Rocklin Municipal Code Ch. 5.16 Cable Television and Communications Regulation

The city of Rocklin, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive franchises to construct, operate, maintain and reconstruct cable television systems within the city limits.

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).

This chapter shall constitute the "cable television and communications regulatory ordinance" of the city of Rocklin and may be referred to as such.

(Ord. 744 § 2 (part), 1996).

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

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

B. "Cable television system" or "system," also referred to as "cable communications system" or "cable system," means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and any other lawful communications or telecommunications services and which is provided to one or more subscribers within the franchise area, but such term does not include:

1. A facility that serves only to transmit television signals of one or more television broadcast stations;

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

3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

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

C. "Cable service" or "cable television service" means the total of the following:

1. The one-way transmission to subscribers of video programming or other programming service; and

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

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

E. "Council" means the city council of the city of Rocklin.

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

G. "Franchise agreement" means an agreement entered into by city under which a franchise is granted under the authority of this chapter and containing the specific provisions of the franchise granted, including references, specifications, requirements and other related matters.

H. "Franchise fee" means any tax, fee or assessment of any kind imposed by the city on a grantee or its subscribers as compensation for the grantee's use of the public rights-of-way, or solely because of grantee's status as a cable operator. The term "franchise fee" does not include:

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

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

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

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

I. "Grantee" means any person receiving a franchise pursuant to this chapter and under a franchise agreement, and its lawful successor, transferee or assignee.

J. "Grantor" or "city" means the city of Rocklin as represented by the council or any delegate, acting within the scope of its jurisdiction.

K. "Gross annual cable service revenues" means the annual gross revenues received by a grantee from the operation of the cable system to provide cable services, excluding refundable deposits, rebates or credits; bad debt; and any sales, excise or other taxes or charges collected for direct pass-through to local, state or federal governments. Revenues collected as franchise fees from subscribers shall not be included in gross annual cable service revenues pending the final resolution of the franchise fee issue in United Artists Cable of Baltimore, 77 RR 2d 1306 (released April 6, 1995). If the final decision (following all judicial appeals) in this case results in a determination by the FCC or court that franchise fees shall not be excluded from gross annual cable revenues, then grantee agrees to pay the franchise fees owed to the city from the effective date of any franchise granted under this chapter based on such interpretation within ninety days of the final decision.

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

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

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

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

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

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

P. "Section" means any section, subsection or provision of this chapter.

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

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

S. "State" means the state of California.

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

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

(Ord. 744 § 2 (part), 1996).

A franchise granted by the city under the provisions of this chapter shall encompass the following purposes:

A. To engage in the business of providing cable television service, and such other services as may be permitted by law, including but not limited to telephony and data services, which grantee chooses to provide to subscribers within the designated service area.

B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated service area.

C. To maintain and operate said franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable services, and such other services as may be permitted by law, including but not limited to telephony and data services.

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

(Ord. 744 § 2 (part), 1996).

It shall be unlawful for any person to construct, install or operate a cable television system in the city within any public street without a properly granted franchise awarded pursuant to the provisions of this chapter.

(Ord. 744 § 2 (part), 1996).

A. A franchise granted hereunder shall be for a term established in the franchise agreement. The term-shall commence on the grantor's adoption of a resolution granting the franchise; or, if grantor determines to grant a franchise by ordinance, the term shall commence upon the effective date of the ordinance.

B. A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable state and federal law and of this chapter.

(Ord. 744 § 2 (part), 1996).

Any franchise shall be valid within all the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the franchise agreement.

(Ord. 744 § 2 (part), 1996).

This chapter shall be construed in a manner consistent with all applicable federal and state laws, and shall apply to all franchises granted or renewed after the effective date of the ordinance codified in this chapter to the extent permitted by applicable law.

(Ord. 744 § 2 (part), 1996).

A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or any of the rights or privileges therein granted, without the prior written consent of the council and then only upon such terms and conditions as may be prescribed by the council, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of the council shall be null and void. The granting of a security interest in any grantee assets, or any mortgage or other hypothecation, shall not be considered a transfer for the purposes of this section.

