Santa Clara County Municipal Code Art. 2 General Provisions

No person may construct, operate or repair a cable communications system in the unincorporated portions of the County without first obtaining a County franchise therefor from the County pursuant to the terms and provisions of the County Charter and this chapter. This chapter shall only apply to franchises granted on or after its effective date. Franchises granted prior to its effective date are subject to the provisions of this chapter prior to its amendment.

(Ord. No. NS-905, § 2, 12-13-05)

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. No. NS-905, § 2, 12-13-05)

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) pursuant to the terms of its franchise ordinance and this chapter to provide cable service in the County, 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 in the franchise area.

(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 requirements of general applicability for the privilege of transacting and carrying on a business within the County;

(2) Complying with requirements for the privilege of using or occupying the rights-of-way to construct, operate or repair facilities in connection with the provision of non-cable services;

(3) Any permit, agreement or authorization required 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, encroachment and/or street cut permits, and the payment of applicable permit fees;

(4) Any permits or agreements for occupying any other property of the County 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 the County Charter, all County 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 the County now has or may later obtain that the County may lawfully apply to a cable communications system operator, 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 Santa Clara County Charter as of the date the franchise became effective. Nothing herein prevents a franchisee from raising a claim or defense that a particular provision of the County Code is unlawful.

(d) A franchise does not convey title, equitable or legal, in the public rights-of-way or public property. Any right granted to franchisee by a franchise ordinance shall not be subdivided or subleased to any other person or affiliate.

(Ord. No. NS-905, § 2, 12-13-05)

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

(Ord. No. NS-905, § 2, 12-13-05)

Every franchise shall be for a term of years set forth in the franchise agreement.

(Ord. No. NS-905, § 2, 12-13-05)

Unless otherwise specifically stated in a franchise ordinance or required by law, all acts which a franchisee is required to perform under the franchise ordinance or applicable law must be performed at the franchisee's expense and at no cost to the County, provided that nothing contained in this section is intended to restrict or limit franchisee's rights under applicable law to assess or pass-through costs in its rates to its subscribers.

(Ord. No. NS-905, § 2, 12-13-05)

If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the County may perform the work or cause the work to be performed and bill the operator therefor. The operator shall pay the reasonable costs incurred within 30 days after a bill is submitted to the operator by the County.

(Ord. No. NS-905, § 2, 12-13-05)

(a) The County may from time to time adopt regulations in a manner consistent with this chapter to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to this chapter are not contracts with any franchisee, and may be amended at any time by the County.

(b) Except where this chapter specifically directs that action be taken by the County Board of Supervisors, the County Executive is hereby authorized to administer and enforce the provisions of this chapter and any franchise issued pursuant hereto, to provide any notices (including non-compliance notices), and to take any action on the County's behalf that may be required hereunder or under applicable law.

(c) The failure of the County, 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) The County may designate one or more persons, or itself, to control and manage the use of public, educational or government Access Channels, facilities and equipment.

(Ord. No. NS-905, § 2, 12-13-05)

(a) 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 the County and the County's prior written consent is obtained, pursuant to this chapter and the franchise ordinance, and only then upon such terms and conditions as the County deems necessary and proper to protect the public interest. Such consent shall not be unreasonably withheld. 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 County 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) A change of control of a franchise, franchisee, or cable communications system will be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a 25 percent ownership in the franchisee or its direct or indirect parents by any person, or a group of persons 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.

(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 the County'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 the County. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the County under any franchise, this chapter, or other applicable law.

(Ord. No. NS-905, § 2, 12-13-05)

(a) The construction, operation, and repair of cable communications systems shall be performed in compliance with all applicable laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the Santa Clara County Zoning Ordinance; all other ordinances, regulations and policies to preserve or protect the public safety; 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 public rights-of-way. Persons engaged in the construction, operation, or repair of cable communications systems 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) 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 the County'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 County officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the County, any work and/or construction undertaken that is not completed in compliance with the County's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with the reasonable timeline set forth by the County. For any project where a franchisee will be working in the public rights-of way for 30 days or more, franchisee must provide at least 120 days' advance notice of the project to the County prior to submission of permits, and comply with all requirements under the County code applicable to major and special projects, including but not limited to agreeing to pay for additional personnel and equipment costs associated with the County work in connection with the project.

