Article 2 — GENERAL PROVISIONS

No person may construct, operate or repair a cable communications system in the city without first obtaining a franchise therefor from the city pursuant to the terms and provisions of the city's municipal code and this chapter. No person may construct, operate or repair any facilities that are: (i) located in the public rights-of-way; and (ii) used to transmit video programming in connection with the delivery of cable service, whether in the city or in a neighboring jurisdiction, without also first obtaining a franchise from the city.

(Ord. 2036 § 1(part), 2003).

Any franchise shall be issued in the form of an ordinance and must be accepted by the franchisee pursuant to the terms of this chapter and the franchise ordinance to become effective.

(Ord. 2036 § 1(part), 2003).

Unless otherwise agreed to in a franchise ordinance, a franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair: (i) a cable system; (ii) an OVS; or (iii) facilities used to transmit video programming in connection with the delivery of cable service; (as applicable) pursuant to the terms of its franchise ordinance and this chapter to provide cable service in city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along those public rights-of-way that city may authorize a franchisee to use.

(a)

A franchise shall not convey rights other than as expressly specified in this chapter, or in a franchise ordinance; no rights shall pass by implication.

(b)

A franchise shall not include, or be a substitute for:

(1)

Complying with lawful requirements for the privilege of transacting and carrying on a business within city, including but not limited to complying with any conditions city may lawfully establish before constructing facilities for, or providing, non-cable services;

(2)

Any permit, agreement or authorization required pursuant to the generally applicable exercise of the city's police power in connection with construction, operation or repair on or in public rights-of-way or public property, including by way of example and not limitation, street cut permits;

(3)

Any permits or agreements pursuant to the generally applicable exercise of the city's police power for occupying any other property of city or private entities to which access is not specifically granted by the franchise.

(c)

A franchise does not relieve a franchisee of its duty to comply with city's municipal code, all city ordinances, resolutions, written policies, and regulations, and every franchisee must comply with the same. The rights granted under a franchise ordinance are subject to the exercise of police and other powers city now has or may later obtain, including but not limited to the power of eminent domain. The terms of every franchise granted shall be subordinate to all the requirements of the Campbell Municipal Code.

(d)

A franchise does not convey title, equitable or legal, in the public rights-of-way or public property. The grant of a franchise shall not authorize any person other than the franchisee holding that franchise to own or operate facilities in the public rights-of-way, except in accordance with this chapter or the franchisee's franchise ordinance.

(Ord. 2036 § 1(part), 2003).

No franchise shall be exclusive, or prevent city from issuing other franchises or authorizations, or prevent city from itself constructing, operating, or repairing its own cable communications system, with or without a franchise.

(Ord. 2036 § 1(part), 2003).

Every franchise shall be for a term of years set forth in the franchise ordinance, which term shall be a maximum of fifteen years.

(Ord. 2036 § 1(part), 2003).

The city shall not be liable for any cost or expense arising out of franchisee's performance of its obligations under a franchise or this cable ordinance, or incurred by the franchisee in the course of performing such obligations.

(Ord. 2036 § 1(part), 2003).

If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, city may perform the work or cause the work to be performed and bill the

operator therefor. The operator shall pay the amounts billed within thirty days. Nothing in this section applies to work performed on subscriber premises.

(Ord. 2036 § 1(part), 2003).

(a)

City may from time to time adopt regulations to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to this chapter are not contracts with any franchisee.

(b)

The city manager or its designees are hereby authorized to administer and enforce the provisions of this chapter and any franchise issued pursuant hereto, to provide any notices (including noncompliance notices), and to take action on city's behalf that may be required hereunder or under applicable law.

(c)

The failure of city, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise ordinance or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

(d)

City may designate one or more persons, including itself, to control and manage the use of public, educational or government access channels, facilities and equipment.

(Ord. 2036 § 1(part), 2003).

(a)

Unless otherwise agreed to in a franchise ordinance, no transfer of a franchise, franchisee, or cable communications system, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made by the franchisee to city and city's prior written consent is obtained, pursuant to this chapter and the franchise ordinance, and only then upon such lawful terms and conditions as city deems necessary and proper to protect the public interest.

Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of city shall be deemed to impair that trust. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

(b)

Unless otherwise agreed to in a franchise ordinance, a change of control of a franchise, occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a franchisee or

its direct or indirect parents. Without limiting the above, if a franchisee is organized as a partnership, the substitution of a general partner of a franchisee will be presumed a change in control.

