Pleasant Hill Municipal Code Art. VI Administration And Enforcement

A. All cable operators shall pay a franchise fee to the city in an amount equal to 5% of the cable operator's gross revenues. The cable operator shall make franchise fee payments on the first day of each calendar quarter, or at such other times specified in the franchise agreement. Franchise fee payments shall be submitted together with documentation of the cable operator's gross revenues in such form as may be agreed to in the franchise agreement.

B. Payment of the franchise fee shall not be considered in the nature of a tax or in lieu of other taxes or fees imposed by the city.

C. The franchise fee is in addition to all other taxes, fees and payments that a cable operator may be required to pay under its franchise agreement or any federal, state, or local law, and to any other tax, fee, or assessment imposed by utilities and cable operators for use of their services, facilities, or equipment, including any applicable amusement taxes and annual license taxes, except to the extent that such fees, taxes, or assessments shall be treated as a franchise fee under Section 622 of the Cable Act, 47 U.S.C. § 542.

D. A cable operator shall not designate the franchise fee as a tax in any communication to a subscriber.

(Ord. 815 § 1, 2006)

In consideration of the use of public property, any person other than a cable operator who provides cable service over a cable system for which charges are assessed to subscribers but which are not received by a cable operator shall pay a fee to the city in an amount equal to 5% of that person's revenues. The cable operator whose cable system is used by such person shall collect the foregoing fee from such person no later than the tenth day prior to the close of each calendar quarter and shall remit the fee to the city no later than the first day of the following calendar quarter. If the cable operator fails to collect or remit all or part of this fee, the cable operator shall be directly liable to the city for payment of the uncollected or unremitted fee.

(Ord. 815 § 1, 2006)

The city, on an annual basis, shall be furnished a statement within 90 days of the close of the calendar year, certified by an officer of the operator reflecting the total amounts of gross revenues and all payments and computations of the franchise fee for the previous calendar year. The city shall have the right to conduct an audit of the operator's books and records reasonably related to the calculation of gross revenues and franchise fees for the audit period not more frequently than once every three years, upon 60 days' prior written notice to the operator, and shall provide the city or its designee copies of such books and records, subject to the terms of a mutually satisfactory confidentiality agreement, substantially identical to the form of an agreement to be appended to the operator's franchise agreement. If such audit indicates a franchise fee underpayment of at least 5%, and such finding is not contested, the operator shall assume all reasonable costs of such an audit. If there is any underpayment, the operator shall remit to the city all applicable franchise fees.

(Ord. 815 § 1, 2006)

In the event that the cable operator does not make any payments required by this code on or before the date due, a late payment penalty shall accrue at a rate of 1.5% per month on the unpaid amount until paid, or such other amount as may be set by applicable law.

(Ord. 815 § 1, 2006)

No acceptance by or payment to the city of a franchise fee, or any portion thereof, shall be construed as a release or an accord and satisfaction of any claim the city may have for further or additional sums due or for the performance of any other obligation of a cable operator, or as an acknowledgment that the amount paid is the correct amount due.

(Ord. 815 § 1, 2006)

A. Access to books and records.

1. The city or its designee shall have the right to review, upon reasonable and timely written notice, during the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday, at the operator's local office, all books, documents, and records reasonably necessary to ensure compliance with the franchise.

2. To the extent not inconsistent with applicable law, the operator shall have the right to designate confidential and proprietary any confidential, proprietary, trade secret and privileged information that may be provided to the city and the city shall thereupon treat such information as privileged from disclosure under the California Public Records Act. The city shall provide the operator with at least 10 business days' advance notice of any request by a third party for disclosure of information designated by the operator as confidential, proprietary, trade secret or privileged. To the extent that any information regarding the local cable system is maintained, either separately or cumulatively with information concerning other cable systems or operations, by the operator or an affiliate, the operator shall make copies of such records available for inspection and auditing at the local office within seven days after receipt of a written request by the city.

3. If any documents, books and records are too voluminous, or for security reasons cannot be copied and moved, then a cable operator may request that the inspection take place at some other location mutually agreed to by the city and a cable operator; provided, that the cable operator shall pay all travel and additional expenses incurred by the city (above those that would have been incurred had the documents, books and records been produced at the operator's local office) in inspecting those documents, books and records or having those documents, books and records inspected by its designee.

4. Without limiting the foregoing, a cable operator shall provide the city with the following within 10 days of receipt or (in the case of documents, books or records created by the cable operator or its affiliate) filing:

a. Notices of deficiency or forfeiture related to the operation of the system; and

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

5. Upon reasonable request and limited to matters directly affecting the cable system or the city's authority over the cable system, operator will provide copies of all petitions, applications, communications and reports submitted by the operator or on behalf of the operator to the Federal Communications Commission, Securities and Exchange Commission, or any other governmental authority having jurisdiction with respect to any matters affecting the cable system. Copies of responses from any such governmental authority to the operator shall likewise be furnished upon request to the city.

B. Reports. A cable operator shall within 90 days of each calendar year end, submit a written end of the year report to the city with respect to the preceding calendar year containing the information required by such operator's franchise agreement.

C. Records required. A cable operator shall at all times maintain:

1. Records of all complaints received, with information sufficient to allow a cable operator to prepare the reports required in this section and the operator's franchise agreement;

2. Records of outages known to a cable operator, with information sufficient to allow a cable operator to prepare the reports required in this section and the operator's franchise agreement;

3. Records of service calls for repairs 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), and the date and time service was provided, and (if different) the date and time the problem was solved;

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

5. System financial records prepared in accordance with generally accepted accounting principles.

D. Additional records and reports. The city may require cable operators to maintain records and to prepare reports relevant to determining a cable operator's compliance with the terms and conditions of this chapter and a franchise.

