Lompoc Municipal Code Ch. 5.66 State Video Franchises

For the purposes of this Chapter:

"CPUC"

shall mean the California Public Utilities Code.

"Franchise holder"

shall mean a holder of a State franchise, as that term is defined at CPUC section 5830.

"Gross revenues"

shall have the definition as set forth at CPUC section 5860.

"Material breach"

shall have the definition as set forth at CPUC section 5900(j).

"PEG"

shall refer to the public, educational and governmental access operations as addressed at section CPUC section 5870.

"State"

shall mean the State of California.

(Ord. 1589(13) § 2)

A. Any franchise holder operating within the boundaries of the City, shall calculate and remit to the City a franchise fee of five percent of its gross revenues in accordance with the following:

1. The fee shall be payable to the City quarterly, no later than 45 days following the end of the calendar quarter for which the payment is due. However, in accordance with CPUC subsection 5860(a), the first remittance by a franchise holder shall not be due until 180 days after the provision of service began.

2. As required by CPUC subsection 5860(h), the payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee. The City prefers to receive summaries in electronic form by email.

3. Pursuant to CPUC subsection 5860(h), if the franchise holder does not pay the franchise fee when due, then the franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

B. As required by CPUC subsection 5870(n), the City hereby establishes a fee of three percent of a franchise holder's gross revenues to support PEG facilities, to be paid by any franchise holder operating within the boundaries of the City in accordance with the following:

1. The fee shall be payable to the City quarterly, no later than June 1st, September 1st, December 1st and March 1st for the preceding calendar quarter for which the payment is due.

2. As permitted by CPUC Subsection 5870(o), any franchise holder operating in the City may recover the PEG fees required herein as a separate line item on the regular bill of each subscriber.

(Ord. 1589(13) § 2)

Not more than once annually, the City Manager or designee may examine and perform an audit of the business records of any franchise holder to ensure compliance with Section 5.66.020 of this Code or any other fee or tax as permitted by law.

(Ord. 1589(13) § 2; Ord. 1673(20) § 42)

A. Any franchise holder shall, at minimum, 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 will provide a franchise holder with written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least 30 calendar days after the franchise holder's receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the franchise holder within the remedy period shall subject the franchise holder to the following penalties to be imposed by the City:

1. For the first occurrence of a material breach, a penalty of not more than $500.00 for each day of each material breach, not to exceed $1,500.00 for each occurrence of a material breach.

2. For the second violation of the same nature within 12 months, a penalty of $1,000.00 for each day of each material breach, not to exceed $3,000.00 for each occurrence of the material breach.

3. For a third or further violation of the same nature within 12 months, a penalty of $2,500.00 for each day of each material breach, not to exceed $7,500.00 for each occurrence of the material breach.

C. The franchise holder may appeal any imposition of penalties to the City Manager by filing a notice of appeal in accordance with the requirements of Chapter 1.32 of this Code. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements or authority.

D. The City Manager shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The City Manager's decision on the imposition of a penalty shall be final.

E. The City and any franchise holder may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the City Manager, or designee, and an authorized representative of the franchise holder.

F. Any penalty imposed on the franchise holder pursuant to this Section shall be paid to the City. As provided for in Subsection 5900(g) of the CPUC, the City shall submit one-half of all penalties received from a franchise holder to the Digital Divide Account established in Section 280.5 of the CPUC.

(Ord. 1589(13) § 2; Ord. 1673(20) §§ 22, 42)

A. Any person who applies to be a State franchise holder within the boundaries of the City must concurrently provide complete copies to the City of any application, or amendments to applications, filed with the CPUC. One complete copy must be provided to the City Clerk.

B. Within 30 days after receipt of any documents described in Subsection A of this section, the City Manager, or designee will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a State franchise.

(Ord. 1589(13) § 2; Ord. 1673(20) § 42)

A. The franchise holder shall, at the sole risk and expense of franchise holder, upon demand of the City, made by and through the City Council, City Manager or 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.

B. The franchise holder 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 franchise holder, 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 franchise holder 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.

C. Insurance Required. Upon becoming a franchise holder, the franchise holder shall file with the Risk Manager and shall thereafter, during the entire term of the installation and/or occupation in the public rights-of-way with any of the franchise holder's equipment, maintain, in full force and effect, at its own cost and expense, each of the following policies of insurance:

General comprehensive liability insurance in the amount of $3,000,000.00, together with bodily injury liability insurance in an amount not less than $3,000,000.00 for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than $1,000,000.00 on account of any one occurrence, and property damage liability insurance in an amount not less than $100,000.00 resulting from any one occurrence; provided, as follows:

1. The City shall be named as an additional insured in any of such insurance policies;

2. The insurance provided shall be primary and non-contributory and shall not be cancelled or materially amended without 30 days' written notice to the City, except ten days' written notice shall be sufficient for nonpayment of the premium; and

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

(Ord. 1589(13) § 2; Ord. 1673(20) § 42)

A. In those areas and portions of the City where the transmission or distribution facilities of both the public utility provided telephone service and those of the utility providing electric service are underground, or hereafter may be placed underground, then the franchise holder shall likewise construct, operate and maintain all of its transmission and distribution facilities underground.

B. When the franchise holder's conduits and other facilities are not being installed underground, the franchise holder shall utilize its existing poles, conduits or other facilities (collectively, "system") to the extent feasible, as reasonably determined by the Utility Director, and shall remove all portions of the above-ground system which will no longer be utilized. In addition, all facilities which are installed above ground shall utilize anti-graffiti surfaces.

C. If the City undertakes a program to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, then upon reasonable notice to a franchise holder utilizing poles, conduits or other above-ground facilities, any such conduits or other facilities of the franchise holder 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 franchise holder, whose costs shall be determined as in the case of public utilities.

(Ord. 1589(13) § 2)

A. Each franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission, such that emergency messages may be distributed over the franchise holder's network.

B. Per CPUC section 5880, all franchise holders shall comply with the requirements of the local franchise requirements related to the Emergency Alert System until January 1, 2015, or for such time said requirements are allowed for under the law. Accordingly, each franchisee shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability that permits the City to interrupt and cablecast an audio message on all channels simultaneously in the event of a disaster, public emergency or other reason permitted under the law.

(Ord. 1589(13) § 2)

Each franchise holder shall comply with all other applicable laws, including Chapter 12.12 of this Code, if applicable.

(Ord. 1589(13) § 2)