16-1
REGULATIONS:

16-1.1 Definitions:

For the purposes of this chapter:

a. CPUC shall mean the California Public Utilities Code.

b. Franchise holder shall mean a “holder of a state franchise” as that term is defined in section 5830 of the CPUC.

c. Gross revenues shall have the definition as set forth at section 5860 of the CPUC. (Ord. #1621, §1)

16-1.2 State Video Franchise And PEG Fees:

a. Any franchise holder operating within the boundaries of the city shall calculate and remit to the city a franchise fee of five percent (5%) of its gross revenues in accordance with the following:

1. The fee shall be payable to the city quarterly no later than June 1, September 1, December 1 and March 1 for the preceding calendar quarter for which the payment is due. However, in accordance with CPUC section 5860(a) the first remittance by a franchise holder shall not be due until one hundred eighty (180) days after the provision of service began.

2. As required by section 5860(h) of the CPUC, the payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee.

3. Per section 5860(h) of the CPUC, if the franchise holder does not pay the franchise fee when due, the franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

b. As authorized by section 5870(n) of the CPUC, the city hereby establishes a fee of one percent (1%) of a franchise holder’s gross revenues to support public, educational and governmental (PEG) facilities, to be paid by any franchise holder operating within the boundaries of the city in accordance with the following:

1. The fee shall not be effective immediately but shall be imposed beginning January 1, 2010.

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

3. As permitted by section 5870(o) of the CPUC, any franchise holder operating in the city may recover the PEG fees required herein as a separate line item on the regular bill of each subscriber. (Ord. #1621, §1)

16-1.3 Audit Authority:

Not more than once annually, the city manager or his designee may examine and perform an audit of the business records of any franchise holder to ensure compliance with subsection 16-1.2 of this section or any other fee or tax as permitted by law. (Ord. #1621, §1)

16-1.4 Customer Service Penalties:

a. Any franchise holder shall, at minimum, comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

b. The city manager or his designee will provide a franchise holder with written notice of any material breach of applicable customer service and protection standards, and will allow the franchise holder at least thirty (30) calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the franchise holder within the remedy period shall subject the franchise holder to the following penalties to be imposed by the city:

1. For the first occurrence of a material breach, a penalty of not more than five hundred dollars ($500.00) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of a material breach.

2. For the second violation of the same nature within twelve (12) months, a penalty of 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. For a third or further violation of the same nature within twelve (12) months, a penalty of two thousand five hundred dollars ($2,500.00) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material breach.

c. The franchise holder may appeal any imposition of penalties to the city council. Any appeal must be made within thirty (30) calendar days of the city’s delivery of the notice regarding the imposition of penalties. All appeals must be timely submitted in writing to the city clerk to be placed on a city council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements or authority.

d. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city council’s decision on the imposition of a penalty shall be final.

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

f. Any penalty imposed on the franchise holder pursuant to this section shall be paid to the city. As provided for in section 5900(g) of the CPUC, the city shall submit one-half (1/2) of all penalties received from a franchise holder to the digital divide account established in section 280.5 of the CPUC. (Ord. #1621, §1)

16-1.5 City Response To Franchise Holder Applications:

a. Applicants for state video franchises within the boundaries of the city must concurrently provide complete copies to the city of any application, or amendments to applications, filed with the California public utility commission. One complete copy must be provided to the city clerk.

b. Within thirty (30) days of receipt of any documents described in subsection 16-1.5a of this section, the city manager will provide any appropriate comments to the California public utility commission regarding an application or an amendment to an application for a state video franchise. (Ord. #1621, §1)

16-1.6 Indemnification And Insurance Requirements For State Franchises:

a. Defense Of Litigation:

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

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

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

(a) General comprehensive liability insurance in the amount of one million dollars ($1,000,000.00), together with bodily injury liability insurance in an amount not less than one million dollars ($1,000,000.00) for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than five hundred thousand dollars ($500,000.00) on account of any one occurrence, and property damage liability insurance in an amount not less than one hundred thousand dollars ($100,000.00) resulting from any one occurrence; provided, however, as follows:

(1) The city shall be named as an additional insured in any of such insurance policies; and

(2) Where such insurance is provided by a policy which also covers the franchise holder or any other entity or person, it shall contain the standard cross liability endorsement which excludes cross liability suits. (Ord. #1621, §1)

16-1.7 Undergrounding:

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

b. When the franchise holder’s conduits and other facilities are not being installed underground, the franchise holder shall utilize its existing poles, conduits or other facilities (collectively, “system”) to the extent feasible, as reasonably determined by the director of public works, and shall remove all portions of the aboveground system which will no longer be utilized. In addition, all facilities which are installed aboveground shall utilize antigraffiti surfaces.

c. Should the city undertake a program to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, upon reasonable notice to a franchise holder utilizing poles, conduits or other aboveground facilities, any such conduits or other facilities of the franchise holder shall be constructed, installed, placed or replaced beneath the surface of the streets. Any construction, installation, placement, replacement or changes which may be so required shall be made at the expense of the franchise holder, whose costs shall be determined as in the case of public utilities. (Ord. #1621, §1)

16-1.8 Compliance With Other Codes:

All franchise holders shall comply with all other applicable laws including chapter 13 of this code, if applicable. (Ord. #1621, §1)