HomeMy WebLinkAboutORD1413ORDINANCE NO. 1413
AN ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION,ARIZONA,AMENDING APACHE JUNCTION
CITY CODE,VOLUME 1,BY REPEALING CHAPTER 14,CABLE
SYSTEMS,AND ADOPTING BY REFERENCE A NEW CHAPTER 14,
CABLE TV SYSTEMS,BY ADDING TO THE CITY CODE A NEW
CHAPTER 14, ENTITLED "APACHE JUNCTION CITY CODE, VOLUME
1,CHAPTER 14,CABLE TV SYSTEMS";REPEALING ANY
CONFLICTING PROVISIONS;PROVIDING FOR SEVERABILITY;
PROVIDING FOR PENALTIES; AND DECLARING AN EMERGENCY.
WHEREAS,the Mayor and City Council on November 1,1983,
adopted Ordinance No. 222 which established Apache Junction City
Code ("A.J.C.C."),Volume 1,Chapter 14,Cable Systems,of the
City of Apache Junction ("City"); and
WHEREAS, the Mayor and City Council on May 15, 1984, adopted
Ordinance No.281 which amended A.J.C.C.Volume 1,Chapter 14,
Cable Systems;and
WHEREAS,the Mayor and City Council on November 27,1990,
adopted Ordinance No. 758 which amended A.J.C.C. Volume 1, Chapter
14,Cable Systems;and
WHEREAS,the Mayor and City Council on April 21,1993,
adopted Ordinance No. 861 which amended A.J.C.C. Volume 1, Chapter
14,Cable Systems;and
WHEREAS,the Mayor and City Council on August 3,1999,
adopted Ordinance No.1086 which amended A.J.C.C.Volume 1,
Chapter 14,Cable Systems;and
WHEREAS,on January 6,2015,the Mayor and City Council
directed staff to update Chapter 14,Cable Systems,to more fully
meet federal statutory requirements; and
WHEREAS, in order to meet the public notice requirements, a
public hearing was held at City Hall for discussion on the
proposed code change on February 3, 2015; and
WHEREAS, A.R.S. § 9-802 permits municipalities to enact the
provisions of a code or public record theretofore in existence
without setting forth such provisions in full text as long as the
adopting ordinance is published in full text and at least three
copies of the code or public record are filed in the office of
the clerk of the municipality and are made available for public
use and inspection; and
ORDINANCE NO. 1413
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WHEREAS,pursuant to A.R.S.§§9-801(1)and 9-802,codes
which may be adopted by reference include those relating to cable
TV systems; and
WHEREAS,City staff has determined that for administrative
efficiency, it is more appropriate to update the City Code Volume
1, Chapter 14 by repealing Chapter 14 of City Code Volume 1 in
its entirety,and replacing it with an updated Chapter 14,to
include the updated cable system provisions.
BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, AS FOLLOWS:
SECTION I IN GENERAL
1. That existing Apache Junction City Code, Volume I, Chapter
14,Cable Systems,is hereby repealed in its entirety.
2. That certain document known as "Apache Junction City Code,
Volume I,Chapter 1,Cable TV Systems",three copies of
which are on file in the office of the City Clerk,which
document was made a public record by Resolution No. 15-01 of
the City of Apache Junction, is hereby referred to, adopted
and made a part hereof as if fully set out in this
ordinance, pursuant to A.R.S. § 9-802.
SECTION II REPEALING ANY CONFLICTING ORDINANCES
All ordinances and parts of ordinances in conflict with the
provisions of this ordinance or any part of the codes adopted
herein by reference are hereby repealed.
SECTION III PROVIDING FOR SEVERABILITY
If any section,subsection,sentence, phrase,clause or portion
of this ordinance or any part of the codes or regulations adopted
herein by reference is for any reason held to be invalid or
unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions thereof.
SECTION IV PROVIDING FOR PENALTIES
After the City exhausts all of its civil violation procedures as
referenced in the adopted regulations,any violation of any
provisions adopted herein,shall be punishable as a Class 1
Misdemeanor consistent with Apache Junction City Code, Volume I,
Chapter 1,GENERAL,Article 1-8,PENALTY.
ORDINANCE NO. 1413
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SECTION V DECLARING AN EMERGENCY
The immediate operation of the provision of this Ordinance is
necessary for the immediate preservation of the public peace,
health or safety,and that an emergency is hereby declared to
exist; and this Ordinance shall be in full force and effect from
and after its passage,adoption and approval by the Mayor and
City Council of the City of Apache Junction.
APPROVED AND ADOPTED BY THE MAYOR ND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION THIS 340 DAY OF f 2015.
SIGNED AND ATTESTED TO THIS .3D DAY OF , 2015.
HN S. INSALACO
ayor
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
< 0 .: 1 .2 9 15
RICHARD J. STERN
City Attorney
ORDINANCE NO. 1413
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CHAPTER 14: CABLE TV SYSTEMS
ARTICLE 14-1:CABLE TELEVISION
Section
14-1-1 Title
14-1-2 Intent and purpose
14-1-3 Definitions
14-1-4 Authority to grant license; license required; non-exclusive license
14-1-5 Application procedures
14-1-6 Standards for granting or denying license applications
14-1-7 License agreement required
14-1-8 Operating requirements
14-1-9 Fees, bonds, letters of credit, liquidated damages and appeals
14-1-10 Termination and revocation
14-1-11 Renewal
14-1-12 Transfers and change of control
14-1-13 Indemnity and insurance
14-1-14 Administration
14-1-15 General provisions
14-1-16 Rights reserved to Council
§ 14-1-1 TITLE.
This chapter shall be entitled "City of Apache Junction Cable TV Systems".
§ 14-1-2 INTENT AND PURPOSE.
It is the intent of the city to promote the public health, safety and general welfare by providing for
the grant of one or more licenses for the construction and operation of a cable TV system; to
provide for the regulation of each cable TV system by the city; to provide for the payment of fees
and other valuable consideration by a licensee to the city for the privilege of using the public rights-
of -way for constructing and operating a cable TV system; to promote the widespread availability
of cable TV service to city residents wherever economically feasible, including, but not limited to
those who reside in multi -family buildings and in rural communities;to encourage the
development of cable TV service as a means of communication between and among the members
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of the public and public institutions; and to encourage the provision of diverse information to the
community over cable TV.
§ 14-1-3 DEFINITIONS.
For purposes of this chapter, the following words, abbreviations and their derivations shall have
the meanings given herein. Words not defined are given the meaning in § 602 of the Cable Act, 47
U.S.C. § 522, and, if none, their common and ordinary meaning. When not inconsistent with the
context, words used in the present tense include the future, words in the plural number include the
singular number, and words in the singular number include the plural number. The words MUST
and SHALL are mandatory and the word MAY is permissive.
ACCESS CHANNEL.Any channel set aside under the license agreement for public use,
educational use or governmental use without a charge to the user by the licensee for channel usage.
An ACCESS CHANNEL may be scheduled or may be operated so that any member of the general
public may cablecast.
ACTIVATED CHANNELS.Those channels engineered at the headend of a cable TV system for
the provision of services generally available to residential subscribers of the cable TV system,
regardless of whether those services actually are provided, including any channel designated for
public, education or governmental use.
ACTUAL COST.The actual cost to the licensee of materials and labor necessary to perform
installation, construction or maintenance of facilities.
AFFILIATE.Any person who owns or controls, is owned or controlled by, or is under common
ownership or control with the licensee.
APPLICANT.Any person that applies for a license.
APPLICATION.A proposal to construct and operate a cable TV system within the city, transfer
a license, renew a license or modify a license. An application includes the initial proposal plus all
subsequent amendments or supplements to the proposal and relevant correspondence.
BASIC CABLE SERVICE.Any service tier that includes the retransmission of local television
broadcast signals.
CABLE ACT.The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq.
CABLE OPERATOR.Any person or group of persons that is issued a license by the licensing
authority to construct, operate and maintain a cable TV system in the public rights -of -way.
CABLE SERVICE.The one way transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, that is required for the selection or use of the video
programming or other programming service.
CABLE TV SYSTEM or SYSTEM.Any facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment that is designed to provide cable
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service that includes video programming and that is provided to multiple subscribers within a
community. Cable television system does not include:
(1) A facility that serves fewer than fifty subscribers.
(2) A facility that serves subscribers without using any public right-of-way.
(3) A facility that serves only to retransmit the television signals of one or more television
broadcast stations.
(4) A facility of a common carrier that is subject, in whole or in part, to 47 United States Code
sections 201 through 276, except that the facility is considered a cable TV system, other than for
purposes of 47 United States Code section 541(c), to the extent the facility is used in the
transmission of video programming directly to subscribers, unless the extent of the use is solely to
provide interactive on -demand services.
(5) An open video system that complies with 47 United States Code section 573.
(6) A facility of an electric utility that is used solely for operating its electric utility system.
CHANNEL.A time or frequency slot or technical equivalent on the cable TV system in a specified
format, discretely identified and capable of carrying full motion color video and audio, and may
include other non -video subcarriers and digital information.
CHANNEL EQUIVALENT.The system capacity required to provide the transmission of a video
signal, with accompanying audio, that is in digital format and capable of producing sound and
picture of NTSC quality or better, based on the compression technology then in use in the cable
TV system.
CITY.The City of Apache Junction, an Arizona municipal corporation (also referred to the
("LICENSING AUTHORITY"),in its present boundaries, and its future boundaries as increased
or decreased by law.
CITY MANAGER.The chief executive officer of the city or his or her designee.
COMPLAINT.A subscriber or citizen issue, presented in verbal or written form, to the licensee
or the city relating to any regulatable aspect of the licensee's performance under this chapter.
CONSUMER PRICE INDEX or CPI.The annual average of the Consumer Price Index for all
Urban Consumers ("CPI -U"), as published by the Bureau of Labor Statistics.
CONTROLLING INTEREST.A business entity's operational authority, which is not limited to
majority stock ownership, but also includes actual working and management (day-to-day) control
in whatever manner exercised.
CONVERTER.A tuning device which converts transmitted signals to a frequency which permits
their reception on a television set.
COUNCIL.The Council of the City of Apache Junction.
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DAY.Calendar day.
DWELLING UNIT.Any separate and distinct structure or part thereof which exists in finished
form, occupied or capable of year-round occupation, and serves as a residence to one or more
persons. Included in this definition, but not limited to are: all single family homes, each apartment
unit, each condominium unit, patio homes, guest quarters and similar type structures.
EASEMENT.Property interest which allows the erection, construction or maintenance of a cable
TV system, its structures, equipment or facilities.
EXPANDED BASIC SERVICE.The next most highly penetrated tier of cable service
programming above the Basic Service tier excluding premium or pay -per -view services.
FAIR MARKET VALUE.The price that a willing buyer would pay to a willing seller.
FCC.The Federal Communications Commission.
FEDERAL AGENCY.Any agency of the United States.
