Tustin Municipal Code Part 1 Franchises

For the purposes of this Chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:

"Cable television system, CATC and CTV" are terms describing a system employing antennae, micro-wave, wires, wave-guides, coaxial cables, or other conductors, equipment or facilities, designed, constructed or used for the purpose of:

1. collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them;

2. transmitting original cablecast programming not received through television broadcast signals;

3. transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

4. transmitting and receiving all other signals: digital, voice and audio-visual,

provided, however, that any of the services, permitted hereunder to be performed, as described above, shall be those performed by the Grantee for subscribers, as herein defined, in the operation of a cable television or CATV system franchised by the City and not otherwise.

"City" shall mean the City of Tustin, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

"City Administrator" shall mean the City Administrator of the City of Tustin, or his duly authorized designee.

"Council" shall mean the present governing body of the City of Tustin or any future board constituting the legislative body of the City.

"Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable television system within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City.

"Franchise Payment" means the first year after the effective date of the ordinance granting the franchise, or, at the option of the Franchisee, any shorter period of time immediately following the effective date of said ordinance, and each year thereafter, during the life of the franchise.

"Grantee" shall mean the person, firm, corporation granted a franchise by the Council under this Chapter, and the lawful successor, transferee or assignee of said person, firm or corporation.

"Gross Annual Advertising Receipts" shall mean any income, compensation and other consideration received by Grantee derived from any form of advertising.

"Gross Annual Basic Subscriber Receipts" shall mean any and all compensation and other consideration received directly or indirectly by the Grantee from subscribers in payment of the regularly furnished service of the cable television system in the transmission of broadcast television, radio signals and original cablecast programming of the Grantee.

"Gross Annual Lease Receipts" shall mean any fees or income received by Grantee for the lease or rental, and compensation for any service in connection therewith, such as studio and equipment rental and production costs, of any channel permitted or designated by the Federal Communications Commission to be so leased or rented.

"Gross Annual Non-basic Service Receipts" shall mean any and all compensation and other consideration received directly or indirectly by the Grantee from subscribers or users in payment for the receipt of signals other than broadcast television, radio, or original cablecast programming of the Grantee, whether for "pay television", "facsimile" transmission, "return" or "response" communication, and whether or not transmitted encoded or processed to permit reception by only selected subscribers.

"Gross receipts," as used in the following categories, shall mean any and all compensation, in whatever form, grant, subsidy, exchange, or otherwise, directly or indirectly received by a grantee, not including any taxes or services furnished by the Grantee imposed directly on any subscriber or user by a city, county, state or other governmental unit, and collected by the Grantee for such entity.

"Person" shall mean any natural person and all domestic and foreign corporations, association, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies.

"Property of Grantee" shall mean all property owned, installed, or used within the City by a Grantee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this Chapter.

"Street" shall mean the surface, the air space above the surface and the area below the surface of any public street, other public right-of-way or public place, including public utility easements.

"Subscriber" or "User" shall mean any person or entity receiving for any purpose any service of the Grantee's cable television system including, but not limited to, the conventional cable television system service of retransmission of television broadcast, radio signals, Grantee's original cablecasting, and the local government, education and public access channels; and other services, such as leasing of channels, data and facsimile transmission, pay television, and police, fire and similar public service communication. (Ord. No. 581, Sec. 10; Ord. No. 791, Sec. 1, 2-5-79)

(a) A non-exclusive franchise to install, construct, operate, and maintain a cable television system on streets within all or a specific portion of the City may be granted by the Council to any person, whether operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this Chapter.

(b) No provision of this Chapter may be deemed or construed as to require the granting of a franchise when in the opinion of the Council it is the public interest to restrict the number of Grantees to one or more.