B. Except as may be expressly provided otherwise in a franchise agreement, the requirements of subsection (A) shall apply to any change in control of grantee. The word "control" as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In determining whether a change of control will occur by a particular transaction the policies of the Federal Communications Commission defining de jure and de facto control changes in the cable television relay service shall be applicable.

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

D. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, grantor may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist grantor in such inquiry. In seeking grantor's consent to any change of ownership or control, grantee shall have the responsibility of insuring that the grantee and/or the proposed transferee complete an application in accordance with Federal Communications Commission Form 394 or equivalent. An application shall be submitted to grantor not less than one hundred twenty days prior to the proposed date of transfer. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, financial, character, and technical qualifications of the applicant are satisfactory, the grantor shall consent to the transfer of the franchise. The consent of the grantor to such transfer shall not be unreasonably denied or delayed.

E. Any financial institution having a pledge of the grantee or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor shall take control of and operate the cable television system, in the event of a grantee default of its financial obligations. Further, said financial institution shall also submit a plan for such operation within ninety days of assuming such control that will insure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding eighteen months unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee.

F. Upon transfer, grantee shall reimburse grantor for grantor's reasonable processing and review expenses in connection with the transfer of the franchise or of control of the franchise, including without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs and document preparation expenses. Any such reimbursement shall not exceed five thousand dollars and shall not be charged against any franchise fee due to grantor during the term of the franchise.

(Ord. 744 § 2 (part), 1996).

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

B. After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area, service shall be provided within thirty days from the date of request, provided that the grantee is able to secure all rights-of-way necessary to extend service to such subscriber within such thirty day period on reasonable terms and conditions. If the necessary right-of-way cannot be secured within such thirty day period, service shall be provided as soon as reasonably practicable.

(Ord. 744 § 2 (part), 1996).

Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system, as it deems appropriate, subject to applicable state and federal law, provided that if the grantor grants an additional franchise on terms more favorable to the second grantee (whether by the grant of greater benefits or the imposition of lesser obligations), or if another entity utilizing the public rights-of-way offers services competitive with grantee, then the initial grantee's corresponding obligations shall be reduced or modified to establish terms and conditions which are not more burdensome or less favorable than those applied to any other grantee, or other competitive entity referred to above. Either grantor or grantee may, upon written notification to the other, invoke the mediation and arbitration provisions of Sections 5.16.390 and 5.16.400 to resolve disputes between grantor and grantee arising under this section.

(Ord. 744 § 2 (part), 1996).

A. Grantor may grant any number of franchises subject to applicable state or federal law. Grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

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

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

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

B. Developers of new residential subdivisions with underground utilities shall provide conduit to accommodate cables for at least two cable systems and dedicate the use of such conduit to the city.

C. Grantor may require that any new grantee be responsible for acquisition of necessary property rights and/or interest for undergrounding of its facilities, and the costs associated therewith, if, in grantor's opinion, the rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables.

(Ord. 744 § 2 (part), 1996).

Any person desiring an initial franchise for a cable television system shall file an application with the city. A reasonable nonrefundable application fee in the amount established by the city shall accompany the application to cover all costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within thirty days following receipt of an itemized statement of such costs.

(Ord. 744 § 2 (part), 1996).

An application for an initial franchise for cable television system shall contain, where applicable:

A. A statement as to the proposed franchise and service area;

B. Resume of prior history of applicant, including the expertise of applicant in the cable television field;

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

D. List of officers, directors and managing employees of applicant, together with a description of the background of each such person;

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

F. A current financial statement of applicant verified by a certified public accountant audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the city;

G. Proposed construction and service schedule;

H. Any reasonable additional information that the city deems applicable.

(Ord. 744 § 2 (part), 1996).

A. Upon receipt of any application for an initial franchise, the city's manager or a delegate shall prepare a report and make recommendations respecting such application to the city council.

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

(Ord. 744 § 2 (part), 1996).

Franchise renewals shall be in accordance with applicable law. Grantor and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

(Ord. 744 § 2 (part), 1996).

