Portola Municipal Code Ch. 5.08 Catv Franchises

Unless otherwise indicated in this chapter, the following terms have the following meanings herein:

"Cable service" shall have the meaning given that phrase in Title VI of the Communications Act of 1934 (47 U.S.C. Section 521 et seq.), as such may be amended from time to time, and the judicial construction thereof and, subject to applicable law, shall include without limitation programming carried, in whole or in part, on a cable system whether originated by the cable operator or any other party and shall include, without limitation and by way of example, the one-way transmission to subscribers of video programming, or other programming service; and, subscriber interaction, if any, which is required for the selection of such video programming or other programming service. For the purposes of this definition, "video programming" shall include, subject to applicable law, programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and, "other programming service" shall include, subject to applicable law, information that a cable operator makes available to all subscribers generally.

"Cable system" or "system" shall have the meaning given the phrase "cable system" in Title VI of the Communications Act of 1934 (47 U.S.C. Section 521 et seq.), as such may be amended from time to time, and the judicial construction thereof and, subject to applicable law, shall include without limitation a system of antennas, cables, wires, lines, towers, waveguides, or other conductors, converters, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing, audio, video and other forms of electronic or electrical signals, located in the city. It shall include, subject to applicable law, any system of communication delivering an electromagnetic signal which, from inception through delivery to an ultimate recipient, passes through any equipment or device which is located within the streets including without limitation a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include: (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any public right-or-way; (3) a facility of a common carrier which is subject to the provisions of Title II of the Communications Act of 1934, as amended except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the Communications Act of 1934, as amended) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934, as amended or (5) any facilities of any electric utility used solely for operating its electric utility system.

"Cable wiring" means that cable wiring and facilities of the operator inside a subscriber's dwelling unit installed by the operator or the operator's contractor, including that wiring which is within twelve inches outside of where the cable wire enters the outside wail of the subscriber's dwelling unit.

"City" means the city of Portola in its present incorporated form and as it may be changed by annexation.

"City council" means the governing body of the city.

"Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.

"FCC" means the Federal Communications Commission.

"Gross revenues" means and includes, valued at retail price levels, the value of any goods, services, or other remuneration in nonmonetary form received by operator, its affiliates, subsidiaries, and parents in consideration for performance by operator, its affiliates, subsidiaries, and parents of any advertising or other service in connection with the cable system.

"Gross revenues" shall not include (1) any taxes on services furnished by operator which are imposed directly upon any subscriber or user by the United States, state of California or local agency or imposed upon any transaction between operator and any subscriber or user and collected by operator on behalf of the government; (2) revenue received directly from operator by an affiliate, subsidiary or parent of operator, when the revenue received has already been included in reported gross revenues as received by operator, (3) revenue received by such an affiliate, subsidiary, or parent when the revenue received is from the sale of national advertising shown on programs distributed on a national basis by the affiliate, subsidiary, or parent and, but for this exception, that portion of the revenue attributable to broadcasts through the cable system would be treated as gross revenues and revenues derived from subscribers whose electromagnetic signal, from inception through delivery, does not pass through any equipment or device which is located within the streets, (4) any amount until it is actually collected by or paid to operator or any affiliate, subsidiary or parent of operator, (5) revenue received by an affiliate, subsidiary or parent of operator by reason of the provision of programming or other services to subscribers or users of the cable system, to the extent that such revenues would not typically accrue to a similarly-situated cable operator which was unrelated to such entity; or (6) any fees or other charges which are now or hereafter expressly excluded by applicable state or federal law from the calculation of gross revenues.

"Operator" means any party to which a franchise is granted including such of its or their lawful successors and assigns as shall have theretofore been approved by the city, in its sole and complete discretion and as shall have theretofore agreed in writing, in a form approved by city, to be bound to all of the terms, provisions and conditions of a franchise issued pursuant to this chapter.

"Street mile" means one linear mile of street without regard to the length or measure of cable required to traverse such distance and/or provide cable service to dwelling units adjoining such street. In calculating "street miles" for the purposes of a franchise issued pursuant to this chapter, street miles shall be the shortest distance by which all dwelling units in a given area can be reached while staying within the public rights of way, even if operator shall elect or have elected a different architecture for the system than that which would derive the shortest such distance.

"Streets" means the surface of and the space above and below any street, road, highway, freeway, utility right-of-way or any other easement which now or hereafter exists for the provision of public or quasi public services to residential or other properties, and in which the city is expressly or impliedly authorized or empowered to permit use for the installation and operation of a cable system.

"Subscriber" means a lawful recipient of cable service within the city.

"Two-way communications" means the transmission of telecommunications signals from subscriber locations or other points throughout the system back to the system's control center, or to any substation, switch, or router which operator may choose to establish, as well as transmission of signals from the control center, substation, switch or router to subscriber locations.

"User" means a party utilizing a cable system channel for purposes of production or transmission of material to subscribers, as contrasted with receipt in a subscriber capacity.

(Ord. 274 § 1, 1998)

A. The city, as a part of franchises granted under this chapter, may grant to an operator the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets as they now and hereafter shall exist in the city such poles, wires, cables, underground conduits, manholes, and other cable conductors and fixtures as are necessary for the maintenance and operation in the city of a cable communications system, to be used for the sale and distribution of cable service to the residents of the city.

B. The operator shall at all times during the operation of any franchise under this chapter, be subject to all lawful exercise of the police power as may be hereafter provided by the city, but such power shall not be inconsistent with the provisions of this chapter and shall be subject to applicable law.

(Ord. 274 § 2, 1998)

A. Subject to the terms, provisions and conditions of any franchise granted under this chapter, the duration of the rights, privileges and authorizations granted shall be for not more than fifteen years from the date the franchise is accepted by operator. Upon application of the operator, the franchise may be renewed, or not, by the city, in its sole and complete discretion, upon application of the operator subject to and in accordance with then applicable law.