(c)

Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without city's prior consent. However, no such arrangement may be made if it would in any respect under any condition: (1) prevent the cable communications system operator or any successor from complying with, this chapter, the franchise ordinance or other applicable law or regulation; or (2) permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of city under any franchise, this chapter, or other applicable law.

(Ord. 2036 § 1(part), 2003).

(a)

The construction, operation, and repair of cable communications systems shall be performed in compliance with all applicable state and federal laws and generally applicable exercises of the city's police powers. By way of example, and not limitation, this includes Title 21 of the Campbell Municipal Code (i.e., the city's zoning ordinance), the city of Campbell standard specifications and details for public works construction, IEEE standards, the National Electronic Code, and the National Electrical Safety Code. City shall have the right to restrict construction, operation, maintenance and/or repair of a cable communications system or of any of franchisee's facilities located in the public rights-of-way to certain specific days and hours as determined by city. Persons engaged in the construction, operation, or repair of cable communications systems shall exercise reasonable care within the meaning of applicable law in the performance of all their activities, and shall install and maintain in use commonly accepted methods and/or devices to reduce the likelihood of damage, injury, or nuisance to the public or to property.

(b)

A franchise is required before a permit may be issued for work associated with the construction, operation or repair of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon and in full compliance with city's demand.

(c)

Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city officials and all required fees have been paid. A franchisee shall reimburse city for all costs associated with the review and inspection of the franchisee's design and construction proposals. Such costs shall include but are not limited to administrative and engineering review, clerical costs, inspection costs during construction, and other related costs. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of city, any work and/or construction undertaken that is not completed in compliance with city's requirements, or which is installed

without obtaining necessary permits and approvals shall be removed in accordance with the reasonable timeline set forth by city. A franchisee shall reimburse the city for costs incurred in inspecting construction undertaken in the course of major upgrades and/or installation of fiber optics.

(d)

Not less than seven days prior to beginning construction or installation that involves excavation, obstruction of or interference with a public right-of-way, or which otherwise causes disruption or a nuisance to the immediate vicinity, a franchisee shall provide written notice to all residences and businesses that are located within a node radius of the site of such construction or installation. The notice shall describe the nature of the construction or installation, the estimated time the project shall take, and the days and hours when construction and installation shall occur. The notice shall also provide an address and telephone number for the recipient to contact if they desire more information about the construction or installation project.

(e)

Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. City may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way. Franchisee shall be required, upon notice, to send a representative to all utility coordination meetings held by city and shall agree to honor city's five-year "no cut" policy for overlaid and reconstructed streets.

(f)

To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city engineer.

(g)

(1)

Whenever all existing utilities are located underground in an area in city, every cable communications system operator installing its system in the same area must locate its cable communications system facilities underground.

(2)

Whenever the owner of a pole locates or relocates underground within an area of city, every cable communications system operator in the same area shall concurrently relocate its facilities underground.

(3)

The city engineer may exempt a particular cable communications system or facility or group of cable communications systems or facilities from the obligation to locate or relocate the cable communications system or facility underground, where relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner. Nothing in this section prevents city from ordering cable

communications system facilities to be located or relocated underground under other provisions of the municipal code.

(h)

An operator shall repair any disturbance or damage to public property, or private property caused by the operator's construction, operation or repair of a cable communications system. Public property and public rights-of-way must be restored to the satisfaction of city or to a condition as good or better than before the disturbance or damage occurred.

(i)

(1)

Except as otherwise provided in a franchise ordinance, a franchisee will protect, support, temporarily disconnect, relocate, or remove any of its property at the time and in the manner required by the city or any other governmental entity by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements of public agencies. Except in an emergency, the city shall provide written notice describing where the work is to be performed at least two weeks before the deadline for performing the work; a franchisee may seek an extension of the time to perform the work where it cannot be performed by the deadline even with the exercise of due diligence, and such request for an extension will not be unreasonably refused.

(2)

If a franchisee receives notice hereunder and does not receive an extension, and the franchisee fails to take necessary action to protect, support, temporarily disconnect, relocate, or remove its property as required by city, then city may take whatever steps it deems necessary to protect, support, temporarily disconnect, relocate, or remove the franchisee's property and the franchisee shall be required to reimburse city upon written demand for the cost incurred in taking such action. If a franchisee fails to pay city the amount of these costs within thirty days of receiving such written demand, provided franchisee has not exercised any rights it may have to lawfully challenge the costs, city shall be entitled to collect these costs from any security fund provided pursuant to the franchisee's franchise.