(d) Each cable communications system operator must use its best efforts to minimize interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems. When planning construction in the public rights-of-way, franchisee shall investigate opportunities for coordinating construction with other users of the public rights-of-way. The County may, except as prohibited by law, require a person using the public rights-of-way to engage in joint trenching and to enter into other arrangements to minimize adverse impacts on the public rights-of-way.

(e) Additional poles may not be installed in the public right-of-way without the permission of the County Director of Roads and Airports. The County may require a cable communications system operator to use existing conduit unless the cable communications system operator shows that it is not technically possible to do so.

(1) Whenever all existing utilities are located underground in an area in the County, every cable communications system operator installing its system in the same area must locate its cable communications system underground.

(2) Whenever the owner of a pole locates or relocates its cables, wires or fiber optics underground within an area of the County, every cable communications system operator in the same area shall concurrently relocate its cables, wires or fiber optics underground. Other facilities such as equipment cabinets will be placed aboveground or underground as directed by the County Director of Roads and Airports.

(3) The County Director of Roads and Airports 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.

(4) Nothing in this section prevents the County from ordering cable communications system facilities to be located or relocated underground under other provisions of the County Code.

(f) Any and all public rights-of-way, other public property, or private property that is disturbed or damaged in connection with or as a result of the construction, operation or repair of a cable communications system shall be repaired by the operator to a condition that complies with the then-current County Code and that is as good or better than its prior condition, in a manner and within a time approved or specified by the County Executive. Without limiting the foregoing, the operator shall compensate any entity whose property is damaged in the course of construction, operation or repair of a cable communications system where the property is not restored by the operator to a condition as good or better than existed before the damage. Because such repairs cannot adequately compensate the County for the inherent damage to the public roads caused by such construction, maintenance or use of its poles, wires, conduits and appurtenances upon the public roads, the County may also impose a reasonable fee upon an operator to cover all costs that may be incurred by the County that are reasonably attributable to operator's construction, use or maintenance of any poles, wires, conduits and appurtenances upon public roads, whether such costs are known or unknown by operator and the County at the time a franchise becomes effective, provided such fees are generally applicable to all utilities and cable communications operators doing construction, operation or repair in the public rights-of-way pursuant to franchises or other authorizations granted by the County after the effective date of this chapter.

(1) A cable communications system operator shall, by a time and in a manner specified by the County, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the County 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 public improvement; or for any other public 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." The County, on request, will cooperate with each cable communications system operator in providing access to public documents so that the cable communications system operator can research future projects affecting location of facilities in the public right-of-way prior to the operator's installation of its property.

(2) The County shall provide written notice describing where the public work is to be performed and a deadline for completing the work at least 15 days prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. The cable communications system operator 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 denied. 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 County 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 reasonable costs incurred. The County will make reasonable efforts to provide prior notice.

(3) To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee shall be given written notice describing where the construction, operation or repair is to be performed at least 15 days prior to the time by which its work must be completed. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the cable communications system that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the County, even if the County makes the request for such action. In cases where the requesting person is required under this section to bear the cost of relaying, relocation or temporary removal, a franchisee may require the person to agree, before the work is performed, to pay the reasonable actual cost of the work. If the franchisee does so, it must provide an estimate of the cost of the work and support for that estimate.

(4) A cable communications system operator shall, on 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 15 days' advance notice to arrange for such temporary wire changes. The cable communications system operator, as a condition of complying with such request, may require the requesting person to pay the reasonable materials and labor expense of such temporary removal or raising or lowering of wires, provided that the operator provides an estimate of the cost of the work and support for that estimate. In cases where the requesting person is required under this section to bear the cost of raising or lowering wires, the operator may require payment of the estimated expense in advance.

(5) A cable communications system operator may abandon any property in place in the public rights-of-way or upon public property upon written notice to the County and separate notice to the County Director of Roads and Airports. However, if, within 90 days of the receipt of written notice of abandonment, the County determines, 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 reasonably specified by the County in light of the amount of work to be performed.

