Chapter 5.20
CABLE TELEVISION FRANCHISE

Article 1
Intent, Short Title, Definitions

Sections:

5.20.010    Intent.

5.20.020    Short title.

5.20.030    Use of definitions.

Article 2
Grant of Franchise

Sections:

5.20.040    Grant.

5.20.050    Franchise required.

5.20.060    Establishment of franchise requirements.

5.20.070    Authority to grant franchise.

5.20.080    Use of public streets and ways.

5.20.090    Term.

5.20.100    Franchise nonexclusive.

5.20.110    New franchise applications.

5.20.120    Grant procedure.

5.20.130    Transfer of ownership or control.

5.20.140    Franchise renewal.

5.20.150    Police powers.

5.20.160    Franchise fee.

5.20.170    Forfeiture or revocation.

5.20.180    Procedures in the event of termination or expiration.

5.20.190    Receivership and foreclosure.

5.20.200    Franchise processing costs.

Article 3
Regulation of Franchise

Sections:

5.20.210    Regulatory authority.

5.20.220    Regulatory responsibility.

5.20.230    PEG access.

5.20.240    Public access management.

5.20.250    Reservation by grantor.

5.20.260    Rates.

5.20.270    Rate change procedure.

5.20.280    Annual review of performance and quality of service.

5.20.290    System and services review.

Article 4
General Financial and Insurance Provisions

Sections:

5.20.300    Construction bond.

5.20.310    Performance bond.

5.20.320    Security fund.

5.20.330    Indemnification.

5.20.340    Insurance.

Article 5
Design and Construction Provisions

Sections:

5.20.350    System design.

5.20.360    Geographical coverage.

5.20.370    Cablecasting facilities.

5.20.380    System construction schedule.

5.20.390    Remedies for delay in construction.

5.20.400    Provision of service.

5.20.410    Undergrounding of cable.

5.20.420    New development undergrounding.

5.20.430    Underground at multiple dwelling units.

5.20.440    Street occupancy.

5.20.450    Construction and technical standards.

5.20.460    Area-wide interconnection.

Article 6
Service Provisions

Sections:

5.20.470    Reduction in services.

5.20.480    Public, educational or government (PEG) access facilities.

5.20.490    Cable channels for commercial use.

Article 7
Consumer Protection

Sections:

5.20.500    Consumer service standards.

5.20.510    Requests for cable service and repairs.

5.20.520    Verification of compliance.

5.20.530    Noncompliance with standards.

5.20.540    Complaint procedure.

5.20.550    Review by the grantor.

5.20.560    Escrow account.

5.20.570    Remedies for violations.

5.20.580    Notices.

5.20.590    Quality of service.

5.20.600    Tenant rights.

5.20.610    Grantee rules and regulations.

5.20.620    Rights of individuals.

5.20.630    Continuity of service mandatory.

5.20.640    Identification of employees.

5.20.650    Theft of service.

Article 8
Operation and Maintenance

Sections:

5.20.660    Books and records.

5.20.670    Records required.

Article 9
Rights Reserved to the Grantor and Grantee

Sections:

5.20.680    Right of inspection of construction.

5.20.690    Right of intervention.

5.20.700    Right of grantee and grantor.

Article 10
Franchise Violations

Sections:

5.20.710    Remedies for franchise violations.

5.20.720    Procedure for remedying franchise violations.

5.20.730    Force majeure—Grantee’s inability to perform.

Article 11
Reports

Sections:

5.20.740    Annual reports.

5.20.750    Plant survey report.

5.20.760    Copies of federal and state reports.

5.20.770    Public reports.

5.20.780    Complaint file and reports.

5.20.790    Miscellaneous reports.

5.20.800    Inspection of facilities.

5.20.810    Public inspection.

5.20.820    Failure to report.

5.20.830    False statements.

5.20.840    Cost of reports.

Article 12
Miscellaneous Provisions

Sections:

5.20.850    Compliance with state and federal laws.

5.20.860    Separability—Nonmaterial provisions.

5.20.870    Separability—Material provisions.

5.20.880    Notices.

5.20.890    Captions.

5.20.900    No recourse against the grantor.

5.20.910 Nonenforcement by the grantor.

Article 1
Intent, Short Title, Definitions

5.20.010 Intent.

Inasmuch as reception of television broadcast signals is very limited within the city, the city finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of St. Helena. Because of the complex and rapidly changing technology associated with cable television, the city further finds that the public convenience, safety and general welfare can best be served by establishing, in accordance with applicable laws, regulatory powers which should be vested in the city or such persons as the city shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters, and any franchise issues pursuant to this chapter shall be deemed to include this finding as an integral part thereof. (Prior code § 4A.1)

5.20.020 Short title.

This chapter shall be known and may be cited as the “City of St. Helena Cable Television Franchise Ordinance.” (Prior code § 4A.2)

5.20.030 Use of definitions.

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

“Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.

“Broadcast signal” means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable television system off-the-air or by microwave.

“Cable television system,” “cable system” or “system” means a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such terms do not include:

1.    A facility that serves only to retransmit the television signals of one or more television broadcast stations, unless such facility uses any public right-of-way;

2.    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;

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

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

“Cablecasting” means distributing programming that originates within the facilities of the cable television system.

“Cable service” means the total of the following:

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

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

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

“Commence construction” means that time and date when construction of the cable television 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.

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

“Commercial use channel(s)” means the channel capacity designated for commercial use as defined and required by federal law.

“Completion of construction” means that point in time when all cable system equipment specified in the franchise agreement has 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 cable-related facilities required by the franchise agreement.

“Council” means the city council, the governing body of the city of St. Helena.

“FCC” means the Federal Communications Commission and any legally appointed or elected successor.

“Franchise” means an initial authorization or renewal thereof, issued by the city, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a cable system.

“Franchise agreement” means a franchise award ordinance and/or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise regulatory ordinances and other related materials.

“Franchise fee” means any tax, fee or assessment of any kind imposed by the city on a grantee for grantee’s use of the public rights of way. The term “franchise fee” does not include:

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

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

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

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

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

“Grantor” or “city” means the city of St. Helena as represented by the city council or any delegate acting within the scope of its jurisdiction.

“Gross annual receipts” means the annual gross receipts received by the grantee from all sources of operations of the franchised cable television system, excluding refundable deposits and the franchise fee, except that any sales, excise, property or other taxes or fees collected for direct pass-through to local, state or federal government shall not be included.

“Initial service area” means the portion of the franchise area which will receive service initially, as set forth in the franchise agreement.

“Installation” means the connection of the system from feeder cable to subscribers’ terminals, and the provision of service.

“Pay-cable,” “pay-television” or “pay-per-view” means the delivery to subscribers, over the cable television 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.

“Person” means an individual, partnership, association, joint stock company, trust, corporation or organizational entity.

“Programmer” means 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 television system.

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

1.    Channel capacity designated for public, educational or governmental use, as the case may be; and

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

“Resident” means any person residing in the city as otherwise defined by applicable law.

“School” means any accredited nonprofit educational institution including primary and secondary schools, colleges and universities.

“Section” means any section, subsection or provision of this franchise ordinance.

“Service area” or “franchise area” means the entire geographic area within the city designated in a franchise agreement to receive cable service, including future annexation areas as and when added to the city.

“State” means the state of California.

“Street” or “public right-of-way” means each of the following which have been dedicated to the public or hereafter may be 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 grantor shall permit to be included within the definition of street, from time to time.

“Subscriber” means any person who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable television system. (Prior code § 4A.3)

Article 2
Grant of Franchise

5.20.040 Grant.

A.    Provision of Service. In the event that grantor shall grant to a grantee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable television system within the franchise area, or a renewal of an existing franchise, the franchise shall constitute both a right and an obligation to provide the services of a cable television system as required by the provisions of this chapter and the franchise agreement.

