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49 ORDINANCE NO. 49 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAND TERRACE, CALIFORNIA, ESTABLISHING A PRO- CEDURE FOR THE GRANTING OF FRANCHISES FOR BROAD- BAND AND TWO-WAY COMMUNICATION SYSTEMS. WHEREAS, the City of Grand Terrace wishes to provide its citizens with a cable television system; and WHEREAS, the City Council , in order to construct such a system, will accept proposals from various applicants and intends to award a non- exclusive franchise on the basis of quality of service, rates to the sub- scribers, income to the City, experience and financial responsibility of the applicant, plus any other considerations that will safeguard local public interest; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GRAND TERRACE DOES ORDAIN AS FOLLOWS: SECTION 1 - Definitions SECTION 2 - Franchise to Install and Operate SECTION 3 - Cable Television Service SECTION 4 - Franchise Payments SECTION 5 - Franchise Term: Duration and Termination SECTION 6 - Application for Franchise SECTION 7 - Deposits; Bonds; Indemnifications; Insurance SECTION 8 - Acceptance of the Franchise SECTION 9 - Limitations of Franchise SECTION 10 - Rights Reserved to the City SECTION 11 - Council May Adopt Rules and Regulations SECTION 12 - Permits and Construction SECTION 13 - Technical Standards SECTION 14 - Inspection of Property and Records SECTION 15 - Right to Purchase System SECTION 16 - Right of Intervention SECTION 17 - Effect of Annexations SECTION 18 - Safety Requirements SECTION 19 - Removal of Facilities Upon Request SECTION 20 - Repair of Streets and Public Ways SECTION 21 - Erection of Poles SECTION 22 - Services SECTION 23 - Special Service Areas SECTION 24 - Receivership SECTION 25 - Authority of City to Terminate in the Event of Condemnation SECTION 26 - Continuity of Service Mandatory SECTION 27 - Financial Disclosure of Independent Consultant SECTION 28 - Miscellaneous Provisions SECTION 29 - Equal Opportunity Employment and Affirmative Action Plan SECTION 30 - Violations SECTION 31 - Severability SECTION 32 - Effective Date SECTION 33 . - Posting SECTION 34 - Adoption SECTION 1 Definition - For the purposes of this Ordinance, the following terms, phrases,-words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: (a) "City" shall mean the City of Grand Terrace, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged, or re-incorporated form. (b) "Council " shall mean the governing body of the City of Grand Terrace or any future board constituting the legislative body of the City. (c) "Chief Administrative Officer" shall mean the City Manager, City Administrator, or other designation of the City's Chief Executive Officer, or any designee thereof. (d) "Franchise" shall mean and include any authoriza- tion granted hereunder in terms of a franchise, privilege, permit, license, or otherwise to construct, operate, and maintain a cable television system within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City. (e) "Person" shall mean any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies. (f) "Grantee" shall mean the person, firm, or corpora- tion granted a franchise by the Council under this Ordinance, and the lawful successor, transferee, or assignee of said person, firm, „ or corporation. (g) "Street" shall mean the surface, the air space above the surface, and the area below the surface of any public street, other public right-of-way, or public place, including public utility easements. -2- (h) "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 Ordinance. (i ) "Subscriber" or "User" shall mean any person or entity receiving for any purpose any service of the Grantee's cable television system including, but not limited to, the conven- tional cable television system service of retransmission of tele- vision broadcast, radio signals, Grantee's original cablecasting, and the local government, education, and public access. channels; and other services, such as leasing of channels, data and facsimile transmission, pay television, and police, fire, and similar public service communication. (j) "Cable television system," "CATV," "CTV," and "broadband two-way communications system," for the purpose of this Ordinance, are terms describing a system employing antennae, microwave, wires, waveguides, coaxial cables, or other conductors, equipment, or facilities designed, constructed or used for the pur- pose of: (1 ) collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them; (2) transmitting original cablecast program- ming not received through television broadcast signals; (3) transmitting television pictures, film, and video-tape programs, not received through broadcast television signals, whether or not encoded or Processed to permit reception by only selected receivers; (4) transmitting or receiving two-way signals or transmissions; (5) transmitting and receiving all other signals: digital , voice, and audio-visual ; provided, however, that any of the services, permitted hereunder to be performed, as described above, shall be those performed by the Grantee for subscribers, as herein defined, in the operation of a cable television or CATV system franchised by the City and not otherwise. M "Gross Revenue" shall mean any and all compensation and other consideration in any form whatever and any contributing grant or subsidy received directly or indirectly by a grantee from (1 ) subscribers or users in payment for television or FM radio -3- signals, reception, or service received within the City, including installation and line extension charges; (2) any fees or income received by Grantee for carrying advertising or commercial messages over the CATV facilities; and (3) from any other person or utili- zation of or connection to the property of grantee to the extent City may from time to time legally impose a franchise payment on account thereof. Notwithstanding the above, Gross Annual Receipts shall not include any taxes on services furnished by the Grantee and imposed directly on any subscriber or user by any city, state, or other governmental unit and collected. by the Grantee for such governmental unit. (1 ) "Special Service Area" shall mean an area(s) of the City designated by the Council , if it so elects, in the franchise agreement, where the franchisee may charge different rates, or provide different service(s) , than in the remainder of the City. SECTION 2 Franchise to Install and Operate. (a) A non-exclusive franchise to install , construct, operate, and maintain a cable television system on streets within all or a specific portion of the City may be granted by the Council to any person, whether operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this Ordinance. No provision of this Ordinance may be deemed or con- strued 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. (b) When and in the event that the Grantee of any franchise granted hereunder uses in his cable television system distribution channels furnished to the Grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction, and said Grantee makes no use of the streets independent of such telephone compnay-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. " SECTION 3 Cable Televisions Service. (a) Basic Service - The cable television system permitted , to be installed and operated hereunder shall : (1 ) B,e operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of which the Grantee is now or hereafter authorized by the Federal Communications Commission; -4- (2) be constructed two-way operational from the date of system initiation; (3) distribute color television signals which it receives -in color; (4) provide at least one (1 ) channel , without charge, for exclusive use of the City. Additional channels may be required by the City as the need, in the determination of the City, arises; (5) provide a Community Service Channel Pro- gram, as defined by Government Code Section 53066.1 , as amended, plus any additional requirements which the Council may, from time to