Sec. 7A-22. Reports.

   (1)   Annual reports. On or before March 31 of each year during the term of the license agreement, the licensee shall submit a written report to the licensing authority. The reports shall be submitted in accordance with forms prepared by the telecommunications administrator after providing a period for notice and comment and providing interested parties an opportunity for notice and comment on the forms. Until such forms are prepared after notice and opportunity for comment, the annual reports shall be prepared in accordance with the general business practices of a licensee and shall contain at least the following information regarding the previous calendar year:

   (a)   A summary of activities in the development of the system, including but not limited to services begun or discontinued, total number of subscribers, homes passed, subscribers added or discontinued and user participation, all per the provisions of this chapter and the license agreement.

   (b)   A list of all complaints and system downtime received or experienced during the reporting period. All such submitted data shall include complaint disposition and response time.

   (c)   A summary by category of complaints, identifying the number and nature of complaints and their dispositions.

   (d)   A fully audited revenue report, or a revenue report certified as correct by a Licensee's chief financial officer.

   (e)   A projected income statement and statement of projected construction for the next two (2) years.

   (f)   A list of officers and members of the board of directors of the licensee and its parents.

   (g)   A list of stockholders holding five (5) percent or more of the voting stock of the licensee or its parents.

   (h)   A copy of the licensee's annual report and those of its parents and subsidiaries.

   (i)   A full schedule of all subscriber and user rates, fees and charges for all cable services provided.

   (j)   A copy of subscriber and user agreements used by the licensee.

provided that, when it provides the information required by subsections (i) and (j), a licensee need not include proprietary MDU rates and agreements.

   (2)   Annual surveys. In addition to providing such other information as may be requested under section 7A-22(1), the licensee shall annually provide the following special reports:

   (a)   An annual opinion survey report which identifies subscriber satisfaction/dissatisfaction with cable services offered by the licensee. Surveys required to make said report shall be scientifically valid. In lieu of this obligation, a licensee may agree in a license agreement to pay a fixed sum to the city so that the city may perform the survey.

   (b)   An annual plant survey report, which shall be a survey of the licensee's plant and a full report thereon including new construction and complete annual outages by area of the city. The purpose of the report is to assure the city that the plant is being operated and maintained in accordance with applicable law. Said report shall include but not be limited to an appropriate engineering evaluation and shall be conducted in conformance with standard engineering practices. This requirement does not apply during a period of initial construction, or upgrade mandated by a license.

   (3)   Quarterly reports. Within forty-five (45) days of the end of each calendar quarter, each licensee shall submit a written report to the licensing authority. The reports shall be submitted in accordance with forms prepared by the telecommunications administrator after providing a period for notice and comment and providing interested parties an opportunity for notice and comment on the forms. Until such forms are prepared after notice and opportunity for comment, the quarterly reports shall be prepared in accordance with the general business practices of a licensee and shall contain the following information:

   (a)   A report showing compliance with the requirements regarding telephone calls specified in the customer service standards.

   (b)   The percentage of time service interruptions were cured within thirty-six (36) hours; the average time from notice that a problem existed to final cure; and the percentage of time that other service calls were resolved within ninety-six (96) hours.

   (c)   The percentage of time standard and non-standard installations were completed within the time required by sections 7A-11 and 7A-20.

   (d)   The total number of complaints received for the quarter, and the number of complaints by type of complaint; and complaints received as a percentage of basic subscribers.

   (e)   The total number of outages, divided into planned and unplanned outages, and showing the number of outages and the total duration of outages. An outage is defined as a loss of audio or video or impairment of audio or video affecting more than one subscriber.

   (f)   A list of all services offered by the licensee, including any non-cable services; provided that, after the initial filing, subsequent filings need only identify new services and changes in services offered.

