San Joaquin County Municipal Code Div. 2 Franchises

(a) The Mountain House Community Services District, pursuant to Government Code Sections 53066 and 61601.26, is authorized to grant one or more non-exclusive franchises to construct, operate, maintain, and reconstruct cable television systems within the district limits.

(b) The Board of Directors finds that the development of cable television and cable systems has the potential of having great benefit and impact upon the residents of the Mountain House Community Services District. Because of the complex and rapidly changing technology associated with cable television, the Board of Directors further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers which should be vested in the district and such persons as the district shall 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 finding as an integral part thereof.

(Ord. 4075 § 1 (part), 2000)

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) "Affiliated person" means each person who falls into one or more of the following categories: (i) each person having, directly or indirectly, a controlling interest in the company; (ii) each person in which the company has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, limited partner holding an interest of twenty-five percent (25%) or more, joint venturer or joint venture partner, of the company; and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with, the company; provided that "affiliated person" shall in no event mean the franchising authority, any limited partner holding an interest of less than twenty-five percent (25%) of the company, or any creditor of the company solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, the company.

(b) "Basic cable service" means any service tier which includes the retransmission of local television broadcast signals.

(c) "Cable Act" means Title VI of the Communications Act of 1934, as amended, 47 U.S.C. Sections 521 et seq.

(d) "Cable television system," "system," "CATV 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 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-of way;

(3) A facility of a common carrier which is subject, in whole or in part, to Title II of the 1934 Communications Act, as amended, except that such facility shall be considered a cable system (other than for purposes of Section 621 (c) of the Cable Act (47 U.S.C. 541 (c)) to the extent such a 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 the Cable Act, 47 U.S.C. Section 573; or

(5) Any facilities of any electric utility used solely for operating its electric utility system.

(e) "Cable service" or "service" means the one-way transmission to subscribers of video programming or other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, and shall include Internet service provided over a cable system.

(f) "Channel" or "cable 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 defined by the Federal Communications Commission.

(g) "Board of Directors" means the Board of Directors of the Mountain House Community Services District.

(h) "FCC" means the Federal Communications Commission, its designee, or any successor thereto.

(i) "Franchise" means an initial authorization, or renewal thereof, issued by the Board of Directors, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system within the district.

(j) "Franchise agreement" means a franchise grant or a contractual agreement, containing the specific provisions of the franchise granted, including references, specifications, requirements and other related matters.

(k) "Franchise fee" means any tax, fee or assessment of any kind imposed by the district or other governmental entity on a grantee or cable subscriber, or both, solely because of their status as such. 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.

(l) "Franchise documents" means this chapter and any franchise agreement.

(m) "Grantee" means any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.

(n) "Grantor" or "district" means the Mountain House Community Services District as represented by the Board of Directors or any delegate acting within the scope of its jurisdiction.

(o) "Gross receipts" means, unless otherwise specified in the franchise documents, all revenue generated, directly or indirectly, by the grantee, its affiliates, subsidiaries, parent, and any other person or entity, from or in connection with the distribution of any cable service on the system or the provision of any activity related to cable service in connection with the system, including, without limitation, all amounts billed in a month, and including also, among other things, late fees and other revenues that may be posted in the general ledger as an offset to an expense account and all earned and accrued revenues. "Gross receipts" shall also include the value of any free services provided by the grantee (other than those authorized or required by this agreement or provided at the discretion of the company as a contribution to a charitable or other organization exempt from taxation as an entity described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended) which value of free services shall include, in the case of free cable services, the retail value of all tiers of cable service actually provided. "Gross receipts" shall also include all revenue of any other person, including, without limitation, leased or access channel programmers, which is generated, directly or indirectly, from or in connection with the distribution of any cable service over the system or the provision of any activity related to cable service in connection with the system. "Gross receipts" shall also specifically include: (i) the fair market value of any nonmonetary (i.e., barter) transactions between the grantee and any person, other than an affiliated person, but not less than the customary prices paid in connection with equivalent transactions; (ii) the fair market value of any nonmonetary (i.e., barter) transactions between the company and any affiliated persons but not less than the customary prices paid in connection with equivalent transactions conducted with persons who are not affiliated persons; (iii) revenue which represents or can be attributed to a subscriber fee or a payment for use of the system for the sale of merchandise through any cable service distributed over the system; (iv) franchise fees generated from subscribers; (v) revenue generated from the provision of Internet Access, Internet services, or online services by means of the system and revenue generated from the provision of bandwidth and other facilities or equipment of the system used to provide such access or services; and (vi) any revenue generated by the grantee or by any affiliated person, as reasonably determined from time to time by the district, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the district for the franchise granted pursuant to this chapter. "Gross receipts" shall also include all advertising revenue which is generated directly or indirectly by the company, any affiliated person, or any other person from or in connection with the distribution of any cable service over the system or the provision of any activity related to cable service in connection with the system. Advertising revenues from an affiliated person shall be grossed up as if the grantee had received the advertising revenue directly, if the advertising revenue received from the affiliated person is only net advertising revenue. "Gross receipts" shall not include: (i) the revenue of any person, including, without limitation, a supplier of programming to the grantee, to the extent that said revenue is also included in gross receipts of the grantee; (ii) the revenue of the grantee or any other person which is generated directly from the sale of any merchandise through any cable service distributed over the system (other than that portion of such revenue which represents or can be attributed to a subscriber fee or a payment for the use of the cable system for the sale of such merchandise (such as, for example, the portion of such payment attributable to a commission for the grantee or an affiliated person), which portion shall be included in gross receipts); (iii) taxes imposed by law on subscribers which the grantee is obligated to collect (it being the intent of this chapter that franchise fees under this chapter are not considered taxes); (iv) amounts collected by the grantee from subscribers on behalf of leased or access channel programmers, other than affiliated persons, to the extent that all of the amounts collected (in excess of the amounts deducted pursuant to Section MH-7-2021 of this chapter and paid to the district) are passed on by the grantee to said programmers; (v) any investment income earned by the grantee; (vi) the revenue of any affiliated person which represents standard and reasonable amounts paid by the grantee to said affiliated person for ordinary and necessary business expenses of the grantee, including, without limitation, professional service fees and insurance or bond premiums; (vii) advertising commissions deducted by advertising agencies before advertising revenues are paid over to the grantee; and (viii) bad debt write-offs, provided, however, that bad debt recoveries shall be included to the extent such recoveries are related to sources of revenue included as gross receipts.

(p) "Initial service area" means the area of the district which will receive service initially, as set forth in the franchise agreement.

(q) "Installation" means the connection of the system to subscribers' terminals.

(r) "Institutional network" means the cable or cables, electronics and ancillary equipment for governmental use, educational use, or both, provided pursuant to a franchise agreement.

(s) "Person" means an individual, partnership, association, joint stock company, joint venture, trust, corporation or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the district.

(t) "Public, educational or government access facilities" or "PEG access facilities" means the total of the following:

(1) Channel capacity designated for public, educational, or governmental use; and

(2) Facilities and equipment or the use of such channel capacity;

(u) "Sections" means any section, subsection, or provision of this chapter.

(v) "Service area" or "franchise area" means the geographic area within the district as it is now constituted or may in the future be constituted, unless otherwise specified in the agreement.

(w) "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.

(x) "State" means the State of California.

(y) "Street" means the surface of and the space above and below each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the district 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.

(z) "Subscriber" means any person who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connections with cable system.

(aa) "Telecommunications service" means "telecommunications service" as that term is defined under Section 3 of the Federal Communications Act of 1934, 47 U.S.C. 153(46), except that the term shall not include any institutional network for governmental or educational use as required by a franchise agreement.

(Ord. 4075 § 1 (part), 2000)

(a) A franchise granted by the district under the provisions of this chapter shall encompass the following purposes:

(1) To provide that grantee may engage in the business of providing cable service to subscribers within the designated service area.

(2) To provide that grantee may 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 a cable system in, on, over, under, upon, along, and across streets or other public places within the designated, service area as long as such equipment is maintained in accordance with FCC, PUC, Federal, State, County, and district standards for such equipment.

(3) To provide that grantee may maintain and operate a cable television system for the origination, reception, transmission, amplification, distribution and delivery of cable services.

(4) If required by the franchise, to provide that the grantee provide an institutional network.

(5) To set forth the obligations of a grantee under the franchise.

(b) A franchise granted pursuant to this chapter only authorizes a grantee to provide cable services and, if required by a franchise agreement, an institutional network for use by the district, and does not authorize any other services, including, but not limited to, telecommunications services.

(Ord. 4075 § 1 (part), 2000)

It is unlawful for any person to construct, install, maintain, or operate a cable television system in the district without a properly granted franchise awarded pursuant to the provisions of this chapter.

(Ord. 4075 § 1 (part), 2000)

(a) A franchise granted hereunder shall be for a term established in the franchise agreement, but in no case longer than fifteen (15) years, commencing on the grantor's adoption of an ordinance or resolution authorizing the franchise. The first day of the term shall from time to time be referred to as the "effective date" of the franchise.

(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. Nothing in this chapter shall be interpreted to require the renewal of a franchise.

