections (b) and (c) of this section, if grantee terminates this franchise pursuant to subsections (b) or (c) of this section and transfers its cable system or the network assets of such system to one of its telecommunications affiliates, such as GTE California Incorporated, and if such affiliate then offers an open video system or a substantially similar service over such cable system or network assets, then such affiliate shall negotiate an agreement in good faith with the City within a period of three (3) months after such termination that complies with subsections (b) and (c) of this section and, to the extent possible, with the other terms and conditions of this Ordinance, to the extent that such compliance is not inconsistent with provisions of federal or State law and is consistent with the permissible operating business parameters of the new mode of grantee's operations (e.g., open video system). Such agreement shall have a term equivalent to the unexpired term of grantee's franchise at the time it is terminated pursuant to subsection (a) or (b) of this section.

(e) Failure to Succeed in Market. Grantee shall have the right to terminate this franchise and all obligations under this franchise within ninety (90) days after the end of five (5) years from the effective date of this Ordinance, if at the end of such five (5) year period grantee does not then have subscribers on all of its cable systems served by its headend facilities in the City of Thousand Oaks, California, equal to at least ten (10) percent of the total homes passed and capable of receiving service from such cable system. Notice to terminate under this provision shall be given to the city in writing, with such termination to take effect no sooner than one hundred and twenty (120) days after giving such notice. Grantee shall also be required to give its then current subscribers not less than ninety (90) days prior written notice of its intent to cease operations. After termination, grantee shall be permitted to transfer its network assets to a telecommunications affiliate, such as GTE California Incorporated, to use for any lawful purpose, provided that such affiliate shall not be permitted to use such network assets to provide an open video system or a substantially similar service for a period of time equivalent to the unexpired term of grantee's franchise at the time cable service is terminated pursuant to this subsection.

(Ord. 614 (part), 1997)

Grantee shall not be excused from complying with any of the terms and conditions of this Franchise Ordinance by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.

(Ord. 614 (part), 1997)

The rights and remedies of the parties pursuant to this Franchise Ordinance are cumulative, except as otherwise provided in this Ordinance, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this Ordinance. A waiver of any right or remedy by a party at one time shall not affect the exercise of such right or remedy or any other right or other remedy by such party at any other time.

(Ord. 614 (part), 1997)

The headings contained in the this Franchise Ordinance are to facilitate reference only, and do not form a part of this Ordinance, and shall not in any way affect the construction or interpretation thereof.

(Ord. 614 (part), 1997)

When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with City Manager and with the office of the City Clerk.

(Ord. 614 (part), 1997)

In the event the grantee's performance of the terms, conditions or obligations required of it under this Franchise Ordinance is prevented by any cause or event not reasonably foreseeable and avoidable or otherwise not within the grantee's control, such inability to perform shall be excused and no penalties or sanctions of any nature shall be imposed upon the grantee as a result thereof. Causes or events not within the control of the grantee include, without limitation, strikes, labor strife, sabotage, riots or civil disturbances, actions of any governmental agency or court, explosions, acts of public enemies, severe or unusual weather conditions, natural disasters such as floods, earthquakes, landslides and fires, power or communication failures, embargoes, quotas, rationing, material shortages, inability to secure materials, services or equipment from normal sources of supply following diligent efforts to do so and inability to secure approvals, consents or authorizations from any person upon such terms and conditions as are reasonably satisfactory to the grantee after diligent efforts to do so. The period of grantee's performance shall be extended by the period of any such delay. The grantee shall provide the City with written notice promptly following the grantee's knowledge of any such cause or event. Economic hardship or misfeasance or malfeasance of the grantee's shareholders, partners, directors, officers or employees shall not be deemed to be causes or events not within the control of the grantee.