A. Except as otherwise provided in the franchise agreement, grantee shall comply with the consumer protection and service standards of the Federal Communications Commission as set forth in 47 C.F.R. § 76.309.

B. Upon request, grantee shall provide credits or refunds to subscribers whose service has been interrupted for four or more hours. All credits for service shall be issued no later than the customer's next billing cycle following the determination that a credit is warranted. For subscribers terminating service, refunds shall be issued promptly, but no later than thirty days after the return of any grantee-supplied equipment.

C. Subscribers shall be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty days in advance of such changes if the change is within the control of the grantee. In addition, grantee shall notify subscribers thirty days in advance of any significant changes in the information required in 47 C.F.R. § 76.309(i).

(Ord. 744 § 2 (part), 1996).

A. Upon the receipt of written complaints from subscribers indicating the existence of a violation of one or more of the consumer protection and service standards provided for above, the grantor may request the grantee to demonstrate compliance with the specific standard(s) which is the subject of the subscriber complaints. Grantor shall provide grantee a reasonable period of time to demonstrate compliance, which in no event shall be less than thirty days after grantee receives written notice from grantor.

B. A repeated and verifiable pattern of noncompliance with the consumer protection and service standards of Section 5.16.180, after grantee's receipt of due notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

(Ord. 744 § 2 (part), 1996).

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

B. Grantor shall have the right to review grantee's response to subscriber complaints in order to determine grantee's compliance with the franchise requirements, subject to the subscriber's right to privacy.

C. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. If the grantee elects to rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or not to renew the franchise, the grantee shall act so as to ensure that all subscribers receive service so long as the franchise remains in force.

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

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).

Additional consumer protection and service standards and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement or by separate ordinance or resolution of grantor, and grantee shall comply with such standards in the operations of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise.

(Ord. 744 § 2 (part), 1996).

A. Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee on gross annual cable service revenues in the amount and at the times set forth in the franchise agreement. To the extent that grantee provides telecommunications service over the cable system other than cable service, the grantee shall pay to the grantor, in lieu of a franchise fee, compensation for the use of the public right-of-way, as set forth in the franchise agreement and in accordance with applicable law.

B. The grantor, on an annual basis, shall be furnished a statement within sixty days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the grantee, reflecting the total amounts of gross annual cable service revenues, and if applicable, gross annual telecommunications service revenue, and all payments, deductions and, computations for the period covered by the payment. Upon thirty days prior written notice, grantor shall have the right to conduct an independent audit of grantee's records relating to gross annual cable service revenues, and if applicable, gross annual telecommunications service revenue, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of three percent or more, then the grantee shall assume all reasonable costs of such audit, not to exceed ten thousand dollars.

C. Except as otherwise provided by law, no acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.

D. If any franchise payment or recomputed amount is not made on or before the dates specified in the franchise agreement, grantee shall pay as additional compensation:

1. An interest charge, computed from such due date, at an annual rate equal to the prime lending rate of any national bank selected by grantor, plus one percent during the period for which payment was due; and

2. If the payment is late by forty-five days or more, a sum of money equal to those reasonable additional expenses and costs incurred by the grantor by reason of delinquent payment.

E. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

(Ord. 744 § 2 (part), 1996).

A. Grantor may require grantee to provide a security fund, in an amount and form established in the franchise agreement. The amount of the security fund shall be established based on the extent of the grantee's obligations under the terms of the franchise.

B. The security fund shall be available to grantor to satisfy all claims, liens and/or taxes due grantor from grantee which arise by reason of construction, operation, or maintenance of the system, and to satisfy any actual or liquidated damages arising out of a franchise breach, subject to the procedures and amounts designated in the franchise agreement.

C. If the security fund is drawn upon by grantor in accordance with the procedures established in this chapter and the franchise agreement, grantee shall cause the security fund to be replenished to the original amount no later than thirty (30) days after each withdrawal by grantor. Failure to replenish the security fund shall be deemed a material breach of the franchise.

(Ord. 744 § 2 (part), 1996).

A. Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, and other cognizant public agencies.