GROSS REVENUES.Amounts in whatever form and from all sources derived directly or
indirectly by Licensee and/or an affiliate from the operation of licensee's cable system to provide
cable services within a license area.GROSS REVENUES include, by way of illustration and not
limitation:
(1) Fees for cable services,regardless of whether such cable services are provided to
residential or commercial subscribers, including revenues derived from the provision of all cable
services (including but not limited to pay or premium cable services, digital cable services, pay-
per -view, pay -per -event, audio channels and video -on -demand cable services);
(2) Installation, disconnection, reconnection, downgrade, upgrade, maintenance, repair, or
similar charges associated with subscriber cable service;
(3) Fees paid to licensee for channels designated for commercial/leased access use, which shall
be allocated on a pro rata basis using total cable service subscribers within the license area;
(4) Converter, remote control, and other cable service equipment rentals, leases, or sales;
(5) Payments for pre -paid cable services and/or equipment;
(6) Advertising Revenues as defined herein;
(7) Fees including, but not limited to:(1) late fees, convenience fees and administrative fees
which shall be allocated on a pro rata basis using cable services revenue as a percentage of total
Licensee revenues within the license area; (2) License fees; (3) the FCC User Fee and (4) Public,
Education and Government ("PEG") fees if included on subscriber billing statements;
(8) Revenues from program guides; and
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(9) Commissions from home shopping channels and other cable service revenue sharing
arrangements which shall be allocated on a pro rata basis using total cable service subscribers
within the license area.
(10)GROSS REVENUES shall not be net of:(1) any operating expense; (2) any accrual,
including without limitation,any accrual for commissions to affiliates;or (3)any other
expenditure, regardless of whether such expense, accrual, or expenditure reflects a cash payment.
GROSS REVENUES,however, shall not be double counted.Revenues of both licensee and an
affiliate that represent a transfer of funds between the licensee and the affiliate, and that would
otherwise constitute GROSS REVENUES of both the licensee and the affiliate, shall be counted
only once for purposes of determining GROSS REVENUES.Similarly, operating expenses of
the licensee which are payable from licensee's revenue to an affiliate and which may otherwise
constitute revenue of the affiliate, shall not constitute additional GROSS REVENUES for the
purpose of this license.GROSS REVENUES shall include amounts earned by affiliates only to
the extent that licensee could, in concept, have earned such types of revenue in connection with
the operation of licensee's cable TV system to provide cable services and recorded such types of
revenue in its books and records directly, but for the existence of affiliates.GROSS REVENUES
shall not include sales taxes imposed by law on subscribers that the licensee is obligated to collect.
With the exception of recovered bad debt,GROSS REVENUES shall not include bad debt.
(a) "Advertising Revenues" shall mean amounts revenues derived from sales of advertising
that are made available to licensee's cable system subscribers within the license area and shall be
allocated on a pro rata basis using total cable service subscribers reached by the advertising.
Whenever licensee acts as the principal in advertising arrangements involving representation firms
and/or advertising interconnects and/or other multichannel video providers, advertising revenues
subject to license fees shall include the total amount from advertising that is sold, and not be
reduced by any operating expenses (e.g.,"revenue offsets"and "contra expenses"and
"administrative expenses" or similar expenses), or by fees, commissions, or other amounts paid to
or retained by representation firms, other multichannel video providers, involved with sales of
advertising on the cable system within the license area.
(b)GROSS REVENUES shall not include:
(1) Actual cable services bad debt write-offs, except any portion which is subsequently
collected which shall be allocated on a pro rata basis using cable services revenue as a percentage
of total licensee revenues within the license area;
(2) Any taxes and/or fees on services furnished by licensee imposed on subscribers by
any municipality, state or other governmental unit,provided that the license fee, the FCC User
fee and PEG fee shall not be regarded as such a tax or fee;
(3) Launch fees and marketing co-op fees; and,
(4) Revenues associated with the provision of managed network services provided under
separate business contact.
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(5) Unaffiliated third party advertising sales agency fees which are reflected as a
deduction from revenues, except when licensee acts as a principle as specified in paragraph (A)
immediately above.
(c) To the extent revenues are derived by licensee for the provision of a discounted bundle
of services which includes cable services and non -cable services, licensee shall calculate revenues
to be included in GROSS REVENUES using a methodology that allocates revenue on a pro rata
basis when comparing the bundled service price and its components to the sum of the published
rate card prices for such components.Except as required by specific federal, state or local law, it
is expressly understood that equipment may be subject to inclusion in the bundled price at full rate
card value.This calculation shall be applied to every bundled service package containing cable
service from which licensee derives revenues in the license area. The city reserves its right to
review and to challenge licensee's calculations.Example:Prior to any bundle -related price
reduction, if cable service is valued at 50% of the total of the services to be offered in a bundle,
then cable service is to be valued and reported as being no less than 50% of the price of the bundled
service total.
INSTALLATION.The connection of the cable TV system from a remote terminal to a
subscriber's residence or place of business.
INTERACTIVE ON -DEMAND SERVICES.A service providing video programming to
subscribers over switched networks on an on -demand, point-to-point basis, but does not include
services providing video programming prescheduled by the programming provider.
LABOR COSTS.Actual cost to licensee of contract labor or hourly wages or apportioned salaries
of licensee's employees plus fully loaded labor costs.
LICENSE.An initial authorization, or renewal thereof (including a renewal of an authorization
which has been granted subject to Title 47 U.S.C. § 546), issued by a licensing authority, whether
such authorization is designated as a franchise, permit, resolution, contract, certificate, agreement
or otherwise, which authorizes the construction or operation of a cable TV system.
LICENSE AGREEMENT.A contract entered into in accordance with the provisions of this
chapter between the city and a licensee that sets forth the terms and conditions under which the
license will be exercised.
LICENSE AREA.The entire existing territorial limits of the city and any area annexed thereto
during the term of the license.
LICENSEE.Any person who has been granted a license by the city or any lawful transferee or
successor interest.
LICENSE FEE.As defined in Title VI of the Federal Communications Act of 1934, 47 U.S.C.
§ 542, as amended.
LICENSING AUTHORITY.The City of Apache Junction.
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LIVING UNIT.A distinct address in the network inventory system where the cable operator
currently has, had in the past, or had planned to provide telephone or high-speed intemet service
to a customer.This includes, but is not limited to, single family homes, multi -dwelling (e.g.,
apartment buildings and condominiums) units and business locations.
MATERIAL COSTS.Actual cost of material to licensee, including sales tax and freight paid, plus
handling and processing charges equal to 3% of material costs.
MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR.A person such as, but not
limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast
satellite service or a television receive -only satellite program distributor, who makes available for
purchase, by subscribers or customers, multiple channels of video programming.
NORMAL BUSINESS HOURS.Those hours during which most similar businesses in the
community are open to serve customers. In all cases,NORMAL BUSINESS HOURS must include
some evening hours at least 1 night per week and/or some weekend hours.
NORMAL OPERATING CONDITIONS.Those service conditions which are within the control
of the cable operator. Those conditions which are not within the control of the cable operator
include, but are not limited to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions. Those conditions which are within the
control of the cable operator include, but are not limited to, special promotions, pay -per -view
events, rate increases, regular peak or seasonal demand periods, and maintenance, upgrade or
rebuild of the cable TV system.
OTHER PROGRAMMING SERVICE.Information that a cable operator makes available to all
subscribers generally.
PERSON.Any individual, corporation, partnership, association, joint venture or organization of
any kind and the lawful trustee, successor, assignee, transferee or personal representative thereof.
PUBLIC RIGHTS -OF -WAY.The surface, the air space above the surface, and the area below
the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge,
tunnel, park, parkway, waterway, public utility easement or similar property now or hereafter held
by the city, which, consistent with the purposes for which it was dedicated, may be used for the
purpose of installing and maintaining the cable TV system. No reference herein to PUBLIC
RIGHTS -OF -WAY shall be deemed to be a representation or guarantee by the city that its interest
or other right to control the use of the property is sufficient to permit its use for those purposes,
and a licensee shall be deemed to gain only those rights to use as are properly in the city and as
the city may have the right and power to give.PUBLIC RIGHTS -OF -WAY,for the purpose of
this chapter, do not include buildings, parks, poles, or similar facilities, or property owned by or
leased to the city, including by way of example and not limitation, structures in the PUBLIC
RIGHTS -OF -WAY,such as utility poles and light poles.
REMOTE TERMINAL.A "Digital Subscriber Line Access Multiplexer" ("DSLAM") capable
of offering cable TV services to subscribers.
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SCHOOL.Any public educational institution, which is accredited by a nationally recognized
institution, including primary and secondary schools, colleges and universities.
SERVICE INTERRUPTION.The loss of picture or sound on one or more cable channels or
channel equivalents.
SERVICE TIER.A category of cable service or other services provided by a cable operator and
for which a separate rate is charged by the cable operator.
STANDARD DROP.That cable connection which requires no more than 150 -foot drop measured
from the ground block on the subscriber's home or place of business to the nearest active tap on
the cable TV system, (which cannot be more than 4000 feet from a Remote Terminal) involving
only 1 outlet and standard materials and does not involve a wallfish. In addition, a STANDARD
DROP shall exclude custom installation work including specific subscriber requested work that
requires nonstandard inventory or cable routing that requires construction methods exceeding
reasonable underground or aerial work.
STATE.Any state or political subdivision, or agency thereof.
SUBSCRIBER.Any individual or entity legally receiving, for any purpose, cable services of the
licensee's cable TV system.
SYSTEM OUTAGE.A service interruption affecting more than 10 subscribers.
SYSTEM REBUILD or REBUILD.A major improvement or enhancement in the technology or
service capabilities made by the licensee to the cable TV system.
TWO-WAY CAPABILITY.The incorporation in a cable TV system of all appropriate design and
engineering characteristics so that 2 -way transmission, including addressability, over the system
can be implemented with a minimum of expense. The 2 -way capability specifically includes, but
is not limited to, services for internet access and pay -per -view as well as emerging technologies.
USABLE ACTIVATED CHANNELS.Activated channels of a cable TV system, except those
channels whose use for the distribution of broadcast signals would conflict with technical and
safety regulations as determined by the FCC.
VIDEO PROGRAMMING.Programming provided by, or generally considered comparable to
programming provided by, a television broadcast station.
§14-1-4 AUTHORITY TO GRANT LICENSE;LICENSE REQUIRED;NON-
EXCLUSIVE LICENSE.
(A)Pursuant to A.R.S. § 9-505,et seq.,and as amended, the council has the authority to
issue non-exclusive licenses to construct, install, maintain and operate cable TV systems within
the city, and to regulate those cable operations. The council's authority is also based in common
law pursuant to the city's ownership of the fee simple title to the public rights -of -way of the city
as well as its legal interest in easements and licenses granted to it by property owners for the
purposes of municipal use.
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(B)No provision of this chapter shall be deemed or construed to require the granting of a
license.