time, impose; (6) provide, at a minimum, a character generator with audio for public and municipal use; and (7) consist of the state of art technology and be at least equivalent in capacity and capability to those cable television systems constructed and operated in adjacent cities. (b) Non-basic services - The cable television system permitted to be installed and operated hereunder may also engage in the business of: (1 ) transmitting original cablecast program- ming not received through television broadcast signals; (2) transmitting television pictures, film, and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers; (3) transmitting and receiving all other signals: digital , voice, and audio-visual . (c) Subscriber complaints - In addition to other service regulations adopted by the Council and, excepting circum- stances beyond Grantee's control , such as "Acts of God," riots, and civil disturbances, in providing the foregoing services, the Grantee shall : (1 ) Limit 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 non-business hours; -5- (2) Upon complaint by a subscriber, make a demonstration satisfactory to the chief administrative officer that a signal is being delivered which is of sufficient strength and quality to meet the standards set forth in the regulations of the Federal Communica- tions Commission; (3) render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible. Planned interrup- tions, insofar as possible, shall be preceded by notice given to subscribers twenty-four (24) hours in advance and shall occur during periods of minimum use of the system; (4) maintain an office, which shall be open during all the usual business hours, with its telephone number listed in directories of the tele- phone company serving the City; and be so operated that complaints and requests for repairs or adjustment may be received at any time, day or night, seven days a week; or provide a local telephone directory listing and "toll-free" telephone service maintained on a seven-day, twenty-four (24) hour basis for the receipt of consumer complaints; (5) maintain a written record or "log" listing date of customer complaints, identifying the subscriber, and describing the nature of the complaint and when and what action was taken by Grantee in response thereto; said record shall be kept at Grantee's local office for a period of five (5) years from the date of complaint and shall be available for inspection during regular business hours, without further notice or demand, by the chief administrative officer. (d) Municipal Service. (1 ) With respect to the local government channel , the Grantee shall provide, at the request of the chief administrative officer, use of Grantee's studio, equipment, and technical services for production of live and video-tape municipal programs, subject to scheduling requirements of the Grantee; (2) With respect to the basic television services, the Grantee shall provide all subscriber services and a tie-in connection, without cost, when the system possesses such facilities and as designated by the Council , subject to the requirements of Federal law to: -6- (i) Public schools and community colleges within the City; and (ii ) buildings owned and controlled by the City, used for public purposes and not for residential use (fire and police stations excepted) . (e) Compatibility and Connectibility. (1 ) It is the desire of the City that all cable television systems franchised hereunder shall , insofar as financially and technically possible, be compatible with another and with systems adjacent to the City; (2) wherever it is financially and technically feasible, the Grantee shall so construct, operate, and modify the system, so as to tie the same into all other systems within and adjacent to the City. (f) Uses permitted - Any franchise granted pursuant to the provisions of this Ordinance 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, under, upon, across, and along any street- such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, 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 facili- ties 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. SECTION 4 - Franchise Payments. (a) In consideration of the granting and exercise of a franchise to use the streets, as herein defined, for the opera- tion of a cable television system, any Grantee shall pay to the City, during the life of the franchise, three (3) percent of the franchisee's gross revenues per year from all cable services in the community except that, to the extent that the Federal Communi- cations Commission, in its Rules and Regulations, at some time in the future allows a City to raise the franchise fee to five (5) percent, absent the showings currently required by Section 76.31 of the Rules and Regulations of the Federal Communications Commis- sion, the City reserves the right to increase the franchise fee to a level of five (5) percent. (b) The percentage payments shall be made in the manner and at times directed in said franchise or in a Council resolution fixing franchise fees and adopting rules for service and rate regulation. -7- (c) No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this Ordin- ance or for the performance of any other obligation hereunder. (d) In the event that the above payment is not received by the City within the specified time, Grantee shall pay to the City liquidated damages of two (2) percent per month on the unpaid balance in addition thereto. SECTION 5 Franchise Term: Duration and Termination. (a) The franchise granted by the Council under this Ordinance shall be for a maximum term of fifteen (15) years from the date of its acceptance by the Grantee. During the last year of the franchise, the Grantee may apply to the Council for a renewal of the franchise. Permission to renew for an additional equal term of fifteen (15) years shall not be unreasonably withheld if the Grantee has substantially complied with the terms and condi- tions of the existing franchise. (b) The City may terminate any franchise granted pursuant to the provisions of this Ordinance in the event of the failure, refusal , or neglect by Grantee to do or comply with any material requirement or limitation contained in this Ordinance or any material rule or regulation of the Council or chief adminis- trative officer validly adopted pursuant to this Ordinance. (c) The chief administrative officer may make written demand that the Grantee do, or comply with, any such requirement, limitation, term, condition, rule, or regulation. If the failure, refusal , or neglect of the Grantee continues for a period of thirty (30) days following such written demand, the chief administrative officer may place his request for termination of the franchise upon the next regular Council meeting agenda. The chief adminis- trative officer shall cause to be served upon such Grantee, at least ten (10) days prior to the date of such Council meeting, a written notice of his intent to request such termination , and the time and place of the meeting, notice of which shall be posted by the City Clerk at least ten (10) days before such meeting in three (3) public places established by ordinance. (d) The Council shall consider the request of the chief administrative officer and shall hear any persons inter- ested therein, and shall determine, in its discretion, whether or not any failure, refusal , or neglect by the Grantee was with just cause. -8- (e) If such failure, refusal , or neglect by the Grantee was with just cause, the Council shall direct the Grantee to comply within such time and manner and upon such terms and con- ditions as are reasonable. (f) If the Council shall determine such failure, refusal , or neglect by the Grantee was without just cause, then the Council may, by resolution, declare that the franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the Council may fix, or reduce the length of the franchise by a period of time up to the duration of the failure and/or violation. (g) The termination and forfeiture of any franchise