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HomeMy WebLinkAbout851 TV fran245 ORDINANCE NO. 851 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH REPEALING ARTICLE 2 OF CHAPTER 11 OF DIVISION 1 OF THE UKIAH MUNICIPAL CODE, REGULATING TELEVISION T.V. FRANCHISE AND ADOPTING A NEW ARTICLE 2 GOVERNING THE SAME SUBJECT MATTER. The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE. Article 2 of Chapter 11 of Division 1 of the Ukiah Municipal Code, sections 1870 to 1902, inclusive, is hereby repealed. SECTION TWO. A new Article 2 of Chapter 11 of Division 1 of the Ukiah Municipal Code, sections 1870 to 1876, inclusive, is hereby enacted to read as follows: SECTION 1870 DIVISION I CHAPTER I I A® ARTICLE 2: TABLE OF CONTENTS B. 8 AUTHORITY AND DEFINITIONS A. Intent and Authority. 3 B. Definitions. ', .. 3 SECTION 1871 SCOPE OF FRANCHISE 7 Franchise to Install and Operate. Cable Television Service. Extension of Service. C. 11 Page 3 SECTION 1872 ae Be Co D · SECTION 1873 A· FRANCHISE PAYMENTS, TERM AND ENFORCEMENT Franchise Payments. Term of Franchise. Liquidated Damages, Penalties, Sanctions, Termination, Cancellation, Revocation and Purchase. Performance Assurances. PROCEDURE FOR OBTAINING FRANCHISE Applications for New Franchise. 12 12 12 13 18 21 21 246 · C · De SECTION 1874 ae Be Ce · Se SECTION 1875 ae B· Ce Do Se Fo Ge He SECTION 1876 A· Be Applications for Renewal of Existing Franchise. Decision by Council. Acceptance of the Franchise. LIMITATIONS ON FRANCHISE General Limitations. Rights Reserved to City. Council's Continuing Right to Adopt Regulations Services to Subscribers, Rebates. Permits and Construction. MISCELLANEOUS PROVISIONS Miscellaneous Provisions. Privacy. Equal Employment Opportunity and Affirmative Action. Periodic Review and Revision. Arbitration. Waivers. Force Majeure. Notice. CRIMINAL VIOLATIONS AND PENALTY Criminal Violations. Criminal Penalties. 24 25 27 28 28 30 31 36 37 40 40 42 43 44 45 47 48 48 48 48 DIVISION I CHAPTER II ARTICLE 2: CABLE TELEVISION SERVICE FRANCHISE Section 1870 Section 1871 Section 1872 Section 1873 Section 1874 Section 1875 Section 1876 Authority and Definitions. Scope of Franchise. Franchise Payments and Term. Procedure for Obtaining Franchise. Limitations on Franchise. Miscellaneous Provisions. Criminal Violations and Penalty. SECTION 1870. AUTHORITY AND DEFINITIONS A. Intent and Authority. 1) The short title of this chapter shall be "the Cable Television Franchise Regulation Ordinance." 2) The intent of the City Council in adopting this ordinance is to establish procedures and standards for the granting and terminating of franchises for cable tele- vision systems which operate in the City and, further, to establish appropriate standards for the protection of sub- scribers and users of such systems and the protection of easements and rights of way. 247 3) The authority under which this ordinance is enacted includes Sections 53066 and 53066.1 of the California Government Code and Part 76 of the Guidelines or Rules and Regulations of the Federal Communications. B. Definitions. For the purpose of this article, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singu- lar number, and words in the singular number include the plural number. 1) 'City' shall mean the City of Ukiah, a political subdivision of the State of California, in its present general law form or in any later reorganized, con- solidated, enlarged, or chartered form. 2) 'Council' shall mean the present City Council of the City of Ukiah, California, or any future body constituting the legislative body of the City. 3) 'City Manager' shall mean the City Manager, or other designation of the City's chief executive officer, or any designee thereof. 4) "Franchise" means and includes any authoriza- tion granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and main- tain a cable system within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws oS this City. 5) 'Person' shall mean any natural person and all domestic and foreign corporations, associations, syndi- cates, joint stock corporations partnerships of every kind, clubs, business or common law trust, concerts of interest and societies. 6) 'Grantee' shall mean the person, firm, or corporation granted a franchise by the Council under this chapter and the lawful successor, transferee, or assignee of said person, firm, or corporation. 7) "Streets" shall mean the surface of and the space above and below any street, road, highway, freeway, utility right-of-way or any other easement which now or hereafter exists for the provision of public or quasipublic services to residential or other properties, and in which the City is expressly or impliedly authorized or empowered to permit use for installation and operation of a Cable Television System. 8) 'Property of Grantee' shall mean all property owned, installed, or used within the City by a Grantee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this chapter. 9) 'Subscriber' or 'user' shall mean any person or entity receiving, lawfully and for consideration, any service of the Grantee's cable television system including, but not limited to, the conventional cable television system service of retransmission of television broadcast, radio signals, Grantee's orginal cablecasting, and local govern- ment, education, and public access channels; and other ser- vices, such as leasing of channels, data, and facsimile transmission, pay television, and police, fire and similar public service communications. 248 10) "Cable communications system" or "cable system" or "CATV system" means any cable communications system composed of antennas, cables, wires, strands, optical fibers, lines, towers, satellite receiving stations, or other conductors, converters, equipment or facilities, designed and constructed fox the purpose of producing, receiving, transmitting, amp!-ifying and distributing, audio, video, digital and other forms of electronic signals, to and from subscribers or users. This shall not include any system that serves only the residents of a multi-unit dwell- ing under common ownership, control or management, which does not use city streets. A system may also be referred to as a CATV system. 11) "Gross annual revenues" means all cash, credits, property of any kind or nature, or other considera- tion received directly by a Grantee, arising from or attri- butable to the sale or exchange of cable services by Grantee within the City or in any way derived from the operation of its system, including, but not limited to, basic service, monthly fees, optional service or pay cable fees, installa- tion and reconnection fees, leased channel fees, converter rentals or sales, studio rental, production equipment and production personnel fees, and advertising revenues. Gross annual revenues shall not include any taxes on services furnished by Grantee imposed upon any subscriber or user by the state, city or other governmental unit and collected by Grantee on behalf of said governmental unit, converter deposits, or refunds to subscribers by the Grantee. 12) "Two-way capability" means the ability to receive and transmit signals from a subscriber point to another point in the system. 13) "Channel'" means a frequency band capable, pursuant to the standards of the Federal Communications Commission, of carrying one color video signal. 14) "Complaint" shall mean a written or tele- phonic communication from a subscriber to either Grantee or Grantor which specifies a failure of service. A complaint shall not be deemed to include any Objection to the-content or subject matter of a program transmitted over the system. 15) "Standard aerial drop" shall mean the connection of a subscriber hook-up to Grantee's trunk line by an above ground cable of not more than one hundred and fifty (150) feet in length. 16) "Failure of Service" shall mean: a) the continued reception at the sub- scriber's television set of a degraded signal transmitted over the cable system, for a period of twenty-four hours or more; or b) the reception at the subscriber's tele- vision set of a degraded signal for not less than thirty minutes on not fewer than five or more occasions; or c) the interruption or elimination of a regularly scheduled and previously programmed satellite or broadcast television signal when such interruption or elimi- nation was the result of an act or omission of Grantee and when Grantee has failed to give subscribers not less than ten (10) days notice of such interruption or failure; d) the failure of Grantee to remove, at the request of a subscriber, any program service for which a separate program charge to the subscriber is made, within thirty (30) days of the request of a subscriber; or 249 e) the failure of Grantee to correct an error in billing within sixty (60) days of a written request by a subscriber for such correction; or f) the failure of Grantee to repair or correct a degraded signal within ten (10) days of a request from a subscriber setting forth the need for such repair or correction. g) the elimination or interruption of service to a subscriber (except as set forth in Sec- tion 1874D(3)) without the consent of a subscriber, pro- vided that such subscriber has paid all fees, charges or rates due to the Grantee within thirty (30) days of a receipt of a bill or other notice of such fees, charges or rates. The obligation to pay such fees, charges or rates shall not include any obligation to make payment for any erroneous amount billed to a subscriber when such error arises out of an act or omission of Grantee, its agents or contractors. h) the failure to repair or replace a con- verter or other equipment required for the receipt of cable communications service within fifteen days after receipt of notice from a subscriber that such converter or other equip- ment does not provide the services for which the subscriber is being billed. 17) "Degraded Signal" shall mean a signal on any channel, regardless of the point of origin of such signal, which fails to meet the technical standards prescribed for a Class I television broadcast signal as set forth in guide- lines or Rules and Regulations of the Federal Communications Commission. SECTION 1871. SCOPE OF FRANCHISE A. Franchise to Install and Operate. 1) A nonexclusive franchise to install, con- struct, operate and maintain a cable television system on streets within all or a specific portion of the City may be granted by the Council to any person who offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter. No provision of this chapter may be deemed or construed as to require the granting of a franchise when, in the opinion of the Council it is in the public interest to restrict the number of Grantees to one or more. 2) The Council, in its discretion, shall by resolution determine the boundaries of each area or portion of the City for which a separate franchise shall be required in order for a cable television system to be operated in such area. Such area or portion shall be known as the 'franchise area.' Unless otherwise specified by resolution of the City Council, the Franchise area shall include the incorporated City limits of the City of Ukiah and any areas annexed into the City in the future. 3) When and in the event that the Grantee of any franchise granted hereunder uses in its cable television system distribution channels furnished to the Grantee by a telephone company pursuant to a tariff or contract on file with a regulatory body having jurisdiction, and said Grantee makes no use of the streets independent of such telephone- company-furnished facilities, said Grantee shall be required to comply with all of the provisions hereof as a 'licensee,' and in such event, whenever the term 'Grantee' is used herein, it shall be deemed to mean and include 'licensee.' 25O B. Cable Television Service. 