(Ord. 4075 § 1 (part), 2000)

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

(Ord. 4075 § 1 (part), 2000)

(a) This chapter shall not be construed in a manner prohibited by applicable Federal and State laws. Federal and State law, and any modification of such Federal or State law, shall to the extent applicable be considered part of this chapter as of the effective date of this chapter or the effective date of any modification of such Federal or State law.

(b) In the event that the State or Federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit the district's authority, grantor may, if it so elects, adopt rules and regulations in these areas.

(c) This chapter shall apply to all franchises granted or renewed after the effective date of this chapter. It shall further apply to the extent permitted by applicable Federal or State law to all existing franchises granted prior to the effective date of this chapter.

(Ord. 4075 § 1 (part), 2000)

(A) Grantee, or any person holding control of or any interest in the grantee, a, system or a franchise, shall not sell, transfer, lease, assign, sublet, pledge, 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, the system, any guaranty of the performance of the grantee's obligations pursuant to the franchise, any part of the capacity of the system, or any title, either legal or equitable, in the franchise or system without the prior consent of the district and then only upon such terms and conditions as may be prescribed by the district, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise or the system without the consent of the district 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) The requirements of Subsection (a) of this section shall apply to any change in the control of grantee, a franchise or a system. The word "control" as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. A rebuttable presumption of the existence of a change in control of the system, the grantee or the franchise shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of five percent (5%) or more of the grantee or the system or the franchise. "Control" as used herein may be held simultaneously by more than one person or group of persons.

(c) Grantee shall notify grantor in writing of any pending foreclosure or any other pending 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 notifications shall be considered by grantor as notice of a pending change in control of ownership of the franchise and the provisions under this section governing the consent of grantor to such change in control ownership shall apply.

(d) For the purpose of determining whether it shall consent to any assignment, transfer, change in control, or other transaction subject to Subsections (a) and (b) of this section, grantor may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist grantor in any such inquiry. In seeking grantor's consent to any change of ownership or control, grantee shall have the responsibility of insuring that the transferee completes an application in the form and substance reasonably satisfactory to grantor, which application shall include information required for a franchise application pursuant to this chapter. An application shall be submitted to grantor not less than one hundred twenty (120) days prior to the 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, after considering the legal, financial, character, technical and other public interest qualities of the applicant and determining that they are satisfactory, the grantor finds that such transfer or change of control is acceptable, the grantor shall transfer and assign the rights and obligations of such franchise as may be in the public interest. The consent of the grantor to such assignment, transfer or change in control shall not be unreasonably withheld.

(e) The time period under Section 617 of the Cable Act, 47 U.S.C. Section 537, for the district to review a request for a transfer or assignment subject to this section shall not commence until the grantee has submitted the FCC Form 394 and such information it is required to submit pursuant to this section and the franchise agreement.

(f) To the extent not prohibited by law, a reasonable non-refundable transfer fee established by the district shall accompany the application for an assignment or transfer 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 application, 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 fee, the applicant shall pay the difference to the district within thirty (30) days following receipt of an itemized statement of such costs.

(g) Subject to the district's rights under this chapter and the franchise documents, 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 cable system 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 accordance with the terms of this chapter and the franchise documents, in the event of a grantee defaulting in its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty (30) days of assuming such control that will insure continued service and compliance with this chapter and 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 one (1) year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor, in accordance with the requirements of this section, to transfer the franchise to a person acceptable to the grantor.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall design, construct and maintain the cable television system to have the capability to pass every parcel in the district, subject to any service area line extension requirements of the franchise documents.

(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 within seven (7) days from the request, provided that the grantee is able to secure all rights-of-way and encroachment permits necessary to extend service to such subscriber within such seven (7) day period on reasonable terms and conditions mutually acceptable to grantee and such subscriber.

(c) No person or entity in the existing service area of the grantee shall be arbitrarily refused service; provided, however, that grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge or any other charges as provided in this chapter or any resolution granting the franchise. Grantee shall assure that access to cable services is not denied to any group of potential residential cable subscribers because of the income of the residents in the area where the group resides.

(Ord. 4075 § 1 (part), 2000)

Any franchise granted shall be non-exclusive. The grantor specifically reserves the right to itself provide cable service or to operate a cable television system or any component thereof, or grant, at any time, such additional franchises for a cable television system or any component thereof, as it deems appropriate, subject to applicable State and Federal law.

(Ord. 4075 § 1 (part), 2000)

(a) Grantor may grant any number of franchises in the service area. 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 coaxial cables in addition to the cables, conduits and pipes of the utility systems, such as electrical power, telephone, gas and sewerage; and

(2) 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) Each grantee awarded a franchise to serve the entire district shall offer service to all parcels in the district, in accordance with construction and service schedules mutually agreed upon between grantor and grantee, and consistent with applicable law. Grantor shall give grantee a reasonable period of time for grantee's cable system to become capable of providing cable service to all households in the service area.

(c) Grantor may require that any new grantee be responsible for its own underground trenching and the costs associated therewith, if, in grantor's opinion, the rights-of-way in any particular area cannot feasibly accommodate additional cables.

(Ord. 4075 § 1 (part), 2000)

Any person desiring a franchise for a cable television system shall file an application with the district. A reasonable non-refundable application fee established by the district shall accompany the application to cover all costs associated with processing, reviewing and acting on 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, an applicant shall pay the difference to the district within thirty (30) days following receipt of an itemized statement of such costs. It shall be the responsibility of each applicant for a franchise to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the district and any Federal, State or local governmental authority having jurisdiction.

(Ord. 4075 § 1 (part), 2000)

(a) An application for a franchise for a cable television system shall contain, where applicable:

(1) A statement as to the proposed franchise and service area;

(2) Statement or schedule of cable services and the proposed rates and charges to subscribers for installation and services, and a copy of the proposed service agreement between the grantee and its subscribers;

(3) Resume of prior history of applicant, including the expertise (including, but not limited to, the technical expertise) of the applicant in the cable television field;

(4) The names, residence, and business addresses of partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder holding five (5) percent or more of the voting rights, if a corporation;

(5) The name, residence, and business addresses of officers, directors and managing employees of applicant, together with a description of the background of each such person;

(6) The name and address of the applicant and 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;

(7) A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person who is a party in interest with respect to the proposed franchise or the proposed cable television system (if a franchise is granted to a person posing as a front or as the representative of another person, and that information is not disclosed in the original application, the franchise shall be deemed void and of no force and effect);

(8) A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year immediately preceding the date of the application, and (i) a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the district, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in the district, or (ii) a statement from an independent certified public accountant certifying that the applicant has available sufficient free, net, and uncommitted cash resources to construct and operate the proposed cable system in the district;

(9) A detailed financial plan (pro forma) describing for each year of the franchise, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and a sources and uses of funds statement;

(10) A statement identifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such franchised cable system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;

(11) Proposed construction and service schedule;

(12) A description of the manner in which the applicant proposes to construct, install, maintain and operate the cable television system and the extent and manner in which existing and/or future facilities and/or public utilities will be used for the system;

(13) A description of the equipment and facilities proposed to be constructed, installed or maintained therein and the proposed location thereof, which description shall include, among other things, (i) a detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be serviced; and (ii) a detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant;

(14) A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise;

(15) A copy of any agreement covering the franchise area, if existing between the applicant and any utility providing for the use of any facilities of the utility, including but not limited to, poles, lines, or conduits; and

(16) Any reasonable additional information that the district deems applicable. The Board of Directors may, at any time, demand, and the applicant shall then provide, such supplementary, additional or other information as the Board of Directors deemed reasonably necessary to determine whether the requested franchise should be granted. The application may be amended with the consent of the Board of Directors at any time prior to granting the franchise.

(b) In the event that the applicant fails to submit an application which contains the items specified in this section, at the time of submission to the Mountain House Community Services District, the applicant shall be so notified in writing by the Mountain House Community Services District within forty-five (45) days of receipt of the application by the district. The applicant has the option, upon such notification by the Mountain House Community Services District, to either request that the application be set for public hearing before the Board in its incomplete form or shall have one (1) year to correct any incompleteness. If the applicant neither requests a public hearing nor supplies an application containing the requirements specified in this section, within one (1) year of the notification of incompleteness, the application will be considered lapsed and closed. The applicant is not precluded from submitting a new application at any time, upon payment of a new application fee. Any new application shall be complete of itself without reference to any other prior application which has lapsed.

(Ord. 4075 § 1 (part), 2000)

(a) The district may make such investigations and take or authorize the taking of such other steps as the Board deems necessary or appropriate to consider and act on applications for franchises and determine whether a franchise should be granted to an applicant, and may require the applicant to furnish additional information and data for this purpose. In considering applications, the Board may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the Board, which may include recommendations with respect to such applications.

(b) The Board may authorize negotiations between district officials and applicants to determine whether the district and such applicants are able to reach agreement on the terms of the proposed franchise. The authorization of such negotiations shall not in any manner obligate the Board to grant a franchise.

(c) Upon receipt and review of any application for a franchise and after any negotiations authorized by the Board, the District Manager shall prepare a report and make recommendations respecting such application to the Board of Directors.

(d) A public hearing shall be set prior to any franchise grant, at a time and date approved by the Board. Within thirty (30) days after the close of the hearing, the Board 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.