B.    Compliance With Laws. Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and state general laws and regulations. In the event of any conflict between applicable laws and the terms and conditions of the franchise and/or the terms and conditions on which the grantor can grant a franchise, the general law and/or statutory requirements shall, without exception, control. Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective pursuant to Section 5.20.150; provided, that a grantee shall not be deemed to waive its rights against impairment of contract. Nothing in the franchise shall be deemed to waive the requirements of any other codes and ordinances of the grantor regarding permits, fees to be paid or manner of construction. (Prior code § 4A.4)

5.20.050 Franchise required.

No cable television 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 chapter. (Prior code § 4A.5)

5.20.060 Establishment of franchise requirements.

This chapter shall apply to all franchises granted or renewed after the effective date of this chapter. It shall also apply to any expansions of an existing grantee’s service area occurring after the effective date of this chapter. It shall further apply to the extent permitted by applicable federal or state law to all existing franchises granted prior to the effective date of this chapter. (Prior code § 4A.6)

5.20.070 Authority to grant franchise.

The grantor 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 § 4A.7)

5.20.080 Use of public streets and ways.

For the purpose of operating and maintaining a cable television system in the franchise area, and subject to the provisions of Section 5.20.440, 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 television system. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate grantor agencies and local utility companies and receive approval before proceeding. Grantee shall in any event comply with all applicable grantor construction codes and procedures. (Prior code § 4A.8)

5.20.090 Term.

The term of any new franchise or renewal and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided. (Prior code § 4A.9)

5.20.100 Franchise nonexclusive.

Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system as it deems appropriate, and in accordance with applicable law; provided, however, that such additional grants shall not operate to modify, revoke, reduce or terminate any rights previously granted to any grantee. (Prior code § 4A.10)

5.20.110 New franchise applications.

Applicants for a franchise shall submit to the grantor written applications providing all information reasonably requested by the grantor and including any application fees designated by grantor. (Prior code § 4A.11)

5.20.120 Grant procedure.

A.    Upon receipt of an application for a new franchise, the city administrator or his or her designee shall expeditiously prepare a report (hereafter “report”), including recommendations respecting such application, which shall be filed with the council and each applicant.

B.    Upon receipt of the report and recommendations of the city administrator, the council shall adopt a resolution of intention which shall:

1.    Set a time and place for a public hearing to consider the granting of a franchise;

2.    Give notice of receipt of the applications and describe the character of the franchise desired; and

3.    Establish the terms and conditions upon which such franchise is proposed to be granted.

C.    Copies of the application and the report shall be available for public inspection at the office of the city clerk. The city clerk shall publish the resolution of intention at least once in a newspaper of general circulation within the city at least ten (10) days prior to the hearing.

D.    At the time set for the hearing, or at any adjournment thereof, the council shall proceed to hear all interested persons, including any objections or protests to the granting of the franchise.

E.    In making any determination hereunder as to any application, the council shall give due consideration to the quality of the service proposed, rates to subscribers, income to the city, experience, character, technical and financial responsibility of the applicant and any other considerations deemed pertinent by the council for safeguarding the interests of the city and public. The council, at its discretion, shall determine whether to award a franchise on the basis of such considerations.

F.    The council may, at any time prior to the close of the hearing, demand and the applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted.

G.    After the public hearing the council shall make one of the following determinations:

1.    That one or more of the applications for a franchise be denied; or

2.    That one or more of the applications for a franchise be granted upon appropriate terms and conditions.

H.    If the council denies an application for a franchise, such determination shall be final and conclusive. If the council determines that an application for a franchise shall be granted, such franchise shall be granted by ordinance, subject to negotiations, naming the grantee, and setting forth the terms and conditions of the franchise.

I.    Any grantee, prior to the effective date of its franchise, shall reimburse grantor for its actual expenses, including but not limited to engineering, administration, consultant, publication and legal expenses incurred in connection with the processing, evaluation, and preparation of documents relating to such franchise, in excess of the prepaid nonrefundable application fee(s), and subject to any maximum amount which may be agreed to by grantor with a grantee.

J.    No provision of this chapter shall be deemed or construed to require the granting of a franchise when in the opinion of the grantor it is in the public interest not to grant such a franchise. (Prior code § 4A.12)

5.20.130 Transfer of ownership or control.

A.    Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. The franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including, but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior written consent of the grantor, and then only under such reasonable conditions as the grantor may establish. Such consent as required by the grantor shall be given or denied no later than ninety (90) days following grantor’s receipt of all reasonably relevant information as provided in subsection B of this section and shall not be unreasonably withheld. If grantor does not act within the ninety (90) day period, the request shall be deemed to be approved. Notwithstanding the foregoing, grantee may assign or otherwise transfer the franchise in connection with any internal reorganizing action to any direct or indirect parent, subsidiary or affiliated entity having the identical ownership as grantee without prior consent.

B.    Ownership or Control. The grantee shall promptly notify, in writing, the grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word “control” as used in this subsection is not limited to major stockholders but includes actual working control in whatever manner exercised. A transfer of control shall arise upon the acquisition or transfer by any person or group of persons of thirty percent (30%) or more of the beneficial ownership interest of the grantee. Every change, transfer or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented, in writing, thereto, which consent shall be given or denied no later than ninety (90) days following grantor’s receipt of all relevant information pertaining to any request and shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the grantor in any such inquiry.

In seeking the grantor’s consent to any change in ownership or control, the grantee shall have the responsibility:

1.    To show to the satisfaction of the grantor whether the proposed purchaser, transferee or assignee (the “proposed transferee”), which in the case of a corporation, shall include all directors and all persons having a legal or equitable interest in five percent or more of its voting stock:

a.    Has ever been convicted or held liable for felonious acts, 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,

b.    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, or

c.    Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system;

2.    To establish, to the satisfaction of the grantor, the financial solvency of the proposed transferee by submitting relevant current financial data for the proposed transferee. Financial statements shall be audited, certified and qualified by a certified public accountant;

3.    To establish to the satisfaction of the grantor that the financial and technical 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 terms.

C.    The grantor agrees that any financial institution having a pledge of the franchisee or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee, satisfactory to the grantor, shall take control and operate the cable television system in the event of a grantee default in its financial obligations. Further, the financial institution shall also submit a plan for such 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 such 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 qualities 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 be given or denied no less than ninety (90) days after any request and shall not be unreasonably withheld.

D.    The consent or approval of the grantor to any transfer by the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall by its terms be expressly subject to the terms and conditions of any franchise.

E.    In the absence of extraordinary circumstances, the grantor shall not approve any transfer or assignment of the franchise prior to completion of initial construction of the cable system.

F.    In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the franchise agreement.

G.    Any grantee or successor grantee, within sixty (60) days after receipt from grantor of written itemization, shall reimburse grantor for its actual expenses, including but not limited to engineering, administrative, consultant, publication and legal expenses incurred in connection with the processing, evaluation and preparation of documents relating to such transfer of ownership or control. (Prior code § 4A.13)

5.20.140 Franchise renewal.

Franchise renewal shall be at the sole discretion of the grantor, subject to applicable law. (Prior code § 4A.14)

5.20.150 Police powers.

In accepting a franchise, the grantee acknowledges that its rights hereunder are subject to the police powers of the grantor 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 the grantor pursuant to such power. Any conflict between the provisions of this chapter and any other present or future lawful exercise of the grantor’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 television system franchise which contains provisions inconsistent with this chapter shall prevail only if upon such exercise the grantor finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law, and except that grantee may contest whether a given enactment is made under grantor’s police powers. (Prior code § 4A.15)

5.20.160 Franchise fee.

A.    Annual Franchise Payment. A grantee of a franchise hereunder shall pay to the grantor an annual fee in an amount as designated in the franchise agreement. Such payment shall commence as of the effective date of the franchise or any renewal date. The grantor, on an annual basis, shall be furnished a statement within ninety (90) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by a financial officer of the grantee, reflecting the total amounts of gross receipts and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days’ prior written notice, grantor shall have the right to conduct an independent audit of grantee’s records in accordance with generally accepted accounting procedures, if applicable, and if such audit indicates a franchise fee underpayment of two percent or more, the grantee shall assume all reasonable costs of such an audit. Any such audit shall be completed within six months after commencement.