(C)No person shall construct, install or maintain a cable TV system within the public
rights -of -way in the city, or within any other public property of the city, unless a license agreement
authorizing such use of the public rights -of -way or property is in full force and effect.
(D)All licenses issued by the council shall be non-exclusive, and the council specifically
reserves the right to grant such additional licenses for cable TV systems as the council deems
appropriate.
(E)Any terms and conditions of agreements between licensee and other entities or
municipalities shall not effect any of the terms and conditions including but not limited to the rates,
services and work schedules, set forth in a license agreement negotiated between the city and
licensee.
(F)A license shall not relieve the licensee of any obligation to obtain and comply with any
necessary permit or other forms of authorization required by the city code or other applicable laws
and regulations and shall not convey rights other than as specified in this Chapter 14, or in the
license agreement; no rights shall pass by implication.
(G)Any license shall authorize the licensee to engage in the business of operating a cable
TV system and providing cable service in the City, and may authorize non -cable service in the
City to the extent not prohibited by state and federal law, and to erect, install, construct, prepare,
replace, reconstruct, maintain and keep in any public rights -of -way such poles, wire, cable,
conductors,ducts,conduit,vaults,manholes,amplifiers,appliances,attachments and other
facilities as may be necessary and appurtenant to the cable TV system.In addition, any license
shall authorize the licensee to use and operate such facilities rented or leased from other persons,
including but not limited to any public utility or other licensee holding a valid license or permitted
to do business in the city; provided, however, that:
(1)the safety, functioning, and appearance of the public rights -of -way and the safety of
other persons shall not be adversely affected by the installation, construction, operation or removal
of such facilities necessary for a cable TV system; and
(2) the cost of the installation, construction, operation or removal of such facilities shall be
borne by the licensee.
(H)Nothing in this Chapter 14 shall relieve the licensee of any obligation to obtain any
authorizations or licenses from the city to use the public rights -of -way to provide non -cable
service, or to comply with any city rules, regulations and standards with respect to the use of the
public rights -of -way for the provision of such non -cable service.The provisions of this chapter
14 are not a bar to the imposition of similar, different or additional city imposed rules, regulations
and standards with respect to the use of the public rights -of -way in connection with the provision
of non -cable service. In addition to other rights it has, the city may establish such rules, regulations
and standards related to the provision of such non -cable service, to the extent not prohibited by
state and federal law, as required to protect the public interest.
§ 14-1-5 APPLICATION PROCEDURES.
(A)Any person desiring to construct, install, maintain or operate a cable TV system within
the city who is not lawfully the holder of a license to provide cable service in the city as of the
effective date of this chapter shall submit an application to the council addressed to and filed with
the city clerk. This application shall consist of a letter and proposed license agreement. All
applications and proposals filed with the city clerk shall remain the property of the city and shall
constitute a public record pursuant to state law. The council reserves the right to issue a request
for proposals for cable TV system services at any time. Applications submitted pursuant to a
request for proposals may be returned as non -responsive if they do not comply with all
requirements of the request.
(B)Applications for consent to transfer a license or an interest in a license must conform
to the requirements of Vol. I, § 14-1-12, while applications for renewal, must conform to Vol. I, §
14-1-11.
(C)An application for modification of a license agreement must at a minimum, include the
following information:
(1) The specific modification requested;
(2) The justification for the requested modification, including the impact of the requested
modification on subscribers and others, and the impact on the applicant if the modification is not
approved;
(3) A statement as to whether the modification sought is pursuant to 47 U.S.C. § 545, and,
if so, a demonstration that the requested modification meets the legal standards of that section; and
(4) Any other information necessary for the council to make a determination.
(D)To be acceptable for filing, an application must be submitted with any required filing
fee, be properly executed on the forms prescribed by the council, and contain the information
required by any required application form, this chapter and meet the requirements of any applicable
request for proposals.
§ 14-1-6 STANDARDS FOR GRANTING OR DENYING LICENSE APPLICATIONS.
(A)All applications and proposals received shall be placed in a public file with the city
clerk. The council shall publish notice of a public hearing date when the council will consider an
application and the proposal in a newspaper of general circulation once a week for two consecutive
weeks, the first notice being published at least fourteen (14) days before the public hearing takes
place.The notice shall indicate the following:
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(1) The proposed service or changes in service
(2) Proposed changes in ownership
(3) Where the application may be viewed, in person or online
(4) The date and location of the public hearing
(B)Notice of the hearing shall be published and held in accordance with the provision of
A.R.S. § 9-507(B). All interested parties shall be afforded a reasonable opportunity to be heard.
(C)The council shall give full consideration to each application and proposal.The
following factors may be deemed appropriate and shall be considered:
(1) The financial qualifications of the applicant and its ability to construct and operate the
proposed system
(2) The need for and quality of the service proposed, including rates to subscribers, whether
or not rates are to be regulated
(3) The technical, legal and character qualifications of the applicant, including applicant's
willingness to abide by the limitations of this chapter
(4) Technical and performance adequacy of the proposed system design,plant and
equipment, including any specific knowledge or experience the Council may have with the
applicant
(5) Where an applicant proposes to overbuild an existing cable system, the economic and
technical feasibility of multiple cable TV systems, the impact on the existing licensee's system and
the public interest if the application were to be granted
(6) All other factors which may affect the public interest
§ 14-1-7 LICENSE AGREEMENT REQUIRED.
(A)If council approves the application and proposal, the terms shall be set forth in a written
license agreement which shall also be considered at the same public hearing.The license
agreement shall incorporate all terms and provisions of this chapter.The licensee shall expressly
and specifically agree to accept and be bound by the terms of this chapter.
(B)A license agreement shall have the minimum following characteristics, but the city and
licensee may negotiate additional terms and conditions consistent with Vol. I, §14-1-4,state and
federal law:
(1) It authorizes use of the public rights -of -way for installing cables, wires, lines and other
facilities to operate a cable TV system, but does not expressly or implicitly authorize the licensee
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to provide service to, or install cable, wires, lines or any other equipment or facilities upon property
without owner consent (except for compatible easements or rights -of -way pursuant to 47 U.S.C. §
541(a)(2)), or to use publicly or privately owned utility poles or conduits without a separate
agreement with the owners. It also authorizes the licensee to so use, operate and provide similar
facilities or properties rented, licensed or leased from other persons, firms or corporations,
including but not limited to, any public utility or other licensee licensed or permitted to do business
in the city; provided, however, that neither the licensee nor the third party shall be relieved of any
regulation or obligation as to its use of the facilities in the public rights -of -way.
(2) It is subject to the paramount right of use of the public rights -of -way by the council and
the public for public purposes. The council reserves the right to authorize use of public rights -of-
way to other persons as it determines appropriate.
(3) It is nonexclusive and will not expressly or implicitly preclude the issuance of other
licenses to operate cable systems within the city.
(4) It conveys no property right to the licensee or right to renewal other than as may be
required by state or federal law, and the agreement is not a franchise.
(5) It constitutes a legally binding contract between the licensee and the city once it is
approved by the Council and executed by both parties. A licensee contractually commits itself to
comply with the terms, conditions and provisions of the license agreement and with all applicable
laws, ordinances, codes, rules, regulations and orders.
(6) In no case shall the term of any license agreement exceed 15 years commencing on its
effective date. A greater period of time is prohibited.
(7) A licensee shall execute a hold harmless agreement as part of the license agreement
which shall set forth the obligation of the licensee over and above the insurance requirements
contained in the license and this chapter.
(8) A licensee shall be subject to all laws, rules and regulations of the State of Arizona and
the United States Government.
(9) Any of the provisions of this chapter may be amended by the council at any time. This
chapter and the amended provisions shall be applicable to all existing license agreements;
provided, however, that this chapter and the amended provisions shall not be applicable to an
existing agreement where it would contravene a contractual right of the licensee under the license
agreement.
(10) All notices and communications from a licensee to the council pursuant to this chapter
or a license agreement shall be sent to the city manager unless the licensee is otherwise directed.
(11) Insofar as it is not inconsistent with or otherwise preempted by federal or state
regulations, the license agreement shall grant the right and privilege to the licensee to provide non-
cable communications services. Insofar as it is not inconsistent with or otherwise preempted by
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federal or state regulations,the council shall retain all authority to regulate non -cable
telecommunication services to the extent necessary to protect the public interest and to ensure
compliance with all provisions of this chapter.
§ 14-1-8 OPERATING REQUIREMENTS.
A licensee shall conform to the following minimum standards relative to the construction,
operation and maintenance of a cable TV system in the city. It is not the intent of this article to
prevent any licensee from providing more than the required minimum to meet the standards listed
below.
(A)Rights of individuals, subscribers and users.
(1) A cable TV system shall be operated in a manner consistent with the principles of
fairness and equal accessibility of facilities, channels, studios and other services to all residents
and other entities having a legitimate use of the system. A licensee shall not discriminate in terms
of rates, terms of service or extension of service on the basis of age, race, creed, sex, religion,
national origin or marital status. Nor shall a licensee fail to extend service to any part of the city
on the basis of the income of the residents. This provision shall not restrict licensee's ability to
provide senior citizen, other similar discounts, or seasonal service.
(2) A licensee shall maintain a business office open during normal business hours with
listed local or toll -free telephone numbers to allow reasonable access by subscribers and members
of the public. The office shall be conveniently and centrally located but shall be no further than
fifteen (15) miles from Meridian Road where such road marks the city's western boundary. When
the office is closed, an answering machine or service, capable of receiving complaints and inquiries
must be employed. The office shall be open to the public between the hours of 9:00 a.m. to 5:00
p.m. Mondays through Fridays, and 9:00 a.m. to 12:00 noon on Saturdays, during such hours
licensee will provide staff to field all subscriber questions, complaints, billing procedures and
exchange of converter boxes.
(3) Licensee shall maintain a written record listing date of all complaints, identifying the
subscriber or citizen, describing the nature of the complaint and when and what action has been
taken by the licensee, if any, in response theretot.Such record shall be kept at the licensee's office
and, subject to subscriber privacy laws, shall be available for inspection during normal business
hours without further notice of demand of the city manager. A summary of such records must be
retained for not less than 1 year. The licensee shall notify each subscriber at the time of initial
subscription of the procedure for reporting and resolving complaints.
(4) A licensee shall establish procedures for the investigation and resolution of all
complaints including, but not limited to, those regarding the quality of service and equipment
malfunction. A copy of such procedures shall be provided to the city manager and/or council upon
request.
(5) A licensee must provide each subscriber at the time cable service is installed, the
following:
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(a) Written instructions for placing a service call, filing a complaint or requesting an
adjustment, including the phone number and address of licensee's office
(b) The telephone number of the city office responsible for administration of the cable
license
(c) A schedule of rates and charges for all available services
(d) Copies of the service contract, including disconnect and reconnect procedures and
charges
(e) A subscriber handbook and upon request any other written policies applicable to
subscribers
(6) A licensee shall establish and conform to the following policy regarding refunds to
subscribers and users:
(a) If the licensee collects a deposit or advance charge on any service or equipment
requested by a subscriber or user, the licensee shall provide such service or equipment within 30
days of the collection of the deposit or charge or it shall refund the deposit or charge within 5 days
thereafter upon request of the subscriber. The subscriber must be advised of this right of refund at
the time the order is placed; and
(b)If any subscriber or user terminates any monthly service during a period of time for
which the subscriber or user has made an annual or other payment in advance, the appropriate pro
rata portion of the payment shall be refunded by the licensee.
