Santa Monica Municipal Code Ch. 6.108 Cable Ordinance

Subchapter 6.108.02. General Provisions and Responsibilities

The City of Santa Monica finds:

(a) The development of cable television and communications systems has the potential of having great public benefit and impact upon the residents of Santa Monica.

(b) Because of the complex and rapidly changing technology associated with cable television, the public convenience, safety, and general welfare can best be served by establishing regulatory powers in the City or in such persons as the City shall designate.

(c) This Chapter provides for and specifies the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this Chapter shall be deemed to include this finding as an integral part thereof.

(Prior code § 63000; added by Ord. No. 1407CCS, adopted 4/28/87)

For the purpose of this Chapter, the following words and phrases shall have the following meanings:

Agency subscriber.

A government or public agency, school, or designated nonprofit organization which receives a service from a cable communications system.

Basic cable service.

Any service tier which includes the retransmission of local television broadcast signals.

Basic radio service.

The provision of audio programs to all subscribers at a monthly rate.

Broadcast signal.

A television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable communications system and retransmitted to subscribers.

Cable communications system.

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:

(a)

A facility that serves only to retransmit the television signals of one or more television broadcast stations.

(b)

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

(c)

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

(d)

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

Cablecast signal.

A nonbroadcast signal that originates within the facilities of the cable communications system.

Cable-mile.

A linear mile of strand-bearing cable as measured on the street or easement from pole to pole or pedestal to pedestal.

Cable service.

The total of the following:

(a)

The one-way transmission to subscribers of video programming or other telecommunications service.

(b)

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

Channel or cable channel.

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.

City.

The City of Santa Monica.

City council.

The governing body of the City of Santa Monica.

Commencement of construction.

The time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.

Commencement of operation.

The time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to a dwelling unit located within the franchise area and such services are actually subscribed to by a resident of the franchise area.

Commercial subscriber.

A subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade, or profession.

Commercial use channel(s).

The channel capacity designated for commercial use as defined and required by federal law.

Completion of construction.

The point in time when all distribution facilities have been installed by the Grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, of any facilities required by the franchise agreement.

Converter.

An electronic device which converts signal carriers from one form to another.

Dedicate.

To make available channel space or equipment for exclusive use of the designated area, subject to the authority of the City Council to authorize reassignments of channels.

Dwelling unit.

This shall have the same meaning as provided in California Code of Civil Procedure Section 704.710.

FCC.

The Federal Communications Commission and any legally appointed or elected successor.

Franchise.

An initial authorization, or renewal thereof issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction of operation of a cable system.

Franchise agreement.

A franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances, and other related materials.

Franchise fee.

Any tax, fee, or assessment of any kind imposed by a franchising authority 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:

(a)

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 Grantee or cable subscribers).

(b)

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

(c)

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.

(d)

Any fee imposed under Title 17, United States Code.

Grantee.

Any person receiving a franchise pursuant to this ordinance and under the granting franchise ordinance. and its lawful successor, transferee, or assignee.

Gross revenues.

All revenues received by the Grantee from all sources of operations of the cable communications system, except that any sales, excise or other taxes collected for direct pass-through to local, state, or federal government shall not be included.

Initial service area.

The area of the City which will receive service initially, as set forth in the franchise agreement. If not stated otherwise in the franchise agreement, the initial service area shall consist of the entire City.

Installation.

The connection of the system from feeder cable to subscriber's terminals and the provision of service.

Local origination channel.

Any channel where the Grantee is the primary designated programmer, and provides video programs to subscribers.

Monitoring.

Observing a communication signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever. Monitoring shall not include system-wide, non-individually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths, transmissions or billing.

Nonbroadcast signal.

A signal that is provided by a cable communications system and that is not involved in an over-the-air broadcast transmission path.

Open channel.

Any channel that can be received by all subscribers, without the necessity for special equipment.

Pay-cable or pay-television.

The delivery to subscribers, over the cable communications system of television signals for a fee or charge to subscribers over and above the charge for basic cable service, on a per program, per channel, or other subscription basis.

Penetration.

The result expressed in the percentage obtained by dividing the total number of dwelling units in the franchise area into the number of subscribers receiving service.

Person.

Any individual, partnership, association, joint stock company, trust, corporation, or organizational entity.

Private channel or closed circuit channel.

Any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel.

Programmer.

A person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the cable communications system.

Public, educational or government access facilities or peg access facilities.

The total of the following:

(a)

Channel capacity designated for public, educational, or governmental use.

(b)

Facilities and equipment for the use of such channel capacity.

PEG.

Public, educational, or government.

Resident.

Any person residing in the City as otherwise defined by applicable law.

Residential subscriber.

A subscriber who receives a service in an individual dwelling unit, where the service is not to be utilized in connection with a business, trade, or profession.

Sale.

Any sale, exchange, barter, or offer for sale.

School.

Any accredited non-profit educational institution including primary and secondary schools, colleges, and universities, both public and private.

Service area or franchise area.

The entire geographic area within the City designated in a franchise agreement to receive cable service.

Service tier.

A category of cable service or other services provided by a Grantee and for which a separate rate is charged by the Grantee.

Street.

Each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way, and similar public property and areas that the City shall permit to be included within the definition of street from time to time.

Subscriber.

Any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with the cable communications system.

Tapping.

Observing a two-way communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever.

Two way communications.

The transmission of telecommunications signals from subscriber locations or other points throughout the system back to the system's control center as well as transmission of signals from the control center to subscriber locations.

(Prior code § 63001; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.04. Grant of Franchise

(a) Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise in accordance with the provisions of this ordinance.

(b) Franchise Nonexclusive. Any franchise granted shall be nonexclusive. City specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate.

(c) Establishment of Franchise Requirements. The City may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of art in the cable industry. Such requirements shall not be retroactive to franchises then in effect, but shall become applicable when the franchise is renewed, or when Grantee's service area is expanded.

(d) Franchise Area. The City may grant a franchise for all or any defined portion of the City. The service area shall be the entire area defined in the franchise agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the franchise agreement.

(Prior code § 63002; added by Ord. No. 1407CCS, adopted 4/28/87)

Each application, for a franchise to construct, operate, or maintain any cable system in this City shall be filed with the City Clerk. An application shall include, but shall not be limited to, the following information:

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

(b) A detailed statement of the corporate or business entity organization of the applicant, including, but not limited to, the following and to whatever extent required by the City:

(1) The names, residence and business addresses of all officers, directors, and associates of the applicant.

(2) The names, residence and business addresses of all officers, persons, and entities having any share of the ownership of the applicant of 1% or more and the respective ownership share of each such person or entity.

(3) The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity including, but not limited to, cable systems owned or controlled by the applicant, its parent, and subsidiary and the areas served thereby.

(4) A detailed description of all previous experience of the applicant in providing cable television system service and in related or similar fields.

(5) A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the Council, 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 system in the City, or 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 system in this City.

(6) 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. All information is to be presented in the format required by City.

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

(8) A statement identifying franchises owned or operated by applicant, its parent or subsidiary corporation, that have been revoked or licenses terminated by the Federal Communication Commission or franchising entity.

(c) A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:

(1) 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 served.

(2) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges.

(3) A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant.

(4) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber.

(5) 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.

(d) A copy of any agreement covering the franchise area, if existing, between the applicant and any municipal utility or public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility including, but not limited to, poles, lines, or conduits.

(e) Any other details, statements, information, or references pertinent to the subject matter of such application which shall be required or requested by the City, or by any other provision of law.

(Prior code § 63003; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Amount. Notwithstanding any other requirement of this Chapter, each applicant must furnish with its proposal a nonrefundable filing fee in the form of a certified or cashier's check made payable to the City of Santa Monica, in an amount as may be established by the City at the time of application. No proposal for a franchise shall be considered without receipt of said check.

(b) Deposit and Use. All checks received will be deposited to an account of the City and will serve to recover all expenses incurred by the City in the preparation and granting of a franchise, the execution of a franchise, and regulation of a franchise pursuant to this Chapter. Said expenses shall include, but not be limited to, any and all administrative, engineering, publication, or legal costs, and consultant's expenses, incurred in connection with the processing, evaluation, and preparation of documents relating to the franchise.

(c) Additional Fee. In the event that expenses exceed the total amount of filing fees collected from the applicants, an applicant awarded a franchise shall pay to the City the excess amount.

(Prior code § 63004; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Solicitation of Proposals. The City may, by advertisement or any other means, solicit and call for applications for cable system franchises, and may determine and fix any date upon or after which the same shall be received by the City, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for, making, and receiving of such applications. The terms and conditions for application shall be described in a document called "Request for Proposals."

(b) Compliance with City Requirements. Any person submitting a proposal for a cable system in response to the City's Request for Proposals shall provide all information required by this Chapter and all other information requested by the City's Request for Proposals or otherwise required by City. Each proposal shall be responsive to the questions soliciting the information, and shall completely, accurately, and materially supply all of the information so solicited. Any misrepresentation, failure, neglect, or refusal to provide any of such information may, at the discretion of City, render a proposal invalid. The requested information must be complete and verified as true by the applicant.

(c) Property of City. All proposals received by the City from an applicant shall become the sole property of City and shall become public documents.

(d) Applicant Responsibility. Before submitting a proposal, each applicant shall be solely responsible for and must:

(1) Be familiar with local conditions that may in any manner affect performance under the franchise, including, but in no event limited to, community and institutional telecommunication needs, relevant demographics, topographics, pole attachment policies of appropriate utility authorities, undergrounding, and subscriber desires.

(2) Be familiar with federal, state, and local laws, ordinances, rules, and regulations affecting performance under the franchise.

(3) Carefully correlate and relate all information and observations with the requirements of this Chapter and the Request for Proposal documents.

(e) Referral to City Manager. Upon receipt of any application for franchise, the City Manager shall prepare and submit a report to the City Council which includes recommendations respecting such application. The City will evaluate all proposals that have complied with its requirements. All applicants that have met the City's qualifications in the Request for Proposals and have submitted proposals on the required forms will be offered the opportunity to make a formal presentation to the City Council in support of their applications.