B.    Acceptance by Grantor. No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.

C.    Failure to Make Required Payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation:

1.    An interest charge, computed from such due date, at an annual rate equal to the average rate of return on invested funds of the city during the period for which payment was due;

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

D.    Fee Payment Schedule. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

E.    “Pass Through” of Fee to Subscribers. Any grantee “pass through” of itemization of franchise fee costs on subscribers’ bills shall be in accordance with federal law. (Prior code § 4A.16)

5.20.170 Forfeiture or revocation.

A.    Grounds for Revocation. The grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the event of a breach of any material requirement or limitation of this chapter, the franchise agreement, any rule or regulation adopted by the grantor, any lawful order issued for or on behalf of the city and any applicable federal, state or local statute or regulation (hereinafter collectively “requirement”). A material breach of a requirement shall include, but not be limited to:

1.    If the grantee should default in the performance of any material requirement, subject to the provisions of sections 5.20.720 and 5.20.730;

2.    If the grantee shall fail to provide or maintain in full force and effect, the liability and indemnification coverage or the security fund or 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, including this chapter and the franchise agreement is invalid or unenforceable prior to the commencement of initial system construction;

4.    If the grantee ceases to provide all services for any reason within the control of the grantee over the cable system;

5.    If the grantee wilfully violates any of the material provisions of this chapter or the franchise agreement or attempts to practice any fraud upon the grantor;

6.    If the grantee becomes insolvent, or upon listing of an order for relief in favor of grantee in a bankruptcy proceeding.

B.    Procedure Prior to Revocation.

1.    The grantor may make written demand that the grantee comply with any such requirement deemed cause for revocation. In the event the stated breach is not reasonably curable within ninety (90) days, the franchise shall not be terminated or revoked or damages assessed, if the grantee provides within the ninety (90) days a plan, satisfactory to the grantor, to remedy the violation. If the breach of the requirement continues for a period exceeding ninety (90) days following receipt of such written demand by the grantor, and the grantee has not provided a plan, the grantor may place its request for termination of the franchise upon a regular council meeting agenda. The grantor shall cause notice to be served upon such grantee, at least twenty (20) days prior to the date of such meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, ten (10) days before such meeting in a newspaper of general circulation within the franchise area.

2.    The grantor shall hear any persons interested therein, and shall determine, within ninety (90) days, based upon the preponderance of the evidence, whether the grantee has committed a material breach of this chapter or the franchise agreement, and if so, whether such breach was wilful.

3.    If the grantor determines that the grantee has wilfully committed a material breach, then the grantor may, by resolution, declare that the franchise of such grantee shall be terminated and security fund and bonds forfeited, or the grantor may, at its option and if the material breach is capable of being cured by the grantee, direct the grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the grantor shall determine are reasonable under the circumstances. (Prior code § 4A.17)

5.20.180 Procedures in the event of termination or expiration.

A.    Disposition of Facilities. In the event a franchise expires, is revoked or otherwise terminated, the grantor may order the removal of the aboveground system facilities from the franchise area within a reasonable period of time as determined by the grantor or require the original grantee to maintain and operate its cable system for a period of not to exceed twenty-four (24) months as indicated in subsection D of this section.

B.    Restoration of Property. In removing its plant, structures and equipment, the 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 the grantee’s removal of its equipment 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 the grantee with the terms and conditions of this section.

C.    Restoration by Grantor—Reimbursement of Costs. In the event of a failure by the grantee to complete any work required by subsection A of this section and/or subsection B of this section, or any other work required by grantor by law or ordinance, within ninety (90) days after receipt of written notice, and to the satisfaction of the grantor, the grantor may cause such work to be done, and the grantee shall reimburse the grantor the reasonable cost thereof within thirty (30) days after receipt by grantee of an itemized list of such costs, or the grantor may recover such reasonable costs through the security fund or bonds provided by grantee. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

D.    Extended Operation. Upon either the expiration or revocation of a franchise, the grantor may require the grantee to continue to operate the cable system for a defined period of time not to exceed twenty-four (24) months from the date of such expiration or revocation. The grantee shall, as steward for its successor in interest, continue to operate the cable system under the terms and conditions of this chapter and the franchise agreement and to provide the regular cable service and any of the other services that may be provided at that time. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

E.    Rights not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor or the grantee under any provision of law. (Prior code § 4A.18)

5.20.190 Receivership and foreclosure.

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

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

2.    Such receivers or trustees shall, within the one hundred twenty (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.    Upon the foreclosure or other judicial sale of all or a substantial part of a system, or upon the termination of any lease covering all or a substantial part of the system, the grantee shall notify the city clerk of such fact, and such notification shall be treated as a notification that a change in ownership of the grantee has taken place and the provisions of this chapter governing such changes shall apply. (Prior code § 4A.19)

5.20.200 Franchise processing costs.

For either a new franchise grant, a franchise renewal or a transfer, the grantee shall reimburse the grantor for all out-of-pocket processing costs, which shall include, but shall not be limited to, costs or publications of notices, development and publication of relevant franchise ordinances and agreements, and any cost not covered by the application fees, incurred by the grantor in its study and evaluation of that grantor’s applications including, but not limited to, consultant and attorney fees and subject to any maximum amount grantor may have agreed to with a grantee in accordance with Section 5.20.120(I). These franchise processing costs are over and above the construction inspection and permit fees specified in Section 5.20.440 and the franchise fee specified in Section 5.20.160. (Prior code § 4A.20)

Article 3
Regulation of Franchise

5.20.210 Regulatory authority.

The grantor shall exercise regulatory authority under the provisions of this chapter and applicable law. If the cable television system operated by grantee also serves other contiguous or neighboring communities, grantor may, at its sole option, participate in a joint regulatory agency, with delegated sole responsibility in the area of cable and related communications. (Prior code § 4A.21)

5.20.220 Regulatory responsibility.

The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:

A.    Administering and enforcing the provisions of the cable television system franchise(s);

B.    Coordination of the operation of public, educational or government (PEG) access channel and facilities;

C.    Providing technical, programming and operational support to public agency users, such as government departments, schools and health care institutions;

D.    Establishing jointly with the grantee, or as otherwise specified in the franchise agreement, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement;

E.    Planning expansion and growth of public benefit cable services;

F.    Analyzing the possibility of integrating cable communications with other local, state or national telecommunications networks;

G.    Formulating and recommending long-range public telecommunications policy. (Prior code § 4A.22)

5.20.230 PEG access.

If so specified in the franchise agreement, and consistent with applicable law, the grantor may utilize a portion of the cable television system capacity, and associated facilities and resources, to develop and provide noncommercial public, educational or government (PEG) cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a commission, public corporation or other entity to receive and allocate facilities, support funds and other considerations provided by the grantor, the grantee, and/or others. Such an entity, if established, may be delegated the following responsibilities:

A.    Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable television system;

B.    Review the status and progress of each service developed for public benefit;

C.    Reallocate resources jointly with the grantee on a periodic basis to conform with changing priorities and public needs;

D.    Report to the grantor and the grantee annually on the utilization of resources, the new public services developed and the benefits achieved for the grantor and its residents. (Prior code § 4A.23)

5.20.240 Public access management.

A.    Management by Nonprofit Entity. The grantor may delegate the responsibility for public access management to a nonprofit entity which may include, but not be limited to, any of the following:

1.    A nonprofit public corporation;

2.    A commission or committee, appointed by grantor, and representing a broad spectrum of the community;

3.    An established nonprofit entity with special cablecasting capability, such as a local or regional community college.