shall in no way affect any. of the rights of the City under the franchise or any provision of law. (h) In the event of any holding over after expiration of any franchise granted hereunder, without the prior consent of the City, expressed by resolution, the Grantee shall pay to the City reasonable compensation and damages of not less than one hundred percent (100%) of its gross revenue during said period. SECTION 6. Applications for Franchise (a) Each application for a franchise to construct, operate, or maintain any cable television systems in this City shall be filed with the City Clerk and shall contain or be accompanied by the following: (1 ) The name, address, and telephone number of the applicant; (2) a detailed statement of the corpor- ate or other business entity organization of the applicant including, but not limited to, the follow- ing and to whatever extent required by the City: (i ) the names and residence and business addresses of all officers, directors, and associates of the applicant; (ii ) the names and residence and business addresses of all officers, per- sons, and entities having, controlling, or being entitled to have or control of five percent (5%) or more of the owner- ship of the applicant and the respective ownership share of each such person or entity; -9- (iii ) the names and addresses of any Parent or subsidiary of the applicant, namely, any other business entity owning or control- ling applicant in whole or in part or owned or controlled in whole or part by the appli- cant, and a statement describing the nature of any such parent or subsidiary business entity including, but not limited to, cable television systems owned or controlled by the applicant, its parent and subsidiary, and the areas served thereby; (iv) a detailed description of all pre- vious experience of the applicant in provid- ing cable television system service and in related or similar fields; (v) a detailed and complete financial statement of the applicant, audited by an independent certified public accountant, for three (3) fiscal years 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 pro- posed system in this City. (vi ) a statement identifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or sub- sidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of system(s) ; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof; (3) a detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: -10- '(i ) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equip- ment necessary to become operational through- out the entire area to be served; (ii) 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; (iii ) a detailed, informative, and refer- enced statement describing the actual equipment and operational standards proposed by the appli- cant, and that such standards of operations are in compliance with those contained in Title 47, Subpart K (Section 76.601 et seq. ) , of the Rules and Regulations of the Federal Communications Commission; (iv) a copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber; (v) a detailed statement setting forth in its entirety any and all agreements and under- takings 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 grant- ing of the franchise. (4) 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; (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) an application fee in the sum of $1 ,500.00, 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 re- turnable or refundable in whole or in part, except to the -11- extent that such fee exceeds the actual costs incurred by the City in studying, investigating, and otherwise pro- cessing the application, provided, -that any applicant who shall deliver to the City Clerk a written withdrawal of or cancellation of any application hereunder- not later than the seventh (7th) day next following the day such applica- tion is received by the City Clerk, shall be entitled to have returned and refunded the sum of $1 ,500,00, less any actual costs or expenses incurred by the City by reason of such application. (b) The Council may, by advertisement or any other means, solicit and call for applications for cable television system fran- chises, and may determine and fix any date upon or after which the same shall be received by the City, or the date before which the same must be received or the date after which the same shall not be re- ceived, 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. (c) Upon receipt of any application for franchise, the Council shall refer the same to a CATV Committee appointed by the Council , who shall prepare a report and make their recommendations respecting such application and cause the same to be completed and filed with the Council. (d) If the Council shall determine to further consider the application, it shall pass a resolution setting a public hearing for the consideration of competing applications, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objections may file written protests and/or appear before the Council and be heard, and directing the City Clerk to post said resolution within ten (10) days of the passage thereof in three public places established by ordinance. (e) In making any determination hereunder as to any application for a new franchise, or renewal thereof, the Council may give due consideration to the quality of the service proposed, rates to subscriber, income to the City, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equip- ment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limita- tions and requirements, and any other considerations deemed per- tinent by the Council for safeguarding the interests of the City and the public. (f) At the time set for the hearing, or at any adjourn- ment thereof, the Council shall proceed to hear all written pro- tests. Thereafter, the Council shall make one of the following determinations: -12- (1 ) That such application(s) be denied, which determination shall be final and conclusive; or (3) that such franchise be granted and the terms and conditions thereof. (g) The Council may reject any and all applications and may, if it so desires, request new and/or additional proposals. (h) The Council may at any time demand, and applicant(s) shall provide, such supplementary, additional , or other information as the Council may deem reasonably necessary to determine whether the requested franchise should be granted. (i ) Any Grantee, upon the effective date of its franchise, shall be required to reimburse City for its estimated engineering, administrative, publication, and legal expenses incurred in connec- tion with the processing, evaluation, and preparation of documents relating to such franchise, as such shall be established in the franchise agreement, in a total amount not to exceed Fifteen Thousand Dollars ($15,000.00) . SECTION 7. Deposits; Bonds; Indemnifications; Insurance mom (a) Performance Deposit to City - The Grantee shall , concurrently with the filing of an acceptance of award of the franchise granted under this Chapter, deposit in a financial in- stitution selected by the City the sum of Fifty Thousand Dollars ($50,000.00) in a joint account with the Grantee and the City as co=sionors. This sum shall be maintained in an interest-bearing- joint' account during the period of construction of the cable television system within the City limits, but in no event in excess of three (3) years. The return of the sum plus interest to the Grantee shall be conditioned upon the faithful performance of the Grantee and, upon the further condition that in the event Grantee shall fail to comply with any one or more of the provisions of this Chapter or of the franchise issued to the Grantee hereunder, there shall be recoverable from this sum any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee as prescribed herein, which may be in default, plus a reasonable allowance for the attorney's fees and costs, up to the full amount of the account. (b) Performance Bond for Subscribers - Upon being granted a franchise and upon filing of the acceptance required under Section 8 hereof, the Grantee shall file, annually, with the City Clerk, and shall thereafter during the entire term of such franchise maintain in full force and effect, a corporate surety bond or other adequate surety agreement in the amount of Ten Thousand Dollars ($10,000.00). The bond or agreement shall be so conditioned 13- 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 and damages or costs suffered or incurred by any subscriber as a result thereof, includ- ing reasonable attorneys' fees and costs of any action or proceeding. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obligations to any subscriber which arise out of or pertain to any such agreement or undertaking. (c) Hold Harmless Agreement - Grantee shall indemnify and hold harmless the City, its officers, boards, committees, commissions, agents, and employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including, but not limited to, damages to City property and damages arising out of copyright infringements, and damages arising out of any fail- ure by Grantee to secure consents from the owners, authorized dis- tributors, or licensees of programs to be delivered by Grantee's cable television system) , costs or liabilities (including costs or liabilities of the City with respect to its employees) of every kind and nature whatsoever, including, but not limited to, damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expenses arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by Grantee, or the granting thereof by the City. (d) Defense of Litigation - Grantee shall , at the sole risk and expense of Grantee, upon demand of the City, made by and through the City Attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial , quasi-judicial , administrative, legislative, or otherwise , brought or instituted or had by third persons or duly constituted authorities, against or affecting the City, its officers, boards, committees, commissions, agents, or employees, and arising out of or pertaining to the exercise or the enjoyment of such franchise or the granting thereof by the City. Grantee shall pay and satisfy or 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, committees, commission, agents, •or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, orotherwise; provided, that neither Grantee nor City -14- _ t shall make or enter into any compromise or settlement of any claim, demand, cause of action,• action, suit, or other proceeding without first obtaining the written consent of the other. (e) Insurance Required - Upon being granted a franchise and upon filing of the acceptance required under Section 8 hereof, the Grantee shall file with the City Clerk, and shall thereafter during the entire term of such franchise maintain in full force and effect, at its own cost and expense, each of the following policies of insurance: (1 ) General Comprehensive Liability Insurance in the amount of One Million Dollars ($1 ,000,000,00) , to- gether with Bodily Injury. Liability Insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.00) for injuries, including accidental death, to any one person, and subject to the same limit for each person in an amount not less than One Million Dollars ($1 ,000,000.00) on account of any one occurrence, and Property Damage Liability Insurance in an amount not less than Fifty Thousand Dollars ($50,000,00) resulting from any one occurrence, provided, however, as follows: (i ) The City shall be named as an addi- tional insured in any of said insurance poli- cies; and (ii ) 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. SECTION 8. Acceptance of the Franchise (a) No franchise granted under this Ordinance shall become effective for any purpose unless and until written accept- ance thereof shall have been filed with the City Clerk. Written acceptance, which shall be in the form and substance approved by the City Attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this Ordinance, or in such franchise, or otherwise specified as herein provided. (b) The written acceptance shall be filed by the Grantee not later than 12:01 o'clock p.m. of the fortieth (40th) day next following the effective date of the Ordinance granting such franchise. (c) In default of the filing of such written aceptance 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 franchise -15- unless and until the Council , by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. (d) In any case and in any instance, all rights, remedies, and redress which may or shall be available to the City shall at all times be available to the City, and shall be preserved and main- tained, 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 agreement or otherwise. (e) Any franchise granted and accepted under this Ordinance shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, .or exercisable by the Grantee of or pertaining to the construction, operation, or maintenance of any cable television systems in the City. SECTION 9. Limitations of Franchise (a) Every franchise granted under this Chapter shall be non-exclusive. (b) No privilege or exemption shall be granted or conferred by any franchise granted under this Chapter except those specifically prescribed herein. (c) Any privilege claimed under any such franchise by the Grantee in any street or other public property shall be subordinate to any prior lawful occupancy to the streets or other public property. (d) Any such franchise shall be a privilege to be held in personal trust by the original Grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, in whole or in part, either by forced or involutary sale, or by voluntary sale, merger, consolidation, or otherwise without prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the Council may not be unreasonably refused, provided, however, the proposed assignee must show responsibility as determined by the Council utilizing the factors specified in Section 6(e) and must agree to comply with all provisions of this Ordinance, 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 indebted- ness, except that when such hypothecation shall exceed twenty-five percent (25%) of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the Council shall be required for such a transfer. Such consent shall not be withheld unreasonably. -16- In the event that Grantee is a corporation, prior approval of the City Council , expressed by resolution, shall be required where there is an actual change in control or where ownership of more than twenty-five percent (25%) of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent (50%) or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this Ordinance within the meaning of Section 6 of this Ordinance. (e) Time shall be of the essence of any such franchise granted hereunder. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Ordinance by any failure of the City to enforce prompt compliance. (f) Any right or power. in, or duty impressed upon, any officer, employee, department, or board of the City shall be sub- ject to transfer by the City to any other officer, employee, department, or board of the City. (g) The Grantee shall have no recourse whatsoever against the City for any foss, cost, expense, or damage arising out of any provision or requirement of this Ordinance or of any franchise issued hereunder or. because of its enforcement. (h) The Grantee shall be subject to all requirements of City laws, rules, regulations, and specifications heretofore or hereafter enacted or established. (i ) Any such franchise granted shall not relieve the Grantee of any obligations involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets. (j) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by Grantee or any successor to any interest of Grantee of or per- taining to the construction, operation, or maintenance of any cable television system in the City; and the acceptance of any franchise hereunder shall operate, as between Grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the City to the effect