(f) Investigations. The City may make such investigations as it deems necessary to determine the ability of the applicant to perform under the franchise, and the applicant shall furnish to the City all such information and data for this purpose as the City may request. The City reserves the right to reject any proposal if the evidence submitted by, or investigation of such applicant fails to satisfy the City that such applicant is properly qualified to carry out the obligations of the franchise agreement, comply with the provisions of this Chapter, or to satisfactorily construct and operate the system. Proposals that modify or place conditions upon requirements stated in the City's Request for proposals may be rejected by the City.

(g) Rejection. The City may reject any and all applications from whatever source and whenever received and the City also reserves the right to waive any or all requirements where the best interests of the City may be served, and may, if it so desires, request new or additional proposals.

(h) Public Comment. If, upon receiving the City Manager's report, the City Council shall determine to further consider the application, it shall pass a resolution setting a public hearing for the consideration of applications, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objections may file written comments and appear before the City Council and be heard, and directing the City Clerk to publish said resolution at least once within 10 days of the passage thereof in a newspaper of general circulation within the City.

(i) Consideration. In making any determination hereunder as to any application for a new franchise, the City Council may consider factors including, but not limited to, the quality of the service proposed, income to the City, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, to meet all requirements set forth in this Chapter, and to abide by all purpose and policy conditions, franchise limitations and requirements, and any other considerations deemed pertinent by the City Council for safeguarding the interests of the City and the public.

(j) Determination. At the time set for the hearing, or at any adjournment thereof, the City Council shall proceed to hear all protests. The City Council shall then make one of the following determinations:

(1) That such application be denied, which determination shall be final and conclusive.

(2) That such franchise be granted upon such terms and conditions as City Council may establish.

(k) Additional Information. The City Council may at any time demand, and applicants shall provide, such supplementary, additional, or other information as the City Council may deem reasonably necessary to determine whether the requested franchise should be granted.

(l) Awards Based on Merit. It is the intention of the City to award any cable franchise on the basis of merit of proposals. To this end, any communications with City Councilmembers by those wishing to submit proposals for a cable franchise should be limited to public sessions. Requests for information should be directed to the City Manager.

(m) City Council Decisions Final. Any decision of the City Council concerning selection of a franchise pursuant to this Chapter shall be final.

(Prior code § 63005; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Successful applicants chosen by the City Council will be granted the right and privilege to construct, erect, operate, and maintain in, upon, along, across, above, over, and under the streets, alleys, public ways, and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the City poles, wires, cables, underground conduits, manholes, and other cable conductors and fixtures necessary for the maintenance and operation in the City of Santa Monica of a cable system, to be used for the sale and distribution of cable services to the residents of the City.

(b) Any privilege claimed under any such franchise by the Grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

(c) Insofar as it is not inconsistent with or otherwise preempted by Federal or State regulations, the City Council retains all authority to regulate all telecommunications services provided by a Grantee to the extent necessary to assure the delivery of proposed services, if any, and that such services are in compliance with all regulatory provisions of this Chapter and other applicable laws.

(Prior code § 63006; added by Ord. No. 1407CCS, adopted 4/28/87)

The renewal of any franchise granted pursuant to this Chapter shall be subject to the terms of applicable law and to such terms and conditions as may be established by the City.

(Prior code § 63007; added by Ord. No. 1407CCS, adopted 4/28/87)

For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of Section 6.108.10.110 herein, the Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, Grantee shall in each case file plans with the appropriate City agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable City construction codes and procedures.

(Prior code § 63008; added by Ord. No. 1407CCS, adopted 4/28/87)

The term of any franchise and all rights, privileges, obligations, and restrictions pertaining thereto shall be as specified in the franchise agreement unless terminated sooner as hereinafter provided. The effective date of the franchise shall be the date of execution of the franchise agreement by City, subject to prior execution by Grantee. In no event shall the term of any franchise exceed 20 years.

(Prior code § 63009; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned, or disposed of, including, but not limited to, by force or voluntary sale, merger, consolidation, receivership, change of management, or other means without the prior written consent of City, expressed by City Council resolution, and then only under such conditions as City may establish. City consent shall not be unreasonably withheld.

(b) Ownership and Control. Grantee shall promptly notify in writing City of any proposed change in, or transfer of, or acquisition by any other party of, control of Grantee. The word "control" as used herein is not limited to major stockholders, but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of 10% or more of the beneficial ownership interest of Grantee. Every change, transfer, or acquisition of control of Grantee shall make the franchise subject to cancellation unless and until City shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, City retains the right to request such information as it deems appropriate to determine the prospective party's qualifications, and Grantee shall assist City in any such inquiry.

(c) Grantee Responsibility. In seeking City's consent to any change in ownership or control, Grantee shall have the responsibility:

(1) To show to the satisfaction of City whether the proposed purchaser, transferee, or assignee which shall include all officers, directors, and all persons having a legal or equitable interest in 5% or more of its voting stock:

(i) Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to, any violation of Federal, State, or local law or regulations, or is presently under an indictment, investigation, or complaint charging such acts.

(ii) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction.

(iii) Has pending any legal claim, lawsuit, or administrative proceeding arising out of or involving a cable system.

(2) To establish, to the satisfaction of City, the financial capability of the proposed transferee to operate the franchised system, based on the proposed transferee's aggregate financial commitments and resources. City may request, and Grantee shall provide, all reasonable financial data relative to the transfer.

(3) To establish to the satisfaction of City that the capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise term, and, upon City request, to provide adequate security for this purpose.

(d) The Grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor will take control and operate the cable communications system, in the event of a Grantee default in its financial obligations. In such event, the financial institution shall submit a plan for operation that will insure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the franchise to another Grantee. If the Grantor finds that such transfer, after considering the legal, financial, character, technical, and other public interest qualifications of the applicant are satisfactory, the Grantor shall transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the Grantor to such transfer shall not be unreasonably withheld.

(e) Consent to Transfer Subordinate to City's Other Rights. The consent or approval of City to any transfer of the franchise shall not constitute a waiver or release of the rights of City in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of the franchise.

(f) Necessity for Completion of Construction. In the absence of extraordinary circumstances, City shall not approve any transfer or assignment of the franchise prior to completion of construction of the proposed system.

(g) Right to Purchase Cable System. The franchise agreement shall provide the terms and conditions under which the City has the right to purchase the cable system, if and when it is placed on the market for sale.

(h) Successor in Interest. In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the existing franchise agreement, or a modified franchise agreement approved by City.

(Prior code § 63010; added by Ord. No. 1407CCS, adopted 4/28/87)

In accepting a franchise, Grantee acknowledges that its rights hereunder are subject to the police powers of City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by City pursuant to such power.

Any conflict between the provisions of this ordinance and any other present or future lawful exercise of City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any cable communications system franchise which contains provisions inconsistent with this ordinance shall prevail only if upon such exercise City finds any emergency exists constituting a danger to health, safety, property, or general welfare of such exercise if mandated by law.

(Prior code § 63011; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Annual Franchise Payment. A Grantee of a franchise hereunder shall pay to City an annual fee in an amount as designated in the franchise agreement. Such payment shall be in addition to any other prescribed fees, including, but not limited to, business license and permit fees, and shall commence as of the effective date of the franchise. City, upon request, shall be furnished a statement, either audited and certified by an independent Certified Public Accountant or certified by a financial officer of Grantee, reflecting the total amounts of gross revenues and all payments, deductions and computations for the period covered by the payment. City shall have the right to conduct an independent audit of Grantee's records, and if such audit indicates a franchise fee underpayment of 2% or more, Grantee shall assume all reasonable costs of such an audit.

(b) Acceptance by City. No acceptance of any payment by Grantee shall be construed as a release or as an accord and satisfaction of any claim City may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the Grantee. All amounts paid shall be subject to audit and recomputation by City.

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

(d) Franchise Fee Itemization. Any Grantee "pass through" or itemization of franchise fee costs on subscriber's bills shall be in accordance with Federal law.

(e) Failure to Make Required Payment. 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 maximum interest rate which could lawfully be charged by a private lender in effect upon the due date.

(2) A sum of money equal to 5% of the amount due in order to defray those additional expenses and costs incurred by City by reason of delinquent payment.

(Prior code § 63012; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.06. Regulation of Franchise

City shall exercise appropriate regulatory authority under the provisions of this Chapter and applicable law. If the franchise area served by the cable communications system also serves other contiguous or neighboring communities, City may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

(Prior code § 63013; added by Ord. No. 1407CCS, adopted 4/28/87)

City may exercise regulatory responsibility, including, but not limited to, the following areas:

(a) Administering and enforcing the provisions of the cable communications system franchise(s).

(b) Coordination of the operation of public, educational, and government access channels and facilities.

(c) Providing technical, programming, and operational support to public agency users, such as government departments, schools, and social service providers.

(d) Establishing procedures and standards for use of channels and facilities dedicated to PEG access use, if provided for in any franchise agreement.

(e) Planning expansion and growth of public benefit cable service.

(f) Analyzing the possibility of integrating cable communications with other local, state, or national telecommunications networks.

(g) Formulating and recommending long-range telecommunications policy.

(Prior code § 63014; added by Ord. No. 1407CCS, adopted 4/28/87)

As specified in the franchise agreement, City shall utilize a portion of the cable communications system capacity, and associated facilities and resources, to develop and provide cable services that will be in the public interest. It is the intent of City to insure that public, educational or government access facilities provided for in any franchise agreement shall be managed in the best public interest so that programming using such facilities will be open to all residents, and available for all forms of public expression, community information, and debate of public issues.

(a) Delegation of Public Usage Facility Management. City may delegate or assign all or a portion of the responsibility for management of public, education or government access facilities to an entity or entities which may include, but not be limited to, any of the following:

(1) A nonprofit public corporation.

(2) An access facility management commission or committee, appointed by City, or elected, and representing a broad spectrum of the community.

(3) An established nonprofit entity with special cable-casting capability, such as a local or regional community college.

(4) A grantee of a cable franchise.

(5) A City department or division with special cable-casting ability.

(b) Functions. Any entity or entities designated to manage all or a portion of the PEG access facilities and public usage of the system shall share responsibility with City for such of the following functions as may be specified by City:

(1) Management of Facilities. To assume responsibility for and management of the public access facilities as may in the franchise agreement be designated for community-based programming. Community channels may include public, educational, and government access channels, as designated in the franchise agreement.