(7) The following requirements shall apply to disconnections:
(a) There shall be no charge for total disconnection of cable service unless the charge
was disclosed at the time the subscriber ordered service. All cable communications equipment
shall be removed within a reasonable time from a subscriber's property at the subscriber's request,
such time not to exceed 30 days from the date of the request; and
(b) If any subscriber fails to pay a properly due monthly subscriber's fee or other
charge, the licensee may disconnect the subscriber's service outlet; provided, however, that the
disconnection shall not be effected until 30 days after the due date of the charges and shall include
a prior written notice to the subscriber of the intent to disconnect. After disconnection, upon
payment in full of all proper charges or fees, including the payment of any reconnection charge,
the licensee shall promptly reinstate the service. The licensee may require a 60 day prepayment of
services as a condition to reconnection.
(8) Other than testing of the EAS system, a licensee may interrupt service on the cable TV
system only for good cause and for the shortest time possible. No prior notice shall be required for
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the performance of system maintenance work requiring a maximum of 1 hour between the hours
of 2:00 a.m. and 6:00 a.m.
(9) A licensee shall at all times comply with subscriber privacy provisions of 47 U.S.C. §
551.
(10)No equipment shall be installed by the licensee for subscriber service without first
securing a service request from the owner or resident of any private property involved, except in
public utility easements.
(11)A licensee shall not originate or knowingly permit subliminal transmission at any
time for any purpose whatsoever.
(12)A licensee shall make available leased access channels as required under 47 U.S.C.
§ 532.
(13)A licensee shall strictly adhere to the equal employment opportunity requirements
of the FCC, 47 U.S.C. § 554, state statutes and local regulations, and as the same may be amended
from time to time.
(B)Cable system construction timetable.
(1) A cable system shall be constructed in accordance with the provision of the license
agreement.
(2) It is the policy of the council to require construction of a cable system designed to serve
subscribers in an area licensed by the council as rapidly and expeditiously as possible. The licensee
shall immediately upon granting of the license agreement diligently pursue and obtain all necessary
permits from the appropriate governmental agencies, utility companies and others as necessary to
comply with the provision of this chapter and other federal, state and city laws, codes and
resolutions.
(3) The city manager may require a licensee to report on construction progress and provide
information showing specifically whether the construction schedule is being met and the reasons
for the delay. The city manager shall determine the format to be used for the report and the
frequency of reporting.
(4) Where appropriate and reasonable, a licensee shall schedule construction activities to
coordinate with any city construction on streets so as to avoid unnecessary inconvenience to the
public.
(C)Line extension policy.A licensee shall extend its cable TV system in accordance with
the provisions of its license agreement.
(1) Upon reasonable request for service by any person located within any area of the city
that meets density requirements of division (C)(2) below, the licensee shall, within 30 days, furnish
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the requested service to such person, unless prevented from providing the service due to factors
outside licensee's control, such as permit restrictions, private easement considerations and the like.
If the service has not been implemented within 60 days of the request, the city manager may impose
liquidated damages for each day thereafter.
(2) The licensee must extend and make cable service available to every unserved living
unit within 4,000 feet of a licensee's remote terminal or any area of the city reaching the minimum
density of at least 25 dwelling units per mile of plant as measured from licensee's nearest activated
feeder line, whether the existing plant is aerial or underground, except that the licensee shall not
be required to install cable where another authorized licensee has already done so.
(3) The licensee shall prevent unnecessary damage to streets and property by installing
underground cable or conduit in all new subdivisions of 5 or more dwelling units within the license
area at the same time, in the same trench as telephone, electric or similar services are installed.
(4) In new residential developments in which all the electric power and telephone utilities
are underground, the city may, in its sole discretion, require that the following procedure apply
with respect to access to and utilization of underground easements:
(a) The developer shall be responsible for contacting and surveying all licensees to
ascertain which licensees desire (or, pursuant to the terms and provisions of this chapter and any
license agreement, may be required) to provide cable service to that development. The developer
may establish a reasonable deadline to receive responses from licensees. The final development
map shall indicate the licensees which have agreed to serve the development.
(b) If 1 or more licensees wish to provide service within all or part of the development,
they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis. If
fewer than 2 licensees indicate interest, the developer shall provide conduit to accommodate a
minimum of 2 sets of cable television cables and dedicate to the city any initially unoccupied
conduit.
(c) The developer shall provide at least 10 business days notice of the date that utility
trenches will be open to the licensees that have agreed to serve the development. When the trenches
are open, such licensees shall have 2 business days to begin the installation of their cables, and 5
business days after beginning installation to complete installation.
(d) The final development map shall not be approved until the developer submits
evidence that:
1.It has notified each licensee that underground utility trenches are to open as of
an estimated date, and that each licensee will be allowed access to such trenches, including
trenches from proposed streets to individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
2.It has received a written notification from each licensee that the licensee intends
to install its facilities during the open trench period on the specified terms and conditions, or such
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other terms and conditions as are mutually agreeable to the developer and licensee, or has received
no reply from a licensee within 10 days after its notification to such licensee, in which case the
licensee will be deemed to have waived its opportunity to install facilities during the open trench
period.
(e) Sharing the joint utilities trench shall be subject to compliance with state regulatory
agency and utility standards. If the compliance is not possible, the developer shall provide a
separate trench for the cable television cables, with the entire cost shared among the participating
licensee(s).With the concurrence of the developer, the affected utilities and the licensee's
alternative installation procedures, such as the use of deeper trenches, may be utilized, subject to
the requirements of applicable laws.
(f) Any licensee wishing to serve an area where the trenches have been closed shall be
responsible for its own trenching and associated costs and shall repair all property to the condition
which existed prior to such trenching.
(5) The licensee must extend and make cable service available to any resident requesting
connection within the licensee's authorized license area at the regular installation charge provided
that division (C)(2) above is met.
(D)Construction and technical standards.The following general requirements, which are
not to be interpreted as imposing standards in excess of FCC imposed limits, apply to all licensees.
(1) In those areas and portions of the license area where the transmission and distribution
facilities of the telephone company and the electric company are underground or later placed
underground, the licensee shall likewise install its transmission facilities underground.
(2) In areas where facilities do not have to be underground, a licensee shall not erect any
new poles along any street or public rights -of -way of the city except as may be reasonably required
or necessary to fill small gaps in the existing aerial utility systems and only then with the advance
approval of the city manager.
(3) All television signals transmitted on a cable TV system must include any closed
captioning information for the hearing impaired. Antennas, supporting structures and outside plant
used in the system must be designed to comply with the recommendations of the Electronics
Industries Association and applicable federal and local regulations on tower structures and outside
plant.
(4) The licensee must perform at its expense any proof of performance tests designed to
demonstrate compliance with the requirements of this chapter, the license agreement and the FCC.
The city manager may require periodic proof of performance tests to be performed at the expense
of the licensee. Upon request, the licensee must provide the test results promptly to the city
manager.
(5) The licensee must advise the city manager a minimum of 30 days in advance when a
proof of performance test pursuant to 47 C.F.R. 76.605(a)(4) (or subsequently renumbered) is
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scheduled. The licensee must also advise the city manager of its anticipated schedule for any other
FCC required testing a minimum of 30 days in advance of the testing.
(6) A licensee must not design, install or operate its facilities in a manner that will interfere
with the signals of any FCC licensed service, including but not limited to television, radio, satellite,
2 -way and paging services, the electrical or telephone system located in any portion of the city,
the cable TV system of another licensee, or individual or master antennas used for receiving
amateur radio television, radio or other FCC authorized signals.
(7) The system shall meet or exceed FCC requirements as set forth in 47 C.F.R. 76(K). If
federal law is subsequently amended or minimum technical specifications are no longer mandated
by the FCC, the technical specifications in effect at the time of adoption of the license agreement
shall govern.
(E)Maintenance specifications.
(1) The licensee shall construct, install and maintain its cable TV system in an orderly and
workmanlike manner. The safety of the general public, the licensee's employees, the employees of
the utility companies and all nearby property owners shall be a primary concern.
(2) All cables are to be installed, to the maximum extent possible, parallel with electric and
telephone distribution facilities. Licensee's multiple -cable configurations shall be arranged in
parallel and bundled to the maximum extent possible.
(3) As between licensee and the city,the licensee shall be solely and completely
responsible for the actions taken by any contractor or other agent employed to construct or install
the licensee's facilities within the public rights -of -way as well as on other public or private
property.
(4) A licensee shall have available at all hours personnel capable of responding to
emergency conditions requiring immediate repair to its cable facilities. The licensee shall be a
member of the Blue Stake Center, or otherwise comply with state underground law, for its service
area.
(5) In the event that licensee property or the facilities and equipment of unauthorized cable
communication providers has been installed in a public rights -of -way without complying with the
requirements of this chapter, or the license has been terminated, revoked or expired, or the use of
any licensee property is discontinued for any reason for a continuous period of 2 months, licensee
or any unauthorized cable communication provider, shall at its sole expense on the demand of the
city manager remove promptly from the public rights -of -way all licensee or unauthorized cable
communication provider property other than that which the city manager may permit to be
abandoned in place absent any rights licensee has under state and federal law. Upon such removal
of subject property, licensee or unauthorized cable communication provider shall promptly restore
the public rights -of -way or other public places from which the subject property was removed to a
condition as near as possible to its prior condition. Subject property no longer in service may be
left in place with the approval of and in a manner prescribed by the city manager. Upon
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abandonment of the property in place, licensee or unauthorized cable communication provider
shall deliver to the city manager an instrument transferring ownership of the subject abandoned
property to the city. Any cost arising from compliance with this provision shall be borne by the
licensee or unauthorized cable communication provider.
(F)Use ofpublic rights -of -way.
(1) A licensee must utilize, with the owner's permission, existing poles, conduits or such
other facilities whenever possible.
(2) All transmission lines and other equipment must be installed and located to minimize
interference with the rights and reasonable convenience of public and private property owners.
The council reserves the right to issue the reasonable rules and regulations concerning the
installation and maintenance of cable TV systems in the public rights -of -way, as may be consistent
with this chapter, state and federal law. In addition, licensee shall become a member of the Blue
Stake Center, or its functional equivalent, within 30 days following the effective date of this
agreement.
(3) The Licensee shall have at all times up-to-date route maps showing trunk and
distribution lines.Licensee shall make all such maps available for review by the appropriate city
personnel and shall be provided on at least a yearly basis. Licensee shall, in addition to the paper
maps, also provide the city with updated maps in a suitable electronic format determined by the
city at least every 3 months if changes to the cable TV system have occurred during the 3 -month
period.