(e) Upon consideration of any application, the Board may refuse to grant the requested franchise, except that the Board may not unreasonably refuse to award an additional competitive franchise, or the Board may by resolution grant a franchise for a CATV system to any applicant as may appear from its application to be in the opinion of the Board qualified to render good and efficient CATV service to subscribers in the proposed franchise area. The application submitted, together with any amendments, and this chapter shall constitute and form part of the franchise if granted.

(f) A franchise for a CATV system shall only be awarded to an applicant following full consideration by the Board of the applicant's legal, character, financial, technical and other qualifications, applicant's experience, the adequacy and feasibility of construction arrangements, and any other consideration that will safeguard the public interest, such as, but not limited to: (i) the adequacy of proposed compensation to be paid to the district, including the value of any facilities and services offered by the applicant to the district; (ii) the ability of the applicant to maintain the property of the district in good condition throughout the term of the franchise; (iii) the value and efficiency to the district and its residents of cable services to be provided, including the type and diversity of cable services to be provided, as well as alternatives to those services and services that may be precluded by the grant of this franchise; and (iv) the willingness and ability of the applicant to meet construction and physical requirements and to abide by all purpose and policy conditions, limitations and requirements with respect to the franchise. The district reserves the right to waive any or all requirements under this section when it determines that the best interests of the district may be served thereby and such is not prohibited by applicable law and may, if it so desires, request new or additional proposals.

(g) Within thirty (30) days after the date of a Board resolution awarding a franchise, or within such extended period of time as the Board may authorize, which authorization shall not be unreasonably withheld, the grantee shall file with the Mountain House Community Services District Administrator its written acceptance in forms satisfactory to the Mountain House Community Services District Counsel, of the franchise, together with the required bond and insurance policies, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this chapter and the franchise. The acceptance and agreement shall be acknowledged by the grantee before a notary public and shall be in form and content satisfactory to, and approved by, the Mountain House Community Services District Counsel. In the event the grantee does not meet the deadlines provided in this section the grantee's application and award of a franchise will be considered automatically expired.

(Ord. 4075 § 1 (part), 2000)

(a) Any franchise granted pursuant to this chapter shall include, among other things, the following condition:

The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by Ordinance of the Mountain House Community Services District of San Joaquin and no other purpose whatsoever, including, but not limited to, the provision of telecommunications services, as that term is defined by the Mountain House Community Services District Cable Television franchise Ordinance.

(b) Inclusion of the foregoing statement in any franchise shall not be deemed to limit the authority of the Mountain House Community Services District to include any other reasonable term, condition, limitation or restriction which it may impose in connection with a franchise granted pursuant to the authority conferred by this chapter. Such terms, conditions, limitations or restrictions may address, without limitation, the following subjects:

(1) The term of the franchise;

(2) The franchise area and the cable services which are the subject of the franchise;

(3) The compensation to be paid to the district, which may include the payment of fees or the provision of facilities or services, or both;

(4) The circumstances upon which the franchise may be terminated or cancelled;

(5) The mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the grantee's obligations under the franchise;

(6) The district's right to inspect the facilities and records of the grantee;

(7) Insurance and indemnification requirements applicable to the grantee;

(8) The obligation of the grantee to maintain complete and accurate books of account and records, and the district's inspection rights with respect thereto;

(9) Provisions to ensure quality workmanship and construction methods;

(10) Provisions to ensure that the grantee will comply with all applicable district, State and Federal laws, regulations, rules and policies, including, without limitation, those related to employment, purchasing and investigations;

(11) Provisions to ensure adequate oversight and regulation of the grantee by the district;

(12) Provisions to restrict the assignment or other transfer of the franchise without the prior written consent of the district;

(13) Remedies available to the district to protect the district's interest in the event of the grantee's failure to comply with terms and conditions of the franchise;

(14) Provisions to ensure that the grantee will obtain all necessary licenses and permits from, and comply with, all laws, regulations, rules and policies of any governmental body having jurisdiction over the grantee, including, but not limited to, the Federal Communications Commission;

(15) Provisions to ensure that the grantee will protect the property of the district and the delivery of public services from damage or interruption of operations resulting from the construction, operation, maintenance, repair or removal of improvements related to the franchise;

(16) Provisions designed to minimize the extent to which the public use of the streets of the district are disrupted in connection with the construction of improvements relating to the franchise; and

(17) Such other provisions as the district determines are necessary or appropriate in furtherance of the public interest.

(Ord. 4075 § 1 (part), 2000)

Franchise renewals shall be in accordance with applicable law, including, but not necessarily limited to, Section 626 of the Cable Communications Policy Act of 1984, (47 U.S.C. 546) as amended. Grantor and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. Nothing in this section shall be interpreted to create a presumption of renewal. To the extent not prohibited by law, a reasonable non-refundable renewal fee established by the district shall accompany the request for renewal to cover all costs associated with processing and reviewing the request, including without limitation, costs of administrative review, financial, legal and technical evaluation of the request, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the request and document preparation expenses. In the event such costs exceed the renewal fee, the applicant shall pay the difference to the district within thirty (30) days following receipt of an itemized statement of such costs.

(Ord. 4075 § 1 (part), 2000)

(a) Except as otherwise provided in the franchise agreement, grantee shall maintain an office within, or within three (3) miles to, the Mountain House Community Services District to provide the necessary facilities, equipment and personnel to comply with the following consumer protection and standards under normal conditions of operation:

(1) Sufficient telephone line capacity during normal business hours to assure that a minimum of ninety-five percent (95%) of all calls will be answered before the fourth ring.

(2) Emergency toll-free telephone capacity on a twenty-four (24) hour basis, including weekends and holidays;

(3) An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunction on a twenty-four (24) hour per day basis;

(4) An installation staff, capable of installing service to any subscriber within seven (7) days after receipt of request, in all areas where trunk and feeder cable have been activated; and

(5) Grantee shall schedule, within a specified four (4) hour time period, all appointments with subscribers for installation or service.

(b) Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system, preferably between midnight and 6:00 a.m.

(c) Grantee shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, for all service interruptions and requests for cable service that result in a service call.

(d) The grantee shall maintain a repair force of technicians generally capable of responding to subscriber requests for service within the following time frames:

(1) For a System Outage. Within two (2) hours, including weekends, of receiving subscriber calls or request for service which by number identify a system outage of sound or picture of one (1) or more channels, affecting at least ten percent (10%) of the subscribers of the system.

(2) For an isolated outage. Within twenty-four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture of one or more channels.

(3) For Inferior Signal Quality. Within forty-eight (48) hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality.

Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, the technician shall leave written notification of arrival. Three (3) successive subscriber failures to be present at an appointed time shall excuse grantee of duty to respond.

No charge shall be made to the subscriber for any service call unless the service request can be demonstrated to be unrelated to the portions of the cable system owned by grantee or to involve subscriber negligence or damage to grantee's property by the subscriber.

(e) Unless excused, grantee shall determine the nature of the problem within forty-eight (48) hours of beginning work and resolve all cable system related problems within five (5) business days unless technically unfeasible.

(f) Upon five (5) days' notice, grantee shall establish its compliance with any or all of the standards required above. Grantee shall provide sufficient documentation to permit grantor to verify the compliance.

(g) A repeated and verifiable pattern of material non-compliance with the consumer protection standards of Subsections (a) through (e) of this section, after grantee's receipt of due notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

(h) Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without the 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.

(i) Grantor may determine, upon review of a subscriber complaint and the grantee's decision, if any, whether further action is warranted.

(j) The grantor may establish an escrow account wherein a subscriber may deposit a disputed portion of the subscriber's monthly service charge. If a subscriber either continues to make full and timely payment of all monthly service charges grantee or deposit any disputed portion of such monthly service charges into said escrow account, grantee shall not discontinue service during the pendency of complaint submitted under the provisions of this chapter. Any amount deposited in the escrow account shall be paid to the grantee or subscriber in accordance with a final determination of a complaint.

(k) It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that 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.

(l) In the event of a change 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.

(m) In the event grantee fails to operate the system for seven (7) consecutive days without prior approval or subsequent excusal of the grantor, the grantor may, at its 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 reimburse the grantor for all reasonable costs or damages in excess of the revenues collected by the grantor that are the result of the grantee's failure to perform.

(n) All officers, agents, or employees of the grantee or its contractors or subcontractors who in the normal course of work require entry onto subscribers' premises shall carry a photo-identification card in a form approved by grantor. Grantor shall account for all identification cards at all times. Every vehicle of the grantee utilized for field maintenance shall be clearly identified as working for grantee. All such identification shall be returned on termination of service or permanently defaced on sale of vehicle.

(o) The grantee shall comply with the customer service standards enacted by the state that may be more stringent than, or address matters not addressed by, the standards set forth in this chapter and a franchise agreement, which such standards include, but are not limited to, those set forth in Sections 53066 et seq., 53054 et seq., and 53088 et seq. of the California Government Code, and Section 1722 of the California Civil Code.

(p) The grantee shall comply with the customer service standards adopted by the Federal Communications Commission, 47 C.F.R. Section 76.309, as may be amended from time to time. In the event of a conflict between the standards in this chapter or the franchise agreement and the FCC customer service standards, the more stringent standard shall apply.

