Chapter 5.12 CABLE TELEVISION FRANCHISES

A nonexclusive franchise to construct, operate and maintain a community cable television system within all or any portion of the city may be granted by the city council to any person, whether operating under an existing franchise or not, who offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter and California Government Code Section 53066. [Ord. 171 § 1, 1981].

5.12.020 Definitions.

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

“Cable television system,” “CATV” and “CTV,” for the purpose of this chapter, are terms describing a system employing antennas, microwave, wires, wave-guides, coaxial cables, or other conductors, lines, towers, laser beam, fiber optics, multiple distribution system, satellite, or other equipment or facilities designed, constructed, or used for the purpose of:

A. Collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them;

B. Transmitting original television cablecast programming not received through television broadcast signals;

C. Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

D. 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, but shall not include any systems limited solely to the transmission of voice, digital, and audio-visual signals not received through broadcast over wires which are owned by a company licensed and regulated by the Public Utilities Commission of the state of California.

“City” means the city of Trinidad, a municipal corporation of the state of California in its present incorporated form or in any later reorganized, consolidated, enlarged, or reincorporated form.

“Clerk” means the city clerk of the city of Trinidad.

“Council” means the governing body of the city of Trinidad or any future board constituting the legislative body of the city.

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

“Grantee” means 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.

“Gross receipts” means any and all compensation, in whatever form, grant, subsidy, exchange, or otherwise, directly or indirectly received by a grantee, from any and all sources, including that from subscribers, advertising, studio and equipment rental and other leasing, and all other receipts received by grantee in the operation of the cable television system.

“Person” means 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.

“Property of grantee” means all property owned, installed, or used within the city by a grantee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this chapter.

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

“Subscriber” or “user” means any person or entity receiving for any purpose any service of the grantee’s cable television system including, but not limited to, the conventional cable television system service of retransmission of television broadcast, radio signals, grantee’s original cablecasting, and the local government, education and public access channels; and other services, such as leasing of channels, data and facsimile transmission, pay television, and police, fire and similar public service communication. [Ord. 171 § 2, 1981].

5.12.030 Franchise – Grant – License.

A. 1. A nonexclusive 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, including one operating under an existing franchise, who offers to furnish and provide such system under and pursuant to the terms of this chapter.

2. 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.

B. When and in the event that the grantee of any franchise granted hereunder used 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 company-furnished facilities, said grantee shall be required to comply with all of the provisions hereof as a “licensee” and in such event whenever the term “grantee” is used herein it shall be deemed to mean and include “licensee.” [Ord. 171 § 3, 1981].

5.12.040 Basic service.

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

A. Be 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;

B. Distribute color television signals which it receives in color;

C. Provide at least one channel, without charge, for exclusive use of the city;

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

E. Have a minimum capacity of 12 channels. [Ord. 171 § 4(a), 1981].

5.12.050 Nonbasic services.

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

A. Transmitting original cablecast programming not received through television broadcast signals;

B. Transmitting television pictures, film and videotape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers;

C. Transmitting and receiving all other signals: digital, voice, and audio-visual. [Ord. 171 § 4(b), 1981].

5.12.060 Subscriber complaints.

In addition to other service regulations adopted by the council, and excepting circumstances beyond grantee’s control, such as acts of God, riots and civil disturbances, and in providing the foregoing services, the grantee shall:

A. Limit system failures to minimum time duration by locating and correcting malfunctioning promptly, but in no event longer than 24 hours after occurrence, irrespective of holidays or other nonbusiness hours;

B. 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 Communications Commission, or in regulations hereafter adopted by the council;

C. Render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible. Planned interruptions, insofar as possible, shall be preceded by notice given to subscribers 24 hours in advance and shall occur during periods of minimum use of the system;

D. Maintain an office in Humboldt County, which office shall be open during all the usual business hours, with its toll free 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 subscriber and describing the nature of the complaint, and when and what action was taken by grantee in response thereto; the record shall be kept at grantee’s local office, for the duration of said franchise, and shall be available for inspection during regular business hours, without further notice or demand, by the chief administrative officer. [Ord. 171 § 4(c), 1981].