(j)

(1)

If any removal, relaying or relocation is required to accommodate the construction, operation or repair of the facilities of another person authorized to use public rights-of-way, franchisee will, after fifteen days' advance written notice, use reasonably good faith efforts to effect the necessary changes requested by such person. Unless the matter is governed by state law, or unless the franchisee's cable system was improperly installed and if installed properly, the removal, relocation or relaying would be unnecessary, the reasonable expense associated with such removal, relaying, or relocation will be borne by the person requesting the removal, relaying, or relocation. The city may direct franchisee to remove, relay, or relocate its facilities pending resolution of a dispute as to responsibility for costs upon posting of a bond by the

person requesting such removal, relaying or relocation in the amount of franchisee's estimated costs, and upon agreement by the requesting party to cover any reasonable expenses of franchisee related thereto.

(2)

A cable communications system operator shall, on the request of any person holding a valid building moving permit issued by a governmental authority, temporarily raise or lower its wires by a reasonable time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same.

(k)

(1)

In the event of a relocation for the government pursuant to Section 420I1, a franchisee may abandon any property in place in the public rights-of-way or upon public property upon written notice to city. However, if the city determines, in the exercise of its reasonable discretion exercised, within ninety days of the date the required written notices are received, that the safety, appearance, functioning or use of the public right-of- way or public property and facilities in the public right-of-way or on public property will be adversely affected, the property must be removed by a date specified by city. In the event that a franchisee does not remove such property by the date specified by city, city may remove the property without any further notice and the franchisee shall be required to reimburse city for the removal cost.

(2)

A franchisee that abandons its property must, upon request, transfer ownership of the property to city at no cost, and execute necessary quitclaim deeds; whether or not ownership is transferred, the franchisee must indemnify city against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

(l)

The city may inspect and conduct reasonable tests of the cable system upon receipt of reasonable evidence of failure to meet applicable technical performance obligations, and to ensure compliance with the cable ordinance, this franchise, and applicable provisions of local, state and federal law.

(m)

Each franchisee that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The franchisee shall locate its facilities for city at no charge.

(n)

At least sixty days prior to commencing construction, each cable communications system franchisee shall provide city a plan for any initial cable communications system construction, operation or repair or for any

substantial rebuild, upgrade or extension of its cable communications system, which shall show its timetable for construction of each phase of the project, and the areas of city that will be affected.

(o)

A franchisee shall use reasonable efforts to provide interconnections with all other cable systems and open video systems in the city, for the purpose of sharing institutional network and PEG access communications across networks, provided franchisee is able to reach agreement with the other operator for the interconnection on reasonable terms and conditions and the city obtains any necessary consent from the adjacent cable system's franchising authority.

(p)

A franchisee shall provide free and useable access to its poles and conduits to the city and for PEG access provided that any out-of-pocket costs incurred by the franchisee associated therewith shall be borne by city and such use does not hinder the operations of the franchisee, is used for solely governmental purposes, and is not used to compete against the franchisee in any manner.

(q)

Franchisee shall notify the city if another party occupies franchisee's poles or conduit within the city and will identify the identity of occupant and the location of occupant's facilities in or on such poles or conduit.

(Ord. 2036 § 1(part), 2003).

(a)

Unless otherwise agreed to in a franchise ordinance, each franchise shall include an indemnity that must, to the extent permitted by law:

(1)

Release city and the redevelopment agency from and against any and all liability and responsibility in or arising out of the construction, operation, repair or maintenance of the cable communications system. Each cable communications system operator must further agree not to sue or seek any money or damages from city or the redevelopment agency in connection with the above mentioned matters; and

(2)

Indemnify, save and hold harmless, and faithfully defend the city, the redevelopment agency and each of their officers, commissions, commissioners, boards and employees, from and against any liability for damages resulting from, and for claims, suits, causes of action, proceedings and judgments arising from: (i) property damage; (ii) bodily injury (including accidental death); (iii) invasion of the right of privacy, defamation of any person, firm or corporation; and (iv) violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any person, firm, or corporation, including a failure by the franchisee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the cable system; which arise out of the franchisee's construction,

operation, or maintenance of its cable system, provided that the city shall give franchisee written notice of its obligation to indemnify the city within fifteen days of receipt of a claim or action pursuant to this subsection. Notwithstanding the foregoing, franchisee shall not indemnify the city for any damages, liability or claims resulting from the willful misconduct or sole negligence of the city.