B. The city may, from time to time, find that it is in the best interest of the city to seek and consider an award of additional cable television franchises to others in the exercise of its legislative discretion. In the issuance of such franchises, the city shall use its best efforts to insure that all such franchises shall contain terms, provisions and conditions which are similar or equivalent to the terms, provisions and conditions of previously granted franchises, to the extent allowable by then-existing law, provided that nothing in the issuance of additional franchises by the city, whether or not upon terms, provisions and conditions equivalent or similar to those of a franchise issued pursuant to this chapter, shall operate to nullify, modify, discharge, offset or otherwise affect the obligations of operator to fulfill and comply with the terms, provisions and conditions of a franchise issued pursuant to this chapter.

(Ord. 274 § 3, 1998)

Franchises granted pursuant to this chapter shall be for the present territorial limits of the city and for any area henceforth annexed thereto during the term of any franchise.

(Ord. 274 § 4, 1998)

A. Cable systems authorized pursuant to the provisions of this chapter shall provide equal and uniform cable service and rates, charges and fees, subject to applicable law, within the city to all dwelling units which it serves, provided that (1) operator shall be free to offer and/or charge nonuniform or nonequal rates, charges and fees to those subscribers or potential subscribers to whom (a) cable services are then presently available from another cable television provider offering such services pursuant to a franchise, license or other authorization issued by the city, and/or (b) promotional subscriptions, or upgrade offers are made with the reduced or waived rate, charge or fee not to exceed twelve months for any subscriber for any given offer and/or (c) cable service provided on a bulk billing basis to multiple unit dwellings; and (2) operator shall be free to offer nonuniform or nonequal cable service and/or charge nonuniform or nonequal rates, charges and fees during an approved rebuild of the cable system so as to allow completed areas of the city to utilize the enhanced portion of the system, provided that such cable service and such rates, charges and fees shall be equal and uniform within the enhanced portion of the system, on the one hand, and in the nonenhanced portion of the system, on the other.

B. With respect to requests for connection requiring a drop line (measured from the outer edge of the nearest street to a point twelve inches outside the point of connection to the dwelling unit) in excess of one hundred and fifty feet, the operator must extend and make available cable service to the residents of such dwelling unit at a connection charge not to exceed the actual installation costs incurred by the operator for this distance exceeding one hundred and fifty feet. In the event that the operator elects to impose any additional charge whatever for the distance of drop beyond one hundred and fifty feet, it shall explicitly demonstrate that such portions of such drops have been excluded from any capitalization of drop costs for rate regulatory purposes.

C. Operator must extend and make cable service available to every dwelling unit in all unserved areas in the city having at least fifty dwelling units planned per street mile, provided that the dwelling unit nearest the existing system is within one-half mile of the existing system. In addition to the foregoing, operator shall install conduit in a joint or separate trench (subject to the limitations in this subsection below) in area located within the city where utility trenches will be open to accommodate telephone and/or electric lines. In the case of new developments, all costs of trenching, and obtaining easements shall be the responsibility of the developer or property owner. The developer or property owner shall provide operator with not less than ten working days notice of the time when the joint trench will be open and available for operator to install its conduit. If developer or property owner fails to provide operator with such notice, the costs of trenching shall remain the responsibility of the developer or property owner and operator shall have no duty to install its conduit until the trench has been made available to it. However, where such opportunity to install in the joint trench is available, and where notification is provided to and disregarded by operator such that the trenching is filled during the normal course of development, operator will have a duty to trench and install conduit or cable at operator's cost, within thirty days of the developer or property owner's trench being refilled. Operator shall have no obligation to extend its distribution lines to provide service in any area of the city where it cannot secure on commercially reasonable terms any additional right-of-way necessary for service only if it is impossible to provide service using access to the public right-of-way.

(Ord. 274 § 5, 1998)

A. Operator shall construct, install, operate and maintain their cable systems, as specified in the resolution granting the franchise, in a manner consistent with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, and detailed standards submitted by operator as part of its application, which standards are incorporated by reference in this chapter. In addition, operator shall provide the city, upon request, with a written report of the results of operator's annual proof of performance tests conducted pursuant to FCC standards and requirements.

B. All zoning and other land use ordinances, building, electrical, plumbing and mechanical codes, business license ordinances and all other ordinances of general application now in existence or hereafter lawfully enacted by the city shall be fully applicable to the exercise of a franchise issued pursuant to this chapter, and operator shall comply therewith. In the event of a conflict between the provisions of a franchise issued pursuant to this chapter and those of such an ordinance of general application, the provisions of such ordinance of general application shall prevail. Construction, installation and maintenance of the cable system shall be performed in an orderly and workmanlike manner. All cables and wires shall be installed, where possible, parallel with electric telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.

C. Operator shall at all times comply with: National Electrical Safety Code (National Bureau of Standards); National Electrical Code (National Bureau of Fire Underwriters); and applicable FCC or other federal, state and local regulations.

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

D. In any portion of the city where utilities are then required to be placed underground, operator may use a partial underground system, e.g., streamlining. Amplifiers, and other related equipment attached or proximate to the amplifiers in operator's transmission and distribution lines and encased in the same housing, may be placed in appropriate housings upon the surface of the ground, provided that placement of such housings shall be in compliance with applicable federal or local access requirements, such as provided for in Americans With Disabilities Act ("ADA"). The city shall not in any manner be responsible for any costs or liabilities incurred by operator in operator's facilities underground or obtaining any easements therefor.

E. If (1) the operator should in the course of the construction and/or reconstruction of the system elect to place underground cable plant in the public utility easement on private property where there was, at the time of the operator's election, space available for the installation of such plant at the edge of the street within the public roadway, and (2) the operator should fail, neglect or refuse to take preconstruction photography (or videography) clearly depicting the condition of any private property upon which underground construction is to occur, the operator shall have the burden of proof as to the condition of the private property prior to the initiation of such construction in any subsequent complaint resolution, arbitration or judicial procedure between the operator and the private property owner.

(Ord. 274 § 6, 1998)

A. Except as otherwise expressly provided herein, no part or element of a cable system or any other real or personal property which is a part of said cable system shall be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person, nor shall working control of the operator be transferred to another entity, without the prior written consent of the city except, however, the franchise may be transferred without said consent of the city except, however, the franchise may be transferred without said consent to a wholly-owned subsidiary of operator provided that the operator shall remain jointly and severally responsible for its obligations hereunder. The proposed assignee must show financial responsibility as reasonably determined by the city and must agree to comply with all provisions of the franchise.