   (4)   Reports to others. The licensee shall file promptly with the city a copy of any document the licensee files with the FCC, the Securities and Exchange Commission or any other regulatory agency with jurisdiction pertaining to the system. To the extent that such documents contain, to the satisfaction of the city manager, the information required by other reports hereunder, the city manager may suspend the requirements to file such other reports with the city so as to avoid duplication and the administrative costs attendant thereto. Alternatively, a licensee may comply with this subsection (4) by providing the city a list and short description of the documents it files, and providing copies of the documents upon request. The list must be kept current.

   (5)   Material misrepresentations. Any material misrepresentation made by the licensee in any report required by this section shall subject the licensee to the penalty provisions of this chapter and shall subject the licensee to all remedies available to the city by law.

   (6)   Access to books and records.

   (a)   The city may inspect and copy books and records of the licensee that are reasonably necessary to the enforcement of any provision of this chapter; the license agreement; to the conduct of performance evaluation sessions; or to the exercise of any authority that the city may have under the same or any other provision of applicable law. Without limiting the foregoing, a licensee shall provide the city access to complaint data to enable the city to fully investigate subscriber complaints. Books and records shall be produced to the city for inspection at City Hall or at such other mutually agreed upon location within the city. The city will not unreasonably refuse a request that it inspect documents at the licensee's facilities within the city. Provided, however, that nothing in this chapter shall be read to require the licensee to violate any provision of federal or state law relating to customer privacy. Information requested shall be made available for inspection within fourteen (14) business days of a request therefor, which period shall be subject to extension for good cause shown where no harm will result to the public interest from the delay.

   (b)   A licensee must produce the books and records requested by the city even if the licensee does not believe that the request satisfies the standard set out above, unless the city waives the requirement, or the licensee obtains a court order from a court of competent jurisdiction enjoining the request.

   (c)   A licensee may not refuse to produce books and records on the ground that such books and records contain proprietary information. However, all proprietary information received by the city from a licensee and clearly marked as such shall not be publicly disclosed insofar as permitted by the Arizona Public Records Law, A.R.S. 39-121 et. seq. and other applicable law. The city will notify a licensee if any third party seeks access to any document that is marked confidential, and the city will withhold releasing the document for the maximum period permitted by law to permit the licensee to seek court protection against the release of the requested documents.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-23. Performance evaluation sessions.

To provide for technological advances in the state of the art of cable communications, to promote the maximum degree of flexibility and utilization of the system, to evaluate the licensee's performance and compliance with the provisions of this chapter and the license agreement, and to evaluate the performance of every operator to ensure that the quality of every operator's service continues to reasonably meet the needs of the community, the city and each licensee shall comply with the following review procedures:

   (1)   The city may commence a regularly scheduled review session any time after the second anniversary date of the execution of the license agreement and subsequently every two (2) years thereafter. All review sessions shall be open to the public notice of date, time, location and agenda shall be given by the licensee, at the licensee's cost, by provision of the city of a bill insert to be included in subscribers' bills to arrive at least fourteen (14) days prior to the meeting, and by publication at least once in a newspaper of citywide general circulation at least one (1) week prior to each session. In addition, the licensee shall announce the date, time and location of each session on each of at least five (5) days immediately preceding each session at a minimum of six (6) regularly scheduled intervals daily on at least two (2) subscriber channels of the system. Provided that, the city may waive the billing notice requirement where the notice would be ineffective, and provided further, a licensee is not obligated to provide notice using billing inserts unless: (i) at least ninety (90) days prior to the date scheduled for the review session, the city notifies licensee that it wishes the licensee to provide notice using billing inserts; and (ii) the city provides the licensee the text to be used in the billing inserts or, if the licensee requests it, the billing inserts (prepared in accordance with the standard format for billing inserts used by a licensee).

   (2)   Topics for discussion and review at the regular review sessions shall include but shall not be limited to the following:

Rate structure, free or discounted services, application of new technologies, system performance, services provided, programming, subscriber complaints, user complaints, rights of privacy, construction progress, community service channel implementation and utilization, amendments to this chapter, undergrounding process and developments in the law.

