Article I — GENERAL

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings set forth herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and

"will" are mandatory, and "may" is permissive. Words not defined in this Chapter shall have the same meaning as in Title VI of Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however denominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

"Access", "PEG access" or "PEG use" refers to the availability of a cable system or open video system for public, educational or governmental use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:

(1)

"Public access" or "public use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their programming;

(2)

"Educational access" or "educational use" means access where accredited public educational institutions are the primary or designated programmers or users having editorial control over their programming; and

(3)

"Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their programming.

"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

"Basic service" means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

"Cable communications system" refers to open video systems (OVS) and cable systems.

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

(1)

A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;

(2)

A facility that serves subscribers without using, or connecting to, a facility that uses any public right-of-way within the city;

(3)

A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4)

Any facilities of any electric utility used solely for operating its electric utility systems; or

(5)

An OVS that is certified by the FCC.

Any reference to a cable system includes the cable system as a whole, or any part thereof, including all pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.

"Cable service" means:

(1)

The one-way transmission to subscribers of

a.

Video programming, or

b.

Other programming service, and

c.

Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals.

"City" means the City of Oceanside and all departments, divisions, and agencies thereof.

"City manager" means the city manager or the city manager's designee.

"Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

"Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

"FCC" means the Federal Communications Commission.

"Franchise" refers to an authorization granted by the city to the operator of a cable communications system giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide specified services within a franchise area.

"Franchise area" means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

"Franchisee" refers to a person holding a cable communications system franchise granted by the city.

"Gross revenues" means any and all revenue, of any kind, nature or form derived from the operation of the system to provide cable service. Gross revenues include, by way of example and not limitation, revenues from equipment sales and rentals, services (including cable modem service unless such services are determined not to be includable as gross revenue under applicable law, installation, late fees and other subscriber charges, fees for carriage of programming, advertising, and shopping services. "Gross revenues" shall be construed broadly to include revenues of affiliates (other than those revenues which are already treated as the revenues of the franchisee), to prevent avoidance of fees owed on gross revenues.

"Operator" when used with reference to a system, refers to a person:

(1)

Who directly or through one (1) or more affiliates provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or

(2)

Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

"OVS" means an open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

"Person" includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

"Public rights-of-way" means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, now or hereafter existing within the city, which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

"Public property" means any property that is owned or under the control of the city that is not a public right-of-way, including, for purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.

"School" means any accredited primary school, secondary school, college, or university.

"Subscriber" means the city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.

"Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.

"User" means a person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

(Ord. No. 01-56-1, § 2(1.1.1—1.1.26), 2-7-01)

No person may construct or operate a cable communications system in the city without first obtaining a city franchise therefor.

(Ord. No. 01-56-1, § 2(1.2), 2-7-01)

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

(Ord. No. 01-56-1, § 2(1.3), 2-7-01)

(a)

Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair a cable system, or an OVS (as applicable) to provide cable service in the 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 the city may authorize a franchisee to use.

(b)

Nothing passes by implication. A franchise shall not convey rights other than as specified in this ordinance, or in a franchise agreement; no rights shall pass by implication.

(c)

Franchise not in lieu of other authorizations. A franchise shall not include, or be a substitute for:

(1)

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

(2)

Any permit, agreement or authorization required in connection with operations 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 for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.

(d)

Franchisee must comply with other laws. A franchise does not relieve a franchisee of its duty to comply with all city ordinances and regulations, and every franchisee must comply with the same. Likewise, the rights granted under a franchise are subject to the exercise of police and other powers the city now has or may later obtain, including but not limited to the power of eminent domain. Every franchise shall be deemed to incorporate all the requirements of the Oceanside City Code.

(e)

Franchise not a grant of property rights. A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or subleased.