B.    Functions. The entity designated to manage public access may be delegated the following functions:

1.    Responsibility for program production for and management of any public access facilities designated in the franchise agreement for community-based programming;

2.    To assure that the public access facilities are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis;

3.    To assure that no censorship or control over program content of the public access exists except as necessary to comply with federal prohibition of material that is illegal;

4.    To devise, establish and administer all rules, regulations and procedures pertaining to the use and scheduling of the public access facilities;

5.    To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable;

6.    To hire and supervise staff;

7.    To make all purchases of materials and equipment that may be required;

8.    To develop sources of funding, such as foundation or federal or state grants, to further community programming;

9.    To establish budgets, on an annual basis, and utilize funds and resources received for the purpose of public access programming and cablecasting.

C.    Reports to Grantor. The public access management entity shall provide a report to the grantor and the grantee, at least annually, indicating achievements in community-based programming and services.

D.    Consistent with federal law, grantee shall not be responsible or liable for actions and activities of grantor or the public management entity contemplated under Section 5.20.230 or this section. (Prior code § 4A.24)

5.20.250 Reservation by grantor.

The grantor reserves the right, at its discretion, from time to time, to determine if the entity described in Section 5.20.240 above is performing its purposes in a manner satisfactory to the grantor, and consistent with applicable law, and if it is not, the grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in Section 5.20.240. (Prior code § 4A.25)

5.20.260 Rates.

The grantee shall establish rates for its services that must be applied on a fair and uniform basis to all subscribers in the franchise area. The grantor retains the right to maximum regulation of rates, to the extent permitted under current or future law. (Prior code § 4A.26)

5.20.270 Rate change procedure.

A.    To the extent local regulation of rates is permitted under federal and state law, existing rates may be changed, from time to time, pursuant to this section. Failure to enforce this section by the grantor shall not amount to a waiver of its provisions.

B.    To the extent rate regulation by grantor is permitted, now or in the future, and grantor exercises such authority, grantor may establish requirements for information to be provided as part of any rate change request. Grantor may require any information to be submitted as part of the request so long as the information requested is reasonably necessary to permit grantor to make its decision as to whether to approve the rate change in whole or in part. Grantor shall arrive at its decision within ninety (90) days after all such requested information has been received, or the request shall be deemed to be approved. (Prior code § 4A.27)

5.20.280 Annual review of performance and quality of service.

At grantor’s sole option, within ninety (90) days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, the grantor may hold a public hearing at which the grantee shall be present and shall participate, to review the performance and quality of customer service of the cable television system. The reports required in Article 11 of this chapter 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 or complaints during the review meetings, either orally or in writing, and these shall be considered.

A.    Within thirty (30) days after the conclusion of the public hearing, grantor shall issue a report with respect to grantee’s compliance with all applicable consumer service and protection requirements. If franchise violations are found, grantor may direct grantee to correct the violations within a reasonable period of time.

B.    Failure of grantee, after due notice, to correct the violations shall be considered a breach of the franchise, and grantor may, at its sole discretion, exercise any remedy within the scope of this chapter considered appropriate. (Prior code § 4A.28)

5.20.290 System and services review.

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 established:

A.    At grantor’s sole option, the grantor may hold a public hearing on or about the third anniversary date of the franchise agreement at which the grantee shall be present and shall participate, to review the cable television system and services. Subsequent system and services review hearings may be scheduled by the grantor no more often than each three years thereafter. If an annual quality of service review, as provided for in Section 5.20.250 has also been scheduled, the two reviews shall be combined.

B.    Sixty (60) days prior to the scheduled system and services review hearing, grantee shall submit a report to grantor indicating the following:

1.    All cable system services reported in cable industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstrations, to communities in the nine county Bay Area with comparable populations (defined as communities with plus or minus fifty percent (50%) of the population of the city of St. Helena), that are not provided to the grantor;

2.    Any specific plans for provision of such new services by the grantee, or a justification indicating why grantee believes that such services are not feasible for the franchise area.

C.    Topics for discussion and review at the system and services review hearing shall include, but not be limited to, services provided, feasibility of providing new services, application of new technologies, costs for any of the foregoing, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in the law and regulatory constraints.

D.    Either the grantor or the grantee may select additional topics for discussion at any review hearing.

E.    Not later than sixty (60) days after the conclusion of each system and service review hearing, grantor shall issue a report, including specifically a listing of any cable services not then being provided to the grantor that are considered technically and economically feasible. Grantor may request grantee to provide such services within a reasonable time, under reasonable rates and conditions. (Prior code § 4A.29)

Article 4
General Financial and Insurance Provisions

5.20.300 Construction bond.

A.    Within thirty (30) days after the effective date of a new franchise or a renewal which requires significant system construction, and prior to the commencement of any construction work by the grantee, the grantor may require the grantee to file a construction bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may claim damages as a result of the breach of any duty by the grantee assured by such bond.

B.    Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by the grantee in the event the grantee shall default in the performance of its franchise obligation.

C.    In no event shall the amount of the bond be construed to limit the liability of the grantee for damages.

D.    Grantor, at its sole option, may waive this requirement or permit consolidation of the construction bond with the performance bond and/or the security fund specified, respectively in Sections 5.20.310 and 5.20.320.

E.    Upon completion of construction, any construction bonds then in force shall be released. (Prior code § 4A.30)

5.20.310 Performance bond.

A.    In addition to the construction bond set forth above, the grantee may be required, as an alternative to the Section 5.20.320 security fund, at least thirty (30) days prior to the commencement of operation, to file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the cable television system operated under the franchise agreement and including the payments required to be made to the grantor hereunder.

B.    Such bond as contemplated herein shall be in the form approved by the grantor and shall among other matters cover the cost of removal of any properties installed by the grantee in the event the grantee shall default in the performance of its franchise obligation.

C.    In no event shall the amount of the bond be construed to limit the liability of the grantee for damages. (Prior code § 4A.31)

5.20.320 Security fund.

A.    Security Deposit—Assessment. Within thirty (30) days after the effective date of the franchise, the grantee shall deposit into a bank account established by the grantor 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 the grantor having jurisdiction over its acts or defaults under this chapter, and the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.

Subject to the provisions of Subsection D of this section, the security fund may be assessed by the grantor for purposes including but not limited to the following:

1.    Failure of the grantee to pay grantor sums due under the terms of the franchise;

2.    Reimbursement of costs borne by the grantor to correct franchise violations not corrected by grantee, after due notice in accordance with this notice;

3.    Monetary remedies or damages assessed against grantee due to default or violation of franchise requirements.

B.    Form of Bond. At grantor’s sole option, some portion or all of the security fund may be provided in the acceptable form of an irrevocable letter of credit, performance bond, security bond or corporate guarantee bond, in lieu of a cash deposit.

C.    Restoration of Fund. Within thirty (30) days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection A of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the franchise agreement.

D.    Withdrawals From Fund. If the grantee fails, after thirty (30) days’ written notice, to pay to the grantor any franchise fee or taxes due and unpaid; or fails to pay to the grantor within such thirty (30) days, any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or fails, after thirty (30) days’ notice of such failure of the grantee to comply with any material provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor after ten (10) days’ notice to grantee of intention to withdraw funds, may thereafter withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof. In the event the security fund is insufficient to pay and/or repay the grantor for its lawful costs, damages or obligations incurred, any other funds, bonds or assets of the grantee may be drawn upon by the grantor for any such amounts due the grantor.