(q) The grantor may establish in the franchise agreement provisions requiring the grantee to provide public, educational, and governmental access channels, facilities, equipment and support, and institutional network facilities, equipment and support.

(Ord. 4075 § 1 (part), 2000)

(a) Before the grantee provides service to any subscriber, the grantee shall obtain a signed contract from the subscriber containing a provision substantially as follows:

Subscriber understands that in providing cable service (Grantee) is making use of public rights-of-way within the Mountain House Community Services District and that the continued use of these public rights-of-way is in no way guaranteed. In the event continued use of such rights-of way is denied to (Grantee) for any reason, (Grantee) will make every reasonable effort to provide service over alternate routes. Subscriber agrees that Subscriber will make no claim nor undertake any action against the Mountain House Community Services District, its officers, its employees, or (Grantee) if the service to be provided by (Grantee) hereunder is interrupted or discontinued or the continued use of such rights-of-way is denied to (Grantee) for any reason.

(b) The form of the grantee's contract with its subscribers is subject to approval of the Board with respect to the inclusion of this provision.

(Ord. 4075 § 1 (part), 2000)

No grantee shall remove or offer to remove any potential or existing subscriber's antenna, or provide any inducement for removal as a condition respecting the provision of service.

(Ord. 4075 § 1 (part), 2000)

Additional service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter or that exceed the standards set forth in this chapter may be established in the franchise agreement, and the grantee shall comply with such standards in the operation of the cable system. A material noncompliance of such standards may be deemed a material breach of the franchise.

(Ord. 4075 § 1 (part), 2000)

A grantee's cable television system which is not subject to effective competition, as defined by Federal regulations regarding cable television system rate regulation, may seek to establish or increase its rates for the provision of basic cable service and related equipment and installations by the following procedure, except as otherwise expressly permitted by applicable Federal law or regulation:

(a) The grantee must give notice to the Mountain House Community Services District of the desire to establish or increase rates by filing the applicable FCC rate form;

(b) The district will give notice of the proposal to the public pursuant to notice provisions in this chapter;

(c) The district shall provide a reasonable opportunity for consideration of the views of interested parties and the public, which views shall be considered by the Board of Directors; and

(d) The Board of Directors shall make a written order containing a statement and summary explanation of its decision on the rate matter, and shall act and adopt such order in a manner consistent with the rate regulations prescribed by the FCC for the regulation of the basic service tier and related equipment and installations.

(Ord. 4075 § 1 (part), 2000)

(a) Following the issuance and acceptance of the franchise, grantee shall pay to the grantor a franchise fee in the amount of five percent (5%) of gross receipts derived during each year of the franchise, or such other amount as may be set forth in the franchise agreement.

(b) The grantor, on an annual basis, shall be furnished a statement within sixty (60) days of the close of the calendar year, either audited or certified by an independent certified public accountant or such other person as permitted by the franchise agreement, reflecting the total amounts of gross receipts and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days prior written notice, grantor shall have the right to conduct an independent audit of grantee's records for the three (3) year period immediately preceding said notice, and if such audit indicates a franchise fee underpayment of two percent (2%) or more, the grantee shall assume all reasonable costs of such an audit.

(c) 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) The franchise fee payments shall be in addition to and shall not constitute an offset or credit against any and all taxes or other fees or charges which the grantee or any affiliated person shall be required to pay to the district, or to any State or Federal agency or authority, as required herein or by law. The payment of said taxes, fees or charges shall not constitute a credit or offset against the franchise fee payments, all of which shall be separate and distinct obligations of the grantee and each affiliated person.

(e) Consistent with Section 622 of the Cable Act, 47 U.S.C. Section 542, the district intends to impose a fee equal to five percent (5%) of the gross receipts, or such other percentage of gross receipts as may be established by the district, of any person, such as, but not limited to, a leased access user, that distributes any service over the system. If the grantee collects revenues for said person, then the grantee shall collect said five percent (5%) fee or such other amount as established by the district on the gross receipts of said person and shall pay said amounts to the distinct along with the district's franchise fee payments. If the grantee does not collect the revenues for a person that distributes any service over the system, then the company shall notify said person of this fee requirement and shall notify the district of such use of the system by such person.

(f) In the event that 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 average rate of return on invested funds of the grantor during the period for which payment was due, or such other interest rate that may be set forth in the franchise agreement; and

(2) If the payment is late for forty-five (45) days or more, a sum of money equal to five percent (5%) of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.

(3) Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

(Ord. 4075 § 1 (part), 2000)

No franchise issued pursuant to the provisions of this chapter shall be deemed to expressly or implicitly authorize the grantee to:

(a) Enter on, occupy or otherwise utilize private property without the express consent of the owner or agent in possession thereof;

(b) Utilize poles owned by any private or public utility which are located within the streets or easements, without the express consent of the district and the utility.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall not construct any cable system facilities until grantee has secured necessary permits from grantor, and other applicable public agencies.

(b) Unless otherwise allowed by the district, grantee shall construct, operate and maintain its transmission and distribution facilities underground. Amplifiers and power supplies in grantee's transmission and distribution lines may be placed in appropriate housings upon the surface of the ground, if existing technology requires, but shall be of such size, location and design as approved by the district, and shall be so located as not to be unsightly or unsafe. The district shall not in any manner be responsible for any costs or liabilities incurred by grantee in placing grantee's facilities underground or obtaining any easements therefor.

(c) The following procedure shall apply with respect to access to and utilization of underground easements:

(1) The developer shall be responsible for contacting and surveying all franchised cable operators to ascertain which operators desire to provide cable service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final map shall indicate the cable operators that have agreed to serve the development.

(2) If one (1) or two (2) cable operators wish to provide service, they shall be accommodated in the joint utilities trench and/or conduit on a nondiscriminatory basis.

(3) Cost of trenching, installing conduit and aerial lines and obtaining easements shall be the responsibility of the property owner.

(4) The developer shall provide at least ten (10) working days' notice of the date that utility trenches and/or conduit will be open to the cable operators that have agreed to serve the development. When the trenches and/or conduits are open, cable operators shall have two (2) working days to begin the installation of their cables and five (5) working days after beginning installation to complete installation.

(A) The final development map shall not be approved until the developer submits evidence that:

(B) It has notified each grantee that underground utility trenches and/or conduits are to open as of an estimated date, and that each grantee will be allowed access to such trenches and/or conduits, including trenches and/or conduits from proposed streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and

(5) It has received a written notification from each grantee that the grantee intends to install its facilities during the open trench and/or conduit period on the specified terms and conditions, or such other terms and conditions as are mutually acceptable to the developer and grantee, or has received no reply from a grantee within ten (10) days after its notification to such grantee, in which case the grantee will be deemed to have waived its opportunity to install its facilities during the open trench and/or conduit period.

(6) Sharing the joint utilities trench and/or conduit shall be subject to compliance with Public Utilities Commission and utility standards. If such compliance is not possible, the developer shall provide a separate trench and/or conduit for the cable television cables. With the concurrence of the developer, the affected utilities and the cable operators, alternative installation procedures, such as use of deeper trenches and/or conduits, may be utilized, subject to applicable law.

(7) If a developer has complied with the terms of this chapter, then any cable operator wishing to serve an area where the trenches and/or conduits have been closed shall be responsible for its own trenching and/or laying of conduit and associated costs.

(8) In the event that more than one franchise is awarded, the district reserves the right to limit the number of drop cables and/or pedestals per residence.

(9) The district reserves the right to grant an encroachment permit to a cable franchise 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 district in the event the pending franchise application is not granted. The district may require an applicant to provide a separate trench for its conduit and/or cable, at the applicant's cost. The construction of such a separate trench, if provided, shall be coordinated with, and subject to, the developer's overall construction schedule.

(Ord. 4075 § 1 (part), 2000)

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 enacted by the County or the district shall be fully applicable to the exercise of the franchise issued pursuant to this chapter, and the grantee shall comply therewith.

(Ord. 4075 § 1 (part), 2000)

The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the grantee when required by the district by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as provided in this chapter.

(Ord. 4075 § 1 (part), 2000)

(a) The grantee shall provide cable service to any person located in the service area requesting service, and grantee shall construct its distribution cable throughout the franchise area in accordance with the terms of the franchise agreement.

(b) The grantee shall provide connection to its service at no charge for the initial one hundred fifty (150) feet of line, other than the grantee's standard installation fee. The grantee may charge any new subscriber for the grantee's actual cost for the entire length of any new service connection to remote or relatively inaccessible subscribers. Prior to installing any service connection for which the grantee will charge a potential subscriber on a costs basis, the grantee must present the prospective subscriber with a written statement of its estimated costs for the service connection.

(c) Nothing in this section shall be interpreted to waive a grantee's obligation to provide service to any person requesting cable service in the franchise area.

(d) Nothing in this section shall be interpreted to permit the grantee to charge for installations at a rate that is higher than permitted by applicable law or regulation, or to permit the district to establish rates for such installations in a manner prohibited by federal rate regulation.

(Ord. 4075 § 1 (part), 2000)

The grantee shall be required to extend energized trunk cable from any existing terminus of the cable system to any area within the franchise area, except as may otherwise be permitted by the franchise agreement. Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required for the extension of such trunk cable, including any utility joint use agreements and any permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of the cable system. Within thirty (30) days following completion of such line extension construction, the grantee shall proceed to render service provided, however, that any such subscriber requesting service from the extension of the energized trunk cable shall be subject to the provisions of Section MH-7-2017 of this chapter.