(2) PEG Utilization. Receive and utilize or reallocate for utilization on a periodic basis, channel capacity, facilities, funding, and other support provided specifically for public usage of the cable communications system to conform with changing priorities and public needs.

(3) Administration and Regulation. To devise, establish, and administer rules, regulations, and procedures pertaining to the use and scheduling of the PEG access facilities.

(4) Reports on Utilization. Report to City annually, or upon request, on the utilization of resources, about the new public services developed and the benefits achieved for City and its residents.

(5) Non-Discriminatory Access. To assure that the PEG access facilities are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis.

(6) Non-Censorship. To assure that no censorship or control over program content of the PEG access facilities exists except as necessary to comply with Federal prohibition of material that is obscene.

(7) Hiring of Staff. To hire and supervise staff.

(8) Purchase of Materials. To make all purchases of materials and equipment that may be required.

(9) Development of Funding Sources. To develop sources of funding, such as foundation or Federal or state grants, to further community programming.

(10) Performance of Relevant Functions. To perform such other functions relevant to the PEG access facilities as may be appropriate.

(11) Establishment of Budget. To establish budgets on an annual basis, and utilize funds and resources received from City or the public usage entity designated in Section 6.108.06.030(a), for the purpose of PEG access programming.

(c) Access Rules. Any entity or entities to whom City delegates or assigns access facility management responsibilities shall complete a set of rules for the use of all or a portion of the access facilities which shall be promptly forwarded to City. The rules shall be prepared in cooperation with Grantee and confirmed by agreement between the PEG access facility management entity and Grantee. The rules shall, at a minimum provide for:

(1) Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise area.

(2) Prohibition of commercial use.

(3) Prohibition of any presentation of obscene material.

(4) Public inspection of the log of producers, which shall be retained by the Grantee for a period of four years.

(5) Procedures by which individuals or groups who violate any rule may be prevented from further access to the facilities.

(6) Free use of such reasonable amounts of channel time, cable-casting facilities, and technical support as are provided for in the agreement between any PEG access facility management entity and Grantee.

(Prior code § 63015; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Uniform Application. Grantee shall establish rates for its services that shall be applied fairly and uniformly to all subscribers in the franchise area.

(b) Schedule of Rates. Grantee shall maintain and file with City, a complete schedule of subscriber rates including all fees and charges for services. Grantee shall notify City and cable subscribers at least 30 days prior to any change in rates.

(c) Disconnection. There shall be no charge for disconnection from the system.

(d) Reconnection. If a subscriber has failed to pay properly due monthly fees or if a subscriber disconnects for seasonal periods, Grantee may require, in addition to full payment of any delinquent fees, a reasonable fee for reconnection.

(e) No Consideration Beyond Schedule. Grantee shall receive no consideration whatsoever for or in connection with its provision of service to its subscribers other than as filed with City.

(Prior code § 63016; added by Ord. No. 1407CCS, adopted 4/28/87)

To the extent permitted by law, the franchise agreement may provide a procedure for the review and approval of rate changes by the City.

(Prior code § 63017; added by Ord. No. 1407CCS, adopted 4/28/87)

At City's sole option, within 90 days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, City and Grantee shall meet publicly to review the performance and quality of service of the cable communications system. The reports required in Section 6.108.16.070 regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit comments during the review meetings, either orally or in writing, and these shall be considered.

(a) Within 30 days after the conclusion of the quality of service review meetings, City shall issue a report with respect to the adequacy of system performance and quality of service. If inadequacies are found, City may direct Grantee to correct the inadequacies within a reasonable period of time.

(b) Failure of Grantee, after due notice, to correct the inadequacies shall be considered a material breach of the franchise, and City may, at its sole discretion, exercise any remedy within the scope of this ordinance considered appropriate.

(Prior code § 63018; added by Ord. No. 1407CCS, adopted 4/28/87)

To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established:

(a) At City's sole option, City and Grantee shall hold a system and services review session on or about the second anniversary date of the franchise agreement. Subsequent system review sessions shall be scheduled by City approximately each two years thereafter.

(b) Sixty days prior to the scheduled system and services review session, Grantee shall submit a report to City indicating the following:

(1) All cable system services that are being provided on an operational basis, excluding tests and demonstrations, to cities in the United States with populations comparable to that in the franchise area, that are not provided to City.

(2) A plan for provision of such services, or a justification indicating why such services are not feasible for the franchise area.

(c) Topics for discussion and review at the system and services review sessions shall include, but not be limited to, services provided, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in the law, and regulatory constraints, and technical and economic feasibility of system expansion or upgrading.

(d) Either City or Grantee may select additional topics for discussion at any review session.

(e) All system and services review sessions shall be open to the public and Grantee shall provide notice of such session at least 10 days preceding each session in a newspaper of general circulation in City. Grantee shall notify its subscribers of all system and services review sessions by announcement on at least two channels of its system between the hours of 7:00 p.m. and 9:00 p.m., for 10 consecutive days preceding each session.

(f) Not later than 60 days after the conclusion of each system and services review session, City shall issue a report, including specifically a listing of any cable services not then being provided to City that are considered technically and economically feasible.

(Prior code § 63019; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) A Franchise Agreement may provide that subsequent to each System and Services Review Session and City issuance of a report thereon, as set forth in Section 6.108.06.070, the City Council shall have the authority to order a public hearing on the provision of additional channel capacity by Grantee or on the inclusion in Grantee's cable system of "state of the art" technology or upgraded facilities. Notice of such hearing shall be provided to Grantee and the public not later than 30 days prior to such hearing.

(b) The City Council may order provision of additional channel capacity or upgrading of facilities if after the hearing provided in subdivision (a), it makes each of the following findings:

(1) There exists a reasonable need and demand for additional channel capacity and/or state of the art technology or upgraded facilities.

(2) Provision has been made or will be made for adequate rates which will allow Grantee a fair rate of return on its investment (including the investment required to provide the additional channels and/or the state-of-the-art technology or upgraded facilities).

(3) Will not result in economic waste for Grantee.

(Prior code § 63020)

Subchapter 6.108.08. General Financial and Insurance Provisions

(a) Within 30 days after the granting of a franchise and prior to the commencement of any construction work by Grantee, Grantee shall file with City a construction bond in the amount specified in the franchise agreement in favor of City and any other person who may claim damages as a result of the breach of any duty by Grantee assured by such bond.

(b) Such bond shall be in the form approved by City and shall, among other matters, cover the cost of removal of any properties installed by Grantee in the event said Grantee shall default in the performance of its franchise obligation.

(c) In no event shall the amount of said bond be construed to limit the liability of Grantee for damages.

(d) City, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified, respectively, in Sections 6.108.08.020 and 6.108.08.030.

(Prior code § 63021; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Within 30 days after the award or renewal of a franchise, a Grantee shall obtain and maintain at its cost and expense, and file with the City Clerk, a completion and performance bond approved by the City Attorney and issued by a corporate surety authorized to do business in the State of California, in an amount equal to the anticipated costs of the proposed construction or reconstruction, including the cost of all system equipment, to guarantee the timely construction, or reconstruction and full activation of the cable communications system and the safeguarding of damage to private property and restoration of damages incurred by utilities.

The bond shall provide, but not be limited to, the following condition: There shall be recoverable by City, jointly and severally from the principal and surety, any and all damages, loss or costs suffered by City resulting from the failure of a Grantee to satisfactorily complete and fully activate the cable communications system throughout the franchise area pursuant to the terms and conditions of this Chapter and the Franchise Agreement.

(b) Any extension to the prescribed construction or reconstruction time limit must be authorized by the City Council. Such extension shall be authorized only when the City Council finds that such extension is necessary and appropriate due to causes beyond the control of a Grantee.

(c) The completion and performance bond shall be terminated only after the City Council finds that a Grantee has satisfactorily completed initial construction and activation or reconstruction of the cable communications system pursuant to the terms and conditions of this Chapter and the Franchise Agreement. The principal sum of the bond may be reduced upon application of Grantee and approval by City Council.

(d) The rights reserved to City with respect to the completion and performance bond are in addition to all other rights of City, whether reserved by this Chapter or authorized by law, and no action, proceeding, or exercise of a right with respect to such completion and performance bond shall affect any other rights which may be held by City.

(e) The completion and performance bond shall contain the following endorsement:

It is hereby understood and agreed that this bond may not be cancelled by the surety nor the intention not to renew be stated by the surety until 60 days after receipt by City, by registered mail, of written notice of such intent to cancel or not to renew.

(f) Upon any failure of a Grantee to satisfactorily complete construction or reconstruction and fully activate the cable communications system throughout the franchise area pursuant to the terms and conditions of this Chapter and the Franchise Agreement, or in the event of Grantee's abandonment or material delay of the construction, reconstruction, or activation of the system, City, after giving Grantee 10 days written notice and an additional 10 days to cure the failure, abandonment, or delay, shall become empowered thereby to enter the site of and take possession of the construction, reconstruction, or activation work for purposes of completing the work itself or employing some other person to complete the work, and for such purposes to allow and use Grantee's equipment provided that the entire expense of the completion of the work, whether done by City itself or by the employment of another person, shall be charged to Grantee and provided further, that the doing of such work by City itself or by the employment of other persons shall in no way relieve Grantee from any covenants, undertakings, duties, and obligations under this Chapter or franchise, nor limit the rights and remedies of City hereunder in any manner whatsoever.

(Prior code § 63022; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Within 30 days after the effective date of the franchise, Grantee shall deposit into a bank account, established by City and maintain on deposit through the term of this franchise, the sum specified in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits, and directions of any agency of City having jurisdiction over its acts or defaults under this ordinance, and the payment by the Grantee of any claims, liens, and taxes due City which arise by reason of the construction, operation, or maintenance of the system.

The security fund may be assessed by City for purposes including, but not limited to the following:

(1) Failure of Grantee to pay City sums due under the terms of the franchise.

(2) Reimbursement of costs borne by City to correct franchise violations not corrected by Grantee, after due notice.

(3) Monetary remedies or damages assessed against Grantee due to default or violation of franchise requirements.

(b) At City's sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit or other security acceptable to the City.