B. The operator shall promptly notify the city of any actual or proposed change in, or transfer of, or acquisition by any other party of, working control of the operator. The word "working control" as used in this section is not limited to major stockholders but includes actual working control in whatever manner exercised. Any transfer of more than ten percent of ownership shall be deemed working control sufficient to trigger the requirements of this section. Every change, transfer, or acquisition of control of the operator requiring the consent of the city shall make the franchise subject to cancellation unless and until the city shall have theretofore consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the city may inquire into the qualifications of the prospective controlling party, and the operator shall be obligated to respond to any reasonable questions put to it by the city in any such inquiry regarding such qualifications.

C. The consent or approval of the city to any transfer of the franchise shall not constitute a waiver or release of the rights of the city in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms, provisions and conditions of a franchise issued pursuant to this chapter and such additional terms, provisions and conditions as the city may reasonably prescribe as a condition of such transfer.

D. The city shall have sole discretion as to requiring the entity or entities acquiring control of the operator to become a signatory to the franchise as a condition of any transfer of control.

E. The requirements of this section do not apply to the restructuring of debt or ownership interests among existing equity participants in Charter Communications, Inc. and/or its affiliates or the sale of capital stock by grantee, or by any of grantee's affiliated companies, in a transaction commonly known as an "initial public offering," provided that (1) grantee shall provide written notice within thirty days of the transaction; (2) grantee represents in writing to grantor that such transaction will have no foreseeable effect on the agreement between grantee and Charter Communications, Inc. relating to the management and operation of grantee's cable service in the franchise area; and (3) grantee provides grantor with a written opinion from grantee's attorney that such transaction will have no foreseeable effect on the agreement between grantee and Charter Communications, Inc. relating to the management and operation of grantee's cable system in the franchise service area or the cost to consumers of grantee's cable service in the franchise area.

(Ord. 276 § 1, 1998; Ord. 274 § 7, 1998)

In the event that the city is permitted, under California and/or federal law, at any time during the franchise term, to regulate cable television subscriber service rates, and, if the city elects to assume rate regulation jurisdiction, the city shall comply with applicable law and regulations of the FCC.

(Ord. 274 § 8, 1998)

A. For the reason that the streets to be used by the operator in the operation of its system within the boundaries of the city are valuable public properties acquired and maintained by the city at great expense to its taxpayers, and that the permission to the operator to use the said streets is a valuable property right without which the operator would be required to invest substantial capital in right-of-way costs and acquisitions, and because the city will incur cost in regulating and administering the franchise, and at the option of the city council, the city may make available a portion of the franchise fee to further the development of public and community uses of cable television, the operator shall, subject to applicable law, pay to the city an amount equal to five percent of operator's applicable annual gross revenues. Notwithstanding the foregoing, in the event that any current legal limitation upon the amount of franchise fees is increased or decreased, then the franchise fee specified herein shall be increased or decreased accordingly such that, at all times during the term hereof, the city shall receive the maximum franchise fee allowed by law.

B. The franchise fee shall be payable annually and any other cost or penalties assessed by the city pursuant hereto shall be payable quarterly for each cost or penalty assessed during the term of a franchise issued pursuant to this chapter to the office of city administrator. The foregoing payments shall be made within forty-five days after the expiration of each period. The operator shall file a complete and accurate audited statement of all applicable gross revenues during the preceding fiscal year not later than forty-five days after the expiration of the operator's fiscal year. Such audited statement shall contain an unconditional opinion of an independent certified public accountant in accordance with generally accepted auditing standards.

C. The city shall have the right to inspect the operator's income records and the right to audit and to recompute any amounts determined to be payable under this chapter; provided however, that such audit shall take place within thirty-six months following the close of each of the operator's fiscal years. The city shall give written notice to the operator of any additional amount due within six months after completion of the audit. Any additional amount due to the city as a result of the audit shall be paid within thirty days following written notice to the operator by the city which notice shall include a copy of the audit report, provided however, that operator shall have the right to present such additional evidence as it may have to the city to contest such audit findings within thirty days thereafter. The decision of the city council, after consideration of all of the foregoing, shall be final and binding, subject to review by applicable authority.

D. In the event that any franchise fee payment or recomputed amount, cost or penalty is not made on or before the applicable dates heretofore specified, interest shall be charged daily from such date at the annual rate of twelve percent, unless operator should prevail in the event of any contest of the audit findings.

(Ord. 274 § 9, 1998)

A. Any cable system shall at all times maintain a capacity of at least thirty-six channels available for immediate use.

B. Cable systems authorized pursuant to the provisions of this chapter shall provide not less than one downstream video channel for public, community, and educational access ("PEG access programming") pursuant to the provisions of 47 USC 531 to subscribers in the city.

The foregoing uses may be combined and/or reassigned at any time by the city, provided that all such uses assigned and/or combined by the city shall be noncommercial and subject to the requirements of 47 USC 531 and any regulations of the FCC which may have been promulgated thereunder.

C. The operator shall incorporate into its cable system the capacity that will permit the city, in times of emergency, to override, by remote control, the audio of all channels simultaneously. The operator shall designate a channel that will be used for emergency broadcasts of both audio and video. The operator shall cooperate with the city in the use and operation of the emergency alert override system.

D. The operator may be required to interconnect its system with other broadband communications facilities. Such interconnection, if agreed to by the city and the operator, shall be made within the time limit established by the city. The interconnection shall, at the city's discretion, be accomplished according to the method and technical standards determined by the city and generally accepted in industry practices. "Broadband communications facility," as used herein, means any network of cable, optical, electrical or electronic equipment, including cable systems, used for the purpose of transmitting telecommunications signals.