(c) When and in the event that the Grantee of any franchise granted hereunder uses in his cable television system distribution channels furnished to the Grantee by a telephone company pursuant to a tariff or contract on file with a regulatory body having jurisdiction and said Grantee makes no use of the streets independent of such telephone company-furnished facilities, said Grantee shall be required to comply with all of the provisions hereof as a "Licensee" and in such event whenever the term "Grantee" is used herein it shall be deemed to mean and include "Licensee." (Ord. No. 581, Sec. 20)

a Basic Service

The cable television system permitted to be installed and operated hereunder shall:

1. be operationally capable of relaying to subscribers terminals those televisions and radio broadcast signals for the carriage of which the Grantee is now or hereafter authorized by the Federal Communications Commission;

2. be constructed with the potential of two-way digital signal transmission;

3. distribute color television signals which it receives in color;

4. provide at least one (1) channel, without charge, for exclusive use of the City;

5. provide at least one (1) channel each for those educational and public access uses as now or hereafter required by the Federal Communications Commission for systems operating in the top 100 markets;

6. have a minimum capacity of twenty (20) channels.

b Non-basic Services

The cable television system permitted to be installed and operated hereunder, may also engage the business of:

1. transmitting original cablecast programming not received through television broadcast signals;

2. transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers;

3. transmitting and receiving all other signals: digital, voice and audio-visual.

c Customer Service Standards

1. As used herein, the following terms have the following meaning:

(a) Normal business hours—The term "normal business hours" means those hours during which most similar businesses in the community are open to serve subscribers. In all cases, "normal business hours" must include some evening hours at least one (1) night per week and/or some weekend hours.

(b) Normal operating conditions—The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

(c) Service interruption—The term "service interruption" means the loss of picture or sound on one (1) or more cable channels.

2. In addition to other service regulations adopted by the City Council, including those in franchise ordinances, and excepting circumstances beyond Grantee's control, such as Acts of God, riots and civil disturbances, the Grantee shall:

(a) Planned Interruptions. Interrupt service only as necessary and for the shortest time possible. Planned interruptions, insofar as possible, shall be preceded by notice given to subscribers twenty-four (24) hours in advance and shall occur during periods of minimum use of the system.

(b) Office Hours. Grantee's service office shall be open to receive inquiries or complaints for Subscribers during normal business hours, and in no case less than 9:00 a.m. to 5:00 p.m., Monday to Friday, excluding legal holidays, provided, however, that such hours may be lessened upon the prior written consent of the City Manager or designee provided that non-toll telephone service continues to be available during such times.

(c) Service Repair Force. Maintain a service repair force sufficient to comply with the standards in (f) for responding to any individual interruption of service and service installations. Additionally, upon complaint by a subscriber, Grantee shall make a demonstration satisfactory to the City Manager or designee that a signal is being delivered which is of sufficient strength and quality to meet the standards set forth in the regulations of the Federal Communications Commission, or in regulations hereafter adopted by the City Council.

(d) Service Log. Keep a service log running a three (3) year period, which will indicate the nature of each service complaint, its location, the date and time it was received, the disposition of said complaint, and the time and date thereof. This log shall be made available for periodic inspection by the City. Grantee shall provide a copy of this log within ten (10) days of the written request of the City.

(e) Office hours and telephone availability.

(i) The Grantee will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers twenty-four (24) hours a day, seven days a week.

(A) Trained company representatives will be available to respond to subscriber telephone inquiries during normal business hours.

(B) After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.

(ii) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis.

(iii) The Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.

(iv) Under normal operating conditions, the subscriber will receive a busy signal less than three (3) percent of the time.

(v) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located.

(f) Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than ninety-five (95) percent of the time measured on a quarterly basis:

(i) Standard installations will be performed within seven (7) business days after an order has been placed. "Standard" installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.

(ii) Excluding conditions beyond the control of the Grantee, the Grantee will begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem.

(iii) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four (4) hour time block during normal business hours. (The Grantee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the subscriber.)

(iv) A Grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

(v) If a Grantee representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the subscriber.

(g) Communications between a Grantee and subscribers

(i) Refunds—Refund checks will be issued promptly, but no later than either

(A) The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or

(B) The return of the equipment supplied by the cable operator if service is terminated.

(ii) Credits—Credits for service will be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted. (Ord. No. 1245, Sec. 2, 10-1-01)

d Municipal Service

1. With respect to the local government channel, the Grantee shall provide, at the request of the City Administrator, and upon City reimbursement of Grantee's actual cost, use of Grantee's studio, equipment and technical services for production of live and video-tape municipal programs, subject to scheduling requirements of the Grantee;

2. With respect to the basic television services, the Grantee shall provide all subscriber services, and a tie-in connection, without cost, when the system passes such facilities and as designated by the Council, to

(a) public schools and community colleges serving the City, and

(b) buildings owned and controlled by the City, used for public purposes.

e Compatibility and Connectibility

1. It is the desire of the City that all cable television systems franchised hereunder shall, insofar as financially and technically possible, be compatible one with another and with systems adjacent to the City.