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

C. In those areas of the city where the grantee's cables are located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and if the facilities of both such public utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee's cost. Notwithstanding the above, if the above ground facilities of the public utilities are placed underground and the cost of such placement is paid for by third parties, other than by utility rate payers generally or by the nondiscriminatory use of public funds, then the grantee shall be entitled to have the underground placement of its facilities paid for by such third parties as well, to the extent allowed by law. Certain of grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above ground enclosures, unless otherwise provided in the franchise agreement.

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

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

2. If any property or improvement of the grantor in the public rights-of-way is disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the right granted to the grantee under this chapter or a franchise agreement, the grantee shall promptly, at the grantee's sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was so disturbed or damaged, and if any such property or improvement shall at any later time become uneven, unsettled or otherwise require restoration, repair or replacement because of such disturbance or damage by the grantee, then the grantee, as soon as reasonably possible, shall, promptly upon receipt of notice from the grantor and at the grantee's sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with grantor's standard specifications then in effect.

3. Prior to commencing any work in the public rights-of-way, the grantee shall obtain, and comply with all conditions of, any and all permits lawfully required by grantor for such work. If emergency work may be required by the grantee, grantee shall obtain any and all such permits as soon as practicable but not later than three working days after the beginning of such emergency work, provided, that grantee shall give grantor prior notice of such emergency work prior to commencement.

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

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

6. The grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such poles, conduits or other fixtures placed in any street shall be so placed as to comply with all rules, regulations and ordinance of the grantor.

7. The grantee may be required by the grantor to permit joint use of its property and appurtenances located in the streets, alleys or other public rights-of-way, by utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rental therefore; provided that in the absence of agreement regarding such joint use, either grantor or grantee, upon written notification to the other, may invoke the mediation and arbitration provisions of Sections 5.16.390 and 5.16.400 to resolve the dispute concerning joint use.

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

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

E. In all newly constructed subdivisions or other property development, grantee shall install in the public right-of-way and on individual lots for home service such facilities as are necessary to serve the new homes or other development, concurrently with the installation of underground utility services. The developer or property owner shall give grantee reasonable written notice of not less than thirty days prior to such construction or development, and forty-eight hours notice, weekends and holidays excluded, of the date on which open trenching will be available for grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided at grantee's expense. Grantee shall not be responsible for any cost of the trenches, whether the trenching is performed by the developer or by a utility. The term "underground" shall include a partial underground system; provided, that upon obtaining the written approval of the city's manager, amplifiers in the grantee's transmission and distribution lines may be placed in appropriate housings upon the surface of the ground.

F. The builder of each new home within the city constructed after the effective date of the ordinance that enacted this section shall prewire each new home with at least two outlets of cable service with materials supplied by the grantee.

(Ord. 744 § 2 (part), 1996).

A. If more than one franchise is awarded, the city reserves the right to limit the number of drop cables per residence, or to require that the drop cable(s) be utilized only by the cable operator selected by the resident to provide service.

B. City may, in its sole discretion, grant an encroachment permit to a cable franchisee applicant to install conduit and/or cable in anticipation of the granting of a franchise. Such installations shall be at the applicant's risk, with no recourse against the city if the pending franchise application is not granted. The city may, in its sole discretion, require an applicant to provide a separate trench for its conduit and/or cable, at the applicant's cost.

(Ord. 744 § 2 (part), 1996).

The grantee shall construct, install, operate and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, and FCC technical standards. In addition, the grantee shall provide to the grantor, upon request, a written report of the results of the grantee's periodic proof of performance tests conducted pursuant to FCC standards and guidelines.

(Ord. 744 § 2 (part), 1996).

A. Grantee shall indemnify, defend and hold grantor, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, in accordance with the terms of the franchise agreement.

B. Grantor shall indemnify, defend and hold grantee, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, in accordance with the terms provided in the franchise agreement.

C. As a condition of any franchise agreement granted under this chapter, grantee shall indemnify, defend, and hold harmless city, its officers, agents and employees, against any and all actions, claims, demands, damages, costs and expenses, including attorney's fees, and other defense costs and liabilities of any nature, that may be asserted by any person or entity (except grantee, its officers, employees, principals and agents), arising out of the application or enforcement of the provisions of this chapter relating to the responsibility for the cost of undergrounding a grantee's facilities under Section 5.16.260(C) and (E).