(Ord. 4075 § 1 (part), 2000)

(a) The grantee shall construct, install, operate and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, any detailed standards set forth in its franchise agreement, and any other applicable standards, including but not limited to the National Electrical Safety Code (National Bureau of Standards), National Electrical Code (National Bureau of Fire Underwriters), California Public Utilities Commission General Orders 95, 112-d and 128 or any subsequent revisions thereof.

(b) 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 test conducted pursuant to FCC and franchise standards and guidelines. Failure to maintain specified technical standards shall constitute a material breach of the franchise.

(c) In any event the cable television system shall not endanger or interfere with the safety of persons or property within the district.

(d) All working facilities, conditions and procedures, used or occurring during construction shall comply with the standards of the Occupational Safety and Health Administration.

(e) Construction, installation and maintenance of the cable television system shall be performed in an orderly and professional manner, and in close coordination with public and private utilities serving the district following accepted construction procedures and practices and working through existing committees and organizations.

(f) All cable and wires shall be installed, where possible, parallel with electrical and telephone lines, and multiple cable configurations of a grantee shall be arranged in parallel and bundled with due respect for engineering considerations.

(g) Any antenna structure used in the cable television system shall comply with placement, construction, marking and lighting of antennae structures, required by the U.S. Department of Transportation and any other applicable federal, state, or local regulations. A zoning permit for free standing antennas shall be obtained in advance from the proper authority, in accordance with applicable laws, regulations, and ordinances.

(h) RF leakage shall be in compliance with FCC regulations.

(Ord. 4075 § 1 (part), 2000)

With the district's reasonable cooperation, grantee shall, without charge to grantor, within six (6) months of the effective date of any franchise hereunder, fully wire and install to one (1) outlet, and provide all legally and contractually allowable cable services of its system and equipment used to receive such cable services, to all public and nonprofit private schools, district police and fire stations, district recreation centers, library, district hall, and such other buildings owned or controlled by the district, all without charge to such users, provided that such buildings shall be located within the franchise area. Grantee shall have no obligation to provide such service to buildings owned or controlled by the district if the primary purpose for such buildings is to house equipment, store records or provide residential housing.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall indemnify, defend and hold grantor, its elected officials, officers, agents, independent contractors, consultants and employees harmless from any liability, claims, damages, costs or expenses, including reasonable attorney's fees, arising from injury to persons or damages to property to the extent caused by any conduct undertaken by the grantee, its officers, agents or employees, by reason of the franchise, including but not limited to those:

(1) Arising out of or alleged to arise out of any claim for damages by the grantee for invasion of the right of privacy, defamation of any person, form or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, form or corporation; and

(2) Arising out of or alleged to arise out of grantee's failure to comply with the provisions of any statute, regulation, or ordinance of the United States, the State of California, or any local agency applicable to the grantee in its business.

(b) Grantee shall at its sole cost and expense, upon demand of grantor, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting grantor, its elected officials, officers, agents, independent contractors, consultants or employees, and arising out of or pertaining to the granting of the franchise to the grantee and/or any conduct of the grantee, its agents or employees which is within the scope of this indemnity.

(c) Nothing in this section shall be deemed to prevent the parties indemnified and held harmless herein from participating in the defense of any litigation by their counsel without cost to grantee. Such participation shall not under any circumstances relieve grantee from its duty of paying any judgment entered against such party.

(Ord. 4075 § 1 (part), 2000)

(a) On or before commencement of franchise operations, the grantee shall obtain policies of liability, including comprehensive general liability insurance, products/completed operations liability, personal injury liability, automobile liability (owned, non-owned, and hired automobiles), workers' compensation and employer's liability insurance and property insurance from companies authorized to transact business in California by the Insurance Commissioner of California.

(b) The policy of liability insurance shall:

(1) Be issued to grantee and name grantor, its elected officials, officers, agents and employees as additional insureds;

(2) Insure against the types of liabilities covered in the indemnification and hold harmless provisions of this chapter including against all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter, negligent acts or omissions of grantee and its agents, servant and employees, committed in the conduct of franchise operations.

(3) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement. Such insurance policy shall be subject to the review and approval of grantor's legal counsel; and

(4) Be noncancellable without thirty (30) days prior written notice thereof directed to grantor.

(c) The policy of workers' compensation insurance shall:

(1) Have been previously approved as to substance and form by the California Insurance Commissioner;

(2) Cover all employees of grantee who in the course and scope of their employment are to conduct the franchise operations;

(3) Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the State upon an injured employee, including vocational rehabilitation and death benefits; and

(4) Waive all rights of subrogation against the grantor, its officers, officials, employees, and volunteers for losses paid under the terms of the policy which arises from work performed by the named insured for the grantor.

(d) The policy of property insurance shall provide 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 this insurance.

(e) Grantee shall file with grantor prior to commencement of franchise operations the required endorsements and either certified copies of these insurance policies or a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy;

(1) The policy number;

(2) The date upon which the policy will become effective and the date upon which it will expire;

(3) The names of the named insureds and any additional insured required by this chapter or the franchise agreement;

(4) The subject of the insurance;

(5) The type of coverage provided by the insurance; and

(6) Amount or limit of coverage provided by the insurance.

(f) Conduct of franchise operations shall not commence until grantee has complied with aforementioned provisions of this section.

(g) The policies of insurance shall be maintained in full force and effect during the entire term of the franchise. In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight (48) 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, upon forty-eight (48) hours notice to grantee, to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect.

(h) No more than once during any three (3) year period, grantor shall have the right to order grantee to increase the amounts of the insurance coverage provided herein. Such order may be made by grantor after complying with the hearing procedure provided for in Section MH-7-2040 of this chapter. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks.

(Ord. 4075 § 1 (part), 2000)

If required by the resolution granting the franchise, the grantee shall, concurrently with the filing of an acceptance of award under any franchise granted under this chapter, file with the Mountain House Community Services District and shall at all times thereafter maintain in full force and effect for the term of a franchise or any renewal thereof, at the grantee's sole expense, a corporate surety bond by a company, and in a form, approved by the Mountain House Community Services District Counsel, in the amount established by the Board prior to or concurrently with the granting of the franchise, renewable annually, and conditioned upon the faithful performance of the grantee, and upon the further condition that in the event the grantee fails to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee under this chapter, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the Mountain House Community Services District as a result thereof, including, but not limited to, the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed by this chapter which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; the condition shall be a continuing obligation for the duration of the franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the Mountain House Community Services District that may have arisen from the acceptance of the franchise or renewal by the grantee or from its exercise of any privilege therein granted. The bond shall provide that thirty (30) days' prior written notice of intention not to renew, cancellation, or material change be given to the Mountain House Community Services District. Neither the provisions of this section, nor any bond accepted by the Mountain House Community Services District pursuant hereto, nor any damages recovered by the Mountain House Community Services District thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. The Board may at any time waive or reduce the amount of the bond provided for by this section.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall at all times maintain:

(1) A record of all complaints received and interruptions or degradation of service experienced for the preceding two (2) years, provided that such complaints result in or require a service call.

(2) A full and complete set of plans, records and "as built" maps showing the location of the cable television system installed or in use in the district, exclusive of subscriber service drops and equipment provided in subscribers' homes. Said plans, records and maps are trade secrets of grantee and, as such, are exempt from disclosure to members of the public under the Public Records Act (Government Code Section 6250 et seq.), including Section 6254(n). Grantor will not disclose any such records in response to a public records request without first allowing the grantee the opportunity to demonstrate that the plans, records and maps are exempt under express provisions of the Public Records Act or that on the facts of the particular case, the public interest served by not making the plans, records or maps public clearly outweighs the public interest served by disclosure of the plans, maps or records. Grantor shall provide grantee with prompt notice of any request grantor receives for public records that would include said plans, records or maps.

(3) If requested by grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the grantor within thirty (30) days following the end of each month in a form reasonably acceptable to the grantor.

(b) The grantor may impose reasonable requests for additional information, records and documents from time to time, provided they reasonably relate to the scope of the district's rights under this chapter or the grantee's franchise agreement. Grantee shall have no obligation to provide information, records or documents which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence by the grantor.

(c) Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of the grantor, of all franchise property and facilities, together with any appurtenance property and facilities of grantee situated within or without the district, and all records relating to the franchise, provided they reasonably relate to the scope of the grantor's rights under this chapter or the franchise agreement.

(d) If any records to be examined are not kept within the district or upon reasonable request made available within the district, and if the Board determines that examination of the records is necessary and appropriate, then all travel and other expenses incurred in making the examination of the records shall be paid by grantee.