(c) If Grantee fails, after 10 days notice, to pay to City any franchise fee or taxes due and unpaid; or, fails to pay to City within such 10 days, any damages, costs, or expenses, which City shall be compelled to pay by reason of any act or default of Grantee in connection with the franchise; or, fails, after 30 days notice of such failure by City, to comply with any provision of the franchise which City reasonably determines can be remedied by an expenditure of the security fund, City may immediately withdraw the amount thereof with interest, from the security fund. Upon such withdrawal, City shall notify Grantee of the amount and date thereof.

(d) Within 30 days after notice to it that any amount has been withdrawn by City from the security fund pursuant to subsection (a) of this Section, Grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.

(e) The security fund deposited pursuant to this Section shall become the property of the City in the event that the franchise is revoked for cause by reason of the default of the Grantee. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than 90 days after the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the Grantee.

(f) The rights reserved to City with respect to the security fund are in addition to all other rights of City whether reserved by this ordinance or authorized by law, and no action, proceeding, or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right City may have.

(Prior code § 63023; added by Ord. No. 1407CCS, adopted 4/28/87)

By acceptance of the franchise granted by City, Grantee understands and shall agree that failure to comply with any time and performance requirements as stipulated in this Chapter and the Franchise Agreement, will result in damage to City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or non-performance; the Franchise Agreement shall include provisions for liquidated damages to be paid by Grantee, in amounts set forth in the Franchise Agreement and chargeable to the security fund for the occurrence of any of the following events:

(a) Failure to complete system construction or reconstruction in accordance with Sections 6.108.10.040 et seq., unless the City Council specifically approves the delay by motion or resolution, due to the occurrence of conditions beyond Grantee's control.

(b) Failure to provide upon written request, data, documents, reports, information, or to cooperate with City during a franchise renewal or transfer process or cable communications system review.

(c) Failure to test, analyze, and report on the performance of the system following a written request pursuant to this Chapter.

(d) For failure to provide in a continuing manner the types of services proposed in the accepted application, unless the City Council specifically approves Grantee a delay or change, or Grantee has obtained modification of its obligation under Section 625 of the Cable Communications Policy Act of 1984.

(e) Failure of Grantee to comply with operational, maintenance, or technical standards.

(f) Any other action or nonaction by Grantee, as agreed upon between City and Grantee, and set forth in the Franchise Agreement. Nothing in this Section shall preclude further liquidated damages as agreed upon by the parties in the Franchise Agreement.

(g) If the City Manager concludes that a Grantee is liable for liquidated damages pursuant to this Section, he or she shall issue to Grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis for the assessment, and shall inform Grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council and the City Council rules: (1) that the violation has been corrected, or (2) that an extension of time or other relief should be granted. A Grantee desiring a hearing before the City Council shall send a written notice of appeal by certified mail to the City Manager within 10 days of the date on which the City sent the notice of intention to assess liquidated damages. The hearing on the Grantee's appeal shall be within 30 days of the date on which City sent the notice of intention to assess liquidated damages. At any time after the expiration of the appeal period or after a hearing, if the City Council sustains in whole or in part the City Manager's assessment of liquidated damages, the City Manager may at any time thereafter draw upon the security fund or letter of credit required by Section 6.108.08.030. Unless the City Council indicates to the contrary, said liquidated damages shall be assessed beginning with the date on which City sent the notice of intention to assess the liquidated damages and continuing thereafter until such time as the violation ceases, as determined by the City Manager.

(Prior code § 63024; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Grantee shall by acceptance of any franchise granted indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, servants, and employees from any and all claims suits, judgments for damages or other relief costs, and attorneys' fees in any way arising out of or through:

(1) The act of City in granting the franchise.

(2) The acts or omissions of Grantee its servants, employees, or agents including, but not limited to, any failure or refusal by Grantee, its servants, employees, or agents to comply with any obligation or duty imposed on Grantee by this ordinance or the franchise agreement.

(3) The exercise of any right or privilege granted or permitted by this ordinance or the franchise agreement.

Such indemnification shall include, but not be limited to, all claims arising in tort, contracts, infringements of copyright, violations of statutes, ordinances, regulations or otherwise.

(b) In the event any such claims shall arise, the City or any other indemnified party shall tender the defense thereof to Grantee. Provided, however, that City in its sole discretion may participate in the defense of such claims at its expense, and in such event, Grantee shall not agree to any settlement of claims without City approval.

(Prior code § 63025; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Required Insurance. Grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

(1) Worker's Compensation Insurance. As required by California Labor Code and Employee Liability Insurance.

(2) Broad Form Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury, personal injury, and property damage, and broadcaster's liability, shall be maintained at the sum(s) specified in the franchise agreement.

(3) Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, non-ownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement.

(4) Subcontractor Coverage.

(b) Grantee shall include any of its subcontractors as insureds under the policies of insurance required herein, or alternatively, shall provide to City certificates of insurance and binding endorsements evidencing satisfactory compliance by each subcontractor with the insurance requirements stated herein.

(c) Verification of Insurance. Grantee shall furnish to City satisfactory certificates of insurance, copies of each insurance policy, and original endorsements affecting coverage required and fully complying with all insurance specifications stated herein. Each such original endorsement shall be signed by a person authorized by that particular insurer to bind coverage on its behalf.

(d) Acceptability of Insurers. Each required insurance policy shall be procured from insurance companies with a minimum rating of B + X or better by A.M. Best's rating service.

(e) Deductibles and Self-Insured Retention. Any deductibles or self-insured retention on the insurance policies required herein shall be declared to City and be subject to City's written approval. At the sole discretion of City, either (1) the insurer may be required to reduce or eliminate such deductibles or self-insured retentions as respects City, its officials, and employees; or (2) Grantee may be required to procure a bind guaranteeing payment of losses, related investigation, claim administration, and defense expenses.

(f) Notices Pertaining to Insurance Policies. Each policy of insurance shall require 30 days prior written notice of cancellations, non-renewal, or material changes in the terms of such policy. Notice thereof shall be given to City by registered mail, return receipt requested, for all of the above-stated insurance policies.

(g) Additional Requirements for Insurance Policies.

(1) This insurance shall not be cancelled, limited in scope of coverage or limits, or non-renewed until 30 days written notice has been given to City.

(2) The City of Santa Monica, members of its City Council, board and commission, officers, agents, volunteers, and employees are included as additional insureds with regard to damages and defenses of claims arising from (i) activities performed by or on behalf of Grantee, (ii) products and completed operations of Grantee, or (iii) premises owned, leased, or used by Grantee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, agents, volunteers, or employees.

(3) Grantee's insurance coverage shall be primary with respect to the City, its officers, agents, volunteers, and employees. It is agreed that any insurance or self-insurance maintained by City shall apply in excess of and not contributory with, insurance provided by the policy.

(4) Insurers shall have no right of recovery or subrogation against City (including its officers, employees, volunteers, and other agents and agencies), it being the intention of the parties that the insurance polices so effected shall protect both parties and be primary coverage for any and all losses covered by the above-described insurance.

(5) The above-described policies shall apply separately to each insurance company against whom claim is made or suit is brought except with respect to the limits of the insurance company's liability.

(6) The insurance company issuing the policy or policies shall have no recourse against the City for payment of any premiums or for assessments under any form of policy.

(7) Any and all deductibles in the above-described insurance policies shall be assumed by and be for the account of, and at the sole risk of, Grantee.

(8) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, employees, agents, or volunteers.

(h) The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of Grantee to City under the franchise issued hereunder to the amounts of such insurance.

(Prior code § 63026; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.10. Design and Construction Provisions

The cable communications system shall be constructed in accordance with the design, construction, or reconstruction requirements contained in the franchise agreement.

(Prior code § 63027; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall design and construct the cable system in such a manner as to have the capability to pass by every dwelling unit, including mobilehomes and trailers, school, public or nonprofit corporation, business, or agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. Cable system construction and provision of service shall be non-discriminatory, and Grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference.

(Prior code § 63028; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall provide cable-casting facilities in accordance with the requirements of the franchise agreement.

(Prior code § 63029; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Grantee shall comply with the requirements of the system construction or reconstruction schedule contained in the franchise agreement.

(b) Grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, Grantee shall update this information on a monthly basis, showing specifically whether schedules are being met and the reasons for any delay.

(Prior code § 63030; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall make a good faith and diligent effort to obtain all necessary permits and clearances. Within two months after the effective date of a franchise, Grantee shall report to City its estimate of the initial construction or reconstruction starting date, with all construction requirements based on that date, provided, however, that Grantee may adjust its estimated initial date upon a showing of delays which are beyond its reasonable control or which are not reasonably foreseeable.

(Prior code § 63031; added by Ord. No. 1407CCS, adopted 4/28/87)

After service has been established by activating trunk cables for any area, Grantee shall provide service to any requesting subscriber within that area within 30 days from the date of request.

(Prior code § 63032; added by Ord. No. 1407CCS, adopted 4/28/87)

The undergrounding of cable is encouraged. Cables shall be installed underground at Grantee's cost where utilities are already underground. Previously installed aerial cable shall be undergrounded and relocated in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction.

(Prior code § 63033; added by Ord. No. 1407CCS, adopted 4/28/87)

In cases of new construction or property development where utilities are to be placed underground, upon request by Grantee, the developer or property owner shall give Grantee reasonable notice of the particular date on which open trenching will be available for Grantee's installation of conduit, pedestals and/or vaults, and laterals to be provided at Grantee's expense. Grantee shall also provide specifications as needed for trenching.

Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Grantee fails to install its conduit, pedestals and/or vaults, and laterals within five working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five day period, the cost of new trenching shall be borne by Grantee.

(Prior code § 63034; added by Ord. No. 1407CCS, adopted 4/28/87)

In cases of multiple dwelling units serviced by aerial utilities, Grantee shall make every effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit. The burden of proof shall be upon Grantee to demonstrate why undergrounding of drop cables is technically or economically unfeasible.

(Prior code § 63035; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Any wires, cable lines, conduits, or other properties of the Grantee to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved by the General Services Director and subject to all provisions of this subchapter.

(b) Grantee shall not install any facilities or apparatus in or on other public property, places, easements, or rights-of-way, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, except those installed in or on public utility facilities now existing, without obtaining the prior written approval of the General Services Director and without paying for the use of such property.