(Ord. 744 § 2 (part), 1996).

A. Grantee shall maintain in effect throughout the term of a franchise agreement policies of liability, worker's compensation, and property insurance from appropriately qualified insurance companies, as provided below.

1. General Liability. Grantee shall maintain in full force and effect a policy of commercial general liability insurance with limits no less than that specified in the franchise agreement for bodily injury, personal injury, and property damage. If a general aggregate limit is used, either the general aggregate limit shall apply separately to this agreement, or the general aggregate limit shall be twice the required occurrence limit.

2. Worker's Compensation and Employer's Liability. Grantee shall fully comply with the law of California concerning worker's compensation. Said compliance shall include, but not be limited to, maintaining in full force and effect one or more policies of insurance insuring against any liability grantee may have for worker's compensation. Grantee shall also maintain in full force and effect a policy of employer's liability insurance with limits no less than that specified in the franchise agreement.

3. Automobile. Grantee shall maintain in full force and effect a policy of commercial automobile liability insurance with limits no less than that specified in the franchise agreement.

4. Property. Grantee shall maintain in full force and effect a policy of property insurance providing fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations in an amount adequate to enable grantee to resume franchise operations following the occurrence of any risk covered by the insurance.

B. The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions:

1. The city, its officers, employees and volunteers shall be added as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of grantee, and with respect to liability arising out of work or operations performed by or on behalf of the grantee including materials, parts or equipment furnished in connection with such work or operations.

2. For any claims related to work or operations performed by or on behalf of grantee, the grantee's insurance coverage shall be primary insurance as respects the city, its officers, employees, and volunteers. Any insurance or self-insurance maintained by the city, its officers, employees, or volunteers shall be excess of the grantee's insurance and shall not contribute with it.

3. Coverage shall not be cancelled by the insurer except after thirty days prior written notice has been given to the city.

C. The insurance company or companies providing grantee the coverages required by this chapter shall be admitted in the state of California and have a current A.M. Best's rating acceptable to city.

D. Any deductibles or self-insured retentions in the amount of ten thousand dollars or more must be declared to and approved by the city. At the option of city, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the city, its officers, employees and volunteers; or the grantee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

E. The insurance shall be maintained from the time the work first commences until completion of the work and operations under the franchise agreement, and shall provide coverage on an occurrence basis.

F. Grantee shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.

G. Within sixty days of the grant of a franchise, the grantee shall furnish city with fully completed and properly executed certificates of insurance for each type of coverage required. Certificates shall be on forms provided by the city. Grantee shall replace certificates of insurance for policies expiring prior to termination of the franchise agreement.

H. Within sixty days of the grant of a franchise, grantee shall furnish city with endorsements effecting coverage required by this chapter. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements shall be on forms provided by the city or on insurance company issued forms which substantially comply with the city forms.

I. If grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight hours notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect. In order to account for increases in consumer prices but no more frequently than once during any five year period, grantor shall have the right to order grantee to increase the amounts of the insurance provided in the franchise agreement. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks.

(Ord. 744 § 2 (part), 1996).

Within ninety days alter the end of each calendar year, grantee shall file with the grantor, on request:

A. An annual ownership report listing the names and addresses of grantee's principal management personnel and of those parties having a ten percent or greater equity interest in grantee.

B. An annual gross revenues report for the previous fiscal year, prepared in accordance with generally accepted accounting principles applied on a consistent basis, certified by an officer of grantee.

C. Copies of all public filings made with the Federal Communications Commission with respect to the system.

(Ord. 744 § 2 (part), 1996).

A. After reasonable advance notice (seventy-two hours), grantor shall have the right to inspect the nonconfidential records of grantee relating to service within the franchise area.

B. Grantee shall maintain a record of all service calls and interruptions or degradation of service experienced for the preceding two years, provided that such complaints result in or require a service call, and such records shall be available for inspection by grantor, subject to the subscribers' right of privacy.