(4) All construction practices shall be in accordance with all applicable sections of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq.,as amended, as well as
other applicable laws.
(5) A licensee must remove, replace or modify at its own expense, any of its facilities
within any public rights -of -way or any federally patented easement when required to do so by the
city manager to allow the city to change, maintain, repair,improve or eliminate a public
thoroughfare.Nothing in this article shall prevent licensee from seeking and obtaining
reimbursement from sources other than the city.
(6) In public rights -of -way where electrical and telephone utility wiring are located
underground, either at the time of initial construction or subsequently, the cable must also be
located underground at the licensee's expense. Between the public right-of-way and subscriber's
residence, the cable must be located underground if both electrical and telephone utility wiring are
located underground. If either electric or telephone are aerial, licensee may install aerial cable
except where a property owner requests underground installation at the sole cost of the licensee.
(7) A licensee must obtain any required permits before doing any excavation or causing
disturbance to public thoroughfares or private property as a result of its construction or operations
and must restore to their former condition such private property and public thoroughfares, the latter
in a manner consistent with all applicable rules, regulations and resolutions relative to construction,
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repair or maintenance in public rights -of -way. If such restoration is not satisfactorily performed
within a reasonable time in the opinion of the city manager, the city manager may, after prior
notice to licensee, cause the repairs to be made at the expense of the licensee. The city manager
may inspect ongoing construction and require a licensee to halt construction where the city
manager finds the construction to be in non-compliance with the requirements of this chapter, the
license agreement or a permit.
(8) Prior to commencement of underground construction, a licensee must have complied
with the following requirements:
(a) Have received a permit from the city for construction on public property or public
rights -of -way; and
(b) Have complied with Blue Stake requirements in the area of construction;
(9) At the request of any person holding a valid building moving permit and upon sufficient
notice, the licensee must temporarily raise, lower or cut its wires as necessary to facilitate such
move upon not less than 72 hours advance notice. The direct expense of the temporary move must
be paid by the permit holder, and the licensee may require payment in advance.
(G)System services and capability.
(1) The following minimum requirements for facilities and services apply to licenses. The
council may require that a licensee exceed these minimum requirements.
(a) Except as provided in a negotiated license agreement, a cable TV system must have
a minimum analog capacity of 82 video channels available for immediate or potential use. Two-
way capability shall be designed into the system. Upon request, this minimum channel capacity
may be modified by the council, provided the licensee demonstrates that it would be commercially
impracticable to comply with the requirement. A licensee shall have the burden of demonstrating,
by clear and convincing evidence, that compliance with the minimum channel capacity would be
commercially impracticable for its Apache Junction cable TV system.
(b) Standard installation and basic service to public buildings may be required without
charge as set forth in the license agreement. Licensee may be required to make available, 1 service
outlet to a conveniently accessible point in each city building or other facility or building located
within the license area and used for public purposes as may be designated by the city manager.
The installation charge to each occupant, if any, would not exceed licensee's direct cost (time and
material).
(c) A licensee must design its system to allow the city manager to interrupt audio
portions of the cable service in an emergency to deliver information to subscribers.
(d)licensee must provide standby power for the headend so as to be able to operate
some channels during a power outage for a minimum of 48 hours or as provided for in the license
agreement.
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(2) The following requirements apply to PEG access channels:
(a) PEG channel capacity shall be made available to city and its designated PEG
providers without charge within one hundred eighty (180) days after Licensee begins offering
cable service in the city, licensee will provide the city with up to two (2) public, educational, and
governmental access channels ("PEG channels") as determined in the city's sole discretion.The
two PEG channels shall be on the basic cable service tier of the system and two other channels of
non-commercial government programming, at least one of which may be programmed by the
federal government in the digital programming tier of the system, as provided for in A.R.S. § 9-
506(D)(1). Channels shall be reserved for this capacity with a logo approved by the city. All costs
associated with the obligations in this section to commence PEG signals at the point of origination
back to the headend and transmitted to subscribers with the same quality, functionality and
identification as other channels on the system, shall be borne by licensee.Except as provided in
this chapter. Licensee shall have no responsibility for the management, operation or administration
of PEG channels and shall have no editorial control pursuant to A.R.S. § 9-506(D)(1).
(b) PEG channels located on the basic cable service tier shall be grouped together and
located on the system in reasonable proximity to other commercial video channels on the system.
Licensee will deliver the PEG channels to subscribers at the same visual and audio quality, same
functionality and at the same bit rate as licensee delivers the primary signal of local television
network broadcast stations on its cable TV system ("Network TV"), such that the PEG channels
are indistinguishable from Network TV in video and audio quality and functionality.Should
licensee convert the basic cable service tier to digital format, subscribers must be able to continue
to receive PEG channels free of charge except for the standard rate applicable for the basic cable
service tier.PEG channels must be receivable by subscribers without special expense, other than
the expense required to receive basic cable service or digital service, as applicable. Licensee must
maintain PEG channels consistent with FCC technical standards.If no FCC standards for PEG
channels exist, licensee must maintain PEG channels using FCC technical standards for local over-
the -air television channels.The city recognizes that licensee is unable to improve the technical
quality of PEG channels but licensee must not degrade the technical quality once it is received by
licensee.Licensee agrees not to encrypt PEG channels any differently than other commercial
channels available on the system unless the city and licensee mutually agree in writing to a non-
traditional format that is not similar to those of broadcast channels.
(c) Upon 180 day advance written notice to licensee, the city shall have the right to
require that licensee carry one (1) of the PEG channels in both SD and HD format consistent with
the manner and tier placement in which licensee delivers the primary signal of Network TV. City
shall have the sole discretion to determine which of its PEG channels migrate to HD without the
addition of mandates or content restrictions.HD resolution will be the same resolution used in
licensee's HD tier, such that the PEG HD channels are indistinguishable from Network TV in
video and audio quality and functionality.Licensee will continue to carry the city PEG channels
in SD format in addition to HD format as long as there are SD channels in licensee's basic channel
lineup.
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(d) Licensee must permit the city to operate a production studio (the "Studio") located
in city buildings at a site determined by the city. Licensee, at its sole cost, will design build and
maintain all PEG upstream feeds, connections and distribution facilities between its video channel
aggregation point and the Studio in a manner so that no degradation in signal quality or content as
originated by city shall occur.Licensee must furnish a new state-of-the-art digital fiber optic
transmission system consisting of transmitters and receivers. Transmitters and receivers must be
of the type consistent and compatible with current industry standards for the application of
continuous conversion of broadcast quality audio and video to date for transport over fiber optic
cable. Licensee must interconnect at its sole cost the Studio to the headend or other main
distribution point of the system for distribution of the programming of the PEG channels with the
above -mentioned fiber optic cable to a point designated by the city. At the request of the city,
licensee at licensee's cost shall provide timely and reliable advice regarding acquisition,
maintenance and use of any Studio and production equipment that may be obtained for that purpose
by the city.
(H)System physical design process.Licensee shall provide city with detailed design maps
defining the geographical and technical physical design of the system, showing all areas of the city
to be served by each hub, as well as the construction and energization schedule by hub area for the
upgraded systems. Maps shall be provided at least 60 days prior to the release for construction.
The city may review the design and accompanying maps and submit comments to licensee for
review within 15 days of the date each map is provided to the city for review. Licensee shall
integrate and implement city's comments into the construction plan.
(I)Interconnection.A licensee shall interconnect its cable TV system with other systems
located in the city, in nearby cities, or counties upon the request of the council, where the Apache
Junction cable TV system and the adjacent system are both owned by the same cable operator,
where the cable operator's share a common controlling parent or affiliate or where economically
feasible.
(J)Local broadcast channels.Each cable TV system shall carry as part of the basic local
channels broadcast in its service area as required and defined in FCC regulations as amended.
(K)Technology review and technical amendments.
(1) The city and licensee shall meet to discuss changes in cable TV system laws,
regulations, technology,competing services, the needs of the community and other factors
impacting cable systems. As a result of these discussions, this license may be modified by the city
and the licensee to respond to the change in laws, regulations, technology, competing services, the
needs of the community or other factors impacting cable TV systems.
(2) If any of the following conditions occur, and upon written request of either licensee or
city, the city manager and licensee may agree to meet and discuss in good faith the terms of a
mutually agreeable license amendment:
(a) Cable service similar to cable service offered by licensee is provided by any entity
using the public rights -of -way, which is not subject to similar licensing requirements of the city.
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(b) The cable act is amended to allow licensee to provide intrastate or interstate
telecommunication and any regional communications company to provide cable service.
(c) Any other significant event occurs, including but not limited to a final non-
appealable order or judgment by a court of competent jurisdiction, which either licensee or city
believes may impact the current terms and conditions of the license.
(d) The purpose of the meeting and discussion is to use best efforts to reach mutually
acceptable agreement for recommendation to the council for proposed council action within ninety
days of such written request, on how to amend the license to relieve the city or the licensee from
any commercial impracticability, which arises from the condition in question. This provision shall
not require that the license be amended, however it is intended to facilitate a process whereby the
parties may reach a mutually acceptable agreement.
(L)Conditions of public rights -of -way occupancy.
(1) General construction practices.Licensee's construction practices shall be in
accordance with all applicable federal, state and local laws, rules and regulations, including but
not limited to the federal Occupational Safety & Health Administration Regulations, as adopted
by the State of Arizona. All installation of electronic equipment shall be of a permanent nature,
durable and installed in accordance with the provisions of applicable codes.
(2)General operational practices.
(a) The construction, operation and maintenance of licensee's system, including but not
limited to the headend and distribution network, towers, house connections, structures, poles, wire,
cable, coaxial cable, fixtures and practices, shall be performed by appropriately licensed and
qualified maintenance and construction personnel.
(b) The system shall be kept in a safe and suitable condition and shall be in compliance
with, maintained, repaired and constructed in accordance with the applicable standards, procedures
and practices contained in the National Electric Code and the National Electrical and Safety Code,
as those codes may, from time to time, be amended; and shall additionally be maintained so as not
to endanger or interfere with improvements the city may deem necessary, or to unlawfully interfere
in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct
pedestrian or vehicular traffic on public rights -of -way.
(3)Safety.Licensee shall at all times employ the standard of care attendant to the risks
involved and shall install and maintain in use commonly accepted methods and devices for
preventing failure and accidents which are likely to cause damage, injury or nuisance to the public,
including public employees.
(4)Testing of RF Radiation Cumulative Leakage Index ("CLI").Licensee shall at all times
comply and perform all testing in accordance with FCC rules and regulations. Licensee shall have
the right to discontinue its service to any premises where RF radiation which licensee cannot
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control is originating from inside the premises. Once a year, licensee shall provide notice to the
city of its schedule of RF leakage monitoring and testing. Upon the city's request, licensee shall
furnish the city with copies of the monitoring and testing data and results following licensee's
performance of scheduled RF leakage monitoring and testing.