(Ord. 4075 § 1 (part), 2000)

Within ninety (90) days after the end of the calendar year, at the request of grantor in writing by December 31st of said calendar year, grantee shall submit a written annual report to grantor with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:

(a) A summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in development of the cable system, including but not limited to, services begun or discontinued during the reporting year;

(b) A list of grantee's officers, members of its board of directors, and other principals of grantee;

(c) A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in grantee;

(d) A list or description of any residences in grantee's service area where service is not available, and subject to applicable line extension policies, a schedule for providing service;

(e) Information as to the number of homes passed, subscribers, additional television outlets, and penetration of basic and pay service in the service area;

(f) Any other information which the grantor shall reasonably request; and

(g) Notwithstanding any of the foregoing, grantee shall have no obligation to include information in its annual report to grantor which is a trade secret of grantee or is otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence by the grantor.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to any Federal, State or local court, agency or governmental body, as well as copies of all decisions, correspondence and actions by any such Federal, State or local court, regulatory agency, or other governmental body which are non-routine in nature and which will materially affect its cable television operations within the franchise area. Grantee shall submit such documents to grantor simultaneously with its submission to such court, agency and/or body; or within five (5) days after its receipt from such court, agency and/or body. Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection.

(b) Notwithstanding the foregoing, grantee shall have no obligation to provide copies of documents to grantor which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence by the grantor. To the extent possible, grantee will provide grantor with summaries of any required documents or copies thereof with trade secrets and confidential and proprietary matters deleted therefrom.

(Ord. 4075 § 1 (part), 2000)

If grantee is publicly held, a copy of each of grantee's annual and other periodic reports and those of its parent, shall be submitted to grantor within forty-five (45) days of its issuance.

(Ord. 4075 § 1 (part), 2000)

(a) The grantee shall furnish to the grantor the results of any opinion survey conducted by the grantee which identifies satisfaction or dissatisfaction among subscribers within the district with the grantee's cable service. The results of such survey shall be furnished to the grantor within thirty (30) days following completion of the survey.

(b) Upon request of the grantor, but not more than once every three (3) years, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in subscriber statements for cable service. The form and content of such survey shall be reasonably acceptable to the grantor. The cost of such survey shall be borne by the grantee.

(Ord. 4075 § 1 (part), 2000)

Upon grantor's request, but no more often than annually, grantee shall submit to grantor a report indicating the degree of compliance with the privacy provisions contained in this chapter and all steps taken to assure that the privacy rights of individuals have been protected.

(Ord. 4075 § 1 (part), 2000)

(a) All reports required under this chapter, except those which the grantee has agreed to keep confidential, shall be available for public inspection in the grantor's offices during normal business hours.

(b) All reports and records required under this chapter shall be furnished at the sole expense of grantee, except as otherwise provided in this chapter or the franchise agreement.

(c) The willful refusal, failure, or neglect of grantee to file any of the reports required as and when due under this chapter, may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty (30) days after written request thereof, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise.

(d) Any materially false or misleading statement or representation made knowingly and willfully by the grantee in any report required under this chapter or under the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise.

(Ord. 4075 § 1 (part), 2000)

Every third 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 (30) days after conclusion of a system performance review meeting, grantor may issue findings with respect to the cable system's franchise compliance and quality of service.

If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee's franchise, 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.

(Ord. 4075 § 1 (part), 2000)

When there have been complaints made or where there exists other evidence which, in the judgment of the grantor, casts reasonable doubt on the reliability or quality of cable service to the effect that the grantee is not in compliance with the requirements of this chapter or its franchise, the grantor shall have the right to compel the grantee to test, analyze and report on the performance of the system in order to assure compliance with this chapter and the franchise agreement. Grantor may not compel grantee to provide such tests or reports unless and until grantor has provided grantee with at least thirty (30) days' notice of its intention to exercise its rights under this section and has provided grantee with an opportunity to be heard prior to its exercise of such rights. Such test or tests shall be made and the report thereof shall be delivered to the grantor no later than thirty (30) days after the grantor notifies the grantee that it is exercising such right, and shall be made at grantee's sole cost. Such report shall include the following information: the nature of the complaints which precipitated the special tests; what system component was tested; the equipment used and procedures employed in said testing; the results of such tests; and the method by which such complaints were resolved. Any other information pertinent to the special test shall be recorded.

(Ord. 4075 § 1 (part), 2000)

If a grantee fails to perform in a timely manner any obligation required by this chapter or a franchise granted hereunder, following notice from the grantor and opportunity to be heard by the Board, and an opportunity to cure such nonperformance in accordance with the provisions of this chapter, grantor may at its option and in its sole discretion seek any or all of the following remedies:

(a) Cure the violation and recover the actual costs thereof from the surety bond established herein if such violation is not cured within thirty (30) days after the Board directs the grantee, pursuant to this chapter, of the need to cure and of grantor's intention to cure and assess the surety bond if the violation is not cured within such thirty (30) day period; and

(b) Revoke the franchise in accordance with MH-7-2043 and MH-7-2044 of this chapter; and

(c) For violations of consumer service standards of this chapter or the franchise agreement which have materially degraded the quality of service, grantor may (i) order and direct grantee to issue credits to subscribers, in an amount to be determined by grantor to be reasonably related to the nature of the degradation in service and measured by the period of the degradation, to provide monetary relief substantially equal to the reduced quality of service resulting from grantee's failure to perform; or (ii) seek liquidated damages or other monetary damages as permitted by state law; and

(d) Seek appropriate judicial relief, including, but not limited to, injunctive or equitable; and

(e) Seek monetary damages.

(Ord. 4075 § 1 (part), 2000)

Grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the event of a default or material breach by grantee of this chapter or the franchise agreement. An event of default or material breach by grantee includes, but is not limited to, the following circumstances:

(a) If grantee shall default in the performance of any material obligation under this chapter or the franchise agreement and shall continue such default after receipt of due notice, an opportunity to be heard and a reasonable opportunity to cure the default;

(b) If grantee shall fail to provide or maintain in full force and effect the insurance coverage or surety bond as required herein;

(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 there shall occur any denial, forfeiture or revocation by any Federal, State or local governmental authority of any authorization required by law or the expiration without renewal of any such authorization, and such events either individually or in the aggregate, materially jeopardize or could reasonably be expected to materially jeopardize the system or its operation;

(e) If grantee attempts to unlawfully evade any provision of this chapter or practices any fraud or deceit upon grantor;

(f) If grantee persistently fails to remedy defaults for which lesser penalties have previously been imposed;

(g) The condemnation by a public authority other than the grantor, or sale or dedication under threat or in lieu of condemnation, of all or any part of the system, the effect of which would materially frustrate or impede the ability of the grantee to carry out its obligations, and the purposes of the franchise agreement;

(h) In the event that the grantee shall suspend or discontinue its business;

(i) The occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale of all or any material part of the system; or

(j) If grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt.

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

(Ord. 4075 § 1 (part), 2000)

Prior to imposing any remedy or other sanction against grantee specified in this chapter, 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 not be less than five (5) days in the case of failure of the grantee to pay any sum or other amount due the grantor under this chapter or the grantee's franchise and thirty (30) days in all other cases. If grantee fails to correct the violation within the time prescribed or if grantee fails to commence correction of the violation within the time prescribed, diligently remedy such violation thereafter, and provide a time schedule for completing its cure of the default or material breach that is acceptable to the grantor, the grantor shall then give written notice of not less than twenty (20) days of a public hearing to be held before the council. Said notice shall specify the violations alleged to have occurred.

(b) At the public hearing, the Board shall hear and consider all relevant evidence, and thereafter render findings and its decision.

(c) In the event the Board finds that 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 and has provided a reasonable schedule for completing the cure of the default or material breach, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(d) In the event the Board finds that the alleged violations exist and that grantee has not corrected the same in a satisfactory manner or has not diligently commenced corrections of such violation after notice thereof from grantor and is not diligently proceeding to fully remedy such violation in a reasonable period of time, the Board may impose one (1) or more of the remedies specified herein as it, in its discretion, deems appropriate under the circumstance.

(Ord. 4075 § 1 (part), 2000)

In the event grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder 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. 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, and fires but shall not include (i) financial inability of the grantee to perform, or (ii) failure of the grantee to obtain or maintain 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 of omissions of grantee, or (iii) the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(Ord. 4075 § 1 (part), 2000)

(a) In the event that use of any franchise property or a portion thereof is discontinued for a continuous period of twelve (12) months, grantee shall be deemed to have abandoned that franchise property. Any part of the cable system that is intended for use only when needed because it is parallel or redundant to other parts of the system, shall not be deemed to have been abandoned because of its lack of use.

(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 such removal. The liability, indemnity and insurance provisions of this chapter and the surety bond 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 any instrument, satisfactory in form to the grantor, transferring to the grantor 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 for 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 district within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

(e) Notwithstanding anything to the contrary set forth in this chapter, 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.

(Ord. 4075 § 1 (part), 2000)

In the event of a failure by grantee to complete any work required herein or by any other law or ordinance, and if such work is not completed within thirty (30) days after receipt of written notice thereof from grantor or, if more than thirty (30) days are reasonably required therefor, if grantee does not commence such work within such thirty (30) 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 for the costs thereof within thirty (30) days after receipt of an itemized list of such costs, or grantor may recover such costs through the surety bond provided by grantee.

(Ord. 4075 § 1 (part), 2000)

Upon either expiration or revocation of the franchise, the grantor shall have discretion to permit grantee to continue to operate the cable television system for an extended period of time not to exceed twelve (12) months from the date of such expiration or revocation, unless extended by resolution of grantor. Grantee shall, as trustee for its successor-in-interest, 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. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transitional periods following franchise expiration or termination.