5.12.070 Municipal service.

A. With respect to the local government channel, the grantee shall provide, at the request of the city council, and upon city reimbursement of grantee’s actual cost, use of grantee’s studio, equipment, and technical services for production of live and videotape municipal programs, subject to scheduling requirements of the grantee;

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

1. Public schools and community college facilities within the city; and

2. Buildings owned and controlled by the city, used for public purposes. [Ord. 171 § 4(d), 1981].

5.12.080 Compatibility and connectibility.

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

B. 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. [Ord. 171 § 4(e), 1981].

5.12.090 Permitted uses.

Any franchise granted pursuant to the provisions of this chapter may 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, construct, repair, replace, reconstruct, maintain, and retain in, on, over, under, upon, across and along any street, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable television system; and, in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms, or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in this city. [Ord. 171 § 4(f), 1981].

5.12.100 Franchise payments – Procedure – Inspection of records.

A. In consideration of the granting and exercise of a franchise to use the streets, as herein defined, for the operation of a cable television system, any grantee shall pay to the city, during the life of the franchise, the following: five percent of all the grantee’s gross annual receipts from all cable services within the city.

B. The percentage payments shall be made in the manner, amounts, and at times directed in the franchise or in a council resolution fixing franchise fees and adopting rules for service and rate regulation, but not to exceed the limitation set forth in Government Code Section 53066 as it now exists or is hereafter amended.

C. The city shall have the right 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 cost of the audit shall be borne by the grantee when the same results in increasing, by more than two percent, the grantee’s annual payment to the city.

D. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter or for the performance of any other obligation hereunder. [Ord. 171 § 5, 1981].

5.12.110 Franchise term – Duration and termination.

A. The franchise granted by the council under this chapter shall be for a term of 15 years from the date of its acceptance by the grantee.

B. The city may terminate any franchise granted pursuant to the provisions of this chapter in the event of the willful failure, refusal or neglect by grantee to do or comply with any material requirement or limitation contained in this chapter, or any material rule or regulation of the council validly adopted pursuant to this chapter.

C. The city clerk 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 30 days following such written demand, the city clerk may place his request for termination of the franchise upon the next regular council meeting agenda. The city clerk shall cause to be served upon such grantee at least 10 days prior to the date of such council meeting a written notice of his intent to request such termination, and the time and place of the meeting, notice of which shall be published by the city clerk at least once 10 days before such meeting in a newspaper of general circulation within the city.

D. The council shall consider the request of the city clerk and shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.

E. If such failure, refusal or neglect by the grantee was with just cause, the council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

F. If the council shall determine such failure, refusal, or neglect by the grantee was without just cause, then the council may, 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.

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 or other termination of any franchise granted hereunder, without the prior consent of the city, expressed by resolution, the grantee shall pay to the city reasonable compensation and damages, of not less than 100 percent of its gross revenue during said period. [Ord. 171 § 6, 1981].

5.12.120 Franchise – Application – Contents – Fee.

A. Each application for a franchise to construct, operate or maintain any cable television system in this city shall be filed with the city clerk and shall contain or be accompanied by the following:

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

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

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

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

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

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

e. A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city, or a statement from a certified public accountant certifying that the applicant has available sufficient free net and uncommitted cash resources to construct and operate the proposed system in this city;

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

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

1. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served;

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

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

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

5. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation, which materially relate or pertain to or depend upon the application and the granting of the franchise.

C. A copy of any agreement covering the franchise 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.

D. 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.

E. An application fee in the amount of $200.00, 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; 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 day next following the day such application is received by the city clerk, shall be entitled to have returned and refunded the sum of $100.00 less any actual costs or expenses incurred by the city by reason of such application. [Ord. 171 § 7(a) – (e), 1981].

5.12.130 Advertisement for applications.

The council may, by advertisement or any other means, solicit and call for applications for cable television system franchises, and may determine and fix any date upon or after which the same shall be received by the city, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for, making and receiving of such applications. The grantee shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within 30 days after the city furnishes the grantee with a written statement of such expenses. [Ord. 171 § 7(f), 1981].

5.12.140 Application referral to city attorney – Report.

Upon receipt of any application for franchise, the council shall refer the same to the city attorney, who shall prepare a report and make his recommendations respecting such application, and cause the same to be completed and filed with the council within 30 days. [Ord. 171 § 7(g), 1981].

5.12.150 Consideration of application – Initial criteria.

In making any determination hereunder as to any application, the council may give due consideration to the quality of the service proposed, rates to subscriber, income to the city, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other consideration deemed pertinent by the council for safeguarding the interests of the city and the public. The council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding. If the council shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected. [Ord. 171 § 7(h), 1981].