(f)

Franchise non-exclusive. No franchise shall be exclusive, or prevent the city from issuing other franchises or authorizations, or prevent the city from itself constructing, operating, or repairing its own cable communications system, with or without a franchise. In the event the city does construct and operate its own cable communications system, then:

(1)

The city will establish and enforce methods and procedures to ensure that a franchisee's confidential and proprietary information provided to the city pursuant to this chapter or pursuant to a franchise agreement, shall not be disclosed or made available to any city personnel, agents or departments involved in operating the city's cable communications system, and

(2)

Those employees or agents of the city whose responsibilities include the regulation of any cable operators within the city shall not be involved in the operation of the city's cable communications system.

(g)

Franchise term. Every franchise shall be for a term of years, which term shall be specified in a franchise agreement.

(h)

Costs borne by franchisee. Unless otherwise specifically stated in a franchise or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee's expense.

(i)

Failure to perform. If a cable communications system operator, after receiving written notice, fails to perform work that it is required to perform within the time provided for performance, the city may perform the work and bill the operator therefor. The operator shall pay the amounts billed within thirty (30) days.

(Ord. No. 01-56-1, § 2(1.4.1—1.4.9), 2-7-01)

(a)

Adoption of regulations. The 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, and consistent with the city's police powers and other powers, may be amended from time to time.

(b)

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

(c)

No waiver. The failure of the city, on one or more occasions, to exercise a right or to require compliance or performance under a franchise 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)

Administration of public, educational and governmental access. The city may designate one or more entities, including itself, to control and manage the use of public, educational and governmental access

channels, facilities and equipment.

(Ord. No. 01-56-1, § 2(1.5.1—1.5.4), 2-7-01)

(a)

Prior approval required. 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 the city shall be deemed to impair that trust. A transfer is any transaction pursuant to which:

(1)

A cable communications system is sold or assigned (except the term does not include sale of portions of the cable system that are removed).

(2)

There is any change, acquisition, or transfer of control of the franchisee or its direct or indirect parents, whether by merger, consolidation, sale of assets or ownership interests, or by any other means. There will be established, a rebuttable presumption that a transfer has occurred whenever there is a change, acquisition or transfer of control of more than a twenty percent (20%) ownership in the franchisee or its direct or indirect parents by any entity, or a group of entities acting in concert. However, a transfer also 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, any change in the general partners of a franchisee will be presumed a change in control; or

(3)

The rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party.

(b)

Exception for mortgages. 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 the 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 the franchise or applicable law; 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 the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this chapter, or other applicable law.

(Ord. No. 01-56-1, § 2(1.6.1—1.6.2), 2-7-01; Ord. No. 02-OR499-1, § 1, 7-10-02)

(a)

Franchisee must follow local rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, departmental rules, regulations, and practices affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice, to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

(b)

No permit without franchise. A franchise is required before a permit may be issued for work associated with the construction 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 the city's demand.

(c)

Permits must be obtained. Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the city and all required fees have been paid. All work performed shall be performed in strict accordance with the conditions of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city's requirements, or which is installed without obtaining necessary permits and approvals shall be removed.

(d)

No interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city may require a person using the rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the rights-of-way.

(e)

Use of existing infrastructure. Each cable communications system operator 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 engineer.

(f)

Undergrounding.

(1)

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

(2)

Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground at no cost to the city.

(3)

The city manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impractical, unreasonable, or where the interest in protecting against visual blight can be protected in another manner. Nothing in this subsection (f) shall prevent the city from ordering cable communications facilities to be located or relocated underground under other provisions of the City Code.

(g)

Prompt repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to a condition as good or better than before the disturbance or damage occurred. Costs associated with the restoration of the public property or public rights-of-way to the condition described above shall be the responsibility of the cable system operator.

(h)

Tree trimming. Any tree trimming must be performed in strict accordance with the Oceanside City Code and tree trimming guidelines.

(i)

Movement of facilities for government.

(1)

A cable communications system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

(2)

The city shall provide written notice describing where the public work is to be performed at least forty-five (45) days prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. Operator(s) shall not be deemed in breach of this section if operator cannot comply due to reasons beyond its control. Provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for costs incurred.

(j)

Movement for others.