(Ord. 4075 § 1 (part), 2000)

(a) A franchise granted hereunder shall, at the option of grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of grantee, whether in receivership or reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1) such receivers or trustees shall have, within one hundred twenty (120) 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 (120) days shall have remedied all the faults under the franchise or provided a plan for the remedy of such faults which is satisfactory to the grantor; and (2) such receivers or trustees shall, within said one hundred twenty (120) 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 (30) 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. 4075 § 1 (part), 2000)

(a) Nothing in this chapter shall in any way or to any extent impair or affect the right of the Mountain House Community Services District to acquire the grantee's property either by purchase or through exercise of the right of eminent domain, in respect to any grantee.

(b) No franchise granted under this chapter shall be given any value before any court or other public authority in any action or proceeding brought by the Mountain House Community Services District in excess of the amount of the required filing fee and any other sum paid by the grantee to the Mountain House Community Services District for a franchise at the time of granting.

(c) There is reserved to the Mountain House Community Services District every right and power which is required to be reserved in this chapter or provided by any ordinance or resolution of the Mountain House Community Services District, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of, the Mountain House Community Services District in its exercise of such rights or power, enacted or established before or after the effective date of the ordinance codified in this chapter.

(d) The Board may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter.

(e) Neither the granting of any franchise under this chapter nor any of the provisions contained in this chapter shall be construed to prevent the Mountain House Community Services District from granting any identical or similar franchise to any other person within all or any portion of the Mountain House Community Services District.

(f) Neither the granting of any franchise nor any provision herein shall constitute a bar to the exercise of any governmental right or power of the Mountain House Community Services District.

(g) The grantor shall have the right to waive any provision of the franchise or this chapter, except those required by Federal or State law, 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 (1) 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 or chapter unless the statement so relies.

(Ord. 4075 § 1 (part), 2000)

(a) Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations, and all executive and administrative orders, relating to nondiscrimination, including without limitation, Section 51 of the California Civil Code which is incorporated in this section by reference.

(b) Grantee shall adhere to the applicable equal employment opportunity requirements of the FCC, State and local regulations, as now written or as amended from time to time.

(c) Neither grantee, nor any person, agency, or entity shall, without the subscriber's consent, tap, or arrange for the tapping, of any cable, line or signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the system, detection of unauthorized service, polling with audience participating, audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified, or as otherwise expressly permitted by the privacy provisions under the Federal Cable Act, 47 U.S.C. Section 551.

(d) In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, grantee shall take reasonable steps to prevent the invasion of a subscriber's or general citizen's right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. Grantee shall not without lawful court order or other applicable valid legal authority utilize the system's interactive two-way equipment or capability for unauthorized personal surveillance of any subscriber or general citizen.

(e) No cable line, wire, amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber's premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon subscriber's property shall be presumed.

(f) The grantee, or any of its agents or employees, shall not sell, or otherwise make available to any party for any purpose other than the operation or transfer of the cable system without consent of the subscriber pursuant to State and Federal privacy laws:

(1) Any list of the names and addresses of subscribers containing the names and addresses of subscribers who request to be removed from such list; and

(2) Any list which identifies the viewing habits of individual subscribers, without the prior written or electronic consent of such subscribers. This does not prohibit the grantee from providing composite ratings of subscriber viewing to any party.

(Ord. 4075 § 1 (part), 2000)

A grantee shall not be relieved of any obligation to comply with any of the provisions of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of the district, Board of Directors, or their officers, agents or employees to enforce prompt compliance.

(Ord. 4075 § 1 (part), 2000)

No provision of this chapter shall be deemed to bar the right of the district to seek or obtain judicial relief from a violation of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in said chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the district to recover monetary damages for such violation by the grantee, or judicial enforcement of the grantee's obligations by means of specific performance, injunction relief or mandate, or any other judicial remedy at law or in equity.

(Ord. 4075 § 1 (part), 2000)

The district declares that as a result of this chapter and any franchise issued 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. The grantee, as the party in whom the possessory interest will be vested, may be subject to the payment of property taxes levied upon such an interest.

(Ord. 4075 § 1 (part), 2000)

(a) No person shall make any unauthorized connection, whether physically, acoustically, inductively, electronically, or otherwise with any part of a franchised CATV system within the Mountain House Community Services District for the purpose of taking or receiving television signals, radio signals, pictures, programs, sound, or electronic impulses of any kind for the purpose of enabling that person or others to receive any television signal, radio signal, picture, program, sound or electronic impulses.

(b) No person, without the consent of the grantee, shall willfully tamper with, obstruct, or injure any cables, wires, devices, or equipment used for the distribution of television signals, radio signals, pictures, programs, sound or electronic impulses of any kind.

(Ord. 4075 § 1 (part), 2000)

(a) The Mountain House Community Services District, pursuant to The Digital Infrastructure and Video Competition Act of 2006 ("DIVCA") is entitled to receive a state franchise fee from and authorized to exercise certain powers pertaining to a video service provider which is granted a state franchise by the California Public Utilities Commission to provide video service in the District's limits.

(b) The Board of Directors finds it is in the interest of the public convenience, safety, and general welfare to implement the rights and powers granted to the District under the DIVCA, and by this chapter, the District takes such action.

(Ord. 4345 § 1 (part), 2007)

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. The definitions in the DIVCA are incorporated herein. Words not defined shall be given their common and ordinary meaning.

(a) "Affiliated Person" means each Person who falls into one (1) or more of the following categories: (i) each Person having, directly or indirectly, a controlling interest in the Company; (ii) each Person in which the Company has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, limited partner holding an interest of twenty-five percent (25%) or more, joint venturer or joint venture partner, of the Company; and (iv) each Person, directly or indirectly, controlling, controlled by, or under common control with, the Company; provided that "Affiliated Person" shall in no event mean the District, any limited partner holding an interest of less than twenty-five percent (25%) of the Company, or any creditor of the Company solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management, or common control with, the Company.

(b) "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals.

(c) "Cable Act" means Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq.

(d) "Cable Television System," "System," "CATV 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 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 (1) 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 which is subject, in whole or in part, to Title II of the 1934 Communications Act, as amended, except that such facility shall be considered a cable system (other than for purposes of Section 621 (c) of the Cable Act [47 U.S.C. 541 (c)]) to the extent such a 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 the Cable Act, 47 U.S.C. § 573; or

(5) Any facilities of any electric utility used solely for operating its electric utility system.

(e) "Board of Directors" means the Board of Directors of the Mountain House Community Services District.

(f) "District" means the Mountain House Community Services District as represented by the Board of Directors or any delegate acting within the scope of its jurisdiction.

(g) "DIVCA" means the Digital Infrastructure and Video Competition Act of 2006.

(h) "FCC" means the Federal Communications Commission, its designee, or any successor thereto.

(i) "Franchise" means a certificate to provide video services or a renewal of such certificate issued by the California Public Utilities Commission pursuant to DIVCA.

(j) "Franchise Fee" means the fee set forth in Section 5860 of the Public Utilities Code.

(k) "Franchise Documents" means this chapter and any documents filed with and the certificate issued by the California Public Utilities Commission.

(l) "Grantee" means any Person receiving a state franchise certificate issued by the California Public Utilities Commission, and such person's lawful successor, transferee or assignee.

(m) "Installation" means the connection of the system to Subscribers' terminals.

(n) "Institutional Network" means the cable or cables, electronics and ancillary equipment for governmental use, educational use, or both, provided by the Grantee.

(o) "Person" means an individual, partnership, association, joint stock company, joint venture, trust, corporation or other legally recognized entity, whether for-profit or not for-profit, but shall not mean the District.

(p) "Public Educational or Government Access Facilities" or "PEG Access Facilities" means the total of the following:

(A) Channel capacity designated for public, educational, or governmental use; and

(B) Facilities and equipment or the use of such channel capacity.

(q) "Sections" means any section, subsection, or provision of this chapter.

(r) "Service Area" or "Franchise Area" means the geographic area within the District as it is now constituted or may in the future be constituted, unless otherwise specified in the Agreement.

(s) "Service Tier" means a category of video or cable service or other services provided by a Grantee and for which a separate rate is charged by the Grantee.

(t) "State" means the State of California.

(u) "Street" means the surface of and the space above and below each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the District 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.

(v) "Subscriber" means any person who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connections with video or cable system.

(w) "Telecommunications Service" means "telecommunications service" as that term is defined under Section 3 of the Federal Communications Act of 1934, 47 U.S.C. 153(46), except that the term shall not include any Institutional Network for governmental or educational.

(Ord. 4345 § 1 (part), 2007)

It shall be unlawful for any person to construct, install, maintain, or operate a system to provide video service in the District without a properly granted Franchise.

(Ord. 4345 § 1 (part), 2007)

(a) This chapter shall not be construed in a manner prohibited by applicable Federal and State laws. Federal and State law, and any modification of such Federal or State law, shall to the extent applicable be considered part of this chapter as of the effective date of this chapter or the effective date of any modification of such Federal or State law.

(b) In the event that the State or Federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit the District's authority, the District may, if it so elects, adopt rules and regulations in such areas.

(c) This chapter shall apply to all Grantees.