that, as between Grantee and the City and all construction, operation and maintenance by any Grantee of any cable television system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise and not hereunder or pursuant to any other right, AWN privilege, power, immunity, or authority whatsoever. -17- SECTION 10. Rights Reserved to the City - The City reserves the power to adopt and enforce requirements and regulations on any or all of the following matters if and when deemed necessary and proper in the public interest by the City Council and are consistent with Rules and Regulations of the Federal Communications Commission: (a) Procedures for the periodic fixing of reasonable rates and service charges to be charged to subscribers by Grantee and provisions for the enforcement thereof; (b) Operational standards pertaining to the quality of audio-visual reception by subscribers; (c) Channel capacity requirements; (d) Requirements for carriage of specified television signals, radio signals, and supplementary signal carriage services; (e) Requirements for the provision of equipment and channels for local production and presentation of cablecast programs and regulations pertaining thereto; (f) Requirements and regulations pertaining to minimum service requirements and fair business practices by the Grantee; (g) Public safety requirements pertaining to the instal- lation and use of all CATV equipment; (h) Procedures for the investgation and resolution of all compaints by subscribers regarding Grantee's CATV operations, including implementation thereof by designated City officers, employees, or agents; (i ) Public access channels, equipment, and facilities; (j) 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 frnachise, 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. (k) 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 a perpetuity, the City's right of eminent domain. -18- (1 ) Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exer- cise of any governmental right or power of the City; (m) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Ordinance and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The chief administrative officer, with the approval of the City Attorney, is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the opera- tions of any Grantee under this Ordinance either on behalf of the City, the Grantee, or any subscriber in the best interest of the public. Either the Grantee or any member of the public, who may be dissatisfied with the decision of the chief administrative officer, may appeal the matter to the Council for hearing and determination. The Council may accept, reject, or modify the decision of the chief administrative officer; and the Council may adjust, settle, or compromise any controversy or cancel any charge arising from the operations of the Grantee or from any provision of this Ordinance; (n) In the event the Federal Communications Commission elects to deregulate any area of cable communication over which it currently exercises jurisdiction or grant authority to munici- palities to regulate in these areas, any franchise issued pursu- ant to this Ordinance shall be automatically amended, without any additional act by any party to it, to reflect these new municipal regulatory powers; and the City may, if it so elects, adopt rules and regulations in these areas. SECTION 11 . Council May Adopt Rules and Regulations (a) Standards of Operation - (1 ) Prior to receiving any applications for franchises, the Council may adopt rules, regulations, and standards governing the operation of cable tele- vision 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. (2) 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 Ordinance, by resolution, which shall become effective upon adoption, and shall be applicable to any applica- tion for a franchise previously received. -19- (3) The standards adopted pursuant to these procedures shall be exclusively in those areas not either expressly or impliedly preempted by the Federal Communications Commission at the time of adoption. (4) The Council may, at any time, adopt new rules or regulations or standards, or may amend, modify, delete, or otherwise change its respective rules or regu- lations or standards previously adopted in the following manner: The Council shall pass its resolution of inten- tion stating or describing the rules or regulations 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. Such resolution shall direct the City Clerk to post the same within ten (10) days of the passage thereof in three (3) public places established by ordinance, and to mail a copy of the same to any Grantee or applicant for a franchise not more than thirty (30) days nor less than fifteen (15) days prior to the time fixed for hearing thereon. 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. There- after, the Council , by its resolution, may adopt, amend, modify, delete, or otherwise change its respective rules and regulations and standards. Such determination by the Council shall be final and conclusive. The rules and regulations as amended, modified, deleted, or other- wise changed by the Council shall become effective upon the tenth (loth) day following the adoption of such reso- lution unless a longer period shall be otherwise provided in such resolution. (b) Rates - Unless and until the City Council adopts an ordinance establishing procedures for the periodic fixing of rea- sonable rates pursuant to Section 10 for the entire City or parts thereof, the following limitations shall apply to the rates charged to subscribers by Grantee: (1 ) No increase in rates beyond those represented to a subscriber at the time of initiation of service to such subscriber shall be applied to such subscriber for a period of not less than one year thereafter, except for such additional installations or services as may be requested by such subscriber during such period. (2) No increase in rates shall be imposed upon subscribers except after thirty (30) days prior notice to subscriber. -20- i (3) No charge shall be imposed upon any sub- scriber for termination of CATV service or removal of CATV apparatus upon termination of such service. No rate or charge of any type shall be imposed on a sub- scriber after receipt of notice of termination from such subscriber, unless such subscriber withdraws such notice prior to actual termination of service. (4) No charge shall be made to any subscriber by reason of the maintenance, repair, removal , or re- placement of any CATV apparatus or property of Grantee, unless the same was caused by the deliberate or negligent act of said subscriber. (5) Except as otherwise provided by paragraph (1 ) hereinabove, Grantee shall not charge different rates to subscribers within the same class of service; nor shall there be any difference in the services or facilities or in any other respect between subscribers within the same class except as authorized in Section 23 and except that installation charges may vary according to the costs of installation. No Grantee shall make or grant any preference to any corporation or person as to rates, charges, services, facilities, rebates, or in any other respect, nor subject any corporation or person to any prejudice or disadvantage. (6) The City reserves the power to lower the rates charged subscribers whether or not they were initially approved by the City Council . SECTION 12. Permits and Construction (a) Within thirty (30) days after acceptance of any fran- chise, 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., micro-wake carrier licenses, and any other permits, licenses, and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the opera- tion of the cable television systems or associated micro-wave trans- mission facilities. In connection therewith, copies of all petitions, appli- cations, and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting Grantee's cable television operations shall also be submitted simultaneously to the chief administrative officer. -21- (b) Within