5.12.160 Consideration of application – Further consideration.

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 objections to the granting thereof may file written protests and appear before the council and be heard, and directing the city clerk to publish the resolution at least once within 10 days of the passage thereof in a newspaper of general circulation within the city. [Ord. 171 § 7(i), 1981].

5.12.170 Determination of applications.

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

A. That such franchise be denied; or

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

C. That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same. [Ord. 171 § 7(j), 1981].

5.12.180 Determination of application – Denial – Grant of application by ordinance.

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

B. If the council shall determine that a franchise be granted upon the terms and conditions as specified in the resolution of intention to consider granting the same, such determination shall be expressed by ordinance granting a franchise to the applicant. If the council shall determine upon granting a franchise upon terms and conditions different from those specified in the resolution of intention to consider granting the same, then such determination shall be expressed by resolution adopted prior to granting a franchise by ordinance. [Ord. 171 § 7(k), 1981].

5.12.190 Bonds.

A. Performance Bond to City. Upon being granted a franchise, and upon the filing of the acceptance required under TMC 5.12.230, the grantee shall file with the city clerk and shall thereafter, annually, during the entire term of such franchise, maintain in full force and effect a corporate surety bond or other adequate surety agreement in such amount and kind as shall have been approved by the council. The bond or agreement shall be so conditioned that in the event that grantee shall fail to comply with any one or more of the provisions of this chapter or of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the city as a result thereof, including attorneys’ fees and costs of any action or proceeding and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond. The condition shall be a continuing obligation during the entire term of such franchise and thereafter until grantee shall have satisfied in full any and all obligations to the city which arise out of or pertain to the franchise. Neither the provisions of this section, nor any bond accepted by the city pursuant hereto, nor any damages recovered by the city thereunder shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued pursuant to this chapter or for damages either to the full amount of the bond, or otherwise.

B. Performance Bond for Subscribers. Upon being granted a franchise, and upon filing of the acceptance required under TMC 5.12.230, the grantee shall file, annually, with the city clerk and shall thereafter during the entire term of the franchise maintain in full force and effect a corporate surety bond, or other adequate surety agreement, in the amount as shall be approved by the council. The bond or agreement shall be so conditioned that in the event such grantee shall fail to comply with any one or more of the provisions of any agreement or undertaking made between grantee and any subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorneys’ fees and costs of any action or proceeding. The 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. [Ord. 171 § 8(a) and (b), 1981].

5.12.200 Hold harmless agreement.

Grantee shall indemnify and hold harmless the city, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to damages to city property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licenses 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 attorneys’ fees, accountant fees, expert witness fee 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. [Ord. 171 § 8(c), 1981].

5.12.210 Defense of litigation.

A. 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, 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 exercise or the enjoyment of such franchise, or the granting thereof by the city.

B. Grantee shall pay and satisfy and shall cause to be paid and satisfy any judgment, decree, order, directive, or demand rendered, made or issued against grantee, the city, its officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither grantee nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other. [Ord. 171 § 8(d), 1981].

5.12.220 Insurance required.

Upon being granted a franchise, and upon the filing of the acceptance required under TMC 5.12.230, 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 policies of insurance in amounts to be established by the council upon granting of the franchise; provided, however:

A. The city shall be named as an additional insured in any of said insurance policies; and

B. Where such insurance is provided by a policy which also covers grantee or any other entity or person it shall contain the standard cross-liability endorsement. [Ord. 171 § 8(e), 1981].

5.12.230 Franchise acceptance procedures.

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

B. The written acceptance shall be filed by the grantee not later than 12:01 p.m. of the twentieth day next following the effective date of the ordinance granting such franchise.

C. In default of the filing of such written acceptance as herein required, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the grantee shall not be received, nor filed by the city clerk. The grantee shall have no rights, remedies, or redress in the premises, unless and until the council, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the council may impose.

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

E. Any franchise granted and accepted under this chapter shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the grantee, of or pertaining to the construction, operation, or maintenance of any cable television systems in the city. [Ord. 171 § 9, 1981].

5.12.240 Franchise – Limitations.

A. Every franchise granted under this chapter shall be nonexclusive.

B. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein.

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

D. 1. 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 involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the city clerk within 30 days after any such transfer or assignment. The said consent of the council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the council and must agree to comply with all provisions of this chapter; and provided further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed 50 percent 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.

2. In the event that grantee is a corporation, prior approval of the city council, expressed by ordinance, shall be required where there is an actual change in control or where ownership of more than 50 percent of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom already own 50 percent or more of the voting stock, singly or collectively.