(c) Grantee shall cause a key map and detailed plat maps of the entire system, showing materials of construction and horizontal and vertical locations with respect to property lines and grade lines, to be prepared by a registered professional civil engineer or a licensed land surveyor and filed in the office of the General Services Director prior to the issuance of a permit for construction, or within 90 days after the granting of a franchise to operate and maintain facilities existing prior to the adoption of this Section. Prior to requesting the issuance of a permit for the installation of any facility or apparatus in accordance with the provisions of this Section, Grantee shall file such key map and detailed plat maps with all utility companies and public agencies whose facilities are affected by such installation and obtain a statement signed by a responsible official thereof that such utility or public agency has no objection to the proposed location of such facility. Such utility companies and public agencies shall act upon a request made to them by a Grantee in accordance with the foregoing provisions within 30 days after such request has been made to such utility or public agency.

(d) Grantee, upon the request of any person or agency who has contracted to perform work on a public right-of-way, shall provide accurate detailed information to such person or agency regarding the location of any of the Grantee's facilities in such right-of-way. Such information, if requested, shall include sending a representative familiar with the installation of cable facilities to the site of the work to mark or designate the location of the facilities of Grantee.

(e) In order that the provisions of this Section may be reasonably applied, in instances where extreme or unnecessary hardship would result from carrying out the provisions of this Section, the City Council shall have the power to vary the mandatory provisions of this Section in any specific case in such a manner that substantial justice is done upon a showing by Grantee of good cause therefor.

(Prior code § 63036; added by Ord. No. 1407CCS, adopted 4/28/87)

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

(b) In case of disturbance of any street, easement, or paved area or other property the Grantee shall, at its own cost and expense and in a manner and time period approved by the City, replace and restore such street easement or paved area, or other property in as good a condition as before the work involving such disturbance was done.

(c) The Grantee, at its expense, shall 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 General Services Director by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grades, or the installation of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of structures or improvements by public agencies; provided, however, that Grantee in all such cases shall have the privileges, and be subject to the obligations, to abandon any property of the Grantee in place.

Upon the failure of the Grantee to commence, pursue, or complete any work required by law, or by the provisions of this Chapter, or by its franchise, to be done in any street or other public place within the time prescribed, and to the satisfaction of the General Services Director, the General Services Director, at his option, may cause such work to be done, and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the General Services Director to the Grantee within 30 days after receipt of such itemized report. City shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.

(d) Any poles or other fixtures places in or adjacent to any street by the Grantee shall be placed in such manner as to comply with all requirements of the City.

(e) Grantee shall, at the request of any person holding a moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance. Grantee shall be given not less than 48 hours notice to arrange for such temporary wire changes.

(f) Grantee shall notify City regarding the need to trim trees upon and overhanging streets of City so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee; at the option of City, such trimming may be done by City at the expense of Grantee, or by Grantee under City's supervision and direction of the expense of Grantee. When authorized, trimming shall be limited to the area required for clear cable passage and shall not include major structural branches which materially alter the appearance and natural growth habits of the tree.

(Prior code § 63037; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Construction Standards.

(1) Grantor Codes and Permits. Grantee shall comply with all applicable City construction codes and permits procedures. City shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction or reconstruction of the cable system, or by the construction, remodeling, or maintenance of buildings, structures, or grounds within the City and under control of Grantee.

(2) Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of federal and state occupational and safety acts and any amendments thereto as well as all state and local codes where applicable.

(3) Compliance with Pole Attachment Standards. All aerial construction shall comply with the practices included in the Bell System Code of Pole Line Construction.

(4) Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code (National Fire Protection Association) and the National Electrical Safety Code (National Bureau of Standards), as amended, and all applicable state and local codes.

(5) Antennas and Towers. Antenna supporting structure (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R.S. 222-A specifications.

(6) Compliance with Aviation Requirements. Antenna supporting structures (towers) shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations.

(7) Construction Standards and Requirements. All of Grantee's plant and equipment including, but not limited to, the antenna site, head-end and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements City may deem proper to make, or to interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.

(8) Safety, Nuisance Requirements. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

(b) Technical Standards. The Cable Communications System shall meet all technical guidelines of the FCC, and all standards contained in the franchise agreement.

(c) Test and Compliance Procedure. Grantee shall submit, within 60 days after the effective date of the franchise agreement, a detailed test plan describing the methods and schedules for testing the cable communications system on an ongoing basis to determine compliance with the provisions of the franchise agreement. The tests shall be in general conformance with the provisions of the Standards of Good Engineering Practices for Measurements on Cable Television Systems, issued by the National Cable Television Association, and performed at intervals no greater than 12 months. The tests may be witnessed by representatives of City, and written test reports shall be submitted to City. If more than 10% of the locations tested fail to meet the performance standards, Grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. A second failure of more than 10% may result, at City's option, in appropriate remedies.

(d) Special Tests. At any time after commencement of service to subscribers, City may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. City shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber.

(Prior code § 63038; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Interconnection Required. Grantee shall interconnect public usage channels of the cable communications system with any or all other cable systems in adjacent areas, upon the directive of City. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.

(b) Interconnection Procedure. Upon receiving the directive of City to interconnect, Grantee shall immediately initiate negotiations with the other affected system or systems, and shall report to City the results of such negotiations no later than 60 days after initiation.

(c) Relief. Grantee may be granted reasonable extensions of time to interconnect or City may rescind its order to interconnect upon petition by Grantee to City. City may grant said request if it finds that Grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

(d) Cooperation Required. Grantee shall cooperate with any interconnection corporation, regional interconnection authority or City, County, State, or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise area.

(e) Initial Technical Requirements to Assure Future Interconnection Capability.

(1) Every Grantee receiving a franchise to operate a cable communications system within the franchise area shall use the same frequency allocations for commonly provided television signals so far as is technically and economically feasible.

(2) Grantee shall provide local origination and access equipment that is compatible throughout the area so that videocassettes or videotapes can be shared by various systems.

(Prior code § 63039; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.12. Service Provisions

Grantee shall provide the initial services listed in the franchise agreement. Services shall not be reduced without 30 days prior notification to City.

(a) A franchise application or proposal for renewal shall include a description of Grantee's system design and a description of programming and services being offered, including optional premium services, a description of facilities being proposed for local origination programming, and facilities being offered to various community institutions. The offer of programming and services contained within a Grantee's application shall be deemed a binding offer of such Grantee for and to the benefit of City and the subscribers of Grantee. In the event a program originator ceases to provide a service, or in the event Grantee determines that other programming or cable services may be of greater benefit to subscribers, Grantee may, subject to subsections (a) and (b) of this Section, and upon 30 days prior written notice to City, substitute services. City may include categories of video programming or other services as franchise requirements as provided by the Cable Communications Policy Act of 1984.

(b) The system, after the incorporation of such substitute services, shall satisfy the warranties made by Grantee to subscribers and potential subscribers in its application for a franchise. The City Council shall have the right to review any actual or proposed substitution of service that Grantee has made or may make and may order a change therein if it determines, after a hearing, that any warranty has been violated, or that certain broad categories of video or other information programs that were committed by Grantee in its Proposal are not being delivered. Any such order shall issue only after a public hearing has been scheduled and held; and written notice of such hearing shall have been provided to Grantee and to the public at least 30 days prior to such hearing. Any such order may be enforced by an appropriate action in the courts of California or the United States. A Grantee shall not, in relation to this Section, be deemed to have waived any right accorded to a franchised cable television operator arising under the First Amendment to the Constitution of the United States or Article I, Section 2 of the California Constitution.

(c) Notwithstanding subsections (a) and (b), Grantee may, in accordance with the Cable Communications Policy Act of 1984, upon 30 days prior written notice to City, rearrange, replace, or remove a particular cable service required by the franchise if:

(1) Such service is no longer available to Grantee; or

(2) Such service is available to Grantee only upon the payment of a royalty required under Section 801(b)(2) of Title 17, United States Code, which Grantee can document:

(i) Is substantially in excess of the amount of such payment required on the date of Grantee's offer to provide such service, and

(ii) Has not been specifically compensated for through a rate or increase or other adjustment.

Notwithstanding subsections (a) and (b), Grantee may take such actions to rearrange a particular service from one service tier to another, or otherwise offer the service, if the rates for all of the service tiers involved in such actions are not subject to regulation.

(Prior code § 63040; added by Ord. No. 1407CCS, adopted 4/28/87)

The "Basic Cable Service" shall include any service tier which includes the retransmission of local television signals and shall include at least one channel for public access, one channel for educational access, and one for government access. This service shall be provided to all subscribers at the established monthly subscription rates.

(Prior code § 63041; added by Ord. No. 1407CCS, adopted 4/28/87)

The "Basic Radio Service" shall include the provision of all audio services designated in the franchise agreement, including retransmission of local broadcast FM radio signals, and cable cast FM signals. This service shall be provided to all subscribers at established monthly subscription rates.

(Prior code § 63042; added by Ord. No. 1407CCS, adopted 4/28/87)

If specified in the franchise agreement, the "Institutional Service" shall include the provision of transmission and/or reception services to institutional users, on a commercial use basis at established rates. Services may include the distribution of video or non-video signals.

(Prior code § 63043; added by Ord. No. 1407CCS, adopted 4/28/87)

"Additional Subscriber Services," not included in the services specified above, may be provided either within the basic cable service rates or on a premium basis, subject to applicable law.

(Prior code § 63044; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall operate any cable casting studios on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests. The primary emphasis for the local origination channel(s) shall be on providing community-focused programming that is unavailable to viewers on broadcast television channels.

(Prior code § 63045; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall provide the PEG access facilities, including channel capacity, necessary interface equipment, and cabling, to permit operation as specified in the franchise agreement.

(Prior code § 63046; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall designate channel capacity for commercial use as required by applicable law.

(Prior code § 63047; added by Ord. No. 1407CCS, adopted 4/28/87)

If City determines that a new service would be in the public interest and receives a bona fide offer from a third party to provide such a service, Grantee shall be offered the first right of refusal to provide the service on the same terms. If Grantee declines to provide the service, City may utilize appropriate PEG access facilities to accommodate that service.