C. Grantee shall maintain a full and complete set of plans, records and "as-built" maps showing the locations of the cable system cables and equipment installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscribers' homes.

(Ord. 744 § 2 (part), 1996).

Upon request of the grantor, but not more than once in any three year period, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in grantee's invoice for cable services. The results of such survey shall be provided to the grantor on a timely basis.

(Ord. 744 § 2 (part), 1996).

A. Each year throughout the term of the franchise, if requested by the grantor, grantor and grantee shall meet publicly to review system performance and quality of service. The various reports required pursuant to this chapter, results of technical performance tests, the record of subscriber complaints and grantee's response to complaints, and the information acquired in any subscriber surveys, shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty days after the conclusion of a system performance review meeting, grantor may issue findings with respect to the cable system's franchise compliance and quality of service.

B. If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee's franchise, and subject to the limitations of Section 624(e) of the Communications Act (47 U.S.C. § 544(e)), grantor may direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of grantee, after due notice, to correct the areas of noncompliance within the period specified therefor or to commence compliance within such period and diligently achieve compliance thereafter, shall be considered a material breach of the franchise, and grantor may exercise any remedy within the scope of this chapter and the franchise agreement considered appropriate by grantor.

(Ord. 744 § 2 (part), 1996).

The grantor may hold special evaluation sessions at any time during the term of a franchise, provided such sessions are held no more often than once every three years. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions may be open to the public and advertised in a newspaper of general circulation at least thirty days before each session. The sessions may include an evaluation of any items considered relevant to the cable system, the subscribers and the city. Either the grantor or the grantee may propose items for discussion or evaluation.

(Ord. 744 § 2 (part), 1996).

If grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted hereunder, following notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of Section 5.16.380 of this chapter, and subject to the appeal rights under Sections 5.16.390 and 5.16.400, grantor may at its option and in its sole discretion:

A. Cure the violation and recover the actual cost thereof from the security fund established herein if such violation is not cured within thirty days after written notice to the grantee of grantor's intention to cure and draw upon the security fund;

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

C. Revoke the franchise, subject to Section 5.16.370.

(Ord. 744 § 2 (part), 1996).

Grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and a material breach under the franchise grant:

A. If grantee shall default in the performance of its material obligations under this chapter or the franchise agreement and shall continue such default after receipt of due notice and reasonable opportunity to cure the default;

B. If grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required in the franchise agreement;

C. If grantee shall violate any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee's franchise, unless such order or ruling is being contested by grantee by appropriate proceedings conducted in good faith;

D. If grantee practices any fraud or deceit upon grantor;

E. If grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankruptcy.

The termination and forfeiture of the grantee's franchise shall in no way affect any right of grantor to pursue any other remedy under the franchise or any provision of law.

(Ord. 744 § 2 (part), 1996).

Prior to imposing any remedy or other sanction against grantee specified in Section 5.16.360, 5.16.370, or otherwise, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

A. Grantor shall first notify grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall be not less than sixty days. If grantee fails to correct the violation within the time prescribed, or fails to diligently remedy such violation thereafter, the grantor shall then give written notice of not less than twenty days of a public hearing to be held before the city council. Said notice shall specify the violations alleged to have occurred.

B. At the public hearing, the council shall hear and consider all other relevant evidence, and thereafter render findings and its decision.

C. If the council finds that the grantee has corrected the violation, or has diligently commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. In determining whether a violation is material, the council shall take into consideration the reliability of the evidence of the violation; the nature of the violation; the damage (if any) caused to the grantor and/or the public; whether the violation was chronic; and any justifying or mitigating circumstances and such other matters as the council deems appropriate.

(Ord. 744 § 2 (part), 1996).

A. All remedies of grantor under this chapter or the franchise agreement are subject to grantee's right to invoke the mediation and arbitration provisions under this section and Section 5.16.400 and no remedy shall be implemented until the mediation and arbitration process, including any judicial appeals thereof has been concluded, or until the time for invoking such rights provided in this section, or other applicable law has expired.