(b)

A franchisee (or those acting on its behalf) shall not commence construction or operation of the cable communications system without first obtaining insurance in amounts and of a type specified in the franchise ordinance. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way or on public property. If the franchisee, its contractors, or subcontractors do not have the required insurance, city may order such persons to stop operations until the insurance is obtained and approved.

(c)

Unless otherwise agreed to in a franchise ordinance, certificates of insurance, reflecting evidence of the required insurance and naming city and the redevelopment agency as additional insureds, shall be filed with city clerk. For persons issued franchises after the effective date of this chapter, certificates shall be filed within thirty days of the issuance of a franchise, once a year thereafter, and whenever there is any change in coverage. For persons that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within thirty days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise ordinance expressly provides for filing of certificates in a different manner. Each franchisee's insurance coverage shall be primary insurance as respects the city. Any insurance or self-insurance maintained by the city shall be excess of the franchisee's insurance and shall not contribute with it.

(d)

Unless otherwise agreed to in a franchise ordinance, certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least sixty days' prior written notice has been given to city. Policies shall be issued by companies authorized to do business under the laws of the state of California. Financial ratings shall be no less than "A" in the latest edition of "Bests Key Rating Guide," published by A.M. Best Guide. Upon request, franchisee shall provide city clerk with written proof of such financial ratings.

(e)

A cable communications system operator shall maintain the following minimum insurance. City and the redevelopment agency shall be named as an additional insured on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.

(1)

Comprehensive general liability insurance to cover liability from bodily injury and property damage. Exposures to be covered shall include: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following minimum limits of liability:

(2)

Minimum limits of liability:

(A)

Bodily Injury. .....

(i)

Each Occurrence .....$1,000,000.00

(ii)

Annual Aggregate .....$3,000,000.00

(B)

Property Damage. .....

(i)

Each Occurrence .....$1,000,000.00

(ii)

Annual Aggregate .....$3,000,000.00

(C)

Personal Injury. .....

(i)

Annual Aggregate .....$3,000,000.00

Completed operations and products liability shall be maintained for two years after the termination of the franchise or license (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).

Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - Collapse, U - underground.

(3)

Workers' compensation insurance shall be maintained during the life of the franchise to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and

subcontractors shall maintain during the life of this policy employers liability insurance. The following minimum limits must be maintained:

(4)

Comprehensive Auto Liability.

(A)

Bodily Injury.

(i)

Each Occurrence .....$1,000,000.00

(ii)

Annual Aggregate .....$3,000,000.00

(B)

Property Damage.

(i)

Each Occurrence .....$1,000,000.00

(ii)

Annual Aggregate .....$3,000,000.00

Coverage shall include owned, hired, and non-owned vehicles.

(5)

Broadcaster's liability coverage, in amounts specified in a franchise ordinance, if an operator of a cable communications system will be producing or originating programming.

(f)

Every franchisee shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise ordinance. In the case of any franchise ordinance that requires a franchisee to initially build, or to upgrade a system, the amount of the bond shall be in an amount sufficient to ensure that the required construction is satisfactorily completed. The amount of the bond may be reduced upon successful completion of the required construction. The amount of the performance

bonds shall be set by the city manager or may be set in a franchise ordinance in light of the nature of the work to be performed pursuant to or under the franchise. The bond is not in lieu of any additional bonds that may be required through any permitting process. The bond shall be in a form acceptable to the city attorney. However, any performance bond issued hereunder must be issued by a surety with an A-1 rating or better rating of insurance in the latest edition of Best's Key Rating Guide, Property/Casual Edition. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(g)

Every franchisee shall establish and maintain a cash security fund or provide city an irrevocable letter of credit in an amount specified in the franchise ordinance but no less than one hundred thousand dollars to secure the payment of fees owed, to secure any other performance promised in a franchise ordinance, and to pay any taxes, fees or liens owed to city. The letter of credit shall be in a form and with an institution acceptable to city's director of finance and in a form acceptable to the city attorney. Should city draw upon the cash security fund or letter of credit, the franchisee shall, within fourteen days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by city for a franchisee where city determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(Ord. 2036 § 1(part), 2003).