E. 1.

Not sooner than five years after the effective date of any franchise granted under this chapter, the city reserves the right to direct operator to provide a cable system with a channel capacity of at least fifty-four channels (as defined below) if the city council determines, after thirty days notice to operator and hearing, that:

a. Forty percent of the total of the following are operating with at least a fifty-four channel (450 MHz) capacity: (i) those cable systems not owned directly or indirectly by operator in Sierra and Plumas Counties which currently are operating with only (but not more than) a thirty-six channel capacity (300 MHz); and (ii) those cable systems owned directly or indirectly by operator in Sierra or Plumas Counties; and

b. Based on testimony from the public, there is a need for such additional channel capacity in the city and the subscribers are willing to pay the cost for having such additional channel capacity available; and

c. The term of the franchise likely to be remaining after the completion of any required construction, including any extension of the term as may be granted by the grantor, shall not be less than four years.

2. As used in this section, "channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as a television channel is defined by the Federal Communications Commission). As used in this Section 5.08.100(E) and (F), a "cable system" means a system pursuant to which cable service is provided to residents in an incorporated city under a license or franchise granted by the city. Any rebuilding of the cable system shall be done in accordance with applicable city construction codes and permit procedures and grantee agrees to pay all applicable permit and inspection fees in connection therewith. Construction undertaken by grantee with respect to the cable system shall comply with all federal, state and city laws, rules and regulations.

3. If the council directs grantee to provide a cable system with channel capacity of at least fifty-four channels, grantee shall, except as provided in Section 5.08.190(B), complete construction on such improvements to the system within one year of the final determination that such service is required under this section.

F. 1.

Not sooner than five years after the effective date of any franchise granted under this chapter, the city reserves the right to direct operator to provide a cable system with "interactive communications capability" (as defined below) if the city council determines, after thirty days notice to operator and hearing, that:

a. Interactive communications capability is regularly and commercially available on a nonexperimental basis to substantially all subscribers in forty percent of the total of the following: (i) those cable systems not owned directly or indirectly by operator in Sierra and Plumas Counties which are currently operating with only (but not more than) a thirty-six channel capacity (300 MHz); and (ii) those cable systems owned directly or indirectly by operator in Sierra or Plumas Counties; and

b. Based on testimony from the public, there is a need for such services in the city and the subscribers are willing to pay the cost for having such services available; and

c. The term of the franchise likely to be remaining after the completion of any required construction, including any extension of the term as may be granted by the city, shall not be less than four years.

2. A cable system shall have interactive communications capability if, with the installation of appropriate electronic equipment, it can carry data communications both to and from subscribers and the cable operator.

3. If the city council directs operator to provide interactive communications capability, the operator shall, except as provided in Section 5.08.190(B), provide such service to its residential subscribers within one year of the final determination that such service is required under this section.

(Ord. 274 § 10, 1998)

A. Operators are authorized to place wire, conduits, and appurtenances for their cable systems along or across public streets, highways, alleys, public properties, or public easements of the city in such manner and places as shall be authorized by the city.

B. All transmission and distribution structures, lines, and equipment erected by the operator within the city shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets.

C. In case of disturbance of any street or paved area the operator shall, at its own cost and expense and in a manner approved by the city, immediately replace and restore such street or paved area in as good a condition as immediately before the work involving such disturbance was done.

D. If at any time during the period of the franchise the city shall lawfully elect to alter or change the grade of any street, the operator, upon reasonable notice by the city, shall remove, relay, replace, and relocate its poles, wires, cables, underground conduits, manholes, and other appurtenances at its own expense.

E. Any poles or other fixtures placed in or adjacent to any street by the operator shall be placed in such manner as to comply with all requirements of the city.

F. The operator shall, at the request of any person holding a moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the operator shall have the authority to require such payment in advance. The operator shall be given not less than forty-eight hours notice to arrange for such temporary wire changes.

G. The operator shall have the authority to trim trees upon and overhanging streets of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the operator, except that at the option of the city, such trimming may be done by it or under its supervision and direction at the expense of the operator.

H. In all sections of the city where the cables, wires, or other like facilities of public utilities are required to be placed underground as of the time at which any operator is building or substantially rebuilding that portion of its plant, the operator shall place its cables, wires or other like facilities underground to the extent required by Section 5.08.060 of this chapter.

At the expiration of the term for which the franchise is granted, or upon its termination and cancellation, as provided for herein, the city shall have the right to require the operator to remove at its own expense all portions of the cable system from all streets within the city.

(Ord. 274 § 11, 1998)

A. It shall be expressly understood and agreed by and between the city and any operator hereunder that the operator shall save the city and its agents and employees free and harmless from and against all claims, damages, losses, and expenses, including reasonable attorney's fees sustained by the city on account of any suit, judgment, execution, claim or demand whatsoever arising out of operator's actions or omissions in the installation, operation or maintenance of the cable system authorized herein, including but not limited to copyright infringements and/or any and all other damages, whether or not any act or omission complained of is authorized, allowed or prohibited by this chapter and a franchise issued pursuant to this chapter, provided that the operator shall not be required to indemnify city for damages which have theretofore been finally determined by a court of competent jurisdiction to have occurred solely and completely by reason of the negligence of city and entirely separate and apart from any action or conduct whatsoever by operator and/or any third party.

B. Operator shall at all times carry on all operations hereunder, workers' compensation insurance covering all of its employees, public liability and property damage insurance, and automotive public liability and property damage insurance, and automotive public liability and property damage insurance, including liability coverage for ((1) all operations; (2) subcontract work; (3) contractual obligations; (4) completed operations; (5) all owned vehicles; (6) nonowned vehicles) in an amount which shall not be less than two-million dollars single liability coverage underwritten by insurance companies satisfactory to the city.

C. The insurance policy obtained by the operator in compliance with this section must be approved by the city attorney and such insurance policy, along with written evidence of payment of required premiums, shall be filed and maintained with the city clerk during the term of the franchise, and may be increased from time to time to reflect changing liability limits. The operator shall immediately advise city attorney of any litigation that may develop that would affect this insurance.

D. Neither the provisions of this section nor any damages recovered by the city thereunder, shall be construed to or limit the liability of the operator under any franchise issued hereunder or for damages.