(1)

To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed no less than forty-five (45) days prior to the time by which its work must be completed. Operator(s) shall not be deemed in breach of this section if operator cannot comply due to reasons beyond its control. The city may resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves.

(2)

A cable communications system operator shall, at the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than fourteen (14) 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)

Abandonment in place.

(1)

A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city. However, if, within ninety (90) days of the receipt of written notice of abandonment, the city determines, that the safety, appearance, functioning or use of the public right-of- way and facilities in the public right-of-way will be adversely affected, the property must be removed by a date specified by the city.

(2)

A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city at no cost, and execute necessary quitclaim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

(l)

System subject to inspection. Every cable communications facility shall be subject to inspection and testing by the city. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans or construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired. Such information and plans, if marked as confidential and proprietary when provided to the city, will be treated by the city as such to the maximum extent allowed by law.

(m)

Underground services alert. Each operator of a cable communications system 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 operator shall locate its facilities for the city at no charge.

(n)

Plan for construction. Each cable communications system operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected. Such information and plans, if marked as confidential and proprietary when provided to the city, will be treated by the city as such to the maximum extent of the law.

(o)

Use of facilities by city. The city shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee. Should a franchisee demonstrate its need to have the pole or conduit capacity returned, the city shall remove its facilities at no charge to franchisee. In the event that the city's facilities or actions damage an operator's system, the city shall waive all relevant technical, customer service and other standards that result from the damage. The city shall reimburse franchisee for any damage to franchisee's facilities caused by the city's use of franchisee's facilities. An operator shall be held harmless from any responsibility for damage to the city equipment resulting from the operator's normal use and operation of the operator equipment. The city shall not use a franchisee's facilities to offer competitive commercial cable services.

(p)

Unsightly system installation. In all sections of the city where wires, cables and other system appurtenances are mounted above ground, every reasonable effort shall be made to minimize obstruction of the view of residents, and every reasonable effort shall be made to preclude an unsightly system installation. Incidental appurtenances such as amplifier boxes and pedestal mounted terminal boxes may

be placed above ground, but shall be of such size and design as to blend with the existing surroundings and shall be so located as not to be unsightly or hazardous to the public.

(Ord. No. 01-56-1, § 2(1.7.1—1.7.16), 2-7-01; Ord. No. 02-OR499-1, § 2, 7-10-02)

(a)

Indemnity required. No franchise shall be valid or effective until and unless the city obtains an adequate indemnity from the franchisee. The indemnity must:

(1)

Release the city from and against any and all liability and responsibility in or arising out of the franchisee or its agents, contractors, subcontractors, or representatives construction, operation or maintenance of the cable communications system. Each cable communications system must further agree not to sue or seek any money or damages from the city in connection with the foregoing matters.

(2)

Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system.

(b)

Insurance required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type (as provided in this section) satisfactory to the city. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such entities to cease operations until such insurance is obtained and approved.

(c)

Proof. Certificates of insurance, reflecting evidence of the required insurance and naming the city as an additional insured, and other proofs as the city may find necessary, shall be filed with the city. For persons issued franchises after the effective date of this chapter, certificates and other required proofs shall be filed within thirty (30) days of the issuance of a franchise, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the rights-of-way as of the effective date of this chapter, the certificate shall be filed within sixty (60) days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner.

(d)

Certificate contents. Certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least thirty (30) days' prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of California. Financial ratings must be no less than "A" in the latest edition of Bests Key Rating Guide, published by A.M. Best Guide.

(e)

Insurance amounts. A cable communications system operator (and those acting on its behalf to construct or operate the system) shall maintain the following minimum insurance. The city 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 bodily injury and property damage. Exposures to be covered are: premises; operations; products/completed operations; and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:

Bodily Injury

1. Each occurrence .....$1,000,000.00

2. Annual Aggregate .....3,000,000.00

Property Damage

1. Each occurrence .....1,000,000.00

2. Annual Aggregate .....3,000,000.00

Personal Injury

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

Completed operations and products liability shall be maintained for two (2) 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.