(5)Underground.In all areas of the city where the cables, wires and other like facilities
(electric and telephone) of public utilities exist underground, or are required by the city to be placed
underground, licensee shall also place its cables, wires or other facilities underground.
(6)Pole attachments.Licensee shall use the poles and other properties of the city pursuant
to any pole attachment agreements or public utility companies operating within the city, and
licensee shall not construct, erect or maintain any support poles or other properties in the public
rights -of -way within the city for the operation of its system except upon the express permission of
the city, which consent shall not be unreasonably withheld upon a showing of need by licensee. In
all areas of the city where the cables, wires and other facilities of licensee are attached to any city-
owned utility poles, licensee shall maintain those attachments subject to payment to the city in an
amount determined by written agreement between the city and licensee.
(M)Placement offacilities.
(1) This license agreement does not alter the city's governmental power to establish
regulations of general applicability on the erection, construction or installation of any facilities
which may be constructed, maintained or operated by a person authorized to use and occupy the
streets and other public rights -of -way, including a cable TV system operator.
(2) Licensee shall comply with those requirements, including obtaining permits prior to
excavation and providing maps showing where construction or excavation is planned, and upon
completion, providing maps showing actual construction if any changes are authorized.
(3) The city retains the right to designate where licensee may place its facilities within the
streets and other public rights -of -way.
(N)Relocation for public improvements;request of the city;governmental powers.
Whenever because of public necessity or the welfare of the public generally, the city shall elect to
change the grade of any street, or to sell or vacate any street, easement, or other public rights -of-
way, or to construct or reconstruct any water lines, sanitary or storm sewers, watercourses,
drainage ditches, conduits, playgrounds, traffic control devices or other public improvements,
licensee shall, after 30 days written request from the city, remove and relocate its poles, wires,
cable, conduits and other fixtures at its own expense.
(0)Transaction privilege taxes.
(1) Licensee shall obtain a city business license, which will be the mechanism for assessing
all transaction privilege taxes.
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(2) Licensee shall pay all required taxes in a timely manner and shall allow access to its
sales and construction records upon reasonable request of the city at the centrally located business
office during regular business hours.
(3) If audited, licensee shall comply with all requests of the city, and shall pay all
applicable arrearages and or fees.
(4) Failure to pay the assessed tax or failure to make a timely appeal of such assessment
pursuant to the city tax code is considered a violation of the terms and conditions of the license
agreement, which may result in liquidated damages set forth herein.
(5) A licensee must obtain a transaction privilege tax license to conduct business in the
corporate limits of the city.In addition, licensee shall notify the city clerk of any and all
construction agreements it has with any independent contractors and their subcontractors for any
work to be performed within the city, who shall also be licensed in the State of Arizona and shall
also obtain a transaction privilege tax license to conduct business within the city limits, Licensee
is responsible for ensuring such tax license is obtained by its independent contractor and
subcontractors.
§14-1-9 FEES,BONDS,LETTERS OF CREDIT, LIQUIDATED DAMAGES AND
APPEALS.
(A)Application fee.Each application for a license to be granted under the authority of this
chapter shall be accompanied by a non-refundable filing fee in the amount specified below, by
certified or cashier's check made payable to the "City of Apache Junction":
(1) For an initial license or renewal: $2,500;
(a) An amount determined by the City to be used to offset all direct, reasonable costs
incurred by the City in granting the license not defrayed from fees forthcoming from the provisions
of subsection A of this section.
(2) For consent to transfer or change ownership: $2,000; and
(3) For license modifications $2,500.
(B)License fee.
(1) In consideration of the fact the public right-of-ways of the city will be used by a licensee
in the operation of its cable system within the boundaries of the city and the public rights -of -way
are valuable properties acquired and maintained by the city at great expense to its taxpayers, and
in consideration of the costs incurred by the city in regulating and administering each cable license,
the licensee shall pay annually to the city 5% of the licensee's gross revenue.
(2) This payment shall be computed quarterly, for the preceding quarter, as of March 31,
June 30, September 30 and December 31 of each year. Each quarterly payment shall be due and
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payable no later than 30 days after the relevant computation date.Each payment shall be
accompanied by a financial report showing in detail the gross revenues of the licensee related to
that quarter.
(3) Except as provided in division (B)(8) below and subject to 47 U.S.C. § 542, the
payment required pursuant to this article shall be in addition to any other tax or payment owed to
the city pursuant to any other applicable ordinance or chapter of the city code, regulation or law of
the county, state or federal government.
(4) A license fee not received in full by the city within 30 days of its due date shall be
deemed delinquent and subject to a late fee of 2% of the amount overdue plus interest at the prime
rate as reported in the Wall Street Journal.
(5) Where the licensee fee is based on gross revenues, the licensee shall file, with each
license payment, a statement of the gross revenues for the period on which the fees are based. Such
a licensee must file within 3 months of the end of its fiscal year a statement of gross revenues for
the preceding year, which is either audited or certified as accurate by an officer of the licensee.
Any payment of license fees to adjust for a shortfall in the quarterly payments for the preceding
year must be made not later than the filing date for the audited annual statement of gross revenues.
Adjustments for any overpayment will be credited to subsequent quarterly payments. Interest and
late charges (as specified above) will not be imposed for any payment necessary as a result of the
yearly adjustment if the payment to correct the shortfall does not exceed 10% of the total payments
made during the preceding year. In the event the payment exceeds 10%, the licensee is liable for
interest and late charges for the entire amount due.
(6) The city manager shall have the right, upon reasonable notice, to inspect or audit during
normal business hours a licensee's records showing the gross revenues and other relevant
underlying data and information. Upon examination of the information, the city manager has the
right to recompute any and all amounts paid under a license. Any additional amounts due the city
as a result of an audit shall be paid by the licensee within 30 days following written notice to the
licensee by the council, which shall include a copy of the inspection or audit report. In the event
that an inspection or audit results in additional monies owed the city in excess of 5% of the total
paid, the licensee shall bear the total cost of the audit, and late charges and interest on the additional
amount due.
(7) No acceptance by the council of any payment shall be construed as an accord that the
amount paid is in fact the correct amount nor shall such acceptance of payment be construed as a
release of any claim the council may have.
(8) There shall be allowed as an offset against the license fee due under this article any
amounts licensee paid to the city during the prior quarter in privilege license (sales) taxes;
provided, however, that there shall be no offset to the extent that licensee made payments of
privilege license (sales) taxes of any gross income (within the meaning of the privilege license
[sales] tax ordinance) which is not included in gross revenues under this chapter. The license shall
provide for suitable procedures and methods for audit of this offset.
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(C)Performance bond and irrevocable letter of credit generally.Licensee shall obtain and
maintain during the entire term of the license,and any renewal or extensions thereof,a
performance bond in the amount of $100,000 to ensure the licensee's faithful performance of its
obligations under the cable law and this agreement, as well as an irrevocable letter of credit in the
amount of $25,000, both being provided to the city attorney within 30 days after execution of the
license agreement and prior to any construction work in the public rights -of -way.
(D)Components ofperformance bond.The performance bond shall provide the following:
(1) There shall be recoverable by the city jointly and severally from the principal and
surety, any and all fines and penalties due to the city, and any and all damages, losses, costs and
expenses suffered or incurred by the city resulting from failure of the licensee after notice and
opportunity to cure to faithfully comply with:
(a) The material provisions of this agreement, the cable law and other applicable law
(b) All orders, permits and directives of the city
(c) Payment of fees due to the city
(d) Payment of any claims or liens due to the city
(2) (a) The losses, costs and expenses shall include but not be limited to attorney fees and
other associated expenses.
(b) The total amount of the performance bond shall be forfeited in favor of the city in
the event the licensee abandons the system at any time during the term of the license or extension
period.
(3) The performance bond shall be issued by a surety licensed to do business in the State
of Arizona and with an A+9 or better rating for financial conditions and financial performance in
Best's Key Rating Guide, Property/Casualty Edition, and shall be in a form approved by the city
with the following endorsement:
"This bond may not be canceled or allowed to lapse, until 60 days after receipt by the city
by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent
to cancel or not renew."
(4) At such time as 95% of planned construction in the city is complete, as specified in
license agreement, the council may, at licensee's request, reduce or eliminate the performance bond
requirement.
(5) The rights reserved by the Council with respect to the bonds required are in addition to
all other rights and remedies the Council may have under this chapter, the license agreement or
any other law.
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(E)Irrevocable letter of credit.Licensee shall provide an irrevocable letter of credit in the
amount of $25,000 from a financial institution licensed to do business in the State of Arizona to
secure its performance of all its obligations under this agreement and the cable law.
(1) (a) The form and content of the letter shall be approved by the city attorney and contain
the following endorsements:
"This letter of credit may not be canceled or allowed to lapse until 30 days after receipt by
the city manager, by certified mail, return receipt requested, of a written notice from the issuer of
the letter of credit of its intent to cancel or not to renew."
(b) In the event the letter of credit is insufficient to pay the city for any compensation,
damages, penalties, costs or expenses owed it pursuant to this chapter or the license agreement,
the licensee's performance bond may be drawn upon by the city manager for any amount due the
city over and above the amount of the letter of credit.
(2) The rights reserved to the city manager with respect to the letter of credit are in addition
to all other rights it may have under this chapter, the license agreement and any other law.
(3) Failure to maintain the letter of credit as required shall constitute a violation of the
provisions of this chapter.
(4) The city may withdraw an appropriate amount from such funds including interest and
penalties as applied against the letter of credit amount if in compliance with division (H) below.
(5) Within 15 days after the city gives notice that an amount has been withdrawn from the
letter of credit amount, the licensee must deposit a sum of money equal to the amount withdrawn.
If licensee fails to deposit such amount, the entire letter of credit amount remaining shall be
forfeited.In addition, the failure may be grounds to revoke the license or take any other
enforcement action.
(F)Liquidated damages.Because licensee's failure to comply with the provisions of the
license and this agreement will result in injury to the city, and because it will be difficult to estimate
the extent of such injury, the licensee agrees to pay to the city liquidated damages for the following
violations of the license which represent both parties' best estimate of the damages resulting from
the specified violation. To maintain that estimate, the parties agree that liquidated damage amounts
shall be increased each year in accordance with the CPI:
(1) Failure to provide government and economic development channels and failure to make
PEG capacity available; failure to construct required links to PEG facilities; $1,000 per day for
each day the violation continues, in addition to any monetary payment under this agreement or the
cable law.
(2) Failure to submit required plans indicating expected dates of installation of various
parts of the system, and failure to supply information, reports or filings lawfully required under
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the license agreement or applicable law or by the city: $400 per day for each day the violation
continues.
(3) Failure, unless such failure is beyond the licensee's control, of the EAS to perform in
the event of a public emergency or vital information situation: $250 per occurrence.
(4) Failure to test, analyze and report on the performance of the system following a request
from the city manager to do so, and failure to pay for consultant fees pursuant to this license
agreement: $200 per day for each day the violation continues.