1) Required Services. The cable television system permitted to be installed and operated hereunder shall: a) Be operationally capable of relaying to subscriber terminals at least those television and radio broadcast signals for the carriage of which by the Grantee is now or hereafter required by the Federal Communications Commission; and b) Distribute color television signals which it receives in color; and c) Have the capacity to receive and dis- tribute signals from satellites; and d) Provide channels for public, educa- tional, and governmental use. The number of such channels shall be set forth in a separate ordinance or resolution granting, renewing or regulating each franchise or in an agreement between the Grantor and Grantee; and e) Have a minimum capacity of fifty- four (54) channels, or such lesser number as is specified in an ordinance or agreement granting a Franchise. 2) Optional services. The cable ~ television system permitted to be installed and operated hereunder may also engage in the business of: a) Transmitting original cablecast program- ming other than local, over-the-air television broadcast signals; and ~, b) Transmitting television pictures, film, and video tape programs, other than local, over-the-air broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers; and c) Transmitting and receiving all other signals, including digital, voice and audio-visual signals including two-way signals and for all other lawful communi- cations services. 3) Subscriber complaints. Except in circum- stances beyond Grantee's control, such as Acts of God, riots, and civil disturbances, and in providing the fore- going services, the Grantee shall: a) Limit overall system failures to minimum time duration by locating and correcting malfunctioning promptly, but in no event longer than twenty-four (24) hours after occurrence, irrespective of holidays or other nonbusi- ness hours. b) Establish a comprehensive procedure of receiving, recording, and resolving customer complaints. Such procedure shall be designed so that any subscriber may register a complaint by use of local phone service in the subscriber's area. Complete written notice of such pro- cedures shall be given to each subscriber at the time of initiation or renewal of service. Notice of such procedures shall also be published once each year in a newspaper of general circulation in the Franchise area. Such notice shall also state that written complaints may be directed to the City Manager. Upon request of the City Manager or other designee, in response to a subscriber complaint, Grantee shall make a demonstration reasonably satisfactory 251 to the City Manager or other designee that a signal is being delivered which is of sufficient strength and quality to meet the standards for a Class I broadcast signal as set forth in the guidelines or Rules and Regulations of the Federal Communications Commission. c) Render efficient service, making repairs as provided in Section 1874D. d) Maintain an office in the City, which office shall be open during all the usual business hours, with its telephone listed in directories of the telephone company serving the City, and be so operated that complaints and requests for repairs or adjustments may be received at any time, day or night, seven days a week. e) Maintain a written record or 'log' listing date of customer complaints, identifying the sub- scriber and describing the nature of the complaint, and when and what action was taken by Grantee in response thereto. The record of the respective complaint shall be kept at Grantee's local office, for a period of five (5) years from the date of the complaint and shall be available for inspec- tion during regular business hours, without further notice or demand, by the City Manager. f) Receive and act upon complaints referred to it by the City Manager or designee in accordance with Section 1872C. g) Be subject to penalties in accordance with Section 1872C. 4) Services. Public, Educational and Governmental a) With respect to the access channels required pursuant to subsection (A) (4), the Grantee shall provide use of such facilities, equipment, and technical services as may be set forth in a separate ordinance or resolution granting, renewing or regulating the franchise, or in any agreement between the Grantor and Grantee. b) Provided that the system passes the facilities enumerated below, the Grantee shall provide a 200 aerial foot drop and all subscriber services, without installation charges; to: (1) Public schools and community colleges within the City. (2) An agreed upon number of Buildings owned and controlled by the City, used for public purposes and not for residential use. 5) Compatibility and connectibility. a) It is the policy of the City that all cable television systems franchised hereunder shall, insofar as financially and technically feasible, be compatible one with another and with systems of cities within the City, or with adjacent unincorporated or incorporated areas. b) Wherever it is financially and technic- ally feasible, the Grantee shall so construct, operate, and modify the system so as to be able to tie the same into all other systems, within and adjacent to the City. 252 6) Uses permitted. Any franchise granted pur- suant to the provisions of this chapter shall authorize and permit the Grantee to engage in the business of operating and providing a cable television system in the City; and, for that purpose, to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any street such poles, wires, cable, conductors, ducts, conduit, vaults, pedestal, man- holes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable television system; and, in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms, or corporations including, but not limited to, any public utility or other Grantee franchised or permitted to do business in the City. 7) Uniformity of terms and conditions. Ail franchises for a particular 'franchise area' granted pur- suant to the provisions of this ordinance shall be granted upon uniform terms and conditions. Uniformity of terms and conditions may be waived by Grantor in areas not served by any Grantee under this ordinance, providing that Grantor first offers to any Grantees under this ordinance the option to serve such areas within a reasonable time. C. Extension of Service. 1) Existing trunk lines. Grantee shall, upon request, extend cable television services to individual residences at the standard rate, provided that such connec- tion does not require more than a standard aerial drop. Grantee shall extend cable television services to any iso- lated residence requiring more than a standard aerial drop at a premium installation rate if such service has been requested by the resident directly or through the City Manager or other designee. The premium installation rate charged shall be the actual cost of time and materials for the distance exceeding the cost of a standard aerial drop Grantee may request advance payment for such installation. If any additional residences are subsequently connected within a period of five (5) years to the system using this same cable extension at the request of the initial sub- scriber, there shall be a prorated return of this extension fee from funds collected from subsequent hookups to the same extension in accordance with a reimbursement agreement, the form of which shall require the approval of the City Manager or other designee. 2) Trunk line extension. a) Grantee option. Grantee shall have the option to extend at any time Grantee's basic trunk line facilities to any portion of the 'franchise area,' provided that the City Manager or other designee has approved such extension as being in the best interests of the public safety and welfare, and provided that Grantee complies with all other material provisions of this ordinance. b) Mandatory extension. Grantee shall extend its cable television services to any subscriber or user requesting service in its 'franchise area.' SECTION 1872. FRANCHISE PAYMENTS, TERM AND ENFORCEMENT A. Franchise payments. 1) In consideration of the granting and exercis- ing of a franchise, as herein defined, for the operation of a cable television system, any Grantee shall pay annually to the City during the life of the franchise an amount not 253 to exceed that allowable by Federal law, so long as such payment is consistent with applicable State law or regula- tion. 2) The percentage payments shall be made in the manner, amounts and at times directed in said franchise or in a Council resolution adopting the rules for service and rate regulation. 3) The City shall have the right, at its sole cost and expense, to'inspect the Grantee's revenue records under the franchise and the right of audit and recomputation of any and all amounts payable under this Chapter. The Grantee shall bear the expense of such an audit not more frequently than once every five (5) years. In addition, Grantee shall bear the expense of any other audit which reveals an error of five percent (5%) or greater in the amounts payable under this Chapter. 4) The City shall have the right, at its sole cost and expense, from time to time, as it may reasonably determine, to select and retain professional consultants having any relevant expertise to determine whether a Grantee is complying with the terms of this chapter and its fran- chise and to make a report and recommendations for improve- ments. The cost of such consultations, reports, and recom- mendations shall be borne by the Grantor, except with respect to costs arising out of the grant or renewal of a franchise. 5) No acceptance of any payment shall be con- strued as a release, or as an accordance and satisfaction of any claim the City may have for further or additional sums payable under this chapter, or for the performance of any other obligation hereunder. Be Term of Franchise. Any franchise granted by the Council under this chapter shall be for a term of years, not to exceed fif- teen (15), from the date of its acceptance by the Grantee. The determination of the term of a franchise shall be made by the Council at the time of granting the franchise. C. Liquidated Damages, Penalties, Sanctions, Termination, Cancellation, Revocation and Purchase. 1) Subscriber Complaints. a) Grantee shall resolve all complaints as defined in Section 1870B within thirty (30) days follow- ing receipt thereof from a subscriber or referral thereof by the Grantor. b) In the event that Grantee has failed to resolve a complaint within the thirty days specified, a subscriber may request that Grantor declare the Grantee in breach of the franchise and in violation of the ordinance. c) A request for a Declaration of Breach and Violation shall be received by the City Manager or such other person as Grantor shall designate and within thirty (30) days of such receipt, the City Manager or such designee shall determine whether to recommend to the Council that a Declaration of Breach and Violation should be adopted by the Council. d) In the event that the City Manager recommends that a Declaration shall issue, such Declaration shall include a description of the complaint and a Recommen- dation with respect to the imposition of liquidated damages as set forth in Section 1872C 3) c) (3), and such Declara- tion shall be set for hearing by the Council. 254 e) Grantee shall be given not less than fifteen (15) days notice of the hearing required under Section 1872C 3) c) (3) hereof and of the Recommendation of the City Manager or Grantor's Designee with respect to the imposition of liquidated damages. f) The Council may consider the Recommenda- tion for which provision is made in Section 1872C 1) (d), shall afford Grantee an opportunity to.be heard with respect to such recommendation, shall make a determination as to the merit of the complaint, and may impose liquidated damages in an amount not in excess of that set forth in the Recommendation. 