   (3)   The city may hold special review sessions at any time on specific issues relevant to the system. All such review sessions shall be open to the public and shall be advertised, if possible, as provided in paragraph (1) of this section. Either the city or the licensee may select additional topics for discussion at any regular or special review session.

   (4)   The city shall provide for the taking of written minutes and a recording of all review sessions held.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-24. Renewal, revocation, or forfeiture of license.

   (1)   Renewal. The procedure for considering renewal of the license agreement shall be as provided by federal law.

   (2)   Revocation, procedure. Where, after notice and providing the licensee an opportunity to be heard (if such opportunity is timely requested by a licensee), the city finds that the facility is being maintained or operated in violation of this chapter or in substantial violation of the terms of the license, the city may revoke the license. The license may not be revoked unless the licensee (1) was given notice of the default; and (2) sixty (60) days to cure the default; and (3) the licensee failed to cure the default fully and completely to prevent the recurrence of the same or a similar violation, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in sixty (60) days; except that, fraud shall be deemed incurable. The city manager or his designee is authorized to provide the notice and conduct a proceeding that provides the licensee an opportunity to be heard, and to issue a recommended decision, but any such decision may be appealed to the city council. Any appeal must be filed within thirty (30) days of the decision of the city manager or it shall be deemed waived.

   (3)   Exceptions/forfeiture. Notwithstanding the foregoing, the city may declare the license forfeited where the licensee (1) fails to begin to exercise its rights under the license or fails to commence or complete any required rebuild of its system within nine (9) months of a period specified in the license; (2) willfully stops operating the cable system as it is required to operate it under the license in a substantial portion of the license area; (3) without the prior consent of the city, transfers the license; or (4) defrauds or attempts to defraud the city or the operator's customers. However, before declaring the license forfeited, the city shall notify the licensee in writing of its intent to declare the license forfeited and provide the licensee with an opportunity to show cause why the license should not be forfeited.

   (4)   Effect of termination or forfeiture. Upon termination or forfeiture of a license, whether by action of the city as provided above, or by passage of time, the licensee shall be obligated to cease using the cable system for the purposes authorized by the license.

   (5)   Remedies cumulative. All remedies under this chapter and any license are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a licensee of its obligations to comply with its license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a licensee's duty to indemnify the city in any way; nor shall such recovery relieve a licensee of its obligations under a license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double-recovery of damages.

   (6)   Right to require dismantling. In the event that the city exercises its option to require the licensee to dismantle the system, the licensee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-25. Continuity of service.

The 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 the licensee overbuilds, rebuilds, modifies, or seeks permission to transfer the system; or if the city revokes, fails to renew, or otherwise terminates the license agreement or declares it forfeited, or elects to purchase the system; or if for any reason the license becomes void, the licensee shall continue to operate the system in a normal and orderly manner until an orderly and lawful change of operation is effectuated. This period of operation shall not exceed thirty-six (36) months from the date of occurrence of any of the above events, or the date any appeals of the same are finally concluded, whichever is later. During such interim period, the licensee shall not make any material, administrative or operational change that would tend to (1) degrade the quality of service, (2) decrease revenues, or (3) materially increase expenses, without the express written permission of the city. In addition to providing grounds for termination, if the licensee fails to operate the system for ninety-six (96) consecutive hours without prior approval of the city or fails to continue operation on the occurrence of any of the events stated in this section, the city shall have the right to operate the system, either directly or through a designate, until such time as a new operator is selected. If the city is required to fulfill this obligation for the licensee, the licensee shall reimburse the city for any and all costs, fees or damages incurred by the city.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-26. Purchase of system by city.