E.    Default by Grantee—Dispersal of Fund. The security fund deposited pursuant to this section shall become the property of the grantor in the event that the franchise is revoked for cause by reason of the default of the grantee in accordance with the procedures of Section 5.20.170 of this chapter. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety (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. The grantee shall be entitled to any interest accrued on the cash portion of the security fund.

F.    Grantor’s Right. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this chapter 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 the grantor may have. (Prior code § 4A.32)

5.20.330 Indemnification.

A.    The grantee shall, by acceptance of any franchise granted, indemnify, defend and hold harmless the grantor, its officers, boards, commissions, agents and employees from any and all third-party claims, suits, judgment for damages or other relief, costs, attorneys’ fees, consultant fees and accountant fees in any way arising out of or through or alleged to arise out of or through:

1.    The act of the grantor in granting the grantee’s franchise; and

2.    The acts or omissions of grantee, its servants, employees or agents in the exercise of the franchise, 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 chapter or the franchise agreement;

3.    The exercise of any right or privilege granted or permitted by this chapter 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 or regulations or otherwise.

B.    In the event any such claims shall arise, the grantor or any other indemnified party shall tender the defense thereof to the grantee. Provided, however, that the grantor, 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 consulting grantor.

C.    The grantee shall not be required to indemnify the grantor for negligence or wilful misconduct on the part of grantor’s officials, boards, commissions, agents or employees. (Prior code § 4A.33)

5.20.340 Insurance.

A.    Maintenance of Insurance. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

1.    Workers’ Compensation Insurance. In such coverage as may be required by the workers’ compensation insurance and safety laws of the state and amendments therefor.

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

3.    Comprehensive Automobile Liability. Comprehensive automobile liability including but not limited to nonownership 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.

B.    Record of Policies. The grantee shall furnish the grantor with copies of such insurance policies or certificates of insurance.

C.    Additional Insured—Endorsements. Such insurance policies provided for herein shall name the grantor, its officers, boards, commissions, agents and employees as additional insured, and shall be primary to any insurance carried by grantor, and shall contain the following endorsements:

1.    It is hereby understood and agreed that this insurance policy may not be cancelled by the surety or the intention not to renew be stated by the surety until thirty (30) days after receipt by the city by registered mail of written notice of such intention to cancel or not renew.

2.    The naming of an additional insured as herein provided shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured.

3.    The additional insured named herein shall not be held liable for any premium or expense of any nature on this policy or any extension thereof.

4.    The additional insured named herein shall not by reason of being so named be considered a member of any mutual insurance company for any purpose whatsoever.

5.    Any other insurance held by the additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance which is referred to by this certificate.

D.    The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued hereunder to the amounts of such insurance.

E.    All insurance carriers providing coverage under subsection A of this section shall be duly licensed to operate in the state.

F.    Each grantee shall, concurrently, with the filing of its acceptance of its franchise agreement, and thereafter periodically during the term of its franchise agreement, furnish to the city clerk, certificates of insurance evidencing the existence of insurance coverage required hereunder. Such certificates shall provide that coverage may not be cancelled, substantially altered or terminated, except upon thirty (30) days written notice to grantor.

G.    If a grantee fails to maintain any of the insurance coverage required hereunder, grantor may immediately obtain, at grantee’s expense, such insurance coverage and/or terminate the franchise in accordance with the procedures of this chapter. (Prior code § 4A.34)

Article 5
Design and Construction Provisions

5.20.350 System design.

A system permitted to be installed and operated pursuant to a franchise shall be designed and installed to meet all of the standards and shall offer all of the facilities, equipment and services as required by this chapter and the franchise agreement. The facilities, equipment and services shall be offered to all subscribers in accordance with this chapter and the franchise agreement. The grantee shall not reduce the level of required facilities, equipment and customer services without prior grantor notice. (Prior code § 4A.35)

5.20.360 Geographical coverage.

The grantee shall design and construct the cable system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school and public 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 nondiscriminatory, subject to the line extension policy set forth in the franchise agreement, and grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference. (Prior code § 4A.36)

5.20.370 Cablecasting facilities.

The grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement. (Prior code § 4A.37)

5.20.380 System construction schedule.

A.    The grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement.

B.    The grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan and projected dates for offering service. In addition, the grantee shall update this information on a monthly basis upon grantor’s request, by submitting a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reasons for any delay. (Prior code § 4A.38)

5.20.390 Remedies for delay in construction.

The grantor may, at its sole option, apply any or all of the remedies in connection with unjustified delays in system construction as specified in Article 10 of this chapter. (Prior code § 4A.39)

5.20.400 Provision of service.

After service has been established by activating trunk and distribution cables for any area, the grantee shall provide service to any requesting subscriber within that area within thirty (30) days from the date of request in accordance with any line extension policy specified in the franchise agreement. (Prior code § 4A.40)

5.20.410 Undergrounding of cable.

The undergrounding of cable is encouraged. In any event, cables shall be installed under ground at grantee’s cost where utilities are already under ground, or where required by law. Previously installed aerial cable shall be under ground and relocated in concert with other utilities, when such other utilities convert from aerial to underground construction. (Prior code § 4A.41)

5.20.420 New development undergrounding.

In cases of new construction or property development where utilities are to be placed under ground, upon request by the grantee, the developer or property owner shall give grantee at least ten (10) days’ notice of the particular date on which open trenching will be available for grantee’s installation of conduit, pedestals and/or vaults 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 within five working days of the date of the trenches are available, as designated in the foregoing ten (10) day written notice given by the developer or property owner to grantee, then should the trenches be closed after the five day period, the cost of new trenching is to be borne by grantee. (Prior code § 4A.42)

5.20.430 Underground at multiple dwelling units.

In cases of multiple dwelling units serviced by aerial utilities, grantee shall make very 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. (Prior code § 4A.43)

5.20.440 Street occupancy.

A.    Use of Existing Facilities. Grantee shall utilize existing poles, conduits and other facilities whenever possible and economically feasible, and shall not construct or install any new, different or additional poles, conduits or other facilities on public property until the written approval of the grantor is obtained.

B.    Construction in Streets—Notice. Except in situations requiring emergency repairs, grantee shall notify the grantor at least ten (10) days prior to the intention of the grantee to commence any construction in any streets. The grantor shall cooperate with the grantee in granting any permits required; provided, such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the grantor.

C.    Maintenance of Facilities. All transmission lines, equipment and structure shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and, at all times, shall be kept and maintained in a safe, adequate and substantial condition and in good order and repair. The grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.

D.    Restoration of Public Ways. Grantee shall, at its own expense, and in a manner approved by the grantor, restore to grantor’s standards and specifications, any damage or disturbance caused to the public way as a result of its operations or construction on its behalf.

E.    Emergency Removal of Facilities. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the grantee’s facilities, no charge shall be made by the grantee against the grantor for restoration and repair. Whenever possible, grantee shall be contacted to perform such restoration and repair.

F.    Tree Trimming. Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor.

G.    Cooperation with Grantor. Upon receipt of thirty (30) days’ written notice, the grantee, at its expense, shall protect, support, temporarily disconnect, relocate or remove any property of grantee when, in the opinion of the grantor the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, separation or realignment, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of public buildings, redevelopment or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing hereunder shall be deemed a taking of the property of grantee, and grantee shall be entitled to no surcharge by reason of anything hereunder unless any such action is provided at the request of or solely for the benefit of a private party.

H.    Failure to Complete Work. After receipt of thirty (30) days’ written notice, upon failure of grantee to commence, pursue or complete any work required by law or by the provisions of this chapter to be done on any street, within the time prescribed and to the satisfaction of the grantor, the grantor may, at its option, cause such work to be done and the grantee shall pay to the grantor the reasonable cost thereof in the itemized amounts reported by the grantor to grantee within thirty (30) days after receipt of such itemized report.