ninety (90) days after obtaining all necessary permits, licenses, and authorizations, including right-of-access to poles and conduits, Grantee shall commence construction and instal- lation of the cable television system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction made part of the franchise shall be provided as set forth therein. Grantee is required to complete construction of the entire City in a maximum of three (3) years, although a shorter time may be speci- fied in the franchise. (d) Grantee shall utilize existing poles, conduits, 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 on privately-owned property, unless and until first securing the written approval of the chief administrative officer. Whenever Grantee shall not utilize existing poles, conduits, and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, 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 facili- ties 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. (e) The City shall have the right, free of charge, to make additional use for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled, or maintained exclusively by or for Grantee in any street, provided such use by City does not interfere with the use by Grantee. (f) In those areas of the City where the transmission or distribution facilities of the respective public utilities providing telephone, communication, and electric services are underground or hereafter are placed underground, the Grantee likewise shall construct, operate, and maintain all of his trans- mission and distribution facilities underground. The term "under- ground" shall include a partial underground system, provided that -22- upon obtaining the written approval of the chief administrative officer, amplifiers in the Grantee's transmission and distribu- FA lines may be placed in appropriate housings upon the surface of the ground. (g) The Grantee at his expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the chief administrative officer, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction , change or estab- lishment of street grade, installation of sewers, drains, waterpipes, power lines, signal line, transportation facilities, tracks, or any other types of structure of improvements or 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. (h) Upon the failure, refusal , or neglect of Grantee to AMR 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 notice given where no time is prescribed, the chief administrative officer may 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 costs thereof. The Grantee shall , within thirty (30) days after receipt of such statement, pay to the City the entire amount thereof. (i ) 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 without 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 condition as the chief adminis- strative officer shall approve. -23- 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 conditions as the Council may prescribe. Upon abandonment of any such property in place, Grantee shall cause to be executed, acknowledged, and deliv- ered to the City such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the City. SECTION 13. Technical Standards (a) The performance of Grantee's cable television system shall meet the technical standards as set forth in Sec- tion 76.605 or any successor section of the Federal Communication Commission's Rules and Regulations as those standards may exist from time to time. (b) Grantee shall conduct performance tests in accord- ance with requirements of Section 76.601 or any successor section of the Federal Communication Commission's Rules and Regulations as these requirements may apply or be extended from time to time. SECTION 14. Inspection of Property and Records (a) At all reasonable times, the Grantee shall permit any duly authorized representative of the City to examine all property of the Grantee, together with any appurtenant property of the Grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which deal with the operations, affairs, transactions, or property of the Grantee with respect to its franchise. _ If any such maps or records are not kept in the City or, upon reasonable request, made available in the City, and if the Council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. (b) The Grantee shall prepare and furnish to the City Manager and the City. Clerk, at the times and in the form pre- scribed by either of said officers, such reports with respect to its operation, affairs, transactions, or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions, or duties of the City or any of its officers in connection with the franchise. (c) The Grantee shall at all times make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the City. -24- SECTION 15. Right to Purchase System - Upon the revocation of the franchise, or the expiration of the terms thereof, and upon payment by the Grantor to the Grantee of the fair market value of the Grantee's CATV system, the Grantor may purchase, acquire, take over, or hold said system. For purposes of this section "fair market value" shall be determined by valuing the Grantee's system as a going concern. No value shall be assigned to the franchise granted hereunder. Immediately upon a determination of revocation or expiration of the franchise, the Grantor and Grantee shall attempt to mutually agree upon the fair market value of the system. However, if within a reasonable period of time they cannot agree upon the fair market valuation, then said valuation shall be determined by a three-member Board of Appraisers, one selected by the Grantor, one selected by the Grantee, and one selected by the appraisers themselves. The cost of said appraisal shall -be borne equally by the Grantor and the Grantee. SECTION 16. Right of Intervention - The Grantor may intervene in any suit or proceeding in which the Grantee is a party, provided that the Grantor's interests are not adequately represented by the existing parties and, provided, further, that the disposition of each suit or proceeding without the Grantor's participation may, as a practical matter, impair or impede the Grantor's ability to protect those interests. SECTION 17. Effect of Annextions (a) In the event any new territory shall be annexed to the City which is contiguous to only one franchise area in the City, such new territory shall become, by operation of law, a part of such franchise area immediately upon the effective date of such annexation. (b) In the event any new territory shall become annexed to the City which is contiguous to more than one franchise area in the City or is not contiguous to any franchise area, then the Council shall determine, at a public hearing, which Grantee or Grantees, if any, shall serve such new territory. (c) In the event any portion of the unincorporated territory covered by an existing franchise or license granted by the County of San Bernardino is annexed to the City prior to the time that the Grantee of such County franchise or license has commenced installation of a CATV system within said territory, all rights acquired by said Grantee under its County franchise or license shall terminate by operation of law as of the date on which the annexation to the City becomes effective. (d) In the event any portion of unincorporated terri- tory covered by an existing franchise or license granted by the County of San Bernardino is annexed to the City after the Grantee thereof has commenced or completed construction and installation of a CATV system within said territory, the rights reserved under such franchise or license to the County of San Bernardino, or to any officer thereof, shall inure to the benefit of the City and -25- all regulatory provisions of this Ordinance and any other rules and regulations applicable to CATV systems operating within the City, whether then in effect or subsequently adopted, shall be applicable to and binding upon said Grantee. In addition, the Grantee shall be obligated to pay annually to the City the percentage of the