2) In addition to all other rights and powers pertaining to the City by virtue of this chapter or other- wise, the City reserves the right to impose liquidated damages, penalties or sanctions or to terminate, cancel and revoke any franchise granted hereunder and all rights and privileges of a Grantee hereunder in the event that any Grantee: a) Violates any material provision of this Chapter or any rule, order, or determination of the City made pursuant to this chapter or any franchise granted or franchise agreement awarded pursuant to this chapter; or b) Fails, refuses or neglects to do or comply with any material requirement or limitation contained in this chapter, a franchise granted pursuant to it, or any material rule or regulation of the City or City Manager validly adopted pursuant to this chapter; or c) Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt; or ,, d) Attempts to dispose of any material part of the facilities or property of its cable business to prevent the City from purchasing same, as provided for herein; or -. e) Attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the City; or f) Fails to complete system construction or extension as provided in this chapter or a franchise granted thereunder; or g) Fails to provide and maintain the types of services, facilities, equipment or personnel provided for in the franchise and this chapter; or h) Fails to restore service within the time period specified in this chapter unless approval of any such interruption has been obtained from the City; or i) Misrepresents any material fact in the Grantee's proposal or in the execution of a franchise agree- ment or in any reports required to be filed pursuant to this chapter; or j) Fails to abide by the privacy provision of this chapter; or k) Fails to timely make payment of any moneys due the City pursuant to this chapter. 3) In the event that any cause for liquidated damages, penalties or sanctions, or termination, cancella- tion or revocation under this section occurs, the following procedures shall apply: 255 a) The City Manager shall make written demand that the Grantee correct or comply with any such requirement, limitation, term, condition, rule or regulation that is a part of the cause for termination, cancellation or revocation. b) In the event of any failure, breach refusal or neglect, the City Manager may place a request for liquidated damages, penalties, sanctions, termination, cancellation or revocation of the franchise upon the next regular Council meeting agenda. The City Manager shall cause to be served upon such Grantee, at least thirty days prior to the date of such Council meeting, a written notice of the intent to request such sanctions, termination, can- cellation or revocation and the time and place of the meeting, notice of which shall be published by the Clerk of the Council at least once ten days before such meeting in a newspaper of general circulation within the City. c) After providing Grantee with notice and an opportunity to be heard and in the event that the Council determines that the Grantee, by its acts or omissions, has given the City cause for sanctions, termination, cancella- tion or revocation of the franchise, the Council may: (1) Instruct the City Manager to make written demand upon Grantee for full compliance. (2) If the violation breach, failure, refusal or neglect is not or cannot be remedied to the satisfaction of the Council within thirty days following such demand, may take either of the following actions: (i) Direct the Grantee to comply within such additional time, in such manner and upon such ~. terms and conditions as the Council may direct; or (ii) Declare the franchise termi- nated and of no further force and effect. (3) Impose liqUidated damages,'- penal- ties or sanctions as follows: (i) For failure to complete system improvements in accordance with any agreement or Ordinance of the City unless the Council specifically approved the delay by motion or resolution, due to the occurrence of conditions beyond Grantee's control; a Grantee shall pay Five Hundred Dollars ($500.00) per day for each day, or part thereof, the deficiency continues. (ii) For failure to test, analyze and report-~on the performance of the system following a written request pursuant to this ordinance; a Grantee shall pay to City Fifty Dollars ($50.00) per day for each day, or part thereof, that such non-compliance continues. (iii) For failure to provide the aggregate number of services proposed in the accepted application, unless the Council specifically approves a delay or change; Grantee shall pay to the City Two Hundred Dollars ($200.00) per day for each day, or part thereof, that such non-compliance continues. (iv) For failure by Grantee to comply with operational, maintenance or technical standards, Grantee shall pay to the City Fifty Dollars ($50.00) for each day, or part thereof, that such non-compliance continues. 256 (v) For failure to resolve a subscriber complaint pursuant to a Declaration of Breach as set forth in Section 1872C 1) (d), Grantee shall pay to the City Twenty Dollars ($20.00) for each day, or part thereof, as specified in the Declaration of Breach. Such liquidated damages shall be in addition to the rebates for which provision is made in Section 1874D 4). (4) For the purposes of this subsec- tion, an occurrence shall be deemed a separate occurrence for each twenty-four (24) hour period in which it continues. In no event shall total liquidated damages exceed Ten Thou- sand Dollars ($10,000) per month. (5) Liquidated damages levied by the Grantor pursuant to this subsection shall not be General Revenue to the Grantor and shall be used by the Grantor only for purposes related to the operation; maintenance and programming of the System. (6) Prior to any judicial review and if Grantee objects to the imposition of liquidated damages, in writing and within sixty (60) days of notice, to the City, Grantee and City shall conduct arbitration in the manner set forth in Section 1875E. 4) No franchise shall be terminated, canceled or revoked when the grantee thereunder has made a reasonable and diligent effort in good faith, to correct or remedy the breach, failure, refusal or neglect. 5) If the Council declares the franchise termi- nated, the City may pursue any remedies available to the City pursuant to this chapter, the franchise agreement or any other remedy available to the City as provided by law~ 6) In the event that the City requires Grantee to dismantle the system, Grantee shall, in an expeditious manner, at its own expense and at the direction of the City, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such prop- erty subsequent to the construction of the system. Grantee shall have the option, however, of abandoning the system. If Grantee exercises this option, Grantor shall have the right to dismantle the system and charge the reasonable costs of such work to Grantee. 7) In the event the City terminates a franchise agreement pursuant to any provisions of this chapter, or at the normal expiration of a franchise agreement, City shall have the first option, to purchase the system. The City shall have ninety days prior to the effective date of ter- mination to notify Grantee of the City's intent to exercise the option to purchase stated herein. 8) Upon notification of intent pursuant to this Section, the City and a Grantee shall attempt to mutually agree upon the value of the system in accordance with the provisions of this Section. However, if within a reasonable period of time they cannot agree upon a valuation, then such valuation shall be similarly determined by a three-member board of appraisers, one selected by the City, one selected by the Grantee, and one selected by the appraisers them- selves. Such determination to be specifically subject to Section 1872C 9). The cost of such appraisal shall be borne equally by the City and the Grantee. Any appraisal under this section shall be consistent with the terms of the Cable Communications Policy Act of 1984. 257 9) In the event of a termination of a franchise agreement by the City, the value of the system shall be based on the fair market value of the system including value that may be assigned to the system as an ongoing concern, provided that no value shall be assigned to either the franchise itself, the franchise agreement or any right, privilege or position within the market arising out of the opportunity to transact business under the franchise or the franchise agreement. D. Performance Assurances. 1) Performance Bond to City. Upon being granted a franchise, and upon the filing of the acceptance required under Section 1873D of this Chapter, the Grantee shall file with the City Clerk, and shall thereafter, annually, during the entire term of such franchise maintain in full force and effect, a corporate surety bond or other adequate surety agreement in such amount and kind as shall have been approved by the Council. The bond or agreement shall be so conditioned that, in the event that Grantee shall fail to comply with any one or more of the provisions of this chapter or of such franchise, then there shall be recover- able jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the City as a result thereof, including reasonable attorney's fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property, or other costs which may be in default up to the full principal amount of such bond. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obli- gations to the City which arise out of or pertain to said franchise. Neither the provisions of this section, nor any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder, shall be construed to excuse faithful performance by the Grantee or limit the lia- bility of the Grantee under any franchise issued pursuant to this ordinance or for damages either to the full amount of the bond or otherwise. 2) Performance bond for subscribers. Upon being granted a franchise, and upon filing of the acceptance required under Section 1873D of this chapter, the Grantee shall file, annually, with the Clerk of the Council, and shall thereafter during the entire term of such franchise maintain in full force and effect, a corporate surety bond, or other adequate surety agreement, in the amount as shall have been approved by the Council. The bond or agreement shall be so conditioned that, in the event such Grantee shall fail to comply with any one or more of the provisions of any agreement or undertaking made between Grantee and any subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorney's fees and costs of any action or proceeding. Said condition shall be a continuing obliga- tion during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obli- gations to any subscriber which arise out of or pertain to any such agreement or undertaking. 