   (1)   Rights To purchase. In the event the city terminates, or revokes the license agreement or declares the license forfeited pursuant to any provisions of this chapter, or at the normal expiration of the license agreement (referred to collectively and individually in this section by use of the term terminate or termination), the city shall have the first option, directly or as an intermediary, to purchase the system. The city shall have ninety (90) days prior to the effective date of termination and an additional ninety (90) days following the conclusion of any appeal of the termination, to notify the licensee of the city's intent to exercise the option to purchase stated herein.

   (2)   Valuation. In the event of a termination of the license agreement by the city for cause, the city may purchase the system for an equitable price. "Equitable price" means fair market value adjusted downward for the harm to the city or subscribers, if any, resulting from Licensee's breach of its license agreement, or violation of this chapter, and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. § 547. Upon other termination of the license agreement the value of the system shall be solely based on the fair market value of the system.

   (a)   No value shall be assigned to the license itself whether termination is or is not for cause.

   (b)   "Valuation" as referred to above shall be determined by audit of system assets pursuant to generally accepted auditing principles. Procedures for valuation may be specified in a license agreement.

   (3)   Date of valuation. The date of valuation shall be ninety (90) days after city gives licensee notice of its intent to exercise the option to purchase.

   (4)   Transfer to city. Upon exercise of the city's option to purchase and written notice of such action by the city to the licensee, the licensee shall, immediately upon payment of the purchase price by the city, transfer to the city possession and legal title to all system facilities and property, both real and personal, free from any and all liens and encumbrances not agreed to be assumed by the city in lieu of a portion of the purchase price; and the licensee shall execute such warranty deeds or other instruments of conveyance to the city as shall be necessary to effectuate this transfer.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-27. Foreclosure and receivership.

   (1)   In the case of a foreclosure or other judicial sale or termination of lease of the plant, property or equipment of the licensee, or any substantial part thereof, or any rights under the license agreement, the licensee shall serve written notice upon the city of any such event; and the city may serve written notice of termination upon the licensee and the successful bidder at such sale, in which event the license and the license agreement and all rights and privileges of the licensee thereunder shall cease and terminate thirty (30) days after service of such notice, unless:

   (a)   The mayor and council have approved the transfer of ownership of the license, in accordance with all pertinent provisions of section 7A-28 ("Transfers and Assignments"); and

   (b)   Such successful bidder shall have covenanted and agreed with the city, in writing in a form approved by the city attorney, to assume and be bound by all the terms and conditions of this chapter and the license agreement.

   (2)   The license shall terminate one hundred twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the licensee, whether in receivership, reorganization, bankruptcy or other related action or proceeding.

   (3)   Failure to comply with the provisions of paragraph (1) of this section shall be deemed an unauthorized transfer pursuant to the provisions of section 7A-28 ("Transfers and Assignments").

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-28. Transfers and assignments.

The procedures for transfers and assignments of the license agreement will conform to the requirements as set forth in federal law and applicable FCC regulations and will include the following requirements:

   (1)   The licensee shall not sell, transfer, assign, exchange or release, or permit the sale, transfer, assignment, exchange or release of more than five (5) percent of the ownership of the system or rights in the license agreement to a person (hereinafter "proposed transferee"), without the prior written authorization of the mayor and council. For purposes of this section, a merger or consolidation shall be deemed a transfer or assignment. Any transaction in which actual working control of a licensee or its system, in whatever manner exercised, is transferred, shall be deemed a transfer. The mayor and council specifically reserve the right to deny, restrict or condition authorization to transfer upon the criteria stated in this section and any other lawful criteria the mayor and council determine to be necessary in the public interest.

   (2)   The licensee shall provide the following information to the city:

   (a)   All information and forms required under federal law or the equivalent of such forms if no longer required by federal law;

   (b)   Any contracts or other documents that constitute the proposed transaction and all documents, schedules, exhibits, or the like referred to therein;

   (c)   Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction;

   (d)   Complete information regarding any potential impact of the transfer on subscriber rates and service and system debt; and

   (e)   A brief summary of the proposed transferee's plans for at least the next five (5) years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.