(5) For a violation of customer service standards: $200 per violation.
(6) Failure to render required payment for reimbursement of any license expenses, or
liquidated damages or failure to pay any required taxes to city: $100 per day, in addition to any
monetary payment due under this agreement or the cable law.
(7) Failure to file, obtain or maintain any required performance bond or letter of credit
amount: $100 per day.
(8) Failure to restore damaged property: $50 per day, in addition to the cost of the
restoration as required elsewhere herein.
(9) For violation of technical standards established by the FCC: $50 per day.
(10)For failure to comply with reasonable order of the city manager: $50 per day.
(11)Failure to properly install facilities (e.g. conduit at less than minimum depths, lines
laying on top of ground, fences, and walls): $50 per day.
(12)For failure to remedy any other violation of this chapter or violation of the license
agreement: $50 per day.
(G)Remedies.If the licensee violates any provision of law or of this license agreement, the
city may have one or more of the following actions:
(1) Impose liquidated damages provided herein;
(2) Reduce the duration of the license period on any basis the city determines is reasonable
and affords licensee reasonable due process;
(3) Require licensee to pay its subscribers or classes of subscribers in an amount and on a
basis the city determines is necessary to cure the breach or default, or equitably compensates for
the violation; or
(4) Seek legal or equitable relief from a court of competent jurisdiction.
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(H)Procedure for correcting license violations.
(1) Notice of violation.Should the city determine that licensee has violated one or more
terms, conditions or provisions of this license agreement, a written notice shall be given to licensee
informing it of an alleged violation (a "violation notice"). The city manager shall set forth in such
violation notice at a minimum, the following:
(a) Amount to be assessed;
(b) Factual basis for such assessment; and
(c) Specific license provision alleged to have been violated.
1.Licensee shall have 14 days from the date the violation notice is given to inform
the city manager in writing of the action licensee will take to correct the violation (a "correction
notice") and to begin corrective action, or to dispute that a violation has occurred (a "notice of
dispute").
2.If corrective action is undertaken, it shall be completed within 30 days of the
date the violation notice is given, unless licensee's correction notice shows that the corrective
action cannot be completed within 30 days with the exercise of all due speed or diligence, in which
case licensee shall have a reasonable extension of time in which to complete the corrective action.
3.Any notice of dispute shall specify the matter disputed by licensee and shall
stay the running of any performance or corrective deadlines pertaining to the matter in dispute,
and shall stay any other action the city may be permitted to take under this license agreement or
applicable law.
(2)Appeals.
(a) In the event that licensee contests the city manager's assessment of liquidated
damages, or fails to respond to the above -mentioned notices, within 14 days the city manager shall
convene an administrative hearing.
(b) Licensee may pay the fine, proceed with this hearing or waive its rights to this
administrative hearing and proceed directly to the public hearing before the council.
1.There shall be an administrative hearing conducted by the city manager, and
licensee shall be afforded procedural due process, including an opportunity to be heard and to
present evidence. Within 14 days after the conclusion of such administrative hearing, the city
manager shall issue a determination. In that determination the city manager may:
a.Find that licensee is not in violation of this chapter or the license agreement;
b.Find that the licensee is in violation of this chapter or the license agreement,
but that violation was with just cause and waive any penalty that might otherwise be imposed;
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c.Find that licensee is in violation of this chapter or of the license agreement,
assess liquidated damages, take corrective action and foreclose on all or any appropriate part of
the letter of credit or performance bond provided for in this chapter; or
d.Find that licensee is in material violation of this chapter and the license
agreement and recommend the council declare the licensee in violation and recommend
termination of the license agreement to the council, provided the council may consider such action
only after a public hearing as set forth below.
2.If a public hearing before the council is requested by licensee or is held
otherwise, it shall be de novo and it shall convene within 30 days of the request thereof. Licensee
shall be afforded full due procedural process, including without limitation, an opportunity to be
heard, to present evidence and to cross-examine witnesses. The council's decision, which shall
include findings of fact and conclusions, shall be made not later than 30 days after the conclusion
of the hearing. In that decision, the council may:
a.Find that licensee is not in violation of this chapter or the license agreement;
b.Find that licensee is in violation of this chapter or the license agreement,
but that violation was with just cause and waive any penalty that might otherwise be imposed;
c.Find that licensee is in violation of this chapter or of the license agreement,
assess liquidated damages, take corrective action and foreclose on all or any appropriate part of
the letter of credit and/or performance bond provided for elsewhere in this chapter; or
d.Find that licensee is in material violation of this chapter and the license
agreement and declare the licensee in violation and revoke the license agreement.
(3)Licensee's options.
(a) If after the hearing the disputed claim is upheld by the council, licensee shall have
30 days from the date of the mailing of the decision to remedy the violation or failure, unless
corrective action cannot be completed within 30 days with the exercise of all due speed and
diligence, in which case licensee shall have a reasonable extension of time in which to complete
corrective action.
(b) Alternatively, licensee retains its right to seek review of the disputed matter under
applicable law. The submission of a matter to mediation or to a court of competent jurisdiction
shall stay the running of the above -described correction period.
§ 14-1-10 TERMINATION AND REVOCATION.
(A)Termination.The license shall terminate, upon the expiration of the term thereof, unless
renewal is successfully applied per applicable laws.
(B)Revocation.
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(1) If a licensee is in material violation of this chapter or in default of the terms of its license
agreement, the city manager may make written demand that the licensee come into compliance
with said requirements within a reasonable period of time, as specified in this chapter. If, after the
cure period provided for in this chapter has run, the licensee is unwilling or unable to do so, the
city manager may recommend the revocation, alteration or suspension of the license to the council,
specifying the reasons for such action.
(2) A copy of any such recommendations shall be served by certified mail, return receipt
requested upon the licensee, and the licensee shall be given at least 14 days notice prior to the date
of a public hearing before the council to consider such action, and the licensee will be given an
opportunity to present evidence and make argument at such meeting.
(3) The council shall consider the recommendations, the response of the licensee and hear
from any other interested persons, and shall determine whether or not the licensee is in violation
or default of its obligations and, if so, whether such failure was with just cause.
(4) If the council finds that the failure by the licensee was with just cause, the council shall
direct the licensee to comply with such time and manner and upon such terms and conditions as
are reasonable.
(5) If the council determines that the licensee's failure was without just cause, the council
may declare the license revoked, altered or suspended. The council may provide a specified period
of time for the licensee to come into compliance before the revocation takes effect.
(6) A license may be revoked, altered or suspended by the council on the following
grounds, among others, and taking into account any aggravating or mitigating circumstances:
(a) Fails to comply with any material provision of this chapter or the license agreement;
(b) Makes willful and material false or misleading statements in any application;
(c) Engages in the practice of any fraud or deceit upon the city or subscribers;
(d) Fails to abide by the privacy provision of this chapter;
(e) Fails to make timely payment of any monies due the city pursuant to this chapter;
(f) Unless otherwise provided in the license agreement,fails to commence
construction in the license area within 3 months and to commence basic service within 6 months
from the effective date of the license agreement;
(g) Fails to file and maintain the bonds, insurance, records, failure to pay license fees
or assessed property taxes;
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(h) For repeated material failure to maintain service quality under the standards
prescribed for which the licensee receives notice and fails to cure; or
(i)Fails to restore service after 24 consecutive hours after notice to the licensee of
interrupted service to the entire system, except when such interruption is beyond the control of the
licensee.
(C)System disposal.
(1) In the event of termination or revocation of a license, the licensee involved shall offer
to sell the cable TV system, at the fair market value, to a new licensee or applicant for a license.
(2) The fair market value shall be determined in accordance with generally accepted
appraisal procedures. The original cost of all tangible and intangible property, as well as salvage
value, book value, replacement cost, cash flow and other factors will be considered.
(3) Under no circumstances shall any valuation be made for any right or privilege granted
by license. Should the licensee fail to negotiate a sale, as described above, the city may purchase
the system at the fair market value for the purpose of leasing to qualified operator until a buyer
can be found, pursuant to the provisions of A.R.S. § 9-509.
(D)Continuity of service.
(1) Licensee shall provide continuous service for the entire term of the license agreement
to all subscribers and users in return for payment of the established rates, fees and charges.
(2) If licensee seeks to sell or transfer, or if the city revokes or fails to renew the license,
licensee shall continue to operate the system as trustee for its successor in interest until an orderly
and lawful change of operation is affected.
(3) This period of operation shall not exceed 120 days from the occurrence of any of the
above events. Revenues accrued during that period of time shall be received by the operator.
(4) During that time, the cable system shall be operated under terms and conditions
consistent with the most recent license agreement and this chapter.
(E)Revocation for cause.In addition to all other rights, powers and remedies available to
the city, the city shall have the additional, separate and distinct right to revoke this license
agreement and all rights, authority, power, privileges and permissions granted licensee by this
license agreement if licensee substantially fails to cure or correct a material violation of this license
agreement within the applicable time periods following compliance within this agreement, absent
licensee's pursuit of further remedies as provided for in this agreement or following a final decision
of a court of competent jurisdiction reviewing the disputed matter.
(F)Revocation by ordinance.
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(1) Revocation of the license shall be accomplished by passage of an ordinance at a
properly noticed public hearing.
(2) An ordinance revoking the license shall include the reason for the council to justify
revocation. The effective date of the revocation shall be stated in the ordinance. The license
agreement shall terminate on the effective date of the revocation.
(3) An ordinance revoking the license shall not be passed without 30 days written notice
to licensee that an ordinance to revoke the license will be considered by the council. Licensee shall
retain the privilege to be heard by the council or any council committee regarding the proposed
revocation ordinance.
(4) Licensee may request a review of the revocation findings and conclusions pursuant to
applicable law and shall retain any other remedy which may be available to it under law.
(G)Continuance of service after revocation.The city may require licensee to continue
operating its system after revocation until operation of the system can be transferred to a new
owner or the city exercises its rights herein.
(H)Removal after revocation.
(1) Upon revocation of the license and after a review of the revocation findings and/or
conclusions by a court of competent jurisdiction, if review is sought by licensee, the city may
require licensee to remove, at licensee's expense, any above -ground portion of its system from any
street or other public right-of-way.
(2) In removing its underground system, licensee shall refill and compact, at its own
expense, any excavation that shall be made, and shall leave all streets and other public rights -of-
way, and private property, in reasonable condition, and without affecting, altering or disturbing in
any way electric, telephone, gas, steam or water utilities or other cable system operator cables,
wires or attachments.
(3) The insurance, indemnity and damage provisions of this license agreement shall remain
in full force and effect during the entire term of removal.
(I)Failure to remove system.If licensee fails to commence removal of its system, or the part
that was designated, in accordance with this section, within 60 days after written notice of the city's
demand for removal is given, or if licensee fails to complete removal without 1 year after removal
has begun, the city shall have the right to exercise one of the following options:
(1) Assumption of ownership.