3) Letter of Credit. a) In lieu of compliance with Subsec- tions 1) and/or 2) of this Section, Grantee may deposit with the City an irrevocable Letter of Credit in the amount of $30,000. The Letter of Credit shall be used to ensure the faithful performance by Grantee of all subscriber 258 protection provisions of its franchise and applicable state or federal law and compliance with all orders, permits and directions of any agency, commission, board, department, division, or office of the City having jurisdiction over its acts or defaults under a franchise and the payment by the Grantee of any penalties, liquidated damages, claims, liens, fees and taxes due the City which arise by reason of the construction, operation, or maintenance of the system. b) The Letter of Credit shall be maintained at $30,000 during the entire term of a franchise even if amounts have been drawn against such Letter pursuant to Section 1872C. c) If a Grantee fails to pay to the City any compensation within the time fixed herein; or, fails, after ten (10) days notice, to pay to the City any liquidated damages, fees or taxes due and unpaid; or fails to repay the City within ten (10) days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the Grantee in connection with a franchise; or, fails, after three (3) days notice by the City of such failure to comply with any provision of a franchise which the City reasonably determines can be remedied by demand on the Letter of Credit, the City may after providing all due process provisions contained in this ordinance, immediately require payment of the amount thereof, with interest and any penalties, from the issuer of the Letter of Credit. d) The Letter of Credit will be issued by a financial institution authorized to do business in the State of California and shall be executed in a form acceptable to the City. e) The Letter of Credit shall specify that, upon presentation of a Resolution of Demand of the Council, attested to by City Clerk, the issuing institution of such Letter of Credit shall, upon demand, pay to City such sum as shall be specified in the Resolution of Demand. The Letter of Credit instrument shall explicitly acknowledge that the issuing institution of such Letter shall have no discretion to dispute the validity of a Demand made upon it pursuant to a duly authenticated Resolution. f) Any Resolution authorizing a Demand against the Letter of Credit issued pursuant to the terms of this Ordinance, shall be adopted only after a duly noticed public hearing shall have been conducted at which a Grantee shall have had the opportunity to dispute any penalty, claim for liquidated damages, liens, fees, taxes or other claims made by City. 4) Hold-harmless agreement. Grantee shall indemnify and hold harmless the City, its officers, boards, commissions, agents, and employees against and from any and all claims, demands, causes of actions, suits, proceedings, damages (including, but not limited to, damages to City property, and damages arising out of copyright infringe- ments, and damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by Grantee's cable television system), costs or liabilities (including costs or liabilities of the City, its officers, boards, commis- sions, agents and employees), of every kind and nature what- soever, including damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any 259 of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the acts or omissions of the Grantee in the exercise or the enjoyment of any franchise hereunder by Grantee or the granting thereof by the City. 5) Defense of litigation. Grantee shall, at the sole risk and expense of Grantee, upon demand of the City, made by and through the City Attorney, appear in and defend any and all suits, actions, or other legal proceed- ings, whether judicial, quasijudicial, administrative, legislative, or otherwise brought or instituted or had by third persons or duly constituted authorities against or affecting the City, its officers, boards, commissions, agents, or employees and arising out of or pertaining to the acts or omissions of Grantee in the exercise or the enjoyment of such franchise or the granting thereof by the City. Grantee's choice of counsel under this provision is subject to the approval of the City Counsel, which approval shall not be unreasonably withheld. Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made, or issued against Grantee, the City, its officers, boards, commissions, agents, or employees arising out of this section 13.04.070 and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking, or other assurance required hereunder, or otherwise; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other pro-. ceeding without first obtaining the written consent of the other, such consent not to be unreasonably withheld. 6) Insurance required. Upon being granted a franchise, and upon the filing of the acceptance required under Section 1873D of this article, the Grantee shall file with the City Clerk, and shall thereafter during the entire term of such franchise maintain in full force and effect, at its own cost and expense, each of the following policies of insurance: a) General comprehensive liability insur- ance in the amount of Two Million Dollars ($2,000,000.00); together with bodily injury liability insurance in an amount not less than One Million Dollars ($1,000,000.00) for injuries, including accidental death, to any one person, and subject to the same limit for each person in an amount not less than One Million Dollars ($1,000,000.00) on account of any one occurrence; and property damage liability insur- ance in an amount not less than Two Hundred Thousand Dollars ($200,000.00) resulting from any one occurrence; provided, however, as follows: (1) Grantee shall name the City named as an additional insured in any of said insurance policies. (2) Where such insurance is provided by a policy which also covers Grantee or any other entity or person, it shall contain the standard cross-liability endorsement. (3) City shall be provided with Certi- ficates of Insurance on the form provided by the City and shall receive a copy of all insurance policies. 260 SECTION 1873. PROCEDURE FOR OBTAINING FRANCHISE A. Applications for New Franchise. 1) Each application for a franchise to con- struct, operate, or maintain any cable television systems in this City shall be filed with the City Clerk and shall contain or be accompanied by the following: a) of the applicant. The name, address, and telephone number b) The exact boundaries of the area within the City for which the franchise is sought said area being herein referred to as the 'franchise area.' c) A detailed statement of the corporate or other business entity organization of the applicant including, but not limited to, the following and to what- ever extent required by the City; (1) The names, residence, and business addresses of all officers, directors, and associates of the applicant. (2) The names, residence, and business addresses of all officers, persons, and entities having, controlling, or being entitled to have or control five percent (5%) or more of the ownership of the applicant and the respective ownership share of each such person or entity. (3) The names and addresses of any parent or subsidiary of the applicant, namely any other business entity owning or controlling applicant in whole o[ in part, or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity including, but not limited to, cable television systems owned or controlled by the applicant, its parent and subsidiary, and the area served thereby. (4) A detailed description of all previous experience of the applicant in providing cable television system service in related or similar fields. (5) A detailed and complete financial state-ment of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the City, or a statement from a certified public accountant certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in this City. (6) A statement identifying, by place and date, any other cable television franchise or franchises awarded to the applicant, its parent or subsidiary; the status of said franchise or franchises with respect to com- pletion thereof; the total cost of completion of such system or systems; and the amount of applicant's .and its parent's or subsidiary's resources committed to the completion thereof. 261 2) Each such application for a franchise shall further provide a detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: a) A detailed map indicating all franchise areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout each entire franchise area to be served. b) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications including installation charges and service charges. c) A detailed, informative, and referenced statement describing the actual equipment operational standards, channel capacity and services proposed by the applicant. In ~no event shall said operational and perform- ance standards be less than those contained in the guide- lines or Rules and Regulations, Federal Communications Commission. d) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber. e) A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise. 3) A copy of any agreement covering the fran- chise area, if existing, between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility including, but not limited to, poles, lines, or conduits. 4) Any other details, statements, information, or references pertinent to the subject matter of such application which shall be required or requested by the Council or by any provision of any other ordinance of the City. 5) An application fee in the sum of Ten Thousand Dollars ($10,000.00), which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part except to the extent that such fee exceeds the actual costs incurred by the City in studying, investigating, and other- wise processing the application. In the event that such costs exceed the amount of the application fee or fees, the City shall be reimbursed by the applicant for such excess costs, provided that the application is approved. S · Applications for Renewal of Existing Franchise. 1) Each application for a franchise to continue to operate or maintain an existing cable television system in this City shall be filed with the City Clerk and shall contain or be accompanied by the following: 262 a) of the applicant. The name, address, and telephone number b) The exact boundaries of the area within the City for which the renewal is sought said area being herein referred to as the 'franchise area.' c) A detailed statement of the corporate or other business entity organization of the applicant including, but not limited to, the following and to whatever extent required by the City: (1) The names, residence, and business addresses of all officers, directors, and associates of the applicant. (2) The names, residence, and business addresses of all officers, persons, and entities having, controlling, or being entitled to have or control five per- cent (5%) or more of the ownership of the applicant and the respective ownership share of each such person or entity, unless the applicant is a corporation whose shares are traded on a listed stock exchange. (3) The names and addresses of any parent or other business entity owning or controlling applicant in whole or in part and a statement describing the nature of such owning or controlling entity. Applicant shall also provide a list of all other cable television systems, and their locations, owned or controlled by it or by the business entity owning or controlling the applicant. (4) An annual shareholders report for the immediately prior fiscal year, if applican~' is not a corporation a report containing such information as would be contained in a stockholder's report. Such report shall subsequently be furnished to City on an annual basis. (5) Any other details, statements, information, or references pertinent to the subject matter of such application which shall be required or requested by the Council or by any provision of any other ordinance of the City. (6) Any fee or fees to which an appli- cant would be subject pursuant to Section 1873A 5). 2) An applicant shall likewise furnish all that information required by Section 1873A 2), subsections (a), (b), (c) and (d). C. Decision by Council. 