(Prior code § 63048; added by Ord. No. 1407CCS, adopted 4/28/87)

City may require that all dwelling units within the franchise area shall be connected physically to the cable system by Grantee by means of drop cables terminating at each dwelling unit, whether or not the dwelling unit's occupants desire to subscribe to cable service. The cost and charges shall be determined at the time such connection is required. Grantee shall be entitled to recover the incremental cost of providing a universal connection.

(Prior code § 63049; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.14. Operation and Maintenance

City shall have the right to inspect at any time during normal business hours all books, records, maps, plans, service complaint logs, performance test results and other like materials of Grantee which relate to the operation of the franchise. Grantee shall keep a separate record for the franchise at an office within the franchise area, which record shall show the items set forth herein. Grantee shall provide such information in such form as may be reasonably required by City for said records.

If any of such books or records are not kept in the local office, or upon reasonable request made available to City, and if City shall determine that an examination of such records is necessary or appropriate to the performance of any of City's duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by Grantee.

(Prior code § 63050; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) In any event Grantee shall at all times maintain:

(1) The complaint file required by Section 6.108.16.070.

(2) A full and complete set of plans, records and "as-built" maps showing the exact location of all cable communications system equipment installed or in use in the franchise area, exclusive of subscriber service drops.

(Prior code § 63051; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Non-Discrimination. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of sex, race, color, religion, ancestry, national origin, age, handicap, pregnancy, marital status, family composition, or the potential or actual occupancy of minor children. Grantee shall comply at all times with all applicable federal, state, and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this ordinance by reference.

(b) Fairness and Accessibility. The entire system of Grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios, and other services to all citizens, businesses, public agencies, and other entities having a legitimate use for the system, and no one shall be arbitrarily excluded from its use. Allocation of use of said facilities shall be made according to the rules or decisions of Grantee, City in its lawful exercise of regulatory authority, and any state or federal regulatory agencies affecting the same.

(Prior code § 63052; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to Grantee are honored. In the event that Grantee elects to overbuild, rebuild, modify, or sell the system, or City gives notice of intent to terminate or fails to renew this franchise, Grantee shall act so as to ensure all subscribers receive continuous, uninterrupted service.

In the event of a change of franchisee, or in the event a new operator acquires the system, Grantee shall cooperate with City, new franchisee, 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, and shall be entitled to reasonable costs for its services when it no longer operates the system.

(b) In the event Grantee fails to operate the system for seven consecutive days without prior approval of City or without just cause, City may, at its option, operate the system or designate an operator until such time as Grantee restores service under conditions acceptable to City or a permanent operator is selected. If City is required to fulfill this obligation for Grantee, then during such period as City fulfills such obligation, City shall be entitled to collect all revenues from the system, and Grantee shall reimburse City for all reasonable costs or damages in excess of the revenues collected by City that are the result of Grantee's failure to perform.

(Prior code § 63053; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall have the authority to promulgate such rules, regulations, terms, and conditions governing the conduct of its business as shall be reasonably necessary to enable Grantee to exercise its rights and perform its obligations under the franchise and to assure an uninterrupted service to each and all of its customers. Such rules regulations, terms, and conditions shall not be in conflict with the provisions hereof or applicable state and federal laws, rules, and regulations. Such rules, regulations, terms and conditions shall be filed with City.

(Prior code § 63054; added by Ord. No. 1407CCS, adopted 4/28/87)

Every employee of Grantee or its construction contractors or subcontractors shall be clearly identified with the name of Grantee visible to the public as a representative of Grantee. Every service vehicle of Grantee or its construction contractors or subcontractors shall also be clearly marked. All letters and numbers on such vehicles shall be at least three inches high. Grantee employees and agents shall also wear an identification badge with the agent's name and photograph.

(Prior code § 63055; added by Ord. No. 1407CCS, adopted 4/28/87)

Throughout the terms of the franchise, Grantee shall conduct its business as an Equal Opportunity Employer. In addition, throughout the term of the franchise, Grantee shall maintain a policy that all employment decisions, practices, and procedures are conducted without discrimination in violation of state or federal law on the basis of an individual's race, color, religion, age, sex, national origin, or physical or mental handicap. Grantee's policy shall apply to all employment actions including advertising, recruiting, hiring, promotion, transfer, renumeration, selection for training, company benefits, disciplinary action, lay-off, and termination. Grantee shall carry out this policy through continued dedication to a determined and sustained effort to provide equal employment opportunities.

(Prior code § 63056; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.16. Consumer Protection

(a) Grantee shall maintain an office in the service area which shall be open not less than fifty hours per week with a minimum eight hour day on weekdays and four hour day on Saturdays. Grantee shall maintain a publicly listed toll-free telephone with sufficient communication lines and staff so as to receive requests for initiating cable service and requests for repairs, billing, or adjustments on a 24 hour a day basis.

(b) Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written log or an equivalent stored in computer memory and capable of access and reproduction, shall be maintained for all service interruptions and requests for cable service as required by Section 6.108.16.070.

(c) Grantee shall maintain sufficient repair and maintenance crews capable of responding to subscriber complaints or requests for service within the following time periods after receipt or notification of the complaint or request, including weekends. No charge shall be made to the subscriber for this service unless the service request can be demonstrated to be both repeated and non-cable system in origin, or as a result of damage caused by subscriber.

(1) System Outage. Within two hours of receiving subscriber calls which by number identify a system outage of sound or picture of one or more channels, affecting all subscribers of the system or a considerable number thereof.

(2) Isolated Outage. Within 24 hours of receiving a request for service identifying an isolated outage of sound or picture for one or more channels.

(3) Inferior Reception Quality. Within 48 hours of receiving a request for service identifying a problem concerning picture or sound quality.

(Prior code § 63057; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Procedures. Grantee shall establish procedures for receiving, acting upon, and resolving subscriber complaints to the satisfaction of the City Manager. Such procedures shall include a method for resolving subscriber complaints without intervention by City and shall prescribe the manner in which a subscriber may submit in writing a complaint that Grantee has violated any provision of this Chapter, or the terms and conditions of the subscriber's contract with Grantee and the manner in which the Grantee will promptly resolve such complaint. Grantee shall furnish a notice of such procedures to each subscriber at the time of initial subscription to the system, and annually thereafter.

(b) Complaints to Grantee. Any subscriber who cannot resolve a dispute with the Grantee may file a complaint with the Grantee on a form approved by the City Manager. Immediately upon receipt of a complaint from a subscriber, Grantee shall assign a case number to such complaint and send to the complaining subscriber written acknowledgment of receipt of the complaint as well as a description of the complaint resolution process.

(c) Grantee Investigation. Upon receipt of a Subscriber Statement of Complaint, Grantee shall conduct an investigation of the subscriber complaint. Grantee, within 10 days of receiving the complaint, shall notify the subscriber in writing of the results of the investigation, its proposed action or resolution, if any and the reason for its decision. Grantee shall also notify the subscriber of the subscriber's right to file a request for hearing with City in the event the subscriber is dissatisfied with Grantee's decision.

(Prior code § 63058; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) A subscriber who is dissatisfied with Grantee's decision or who was not sent a written decision within the 10 day period can file a request for a hearing with the City Clerk within 10 days of receipt of Grantee's decision or if Grantee has failed to issue a decision as required in Section 6.108.16.020(b), within 30 days of filing of the subscriber's complaint.

(b) The City shall notify the Grantee of the request for a hearing and the Grantee shall immediately forward to the City copies of all materials, including the complaint, investigation reports, and decisions, related to the dispute. The City shall set the matter for hearing as provided in Section 6.108.16.040 unless it informally resolves the complaint to the subscriber's satisfaction within 10 days.

(Prior code § 63059; added by Ord. No. 1407CCS, adopted 4/28/87)

A hearing shall be conducted by a hearing officer appointed by City following notice in writing specifying the time and place for such hearing. The hearing shall be conducted in accordance with procedures established by the City pursuant to prior Municipal Code Sections 6126C—E and will be scheduled within 20 days of receipt of the request. The hearing shall be conducted informally, and the parties may offer any evidence relevant to the dispute, which the hearing officer may deem necessary to an understanding and determination of the dispute. The decision of the hearing officer shall be final and there shall be no right of appeal. Grantee shall defray the full cost of the hearing officer proceedings. In the event Grantee fails or refuses to advance fees or costs as required by the hearing officer, such fees or costs shall be obtained from the security fund. The procedures provided in this Section shall not limit any common law or statutory rights of subscribers.

(Prior code § 63060; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall provide written notice to each subscriber at least once every calendar year describing the procedure established by Grantee for resolving subscriber complaints and of the subscriber's right to have Grantee's response to a subscriber complaint reviewed by the City in accordance with the provisions of this ordinance. The notice shall include the name, business address, and business telephone numbers of Grantee's office and of City office designated to receive complaints. The form of the notice shall be subject to the approval of City.

(Prior code § 63061; added by Ord. No. 1407CCS, adopted 4/28/87)

A hearing officer may, as a part of a subscriber complaint decision issued under the provisions of this Chapter, impose a penalty on Grantee as specified in the franchise agreement. A penalty may be imposed only if the hearing officer finds that Grantee has arbitrarily refused or failed without justification to comply with the provisions of this Chapter, including, but not limited to, failing to provide a written response to a subscriber complaint.

(Prior code § 63062; added by Ord. No. 1407CCS, adopted 4/28/87)

An accurate and comprehensive file shall be kept by Grantee of any and all complaints regarding the cable system. All Service complaint records shall be retained on file for a period of three years. Complete records of Grantee's actions in response to all complaints shall be kept. These files and records shall include:

(a) A summary of complaints, identifying the number and nature of complaints, the date and time complaints were received, and their disposition, in a form approved by City. A copy of the summary shall be completed for each month and submitted to City by the tenth day of the succeeding month.

(b) A written or computer-stored log and summary of all service interruptions.

(c) A written or computer-stored log and summary of all requests for cable service and their disposition.

(d) The results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with cable communications services offered by Grantee. A copy shall be submitted to City no later than two months after the end of Grantee's fiscal year. The survey required to make said report shall be in a format approved by City and may be in a form that can be transmitted to subscribers with one or more bills for service, such as postage-paid self-addressed postcards.

(Prior code § 63063; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by Grantee, to the following:

(a) Grantee's providing of the service to units of the facility.

(b) Reasonable conditions and times for installation, maintenance, and inspection of the system on the facility premises.