3. Any such acquisition or attempted transfer occurring without prior approval of the city council shall constitute a failure to comply with a provision of this chapter within the meaning of TMC 5.12.110.

E. Time shall be of the essence of any such franchise granted hereunder. The grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this chapter by any failure of the city to enforce prompt compliance.

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

G. The grantee shall have no recourse whatsoever against the city for any loss, cost, expense, or damage arising out of any provision or requirement of this chapter or of any franchise issued hereunder or because of its enforcement.

H. The grantee shall be subject to all requirements of city laws, rules, regulations, and specifications heretofore or hereafter enacted or established.

I. Any such franchise granted shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the city, utility company, or from others maintaining utilities in streets.

J. Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation, or maintenance of any cable television system in the city; and the acceptance of any franchise hereunder shall operate, as between grantee and the city, as an abandonment of any and all of such rights, powers, privileges, immunities, and authorities within the city, to the effect that, as between grantee and the city, all construction, operation and maintenance by any grantee of any cable television system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever. [Ord. 171 § 10, 1981].

5.12.250 Rights reserved to the city.

A. Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights and 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 to eminent domain.

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

C. There is reserved to the city the power to amend any section of this chapter so as to require additional or greater standards of construction, operation, maintenance, or otherwise, on the part of the grantee to reflect technical and economic changes occurring during the franchise term, and to enable the city and the grantee to take advantage of new developments in the cable television industry so as to more effectively, efficiently and economically serve the public.

D. Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

E. The council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. City council is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public. [Ord. 171 § 11, 1981].

5.12.260 Rules and regulations.

A. Prior to receiving any applications for franchises, the council may adopt 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. 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 the ordinance codified in this chapter, by resolution which shall become effective upon adoption and shall be applicable to any application for a franchise previously received.

C. The standards adopted shall govern the engineering, construction, installation, service, and maintenance of all cable television systems in the city, including but not limited to standards governing carrier levels, signal-to-noise ratios, hum modulation, distortion levels, channel interactions and inter-reactions.

D. 1. Provided the same do not materially alter the content of the franchise without consent of the grantee, 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 regulations previously adopted, in the following manner: The council shall pass its resolution of intention 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 mail a copy of the same to any grantee or applicant for a franchise, not more than 30 days nor less than 15 days prior to the time fixed for hearing thereon.

2. 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. Such determination by the council shall be final and conclusive.

3. Any rule or regulation or standard as adopted, amended, modified, deleted, or otherwise changed by the council shall become effective upon the tenth day following the adoption of such resolution, unless a longer period shall otherwise be provided in such resolution. [Ord. 171 § 12(a), 1981].

5.12.270 Rates.

A. Prior to granting any franchise hereunder, the council, by resolution, shall establish and fix all rates and charges for the basic service, therein defined, allowable to grantee, such as:

1. Charges for installation;

2. Subscription rates;

3. Service charges for separate classifications of service (e.g., additional connection, etc.).

Once established, such rates or charges shall not be changed at any time after granting of franchise, except after due notice and hearing as provided herein.

B. Rates and charges for services, other than the basic service, shall also be approved by the council by resolution, after due notice and hearing as provided herein.

C. 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 detrimental or injurious to the best interests and welfare of the subscribers and users, and of the city, 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.

D. 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 of advantage to any person. [Ord. 171 § 12(b), 1981].

5.12.280 Permits and construction.

A. 1. Within 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 license, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, or associated microwave transmission facilities.

2. 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 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.

B. Within 90 days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, grantee shall commence construction and installation of the cable television system.

C. Within 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.

D. 1. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein shall be grounds for termination of such franchise. By resolution, the council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

2. By acceptance of the franchise granted hereunder, grantee agrees that failure to comply with any time requirements referred to in subsections (A) and (C) of this section will result in damage to the city, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and grantee therefor agrees that, in addition to any other damage suffered by city, he will pay to the city the sum of $50.00 per day for each and every day’s delay beyond the time prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this section.

E. 1. 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 landowner and of the director of public works.

2. 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 facilities of grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, or changes which may be so required shall be made at the expense of the grantee, whose costs shall be determined as in the case of public utilities.

F. 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 the city does not interfere with the use by grantee.

G. 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 placed underground, 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 council, amplifiers in the grantee’s transmission and distribution lines may be placed in appropriate housings upon the surface of the ground.

H. The grantee, at his expense, shall protect, support, temporarily disconnect, relocate, or remove any property of the grantee when, in the opinion of the city council, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of buildings, urban renewal and development, 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.