1) The Council may, by advertisement or any other means, solicit and call for applications for cable television system franchises, and may determine and fix any date upon or after which the same shall be received by the City, or the date before which the same must be received, or the date after which the same not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for making, and receiving of such applications. The Grantee shall pay to the City a sum of money suf- ficient to reimburse it for all expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within thirty (30) days after the City furnishes the Grantee with a written statement of such expenses. 2) Upon receipt of any application for fran- chise, the Council shall refer the same to the City Manager, who shall prepare a report and make his recommendations respecting such application and cause the same to be com- pleted and filed with the Council within sixty (60) days. 263 3) In making any determination hereunder as to any application, the Council may give due consideration to the quality of the service proposed, rates to subscribers, income to the City, experience, character, background and financial responsibility of any applicant, and its manage- ment and owners, technical and performance quality of equip- ment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other con- siderations deemed pertinent by the Council for safeguarding the interests of the City and the public. The Council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding. 4) If the Council shall determine to reject such application, such determination shall be final and conclu- sive, and the same shall be deemed rejected. 5) If the Council shall determine to further consider the application, the following shall be done: a) The Council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided. b) The Council shall pass its resolution of intention to consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise desired, stating the name of the proposed Grantee, the character of the franchise, the terms and conditions upon which such franchise is proposed to be granted, that copies of the proposed franchise may be obtained at the office of the City Clerk, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the Council and be heard, and directing the City Clerk to publish said resolution at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the City. 6) At the time set forth the hearing, or at any adjournment thereof, the Council shall proceed to hear all written protests. Thereafter, the Council shall make one of the following determinations: a) That such franchise be denied; or b) That such franchise be granted upon the terms and conditions as specified in the resolution of intention to grant the same; or, c) That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same. 7) If the Council shall determine that a fran- chise be denied, such determination shall be expressed by minute order or resolution and shall be final and conclu- sive. 8) If the Council shall determine that a fran- chise be granted upon the terms and conditions as specified in the resolution of intention to consider granting the same, such determination shall be expressed by ordinance or resolution granting a franchise to the applicant. 264 9) If the Council shall determine upon granting a franchise to impose different terms and conditions than those specified in the resolution of intention, then such determination shall be expressed by resolution adopted prior to granting a franchise by ordinance. D. Acceptance of the Franchise. 1) No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk. Written acceptance, which shall be in the form and substance approved by the City Attorney, shall also be and operate as an acceptance of each and every term, condition, and limitation contained in this ordinance, and in such franchise, and as otherwise specified herein. 2) The written acceptance shall be filed by the Grantee not later than 12:01 o'clock p.m. of the thir- tieth (30th) day next following the effective date of the ordinance or resolution granting such franchise. 3) In default of the filing of such written acceptance as herein required, the Grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the Grantee shall not be received nor filed by the City Clerk. The Grantee shall have no rights, remedies, or redress in the premises unless and until the Council, by resolution, shall determine that such acceptance be received or filed and then upon such terms and conditions as the Council may impose. 4) In any case, and in any instance, all rights, remedies, and redress in these premises which may or shall be available to the City shall at all times be available to' the City and shall be preserved and maintained, and shall continuously exist in and to the City, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or other- wise. SECTION 1874. LIMITATIONS ON FRANCHISE A. General Limitations. 1) Every franchise granted under this article shall be nonexclusive. 2) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein. 3) Any privilege claimed under any such fran- chise by the Grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. 4) Any such franchise shall be a privilege to be held in personal trust by the original Grantee. a) A franchise shall not in any event be sold, transferred, leased, assigned, or disposed of, in whole in in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation, or otherwise without prior consent of the Council expressed by resolution and then only under such conditions as may therein be pres- cribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused; 265 provided, however, that the proposed assignee shall show adequate financial responsibility as determined by the Council and shall agree to comply with all provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness except that, when such hypothecation shall exceed fifty percent (50%) of the market value of the prop- erty used by the Grantee in the conduct of the cable tele- vision system, prior consent of the Council shall be required for such a transfer. Such consent shall not be withheld unreasonably. b) In the event that Grantee is a corpora- tion, prior approval of the Council, expressed by ordinance, shall be required where there is an actual change in control or where ownership of more than fifty percent (50%) of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom already own 50 per- cent or more of the voting stock. c) Nothing herein shall prevent any trans- fer between a wholly owned subsidiary and a parent company, or a name change which does not reflect any substantive change in the ownership of the Grantee's legal entity. 5) Time shall be of the essence of any franchise granted under this chapter. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this ordinance by any failure of the City to enforce prompt compliance. 6) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. 7) The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this ordi- nance or of any franchise issued hereunder, or because of its enforcement, except for such acts as may arise out of the willful, tortious conduct of the City. 8) The Grantee shall be subject to all require- ments of City laws, rules, regulations, and specifications heretofore or hereafter enacted or established, pursuant to the valid exercise of the Police Power of the City. 9) Any franchise granted shall not relieve the Grantee of any obligation involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets. 10) Any other provision of this article notwith- standing, in the event that extraordinary unforeseen circum- stances beyond the control of Grantee materially impact (1) the ability of Grantee to derive a fair and reasonable rate of return from a cable television franchise granted under this article or (2) the ability of Grantee to perform some or all of its obligations under this article or a fran- chise granted under this article, then Grantee shall have the right to petition the Council for special relief. Upon a demonstration to the Council by Grantee of such extra- ordinary unforeseen circumstances and the impacts thereof, Grantee sall be entitled to appropriate relief Grantee shall bear the burden of proof to establish the extraordinary, unforeseen circumstances and adverse impact as set forth in (1) and (2) of this Subsection 10). 266 B. Rights Reserved to City. 1) Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the Grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain. Any acquisition of Grantee's property shall be consistent with the terms of the Cable Communications Policy Act of 1984. 2) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any law, and the Grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power heretofore or hereafter enacted or established, pursuant to the valid exercise of the Police Power by the City. 3) Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. 4) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The City Manager, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any Grantee under this ordi~ nance, either on behalf of the City, the Grantee, or any subscriber, in the best interest of the public. In the event that the Grantee is dissatisfied with the decision of the City Manager, Grantee may appeal the matter to the Council for hearing and determination. The Council may accept, reject, or modify the decisiOn of the City Manager, and the Council may adjust, settle, or compromise any con- troversy or cancel any charge arising from the operations of the Grantee or from any provision of this article. Ce Council's Continuing Right to Adopt Regulations. 1) Standards of operation. a) Prior to receiving any applications for franchises, the Council may adopt, by resolution, rules, regulations, and standards governing the operation of cable television systems in the City. Such rules, regulations, and standards shall apply to and shall govern the operations of the Grantee of any franchise hereunder and are expressly declared a part of any franchise hereunder. b) Notwithstanding any provision herein to the contrary, the Council may increase the technical stand- ards required of Grantee's operation at any time during the life of the franchise reasonably related to the state of the art then prevailing, so long as such technical standards do not conflict with the then effective Federal Communica- tions Commission guidelines or regulations and so long as the Grantor establishes that such standards are technically and economically feasible. 267 c) Rules, regulations, and standards not adopted prior to receiving any application for a franchise shall be adopted by the Council at the first regular meeting of the Council next following the effective date of this chapter by resolution which shall become effective upon adoption and shall be applicable to any application for a franchise previously received. d) The standards adopted shall govern the engineering, construction, installation, service, and main- tenance of all cable television systems in the City includ- ing, but not limited to standards governing carrier levels, signal-to-noise ratios, hum modulation, distortion levels, channel interactions, and interference. e) Provided the same do not materially alter the content or provisions of the franchise, and further provided that the Council may, consistent with this Ordinance and any Ordinance granting a franchise hereunder, at any time adopt new rules or regulations or standards, or may amend, modify, delete, or otherwise change its respec- tive rules or regulations or standards previously adopted, in the following manner: The Council shall pass its resolu- tion of intention stating or describing the rules or regula- tions or standards to be adopted, amended, modified, deleted, or otherwise changed and fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein, or objection thereto, may appear before the Council and be heard. No rule, regulation or standard or amendment, modification, deletion or charge shall be adopted by the Council unless such rule, regulation or standard or amendment modification, deletion or change is technologically and economically feasible. Such resolu- tion shall direct the City Clerk to publish the same at least once within ten (10) days of the passage thereof in & newspaper of general circulation within the City and to mail a copy of the same to any Grantee or applicant for a fran- chise not more than thirty (30) days nor less than fif- teen (15) days prior to the time fixed for hearing thereon. (1) At the time' set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the Council, by its resolution, may adopt, amend, modify, delete, or otherwise change its respective rules, regulations, and standards as set forth above. Such determination by the Council shall be final and conclusive. (2) Any rule or regulation or standard as adopted, amended, modified, deleted, or otherwise changed by the Council shall become effective upon the tenth (10th) day following the adoption of such resolution unless a longer period shall be otherwise provided in such resolution. f) In the event that the Federal Communications Commission modifies any provision of 47 Code of Federal Regulations, Part 76, pertaining to cable televi- sion standards, such modifications, to the extent explicitly inconsistent, shall be deemed to modify any franchise granted pursuant hereto. 