(a) Declare all right, title and interest to the system to be in the city or its designee with
all right of ownership including, but not limited to, the right to operate the system or transfer the
system to another for operation.
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(b) Upon that declaration by the city, licensee shall be entitled to receive an equitable
price from the city for the value of the system.
(2)Abandonment of the system.Declare the system abandoned and cause the system, or
that portion designated by the city, to be removed. The cost of the removal shall be recoverable
pursuant to the insurance and indemnity provisions of this license agreement, or from licensee
directly.
(J)Additional duty to remove property.The city may require licensee to remove any
above -ground portion of the system if licensee ceases to use that part of the system in the city for
a continuous period of 12 months.
§ 14-1-11 RENEWAL.
The procedures for renewal of any cable license shall be governed by federal and state law, as of
the time the license is in effect. However, should there be no active renewal provisions, council
may amend this chapter with renewal procedures which shall govern all licenses in effect or
thereafter granted by city.
§ 14-1-12 TRANSFERS AND CHANGE OF CONTROL.
(A)General restrictions.No sale, transfer, assignment or lease of the license, or sale,
transfer, assignment, lease or fundamental corporate change of or in licensee, including, but not
limited to, a fundamental corporate change in licensee's parent corporation or any entity having a
controlling interest in licensee, the sale of a controlling interest in the licensee's assets, a merger,
including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary
or affiliate entity, shall take place until a written request has been filed with city requesting
approval of the sale, transfer or corporate change and such approval has been granted or deemed
granted; provided, however, that the approval shall not be required where licensee grants a security
interest in its license and/or assets to secure an indebtedness.
(B)Controlling interest restrictions.
(1) Any sale, transfer, exchange or assignment of stock in licensee, or licensee's parent
corporation or any other entity having a controlling interest in licensee, so as to create a new
controlling interest therein, shall be subject to the requirements of this section.
(2) The term controlling interest as used herein is not limited to majority stock ownership,
but includes actual working control in whatever manner exercised.
(3) In any event, as used herein, a new controlling interest shall be deemed to be created
upon the acquisition through any transaction or group of transactions of a legal or beneficial
interest of 15% or more by 1 person. Acquisition by 1 person of an interest of 5% or more in a
single transaction shall require written notice to city.
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(C)Filing requirements.The licensee shall file, in addition to all documents, forms and
information required to be filed by applicable law, the following:
(1) All contracts, agreements or other documents that constitute the proposed transaction
and all exhibits, attachments or other documents referred to therein which are necessary in order
to understand the terms thereof;
(2) A list detailing all documents filed with any state or federal agency related to the
transaction including, but not limited to, the PUC, the FCC, the FTC, the FEC, the SEC or any
applicable state agency. Upon request, licensee shall provide city with a complete copy of any
such document; and
(3) Any other documents or information related to the transaction as may be specifically
requested by the city.
(D)Time limit.City shall have such time as is permitted by federal law in which to review
a transfer request.
(E)Costs and filing fees.The licensee shall reimburse city for all legal, administrative and
consulting costs and fees associated with city's review of any request to transfer. Nothing herein
shall prevent licensee from negotiating partial or complete payment of such costs and fees by the
transferee. Licensee may not itemize any such reimbursement on subscriber bills, but may recover
such expenses in its subscriber rates. Licensee shall also pay a $2,000 fee for a sales, transfer,
assignment or lease request pursuant to section § 14-1-9 (A)(2).
(F)Guarantees.In no event shall a sale, transfer, corporate change or assignment of
ownership or control pursuant to this section be approved without the transferee becoming a
signatory to this license and assuming all rights and obligations thereunder, and assuming all other
rights and obligations of the current licensee to the city including, but not limited to, any adequate
guarantees or other security instruments provided by the license.
(G)City's right to purchase.
(1) In the event of any proposed sale, transfer, corporate change or assignment pursuant to
this chapter, city shall have the right to purchase the system for the value of the consideration
proposed in such transaction.
(2) City's right to purchase shall arise upon city's receipt of notice of the material terms of
an offer or proposal for sale, transfer, corporate change or assignment, which licensee has accepted.
Notice of such offer or proposal must be conveyed to city in writing and separate from any general
announcement of the transaction.
(H)Waiver of rights by city.City shall be deemed to have waived its right to purchase the
system pursuant to this section only in the following circumstances:
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(1) If city does not indicate to licensee in writing, within 60 days of receipt of written notice
of a proposed sale, transfer, corporate change or assignment as contemplated above, its intent to
exercise its right of purchase; or
(2) It approves the assignment or sale of the license as provided within this section.
(I)City right of refusal.No license may be transferred if city determines licensee is in
noncompliance of the license unless an acceptable compliance program has been approved by city.
The approval of any transfer or ownership pursuant to this section shall not be deemed to waive
any rights of city to subsequently enforce noncompliance issues relating to this license even if such
issues predated the approval, whether known or unknown to city.
§ 14-1-13 INDEMNITY AND INSURANCE.
(A)Indemnification of city officials.Licensee shall indemnify, defend and hold harmless
the city, the members of the council, including the mayor, and all other officials, employees and
agents, boards or commissions, when acting in their capacity as municipal officials, employees or
agents, boards or commissions, from and against any and all claims, suits and actions, liability and
judgment for damages or otherwise:
(1) Damage to person or property.For actual or alleged injury or death to individuals, or
damage to property, in any way arising out of or through, or alleged to arise out of or through, any
act or omission of licensee or its officers, agents, employees or contractors, or to which licensee
or its officers, agents, employees or contractors acts or omissions in any way contribute;
(2)Violation of rights or interests.Arising out of or alleged to arise out of any claim for
damages, with respect to licensee's operation of a cable TV system, for invasion of the right of
privacy, defamation of any person, or the violation or infringement of any copyright, trademark,
trade name, service mark or patent or any other right of any person; or
(3)Statutory violations.Arising out of or alleged to arise out of licensee's failure to comply
with the provisions of any statute, regulation or ordinance of the United States, the State of Arizona
or the city.
(B)Defense of actions.
(1) Nothing in this license agreement shall prevent a party indemnified and held harmless
by another from participating in the defense of any litigation by its own counsel at its sole expense.
(2) That participation shall not under any circumstances relieve the indemnifying party
from its duty defending against liability or paying any judgment entered against that party.
(C)City's negligence or willful misconduct.Notwithstanding anything to the contrary
contained in this section, the city shall not be indemnified or reimbursed in relation to any matter,
in any action, suit or proceeding:
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(1) Arising out of the operation, use or distribution of programming or services over the
Government, Economic Development and PEG Channels facilities or access funding; or
(2) In which the city, its officials, employees or agents, is negligent in the performance of
its obligations under this license agreement, or has engaged in willful misconduct or criminal acts;
provided, however, that licensee shall provide a defense even though, in good faith, it believes at
the commencement of any action, that the city may have engaged in that conduct. If the city, its
officials, employees or agents, is found to have engaged in that conduct, licensee shall be
reimbursed by the city for all amounts paid and expenses incurred by licensee in connection with
that action, suit or proceeding, including reasonable attorney fees.
(D)Indemnity for construction, maintenance and operation.
(1) The licensee shall at its sole cost and expense, indemnify, hold harmless and defend
the city, its officials, boards, commissions, agents and employees by providing immediate defense
with counsel approved by the council,against any and all claims,suits,causes of action,
proceedings and judgments for damages arising out of construction, maintenance or operation of
the cable TV system.
(2) City shall provide 30 days' notice of any claim or potential claim and shall provide
copies of any summons and complaint.
(E)Required insurance.The licensee, upon acceptance of the license agreement, shall
provide the city with and maintain in full force throughout the term of the license agreement,
insurance issued by a company duly authorized to do business in the State of Arizona, insuring
with respect to the installation, construction, operation and maintenance of the system as follows:
(1)Comprehensive general and automobile liability coverage including, but not limited
to, blanket contractual liability, completed operations liability, broad form property damage
including but not limited to coverage for explosion, collapse, underground hazard and automobile
non -ownership liability. This insurance shall be written in the following minimum amounts:
(a)Comprehensive general liability: $2,000,000 combined single limit, bodily injury
and property damage;
(b)Comprehensive automobile liability: $2,000,000 combined single limit, bodily
injury and property damage; and
(c)Excess umbrella liability, covering all the above mentioned hazards, in the
minimum amount of $5,000,000.
(2)Workers' compensation coverage as required by the laws and regulations of the State
of Arizona.
(3)All insurance policies required herein shall include the city as a named insured party.
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(4)Licensee shall be solely responsible for all premiums due and payable for insurance
required herein. Licensee shall provide to the city a certificate of insurance evidencing compliance
with the coverage requirements listed above.
(5)All insurance policies required herein shall be in a form approved by the City Attorney
and shall include a 60 day notice of cancellation or modifying endorsement.
(F)Self insurance.The provisions of this article, in the discretion of the city, may be satisfied
by proof of self insurance.
§ 14-1-14 ADMINISTRATION.
(A)Inspection of records.The council reserves the right during the term of the license
agreement and during normal business hours and upon the giving of reasonable notice to examine,
audit and review licensee's contracts, engineering plans, accounting, financial data and, subject to
subscriber privacy laws, service records relating to the property and operations of the licensee and
to all other records required to be kept pursuant to this chapter. The records shall be treated as
confidential by city and shall not be released, either orally or in any written form whatsoever,
without the express written permission of the licensee, provided however that release shall be
permitted in order for city to comply with the Arizona Public Records Act pursuant to A.R.S. §§
39-101 et seq and as amended.
(B)Licensee rules and regulations.Copies of the rules, regulations, terms and conditions
adopted by the licensee for the conduct of its business shall be provided to the city manager, upon
request of the city manager.
(C)City Manager.
(1) The city manager or his or her designee shall have responsibility for the day-to-day
administration of cable operations within the city as governed by this chapter and the applicable
license agreements.
(2) The city manager shall be empowered to take all administrative actions on behalf of
the council except those actions specified herein which are reserved to the council or another city
office or officer.
§ 14-1-15 GENERAL PROVISIONS.
(A)Non-discrimination.Licensee shall not deny service, access or otherwise discriminate
against subscribers, users or residents of the city. Licensee shall comply at all times with all
applicable federal, state and city laws, rules and regulations, executive and administrative orders
relating to non-discrimination and equal employment opportunities and requirements.
(B)Laws and codes.Licensee shall comply fully with all applicable local, county, state and
federal laws, codes, ordinances, rules and regulations.
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(C)Cumulative rights and remedies.Except as specified herein, all rights and remedies of
the city manager and the council in this chapter are cumulative and may be exercised singly or
cumulatively at the discretion of the city manager or the council.
§ 14-1-16 RIGHTS RESERVED TO COUNCIL.
Without limitation upon the rights which the council may otherwise have, the council does hereby
expressly reserve the right to amend any article or provision of this chapter for any reason
determined to be desirable by the council including, but not limited to:
(A)New developments in the state of technology of cable systems; and
(B)Any changes in federal or state laws, rules or regulations.
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