I. Upon the failure, 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 notice given, where no time is prescribed, the city council 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 30 days after receipt of such statement, pay to the city the entire amount thereof.

J. 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 30 days, without prior written notice to and approval by the city, or any part of such system has been installed in any street or other area without complying with the requirements hereof, or any franchise shall be terminated, cancelled, or shall expire, then the grantee shall, at the option of the city, and at the expense of the 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 director of public works shall approve;

2. 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 delivered to the city such instruments as the city attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city. [Ord. 171 § 13, 1981].

5.12.290 Franchise – General powers.

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 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. [Ord. 171 § 14(a), 1981].

5.12.300 Franchise – Powers exclusively within city.

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 the person to solicit, sell, distribute, 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. [Ord. 171 § 14(b), 1981].

5.12.310 Franchise – Valueless in court action with city.

No franchise granted under this chapter 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. [Ord. 171 § 14(c), 1981].

5.12.320 Regulations governing street work apply to grantee.

A. 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 chapter in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

B. 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 chapter, including but not limited to those pertaining to works and activities in and about state highways. [Ord. 171 § 14(d), 1981].

5.12.330 Grantee – Prohibited activities.

Grantee shall be prohibited from directly or indirectly doing any of the following:

A. Engaging in the business of selling at retail, leasing, renting, repairing, or servicing of television sets or radios;

B. Imposing a fee or charge for any service or repair to subscriber-owned receiving devices except for the connection of its service or for the determination by grantee of the quality of its signal to the recipients thereof;

C. Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by grantee;

D. Providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purpose. [Ord. 171 § 14(e), 1981].

5.12.340 Preemption or preclusion of city police power.

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. The preemption or preclusion of the exercise by the city or any of its police power shall not diminish, impair, alter, or affect any contractual benefit to the city or grantee nor any contractual obligation of the grantee under any franchise issued hereunder. Any and all minimum standards governing the operation of grantee and any and all maximum rates, ratios, 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 declared by the city and by any grantee accepting any franchise hereunder to be contractual in nature and to be for the benefit of the city. [Ord. 171 § 14(f), 1981].

5.12.350 Filing with city clerk.

When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the city clerk. [Ord. 171 § 14(g), 1981].

5.12.360 Refusal of service.

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. [Ord. 171 § 14(h), 1981].

5.12.370 Notice to subscriber.

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 Trinidad 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 of Trinidad, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued.

[Ord. 171 § 14(i), 1981].

5.12.380 Subscriber contract subject to city approval.

The form of the grantee’s contract with the subscriber shall also be subject to the approval of the city. [Ord. 171 § 14(j), 1981].

5.12.390 Plan for method of construction required.

It shall be the responsibility of the grantee, prior to commencement of any construction work pursuant to a franchise, to submit a plan identifying the method of construction and all locations of construction for approval by the director of public works. It shall be the responsibility of the grantee to obtain rights-of-way across private property when such is required by the grantee. A copy of such written rights-of-way shall be filed with the city clerk prior to such construction. [Ord. 171 § 14(k), 1981].

5.12.400 Changes in construction plans.

Changes in the CATV system as originally constructed shall be placed on an as-built plan which shall be provided to the director of public works. [Ord. 171 § 14(l), 1981].

5.12.410 Responsibility of construction conditions – Inspection.

In laying, installing, repairing, maintaining, replacing, or removing cables, wires, conduits, poles and other fixtures and equipment, grantee shall fill and compact said trenches and leave the surface of the streets, private driveways and other surfaces in as good condition as they were prior to excavating for laying, repairing, maintaining, replacing, or removing said cables, wires, conduits, or other fixtures and equipment. Inspection of such work shall be performed by the director of public works and acceptance of such work shall be made by the city council. [Ord. 171 § 14(m), 1981].

5.12.420 Waiver of claims for damages against city.

Grantee shall waive any and all claims for damages against the city caused by any grading, sewering, paving or other maintaining, improving, altering, or repairing of any and all public facilities, with the sole exception that the city shall give notice to grantee in all cases except emergencies where it may be necessary for a grantee to remove or relocate cables, wires, or the like. [Ord. 171 § 14(n), 1981].

5.12.430 Violations – Penalty.

From and after the effective date of the ordinance codified in this chapter, it is unlawful and a public nuisance 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 chapter, and unless such franchise is in full force and effect. The violation of any of the provisions of this chapter shall be an infraction. [Ord. 171 § 15, 1981].