2. Wherever it is financially and technically feasible, the Grantee shall so construct, operate and modify the system so as to tie the same into all other systems within and adjacent to the City.

f Uses permitted

Any franchise granted pursuant to the provisions of this Chapter shall authorize and permit the Grantee to engage in the business of operating and providing a cable television system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable television system; and, in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other Grantee franchised or permitted to do business in the City. (Ord. No. 581, Sec. 30)

(a) As consideration for the franchise granted, Franchisee shall pay to the City, in lawful money of the United States, during the life of the franchise, for each and every year, including the year of granting the franchise, according to the "franchise payment period" as defined in this Ordinance, three percent (3%) of its gross subscriber revenues received by the Franchisee for regular monthly cable television services rendered to customers located within the authorized franchise service area.

(b) In addition to the foregoing, the City reserves the right to change its fees at five-year intervals from the effective date of the ordinance granting the franchise, after a public hearing determining good cause is found and such action is not in conflict with Federal Communication Commission Rules and Regulations or the laws of the State of California.

(c) Upon request, the Grantee shall file with the City within sixty (60) days after the expiration of each calendar year during the period the franchise shall be enforced, a Financial Statement showing in detail the gross receipts of Grantee during the preceding year. In addition, the City shall have the right, at any time, to inspect the Grantee's revenue records under the franchise and the right of audit and recomputation of any and all amounts payable under this Chapter.

(d) No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this Chapter or for the performance of any other obligation hereunder. (Ord. No. 581, Sec. 40; Ord. No. 791, Sec. 2, 2-5-79)

(a) The franchise granted by the Council under this Chapter shall be for a term of fifteen (15) years from the date of its acceptance by the Grantee.

(b) The City may terminate any franchise granted pursuant to the provisions of this Chapter in the event of the willful failure, refusal or neglect by Grantee to do or comply with any material requirement or limitation contained in this Chapter, or any material rule or regulation of the Council or City Administrator validly adopted pursuant to this Chapter.

(c) The City Administrator may make written demand that the Grantee do or comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30) days following such written demand, the City Administrator may place his request for termination of the franchise upon the next regular Council meeting agenda. The City Administrator shall cause to be served upon such Grantee, at least ten (10) days prior to the date of such Council meeting, a written notice of his intent to request such termination, and the time and place of the meeting, notice of which shall be published by the City Clerk at least once ten (10) days before such meeting in a newspaper of general circulation within the City.

(d) The Council shall consider the request of the City Administrator and shall hear any persons interested therein, and shall determine in its discretion, whether or not any failure, refusal or neglect by the Grantee was with just cause.

(e) If such failure, refusal or neglect by the Grantee was with just cause, the Council shall direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

(f) If the Council shall determine such failure, refusal or neglect by the Grantee was without just cause, then the Council may, be resolution, declare that the franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the Council may fix.

(g) The termination and forfeiture of any franchise shall in no way effect any of the rights of the City under the franchise or any provision of law.

(h) In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the City, expressed by resolution, the Grantee shall pay to the City reasonable compensation and damages, of not less than one hundred percent (100%) of its gross revenue during said period. (Ord. No. 581, Sec. 50)

a Basic Application

Each application for a franchise to construct, operate, or maintain any cable television systems in this City shall be filed with the City Clerk and shall contain or be accompanied by the following:

1. The name, address, and telephone number of the applicant;

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

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

(b) The names, residence and business addresses of all officers, persons and entities having, controlling, or being entitled to have or control of 5% or more of the ownership of the applicant and the respective ownership share of each such person or entity.

(c) 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 television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby.

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

(e) A detailed and complete financial statement of the applicant, prepared by a 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 a 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.

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

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

(a) 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.

(b) 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.

(c) A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those contained in Title 47, Subpart K (Sections 76.601 et seq.), Rules and Regulations, Federal Communications Commission, adopted February 2, 1972, and as amended.

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

(e) 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.

4. A copy of any agreement covering the franchise area, if existing between the applicant and any public utility subject to regulations 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.

5. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the Council, or by any provision of any other ordinance of the City (and of its Charter).

b Application Fee

An application fee in the sum of $500, which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part; provided, that any applicant who shall deliver to the City Clerk a written withdrawal of or cancellation of any application hereunder, not later than the seventh (7th) day next following the day such application is received by the City Clerk, shall be entitled to have returned and refunded the sum of $400, less any supplemental actual costs or expenses incurred by the City by reason of such application.

c Procedure for Award of Franchise

1. The Council may, by advertisement or any other means, solicit and call for applications for cable television 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 Grantee shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this Chapter. Such payment shall be made within thirty (30) days after the City furnishes the Grantee with a written statement of such expenses.

2. Upon receipt of any application for franchise, the Council shall refer the same to the City Administrator who shall prepare a report and make his recommendations respecting such application, and cause the same to be completed and filed with the Council within 30 days.

3. In making any determination hereunder as to any application the Council may give due consideration to the quality of the service proposed, rates to subscriber, 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, and to abide by policy conditions, franchise limitations and requirements, and any other considerations deemed pertinent by the Council for safeguarding the interests of the City and the public. The Council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.

If the Council shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected.

4. If the Council shall determine to further consider the application, the following shall be done:

(a) The Council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.

(b) The Council shall pass its resolution of intention to consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise desired, stating the name of the proposed Grantee, the character of the franchise, the terms and conditions upon which such franchise is proposed to be granted, that copies of the proposed franchise may be obtained at the Office of the City Clerk, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the Council and be heard, and directing the City Clerk to publish said resolution at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the City.

5. At the time set for the hearing, or at any adjournment thereof, the Council shall proceed to hear all written protests. Thereafter, the Council shall make one of the following determinations:

(a) That such franchise be denied; or

(b) That such franchise be granted upon the terms and conditions as specified in the resolution of intention to grant the same; or

(c) That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same.

6. If the Council shall determine that a franchise be denied such determination shall be expressed by resolution and shall be final and conclusive.

If the Council shall determine that a franchise be granted upon the terms and conditions as specified in the resolution of intention to consider granting the same, such determination shall be expressed by ordinance granting a franchise to the applicant.

If the Council shall determine upon granting a franchise upon terms and conditions different from those specified in the resolution of intention to consider granting the same, then such determination shall be expressed by resolution adopted prior to granting a franchise by ordinance. (Ord. No. 581, Sec. 60)

a Performance Bond to City

Upon being granted a franchise, and upon the filing of the acceptance required under Section 7417 hereof, the Grantee shall file with the City Clerk and shall thereafter, annually, during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement in such amount and kind as shall have been approved by the Council. The bond or agreement shall be so conditioned that in the event that Grantee shall fail to comply with any one or more of the provisions of this Chapter or of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the City as a result thereof, including attorneys' fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obligations to the City which arise out of or pertain to said franchise. Neither the provisions of this Section, nor any bond accepted by the City pursuant hereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by the Grantee, or limit the liability of the Grantee under any franchise issued pursuant to this Chapter or for damages either to the full amount of the bond, or otherwise.

b Performance Bond for Subscribers

Upon being granted a franchise, and upon filing of the acceptance required under Section 7417 hereof, the Grantee shall file, annually, with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond, or other adequate surety agreement, in the amount as shall have been approved by the Council. The bond or agreement shall be so conditioned that in the event such Grantee shall fail to comply with any one or more of the provisions of any agreement or undertaking made between Grantee and any subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorneys' fees and costs of any action or proceeding. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obligations to any subscriber which arise out of or pertain to any such agreement or undertaking.

c Hold Harmless Agreement

Grantee shall indemnify and hold harmless the City, its officers, boards, commissions, agents, and employees, against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to damages to City property and damages arising out of copyright infringements, and damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by Grantee's cable television system), costs or liabilities (including costs or liabilities of the City with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by Grantee, or the granting thereof by the City.

d Defense of Litigation

Grantee shall at the sole risk and expense of Grantee, upon demand of the City, made by and through the City Attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the City, its officers, boards commissions, agents, or employees, and arising out of or pertaining to the exercise or the enjoyment of such franchise, or the granting thereof by the City.

Granting shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against Grantee, the City, its officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise, provided, that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other.

e Insurance Required

Upon being granted a franchise, and upon the filing of the acceptance required under Section 7417 hereof, the Grantee shall file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect at its own cost and expense each of the following policies of insurance:

1. General Comprehensive Liability Insurance in the amount of $1,000,000.00, together with Bodily Injury Liability Insurance in an amount not less than $500,000.00, for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than $1,000,000.00 on account of any one occurrence, and Property Damage Liability Insurance in an amount not less than $500,000.00, resulting from any one occurrence or combined minimum single limits of liability of $1,000,000.00; provided, however as follows:

(a) The City shall be named as an additional assured in any of said insurance policies; and

(b) Where such insurance is provided by a policy which also covers Grantee or any other entity or person, it shall contain the standard cross-liability endorsement. (Ord. No. 581, Sec. 70)

(a) No franchise granted under this Chapter shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk. Written acceptance, which shall be in the form and substance approved by the City Attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this Chapter, or in such franchise, or otherwise specified as herein provided.

(b) The written acceptance shall be filed by the Grantee not later than 12:01 o'clock P.M. of the fortieth (40th) day next following the effective date of the ordinance granting such franchise.

(c) In default of the filing of such written acceptance as herein required, the Grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the Grantee shall not be received nor filed by the City Clerk. The Grantee shall have no rights, remedies, or redress in the premises, unless and until the Council, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose.

(d) In any case, and in any instance, all rights, remedies and redress in these premises which may or shall be available to the City, shall at all times be available to the City, and shall be preserved and maintained and shall continuously exist in and to the City, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise.

(e) Any franchise granted and accepted under this Chapter shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the Grantee, of or pertaining to the construction, operation, or maintenance of any cable television systems in the City. (Ord. No. 581, Sec. 80)

(a) Every franchise granted under this Chapter shall be non-exclusive.

(b) No privilege or exemption shall be granted or conferred by any franchise granted under this Chapter except those specifically prescribed herein.

(c) 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.

(d) Any such franchise shall be a privilege to be held in personal trust by the original Grantee. It cannot in any event be sold, transferred, leased, or assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the Office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the Council and must agree to comply with all provisions of this Chapter; and provided, further that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed 50% of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the Council shall be required for such a transfer. Such consent shall not be withheld unreasonably.

In the event that Grantee is a corporation, prior approval of the City Council, expressed by resolution, shall be required where there is an actual change in control or where ownership of more than 50% of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom already own 50% or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this Chapter within the meaning of Section 7414.

(e) Time shall be of the essence of any such franchise granted hereunder. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Chapter by any failure of the City to enforce prompt compliance.

(f) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City.

(g) The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this Chapter or of any franchise issued hereunder or because of its enforcement.

(h) The Grantee shall be subject to all requirements of City laws, rules regulations, and specifications heretofore or hereafter enacted or established.

(i) Any such franchise granted shall not relieve the Grantee of any obligations involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets.

(j) Any franchise granted hereunder, shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by Grantee, or any successor to any interest of Grantee, of or pertaining to the construction, operation, or maintenance of any cable television system in the City; and the acceptance of any franchise hereunder shall operate, as between Grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the City, to the effect that, as between Grantee and the City, and all construction, operation and maintenance by any Grantee of any cable television system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever. (Ord. No. 581, Sec. 90; Ord. No. 791, Sec. 3, 2-5-79)

(a) Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the 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 herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain.

(b) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any law, and the Grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power, heretofore or hereafter enacted or established.

(c) There is hereby reserved to the City the power to amend any Section of this Chapter so as to required additional or greater standards of construction, operation, maintenance or otherwise, on the part of the Grantee to reflect technical and economic changes occurring during the franchise term, and to enable the City and the Grantee to take advantage of new developments in the cable television industry so as to more effectively, efficiently and economically serve the public.

(d) Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any government right or power of the City.

(e) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Administrator, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any Grantee under this Chapter, either on behalf of the City, the Grantee, or any subscriber, in the best interest of the public. Either the Grantee or any member of the public who may be dissatisfied with the decision of the City Administrator may appeal the matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the City Administrator and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the Grantee or from any provision of this Chapter. (Ord. No. 581, Sec. 100)