(2)

WORKERS' COMPENSATION insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the contractors and subcontractors similarly to provide workers' compensation insurance for all of their 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:

Workers' Statutory Compensation

Employer's Liability $500,000.00 per occurrence

(3)

COMPREHENSIVE AUTO LIABILITY

Bodily Injury

a. Each Occurrence .....$1,000,000.00

b. Annual Aggregate .....3,000,000.00

Property Damage

a. Each Occurrence .....1,000,000.00

b. Annual Aggregate .....3,000,000.00

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

(f)

Performance bond. Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the performance and payment 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, but shall not be less than ten (10) percent of the estimated cost of constructing or (in the case of existing systems) upgrading the system. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

(g)

Security fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit in the amount of one hundred thousand dollars ($100,000.00) to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees or liens owed to the city. The letter of credit shall be in a form and with an institution acceptable to the city's director of finance and in a form acceptable to the city attorney. If the city draws upon the cash security fund or letter of credit, the cable communications system operator shall, within fourteen (14) 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 the city for a franchisee where the 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 city may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public, including delinquencies in taxes or other payments to the city. 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 specifically provides otherwise.

(Ord. No. 01-56-1, § 2(1.8.1—1.8.7), 2-7-01)

(a)

Revocation and termination. The city council may revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has violated this chapter or its franchise; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise. Except as to violations that are impossible to cure, and as provided in sections 9A.1.9(b), (c), the franchise may only be revoked if the franchisee

(1)

Was given notice of the default;

(2)

Thirty (30) days to cure the default; and

(3)

The franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty (30) days.

(b)

Exception for certain acts. No opportunity to cure is required for repeated violations, and fraud and attempted fraud shall be deemed incurable. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee

(1)

Except for reason of force majore, stops providing service it is required to provide; or

(2)

Transfers the franchise without the prior consent of the city.

(c)

Exception for bankruptcy. A franchise will terminate automatically by force of law one hundred twenty (120) 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 twenty (120) 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, and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise.

In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the 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 (30) calendar days after serving such notice, unless:

(1)

The city has approved the transfer of the franchise to the successful bidder; and

(2)

The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise and this chapter.

(d)

Effect of termination or forfeiture. Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The city may take possession of some or all of franchisee's facilities, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the city, and restore affected property to its same or better, condition. This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.

(e)

Remedies cumulative. Remedies provided for under this chapter, or under a franchise, shall be cumulative. Recovery by the 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 the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.

(f)

Penalties for customer service standards violations.

(1)

Each franchisee must satisfy FCC, California and city cable customer service standards or consumer protection standards. In the case of a conflict among standards, the stricter standard shall apply.

(2)

For violation of cable customer service standards, penalties will be imposed in accordance with the administrative penalties provisions of the Oceanside City Code, or, if none, as follows:

a.

Two hundred dollars ($200.00) for each day of each material breach, not to exceed six hundred dollars ($600.00) for each occurrence of material breach;

b.

If there is a subsequent material breach of the same provision within twelve (12) months, four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve hundred ($1,200.00) for each occurrence of the material breach; and

c.

If there is a third or additional material breach of the same provision within twelve (12) months of the first, one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

(3)

Any penalty assessed under this section 9A.1.9(f) will be reduced dollar-for-dollar to the extent any liquidated damage provision of a franchisee's franchise imposes a monetary obligation on that franchisee for the same customer service failures, and no other monetary damages may be assessed. The city will provide notice, and impose penalties, under this section pursuant to the procedures established by California Government Code § 53088.2(r).

(g)

Remedies liquidated damages. A franchise agreement may specify liquidated damages, for the city or third party beneficiaries of any franchise agreement.