   (3)   Once the required information has been provided, the transfer application shall be subject to review by the city and any approval shall be subject to the city's determination that:

   (a)   The proposed transferee has the qualifications to construct, operate and repair the system proposed in conformity with applicable law;

   (b)   The proposed transferee will accept the conditions established by the city on the transfer; and the proposed transferee will enter into a license and comply with any conditions precedent to its effectiveness. This section does not authorize the city to exercise authority it does not otherwise have under applicable law.

   (4)   Any approval will also be subject to a determination by the city that:

   (a)   There will be no adverse effect on subscribers, the public, or the city's interest in the license;

   (b)   Transferee will agree to be bound by all the conditions of the license and to assume all the obligations of its predecessor;

   (c)   Any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the city; and

   (d)   The proposed transferee and the current licensee have provided all required information so that the city may act on the application.

   (5)   Any proposed transferee shall execute an agreement, in such form as acceptable to the city attorney, that it will assume and be bound by all of the provisions, terms and conditions of this chapter, the license agreement and any other conditions the mayor and council may have established in granting authorization as contemplated by subsections (1) through (4).

   (6)   No transfer under paragraph (1) of this section shall be permitted within fifteen (15) months prior to the expiration date of the license agreement.

   (7)   The occurrence of an unauthorized transfer or assignment may, at the option of the city, provide the mayor and council with cause to immediately terminate the license agreement and accelerate all of the obligations and rights as provided in section 7A-24.

   (8)   From and after any occurrence constituting an unauthorized transfer or assignment, the putative transferee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract or any loan, lease, pledge, security agreement, sale, pole agreement or any other agreement or hypothecation concerning any system facilities or property, whether real or personal, without the written approval of the mayor and council.

   (9)   Nothing in this section shall be deemed to prohibit the use of the licensee's property as collateral for security in regard to construction financing. However, any such financing arrangements shall be subject to all provisions of this chapter and the license agreement. In no case may any person, including the institution holding the system as collateral, succeed to the ownership or control of the system or the license without the prior approval of the city.

   (10)   Nothing in this section shall be read to prohibit licensee from providing information subject to the protections for proprietary information under this chapter or a license agreement.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-29. Subscriber antennas.

The licensee is expressly prohibited from requiring the removal of any potential or existing subscriber antennas as a condition for provision of service.

(Ord. No. 8937, § 2, 9-2-97)

Sec. 7A-30. Indemnification and disputes regarding issuance of license.

   (1)   The licensee shall indemnify, save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind (including but not limited to libel, slander, invasion of privacy, unauthorized use of any trademark, trade name or service mark, copyright infringement, injury, death or damage to person or property) arising out of or in any way connected with the installation, construction, operation, maintenance or condition of the system. The licensee shall assume all risks in the operation of the system and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of the performance of the license agreement. The amounts and types of insurance coverage requirements set forth in section 7A-31 ("insurance") shall in no way be construed as limiting the scope of indemnity set forth in this section. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto.

   (2)   Disputes regarding issuance of license:

   (a)   Licensee shall indemnify save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind arising from the defense of any litigation brought by third parties challenging the right of the city to issue the license under state law. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto. In the event that any such litigation ensues, the city may, but is not required to, tender the defense of such litigation to licensee, which shall then defend the litigation; provided, however, that if the city tenders such defense to licensee, licensee shall have the right to retain counsel of its own choice, to settle all or any part of the litigation on terms acceptable to licensee (and as determined in the sole discretion of the city, acceptable to the city), or at any time of its election, to terminate its license under the termination terms provided in the license and withdraw from any such litigation.

   (b)   Licensee shall assume the risk of, and shall relinquish any claim against the city in connection with any final, non-appealable determination by a court of competent jurisdiction that the city lacked the current statutory authority to issue the license.

(Ord. No. 8937, § 2, 9-2-97)