(c) Payment to owner by Grantee of reasonable fees for access to property.

(d) Reasonable conditions promulgated by Grantee to protect Grantee's equipment and to encourage widespread use of the system.

(e) Absence of additional rental charges for tenants who receive cable service.

(Prior code § 63064; added by Ord. No. 1407CCS, adopted 4/28/87)

When there have been similar complaints made or when there exists other evidence which, in the judgment of the City Manager, casts doubt on the reliability or quality of cable service, the City Manager may require Grantee to test, analyze, and report on the performance of the system. Such report shall be delivered to the City Manager no later than 14 days after the City Manager notifies Grantee of the required report and 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 test; and the method in which said complaints were resolved. If requested, the City Manager may allow Grantee additional time to complete the report for good cause.

The City Manager may require that tests and analyses shall be supervised by a professional engineer not on the permanent staff of Grantee. After the engineer has signed all records of the special tests they shall be forwarded to the City Manager with a report interpreting the results of the tests and recommending actions to be taken by Grantee and City.

The City Manager may require tests, analyses, and reports covering specific subjects and characteristics based on complaints or other evidence when and under such circumstances as the City has reasonable grounds to believe that the complaints or other evidence requires the tests be performed to protect the public against substandard cable service. Grantee shall be responsible for the costs of any and all tests, analyses, and reports required under this Section.

(Prior code § 63065; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Each Grantee shall strictly observe and protect the rights of privacy and of property of subscribers and users at all times. Information on individual subscribers, individual subscriber preferences of any kind including, but not limited to, viewing habits, political, social, or economic philosophies, beliefs, creeds, religions, shopping choices, interests, opinions, energy uses, medical information, banking data or information, or names, addresses, or telephone numbers, or any other personal or private information, shall not be maintained or revealed to any person, mailing service, investigating agency or department, company, other agency, or entity unless upon the authority of a court of law or upon prior written permission of the subscriber. The request for permission must be contained in a separate document with a prominent statement that the subscriber is authorizing the permission in full knowledge of its provision. Such authorization shall not in any event be required as a condition of receiving service.

(b) Grantee may release the number of its subscribers but only as a total number and as a percentage of the potential subscribers throughout the City. When indicating the number of subscribers viewing a particular channel at a particular time, Grantee shall indicate only the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent, but never the identity of a particular subscriber. Grantee shall provide such information to City upon request.

(c) At the time of entering into an agreement to provide any cable service or other service to a subscriber and at least once a year thereafter, a cable operator shall provide notice in the form of a separate, written statement to such subscriber which clearly and conspicuously informs the subscriber of:

(1) The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information.

(2) The period during which such information will be maintained by the cable operator.

(3) The times and place at which the subscriber may have access to such information in accordance with subsection (f).

(4) The limitations provided by this Section with respect to the collection and disclosure of information by a cable operator and the right of the subscriber under state and federal law to enforce such limitations.

(d) Information collected on individual subscribers shall be limited to information that is relevant and necessary to provision of the services requested by subscribers.

(e) Grantee shall be responsible for the accuracy, relevance, and completeness of any information collected, maintained, and revealed about individual subscribers.

(f) A cable subscriber shall be provided access to all personally identifiable information regarding that subscriber which is collected and maintained by a cable operator. Such information shall be made available to the subscriber at reasonable times and at a convenient place designated by such cable operator. A cable subscriber shall be provided reasonable opportunity to correct any error in such information.

(g) Grantee may maintain such information as is necessary to bill subscribers for the purchase of any system service. Grantee may contract for billing services, with the written consent of the City provided that such contractor agrees to be bound by the provisions of this Section and the penalties thereto pertaining.

(h) Neither Grantee nor any other person shall initiate in any form, the discovery of any information on or about a subscriber's premises without prior valid authorization from the subscriber potentially affected.

(i) A subscriber may at any time revoke any authorization previously made, by delivering to Grantee in writing by mail or otherwise, his/her decision to so revoke. Any such revocation shall be effective upon receipt by franchisee.

(j) No monitoring of any subscriber terminal shall take place without specific prior valid written authorization by the user of the terminal in question; provided, however, that Grantee may conduct systemwide or individually addressed "sweeps" for the sole purpose of verifying system integrity. Grantee shall not initiate a subscriber response mechanism without a finding by the City Manager that the response mechanism can operate effectively and yet give absolute protection against any invasion of privacy.

(k) Grantee shall not tabulate any test results, nor permit the use of the system for such tabulation, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licensees, or employees without prior valid written authorization of the subscriber.

(l) Each compilation, publication, tabulation, or other dissemination of each piece of information made or permitted to be made in violation of this Section shall be considered a separate violation.

(Prior code § 63066; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.18. Rights Reserved to City

Nothing contained in this Chapter shall be deemed or construed to impair or affect, in any way, to any extent, the right of City to acquire the property of Grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing contained in this Chapter shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City's right of eminent domain.

(Prior code § 63067; added by Ord. No. 1407CCS, adopted 4/28/87)

There is hereby reserved to City every right and power which is required to be reserved by the provisions of this Chapter or by any law of the City, and Grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such skills or power heretofore or hereafter enacted or established.

(Prior code § 63068; added by Ord. No. 1407CCS, adopted 4/28/87)

There is hereby reserved to the City the power to amend any Section of this Chapter so as to require additional or greater standards of construction, operation, maintenance, or otherwise on the part of Grantee.

(Prior code § 63069; added by Ord. No. 1407CCS, adopted 4/28/87)

Neither the granting of any franchise under the provisions of this Chapter nor any provision of this Chapter shall constitute a waiver or bar to the exercise of any governmental right of power of City.

(Prior code § 63070; added by Ord. No. 1407CCS, adopted 4/28/87)

The City Council may take such actions as are necessary and convenient in the exercise of its jurisdiction under the provisions of this Chapter.

(Prior code § 63071; added by Ord. No. 1407CCS, adopted 4/28/87)

City shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law.

(Prior code § 63072; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall allow City to make inspections of any of Grantee's facilities and equipment at any time upon reasonable notice, or, in the case of emergency, upon demand without prior notice.

(Prior code § 63073; added by Ord. No. 1407CCS, adopted 4/28/87)

City shall have the right of intervention in any suit or proceeding to which Grantee is party, and Grantee shall not oppose such intervention by City.

(Prior code § 63074; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.20. Franchise Violations and Termination

If Grantee fails to perform any obligation under the franchise, or fails to do so in a timely manner, City may at its option, and in its sole discretion:

(a) Assess against Grantee monetary damages up to the limits established in the franchise agreement for material franchise violations, said assessment to be levied against the security fund, hereinabove provided, and collected by City immediately upon said assessment. The amount of such assessment shall be deemed, without proof to represent liquidation of damages actually sustained by City by reason of Grantee's failure to perform. Such assessment shall not constitute a waiver by City of any other right or remedy it may have been under the franchise or under applicable law including, without limitation, its right to recover from Grantee such additional damages, losses, costs and expenses, including actual attorney's fees, as may have been suffered or incurred by City by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart from City's right to enforce the provisions of the construction and performance bonds provided for in Sections 6.108.08.010 and 6.108.08.020, and is intended to provide compensation to City for actual damages.

(b) Terminate the franchise, for any of the causes stated in Section 6.108.20.040, below, or other material breach of the franchise.

(Prior code § 63075; added by Ord. No. 1407CCS, adopted 4/28/87)

City may impose the following remedies with regard to delays in new system construction, or major system reconstruction or expansion:

(a) Reduction in the duration of the franchise on a month-for-month basis for each month of delay exceeding six months.

(b) Forfeiture of construction bonds and/or assessment of monetary damages up to the maximum per day and per incident limits specified in the franchise agreement, levied against the security fund, for delays exceeding one year.

(c) Termination of the franchise within one year after award of the franchise if Grantee has failed to initiate scheduled system construction or reconstruction.

(d) Termination of the franchise for delays exceeding 18 months.

(Prior code § 63076; added by Ord. No. 1407CCS, adopted 4/28/87)

In the event that City determines that Grantee has violated any provision of the franchise, any rule or regulation promulgated pursuant hereto or any applicable federal, state, or local law, City may make a written demand on Grantee that it remedy such violation. If the violation breach, failure, refusal, or neglect is not remedied to the satisfaction of City within 30 days following such demand, City shall determine whether or not such violation, breach, failure, refusal, or neglect by Grantee was excusable or inexcusable, in accordance with the following procedure:

(a) A public hearing shall be held and Grantee shall be provided with an opportunity to be heard upon 30 days written notice to Grantee of the time and the place of the hearing provided and the allegations of franchise violations.

(b) If, after notice is given and, at Grantee's option, a full public proceeding is held, City determines that such violation, breach, failure, refusal, or neglect by Grantee was excusable as provided in Section 6.108.20.070 below, City shall direct Grantee to correct or remedy the same within such additional time, in such manner, and upon such terms and conditions as City may direct.

(c) If, after notice is given and, at Grantee's option, a full public proceeding is held, City determines that such violation, breach, failure, refusal, or neglect was inexcusable, then City may impose a remedy in accordance with Section 6.108.20.010 above.

(Prior code § 63077; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Grounds for Revocation. City reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the event of a material breach of this ordinance or the franchise agreement. A material breach of the franchise shall include, but not be limited to:

(1) If Grantee should default in the performance of any of its material obligations under this ordinance or under such documents, agreements, and other terms and provisions entered into by and between City and Grantee, subject to the provisions of Section 6.108.20.030.

(2) If Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund and bonds as required herein.

(3) If any court of competent jurisdiction, or any Federal or State regulatory body by rules, decisions, or other action determines that any material provision of the franchise documents, including this ordinance, the franchise agreement, and Grantee's application is invalid or unenforceable prior to the commencement of system construction.

(4) If Grantee should willfully violate any orders or rulings of any regulatory body having jurisdiction over Grantee relative to the franchise.

(5) If Grantee ceases to provide services of the cable communications system for any reason within Control of Grantee.

(6) If Grantee attempts to evade any of the provisions of this ordinance or the franchise agreement or attempts to practice any fraud or deceit upon City.