(6) A cable communications system operator that abandons its property must, upon request, transfer ownership of the property to the County at no cost, and execute necessary quitclaim deeds; provided that nothing in the preceding sentence prevents a cable communications system operator from bringing an action in a court of competent jurisdiction if it believes that the cable communications system was not abandoned. The operator must indemnify the County against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

(g) Every cable communications system shall be subject to inspection and testing by the County. Each operator must timely and fully respond to requests for information regarding its system and plans for the system as the County may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

(h) 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 verify the location of its facilities for public projects when requested by the County at no charge.

(i) At least 90 days prior to commencing construction, each cable communications system operator shall provide the County 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 the County that will be affected.

(j) A franchisee ("Franchisee A") may be required to interconnect Access Channels with a competing franchisee in the County ("Franchisee B") in the event that Franchisee B proves to the County that it would be economically burdensome to its subscribers to construct and maintain return lines directly from the origination point(s) of the Access Channel(s) versus interconnecting with Franchisee A while Franchisee B is originally constructing its system. Franchisee A may request and receive a copy of such proof from the County, and challenge same to County. The County, in its sole discretion, shall make the final determination. In the event Franchisee A receives a directive from the County to interconnect with Franchisee B, Franchisee A shall immediately initiate negotiations with Franchisee B and shall report to the County the results of such negotiations no later than 60 days after such initiation. Franchisee B shall be responsible for all of Franchisee A's costs in constructing and maintaining the interconnect. If the parties cannot reach agreement on the terms of the interconnect, including compensation and timing, the dispute shall be submitted to the County for determination and resolution. If Franchisee A is required by the County to interconnect its Access Channels with Franchisee B while Franchisee B is initially constructing its cable communications system, Franchisee A's obligation to provide the interconnect for any particular Access Channel shall cease when Franchisee B has completed construction of its cable communications system in the vicinity of the PEG user facility, at which time Franchisee B shall construct its own return line from such related PEG user facility.

(Ord. No. NS-905, § 2, 12-13-05)

(a) No franchise shall be valid or effective until and unless the County obtains an adequate indemnity from the franchisee. The indemnity must, to the extent permitted by law:

(1) Release the County 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; and

(2) Indemnify and hold harmless the County, 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 County or any indemnified 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;

(3) Nothing in this section is intended to waive or limit any of the County's governmental immunities.

(b) Unless otherwise specified in its franchise, 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 herein. 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, the County may order such persons to stop operations until the insurance is obtained and approved.

(c) Certificates of insurance, reflecting evidence of the required insurance and naming the County as an additional insured, and other proofs as the County may find necessary, shall be filed with County Executive unless otherwise designated in a Franchise. For persons issued franchises after the effective date of this chapter, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise and 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 60 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 to the County. Any insurance or self-insurance maintained by the County shall be excess of the franchisee's insurance and shall not contribute with it.

(d) Certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least 30 days' prior written notice has been given to the County. 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) A cable communications system operator (and those acting on its behalf to construct, operate or repair the system) shall maintain the following minimum insurance. The County 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 limits of liability:

(i) BODILY INJURY: .....

a. Each occurrence .....$1,000,000.00

b. Annual aggregate .....3,000,000.00

(ii) PROPERTY DAMAGE: .....

a. Each occurrence .....1,000,000.00

b. Annual aggregate .....3,000,000.00

(iii) PERSONAL INJURY: .....

Annual aggregate .....3,000,000.00

(2) Completed operations and products liability shall be maintained for as long as the franchisee owns and/or operates the cable communications system (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).

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

(4) 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 employer's liability insurance. The following minimum limits must be maintained:

Workers' Compensation Statutory employer's liability, per occurrence .....$1,000,000.00

(5) COMPREHENSIVE AUTO LIABILITY: .....

(i) Bodily injury: .....

a. Each occurrence $ 1,000,000.00 .....

b. Annual aggregate $ 3,000,000.00 .....