2) Rates. a) In granting any franchise hereunder, the Council, by resolution, may establish and fix all rates and charges for the basic service, herein defined, allowable to Grantee. 268 b) Rates and charges for services, other than the basic service, may also be subject to approval by the Council by resolution after due notice and hearing as provided herein, but only in the event that such regulation is permitted by the Federal Communications Commission, federal law, or any other applicable law. c) In connection with any proposed change of any rates or charges of Grantee to subscribers initiated by Grantee over which Grantor has ultimate authority, or the approval of rates for additional services, at any time after the granting of a franchise, the Council may direct the City Manager of the City to conduct a preliminary hearing into the matter. If so directed by the Council, the City Manager shall issue his written notice fixing and setting forth the day, hour, and place certain when and where any persons having any interest therein may appear and be heard. (1) The City Clerk shall cause such notice to be published in a newspaper of general circula- tion within the City. The City Clerk shall also cause a copy of such notice to be mailed to any Grantee at least ten (10) days prior to the date specified for the hearing. At the time set for such hearing, or at any adjournment thereof, the City Manager shall proceed to hear the matter. Following the close of such hearing, the City Manager shall prepare and file with the Council his report of the hearing, his findings, and an opinion containing his recommendations, and the reasons therefor. (2) Within sixty (60) days-after said hearing, the City Manager shall render a written decision on the Grantee's petition, either accepting, rejecting, modifying or deferring the same and reciting the basis of its decision. Such decision shall be rendered on the basis of criteria set forth in the ordinance or resolution grant- ing or renewing a franchise. In the absence of any such criteria, the City Manager shall consider, but not be limited to the following factors in approving or disap- proving the petition: (i) Grantee's substantial fulfill- ment of all material requirements of the franchise. (ii) Quality of service, as indicated by the number and type of service complaints, Grantee's response to complaints, and the result of periodic system performance tests and the annual reviews specified in Section 1875D. (iii) Prevailing rates for compar- able services in other cable systems of similar size and complexity. (iv) Rate of return on Grantee's equity, as compared to businesses of equivalent risk. For the purposes of this ordinance, the rate of return on equity shall be defined as the net, after-tax profit divided by the equity portion of Grantee's investment as reported on the Grantee's financial statement. The rate of return shall be calculated on a cumulative basis for all system revenues and costs excluding pay ser- vice revenues, fees and associated assets. Upon request of the City Manager, Grantee shall promptly provide, from the Grantee, its parent company and any subsidiary company, all information as shall be reasonably necessary to determine system revenues and costs. 269 (v) Performance of Grantee in introducing new services and expanding the cable system's capability, as compared to other systems of similar size and complexity, and as evaluated by the system and services review specified in Section 1875D. (3) If the City Manager or the Council fail to render a written decision either accepting, reject- ing, or modifying Grantee's petition within one hundred twenty (120) days of the Grantee's petition pursuant to this Section the Grantee shall thereafter be entitled to put its proposed new rates into effect. (4) The Grantee's petition for a rate increase shall include, but not be limited to, the follow- ing financial reports, which shall reflect the operations of the system: (i) Balance Sheet (ii) Income Statement (iii) Statement of Sources and Applications of Funds. (iv) Detailed Supporting Schedules of Expenses, Income, Assets, Depreciation and other items as may be required. (v) Statement of Current and Projected Subscribers and Penetration. (5) The Grantee's accounting records applicable to the system shall be available for inspection by the Grantor at all reasonable times. The Grantor shall have access to records of financial transactions for the purpose of verifying burden rates or other indirect costs prorated to the operation. The documents listed above shall include sufficient detail and/or footnotes as may be necessary to provide the Grantor with the information needed to make accurate determinations as to the financial condition of the system. All financial statements shall be certified as accurate by a certified public accountant or an office of Grantee. (6) After the expiration of ten (10) days following receipt of the City Manager's report and opinion, and, if no objection has been filed thereto, the Council shall determine whether to adopt the opinion or to hold a further hearing and shall pass its resolution of intention to do so, describing and stating any rates or charges to be changed, the reasons of the Council therefor, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein may appear before the Council and be heard. Such resolution shall direct the City Clerk to publish the same resolution at least once ten (10) days prior to the passage thereof in a newspaper of general circulation within the City. The City Clerk also shall cause a copy of such resolution to be mailed to the Grantee at least ten (10) days prior to the date specified for hearing thereon. (7) If upon receipt of the report and opinion, and the expiration of said ten (10) days without objection, or following the holding of a further hearinq, if the Council determines to do so, the Council shall find that the changing of any rates or charges of Grantee to subscribers will be fair to the system operator and not unreasonably detrimental or injurious to the best interests and welfare of the subscribers and users and of the City, 27O then the Council, by resolution shall authorize the change of rates or charges of Grantee to subscribers and users as determined. Such resolution shall thereupon become and shall be a part of any franchise granted hereunder and affected thereby. (8) Neither the Council nor the Grantee shall, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person nor subject any person to prejudice or disadvantage; the foregoing, how- ever, shall not be construed to prohibit the offering by Grantee of discounts to elderly subscribers, or any sales or promotional discounts of limited duration. (9) Pursuant to Section 1875F, the Council, by resolution, may waive the provisions of this section with respect to the regulation of rates and charges for any or all of the services provided by a Grantee. Such a waiver shall not be a bar to the subsequent revocation of such waiver, provided that the reinstitution of rate and charge regulation shall apply only to increases proposed subsequent to the revocation of the waiver. d) In the event that a franchise elects to exercise any rights it may have pursuant to Section 53066.1 of the Government Code, the Council may enact such regula- tions as are consistent with Section 53066.1 for the protection of subscribers. D. Services to Subscribers, Rebates. 1) A Grantee shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures for placing a service call. Such instructions shall also include the name, business address and business telephone number of the office desig- nated by the City Manager and notice that the subscriber may call or write the City for information regarding terms and conditions of the cable franchise agreement and this chapter, if Grantee fails to respond'to the subscriber's request for service or adjustment within the periods required in this section. The instructions shall also include information regarding service response time and service interruptions and notifications as required in this Section. 2) A Grantee shall provide service response, within twenty-four hours, five days a week, for all com- plaints and requests for repairs or adjustments received prior to twelve noon of each working day. In no event shall the response time for calls received subsequent to twelve noon exceed two working days. 3) A Grantee may interrupt system service after six a.m. and before eleven p.m. only upon necessary cause for the shortest time possible and only after publishing notice of service interruption, except for emergency situa- tions. Services may be interrupted between eleven p.m. and six a.m. for routine testing, maintenance and repair, with- out notification. 4) Except for acts of God, and except in circum- stances where prior approval has been obtained from the city, in the event that service to any subscriber or user is interrupted, as defined in Section 1870B(5), and the interruption is under the control of the Grantee, a Grantee, shall rebate a pro-rata percentage of the monthly fee to affected subscribers or users for each twenty-four hour period of interrupted service after the first twenty-four hours. 271 5) A Grantee shall be responsible for all sub- scriber and user complaint resolution and shall maintain a written record or log, listing the date and time of customer complaints, describing the nature of the complaints and when and what actions were taken by. the Grantee in response thereto. The log shall be kept at the Grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection by the city auring regular business hours at the Grantee's local office. E. Permits and Construction. 1) Within thirty (30) days after acceptance of any franchise, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses, and authorizations to be granted by duly constituted regula- tory agencies having jurisdiction over the operation of cable television systems or associated microwave transmis- sion facilities. In connection therewith, copies of all petitions, applications, and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regula- tory commission or agency having jurisdiction in respect to any matters affecting Grantee's cable television operations within the City, shall also be submitted simultaneously to the City Manager. 2) Within ninety (90) days after obtaining all necessary permits, licenses, and authorizations, including right of access to poles and conduits, Grantee shall com- mence construction and installation of the cable television system. 