I.    Paving and Curb Cuts. The grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the grantor.

J.    Conduit. Grantor reserves the right to require conduit for underground cabling in special areas. In the event conduit is required, grantor shall make the requirement known in a timely manner during the construction process.

K.    Property. All property, plant, equipment and facilities constructed, installed, operated and maintained by a grantee pursuant to this chapter or a franchise granted hereunder shall be and remain the property solely of the grantee and shall not become or be deemed a fixture or part of any public street or right of way or any other real property within the city. (Prior code § 4A.44)

5.20.450 Construction and technical standards.

A.    Construction Standards.

1.    Grantor Codes and Permits. Grantee shall comply with all applicable grantor construction codes and permits procedures. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring inspection costs imposed by the construction of the cable system.

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

3.    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 as amended, and all applicable state and local codes.

4.    Antennas and Towers. Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association’s R.S. 222-A specifications, and provisions of the Uniform Building Code, as modified.

5.    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.

6.    Construction Standards and Requirements. All of the 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 in any manner with the rights of any property owner, or to hinder or obstruct pedestrian or vehicular traffic.

7.    Safety, Nuisance, Requirements. The grantee shall at all times employ professional 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 television system shall meet all technical and performance standards contained in the franchise agreement, subject to applicable law.

C.    Test and Compliance Procedure. The grantee shall submit within sixty (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 technical standards provisions of the franchise agreement. The tests shall be performed at intervals no greater than twelve (12) months. The tests may be witnessed by representatives of the grantor, and written test reports shall be submitted to the grantor. If more than ten percent (10%) of the locations tested fail to meet the performance standards, the 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 ten percent (10%) may result, at the grantor’s option, in appropriate remedies.

D.    Special Tests. At any time after commencement of service to subscribers the grantor may require grantee to perform 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. The grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to grantee or to the subscriber.

E.    Cost of Tests. The reasonable cost of all tests required by subsections C and D of this section, and retesting as necessary, shall be borne by the grantee. (Prior code § 4A.45)

5.20.460 Area-wide interconnection.

A.    Interconnection. The grantor may request grantee to interconnect public usage channels of the cable television system with any or all other cable systems in adjacent areas. 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 request of the grantor to interconnect, the grantee shall initiate negotiations with the other affected system or systems and shall report to the grantor the results of such negotiation no later than sixty (60) days after initiation.

C.    Relief. The grantee may be granted reasonable extensions of time to interconnect. The grantor shall rescind its request to interconnect upon petition by the grantee to the grantor, if the grantor finds that the grantee has negotiated in good faith and has failed to obtain an equitable cost-sharing agreement with the system or systems involved in the proposed inter-connection, or that the cost of the interconnection would cause an unreasonable financial burden upon the grantee and/or its subscribers.

D.    Cooperation Required. The grantee shall reasonably cooperate with any interconnection corporation, regional inter-connection 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. (Prior code § 4A.46)

Article 6
Service Provisions

5.20.470 Reduction in services.

Services provided by grantee shall not be reduced without at least thirty (30) days’ prior notification to grantor and subscribers. (Prior code § 4A.47)

5.20.480 Public, educational or government (PEG) access facilities.

The 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 § 4A.48)

5.20.490 Cable channels for commercial use.

The grantee shall designate channel capacity for commercial use as required by applicable law. (Prior code § 4A.49)

Article 7
Consumer Protection

5.20.500 Consumer service standards.

The grantee shall maintain a local office to provide the necessary facilities, equipment and personnel to comply with the following consumer standards under normal conditions of operation, excluding billing cycles, equipment changeouts, etc.:

A.    Sufficient toll-free telephone line capacity during normal business hours to assure that an average of ninety percent (90%) of all calls will be answered before the fourth ring, and that, on the average, ninety percent (90%) of the callers will not be required to wait more than thirty (30) seconds before being connected to a service representative or an automatic response unit;

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

C.    A business and service office adequately staffed to accept subscriber payments and respond to service requests and complaints, at a location and with service hours as specified in the franchise agreement;

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

E.    An installation staff, capable of installing service to any subscriber within an average of seven days after receipt of a request, in all areas where trunk and feeder cable have been activated;

F.    Grantee shall schedule, within a specified four-hour time period, all appointments with subscribers for installation or service. This shall permit morning or afternoon scheduling or, with the subscriber’s concurrence, all day appointments. (Prior code § 4A.50)

5.20.510 Requests for cable service and repairs.

A.    The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between twelve midnight and six a.m. 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 resulting in a service call as required by Section 5.20.780.

B.    The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:

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

2.    Isolate outage: within twenty-four (24) hours (forty-eight (48) hours on weekends) of receiving requests for service identifying an isolated outage of sound or picture for one or more channels, for an individual subscriber.

3.    Inferior reception quality: within forty-eight (48) hours, including weekends, of receiving a request for service identifying a problem concerning picture or sound quality, for an individual subscriber.

Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location or begins diagnostic or remedial work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival. No charge shall be made to the subscriber for any service call unless the service request can be demonstrated to be both repeated and noncable system in origin or to involve subscriber negligence or tampering.

C.    In the event that the service to any subscriber is interrupted, without fault of the subscriber, for twenty-four (24) or more consecutive hours, except for acts of God, or where prior approval of the interruption is obtained from the grantor, the grantee shall provide, upon subscriber’s request, a pro rata rebate of the monthly fees for the time of the interruption to each affected subscriber. (Prior code § 4A.51)

5.20.520 Verification of compliance.

Upon reasonable notice, the grantee shall demonstrate compliance with any or all of the standards required in Sections 5.20.500 and 5.20.510. The grantee shall provide sufficient detail to permit the grantor to verify the extent of compliance. (Prior code § 4A.52)

5.20.530 Noncompliance with standards.

A repeated and verifiable pattern of noncompliance with the consumer protection standards of sections 5.20.500 and 5.20.510 after grantee receipt of due notice and an opportunity to cure, may be termed a breach of the franchise, subject to any and all remedies as prescribed in Article 10 of this chapter and applicable law. (Prior code § 4A.53)

5.20.540 Complaint procedure.

A.    Complaints to Grantee. Grantee shall establish written procedure for receiving, acting upon and resolving subscriber complaints without intervention by the grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing that grantee has violated any provision of this chapter, or the terms and conditions of the subscriber’s contract with grantee.

B.    Complaints to Grantor. A subscriber who is dissatisfied with grantee’s proposed decision or who was not sent a written decision within a ten (10) day period shall be entitled to have the complaint reviewed by the grantor. The subscriber shall initiate the review by filing a written complaint together with the grantee’s written decision, if any, with the grantor and by the grantor notifying the grantee, in writing, of the filing. The subscriber shall make such filing and notification within twenty (20) days of receipt of grantee’s decision or, if no grantee decision has been provided, within thirty (30) days after filing the original complaint with grantee. The grantor may extend these time limits for reasonable cause. (Prior code § 4A.54)

5.20.550 Review by the grantor.

The city manager shall determine, solely upon a review of a subscriber complaint and the grantee’s decision, if any, whether further action is warranted.

A.    In the event the city manager does not initiate further proceedings within fifteen (15) days of the filing of the complaint, the grantee’s proposed action or resolution shall be final.

B.    If the city manager decides to initiate further investigation, the administrator shall require the grantee and the subscriber to submit, within ten (10) days of notice thereof, a written statement of the facts and arguments in support of their respective positions. The grantee or the subscriber may request in such statement that a hearing be conducted by the city manager.

C.    A hearing, if requested, shall be conducted by the city manager following notice, in writing, specifying the time and place for such hearing. The hearing shall be conducted informally, and the parties may offer any evidence pertinent to the dispute. The parties shall produce any additional evidence, including testing reports from the grantee, which the administrator may deem necessary to an understanding and determination of the dispute.