(ii) 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) 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 ordinance. In the case of any franchise ordinance that requires the cable communications system operator to initially build, rebuild 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 County Executive may permit the cable communications system operator to eliminate or reduce the amount of the bond upon successful completion of the required construction and after the system performs as promised for one year after completion, if the County Executive determines that (i) the operator has substantially complied with its obligations under its franchise and applicable law; and (ii) the letter of credit maintained by the operator, plus any remaining amount of the bond will be adequate to ensure performance. The amount of the performance bonds shall be set by the County Executive 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, but initially shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the cable communications system. 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 County Counsel. 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 cable communications system operator shall establish and maintain a cash security fund or provide the County an irrevocable letter of credit in an amount specified in the franchise ordinance 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 the County. The letter of credit shall be in a form and with an institution acceptable to the County's Director of Finance and in a form acceptable to the County Counsel. Should the County draw upon the cash security fund or letter of credit, the cable communications system operator shall, within 14 days, restore the fund or the letter of credit to the full required amount unless a court of competent jurisdiction has stayed this obligation. This security fund/letter of credit may be waived or reduced by the County for a franchisee where the County determines in its reasonable 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 County 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 County and to the public, including delinquencies in taxes or other payments to the County. 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. No. NS-905, § 2, 12-13-05)

(a) The County Board of Supervisors may revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has not substantially complied with each provision of this chapter; has committed a material breach of its franchise ordinance or repeatedly failed to comply with its franchise ordinance; has defrauded or attempted to defraud the County 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 County Executive must have given written notice of a claimed violation, breach, default or failure and a description of the claimed violation; and (2) the franchisee must have been given at least 30 days to cure the claimed default, except as provided herein. An opportunity to cure is not required where the County finds that the defect in performance is due to willful misconduct, is an adjudicated violation of criminal law, or is part of a pattern of violations where the franchisee has already had notice and opportunity to cure. The franchisee will be given at least 20 days' written notice of the hearing date, and will be provided an opportunity to be heard at the hearing.

(b) The County may also revoke a franchise without opportunity to cure where (1) a franchisee voluntarily stops providing service it is required to provide; or (2) a transfer described under Section B10-68 occurs without the prior consent of the County.

(c) To the extent not prohibited by the U.S. Bankruptcy Code, a franchise will terminate automatically by force of law 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 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 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. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the County may revoke the franchise following a public hearing before the County Board of Supervisors, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges there under will be revoked and will terminate 30 calendar days after serving such notice, unless: (1) the County has approved the transfer of the franchise to the successful bidder; and (2) the successful bidder has covenanted and agreed with the County 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 County as provided above, or by passage of time, the County may do one or a combination of the following:

(1) The franchisee must, as the County so directs, stop using the cable communications system for the purposes authorized by the franchise.

(2) The County may require the former franchisee to remove all or a portion of its facilities and equipment at the former franchisee's expense, subject to franchisee's right to abandon property in place. If the former franchisee fails to do so within a reasonable period of time, the County may have the removal done at the former franchisee's and/or surety's expense.

(3) The County, by resolution of the Board of Supervisors, may acquire ownership or effect a transfer of all or a portion of the cable communications system in a manner consistent with applicable law, including but not limited to 47 U.S.C. 547(b).

(4) Subsection B10-71(d)(3) of this section does not apply to an abandonment. If a cable communications system or any part thereof is abandoned by franchisee, the County may require the franchisee to transfer title to the all or some of the abandoned portions to it, as the County may direct, at no charge, free and clear of encumbrances, and the same will become the County's property and the County 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. The cable communications system or a part thereof, will be deemed abandoned if (i) the cable communications system operator notifies the County of its intent to abandon; (ii) the cable communications system operator willfully ceases providing cable service in accordance with its franchise; (iii) the facility or equipment is not used or useful in the provision of then-existing or planned cable services; or (iv) the cable communications system operator does not provide cable service over the cable communications system or a part of the system for 96 consecutive hours, and is not restoring service with all due diligence.

(5) Notwithstanding the foregoing, the County 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, may be used singly or in combination, and are in addition to all other remedies which may be available to the County at law or equity; provided, however, that the County is not entitled to recover damages for the same act or omission under multiple remedies where doing so would result in a double recovery of damages by the County for the same harm. Recovery by the County of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit in any way a franchisee's duty to indemnify the County nor shall such recovery relieve a franchisee of its franchise obligations, limit the amounts owed to the County, or in any respect prevent the County from exercising any other right or remedy it may have.