3) Within one hundred eighty (180) days after the commencement of construction and installation of the system, Grantee shall proceed to render service to sub- scribers, and the completion of the installation and con- struction shall be pursued with reasonable diligence there- after so that service to all of the areas designated and scheduled on the map and plan of construction made a part of the franchise shall be provided at the times set forth therein. Notwithstanding any provision to the contrary in this chapter, no franchise shall be granted unless a con- struction schedule and line extension policy are a condition thereof and of sufficient detail as to guarantee all house- holds in the franchise area basic service within the ear- liest feasible time at the lowest feasible cost. 4) Substantial failure on the part of the Grantee to commence and diligently pursue each of the fore- going requirements and to complete each of the matters set forth herein may be grounds for termination of such fran- chise. By resolution, the Council shall extend the time for the commencement and completion of installation and construction for additional periods upon a showing by Grantee that it has experienced delays by reason of circum- stances beyond its control. Failure to comply with any time requirements referred to in subsections 1), 2), and 3) of this subsec- tion E of this section will result in damage to the City 272 and that it is and will be impracticable to determine the actual amount of such damage in the event of delay and Grantee therefore agrees that, in addition to any other damage suffered by City as set forth in Section 1872C 3) c)(3), it will pay to City the sum of Five Hundred Dollars ($500.00) per day for each and every day's delay beyond the time prescribed, plus authorized exten- sions thereof, for completion of any of the acts required to be done by this section. 5) Grantee shall utilize existing poles, con- duits, and other facilities whenever possible and shall not construct or install any new, different, or additional poles, conduits, or other facilities, whether on public property or privately-owned property, unless and until first securing the written approval of the City Manager. Whenever Grantee shall not utilize existing poles, conduits, and other facilities, or whenever all existing utility and telephone conduits and other facilities shall be located beneath the surface of the streets on a particu- lar street, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to Grantee, any such conduits or other facilities of Grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of Grantee, whose costs shall be determined as in the case of public utilities. 6) In those areas of the City where the trans- mission or distribution facilities of the respective public utilities providing telephone, communication, and electric services are underground, or hereafter are placed under- ground, the Grantee likewise shall construct, operate, and maintain all of his transmission and distribution facilities underground. The term 'underground' shall include a partial underground system provided that, upon obtaining the'written approval of the City Manager, amplifiers of the Grantee's transmission and distribution lines may be placed in appro- priate housings upon the surface of the ground. 7) The Grantee, at its expense, shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the City Manager or the City's Director of Public Works the same is required by reason of traffic conditions, public safety, street vaca- tion, freeway or street construction, change or establish- ment of street grade, installation of sewers, drains, water- pipes, power lines, signal lines, 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 buildings, urban renewal and redevelopment, and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of Grantee in place, as herein provided. 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. 273 8) Upon the ~ailure, refusal, or neglect of Grantee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed therefor, or upon reasonable notice given, where no time is prescribed, the City Manager may, if Grantee fails within a reasonable time to act, cause such work or other act to be completed in whole or in part and, upon so doing, shall submit to Grantee an itemized statement of the reasonable costs thereof. The Grantee shall, within thirty (30) days after receipt of such statement, pay to the City the entire amount thereof. 9) In the event that (1) the use of any part of the system of Grantee is discontinued for any reason for a continuous period of thirty (30) days, without prior written notice to and approval by the City, or (2) any part of such system has been installed in any street or other area with- out complying with the requirements hereof, or (3) any franchise shall be terminated, cancelled, or shall expire, then the Grantee shall, at the option of the City, and at the expense of Grantee and at no expense to the City and upon demand of the City, promptly remove from any streets or other area all property of Grantee; and Grantee shall promptly restore the street or other area from which such property has been removed to such reasonable condition as the City Manager or City Director of Public Works shall approve. 10) The Council may, upon written application therefor by Grantee, approve the abandonment of any of such property in place by Grantee and under such terms and con- ditions as the Council may prescribe. Upon abandonment of any such property in place, Grantee shall cause to be exe- cuted, acknowledged, and delivered to the City such instru- ments as the City Attorney shall prescribe and approve, '. transferring and conveying the ownership of such property to the City. SECTION 1875. MISCELLANEOUS PROVISIONS ae Miscellaneous Provisions. 1) A franchise granted to provide service within the City shall authorize and permit the Grantee to solicit, sell, distribute, and make a charge to subscribers within the City for connection to the cable television system of Grantee and shall also authorize and permit the Grantee to traverse any portion of the City in order to provide service. 2) A franchise, easement, license, or other permit granted to anyone other than the Grantee to traverse any portion of the City in order to provide service shall not authorize nor permit said person to solicit, sell, dis- tribute, or make any charge to subscribers within the City, nor to render any service or connect any subscriber within the City to the cable television system of Grantee. 3) Grantee shall be subject to all provisions of the other ordinances, rules, regulations, and specifica- tions of the City heretofore or hereafter adopted pursuant to the valid exercise of the police power including, but not limited to, those pertaining to works and activities in, on, over, under, and about streets and other public throughways or infrastructure. Grantee also shall be subject to the provisions of general laws of the State of California, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted under this ordinance including, but not limited to, those pertaining to works and activities in and about state highways. 274 4) A franchise under this ordinance does not authorize grantee directly or indirectly to engage in the business of selling at retail, leasing, renting, repairing, or servicing of television sets or radios. The foregoing shall not be construed to prohibit Grantee from making a charge to subscribers for the connection of video tape recorders or equipment for a comparable purpose to Grantee's cable television system. 5) If the Federal Communications Commission or the Public Utilities Commission of the State of California, or any other federal or state body or agency, shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted under this chapter, then, to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the jurisdiction of the City shall cease and no longer exist. Any and all minimum standards governing the operation of Grantee and any and all maximum rates and charges specified herein, or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the City; and any and all rights, powers, privileges, and authorities of the City to determine, establish, or fix any of the same are each and all hereby declared to the City and by any Grantee accept- ing any franchise hereunder to be contractual in nature and to be for the benefit of the City. 6) When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk. 7) No person, firm, or corporation within the service area of the Grantee, and where trunk lines are in place, shall be refused service; provided, however, that the Grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge, or, in the case of reconnection of the same subscriber, who has not paid all past outstanding charges. 8) Before providing cable television service to any subscriber, the Grantee shall provide a written notice to the subscriber substantially as follows: 'Subscriber is hereby notified that, in providing cable television service, the Grantee is making use of public rights of way within the City and that the continued use of such rights of way is in no way guaranteed. In the event the continued use of such rights of way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the City, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued.' 9) The form of the Grantee's contract with the subscriber shall also be subject to approval of the City, such approval not to be unreasonably withheld. B. Privacy. 1) As used in this subsection, "valid authorization" means written approval from the subscriber for a period of time not to exceed one year. 275 2) Each Grantee shall strictly observe and protect the right of privacy and of property of subscribers and users at all times. Information on individual sub- scribers, individual subscriber preferences of any kind, viewing habits, preferences of any kind, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone numbers shall not be revealed to any person, mailing service, investigat- ing agency, or department, company, other agency or entity, unless upon the authority of a court of law or upon prior written permission of the subscriber. The request for per- mission must be separately signed or initialed and contain a prominent statement that the subscriber is authorizing the permission in full knowledge of its provision. Such authorization shall not in any event be required as a con- dition of receiving service. 3) A Grantee may release the number of its sub- scribers but only as a total number and as a percentage of the potential subscribers throughout the City. When indi- cating the number of subscribers viewing a particular channel at a particular time, Grantee shall indicate only the aggregate numbers of subscribers viewing during the relevant time and the percentage of subscribers which they represent, but never the identity of a particular subscriber. 4) A Grantee may maintain such information as is necessary to bill subscribers for the purchase of any system service. 5) A subscriber may at any time revoke any authorization previously made, by delivering to' Grantee in writing by mail or otherwise, his/her decision to so revoke. Any such revocation shall be effective upon receipt by Grantee. 6) No monitoring of any subscriber terminal shall take place without specific prior valid authorization by the user of the terminal in question; provided, however, the Grantee may conduct systemwide or individually addressed "sweeps" for the purposes of billing, verifying system integrity and ensuring signal quality. Grantee shall not initiate a subscriber response mechanism without a finding by the City Manager that the system can operate effectively and yet give protection against any invasion of privacy. 