D.    The city manager shall issue a written decision within fifteen (15) days of receipt of the written statements or, if a hearing is requested, within fifteen (15) days of the conclusion of the hearing, setting forth the basis of the decision. The decision may be appealed to the council. (Prior code § 4A.55)

5.20.560 Escrow account.

The city manager may establish an escrow account wherein a subscriber may deposit a disputed portion of the subscriber’s monthly service charge. If a subscriber either continues to make full and timely payment of all monthly service charges to grantee, or deposits any bona fide disputed portion of such monthly service charges to said escrow account, grantee shall not discontinue service on the basis of nonpayment during the pendency of a complaint submitted under the provisions of this chapter. Any amounts deposited in the escrow account shall be paid to the grantee or subscriber in accordance with a final determination of a complaint. (Prior code § 4A.56)

5.20.570 Remedies for violations.

The grantor may, as a part of a subscriber complaint decision issued under the provisions of this chapter, impose damages on the grantee as specified in the franchise agreement. Damages may be imposed only if the grantor finds that the grantee has arbitrarily refused or failed without justification to comply with the provisions of this section. (Prior code § 4A.57)

5.20.580 Notices.

A.    Operating Policies.

1.    As subscribers are connected or reconnected to the cable system, and at least once annually thereafter, the grantee shall provide each subscriber with written information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and also furnish information concerning the grantor office responsible for administration of the franchise with the name and telephone number of the office. The notice shall also indicate grantee’s business hours and procedures for responding to inquiries after normal business hours.

2.    The grantee shall provide all subscribers and the grantor written notice no less than thirty (30) days prior to any proposed change in these policies.

B.    Rates and Services. Under normal circumstances, the grantee shall provide all subscribers and the grantor with at least thirty (30) day’s written notice prior to the implementation of any change in rates or programming services.

C.    Copies to Grantor. Copies of all formal notices provided generally to subscriber shall be filed concurrently with the grantor. (Prior code § 4A.58)

5.20.590 Quality of service.

In addition to the annual review provided in Section 5.20.280, grantor may evaluate the quality of service at any time, based upon the number of subscriber complaints received by the grantee and the grantor, and grantee’s response to those complaints. A grantor determination that grantee has not complied with consumer service and protection requirements may lead to direction to grantee to cure the noncompliance. Grantee shall commence corrective action within thirty (30) days after receipt of written notice. Failure to do so may be deemed to be a breach of the franchise and subject to the remedies prescribed in Article 10 of this chapter. Grantor, after due process and in accordance with the franchise agreement, may utilize the performance bond and/or security fund of sections 5.20.310 and 5.20.320 respectively, to remedy any such franchise breach. (Prior code § 4A.59)

5.20.600 Tenant rights.

It is grantor’s intent that tenants not be discriminated against in the ability to subscribe to cable services. 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, in accordance with the line extension policy in the franchise agreement, so long as the owner of the facility consents, in writing, if requested by grantee, to the following:

A.    To grantee’s providing the service to units of the facility;

B.    To reasonable conditions and time for installation, maintenance and inspection of the system on the facility premises;

C.    To reasonable conditions promulgated by grantee to protect grantee’s equipment and to encourage widespread use of the system;

D.    To not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not; and

E.    To not demand payment or other consideration from grantee as a condition of allowing cable service to be installed and provided to residents. (Prior code § 4A.60)

5.20.610 Grantee rules and regulations.

The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under the franchise, and to conduct its business and assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regulations terms and conditions shall not be in conflict with the provisions hereof or applicable state and federal laws, rules and regulations. (Prior code § 4A.61)

5.20.620 Rights of individuals.

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

B.    Grantee shall strictly adhere to the equal employment opportunity requirements of federal, state and local law and regulations in effect on the date of the franchise grant, and as amended, from time to time.

C.    The grantee’s policy with regard to personally identifiable information shall be consistent with federal law.

D.    The entire system of the grantee shall be operated in a manner consistent with the principle of commercial 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. (Prior code § 4A.62)

5.20.630 Continuity of service mandatory.

A.    It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to rebuild, modify or sell the system, or the grantor gives notice of intent to terminate or fails to renew this franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service. In the event of a change of grantee, or in the event a new operator acquires the system, the original grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the system, 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 the grantor or without just cause, the grantor may, at its option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor is required to fulfill this obligation for the grantee, then during such period as the grantor fulfills such obligation, the grantor shall be entitled to collect all revenues from the system, and the grantee shall reimburse the grantor for all reasonable costs or damages in excess of the revenues collected by the grantor that are the result of the grantee’s failure to perform. (Prior code § 4A.63)

5.20.640 Identification of employees.

Every field representative of the grantee shall be clearly identifiable on sight to the public as a representative of the grantee. Every vehicle of the grantee shall be similarly identified. (Prior code § 4A.64)

5.20.650 Theft of service.

No person, whether or not a subscriber to a cable system, may knowingly or intentionally damage or cause to be damaged any wire, cable, conduit, equipment, apparatus or appurtenance of the grantee, or commit any act with intent to cause damage, or tap, tamper with or otherwise connect any wire or device to a wire cable, conduit, apparatus or appurtenance of the grantee with the intent to obtain or introduce a signal or impulse from or to the cable system without authorization from the grantee, or to obtain cable or other communications services with intent to cheat or defraud the grantee of any lawful charge to which it is entitled. (Prior code § 4A.65)

Article 8
Operation and Maintenance

5.20.660 Books and records.

The grantor, upon reasonable notice, 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 the grantee which relate reasonably to grantor’s regulatory authority and are maintained at the office required by Section 5.20.500; provided, that the grantor shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee and provided further, that records shall be exempt from inspection pursuant to this section to the extent required by applicable law regarding subscriber privacy and to the extent such records are protected by law against discovery in civil litigation. If any of such books or records are not kept in the office, or upon reasonable request made available to the grantor, and if the grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of grantor’s duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by grantee. (Prior code § 4A.66)

5.20.670 Records required.

In any event, the grantee shall at all times maintain:

A.    The compliant file required by Section 5.20.780;

B.    A full and complete set of plans, records and “as-built” maps showing the exact location of all cable television system equipment installed or in use in the franchise area, exclusive of subscriber service drops. (Prior code § 4A.67)

Article 9
Rights Reserved to the Grantor and Grantee

5.20.680 Right of inspection of construction.

The grantor shall have the right to inspect all construction or installation work performed in the city, 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 § 4A.68)

5.20.690 Right of intervention.

The grantor may, with the permission of the relevant court or administrative tribunal, intervene in any suit or proceeding involving the cable system franchise to which the grantee is party. (Prior code § 4A.69)

5.20.700 Right of grantee and grantor.

In the event of any dispute between grantee and grantor over this chapter or the franchise agreement, or with respect to any rights or obligations arising therefrom, grantee and grantor shall first pursue and exhaust all available administrative remedies. Thereafter grantee and grantor may pursue any appropriate legal action. (Prior code § 4A.70)

Article 10
Franchise Violations

5.20.710 Remedies for franchise violations.

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

A.    Assess Monetary Damages. Assess against the grantee monetary damages up to the limits established in the franchise agreement for material breaches; such assessment to be levied against the security fund, hereinabove provided, and collected by grantor after completion of the procedures specified in Section 5.20.720. The amount of such assessment shall be deemed to represent liquidation of damages actually sustained by grantor by reason of grantee’s failure to perform. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have 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 fees, as may have been suffered or incurred by grantor 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 grantor’s right to enforce the provisions of the construction and performance bonds provided for in Article 4 of this chapter, and is intended to provide compensation to grantor for actual damages.