(Ord. No. 01-56-1, § 2(1.9.1—1.9.7), 2-7-01)

(a)

Generally. Each cable communications system operator shall provide the city access to books and records related in whole or in part to the construction, operation or repair of the cable communications system, or a group of systems of which the system is a part, so that the city may inspect and copy these books and records. Any books and records required under this section 9A.1.10, if marked as confidential and

proprietary when provided to the city, will be treated by the city as such to the maximum extent allowed by law. The records include, but are not limited to revenue records, and other records related to compliance with any provision of this chapter or a franchise. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records, so that it can produce the documents upon request. Books and records must be maintained for a period of five (5) years, except that a franchise 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)

Production. Books and records requested shall be produced to the city by a time and at a location in the city designated by the city manager. 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 the city and the franchisee, provided that:

(1)

The franchisee must make necessary arrangements for copying documents selected by the city after its review; and

(2)

The franchisee must pay all reasonable travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.

(c)

Obligation to submit. 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.

(d)

Quarterly reports. Unless an exemption is granted by the city manager, within forty-five (45) days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:

(1)

The number of service calls (calls requiring a truck roll) received during the prior quarter; and

(2)

Outage information including date, address, reason and length of outage. (An outage is a loss of sound or video or any signal, or a significant deterioration of any signal affecting four (4) or more subscribers.); and

(3)

The number of subscribers subscribing to the lowest cost tier of services; and

(4)

The total number hours of operation in the previous quarter.

(e)

Annual reports. Unless an exemption is granted by the city manager, no later than ninety (90) days after the end of its fiscal year (or an alternate twelve (12) month period agreed to by the city), a franchisee shall submit the following information, except that the information required by section 9A.2.2(c) 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, 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:

a.

Gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and

b.

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 a 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 (10) percent or more.

(f)

Contemporaneous reports. Within ten (10) days of their receipt or (in the case of documents created by the operator or its affiliate) filing, a franchisee shall provide the city:

(1)

Notices of deficiency or forfeiture related to the operation of the 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. No. 01-56-1, § 2(1.10.1—1.10.5), 2-7-01)

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Such maps, if marked as confidential and proprietary when provided to the city, will be treated by the city as such to the maximum extent allowed by law. Maps shall be based upon post-construction inspection to verify location. Each franchisee shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city engineer.

(Ord. No. 01-56-1, § 2(1.11), 2-7-01)

Unless the city manager waives the requirement, a franchisee shall at all times maintain:

(1)

Complaint records. Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's operations.

(2)

Outage records. Records of outages known to the franchisee, their cause and duration.

(3)

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

(4)

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

(5)

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

(Ord. No. 01-56-1, § 2(1.12.1..1.12.5), 2-7-01)

The city manager may temporarily exempt any franchisee from its obligations under sections 9A.1.10 through 9A.1.12 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. No. 01-56-1, § 2(1.13), 2-7-01)

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

(Ord. No. 01-56-1, § 2(1.14), 2-7-01)

(a)

Fees paid quarterly. The franchise fee paid pursuant to section 9A.2.6, or fee in lieu of franchise fee paid pursuant to section 9A.3.7 shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the city not later than forty-five (45) days after the end of each calendar quarter.

(b)

Quarterly statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under section 9A.2.6 or 9A.3.7 shall file with the city within forty-five (45) days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

(c)

Acceptance of payment not a release. No acceptance by the city of any payment shall be construed as an agreement 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 the city may have for additional sums payable.

(d)

Fee not in lieu of taxes. Neither the franchise fee under section 9A.2.6, nor the fee paid in lieu of the franchise fee under section 9A.3.7, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers).

(e)

Failure to pay franchise fee. In the event that a fee payment is not received by the city on or before the due date set forth in this section 9A.1.15 or in a franchise, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the date such interest becomes due and payable at an interest rate equal to the maximum amount permitted by California law.

(f)

Final statement of gross revenues. Within ninety (90) 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 shall 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 9A.1.10(e).

(g)

Audits. The city or its representative shall have the right to inspect the franchisee's records to determine if proper payments have been made to the city. The costs of such audits shall be borne by franchisee if same results in increasing, by more than two (2) percent, the franchisee's annual payment to the city.

(Ord. No. 01-56-1, § 2(1.15.1—1.15.7), 2-7-01)