E. All insurance policies maintained pursuant to a franchise issued pursuant to this chapter shall contain the following endorsement (or an equivalent provision approved by the insurance service office):

It is hereby understood and agreed that this insurance policy may not be canceled by the surety nor the intention not to renew be stated by the insurer until thirty (30) days after receipt by the City, by registered mail, of written notice of such intention to cancel or not to renew.

(Ord. 274 § 12, 1998).

A. Within ten days after the acceptance of a franchise, the operator under said franchise shall deposit with the city a cash deposit, or in the discretion of the operator an irrevocable letter of credit from a financial institution authorized to issue such instruments, in the amount of not less than ten thousand dollars, provided that during the pendency of any rebuild of the cable system, said sum shall be increased to twenty thousand dollars or such other lesser amount as may be reasonably established by the city. The form and content of such irrevocable letter of credit shall be approved by the city attorney. The irrevocable letter of credit shall be used to insure the faithful performance by the operator of all provisions of a franchise issued pursuant to this chapter; and compliance with all orders, permits and directions of any agency, commission, board, department, division or office of the city having jurisdiction over its acts or defaults under a franchise issued pursuant to this chapter, and/or the payment by the operator of any claims, liens and taxes due the city which arise by reason of the construction, operation or maintenance of the system.

B. The irrevocable letter of credit, if such is utilized by any operator, shall be maintained in full force and effect at all times during the entire term of a franchise issued pursuant to this chapter. If amounts are withdrawn from the cash deposit by the city pursuant to the terms, provisions and conditions of a franchise issued pursuant to this chapter, or if the irrevocable letter of credit is presented for payment by the city, the operator shall promptly deposit an amount with the city sufficient to raise the total cash deposit in possession of the city to the applicable total sum set forth in subsection (A) of this section. Any sum on deposit with the city shall earn interest for the operator at the same rate earned by the city on its own general demand funds.

C. If the operator fails to pay to the city any compensation within the time fixed herein; or, fails, after ten days' notice to pay to the city any taxes due and unpaid; or fails to repay the city within ten days, any damages, costs or expenses which the city is compelled to pay by reason of any act or default of the operator in connection with a franchise issued pursuant to this chapter; or, fails, after thirty days' written notice by the city to comply with any provision of a franchise issued pursuant to this chapter which the city reasonably determines can be remedied by demand and presentation of the irrevocable letter of credit, the city may immediately present the irrevocable letter of credit and demand payment of the amount thereof, with interest and any penalties. Upon such presentation and demand for payment, the city shall notify the operator of the amount and date thereof.

D. The rights reserved to the city with respect to the cash deposit and/or irrevocable letter of credit are in addition to all other rights of the city, whether reserved by a franchise issued pursuant to this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such cash deposit and/or irrevocable letter of credit shall affect or limit any other right the city may have.

E. The irrevocable letter of credit shall contain the following endorsement:

It is hereby understood and agreed that this letter of credit may not be canceled by the issuer nor the intention not to renew be stated by the issuer until sixty (60) days after receipt by the City, by registered mail, of written notice of such intention to cancel or not to renew.

(Ord. 274 § 13, 1998)

A. All operators shall put, keep, and maintain all parts of the system in good condition throughout the entire franchise period. Unless the subscriber shall have agreed in writing in advance of installation to allow the operator to retain ownership of cable wiring as defined herein, cable wiring shall be and remain the subscriber's property under the law of fixtures in the state of California. Unless the subscriber shall have agreed in writing in advance of installation to allow the operator to retain ownership for cable wiring as defined herein, the operator shall not have the right to remove said wiring or to demand payment for such wiring upon termination of service.

B. If the subscriber shall have agreed in writing in advance of installation to allow the operator to retain ownership of cable wiring, upon termination of service the operator must give the customer the option of purchasing the cable wiring.

1. Prior to removing the cable wiring, the operator shall first give the subscriber the option of purchasing the cable wiring at the per foot replacement cost of the wiring installed in the premises, without labor charges or other costs or overheads.

2. Should the subscriber elect not to purchase the cable wiring, the operator may (a) remove within ten days and at times reasonably convenient to the subscriber all cable wiring installed by the operator or its contractor in connection with the original installation, including without limitation all wires extending onto private property from the public right-of-way (commonly known as service drops), and the operator shall repair all damage caused by such removal, or (b) leave all cable wiring in place and undisturbed, provided that the operator shall have the right to disable the service drops at the joiner of the public right-of-way (and at no other place) in order to forestall diversion of service.

C. The city may hereafter from time to time enact, and the operator shall comply with, customer service regulations not otherwise pre-emptied by state or federal law. The city acknowledges that, under current rate regulatory rules of the Federal Communications Commission all costs incurred by the operator to comply with customer service regulations which are in excess of federal and/or state customer service standards may be separately cumulated and treated as a "pass through" in accordance with presently applicable federal law to increase the otherwise maximum allowable rates.

D. In the event that any operator should assert its ownership of cable wiring upon the premises of subscribers and/or former subscribers, the operator shall thereupon and annually thereafter report in writing to the county assessor, with written confirmation of said report to the city, the addresses and assessor's parcel numbers of all locations within the city as to which the operator purports to retain ownership of the cable wiring upon such premises.

(Ord. 274 § 14, 1998)

A. It shall be the right of all subscribers to receive service insofar as their financial and other obligations to the operator are honored. In the event that the operator elects to overbuild, rebuild, modify, or sell the system, or the city gives notice of intent to terminate or fails to renew a franchise issued pursuant to this chapter, the operator shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances subject to force majeure and performance of the subscriber's financial and other obligations to the operator.

In the event of a change of operator, or in the event a new operator acquires the system, the operator shall cooperate with the city, and the new operator or operator in maintaining continuity of service to all subscribers. During such period, the operator shall be entitled to the revenues for any period during which it operates the system.

B. In the event operator fails to operate the system for ninety-six consecutive hours without prior approval of the city and in the absence of circumstances falling within the provisions of Section 5.08.190(B) of this chapter, the city may, at its option, operate the system or designate an operator until such time as operator restores service. If the city is required to fulfill this obligation for the operator, the operator shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of the operators failure to perform.