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

(Ord. No. NS-905, § 2, 12-13-05)

(a) The County shall have the right to inspect and copy books and records: related in whole or in part to the construction, operation or repair of the cable communications system; that the County deems relevant to monitoring compliance with the terms of this chapter, a franchise or applicable law; or that the County deems relevant to the exercise of any right or duty of the County under the same. Each cable communications system operator is responsible for maintaining control over such books and records whether created by franchisee, or by those acting on its behalf. It is responsible for producing these records upon the County's request, for the County's inspection and copying in accordance with Section B10-72(b). The records that franchisee may be required to produce shall include, but are not limited to revenue records, and other records related to compliance with any provision of this chapter or a franchise ordinance. Books and records must be maintained for a period of 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 to the County by a time and at a location in the County designated by the County Executive or designated in a franchise ordinance. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, or if the requested books and records contain trade secrets, then the franchisee may request that the inspection take place at some other location mutually agreeable to the County and the franchisee, and the County will not unreasonably deny the request, provided that (1) the franchisee makes necessary arrangements for copying documents selected by the County after its review; and (2) the franchisee pays all travel and additional copying expenses incurred by the County (above those that would have been incurred had the documents been produced in the County) in inspecting those documents or having those documents inspected by its designee.

(c) Any proprietary information received by the County from a franchisee must be clearly marked as proprietary information which the franchisee asserts is not required to be disclosed pursuant to the California Public Records Act. If a third party seeks release of a document held by the County marked as provided in this section, the County will notify the franchisee so that the franchisee may seek court protection against the release of the document.

(Ord. No. NS-905, § 2, 12-13-05)

(a) The County Executive may from time to time direct a franchisee to prepare reports related to the provisions of applicable law or the franchise, or the construction, operation or repair of the cable communications system and to submit those reports by a date certain, in a format prescribed by the County Executive, in addition to those required by this chapter.

(b) Unless an exemption is granted by the County Executive, no later than 90 days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by Section B10-72(b)(3) need only be provided where there has been a change from the preceding year:

(1) A fully audited report by an independent, certified public accountant or a report by an officer of franchisee who is authorized and qualified to make binding representations on behalf of the franchisee, of gross revenues from the previous calendar year for the cable communications systems attributable to the franchise area, 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); (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; and (iii) in the case of revenues allocated to the system, the total revenues, the allocation methodology used, and the resulting revenues allocated to the system.

(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.

(c) 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 the County:

(1) Notices of deficiency or forfeiture related to the operation of the cable communications system other than notices of deficiency or forfeiture from the County; 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. NS-905, § 2, 12-13-05)

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). Each franchisee shall provide a map to the County showing the location of its facilities, in such detail and scale as may be directed by the County's Director of Roads and Airports 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 County Director of Roads and Airports that complies with County GIS standards.

(Ord. No. NS-905, § 2, 12-13-05)

Unless the County Executive specifically waives the requirement in writing, a franchisee shall at all times maintain:

(a) Records of all complaints received within the prior five years, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's construction, operation or repair 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 applies to it.

(Ord. No. NS-905, § 2, 12-13-05)

The County Executive may temporarily exempt any franchisee from its obligations under Sections B10-72 through B10-75 if the County Executive determines that the requirement would be unduly burdensome or unnecessary, and that County and subscriber interests may be adequately protected in some other manner.

(Ord. No. NS-905, § 2, 12-13-05)

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

(Ord. No. NS-905, § 2, 12-13-05)

(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.

(b) Unless a franchise ordinance expressly provides otherwise, a franchisee or other person subject to a fee under Article 3 or 4 shall file with the County within 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) No acceptance by the County 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 the County 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 a fee payment is not received by the County on or before the due date set forth in this section or in a franchise ordinance, or the fee owed is not fully paid within that time, the person subject to the fee will be charged interest on the outstanding amount owed from the due date at an interest rate equal to three percent above the rate for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

(f) Within 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 (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 B10-73(b)(1).

(Ord. No. NS-905, § 2, 12-13-05)