Hawthorne Municipal Code Ch. 5.87 Video Franchise Fees, Customer Service and Other Video-Related Matters

Under state law effective January 1, 2007, the California Public Utilities Commission ("PUC") possess the authority to grant state video franchises ("state franchises"). The city of Hawthorne (the "city") will acquire certain rights and responsibilities with respect to state video franchise holders. These rights and responsibilities include the receipt of a franchise fee and a fee for public, educational and government ("PEG") purposes, both based on a percentage of the gross revenues of state franchise holders, as well as the establishment and enforcement of penalties for violations of customer service rules.

(Ord. 1928 § 1, 2009)

A. Any state video franchise holder ("state franchisee") operating within the boundaries of the city of Hawthorne shall pay a fee to the city equal to five percent of the gross revenue of that state franchisee.

B. Any state franchisee operating within the boundaries of the city of Hawthorne shall pay an additional fee to the city equal to one percent of the gross revenue of that state franchisee, which fee shall be used by the city for PEG purposes consistent with state and federal law.

C. Gross revenue, for the purposes of subsections A and B of this section, shall have the definition set forth in California Public Utilities Code Section 5860.

(Ord. 1928 § 1, 2009)

Not more than once annually, the city may examine and perform an audit of the business records of a state franchisee to ensure compliance with Section 5.87.010.

(Ord. 1928 § 1, 2009)

A. The holder of a state franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

B. The city manager, or designee, shall monitor the compliance of state franchisee(s) with respect to state and federal customer service and protection standards. The city manager, or designee, shall provide the state franchisee(s) written notice of any material breaches of applicable customer service standards, and shall allow the state franchisee(s) thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period shall be subject to the following penalties by the city manager, or designee.

1. For the first occurrence of a violation, a fine of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

2. For a second violation of the same nature within twelve months, a fine of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

3. For a third violation of the same nature within twelve months, a fine of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

C. A state franchisee may appeal a penalty assessed by the city manager to the city council within sixty days. After relevant speakers are heard, and any necessary staff reports are submitted, the city council will vote to either uphold or vacate the penalty. The city council's decision on the imposition of a penalty shall be final.

(Ord. 1928 § 1, 2009)

A. Applicants for state franchises within the boundaries of the city of Hawthorne shall concurrently provide complete copies to the city of any application or amendments to applications filed with the PUC. One complete copy must be provided to the city clerk, and one complete copy to the city manager.

B. The city manager shall provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state franchise.

(Ord. 1928 § 1, 2009)

A. Defense of litigation.

1. The state franchisee shall at the sole risk and expense of state franchisee, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third person or duly constituted authorities, against or affecting the city, its elected officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or the enjoyment of such state video franchise.

2. The state franchisee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against the state franchisee, the city, its elected officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither the state franchisee nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other.

3. Insurance Required. Upon being granted a state franchise, the state franchisee shall file with the city attorney and shall thereafter during the entire term of the installation and/or occupation in the public rights-of-way with any of the state franchisee's equipment and maintain in full force and effect at its own cost and expense, each of the following policies of insurance:

a. General comprehensive liability insurance in the amount of one million dollars, together with bodily injury liability insurance in an amount not less than one million dollars for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than five hundred thousand dollars on account of any one occurrence, and property damage liability insurance in an amount not less than one hundred thousand dollars resulting from any one occurrence; provided, however, as follows:

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

c. Where such insurance is provided by a policy which also covers the state franchisee or any other entity or person, it shall contain the standard cross-liability endorsement which excludes cross-liability suits.

(Ord. 1928 § 1, 2009)

A. The state franchisee shall do the following:

1. The state franchisee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the city manager.

2. Whenever the state franchisee shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the city shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to the state franchisee, any such conduits or other facilities of the state franchisee shall be constructed, installed, placed or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of the state franchisee, whose costs shall be determined as in the case of public utilities.

B. In those areas of the city where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground or hereafter are placed underground, the state franchisee likewise shall construct, operate and maintain all of his transmission and distribution facilities underground. The term "underground" shall include a partial underground system; provided, that upon obtaining the written approval of the city manager, equipment may be placed in appropriate housings upon the surface of the ground.

C. The state franchisee at his or her expense shall protect, support, temporarily disconnect, relocate or remove any property of the state franchisee when, in the opinion of the city manager the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements or governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, movement of buildings, urban renewal and redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground. The state franchisee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of the state franchisee in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of the state franchisee, and the state franchisee shall be entitled to no surcharge by reason of anything hereunder.

D. Upon the failure, refusal, or neglect of the state franchisee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the city manager may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to the state franchisee an itemized statement of the costs thereof. The state franchisee shall, within thirty days after receipt of such statement, pay to the city the entire amount thereof.

(Ord. 1928 § 1, 2009)