The operator shall not allow its cable or other operations to interfere with television reception of persons not served by the operator, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the city.

(Ord. 274 § 15, 1998)

A. In the event that the independent certified public accountant of any operator, pursuant to Section 5.08.090(B) of this chapter, (or the auditor of the city, pursuant to Section 5.08.090(C) of this chapter) determines that he/she is unable to unconditionally audit the operator's payment of appropriate franchise fees in accordance with the terms hereof by reason of the nature, extent and type of accounting system and accounting procedures utilized by the operator, the city may, from time-to-time during the term of the franchise prescribe such standards governing the nature, extent and type of accounting system and accounting procedures utilized by the operator and require such changes in accounting standards or procedures utilized by the operator, as are necessary to allow the efficient administration of the franchise fee requirements of this chapter. Any such standards shall be in writing, shall be filed with the city clerk, and shall be mailed to the operator to whom directed. Operator shall promptly comply with all such standards.

B. Operator shall fully cooperate in making available at reasonable times, and the city administrator and/or his/her designee shall have the right to inspect on not less than three business days notice, the books, records, maps, plans and other like materials of the operator necessary for the city to carry out its regulatory responsibilities at any time during normal business hours; provided that where volume and convenience necessitate, the operator may require inspection to take place on the operator's premises.

(Ord. 274 § 16, 1998)

Copies of all petitions, applications, communications and reports submitted by the operator to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the cable system authorized pursuant to the terms, provisions and conditions of a franchise issued pursuant to this chapter in the city and not otherwise available without charge to the city upon the Internet, shall be provided simultaneously to the city.

(Ord. 274 § 17, 1998)

Operators shall file annually with the city clerk, no later than one hundred twenty days after the end of the operator's fiscal year, such other reasonable information as the city administrator shall request with respect to the operator's properties and expenses related to its cable system operations within the city which are necessary, in the reasonable judgment of city, for the city to carry out its regulatory responsibilities.

(Ord. 274 § 18, 1998)

A. In addition to all of the rights and powers retained by the city under a franchise issued pursuant to this chapter or otherwise, the city reserves the right, subject to the provisions of this section, to forfeit and terminate the franchise and all rights and privileges of operators hereunder in the event of a substantial breach, beyond any applicable cure period otherwise made expressly applicable by law, of its terms and conditions. A substantial breach by an operator shall include, but shall not be limited to the following:

1. Violation by the operator of any material provision of the franchise or any material rule, order, regulation or determination of the city made pursuant to the franchise including without limitation the customer service regulations of the city;

2. Attempt by the operator to dispose of any of the facilities or property of its cable system to prevent the city from purchasing it, as provided for herein;

3. Evasion by the operator of any material provision of the franchise or practice by the operator of any fraud or deceit upon the city or its subscribers;

4. Failure by the operator to begin or complete system construction or system extension as provided under the franchise resolution;

5. Failure by the operator to provide the types of services promised herein or such further services specified in any resolution granting a franchise;

6. Failure by the operator to restore service after ninety-six consecutive hours of interrupted service, except when approval of such interruption is obtained from the city and in the absence of circumstances falling with the provisions of subsection B of this section; or

7. Material misrepresentation of fact by the operator in the application for or negotiation of the franchise; or

8. The appointment of a receiver to take possession of all, or substantially all, of the assets of operator; or

9. A general assignment by operator for the benefit of creditors; or

10. An action taken or suffered by operator, except as a creditor, under any insolvency or bankruptcy act; or

11. The operator's vacation or abandonment of the cable system within the city or dispossession by process of law; or

12. The cessation of the operation of the cable system within the city for a consecutive period of ninety-six consecutive hours without prior approval of the city or without good and sufficient cause, which shall be presumed to be an abandonment and vacation of the system.

This paragraph shall not be construed to limit any other provisions of a franchise issued pursuant to this chapter.

B. Except as hereinafter provided, violation by operators of any of the terms, provisions and conditions of this chapter caused by circumstances beyond the control of the operator shall constitute good and sufficient excuse and justification for such violations precluding the operator from being in breach of said terms, provisions and conditions. The following are examples of acts or omissions by a operator or circumstances which shall be deemed not to be beyond the control of the operator and which shall not constitute excuses or justifications for violations:

1. The failure at any time by an operator or its officers, agents or employees to exercise diligence in planning, organizing, arranging for or prosecuting the work of construction and installation, or in taking any other action necessary to permit or facilitate the work of construction and installation if a construction and installation program is included by the resolution granting a franchise to operator;

2. Unanticipated cost increases or insufficiency of capital with which to take actions necessary to comply or facilitate compliance with any of the terms, provisions and conditions of a franchise issued pursuant to this chapter;

3. Considerations relating to economy or cost efficiency, as respects acts or omissions by the operator;

4. Delays occasioned by the failure of the operator to diligently apply for and prosecute any request for a required certificate, approval or consent from the FCC;

5. Delays occasioned by seasonal changes in weather or climatic conditions, such as rain (exclusive of catastrophic conditions in the nature of "Acts of God"). (Rain delay shall not constitute an excuse or justification for violation except with respect to measurable precipitation occurring on more than fifty-nine days during any period commencing July 1st and ending the next following June 30th; and only if such is the proximate cause of the violation.);

6. Delays occasioned by the customary and usual time required to obtain approval to attach lines to poles owned by private or public utilities or in the attaching of cable to the poles; provided that if a operator submits all plans and documentation required by private or public utility in connection with the approval to attach lines to poles, any time consumed by such approval process which is longer than ninety calendar days following the submission of all necessary plans and documentation shall be deemed to excuse the operator from any violations which are proximately caused by such delay in excess of ninety calendar days;

7. Delays occasioned by the customary and usual time required to process and secure approvals under zoning ordinances of the city for the location of components of the cable system and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided that if a operator submits specific sites and plans for all headends, towers and transmitters to the city and requests the city to perform a single environmental analysis upon all such facilities as the lead agency, any time consumed by such environmental analysis which is longer than sixty calendar days during a period subsequent to the filing of the certificate of acceptance of the franchise shall be deemed to excuse the operator from any violations which are proximately caused by such delay in excess of sixty calendar days.