(a)

The city council may revoke a franchise if it finds, after a hearing, that a franchise has committed a material violation of any provision of this chapter, committed a material breach of its franchise ordinance or repeatedly failed to comply with its franchise ordinance; has defrauded or attempted to defraud city or subscribers; or has attempted to evade the requirements of this chapter or its franchise ordinance. Before conducting a hearing to revoke the franchise: (1) the city manager must have given notice of a claimed violation, breach, default or failure; and (2) the franchisee must have been given thirty days to: (a) cure the claimed default; or (b) in the event that, by the nature of the default, such default cannot be cured within the thirty day period, initiate reasonable steps to remedy such default and notify the city of the steps being taken and the projected date that they will be completed. If the franchisee challenges the assertion of violation, the franchisee shall have ten days from receipt of notice to respond to city challenging the assertion of violation, by providing evidence that there is no violation. If city rejects franchisee's challenge, franchisee will be notified of the rejection and start of the thirty-day cure period. The franchisee will be given at least thirty days notice of the hearing date, and will be provided an opportunity to be heard at the hearing. The city council will consider evidence and testimony and render findings and its decision no more than ninety days following conclusion of the hearing. Any revocation proceeding must be conducted in accordance with then applicable federal and state law, if any.

(b)

City may declare a franchise forfeited without opportunity to cure where a franchisee voluntarily stops providing service it is required to provide.

(c)

To the extent not prohibited by the United States Bankruptcy Code, a franchise will terminate automatically by force of law one hundred eighty calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that one hundred eighty day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise ordinance, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise ordinance. To the extent not prohibited by the United States Bankruptcy Code, in the event of foreclosure or other judicial sale of substantially all of the facilities, equipment or property of a franchisee, city may revoke the franchise following a public hearing before the city council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate thirty calendar days after serving such notice, unless: (1) city has approved the transfer of the franchise to the successful bidder; and (2) the successful bidder has covenanted and agreed with city to assume and be bound by the terms and conditions of the franchise ordinance and this chapter.

(d)

Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, city may do one or a combination of the following.

(1)

The city may require the former franchisee to remove all or a portion of its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, city may have the removal done at the former franchisee's and/or surety's expense, subject to any right of abandonment provided for under applicable law.

(2)

The city, by resolution of the city council, may acquire ownership or effect a transfer of all or a portion of the cable communications system at fair market value, or, if the franchise terminates or is revoked for cause, an equitable price. The terms "equitable price" and fair market value shall be interpreted in accordance with 47 U.S.C. § 547.

(3)

Subsection (d)(3) of this section does not apply to an abandonment. If a cable communications system or any part thereof is abandoned by franchisee, city may require the franchisee to transfer title to all or some of the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become city's property and city may keep, sell, assign, or transfer all or part of the assets of the cable communications system, or otherwise dispose of those assets as it sees fit.

(4)

Notwithstanding the foregoing, city may not, pursuant to this section, issue an order that violates 47 U.S.C. § 541(b)(3)(c).

(e)

Remedies provided for under this chapter, or under a franchise ordinance shall be cumulative and are in addition to all other remedies which may be available at law or equity. Recovery by city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify city; or relieve a franchisee of its franchise obligations or limit the amounts owed to city.

(f)

Each franchise shall contain a provision specifying liquidated damages payable to city in the event of a breach of a franchise obligation where damages would otherwise be difficult to ascertain.

(Ord. 2036 § 1(part), 2003).

(a)

The city shall, upon thirty days' written notice to a franchisee, have the right to inspect and copy books and records that are related in whole or in part to the construction, operation or repair of the cable communications system; that the city deems relevant to monitoring compliance with the terms of this chapter, a franchise or applicable law; or that the city deems relevant to the exercise of any right or duty of the city under the same. Each cable communications system operator is responsible for maintaining control over such books and records, whether created by grantee, or by those acting on its behalf. It is responsible for producing these records upon city's request, for city's inspection and copying. Books and records must be maintained for a period five years, except that a franchise ordinance may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.