B.    Terminate Franchise. Terminate the franchise for any of the causes stated in Article 2 of this chapter.

C.    Due Process. No remedy shall be imposed by grantor against grantee for any breaches of the franchise without grantee being afforded due process of law, as provided for in Section 5.20.720.

Grantor may impose any or all of the above enumerated measures against grantee, which shall be in addition to any and all other legal or equitable remedies it has under the franchise or under any applicable law. (Prior code § 4A.71)

5.20.720 Procedure for remedying franchise violations.

In the event that the grantor determines that the grantee has breached any material requirement (as defined in Section 5.20.170), the grantor may make a written demand on the grantee that it remedy such breach. If the breach is not remedied, or in the process of being remedied, to the satisfaction of the grantor within thirty (30) days following such demand, the grantor shall determine whether or not such grantee’s breach was excusable or inexcusable, in accordance with the following procedure:

A.    An administrative hearing shall be held after thirty (30) days’ written notice to grantee to review the alleged breach. If this hearing does not result in a satisfactory resolution, and/or the grantee requests a public hearing, then a public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon thirty (30) days’ written notice to the grantee of the time and the place of the hearing provided and the allegations of franchise breaches.

B.    If, after notice is given and, at the grantee’s option, a full public proceeding is held, the grantor determines that such breach by the grantee was excusable as provided in Section 5.20.730, the grantor shall direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may reasonably direct by written notice.

C.    If, after notice is given and, at the grantee’s option, a full public proceeding is held, the grantor determines that such breach was inexcusable, then the grantor may impose a remedy in accordance with Section 5.20.710. (Prior code § 4A.72)

5.20.730 Force majeure—Grantee’s inability to perform.

In the event grantee’s performance of any requirement (as the term is defined in Section 5.20.170) is prevented, delayed 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 after breach has notified grantor, in writing, within thirty (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, acts of God, civil emergencies, interruption of labor or material supplies, public utility outages or failures and any orders or requirements of a lawful agency or tribunal. Grantor and grantee, in the franchise agreement, may mutually define those conditions deemed subject to force majeure application. (Prior code § 4A.73)

Article 11
Reports

5.20.740 Annual reports.

Within one hundred twenty (120) days after the close of grantee’s fiscal year, the grantee may be required upon grantor’s request to submit a written annual report, in a form requested by the grantor 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 category of service;

B.    A revenue statement, audited by an independent certified public account, or certified by an officer of the grantee;

C.    A statement of projected construction, if any, for the next two years;

D.    A list of grantee’s officers, members of its board of directors and other principals of grantee;

E.    A list of stockholders or other equity investors holding five percent or more of the voting interest in the grantee and its parent, subsidiary and affiliated corporations and other entities, if any, unless the parent is a public corporation whose annual reports are publicly available. (Prior code § 4A.74)

5.20.750 Plant survey report.

At the grantor’s request, grantee shall submit to the grantor an annual plant survey report which shall be a complete survey of the grantee’s plans 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 such requirements, including supervision, as the grantor may prescribe. The report shall be in sufficient detail to enable the grantor to ascertain that the service requirements and technical standards of the franchise are achieved and maintained. If grantor has valid reason to believe that portions or all of the system do not meet the technical standards incorporated into the franchise agreement, at grantor’s request, but no more often than once per three years, the grantee and the grantor shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable system. The cost of such evaluation shall be borne equally by the grantee and the grantor. (Prior code § 4A.75)

5.20.760 Copies of federal and state reports.

The grantee may be required to submit to the grantor copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the 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 the grantor no later than thirty (30) days after receipt of a grantor request. The grantee waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights have been determined to be confidential by a court or by the practices or decision of federal or state agencies. Such confidential data exempt from public disclosure shall be retained in confidence by the grantor and its authorized agents and shall not be made available for public inspection. (Prior code § 4A.76)

5.20.770 Public reports.

If public reports are issued, a copy of each of grantee’s annual and other periodic public financial reports and those of its parent, subsidiary and affiliated corporation and other entities, as the grantor requests, shall be submitted to the grantor within thirty (30) days after receipt of a request. (Prior code § 4A.77)

5.20.780 Complaint file and reports.

An accurate and comprehensive file shall be kept by the grantee of any and all complaints regarding the cable system which result in a service call. A procedure shall be established by the grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the grantor. Complete records of grantee’s actions in response to all complaints shall be kept. These files and records shall remain open to the public during normal business hours, so that individuals are able to inspect their own files.

A.    A summary of service calls or repair requests, identifying the number and nature of the requests and their disposition, upon grantor request, shall be completed for each month and submitted to the grantor by the tenth day of the succeeding month.

B.    A log and summary of all service interruptions.

C.    If requested by the grantor, the results of an annual opinion survey report which identifies satisfaction or dissatisfaction among subscribers with cable communications services offered by the grantee shall be submitted to the grantor no later than two months after the end of grantee’s fiscal year. (Prior code § 4A.78)

5.20.790 Miscellaneous reports.

Grantee shall submit to the grantor such other information or reports in such forms and at such times as the grantor may reasonably request or require. (Prior code § 4A.79)

5.20.800 Inspection of facilities.

The grantee shall allow the grantor to make inspections of any of the grantee’s facilities and equipment at any time upon at least ten (10) days’ notice or, in case of emergency, upon demand without prior notice. (Prior code § 4A.80)

5.20.810 Public inspection.

All reports subject to public disclosure, shall be available for public inspection at a designated grantor office during normal business hours and upon forty-eight (48) hours’ prior notice. (Prior code § 4A.81)

5.20.820 Failure to report.

The wilful refusal or failure of the grantee to file any of the reports reasonably required, or such other reports as the grantor reasonably may request, may be deemed a material breach of the franchise and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise. (Prior code § 4A.82)

5.20.830 False statements.

Any materially false or misleading statement or representation made knowingly and wilfully by the grantee in any report required under the franchise and not promptly corrected by grantee, may be deemed a material breach of the franchise and may subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise. (Prior code § 4A.83)

5.20.840 Cost of reports.

One copy of all reports and records required under this or any other section shall be furnished at the sole expense of the grantee. (Prior code § 4A.84)

Article 12
Miscellaneous Provisions

5.20.850 Compliance with state and federal laws.

Notwithstanding any other provisions of the franchise to the contrary, the 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 the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise. (Prior code § 4A.85)

5.20.860 Separability—Nonmaterial provisions.

If any provision of this chapter or the franchise agreement 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 the provision is considered nonmaterial by the grantor, the provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been 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 the grantor shall give the grantee thirty (30) days’ written notice of such change before requiring compliance with the provision. (Prior code § 4A.86)

5.20.870 Separability—Material provisions.

If any material section of this chapter or the franchise agreement is held to be invalid or pre-empted by federal, state or county regulations or laws, resulting in a material adverse consequence to either party, the grantor and grantee shall attempt to negotiate appropriate modifications to the franchise to provide reasonable relief to the grantor or grantee from such invalidity or preemption. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator or arbitrators, in accordance with state law, who shall determine what modifications are appropriate. The arbitrator’s decision shall be binding on the parties; provided, that no decision of the arbitrator shall require the grantor or grantee to be in violation of any federal or state law or regulation. (Prior code § 4A.87)

5.20.880 Notices.

Grantee shall maintain throughout the term of the franchise a local address for service of notices by mail. All notices shall be in writing. (Prior code § 4A.88)

5.20.890 Captions.

The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter. (Prior code § 4A.89)

5.20.900 No recourse against the grantor.

The grantee shall have no recourse whatsoever against the grantor, 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; provided, however, that nothing in this section shall deprive the grantee of any remedies available to redress negligence, misconduct or bad faith on the part of grantor or any of its agents. (Prior code § 4A.90)

5.20.910 Nonenforcement by the grantor.

The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance. (Prior code § 4A.91)