a. Operators shall not be excused from any violation of the terms, provisions and conditions of franchises granted pursuant to this chapter, except for causes which are beyond the control of the operator, and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the operator.

b. Except as otherwise provided above, violations caused exclusively by acts or omissions by the city or its officers, agents or employees shall constitute an excuse and justification for failure of an operator to comply with the terms, provisions and conditions of the franchise, precluding a determination that the operator is in breach. However, violations as a result of such exclusive causes shall not be deemed to excuse the operator from other unrelated violations, shield the operator from a determination that it is in breach for such other unrelated violations, or bar any relief for damages or otherwise as a result of such other unrelated breach.

c. Examples of circumstances beyond the control of an operator which will excuse an operator from violation and being in breach of the terms, provisions and conditions of the franchise, when such violations are caused thereby, include the following: strikes, acts of public enemies; orders by military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; floods; civil disturbances; explosions; partial or entire failure of utilities or unforeseeable lack of access to utility facilities; and Acts of God, being defined for this purpose as an act occasioned by the direct, immediate, and exclusive operation of the forces of nature, uncontrolled and uninfluenced by the power of man, and without human intervention, and is of such a character that it could not have been prevented or escaped by any amount of foresight or prudence, or by any reasonable degree of care or diligence, or by the aid of any appliances which the situation of the party might reasonably require him to use.

C. The city shall make a written demand that an operator comply with any such provision, rule, order, or determination under or pursuant to a franchise issued pursuant to this chapter. If the violation by the operator continues for a period of thirty days following such written demand without written proof that the corrective action has been taken or is being diligently and expeditiously pursued, the city may place the issue of termination of the franchise and/or the imposition of liquidated damages under Section 5.08.200 before the city council. The city shall cause to be served upon operator, at least twenty days prior to the date of such a city council meeting, a written notice of intent to request such termination and/or liquidated damages and the time and place of the meeting. Public notice shall be given of the meeting and issue which the city council is to consider.

D. The city council shall hear and consider the issue and shall hear any person interested therein, and shall determine in its discretion, whether or not any violation by the operator has occurred.

E. If the city council shall determine the violation by the operator was the fault of operator and within its control, the city council may, by resolution, declare that the franchise of the operator shall be forfeited and terminated, or it may make termination conditional subject to compliance within such period as the city council may fix, such period may not be less than sixty days, or it may impose liquidated damages under Section 5.08.200 of this chapter.

F. The issue of forfeiture and termination shall automatically be placed upon the city council agenda at the expiration of the time set by it for compliance. The city council then may terminate the franchise forthwith upon finding that the operator has failed to achieve compliance or may further extend the period, in its discretion.

(Ord. 274 § 19, 1998)

A. At the time of issuance of a franchise issued pursuant to this chapter, it is impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the operator of its obligations under the franchise granted by this chapter. Accordingly, the provisions of this section, shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticability of ascertaining damages include, but are not limited to, the following:

1. The fact that: (1) the primary damage resulting from breaches by the operator of the schedules for construction and extension of the cable system where the franchise includes such schedules and provision of services and of the duties prescribed by the terms, provisions and conditions of a franchise issued pursuant to this chapter will be to members of the public who are denied services or denied quality or reliable services; (2) such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (3) that services might be available through the cable system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (4) termination of a franchise for such breaches and other remedies are, at best, a means of future correction, and not remedies which make the public whole for past breaches;

2. The fact that the failure of the operator to make timely reports identifying its progress in installing its cable system will make it difficult in ways which are not measurable for the city to administer any construction schedule included in the franchise, delay initiation of enforcement proceedings, and impede compliance with the period allowed for construction; and

3. The fact that the failure of an operator to file timely annual reports will deny information necessary to enable the city to expeditiously, effectively and efficiently, administer the franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.

B. Without the provisions relating to the imposition of liquidated damages below, the actual damages for which an operator would be liable could greatly exceed the specified amount of liquidated damages. Therefore, these provisions, are of benefit to the operator.

C. In its sole discretion, the city council may assess the operator and the operator shall be liable for liquidated damages in the amount of up to two hundred fifty dollars for each calendar day on which a operator is in breach and for each breach of any of the terms, provisions and conditions of a franchise issued pursuant to this chapter or such other provisions of any subsequent rule, order, regulation or determination of the city made pursuant to the franchise as shall expressly refer to this provision. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with any of the terms, provisions and conditions of a franchise issued pursuant to this chapter. Said liquidated damage amount shall be separately applicable to each instance for each calendar day of delay in extending lines to additional dwelling units; provided that if more than one dwelling unit is subject to a particular extension, the total liquidated damages shall not exceed two hundred fifty dollars for each calendar day of delay. Nothing in the foregoing shall be deemed to preclude the city from imposing such lesser sum of liquidated damages as in its sole and exclusive discretion it shall deem fair and just.

D. The foregoing liquidated damages shall not be deemed to be the exclusive remedy for the types of breaches above. Neither the right to assess liquidated damages nor the assessment of liquidated damages shall be deemed to bar or otherwise limit the right of the city to obtain judicial enforcement of the operator's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages.

(Ord. 274 § 20, 1998)

A. The operator, and its officers, agents, employees, contractors and subcontractors, shall respect, refrain from invading, and take affirmative action to prevent violation of the privacy of subscribers served by the cable system and others.

1. Neither the operator nor any other person, agency, or entity shall tap, or arrange for the tapping or monitoring of any cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except that the operator may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals, and the operator may conduct system wide or individually addressed "sweeps" for the sole purpose of verifying system integrity (including individual security system integrity), controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel. "Tapping" means observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The provision of interactive services shall not be construed to be "tapping" or "monitoring" under this subsection.

2. The operator shall not place in any private residence or in any institution any equipment capable of two way communications without the written consent of the subscriber, and shall not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber specifying how the data collected will be used and by whom. Tenants who occupy premises connected by the system shall be deemed to be subscribers within the meaning of this subparagraph regardless of who actually pays for the service. The written consents shall be, and shall show on their face that they are, revocable by the subscriber at any time by written communication mailed by the subscriber to the operator. No penalty shall be invoked for a subscriber's failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The operator shall not make such written consent a condition precedent to receipt by a subscriber of noninteractive service. The provisions of this subparagraph shall not be deemed to require consent as a condition precedent to system-wide or individually addressed "sweeps" for the sole purpose of verifying system integrity, controlling return-path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.