gross receipts established by the County of San Bernardino in said franchise or license which are derived from its operations within the annexed territory for five (5) years or upon termination of the franchise, whichever is of the shorter time duration, at which time the Council may establish the percent- age of gross receipts to be paid to the City. SECTION 18. Safety Requirements (a) The Grantee shall at all times employ ordinary care, and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. (b) The Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the re- quirements of the National Elecrical Code as it now exists or hereafter may be amended and in such manner that they will not interfere with any installations of the City or of a public utility serving the City. (c) All structures and all lines, equipment, and con- nections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition and in good order and repair. (d) The Grantee shall strictly adhere to all building and zoning codes currently or hereafter in force. The Grantee shall arrange its lines, cables, and other appurtenances on both public and private property in such a manner as to cause no unreasonable interference with the use of said public or private property by any person. SECTION 19. Removal of Facilities Upon Request - Upon termination of service to any subscriber, the Grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request. SECTION 20. Repair of Streets and Public Ways - Any and all streets and public ways which are disturbed or damaged during the construc- tion, operation, maintenance, or reconstruction of the Cable Television System shall be promptly repaired by the Grantee, at its expense, to the satisfaction of the Grantor. -26- SECTION 21 . Erection of Poles - The Grantee is expected to make use of existing aerial poles. However, the Grantee shall have the right to erect poles if written permission is obtained from the Grantor. Except as may be permitted, the Grantee shall lease pole space from existing owners for all construction. The Grantor shall utilize its best efforts to assist in arriving at equitable rental agreement. SECTION 22. Services - Services shall be offered to all City residents in accordance with the provisions of the franchise agreement. The Grantee shall not materially reduce the level of service without permission of the City, but may, at its discretion, substitute programming to offer subscribers an equal or better array of services. SECTION 23. Special Service Areas - As defined in the franchise agreement, the Grantee shall be permitted to charge higher installation fees for areas of low housing density, commercial areas, and/or underground utility areas that require exceptionally high construction costs. Upon petition by the Grantee, the Council may defer or indefinitely suspend any expansion into such a special service area after a showing by Grantee that such expansion would cause unreasonable financial hardship to Grantee. The adequacy of such a showing shall be determined and weighed against the public interest in system expansion by the Council after a public hearing. SECTION 24. Receivership - Upon the foreclosure or other judicial sale of all or a substantial part of the CATV System, or upon the termina- tion of any lease covering all or a substantial part of the CATV System, the Grantee shall notify the City Clerk of such fact, and such notification shall be treated as a notification that a change in control of the Grantee has taken place, and the provisions of this Ordinance governing the consent of the Council to such change in control of the Grantee shall apply. The Grantor shall have the right to revoke the franchise one hundred and twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the Grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred. and twenty (120) days, or unless: (a) Within one hundred and twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of the franchise and remedied all defaults thereunder; and (b) such receiver or trustee, within said one hundred and twenty (120) days, shall have executed an agreement duly approved by the court having jurisdiction in the premises whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the franchise. -27- SECTION 25. Authority of City to Terminate in the Event of Condemnation - In order to preserve the right of the City under the franchise provided for and its right to acquire the property of the Grantee by purchase or by eminent domain proceedings at its then fair market value, at any time during the existence of the fran- chise, it is especially provided that if at any time the franchise or the property of the Grantee under the franchise shall become the subject of eminent domain proceedings by the City, the City reserves and shall have the right at the time such proceedings are commenced, ar at any time thereafter, to terminate said franchise by resolution. SECTION 26. Continuity of Service Mandatory - It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the Grantee are honored. In the event that the Grantee elects to overbuild, rebuild, modify, or sell the system, or the Grantor revokes or fails to renew the franchise, the Grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service, regardless of the circumstances, during the lifetime of the franchise. In the event of purchase by the Grantor or a change of Grantee, the current Grantee shall cooperate with the Grantor to operate the system for a temporary period in maintaining continuity of service to all subscribers. SECTION 27. Financial Disclosure of Independent Consultant - Any individual , partnership, or corporation employed by the City for the purposes of advising the City, its Council , Commissions, City Manager, or Staff on matters relating to cable television or reviewing and evaluating, or assisting the City in reviewing and evaluating, proposals for the con- struction and operation of a cable television system(s) , or regulating, or assisting the City in regulating, a cable television system, shall , as a term condition of their employment, file with the City Clerk, within ten (10) days of employment, a statement containing: (1 ) A listing and description of any financial and/or ownership held by the consultant in any cable television company, any subsidiary or affiliate of any cable television company, any company which is a supplier or customer of any cable television company, or in other company which owns stock or has any interest in any of those types of companies which are described in this Section. If the consultant is a partnership, the financial and/or ownership interests in cable television companies affili- ates, subsidiaries, suppliers, and customers of any partner must be disclosed. If the consultant is a corporation, the financial and/or ownership interests in cable television companies, affili- ates, subsidiaries, suppliers, and customers of any shareholder, officer, or directors must be disclosed. ' (2) A listing and description of any cable television company, affiliate, subsidiary, supplier, or customer which the consultant has represented, on a compensated or noncompensated basis, within the last fifteen (15) years. -28- The statement filed pursuant to this Section shall be a public document open to inspection by any person. Failure to file this statement or the inclusion of a material misrepresentation or omission within the, statement, shall constitute grounds for 'the City's termination of the employment contract. This provision shall not apply to individuals who are subject to the reporting requirements of the "Political Reform Act of 1974" (California Government Code Sections 81008 et seq. ) under the local Conflict of Interest Code if the disclosures required by the Code are substantially similar to those of this Section. SECTION 28. Miscellaneous Provisions (a) A franchise granted to provide service within the City may 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 outside the City. (b) 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 outside the City shall not authorize nor permit said person to solicit, sell , distribute, or make any charge to subscribers within the City to the cable television service system of Grantee. (c) No franchise granted under this Ordinance shall ever be given any value by any Court or other authority, public or private, in any proceeding of any nature or character wherein or whereby the City shall be a party or affected therein or thereby. (d) Grantee shall be subject to all provisions of the other ordinances, rules, regulations, and specifications of the City heretofore or hereafter adopted including, but not limited to, those pertaining to works and activities in, on, over, under, and about streets. Any privilege claimed under any franchise granted pursuant to this Ordinance in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. 