(Ord. 614 (part), 1997)

Because the regulations and limitations applicable to cable television, multichannel video programming distributors, telephone companies and franchising are in transition, and no one is able to reasonably foresee the economic impact of changes in such rules or the terms and conditions under which other persons, including local exchange companies, will be authorized to provide video services within the city, should another person construct, operate or maintain a cable system, or otherwise utilize a public street or public right-of-way for the delivery of cable services or other communications services within grantee's service area (other than de minimus overlaps), on material terms and conditions which are in the aggregate significantly more favorable or less burdensome than those applied to grantee, taking into consideration the totality and reasonable proportionality of their respective obligations, but which are outside of the legal control of the City, such a development shall be deemed to be a change in conditions which is beyond the control of the grantee and the nonoccurrence of which was a basic assumption on which the requirements of this franchise was based, and grantee shall have the right under Section 625 of the Communications Act of 1934, as amended, to obtain modification of requirements for services, facilities, equipment, financial support, services relating to public, educational or governmental access, and other provisions of this Franchise if the cable operator demonstrates that (i) it is commercially impracticable for grantee to comply with such requirement, and (ii) the proposal by grantee for modification of such requirement is appropriate because of commercial impracticability. Any final decision by City under this subsection shall be made in a public proceeding. Such decision shall be made within one hundred twenty (120) days after receipt of such request by City, unless such one hundred twenty (120) day period is extended by mutual agreement of grantee and City.

(Ord. 614 (part), 1997)

This Ordinance shall supersede, with respect to the terms and conditions of grantee's franchise and operations, all prior ordinances, resolutions, agreements and understandings.

(Ord. 614 (part), 1997)

The validity, construction and enforceability of this Ordinance shall be governed in all respects by the laws of the State of California applicable to agreements negotiated, executed and performed there, together with applicable federal law, including without limitation the Communications Act of 1934, as amended, and the Rules and Regulations of the FCC pursuant thereto.

(Ord. 614 (part), 1997)

For purposes of this Ordinance, whenever reference is made to a number of days without qualification as to business or calendar days, such number of days shall be deemed to be calendar days.

(Ord. 614 (part), 1997)

Except as otherwise provided in this Franchise Ordinance, any notice, approval, consent, waiver or other communication required or permitted to be given or to be served upon any person in connection with this Franchise Ordinance shall be in writing. Such notice shall be personally served, sent by facsimile or telegram, or sent by first class, registered or certified U.S. mail (first-class, postage prepaid, with return receipt requested from the addressee only) and shall be deemed given (i) if personally served, when delivered to the person to whom such notice is addressed, (ii) if given by facsimile or telegram, when sent, or (iii) if given by mail, upon receipt by the addressee or upon the date of attempted delivery if not delivered to the addressee. Receipt of any notice given by facsimile or telegram shall be confirmed in writing sent by registered or certified mail in the manner prescribed by this section within forty-eight (48) hours after sent. Such notices shall be addressed to the party to whom such notice is to be given as follows: if to the grantee, at the administrative offices of the grantee, with a copy to the Legal Department of such parent company as is designated by notice from grantee to City; if to the City, to the City Manager, City of Port Hueneme, California. Either party may change the address to which notice is to be given by providing written notice to the other party in the manner provided in this section.

(Ord. 614 (part), 1997)

This franchise shall not become effective unless and until grantee has filed with the City Manager and the City Clerk its written acceptance of this franchise. Such acceptance shall be in a form satisfactory to and approved by the City Attorney.

(Ord. 614 (part), 1997)

If any section or provision of this Franchise Ordinance or any ordinance, law or document incorporated herein by reference is held by a court of competent jurisdiction to be invalid, unconstitutional or unenforceable, such holding shall be confined in its operation to the section or provision directly involved in the controversy in which such holding shall have been rendered and shall not in any way affect the validity of any other section or provision hereof. Under such a circumstance, the grantee shall, upon the City's request, meet and confer with the City to consider amendments to the Franchise Ordinance to meet the original intent of the parties, as the circumstances warrant and unless prohibited by law, provided, however, that the grantee, in its sole and exclusive discretion, is not required to enter an agreement with the City concerning such an amendment. Both the City and the grantee agree to be bound by all terms and conditions of this franchise except as may be finally determined to be unenforceable by a court of competent and appropriate jurisdiction with proper venue over this franchise, provided that the City or the grantee need not comply with any term or condition of this Franchise Ordinance which it is contesting in good faith by appropriate proceedings.

(Ord. 614 (part), 1997)

Grantee shall have the right to transfer the franchise granted by this Ordinance, subject to all terms and conditions of the franchise, to any entity, directly or indirectly owned or controlled by GTE Corporation, without requiring the consent of the City. Any other assignment by grantee, subject to all terms and conditions of the franchise, shall require the written consent of the City, which consent shall not be unreasonably withheld.

(Ord. 614 (part), 1997)