B. Within ten days of written notification of a finding of violation by grantor, grantee may notify grantor in writing of its intention to invoke mediation procedures. Within fifteen days of such notification, grantor and grantee shall select a mediator to assist in the resolution of the dispute. If the dispute is not resolved through the mediation process within sixty days, grantee may invoke the arbitration procedures under Section 5.16.400 by providing grantor written notice within ten days after the mediation process is terminated. Arbitration shall not be available until mediation has been completed.

(Ord. 744 § 2 (part), 1996).

Any arbitration held pursuant to this chapter shall be conducted as follows:

A. Grantee and the grantor (or such substitute party to the arbitration) each shall, within fifteen days of the decision to proceed to arbitration, appoint one arbitrator experienced in the cable television business, which arbitrators shall mutually select a third arbitrator of similar qualifications.

B. Within thirty days after appointment of all arbitrators and upon fifteen days written notice to the parties to the arbitration, the arbitrators shall commence a hearing on the dispute.

C. The hearing shall be recorded and may be transcribed at the request of either grantor or grantee.

D. At the close of the hearings and within thirty days, the arbitrators shall prepare written findings and serve such decision upon grantor and grantee.

E. Except as provided herein, the arbitration, including petitions for judicial review of the arbitrator's decision, shall be governed by Title 9 (commencing with Section 1280) of the California Code of Civil Procedure.

F. Costs of arbitration, excluding judicial review, shall be shared equally by each party.

(Ord. 744 § 2 (part), 1996).

If grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise agreement is prevented by a cause or event not within grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof, provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by Section 5.16.180(B) pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, fires, and other unforeseen circumstances, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable communications system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(Ord. 744 § 2 (part), 1996).

A. If the use of any property of grantee within the public rights-of-way is discontinued for a continuous period of twelve months, grantee shall be deemed to have abandoned that franchise property. Any part of the cable system that is parallel or redundant to other parts of the system and is intended for use only when needed as a backup for the system or a part thereof, shall not be deemed to have been abandoned because of its lack of use. Grantor shall notify grantee in writing at least ninety days before initiating any abandonment process with respect to grantee's property.

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

C. Upon abandonment of any franchise property in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the grantor, transferring to the grantor the ownership of the franchise property abandoned.

D. At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided herein, in any such case without renewal, extension or transfer, the grantor shall have the right to require grantee to remove, at its own expense, all above ground portions of the cable television system from all streets and public ways within the city within a reasonable period of time, which shall not be less than one hundred eighty days.

E. Notwithstanding anything to the contrary set forth in this chapter or a franchise agreement, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable grantee. Moreover, notwithstanding anything to the contrary in this chapter or a franchise agreement, to the extent that any provider of utility services or any services similar to those provided by the grantee is not required to remove its property or otherwise incur expenses under the circumstances provided for in this section, then grantee shall be relieved of such obligation.

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).

Upon expiration or revocation of the franchise, the grantor shall have the discretion to permit grantee to continue to operate the cable television system for an extended period of time. Grantee shall continue to operate the system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services provided that financial and other obligations to grantee are honored. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transition periods following franchise expiration or termination.

(Ord. 744 § 2 (part), 1996).

A. A franchise granted hereunder shall, at the option of grantor, to the extent consistent with applicable law, including the federal bankruptcy code, cease and terminate one hundred twenty days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty days, or unless: (1) such receivers or trustees shall have, within one hundred twenty days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty days shall have remedied all the defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to the grantor; and (2) such receivers of trustees shall, within said one hundred twenty days, execute an agreement duly approved by the court having jurisdiction in the premises whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise granted.

B. In the case of a foreclosure or other judicial sale of the franchise property, or any material part thereof, grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise granted and all rights and privileges of the grantee hereunder shall cease and terminate thirty days after service of such notice, unless: (1) grantor shall have approved the transfer of the franchise, as and in the manner that this chapter provides; and (2) such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise.

(Ord. 744 § 2 (part), 1996).

In addition to any rights specifically reserved to the grantor by this chapter, the grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under any franchise.

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).

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

(Ord. 744 § 2 (part), 1996).