3. No cable, line, wire, amplifier, converter, or other piece of equipment associated with cable system services shall be attached to any residence or other property of a citizen (except within streets) without first securing the written permission of the owner or tenant of the property. If such permission is later lawfully revoked, whether by the original or subsequent owner or tenant, the operator shall remove forthwith all of the equipment and promptly restore the property to its original condition. The operator shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.

4. No operator or officer, agent or employee thereof shall sell, or otherwise make available, lists of the names and addresses of its subscribers, or any list which identifies, by name or otherwise individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever except that the operator shall, upon request, provide lists of names and addresses of its subscribers to authorized representatives of the city when the city deems such information necessary for performance of the regulatory functions of the commission. Names and addresses of subscribers within the possession of the city shall not be subject to public inspection or review.

5. The operator may release the number of subscribers but only as a total number and as a percentage of the potential subscribers within the franchise area. When indicating the number of subscribers viewing a particular channel, the operator shall indicate only the total number of subscribers viewing during the relevant time and, the percentage of all subscribers that they represent, but not the identity of any subscriber.

6. No polls or other two way responses of subscribers shall be conducted whether for commercial purposes, in connection with community use, or otherwise unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. The operator shall supervise and monitor all polls in which responses are received through the cable system, and shall adopt and enforce measures which ensure that personally identifiable information concerning a subscriber, including his or her viewing habits and response or responses to the inquiry or inquiries, is not received by any third party, including the party sponsoring the poll.

7. The operator shall not tabulate any test results, nor permit the use of the system of such tabulation, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees or employees, without advance written authorization by the subscriber.

B. The operator shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin or sex. The operator shall comply at all times with all other applicable federal, state and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are incorporated and made part of this chapter by reference.

C. The operator shall strictly adhere to the equal employment opportunity requirements of federal, state and local regulations, and as amended from time to time.

(Ord. 274 § 21, 1998)

In the event the operator forfeits or city revokes a franchise issued pursuant to the ordinance codified in this chapter, city shall have the right, directly or as an intermediary, to purchase the cable system at fair market value as a going concern, subject to and in accordance with applicable law.

(Ord. 274 § 22, 1998)

A. The city and the operator may hold scheduled performance evaluation sessions within thirty days of any anniversary date of the operator's award of the franchise and as may be required by federal and state law. All such evaluation sessions shall be open to the public.

B. Special evaluation sessions may be held at any time during the term of the franchise at the request of the city or the operator.

C. All evaluation sessions shall be open to the public and announced in a newspaper of general circulation or posted in accordance with legal notice requirements of the city.

D. Topics which may be discussed at any scheduled or special evaluation sessions may include, but not be limited to, basic service rate structures; franchise fee; penalties; application of new technologies; system performance; services provided; programming offered; customer complaints; privacy; amendments to the ordinance codified in this chapter; judicial and FCC rulings; line extension policies; and the operator or city rules.

E. Members of the general public may add topics either by submitting through the operator or the city, or by presenting a petition. If such a petition bears the valid signatures of ten or more residents of the city, the proposed topic or topics shall be added to the list of topics to be discussed at the evaluation sessions.

(Ord. 274 § 23, 1998)

In the event any new territory shall become annexed to the city, the operator shall forthwith extend its cable system to all dwelling units within that annexed portion of the city subject to the density provision of subsection 5.08.050C. of this chapter.

(Ord. 274 § 24, 1998)

A. Any franchise offered under this chapter shall not become effective unless and until the ordinance codified in this chapter has become effective and, in addition, unless within thirty days after the effective date of the resolution offering a franchise, the operator shall file with the city clerk its written acceptance, in the form attached by reference to the ordinance codified in this chapter as Exhibit A, of the franchise, together with the insurance policies, bond, and cash deposit or letter of credit required by Sections 5.08.120 and 5.08.130, respectively, such other conditions of the resolution as may be prescribed therein, and its agreement to be bound by and to comply with and to do all things required of him by the provisions of the franchise. Such acceptance and agreement shall be acknowledged by the operator before a notary public and shall in the said form attached hereto as Exhibit A.

B. Should the operator fail, neglect or refuse to file its written acceptance, in said form attached hereto as Exhibit A, together with the insurance policies, bond, and cash deposit or letter of credit required by Sections 5.08.120 and 5.08.130, respectively, within thirty days from the effective date hereof, the operator's occupancy of the public rights-of-way by sufferance shall be terminated and it shall forthwith cease and desist from the operation of its cable system therein.

(Ord. 274 § 25, 1998)

All notices and other writings authorized or deemed to have been given and served when deposited in the United States Mail, by certified mail, return receipt requested, postage prepaid, and addressed, with respect to operator to any office maintained by operator within the county, and with respect to other parties to the last known address of such party.

(Ord. 274 § 26, 1998)

A. It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable system within this city for the purpose of enabling himself or others to receive any cable service, without payment, to the owner of said system.

B. It is unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of cable services.

(Ord. 274 § 27, 1998)

If any section, sentence, clause or phrase of this chapter, other than the franchise fee provisions of Section 5.08.090, is held unconstitutional or otherwise invalid, such infirmity shall not affect the validity of the chapter, and any portions in conflict are repealed provided, however, that in the event that the provisions of Section 5.08.090 are rendered invalid, then such section or equivalent sections shall be renegotiated by the city and the operator so as to provide the city with the benefit of its bargain.

(Ord. 274 § 28, 1998)

The city declares that as a result of this chapter and any franchise granted pursuant hereto, a possessory interest subject to property taxation may be created and any such property interest may be subject to property taxation if it is created. Any operator, as the party in whom the possessory interest, if any, will be vested, may be subject to the payment of property taxes levied upon such an interest.

(Ord. 274 § 30, 1998)