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. (e) Grantee shall be prohibited from directly or indirectly doing any of the following: -29- (i ) Engaging in the business of selling at retail , leasing, renting, repairing, or servicing of television sets or radios; (ii ) imposing a fee or charge for any service or repair to subscriber-owned receiving devices, except for the con- nection of its service or for the deter- mination by Grantee of the quality of its signal to the recipients thereof; (iii ) soliciting, referring, or caus- ing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by Grantee; (iv) providing information concerning the viewing patterns of identifiable indi- vidual subscribers to any person, group, or organization for any purpose. (f) 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 Ordinance, 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. (g) When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk. (h) 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. (i ) 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 of Grand Terrace, and that the continued use of such rights- of-way is in no way guaranteed. In the -30- event the continued use of such rights- of-way is denied to Grantee for any rea- son, 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 of Grand Terrace, its officers, or its employees if the service to be provided hereunder is interrupted or dis- continued." (j) The form of the Grantee's contract with the sub- scriber shall also be subject to approval . of the City. (k) Grantee may be required, at the option of the City, to purchase from the City any cable television system purchased through a negotiated sale or taken through eminent domain by the City at a price equal to the City's total cost, including attor- neys' and appraisers' fees and other costs of negotiation and/or litigation. Grantee shall be required to operate said system as part of its systems, without interruption of service, subject to the terms and conditions of Grantee's franchise and this Ordinance. SECTION 29. Equal Opportunity Employment and Affirmative Action Plan - 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. 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 or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection of training, including apprenticeship. The Grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause. The Grantee shall , in all solicitations or advertisements for employees placed by or on behalf of the Grantee, state that all qualified applicants shall receive consideration for employ- ment without regard to race, creed, color, sex, or national origin. -31- The Grantee shall incorporate the foregoing require- ments in all of its contracts for work relative to construction, maintenance, and operation of the cable television system other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorpor- ate such requirements in all subcontracts for such work. SECTION 30. Violations (a) From and after the effective date of this Ordinance, 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 distributing 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. (b) 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 signal , radio signal , picture, program, or sound without payment to the owner of said system. (c) 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 distribution of television signals, radio signals, pictures, programs, or sound. (d) If a subscriber files in writing with the franchisor a complaint for a service problem which is preventable and rea- sonably within the franchisee's or licensee's control , - and if such franchisee or licensee fails, within a reasonable period following receipt of written notice by the franchisor, to remedy the problem, the franchisor may levy a penalty of up to Five Hundred Dollars ($500.00) for any occurrence or series of related occurrences, unless the franchisee or licensee has fewer than five thousand (5,000) subscribers, in which case, the penalty shall not exceed Two Hundred Dollars ($200.00) . If the franchisee or licensee objects to the penalty in writing to the franchisor, the franchisee or licensee and franchisor shall conduct arbitration in accordance with the rules of the American Arbitration Association. The decision of the arbirator shall be final . -32- J1. The franchisee or licensee shall provide written notice to each subsc.riber at intervals of not more than one (1 ) year of the sanctions provided in this Section and of the procedure for reporting and resolving subscriber complaints, including the subscriber's right to complain in writing to the franchisor of the franchisee's failure to resolve a service complaint which is preventable and reasonably within the franchisee's or licensee's control . The proper address of the franchisor or licensor to which complaints may be directed shall be included in such notice. SECTION 31 . Severability - If any section, sub-section, clause, or phrase of this Ordinance is for any reason held illegal , invalid, or unconstitutional , such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed this Ordinance and each section, sub-section, sentence, clause, and phrase hereof irrespective of the fact than any one or more sections, sub- sections, sentences, clauses, or phrases be declared illegal , invalid, or unconstitutional . The invalidity of any portion of this Ordinance shall not abate, reduce, or otherwise affect any consideration or other obliga- tion required of the Grantee of any franchise granted hereunder. SECTION 32. Effective Date - This Ordinance shall become effective thirty (30) days from and after its adoption. SECTION 33. Posting - The City Clerk shall cause this Ordinance to be posted in three (3 public places designated for such purpose by ordinance. SECTION 34. First read at a regular meeting of the City Council of said City held on the 1t day of March 1981 , and finally adopted and ordered posted at a regular meeting of said City Council on the j th day of Junp 1981 . ayor f the City e ace and of the City unci thereof. ATTEST: Deputy City of the City of Grand Terrace and of the City "Council thereof.. Approved as to form: r-;Z.7Attorney -33- i<;- �: STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss. CITY OF GRAND TERRACE ) I , ILENE DUGHMAN, Deputy City Clerk of the City of Grand Terrace, DO HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the City Council of said City at a regular meeting of the City Council held on the 11th day of June 19 81 , and that it was so adopted by the following vote: AYES: Councilmen Grant, Petta, Nix, Rigley; Mayor Tillinghast. NOES: None ABSENT: None r epu y C ity C Terk the City of Grand Terrace and f the City Council thereof. STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss. CITY OF GRAND TERRACE ) I , ILENE DUGHMAN, Deputy City Clerk of the City of Grand Terrace, DO HEREBY CERTIFY that the above and foregoing is a full , true and correct copy of Ordinance No. 49 of said City Council , and that the same has not been amended or repealed. DATED: June 11, 1981 Deputy City Cler of the City of ` Grand Terrace a of the City Council thereof. fit.: