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HomeMy WebLinkAboutORD1086ORDINANCE NO.1086 AN ORDINANCE OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,ADOPTING BY REFERENCE THAT CERTAIN DOCUMENT ENTITLED "AMENDMENTS TO CHAPTER 14 OF VOLUME 1 OF THE APACHE JUNCTION CITY CODE AMENDING IN ITS ENTIRETY CHAPTER 14 RELATING TO CABLE SYSTEMS"PURSUANT TO ARIZONA REVISED STATUTES ANNOTATED ("A.R.S.")SECTION 9-802;REPEALING ANY CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY;AND PROVIDING FOR PENALTIES WHEREAS,the City of Apache Junction is authorized to grant one or more non-exclusive licenses pursuant to A.R.S.§§9-501 et seq.,for operating and maintaining cable communications systems within the corporate boundaries of the City;and WHEREAS,pursuant to Ordinance No.281,on or about June 14,1984,the City granted a fifteen (15) year non-exclusive cable television license to Dow -Sat of Arizona,Inc.("Dow -Sat"),allowing Dow -Sat to install,construct,operate and maintain a cable television system in and upon the City's streets,public rights- of -way,and other public places within the corporate limits of the City;and WHEREAS,the Apache Junction City Council,through adoption of Ordinance No.281,also enacted Apache Junction City Code ("AJCC"),Vol.I ,Chapter 14 Cable Television,which the licensee agreed to abide by all sections therein,and all provisions of the response to Request for Proposals submitted by Dowden Communications,Inc.dated January 3,1984;and WHEREAS,in the late 1980's to the early 1990's,Dow -Sat transferred its duties and obligations under the agreement to Triax DD Cable Holdings,Inc.;and WHEREAS,on or about April 5,1996,Triax DD Cable Holdings,Inc.,DD Partners,L.P.,and various subsidiaries of DD Cable Holdings and new investors entered into a Contribution Agreement whereby Triax would be restructured,and would be the owner and operator of the cable system as licensed by the City;and WHEREAS,on or about June 14,1996,the informal process was initiated between the City and Triax for renewal of the non-exclusive communications system license in order to extend Triax's authority to continue to provide cable communication services throughout the corporate limits of the City of Apache Junction;and ORDINANCE NO.1086 PAGE 1 OF 3 WHEREAS,the City is currently considering Triax's transfer application and if the City approves the transfer,Mediacom will become the Licensee in lieu of Triax and will be required to assume all of the obligations of Triax under this license;and WHEREAS,in conjunction with preparation of new license terms between the City and Triax,AJCC Vol.I,Chapter 14 Cable Television needs to be amended to more fully meet federal statutory requirements. WHEREFORE,the Mayor and City Council ordain as follows: SECTION I.IN GENERAL That certain document entitled "Amendments to Chapter 14 of Volume I of the Apache Junction City Code Amending in its Entirety Chapter 14 Relating to Cable Systems",three copies of which are on file in the office of the City Clerk of the City of Apache Junction,Arizona,and which was made a public record by Resolution No.99-27,is hereby referred to,adopted and made a part hereof as if fully set out in this Ordinance,and as authorized by A.R.S.§9-802. SECTION II.REPEALING ANY CONFLICTING PROVISIONS All ordinances and parts of ordinances in conflict with the provisions of this ordinance or any part of the code adopted herein by reference are hereby repealed. SECTION III.PROVIDING FOR SEVERABILITY I f any section,subsection,sentence,phrase,clause or portion of this ordinance,or any part of the code adopted herein by reference is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction,such decisions shall not affect the validity of the remaining portions thereof. SECTION IV.PROVIDING FOR PENALTIES Any violation under this Article is punishable pursuant to Apache Junction City Code Chapter 1,General,Article 1-8(A). ORDINANCE NO.1086 PAGE 2 OF 3 PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA,THIS 3RD DAY OF AUGUST ,1999. SIGNED AND ATTESTED TO THIS 30TH DAY OF NOVEMBER ATTEST: KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: 11-3 -99 RICHARD J.STERN City Attorney ORDINANCE NO.1086 PAGE 3 OF 3 ,1999. - - - I. DOUGLAS/ COLEMAN Mayor AMENDMENTS TO THE APACHE JUNCTION CITY CODE,CHAPTER 14,CABLE SYSTEMS Article 14-1 of Chapter 14,Cable Systems,of the Apache Junction City Code are amended to read as follows: Article 14-1 CABLE SYSTEMS 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 for Cable Systems 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 Transfer 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 14-1-17 Renewal of License for Triax Midwest Associates,L.P. Section 14-1-1 Title This chapter shall be entitled the "City of Apache Junction Cable Systems Chapter." Section 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 System;to provide for the regulation of each Cable 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 1 OF 59 rights -of -way for constructing and operating a Cable System;to promote the widespread availability of Cable 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 Service as a means of communication between and among the members of the public and public institutions;and to encourage the provision of diverse information to the community over Cable. Section 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 Section 602 of the Cable Act,47 U.S.C.Subsection 522,and,i f 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. A."Access Channel"means 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. B."Activated Channels" means those Channels engineered at the headend of a Cable System for the provision of services generally available to residential Subscribers of the Cable System,regardless of whether such services actually are provided,including any Channel designated for public,education or governmental use. C."Actual cost" means the actual cost to the Licensee of materials and labor necessary to perform installation,construction,or maintenance of facilities. D."Affiliate"means any person who owns or controls,is owned or controlled by,or is under common ownership or control with the Licensee. E."Applicant"means any person that applies for a License. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 2 OF 59 F."Application"means a proposal to construct and operate a Cable 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. G."Basic Cable service"means any service tier that includes the retransmission of local television broadcast signals. H."Cable Act"means the Cable Communications Policy Act of 1984,47 U.S.C.§§521 et seq. I ."Cable operator"means any person or group of persons: 1.who provides Cable Service over a Cable System and directly or through one or more Affiliates owns a significant interest in such Cable System,or 2.who otherwise controls or is responsible for,through any arrangement,the management and operation of such a Cable System. J."Cable Service"means the one-way transmission to Subscribers of video programming or other programming services and Subscriber interaction,if any,which is required for the selection or use of such video programming or other programming service. K."Cable System" or "System" means a facility consisting of a set of closed transmission paths and associated signal generation, reception,and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within the City,but such term does not include; 1.a facility that serves only to retransmit the television signals of one or more television broadcast stations; 2.a facility that serves Subscribers without using any public rights -of -way; AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 3 OF 59 3.a facility of a common carrier which is subject,in whole or in part,to the provisions of 47 U.S.C.§§201-226,except that such facility shall be considered a Cable System i f such facility is used in the transmission of video programming directly to Subscribers,unless the extent of such use is solely to provide interactive on -demand services; 4.an open video System that complies with 47 U.S.C.§573;or 5.any facilities of any electric utility used solely for operating its electric utility System. The foregoing definition of "Cable System"shall not be deemed to circumscribe or limit the valid authority of the City to regulate or license the activities of any other communications System or provider of communications services to the full extent permitted by law. L."Channel" means a six Megahertz (MHZ)frequency spectrum,which is suitable for carrying either one standard video signal,a number of audio,digital or other non -video signals or some combination of such signals. M."Channel Equivalent"means 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 System. N."City" means the City of Apache Junction,a municipal corporation of the State of Arizona,in its present boundaries,and its future boundaries as increased or decreased by law. 0."City Manager"means the chief executive officer of the City or designee. P."Complaint" means 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 4 OF 59 Q."Consumer Price Index or CPI"means the annual average of the Consumer Price Index for all Urban Consumers (CPI -U),as published by the Bureau of Labor Statistics. R."Converter" means a tuning device which converts transmitted signals to a frequency which permits their reception on a television set. S."Council"means the City Council of the City of Apache Junction. T."Day" means calendar day. U."Dwelling unit"means 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. V."Fair market value"means the price that a willing buyer would pay to a willing seller. W."FCC" means the Federal Communications Commission. X."Federal agency" means any agency of the United States. Y."Grade B contour" means the field strength of a television broadcast station computed in accordance with regulations promulgated by the FCC. Z."Gross Revenues" means any and all revenues received,or in any way derived directly or indirectly by Licensee,its affiliates, subsidiaries,parent or person in which Licensee has financial interest of five percent (5%)or more,or by any other entity that is a Cable Operator of the System,from the operation of the Licensee's Cable System in City (including the studios and other facilities associated therewith)to provide Cable Services.Gross Revenues include,by way of illustration and not limitation, monthly fees charged Subscribers for any basic,optional,premium, per -channel,per -program service,or Cable programming service; installation,disconnection,reconnection and change -in-service fees;upgrade and downgrade fees;leased channel fees;late fees; AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 5 OF 59 revenues from rentals or sales of Converters,lock -out devices or other equipment;any studio rental,production equipment,and personnel fees;advertising revenues;fees related to commercial and institutional usage of the I -net to provide Cable Service;to the extent permitted under the Cable Act,Internet access fees,cable modem service fees resulting from the provision of data services; barter;revenues from program guides;revenues from the sale or carriage of other cable -related services;and revenues from home shopping,bank -at-home channels,and other revenue sharing arrangements.Gross Revenues shall not include: 1.to the extent consistent with generally accepted accounting principles,actual bad debt write-offs,provided,however, that all or part of any such actual bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected;or 2.any taxes on services furnished by the Licensee which are imposed directly on any Subscriber or used by the State, County,or other governmental unit and which are collected by the Licensee on behalf of said governmental unit.A License fee is not such a tax. AA."Interactive on -demand services"means 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. BB."Labor costs"means actual cost to Licensee of contract labor or hourly wages or apportioned salaries of Licensee's employees plus fully loaded labor costs. CC."License"means 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 System. DD."License agreement" means a contract entered into in accordance with the provisions of this chapter between the City and a Licensee that AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 6 OF 59 sets forth the terms and conditions under which the License will be exercised. EE."License area"means the entire existing territorial limits of the City and any area annexed thereto during the term of the License. FF."Licensee"means any person who has been granted a License by the City or any lawful transferee or successor interest. GG."Material costs"means actual cost of material to Licensee, including sales tax and freight paid,plus handling and processing charges equal to three percent (3%)of material costs. HH."Multichannel video programming distributor" means 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. II."Normal business hours" means 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 one night per week and/or some weekend hours. JJ."Normal operating conditions" means 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 System. KK."Other programming service" means information that a Cable Operator makes available to all Subscribers generally. LL."Person"means any individual,corporation,partnership, association,joint venture,or organization of any kind and the AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 7 OF 59 lawful trustee,successor,assignee,transferee,or personal representative thereof. MM."Public Rights -of -Way"means 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,easement,or similar property within the City,which,consistent with the purposes for which i t was dedicated,may be used for the purpose of installing and maintaining the Cable System.No reference herein to a "Public right -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 such property is sufficient to permit its use for such 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. NN."School"means any public educational institution,which is accredited by a nationally recognized institution,including primary and secondary schools,colleges and universities. 00."Service interruption" means the loss of picture or sound on one or more Cable Channels or channel equivalents. PP."Service tier" means 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. QQ."Standard drop" means that Cable connection which requires no more than one hundred fifty foot (150')drop measured from the ground block on the subscriber's home or place of business to the nearest active tap on the Cable System,involving only one 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. RR."State"means any state,or political subdivision,or agency thereof. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 8 OF 59 SS."Street" means the surface,the air space above the surface and the area below the surface of any public street,road,highway,path, sidewalk,alley,court,easement or other public right-of-way or public place now or hereafter held by the City,County of Pinal or State or Arizona for the purpose of public travel or public utilities. IT."Subscriber" means any individual or entity legally receiving,for any purpose,Cable Services of the Licensee's Cable System including,but not limited to,the basic service,redistribution of television broadcast signals,radio signals,licensee's original Cable casting,community programming,government and education access channels and other services such as leased channels,data and facsimile distribution,premium and pay -per -view channels and police,fire and similar public service communication. UU."System outage"means a sService 41nterruption affecting more than ten (10)Subscribers. VV."System rebuild"or "rebuild"means a major improvement or enhancement in the technology or service capabilities made by the Licensee to the Cable System. WW."Two-way capability"means the incorporation in a cable system of all appropriate design and engineering characteristics so that two- way transmission,including addressability,over the system can be implemented with a minimum of expense.Such two-way capability specifically includes,but is not limited to,services for Internet access and pay -per -view as well as emerging technologies. XX."Usable activated channels"means activated channels of a Cable System,except those channels whose use for the distribution of broadcast signals would conflict with technical and safety regulations as determined by the FCC. YY."Video programming"means programming provided by,or generally considered comparable to programming provided by,a television broadcast station. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 9 OF 59 Section 14-1-4 Authority to Grant License.License Required. Non -Exclusive License A.Pursuant to A.R.S.§9-505,as amended,the Council has the authority to issue non-exclusive licenses to construct,install,maintain and operate Cable communication 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 streets of the town as well as its legal interest in easements and licenses granted to i t by property owners for the purposes of municipal use. 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 System within any street in the City,or within any other public property of the City,unless a License Agreement authorizing such use of said streets or property is in full force and effect. D.All licenses issued by the Council shall be non-exclusive,on terms and conditions no more favorable and no less burdensome among cable service providers,and the Council specifically reserves the right to grant such additional licenses for Cable 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 of Apache Junction and Licensee. Section 14-1-15 Application Procedures A.Any person desiring to construct,install,maintain or operate a Cable communication System within the City who is not lawfully the holder of a License to provide Cable Service in City as of the Effective Date of this Ordinance shall submit an application to the Council.This application shall consist of executed application forms as prescribed and furnished by the City.Failure of any applicant to fully provide all information requested on the AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 10 OF 59 application forms will be sufficient cause for not considering the application.This application shall be filed with the City Clerk. All applications 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 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 Section 14-1-12 of this chapter,while applications for renewal,must conform to Section 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,i f so,a demonstration that the requested modification meets the legal standards of said 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 property 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 11 OF 59 Section 14-1-6 Standards for Granting or Denying License Applications A.All applications received that are acceptable for filing shall be placed in a public file with the City Clerk.The Council shall publish notice of each application in a newspaper of general circulation within the proposed service area once a week for two consecutive weeks.The notice shall indicate the following: 1.The proposed service,or changes in service,and/or 2.Proposed changes in ownership;and 3.Where the application may be viewed;and 4.The due date for submission of any written comments;and 5.The date and location of a public hearing on the proposed application. B.Notice of such 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.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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 12 OF 59 5.Where an applicant proposes to overbuild an existing Cable System,the economic and technical feasibility of multiple Cable 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. D.Thereafter,the Council shall make a determination whether to approve or disapprove each application. Section 14-1-7 License Agreement Required A.Upon the approval of an application by the Council,the applicant shall negotiate and execute a License Agreement within fifteen (15) days.If the Council and the Licensee fail to agree on the terms of a License Agreement within fifteen (15)days from the date that the Council approves the application,the approval shall expire without further action by the Council.This time limit may be extended by the Council only upon a majority vote of the Council.The License Agreement shall incorporate all terms and provisions of this chapter wherein a requirement is placed upon the Licensee,either expressed or implied by 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 Section 14-1-4 herein,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 System,but does not expressly or implicitly authorize the Licensee 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.I t also authorizes the Licensee to so use,operate and provide similar facilities or properties rented,licensed or leased from other persons, AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 13 OF 59 firms or corporations,including but not limited to,any public utility or other Licensee licensed or permitted to do business in the town;provided,however,that neither the Licensee nor the third party shall be relieved of any regulation or obligation as to its use of such facilities in the streets. 2.I t 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 i t determines appropriate. 3.I t is nonexclusive and will not expressly or implicitly preclude the issuance of other licenses to operate Cable systems within the City. 4.I t conveys no property right to the Licensee or right to renewal other than as may be required by state or federal law. 5.It constitutes a contract between the Licensee and the Council once i t 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 fifteen (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 such amended provisions AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 14 OF 59 shall be applicable to all existing License Agreements: provided,however,that this chapter and such 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 i t is not inconsistent with or otherwise preempted by 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. Section 14-1-8 Operating Requirements for Cable Systems A Licensee shall conform to the following minimum standards relative to the construction,operation and maintenance of a Cable 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 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 or other similar discounts. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 15 OF 59 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 within the corporate limits of the City.When the office is closed,an answering machine or similar device, capable of receiving service complaints and inquiries must be employed.Such 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 thereto;such record shall be kept at the Licensee's office;and,subject to Subscriber privacy laws,shall be available for inspection during regular business hours without further notice of demand of the City Manager.A summary of such records must be retained for not less than one year.The Licensee shall notify each subscriber at the time of initial subscription of the procedure to 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 Council upon request. 5.A Licensee must provide each Subscriber at the time Cable Service is installed,the following: 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; AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 16 OF 59 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 thirty (30)days of the collection of the deposit or charge or it shall refund such deposit or charge within five (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. b.If any Subscriber or user terminates any monthly service during a period of time for which said Subscriber or user has made an annual or other payment in advance,the appropriate pro rata portion of said 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 such 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 thirty (30)days from the date of the request. b.I f 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 such disconnection shall not be effected AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 17 OF 59 until thirty (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 sixty (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 System only for good cause and for the shortest time possible.No prior notice shall be required for the performance of System maintenance work requiring a maximum of one (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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 18 OF 59 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.Licensee shall comply with the City of Apache Junction Engineering Guidelines (Ordinance No.932)and Article 13-3 of Volume I of the Apache Junction City Code regarding encroachment permits,currently in effect and as amended by Council. 3.A Cable System shall be constructed pursuant to a construction timetable specified in the License Agreement. 4.Any delay beyond the terms of the timetable specified in the License Agreement may be considered a violation of the terms of this chapter and the License Agreement.Unless the Licensee can establish that the delay was due to factors beyond its control,the Licensee may be considered in default of the License Agreement and the City Manager may take whatever action the City Manager is entitled to under this chapter and the License Agreement. 5.The Licensee shall not be considered in default of the applicable construction schedule if the City Manager approves a modification of the schedule change in advance.In submitting a request for a construction schedule modification, the Licensee must fully explain the reasons for the delay,in writing.The delay must be disapproved by the City Manager if the request is not reasonably justified,would have unreasonably discriminating results,or would unduly delay service to an area.Such modification request shall be considered granted unless the Licensee is notified by the City Manager to the contrary in writing within forty-five (45) days of the date on which the request was filed. 6.The City Manager may require a Licensee to report on construction progress and provide information showing AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 19 OF 59 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. 7.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: Unless the License Agreements provides otherwise,a Licensee shall be required to extend its Cable System pursuant to the following requirements: 1.Upon reasonable request for service by any person located within any area of the City that meets density requirements of paragraph 2 of this subsection,the Licensee shall,within thirty (30)days,furnish the requested service to such person,unless prevented from providing said service due to factors outside Licensee's control,such as permit restrictions,private easement considerations,etc.If such service has not been implemented within sixty (60)days of said 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 Dwelling Unit within any area of the City reaching the minimum density of at least twenty-five (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.Licensee shall complete line extensions to an area reaching a density of at least five (5)homes within one thousand fifty-six feet (1,056') of existing active cable plant,or where an area has more than five (5)homes,at least one (1)home per 211 street feet including the distance to existing active cable plant.Upon request,this density requirement may be modified by the Council for a specific AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 20 OF 59 Licensee,provided said Licensee demonstrates that it would be commercially impracticable if Licensee's compliance with said requirement would create a significant adverse impact on the capital costs of Licensee's City of Apache Junction cable system. 3.The Licensee shall prevent unnecessary damage to streets and property by installing underground Cable or conduit in all new subdivisions of five (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.Cable need not be installed and activated until the new subdivision meets the criteria established for line extensions. 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 Ordinance 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 one (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 two (2) Licensees indicate interest,the developer shall provide conduit to accommodate a minimum of two (2)sets of Cable television cables and dedicate to the City any initially unoccupied conduit.The developer shall be entitled to recover the cost of such initially unoccupied conduit in the event that Grantor AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 21 OF 59 subsequently leases or sells occupancy or use rights to any Licensee. c.The developer shall provide at least ten (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 two (2)business days to begin the Installation of their cables,and five (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)I t 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 other terms and conditions as are mutually agreeable to the developer and Licensee,or has received no reply from a Licensee within ten (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.I f such 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 22 OF 59 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 if the connection to the resident would require no more than a one hundred fifty foot (150')drop line,and provided that paragraph 2 of this subsection is met. 6.With respect to requests for connection requiring a drop line in excess of one hundred fifty feet (150'),the Licensee must extend service to such residents at a one time charge not to exceed the actual costs incurred by the Licensee for the distance exceeding one hundred fifty feet (150').Licensee may collect the installation charge in advance,however,no more than thirty (30)days in advance of anticipated construction. 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 an 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 23 OF 59 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 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 thirty (30) days in advance when a proof of performance test pursuant to 47 C.F.R.76.605(a)(4)[or subsequently renumbered]is scheduled.The Licensee must also advise the City Manager of its anticipated schedule for any other FCC required testing a minimum of thirty (30)days in advance of such 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,two-way and paging services,the electrical or telephone system located in any portion of the City,the Cable System of another Licensee,or individual or master antennas used for receiving amateur radio television,radio, or other FCC authorized signals. 7.A Licensee must obtain a transaction privilege tax license to conduct business in the corporate limits of the City.In addition,Licensee shall notify to the City Clerk of any and all construction agreements it has with any independent contractors and their subcontractors for any work to be AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 24 OF 59 performed within the City.All contractors and subcontractors must be licensed in the State of Arizona. 8.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 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 pOS sible. 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 on streets as well as on 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 Street or other dedicated 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 25 OF 59 for any reason for a continuous period of two (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 street 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 street 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 abandonment of said 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 of Streets: 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 such reasonable rules and regulations concerning the installation and maintenance of Cable 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 thirty (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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 26 OF 59 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 three (3)months if changes to the plant have occurred during the three (3)month period. 4.All construction practices shall be in accordance with all applicable sections of the Occupational Safety & Health Act of 1970,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 Right -of -Way 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.On streets 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 a street or road 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,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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 27 OF 59 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 Council for construction on public property or Public Rights -of -Way; b.Have complied with Blue Stake requirements in the area of construction; 9.The Licensee shall have the authority to trim trees,in accordance with all applicable utility restrictions,ordinance and easement restrictions,upon and overhanging Streets and Public Rights -of -Way of the License area so as to prevent the branches of such trees from coming in contact with the wires and cables of the Licensee and shall be responsible for debris removal from such activities.At the option of the City,such trimming may be done by it or under its direct supervision and direction.Licensee shall be responsible for obtaining permission from individual property owners if tree trimming outside of the designated public easement is necessary to install a Cable or other line. 10.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 seventy-two (72)hours advance notice.The direct expense of such 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 28 OF 59 a.Except as provided in a negotiated License Agreement,a cable system must have a minimum analog capacity of eighty-two (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 for a specific Licensee,provided said Licensee demonstrates that i t would be commercially impracticable to comply with said 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 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,one (1)service outlet to a conveniently accessible point in each school,police station,fire station and City hall 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). There may also be a minimum monthly service charge at the above locations. 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.A 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 forty-eight (48)hours or as provided for in the License Agreement. 2.The following requirements apply to Access Channels: a.Applications for a License shall include proposals for the provision of educational and governmental access channel sufficient to meet community needs during the AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 29 OF 59 term of the License as determined by the Council.A Licensee or applicant shall specify what grants,if any, i t is willing to make for studio equipment and facilities to be used for local program production by all Cable access users.Applicants are encouraged to include proposals for local origination programming by the Licensee. b.All access channel operations must conform to the following minimum requirements: (1)Access Channels shall be carried on the Licensee's lowest priced service level offering. (2)The License may require a Licensee or other entity to manage the Access Channels and to establish reasonable rules for the use of Access Channels consistent with the requirements of this chapter and the intended purpose of such Access Channels. (3)The use of any educational Access Channel shall be made available free of charge to Schools and other required educational institutions for the transmission of local educational programming. (4)The use of any local government access channels shall be made available free of charge to the Council for the transmission of government related programming. (5)I f required by the License Agreement,the Licensee shall submit to the Council on an annual basis a plan for publicizing access programs and access use. c.At the request of the Licensee,the council may promulgate rules under which channel capacity dedicated to access use may be used by the Licensee when it is not being used for access purposes. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 30 OF 59 d.A License shall include a provision for the Licensee to provide channel capacity for community programming on terms and conditions specified in the License agreement. H.System Architectural Design Review Process: At least ninety (90)days prior to the date of initial construction of the rebuild,Licensee shall deliver to City a detailed architectural design plan,which shall include at least the following elements: 1.Location of headend and all hub sites; 2.Technical description of equipment at headend,hubs,and nodes; 3.Technical analysis of coaxial cable design or nodal service areas including,for example,specifications for amplifiers, active and passive devices,fiber coupling equipment and power supplies;and 4.System level trunking maps to illustrate the architecture of the system.The architectural design shall be shown on maps of industry standard scale using standard symbology,and shall depict all electronics and physical features of the cable plant. 5.The City shall have the opportunity to review such plans and comment on such plans.Licensee shall integrate the City's comments into the system within twenty (20) days of receipt of such request by City. I.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 sixty (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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 31 OF 59 fifteen (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. J.Construction Manual and Cut -Over Plan: No later than sixty (60)days before the date construction of the rebuild is to begin.Licensee shall provide for City review and approval,a rebuild construction manual,rebuild cut -over plan, installation manual,and plan for notifying area residents of the rebuild work process. K.Interconnection: 1.A Licensee shall interconnect its cable system with other systems located in the city,in nearby cities,or counties upon the request of the council,where the Apache Junction Cable 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 the adjacent License permits interconnection. L.Local Broadcast Channels: Each cable system shall carry as part of the basic local channels broadcast in its service area as required and defined in FCC regulations as amended. M.Technology Review: 1.The City and Licensee shall meet to discuss changes in Cable 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 Systems. 2.I f any of the following conditions occur,and upon written request of either Licensee or City,the City Manager and AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 32 OF 59 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 Streets and Public Rights -of -Ways,which is not subject to similar Licensing requirements of the City. 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. 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 (90)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 i t is intended to facilitate a process whereby the parties may reach a mutually acceptable agreement. N.Conditions of Street 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 33 OF 59 2.General Operational Practices.The construction,operation and maintenance of Licensee's plant and equipment,including but not limited to the headend and distribution system, towers,house connections,structures,poles,wire,cable, coaxial cable,fixtures and practices,shall be performed by appropriately licensed and qualified maintenance and construction personnel.The system shall be kept in a safe and suitable conditions 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 Streets or other 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 RE Radiation Cumulative Leakage Index ("CLI"). Licensee shall perform 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 RE radiation which Licensee cannot control is originating from inside the premises.Once a year, Licensee shall provide notice to the City of its schedule of RE 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 34 OF 59 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. 0.Placement of Facilities: 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 System Operator.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.The City retains the right to designate where Licensee may place its facilities within the Streets and other Public Rights -of -Way. P.Relocation for Public Improvements: 1.Request of the City. a.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 or other Public Right -of- Way,or to construct or reconstruct any water lines, AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 35 OF 59 sanitary or storm sewers,watercourses,drainage ditches,conduits,playgrounds,traffic control devices or other public improvements,Licensee shall,after thirty (30)days written request from the City,remove and relocate its poles, wires,cable,conduits and other fixtures at its own expense. Q.Transaction Privilege Taxes: Licensee shall obtain a City Business License,which will be the mechanism for assessing all transaction privilege taxes.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.If audited,Licensee shall comply with all requests of the City,and shall pay all applicable arrearages and or fees. 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. Section 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.Non-refundable filing fees in the following amounts are required: 1.For an initial License or renewal:$2,500. 2.For consent to transfer or change ownership:$2,000. 3.For License modifications: a.pursuant to 47 U.S.C.§545:$2,500. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 36 OF 59 B.License Fee: 1.In consideration of the fact the Streets of the City will be used by a Licensee in the operation of its Cable System within the boundaries of the City and said Streets 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 five percent (5%)of the Licensee's Gross Revenue,from all sources attributable to the operations of the Licensee within the Licensed area. 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 payable no later than thirty (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 paragraph 8 of this subsection and subject to 47 U.S.C.S542,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 thirty (30)days of its due date shall be deemed delinquent and subject to a late fee of two percent (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 three (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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 37 OF 59 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 ten percent (10%)of the total payments made during the preceding year.In the event such payment exceeds ten percent (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 such 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 thirty (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 five percent (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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 38 OF 59 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 One Hundred Thousand Dollars ($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 Twenty-five Thousand Dollars ($25,000),both being provided to the City Attorney within thirty (30)days after execution of the License Agreement and prior to any construction work in the public rights -of -way. D.Components of Performance 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:(i) the material provisions of this Agreement,the Cable Law,and other applicable Law;(ii)all orders,permits,and directives of the City;(iii)payment of fees due to the City;and (iv)payment of any claims or liens due to the City.Such losses,costs and expenses shall include but not be limited to attorney fees and other associated expenses. 2.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: AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 39 OF 59 "This bond may not be canceled or allowed to lapse, until sixty (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 ninety-five percent (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. E.Irrevocable Letter of Credit: Licensee shall provide an Irrevocable Letter of Credit in the amount of Twenty-five Thousand Dollars ($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.The form and content of such 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 thirty (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." In the event the letter of credit is insufficient to pay the City for any compensation,damages,penalties,costs or expenses owed i t 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 40 OF 59 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.Withdrawal Procedures.The City may immediately withdraw an appropriate amount from such funds including interest and penalties as applied against the letter of credit amount if: a.after ten (10) days notice the Licensee fails to pay the City any fees or taxes due and unpaid,liquidated damages,damages,or costs or expenses that the City is compelled to pay by reason of any act of default of the Licensee in connection with the License; b.after thirty (30)days notice to Licensee,the Licensee fails to comply with any provision of the License that the City reasonably determines to be remedied by an expenditure of the letter of credit amount. 5.Within fifteen (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,such 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 41 OF 59 amounts are in 1999 dollars and shall be increased each year by the CPI. 1.Failure to substantially complete the system rebuild, including the timeline of completion:$2,000 per day for each day the violation continues. 2.Failure to provide Government and Economic Development Channels and failure to make PEG capacity available:failure to construct required links to PEG facilities:failure to make payments to support PEG:$1,000 per day for each day the violation continues,in addition to any monetary payment under this Agreement or the Cable Law. 3.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 the License Agreement or applicable law or by the City: $400 per day for each day the violation continues. 4.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. 5.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. 6.For a violation of customer service standards:$200 per violation. 7.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 of the Cable Law. 8.Failure to file,obtain or maintain any required Performance Bond or Letter of Credit Amount:$50 per day. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 42 OF 59 9.Failure to restore damaged property:$50 per day,in addition to the cost of the restoration as required elsewhere herein. 10.For violation of technical standards established by the FCC: $50 per day. 11.For failure to comply with reasonable order of the City Manager:$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: 1.I f the Licensee violates any provision of law or of this License agreement,the City may have one or more of the following actions: a.impose liquidated damages provided herein: b.reduce the duration of the License period on any basis the City determines is reasonable and affords Licensee reasonable due process: c.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 d.seek legal or equitable relief from a court of competent jurisdiction. 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 43 OF 59 License provision alleged to have been violated.Licensee shall have fourteen (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"). I f corrective action is undertaken,i t shall be completed within thirty (30)days of the date the Violation Notice is given,unless Licensee's Correction Notice shows that the corrective action cannot be completed within thirty (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.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 fourteen (14)days the City Manager shall convene an administrative hearing.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 fourteen (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; AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 44 OF 59 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; 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; 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)I f a public hearing before the Council is requested by Licensee or is held otherwise,i t shall be de novo and i t shall convene within thirty (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 thirty (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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 45 OF 59 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; 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.If after the hearing the disputed claim is upheld by the Council,Licensee shall have thirty (30) days from the date of the mailing of the decision to remedy the violation or failure,unless corrective action cannot be completed within thirty (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.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. Section 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: 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 46 OF 59 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 or registered mail,return receipt requested upon the Licensee,and the Licensee shall be given at least fourteen (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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 47 OF 59 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 three (3)months and to commence basic service within six (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. h.For repeated material failure to maintain service quality under the standards prescribed for which the Licensee receives notice and fails to cure. i .Fails to restore service after twenty-four (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: In the event of termination or revocation of a License,the Licensee involved shall offer to sell the cable system,at the fair market value,to a new Licensee or applicant for a License.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. 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 AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 48 OF 59 until a buyer can be found,pursuant to the provisions of A.R.S.§9-509. D.Continuity of Service: 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.If Licensee seeks to sell or transfer,or i f 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 effected.This period of operation shall not exceed one hundred twenty (120)days from the occurrence of any of the above events.Revenues accrued during that period of time shall be received by the operator.During such 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 i f 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: Revocation of the License shall be accomplished by passage of an ordinance at a properly noticed hearing.An ordinance revoking the License shall include the reason for the City 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.An ordinance revoking the License shall not be passed without thirty (30)days written notice to Licensee that an ordinance to revoke the Licensee will be considered by the City Council.Licensee shall retain the privilege to be AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 49 OF 59 heard by the City Council or any City Council committee regarding the proposed revocation ordinance.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.Procedure.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.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. 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: I f Licensee fails to commence removal of its system,or the part that was designated,in accordance with this section,within sixty (60)days after written notice of the City's demand for removal is given,or if Licensee fails to complete removal without one (1) year after removal has begun,the City shall have the right to exercise one of the following options: 1.Assumption of Ownership.Declare all right,title and interest to the system to be in the City or its designee with AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 50 OF 59 all right of ownership including,but not limited to,the right to operate the system or transfer the system to another for operation.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 twelve (12)months. Section 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. Section 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 grant;provided,however,that said approval shall not be AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 51 OF 59 required where Licensee grants a security interest in its License and/or assets to secure an indebtedness. B.Controlling Interest Restrictions: 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.The term "controlling interest"as used herein is not limited to majority stock ownership,but includes actual working control in whatever manner exercised.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 fifteen percent (15%) or more by one Person.Acquisition by one Person of an interest of five percent (5%) or more in a single transaction shall require written notice to City. 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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 52 OF 59 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.License may not itemize any such reimbursement on subscriber bills,but may recover such expenses in its subscriber rates.Licensee shall also pay a Two Thousand Dollar ($2,000)fee for a sales,transfer,assignment or lease request pursuant to this Section. 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: 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.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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 53 OF 59 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: 1.If City does not indicate to Licensee in writing,within sixty (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 i f 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. Section 14-1-13 Indemnity and Insurance A.Indemnification of City Officials: Licensee shall indemnify,defend and hold harmless the City,the members of the City 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; AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 54 OF 59 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 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: 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.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:(a)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 (b)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. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 55 OF 59 D.Indemnity for Construction,Maintenance and Operation: 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 System. 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. 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 of Apache Junction as a named insured party. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 56 OF 59 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 sixty (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. Section 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.Such 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. B.Licensee Rules and Regulations: Copies of such 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: The City Manager or his or her designee shall have responsibility for the day-to-day administration of Cable operations within the AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 57 OF 59 City as governed by this chapter and the applicable License Agreements.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. Section 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. C.Cumulative Rights and Remedies: Except as specified herein,all rights and remedies of the City Manger and the Council in this chapter are cumulative and may be exercised singly or cumulatively at the discretion of the City Manager of the Council. Section 14-1-16 Rights Reserved to the 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. B.Any changes in federal or state laws,rules or regulations. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 58 OF 59 Section 14-1-17 Renewal of License for Triax Midwest Associates. L.P. Triax Midwest Associates,L.P.("Triax")is hereby granted a renewal of its current License Agreement previously granted,subject to new terms and conditions.The authority granted permits Triax to non -exclusively install,construct,operate and maintain a Cable System on and in the Streets and other Public Rights -of -Way within the corporate limits of the City of Apache Junction.Triax shall execute a License Agreement with the City in order to validate this granting of authority no later than fifteen (15)days from the date of adoption of this Chapter,otherwise the granting of the Renewal will be unenforceable. AMENDMENTS TO CHAPTER 14,CABLE SYSTEMS PAGE 59 OF 59