(7) If Grantee's construction, reconstruction, or system extension schedule is delayed for more than 18 months later than the schedule contained in the franchise agreement and City finds that the delay was not excusable under the provisions of Section 6.108.20.070.

(8) If Grantee becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Grantee in a bankruptcy proceeding.

(b) Procedure Prior to Revocation.

(1) City may make written demand that Grantee comply with any such requirement, limitation, term, condition, rule, or regulation or correct any action deemed cause for revocation. If the failure, refusal, or neglect of the Grantee continues for a period of 30 days following such written demand, City may place the issue of termination of the franchise upon a regular City Council meeting agenda. City shall cause a written notice of intent to request termination, including the time and place of the meeting, to be served upon such Grantee at least 10 days prior to the date of such meeting. Such notice shall be published in a newspaper of general circulation within the franchise area at least once, 10 days before such meeting.

(2) City shall hear any persons interested therein, and shall determine whether Grantee has committed a material breach of this ordinance or the franchise agreement, and, if so, whether such breach was willful.

(3) If City determines that Grantee has committed a material breach, City may, by resolution, declare that the franchise of such Grantee shall be terminated and security fund and bonds forfeited, or the City may, at its option and if the material breach is capable of being cured by Grantee, direct Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as City shall determine are reasonable under the circumstances. The City may place conditions on any Grantee forfeiture, including, but not limited to, establishing the date on which such forfeiture shall become effective.

(Prior code § 63078; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Disposition of Facilities. In the event a franchise expires, is revoked, or otherwise terminated, City may order the removal of the system facilities from the franchise area within a reasonable period of time as determined by the City or require the original Grantee to maintain and operate its cable system until a subsequent Grantee is selected and a subsequent or modified cable system becomes operational. Grantee shall promptly, upon being given 10 days notice, remove from the streets or public places all such property such system other than any which the General Services Director may permit to be abandoned in place. In the event of such removal, Grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the General Services Director.

Any property of Grantee remaining in place 30 days after the termination or expiration of the franchise shall be considered permanently abandoned. The General Services Director may extend such time not to exceed a reasonable period.

(b) Abandonment of Property. Any property of Grantee to be abandoned in place shall be abandoned in such manner as the General Services Director shall prescribe. Subject to the provisions of any utility joint use attachment agreement, upon permanent abandonment of the property of Grantee in place, the property shall become that of City, and Grantee shall submit to the General Services Director an instrument in writing to be approved by the City Attorney, transferring to City the ownership of such property.

(c) Restoration of Property. 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 Grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires, or attachments. The liability, indemnity and insurance, and the security fund and bonds provided 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.

(d) Extended Operation. Upon either the expiration or revocation of a franchise, City may require Grantee to continue to operate the cable communications system for a defined period of time not to exceed 24 months from the date of such expiration or revocation. Grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this ordinance and the franchise agreement and to provide the regular cable service and any and all of the other services that may be provided at that time. City shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.

(e) Grantor's Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of City under the franchise or any provision of law.

(Prior code § 63079; added by Ord. No. 1407CCS, adopted 4/28/87)

(a) Any franchise granted shall, at the option of City, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy, or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

(1) Such receivers or trustees shall have within 120 days after their election or appointment, fully complied with all the terms and provisions of this ordinance and the franchise granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under the franchise; and,

(2) Such receivers or trustees shall within said 120 days, execute an agreement duly approved by the Court having jurisdiction on the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of the franchise agreement.

(b) In the case of a foreclosure or other involuntary sale of the plant, property, and equipment of Grantee, or any part thereof City may serve notice of termination upon Grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of Grantee hereunder shall cease and terminate 30 days after service of such notice unless:

(1) City has approved the transfer of the franchise, as and in the manner in this ordinance provided; and

(2) Such successful purchaser shall have covenanted and agreed with City to assume and be bound by all the terms and conditions of the franchise agreement.

(Prior code § 63080; added by Ord. No. 1407CCS, adopted 4/28/87)

In the event Grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified City in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond Grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, civil emergencies.

(Prior code § 63081; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.22. Reports

At City's sole option, within 60 days after the close of Grantee's fiscal year Grantee shall submit a written annual report, in a form approved by City, including, but not limited to, the following information:

(a) A summary of the previous year's (or, in the case of the initial report 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, and the number of subscribers for each class of service.

(b) A revenue statement, audited by an independent Certified Public Accountant, or certified by an officer of the Grantee.

(c) A current statement of costs of construction by component categories.

(d) A statement of projected construction for the next two years.

(e) A list of Grantee's officers, members of its board of directors, and other principals of Grantee.

(f) A list of stockholders or other equity investors holding 5% or more of the voting interest in Grantee and its parent, subsidiary and affiliated corporation and other entities, if any.

(g) To the extent that money, other than profits, is paid to a parent, subsidiary, or other person affiliated with Grantee, the amounts of such payments and the basis for computation of such amounts (e.g., the basis for computing any management fees or share of "home office" overhead).

(Prior code § 63082; added by Ord. No. 1407CCS, adopted 4/28/87)

At City's sole option, Grantee shall submit to City an annual plant survey report which shall be a complete survey of Grantee's plant and a full report thereon. Said report shall include, but not be limited to, a description and "as-built" maps of the portions of the franchise area that have been cabled and have all services available, an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with FCC guidelines and franchise technical standards. Said report shall be in sufficient detail to enable City to ascertain that the service requirements and technical standards of the FCC and/or the franchise were achieved and maintained. If City has reason to believe that portions or all of the system do not meet either the FCC technical guidelines, or those incorporated into the franchise agreement, at City's request, but not more often than once per three years, Grantee and City shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable systems. The cost of such evaluation shall be borne equally by Grantee and City.

(Prior code § 63083; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall submit to City copies of all pleadings, applications, reports, communications and documents of any kind, submitted by Grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state and local courts, regulatory agencies and other government bodies relating to its cable television operations within the franchise area. Grantee shall submit such documents to City simultaneously with their submission to such courts, agencies, and bodies; and within ten days after their receipt from such courts, agencies and bodies. Grantee hereby waives any right to claim confidential, privileged, or proprietary rights to such documents unless such confidential rights are determined to be confidential by law or by the practices of federal or state agencies. Such confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection.

(Prior code § 63084; added by Ord. No. 1407CCS, adopted 4/28/87)

A copy of each of Grantee's annual and other periodic public reports and those of its parent, subsidiary, and affiliated corporations and other entities, as City requests, shall be submitted to City within ten days of its issuance.

(Prior code § 63085; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall submit to City such other information or reports in such forms and at such times as City may reasonably request or require.

(Prior code § 63086; added by Ord. No. 1407CCS, adopted 4/28/87)

All reports subject to public disclosure shall be available for public inspection at a designated City office during normal business hours.

(Prior code § 63087; added by Ord. No. 1407CCS, adopted 4/28/87)

The refusal, failure, or neglect of Grantee to file any of the reports required, or such other reports as City reasonably may request, shall be deemed a material breach of the franchise, and shall subject Grantee to all remedies, legal or equitable, which are available to City under the franchise or otherwise.

(Prior code § 63088; added by Ord. No. 1407CCS, adopted 4/28/87)

Any materially false or misleading statement or representation made knowingly by Grantee in any report required under the franchise shall be deemed a material breach of the franchise and shall subject Grantee to all remedies, legal or equitable, which are available to City under the franchise or otherwise.

(Prior code § 63089; added by Ord. No. 1407CCS, adopted 4/28/87)

All reports and records required under this or any other section shall be furnished at the sole expense of Grantee.

(Prior code § 63090; added by Ord. No. 1407CCS, adopted 4/28/87)

Subchapter 6.108.24. Miscellaneous Provisions

Notwithstanding any other provisions of the franchise to the contrary, Grantee shall at all times comply with all laws and regulations of the State and Federal government or any administrative agencies thereof. Provided, however, if any such State or Federal law or regulation shall require Grantee to perform any service, or shall permit Grantee to perform any service, or shall prohibit Grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of City, then as soon as possible following knowledge thereof, Grantee shall notify City of the point of conflict believed to exist between such regulations or law and the laws or regulations of City or the franchise.

(Prior code § 63091; added by Ord. No. 1407CCS, adopted 4/28/87)

If any provision of this ordinance or any related agreements is held by any court or by any Federal, State, or local agency of competent jurisdiction to be invalid as conflicting with any Federal, State, or local law, rule, or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered nonmaterial by City, said provision shall be considered a separate, distinct, and independent part of this ordinance, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule, or regulation is subsequently rescinded, amended, or otherwise changed, so that the provision which has been held invalid or modified is no longer in conflict with the law, rules, and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, provided that City shall give Grantee thirty days written notice of such change before requiring compliance with said provision.

(Prior code § 63092; added by Ord. No. 1407CCS, adopted 4/28/87)

If any material section of this ordinance, as determined by City, is held to be invalid or preempted by Federal, State, or county regulations or laws, any franchise affected by such decision shall be deemed terminated. Upon such termination, City shall, in its discretion, negotiate with Grantee appropriate modifications to the franchise to provide reasonable relief to City from such invalidity or preemption, including the payment of damages.

(Prior code § 63093; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall maintain within the franchise area throughout the term of the franchise, an address for service of notices by mail.

(Prior code § 63094; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall have no recourse whatsoever against City or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise.

(Prior code § 63095; added by Ord. No. 1407CCS, adopted 4/28/87)

Grantee shall not be relieved of its obligation to comply with any of the provisions of this ordinance by reason of any failure of the City to enforce prompt compliance.

(Prior code § 63096; added by Ord. No. 1407CCS, adopted 4/28/87)

Any provision of this ordinance may be waived by City, at City's sole discretion, by City Council resolution. Grantee may submit a written request for waiver at any time, and the request shall be placed on the agenda for a public hearing and decision. City shall reach its decision no later than one hundred twenty days following receipt of any waiver request.

(Prior code § 63097; added by Ord. No. 1407CCS, adopted 4/28/87)

The City Council may authorize the economic, technical, or legal evaluation of such waiver request and Grantee shall be required to reimburse the City for any expenditures incurred by City in connection with such evaluation. Any expenditure and/or reimbursement pursuant to this Section shall be exclusive of the franchise fee.

(Prior code § 63098; added by Ord. No. 1407CCS, adopted 4/28/87)