(b)

Books and records requested shall be produced for review at city hall, or such other location, the parties may agree. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by city and the franchisee, provided that: (1) the franchisee must make necessary arrangements for copying documents selected by city after its review; and (2) the franchisee must pay all travel and additional copying expenses incurred by city (above those that would have been incurred had the documents been produced in city) in inspecting those documents or having those documents inspected by its designee.

(Ord. 2036 § 1(part), 2003).

(a)

The city manager may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the manager, in addition to those required by this chapter.

(b)

Upon written request by the city manager, within forty-five days of the end of each calendar year, a franchisee shall submit a report to city containing the following information:

(1)

The number of service calls (calls requiring a truck roll) received during the prior year and the percentage of service calls compared to the subscriber base; and

(2)

The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of all sound or video on any signal, affecting five or more subscribers.

(c)

Unless an exemption is granted by the city manager, no later than ninety days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by subsection (c)(3) of this section need only be provided where there has been a change from the preceding year:

(1)

A fully audited or certified revenue report from the previous calendar year for the cable communications system, to the extent prepared in the regular course of business and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing: (i) gross revenues by category (e.g., basic, pay, pay- per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.

(2)

A report showing, for each applicable customer service standard, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of the customer service complaints received and an explanation of their dispositions.

(3)

An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.

(d)

Within ten days of their receipt or (in the case of documents created by the cable communications system operator or a person acting on its behalf) filing, a franchisee shall provide city:

(1)

Notices of deficiency or forfeiture related to the operation of the cable communications system; and

(2)

Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.

(Ord. 2036 § 1(part), 2003).

Each franchisee shall maintain accurate maps and improvement plans that show the location, size, and a general description of all facilities installed in the public rights-of-way or on public property and any power supply sources (including voltages and connections). Upon thirty days written notice, a franchisee shall provide current strand and trench maps of the cable system in the franchise area to the city. Copies of maps shall be provided on disk, in a mutually agreed upon format. Whenever requested to do so in writing by city's director of public works, franchisee shall pothole as necessary to verify the depth of certain specified existing facilities. Such pot-holing shall be completed within thirty days of franchisee's receipt of such written request.

(Ord. 2036 § 1(part), 2003).

Franchisees shall not be required to maintain any books and records for franchise compliance purposes longer than five years. Unless the city manager specifically waives the requirement in writing, a franchisee shall at all times maintain:

(a)

Records of all written complaints received, including complaints received via electronic mail, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's construction, operations or repairs activities;

(b)

Records of outages known to the franchisee, their cause and duration;

(c)

Records of service calls for repair and maintenance indicating the nature of the call for service, the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved;

(d)

Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended;

(e)

Records sufficient to show whether the franchisee has complied with each customer service standard that apply to it.

(Ord. 2036 § 1(part), 2003).

The city manager may temporarily exempt any franchisee from its obligations under Sections 5.20.470 through 5.20.490 if the city manager determines that the requirement would be unduly burdensome or unnecessary, and that city and subscriber interests may be adequately protected in some other manner.

(Ord. 2036 § 1(part), 2003).

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to city, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to city. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.

(Ord. 2036 § 1(part), 2003).

(a)

The franchise fee paid pursuant to Article 3, and the fee in lieu of franchise fee paid pursuant to Article 4 shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to city by check not later than thirty days after the end of the respective calendar quarter. Upon receipt of written notice from the city manager that future payments shall be made by electronic transfer, franchisee shall be required to make all future payments by electronic transfer not later than the due date described above.

(b)

Unless a franchise ordinance expressly provides otherwise, a franchisee or other person subject to a fee under Articles 3 or 4 shall file with city within thirty days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

(c)

No acceptance by city of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim city

may have for additional sums payable or otherwise related to that payment.

(d)

Neither the franchise fee under Article 3, nor the fee paid in lieu of the franchise fee under Article 4, is a payment in lieu of any tax, fee or other assessment.

(e)

In the event that the full amount of any fee that is owed by franchisee hereunder is not received by city on or before the due date set forth in this section or in a franchise ordinance, the franchisee or person subject to the fee shall be obligated to pay interest on the outstanding amount owed from the due date at an annual rate equal to the higher of ten percent or the legal rate of interest then in force in the state of California.

(f)

Within ninety days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee (or its successor in interest) shall: (a) make a final franchise fee payment, covering the period from the end of prior calendar month to date the franchisee ceased operations; and (b) file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 5.20.470(c)(1).

(Ord. 2036 § 1(part), 2003).