(Ord. 4345 § 1 (part), 2007)

(a) Prior to providing video services in the District's territory, the Grantee shall provide the District a description of the Grantee's customer service standards which comply with Government Code Section 53055.

(b) Grantee shall comply with Government Code Sections 53055, 53055.1, 53055.2, and 53088.2 and any other customer service standards pertaining to the provision of video services established by federal law or regulation or adopted by subsequent enactment of the California State Legislature.

(c) For purposes of this chapter, "material breach" means any substantial and repeated failure of a Grantee to comply with any of the requirements set forth in either Government Code Sections 53055, 53055.1, 53055.2, or 53088.2 or any other customer service standards pertaining to the provision of video services established by federal law or regulation or adopted by subsequent enactment of the California State Legislature.

(d) Any person within the District who subscribes to the services of any Grantee may file a complaint with the District asserting that the Grantee has committed a material breach of Grantee's consumer service obligations.

(e) The District delegates to its General Manager the authority to administer enforcement of the provisions of this section of this chapter. Upon receipt of any complaint, or upon his own motion, General Manager shall give the Grantee written notice of any material breach(s) and allow the Grantee at least thirty (30) days from receipt of the notice to remedy the specified material breach. A material breach for purposes of assessing any penalties under this section of this chapter shall be deemed to have occurred for each day within the territory of the District, following expiration of the notice provided for herein, that any such material breach has not been remedied by Grantee, irrespective of the number of customers affected. No monetary penalties shall be assessed for a material breach which is out of the reasonable control of Grantee.

(f) If the material breach has not been cured as set forth above, the General Manager may assess penalties upon the Grantee in accordance with the following schedule:

(1) Five hundred dollars ($500.00) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of a material breach.

(2) For each subsequent material breach of the same nature occurring within any twelve (12) month period for which notice to Grantee was provided and an initial penalty assessed as set forth above, a penalty of one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of such material breach.

(3) For any third and further material breach of the same nature within any twelve (12) month period for which notice to Grantee was provided and a second penalty assessed as set forth above, a penalty of two thousand five hundred dollars ($2,500.00) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of such material breach.

(4) One-half of all penalties received by the District shall be submitted to the Digital Divide Account established in Section 280.5 of the Public Utilities Code.

(g) General Manager shall provide written notice of the assessment of the penalty to Grantee within five (5) business days of its assessment. Grantee may appeal the assessment to the Board within ten (10) business days of receipt of notice from the General Manager. Grantee's appeal shall be in writing and state why the assessment is in error. The Board shall review Grantee's submittal and either affirm, revise, or repeal the assessment. The Board shall provide written notice of its determination to Grantee and the General Manager within thirty (30) business days of its determination.

(h) A Grantee shall not be relieved of any obligation to comply with any of the provisions of this chapter or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of the Board, or their officers, agents or employees to enforce prompt compliance.

(i) All officers, agents, or employees of the Grantee or its contractors or subcontractors who in the normal course of work require entry onto Subscribers' premises shall carry a photo-identification card. Every vehicle of the Grantee utilized for field maintenance shall be clearly identified as working for the Grantee.

(j) In addition, the Grantee shall provide to the District, upon request, a written report of the results of the Grantee's periodic performance tests conducted pursuant to any governmental requirements in order to permit the District to fulfill its duties regarding customer service standards.

(Ord. 4345 § 1 (part), 2007)

(a) Grantee shall at all times maintain:

(1) A record of all complaints received and interruptions or degradation of video service experienced for the preceding two (2) years, provided that such complaints result in or require a service call.

(2) A full and complete set of plans, records and "as built" maps showing the location of the video service facilities installed or in use in the District, exclusive of Subscriber service drops and equipment provided in Subscriber's homes. Said plans, records and maps are trade secrets of Grantee and, as such, are exempt from disclosure to members of the public under the Public Records Act (Government Code Section 6250 et seq.), including Section 6254(n). District will not disclose any such records in response to a Public Records Request without first allowing the Grantee the opportunity to demonstrate that the plans, records and maps are exempt under express provisions of the Public Records Act or that on the facts of the particular case, the public interest served by not making the plans, records or maps public clearly outweighs the public interest served by disclosure of the plans, maps or records. The District shall provide Grantee with prompt notice of any request the District receives for public records that would include said plans, records or maps.

(b) The District may impose reasonable requests for additional information, records and documents from time to time, provided they reasonably relate to the scope of the District's rights under this chapter or the Grantee's Franchise. Grantee shall have no obligation to provide information, records or documents which contain trade secrets of Grantee or which are otherwise of a confidential or proprietary nature to Grantee unless it receives satisfactory assurances from District that such information can and will be held in strictest confidence by the District.

(c) Upon reasonable notice, and during normal business hours, Grantee shall permit examination by any duly authorized representative of the District, of all property and facilities used by Grantee in the provision of video services within the District's territory, together with any appurtenance property and facilities of Grantee situated within or without the District, and all records relating to the Franchise, provided they reasonably relate to the scope of the District's rights under this chapter or the DIVCA.

(d) If any records to be examined are not kept within the District or upon reasonable request made available within the District, and if the Board determines that examination of the records is necessary and appropriate, then all travel and other expenses incurred in making the examination of the records shall be paid by Grantee.

(Ord. 4345 § 1 (part), 2007)

Grantee shall provide District with copies of any decision of any Federal, State or local court, agency or governmental body, which imposes any fine or forfeiture on Grantee or renders any adverse decision regarding Grantee's operations in the District's territory. Grantee shall provide such documents to the District within five (5) days after its receipt from such court, agency and/or body.

(Ord. 4345 § 1 (part), 2007)

If Grantee is publicly held, a copy of each of Grantee's annual 10K and proxy statements filed with the Securities and Exchange Commission, and other periodic reports and those of its parent, shall be submitted to the District within forty-five (45) days of their issuance.

(Ord. 4345 § 1 (part), 2007)

The Grantee shall furnish to the District the results of any opinion survey conducted by the Grantee which identifies satisfaction or dissatisfaction among Subscribers within the District with the Grantee's video service. The results of such survey shall be furnished to the District within thirty (30) days following completion of the survey.

(Ord. 4345 § 1 (part), 2007)

(a) Annually following commencement of video services in the District's territory, if requested by the District, the District and Grantee shall meet publicly to review system performance and quality of Service.

(b) 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 (30) days after conclusion of a system performance review meeting, the District may issue findings with respect to the Grantee's compliance with customer service and protection standards and quality of service.

(Ord. 4345 § 1 (part), 2007)

(a) All reports required under this chapter, except those which the Grantee has agreed to keep confidential, shall be available for public inspection in the District's offices during normal business hours.

(b) All reports and records required under this chapter shall be furnished at the sole expense of Grantee, except as otherwise provided in this chapter.

(Ord. 4345 § 1 (part), 2007)

(a) Grantee shall pay to District a Franchise Fee in the amount of five percent (5%) of Grantee's gross receipts in accordance with Section 5860 of the California Public Utilities Code. The obligation to remit the franchise fee to the District begins immediately upon the provision of video service within the District's territory by Grantee and shall be paid in accordance with Section 5860.

(b) The District will provide Grantee with documentation supporting the franchise percentage fee paid by any incumbent video provider upon receipt of the notice required to be provided to the District by Grantee pursuant to Section 5840(n) of the California Public Utilities Code.

(c) The franchise fee shall be remitted as directed by the General Manager to the District quarterly within forty-five (45) days after the end of each quarter. Each payment shall be accompanied by a summary explaining the basis for its calculation. The summary shall identify all gross revenues (as defined in Section 5860 of the Public Utilities Code) received by Grantee during the applicable quarter and shall itemize the gross revenues in accordance with the subparagraphs of subsection (d) of Section 5860 of the Public Utilities Code. In the event Grantee has bundled video services with any other services, capabilities, or applications, Grantee shall provide support for its allocation to video services of a portion of the revenues for the bundled package of services.

(d) Not more than once annually the District may examine the business records of Grantee to ensure compensation in accordance with Section 5860 of the Public Utilities Code. In connection with the review, Grantee will furnish records pertaining to its exclusion of any revenues in accordance with subsection (e) of Section 5860 of the Public Utilities Code.

(e) No acceptance of any payment by the District shall be construed as a release or as an accord and satisfaction of any claim the District 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.

(f) The Franchise Fee payments shall be in addition to and shall not constitute an offset or credit against any and all taxes or other fees or charges which the Grantee or any Affiliated Person shall be required to pay to the District, or to any State or federal agency or authority, as required herein or by law. The payment of said taxes, fees or charges shall not constitute a credit or offset against the Franchise Fee payments, all of which shall be separate and distinct obligations of the Grantee and each Affiliated Person.

(g) If the Grantee does not pay the Franchise Fee when due, the Grantee shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one (1) percent.

(Ord. 4345 § 1 (part), 2007)

No provision of this chapter shall be deemed to bar the right of the District to seek or obtain judicial relief from a violation of any provision of this chapter, or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in said chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the District to recover monetary damages for such violation by the Grantee, or judicial enforcement of the Grantee's obligations by means of specific performance, injunction relief or mandate, or any other judicial remedy at law or in equity.

(Ord. 4345 § 1 (part), 2007)