E. Maps. The operator shall at all times maintain and upon request make available for review by the city: a full and complete set of plans, records and "as-built" maps showing the location of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscribers' homes. To the extent technically and economically feasible, the operator shall also make records and strand maps available to the city in electronic format compatible with the city's computer system.

F. Waiver of reporting requirements. The city may, at its discretion, waive in writing the requirement of any particular report specified in this section.

(Ord. 815 § 1, 2006)

A. Each cable operator shall at all times make and keep on file in the office of the community development director current, full and complete plans and records to a scale and form approved by the community development director, showing the location of all cable system equipment installed or in use in streets, alleys and public places in the city.

B. Each cable operator shall file with the community development director, on or before the last day of March of each year, a current map or set of maps drawn to a scale designated by the community development director, showing all cable system equipment installed in streets, alleys and public places of the city during the previous year.

(Ord. 815 § 1, 2006)

A cable operator shall obtain, and by its acceptance of the franchise specifically agrees that it will maintain, throughout the entire term of the franchise, at its own cost and expense, and keep in force and effect, insurance policies in accordance with the requirements of its franchise agreement.

(Ord. 815 § 1, 2006)

A. No franchise or other authorization to use the public rights-of-way, or any independent permission to use city-owned property granted to a cable operator, shall be valid or effective until and unless the city obtains adequate indemnity from such cable operator.

B. Neither the provisions of this section nor any damages recovered by the city shall be construed to limit the liability of a cable operator for damages to the city, its elected and appointed officers, officials, boards, commissions, employees, agents, and volunteers, and any other person or persons, under the franchise.

(Ord. 815 § 1, 2006)

A franchise agreement may require the cable operator to post a performance bond in an amount acceptable to the city to secure the performance of the cable operator's obligations to repair and restore the public rights-of-way in accordance with this code. A franchise agreement may also require a cable operator to post a separate performance bond in an amount specified in the franchise agreement to secure the cable operator's obligations under the franchise agreement and this chapter.

(Ord. 815 § 1, 2006)

The granting of a franchise pursuant to this chapter may create an interest subject to property taxation pursuant to California Revenue and Taxation Code section 107, et seq. Each cable operator shall be solely responsible for payment of any such taxes.

(Ord. 815 § 1, 2006)

A. Civil and criminal penalties. Any person who violates any provision of this chapter may be guilty of a misdemeanor or an infraction, as otherwise provided by applicable law.

B. Civil penalties. Any person who violates any provision of this chapter, or who violates any condition of any license or permit issued hereunder, or who breaches any franchise agreement or other agreement with the city, may be liable for a civil penalty, as otherwise provided by applicable law.

C. Revocation, reduction of term, or forfeiture of franchise.

a. The city shall have the right to revoke the franchise for any material violation of a franchise agreement.

b. Notice of violation or default. In the event the city believes that a cable operator has not complied with a material term of the franchise, it shall notify the operator in writing with specific details regarding the exact nature of the alleged noncompliance or default. No opportunity to cure is required for fraud.

c. Operator's right to cure or respond. The operator shall have 90 days from the receipt of the city's written notice: (i) to respond to the city, contesting the assertion of noncompliance or default; or (ii) to cure such default; or (iii) in the event that, by nature of the default, such default cannot be cured within the 90-day period, to 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.

d. Public hearings. In the event the operator fails to respond to the city's notice or in the event that the alleged default is not remedied within 90 days or the date projected by the operator, the city may give the operator written notice of its intent to revoke the franchise, stating its reasons. Prior to revoking the franchise, the city shall schedule a public hearing, on at least 30 calendar days' notice, at which time the operator and the public shall be given an opportunity to be heard. Following the public hearing, the city may determine whether to revoke the franchise based on the information presented at the hearing, and other information of record, or, where applicable, grant additional time to the operator to effect any cure. If the city determines to revoke the franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the operator.

2. Notwithstanding the foregoing, the city council may declare a franchise forfeited where the cable operator (a) fails to begin to exercise its rights under the franchise within a period specified in the franchise agreement; (b) transfers the franchise in a manner inconsistent with the terms of this chapter or the franchise agreement; (c) fails to pay the fees owed hereunder; or (d) defrauds or attempts to defraud the city or its customers.

3. Upon revocation, final denial of renewal pursuant to federal law, or forfeiture of a franchise, a cable operator shall be obligated to cease using its system for the purposes authorized by the franchise. The city may (a) purchase the cable operator's facilities at a price established in accordance with 47 U.S.C. § 547; (b) effect a transfer of the cable operator's facilities to another person at such a price; or (c) require the cable operator or its surety to remove some or all of the cable operator's facilities from the public rights-of-way or city-owned property and to restore the public rights-of-way and city-owned property to their proper condition. Notwithstanding anything in this chapter to the contrary, should a cable operator fail, refuse, or neglect to remove such facility, the city may remove the facility at the expense of the cable operator. Regardless of the existence or amount of any security fund or performance bond, the obligation of a cable operator to remove shall survive the termination of the franchise. This provision does not authorize the city to purchase, effect a transfer of, or require a cable operator to remove any facilities that are used to provide another service for which the cable operator holds a valid franchise issued by the city council.

D. Cumulative remedies. The foregoing remedies shall be deemed nonexclusive, cumulative remedies and in addition to any other remedy the city may have at law or in equity.

(Ord. 815 § 1, 2006)