7) A Grantee shall not tabulate any test results, nor permit the use of the system for such tabula- tion, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licensees or employees without prior valid authorization of the subscriber. 8) Each compilation, publication, tabulation or other dissemination of each piece of information made or permitted to be made in violation of this section shall be considered a separate violation. C. Equal Employment Opportunity and Affirmative Action. 1) In the carrying out of the construction, maintenance, and operation of the cable television system, the Grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin. 276 2) The Grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion and transfer, recruitment and recruit- ment advertising, layoff and termination, rates of Day, and other forms of compensation and selection for training including apprenticeship. 3) The Grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimina- tion clause. 4) The Grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the Grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, or national origin. 5) The Grantee shall incorporate the foregoing requirements in all of its contracts for work relative to construction, maintenance, and operation of the cable tele- vision system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work. D. Periodic Review and Revision. To provide for 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 provide on a continuing basis, an advanced, modern ,. system, the Grantor and the Grantee shall comply with the following system and services review provisions: 1) At Grantor's or Grantee's option, the Grantor and Grantee may hold a System and Services Review Session on or about the third anniversary date of the franchise agreement. Subsequent System Review Sessions may be scheduled by the Grantor each two (2) years thereafter. 2) Sixty (60) days prior to the scheduled System and Services Review Session, Grantee shall submit a report to Grantor indicating the following: a) A survey of cable system services that are being provided on an operational basis, excluding tests and demonstrations, to cities in the United States of simi- lar size and complexity. b) A plan for provision of those services not provided by the Grantee or an explanation indicating why such services are not feasible for the franchise area. 3) Topics for discussion and review at the System and Services Review Sessions shall include but shall not be limited to, services provided, rate structure, ade- quacy of rate of return to Grantee, application of new technologies, the metering and supply of utility services, system performance, programming, (including access oppor- tunities), subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, and developments in the law. 4) Either the Grantor or the Grantee may select additional topics for discussion at any Review Session. 5) Not later than sixty (60) days after the conclusion of each System and Services Review Session, 277 Grantor shall issue findings, including specifically a listing of any cable services not then being provided that the Grantor establishes are technically and economically feasible. Grantor may request Grantee to provide such ser- vices within a reasonable ti~e, under reasonable rates and conditions. Failure to provide such requested services may be considered a breach of the franchise, subject to remedies as provided in this ordinance. E. Arbitration. 1) Arbitration. A dispute as to any decision arising out of the effect or interpretation of the Sections specified in 2), below, may be appealed to arbitration subject to the consent of both parties. If the parties consent to arbitration, judicial relief may not be sought until a final written decision has been rendered by the Arbitration Panel as set forth in 7). 2) Matters Arbitrable. Any dispute shall be arbitrable which arises out of decisions of the Grantor rendered pursuant to the following Sections of the Ordinance: a) Section 1872C 3): the amount or length of liquidated damages, penalties or sanctions. b) a rate increase. Section 1874C 2) c)(2): The denial of c) Section 1874D 4): Rebates to subscribers. d) Section 1875D 5): Requests arising out of Systems Review. 3) Procedure. Arbitration proceedings shall be conducted in compliance with the California Arbitration Act, ~1280 et seq. of the California Code of Civil Procedure, except as elsewhere provided in this Section. 4) Arbitration Panel. Each arbitration shall be conducted by a panel of three (3) arbitrators. One arbitrator shall be appointed by the Grantee, one arbitrator shall be appointed by the Grantor, and the third arbitrator shall be the chairperson of the panel, and shall be appointed by the other two arbitrators. If the other two arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the Justice Court Judge in the judicial district which the City is located. No member of the panel shall be an officer, employee or attorney of the Grantee or any affiliate thereof, or the City. The Grantee and Grantor shall each appoint its arbitrator and mail notice to the other of its selection not later than fifteen (15) calendar days following filing of a notice of appeal to arbitration or mailing of the initiation of arbitration. The third arbitrator shall be appointed not later than thirty (30) calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. 5) Arbitration Hearing. The chairperson of the arbitration panel shall select the site of the hearing, retain a stenographic reporter to report the hearing, and, in consultation with the other members of the panel and the parties, schedule the hearing. The hearing shall be scheduled to commence not later than seventy-five (75) 278 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. The chairperson of the panel shall mail written notice of the time, date and place of the hearing to the other two arbitrators, legal counsel to the Grantor, the Grantee, and the Grantee's surety on the performance bond not later than twenty (20) calendar days in advance of the hearing. 6) Arbitration Costs. The compensation and expenses of the arbitrator appointed by the Grantee shall be borne and paid solely by the Grantee. The compensation and expenses of the arbitrator appointed by the Grantor shall be borne and paid solely by the Grantor. The Grantee and Grantor shall each bear and solely pay their own costs of attorneys' fees, expert and other witness fees and other expenses incurred in preparing and prosecuting their respec- tive cases. In proceedings where the record of a public hearing of the Grantor is to be considered by the arbitra- tion panel, the costs of transcribing, typing and copying the record shall be borne and paid solely by the Grantee. The compensation and expenses of the chair- person of the arbitration panel, rental, if any, for the place of the hearing, per diem costs of the stenographic reporter, costs of transcribing and typing any transcripts of the arbitration hearing, and any other costs of the arbitration proceeding not identified in the first paragraph of this Subsection shall be divided equally between, borne and paid by the Grantee and Grantor. The arbitration panel shall not be empowered to order a division of costs, fees or expenses different from that prescribed by this Section. 7) Arbitration Award. The arbitration award shall be determined by a majority of the members of the arbitration panel, and shall be in writing. If it is neces- sary for the panel to make determinations of fact, it shall, include findings of fact and conclusions with the award if requested by any-party to the proceeding. The award shall be issued and mailed to the parties not later than ninety (90) calendar days following the close of the arbi- tration hearing. 8) Limitations of Powers. The arbitration panel shall have no authority to add to, delete or alter any pro- visions of the Ordinance, Agreement, Request for Proposals or the Proposal submitted by the Grantee, but shall limit its interpretation to the express terms of the Ordinance, Agreements, if any, or the Application submitted by the Grantee. Under no circumstances shall an arbitration panel be vested with authority or jurisdiction to determine or award monetary damages (by way of setoff, counterclaim, directly or otherwise) or any other relief against the Grantor or its officers, agents or employees. F. Waivers. 1) Any provision of this Ordinance may be waived, at the sole discretion of the City, by resolution of the City Council. 2) Grantee may submit a request for waiver to the City Council at any time during the franchise term. Such request for waiver shall be set for public hearing and acted upon within one hundred eighty (180) days following the submission. 3) The City Council may authorize the economic, technical or legal evaluation of such waiver request and Grantee shall be required to reimburse the City for any expenditures incurred by City in connection with such evaluation. 279 G. Force Majeure. Grantee shall not be deemed in violation of this Ordinance or the franchise for the delay in performance or failure to perform in whole or in part its obligations under this Ordinance or the franchise due to labor dispute, material shortage, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God or by other events to the extent that such events are caused by circumstances beyond Grantee's control. H. Notice. Ail notices authorized or prescribed by this article shall be deemed to have been given and served when deposited in the United States mail, postage prepaid, return receipt requested. SECTION 1876. CRIMINAL VIOLATIONS AND PENALTY A. Criminal Violations. 1) From and after the effective date of this chapter, it shall be unlawful for any person to construct, install, or maintain within any public street in the City, or within any other public property of the City, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, any equipment or facilities for dis- tributing any television signals or radio signals through a cable television system unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this ordinance and unless such franchise is in full force and effect. 2) It shall be unlawful for any person, firm, or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a franchised cable television system within this.City, for the purpose of enabling himself or others to receive or use any television signals, radio signal, picture, program, or sound without payment to the owner of said system. This section is not intended to affect any direct interception of satellite programming that is governed by the provisions of the Cable Communications Policy Act of 1984. 3) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove, or injure any cables, 'wires, or equipment used for distribu- tion of television signals, radio signals, pictures, programs, or sound. B. Criminal Penalties. Any person convicted of violating Section 4.04.195 of this chapter shall be punished, in addition to whatever monetary fines and penalties are otherwise authorized herein, by imprisonment in the county jail for a term not exceeding six (6) months, or by a fine of one thousand dollars ($1,000), or both such fine and imprisonment. SECTION THREE. Sections 1877 to 1902 of the Ukiah Municipal Code are reserved. 28O SECTION FOUR. This ordinance shall be introduced and adopted as provided by law, shall be published in a newspaper of general circulation as provided by law and shall become effective thirty (30) days after adoption. PASSED AND ADOPTED this 2nd day of October by the following roll call vote. , 1985 AYES: Councilmembers Henderson, Hickey, Kelley and Mayor Myers. NOES: None ABSENT: Councilmember Kier. Ci~ Clerk ~ -