5.16.300 - Franchise required.

No person may construct, operate or repair a cable communications system in the city without first obtaining a franchise from the city pursuant to the terms and provisions of the City Charter and this chapter.

(Ord. 12729 § 1 (part), 2006)

5.16.310 - Form of franchise.

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. 12729 § 1 (part), 2006)

5.16.320 - Scope of franchise.

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 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.

A.

A franchise shall not convey rights other than as expressly specified in this chapter, or in a franchise ordinance.

B.

A franchise shall not include, or be a substitute for:

1.

Any permit, agreement or authorization required commonly of all utilities in connection with construction, operation or repair on or in public rights-of-way or public property;

2.

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.

C.

A franchise does not relieve a franchisee of its duty to comply with all lawful city ordinances, resolutions, written policies, and regulations in effect as of the date on which the franchise becomes effective, and every franchisee must comply with the same. The rights granted under a franchise ordinance are subject to the lawful exercise of police powers the city now has or may later obtain. To the extent legally permitted, the terms of every franchise granted shall be subordinate to all the requirements of the Oakland City Charter as of the date the franchise becomes effective. Nothing herein prevents a franchisee from raising a claim or defense that a particular provision of the City Charter, a city ordinance, resolution, written policy, or regulation is unlawful or is unlawful as applied to the franchisee.

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. 12729 § 1 (part), 2006)

5.16.330 - 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.

(Ord. 12729 § 1 (part), 2006)

5.16.340 - Franchise term.

Every franchise ordinance shall specify the franchise term as a precise number of years.

(Ord. 12729 § 1 (part), 2006)

5.16.350 - Costs borne by franchisee.

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 city, provided that nothing contained in this Section 5.16.350 is intended to restrict or limit franchisee's rights under applicable law to recover costs from third parties, or assess or pass-through costs to its subscribers.

(Ord. 12729 § 1 (part), 2006)

5.16.360 - Failures to perform.

If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work or cause the work to be performed and bill the operator therefor. Except in the case of safety issues or other urgent circumstances, the city shall provide the operator with thirty (30) days notice and opportunity to perform the work before the city acts pursuant to this Section 5.16.360. The operator shall pay the actual cost incurred within thirty (30) days receipt of invoice. City will not unreasonably deny a request for an extension of time to perform, where the City Administrator finds that the delay will not adversely affect the work, the city, third parties affected by the work, or the public.

(Ord. 12729 § 1 (part), 2006)

5.16.370 - Administration of ordinance; adoption of regulations.

A.

The city 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 city.

B.

Except where this chapter specifically directs that action be taken by the City Council, the City Administrator or its designees are hereby authorized to administer and enforce the provisions of this chapter and any franchise issued pursuant hereto, 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.

The failure of city, 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 city may designate one or more persons, including itself, to control and manage the use of public, educational or government access channels, facilities and equipment.

(Ord. 12729 § 1 (part), 2006)

5.16.380 - Transfers.

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 city and the city's prior written consent is obtained, pursuant to this chapter and the franchise ordinance. 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. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

B.

A transfer 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 fifty (50) percent or more of the ownership in the franchisee or its direct or indirect parents by any person, or a group of persons acting in concert, or 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, regardless of the percentage of ownership change. 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 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, 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 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. 12729 § 1 (part), 2006)

5.16.390 - General conditions upon construction, operation and repair.

A.

The construction, operation, upgrade and repair of cable communications systems shall be performed in compliance with all laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the relevant portions of the Oakland Municipal Code (i.e., the city's zoning ordinance), 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, upgrade 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, upgrade 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 city's demand.

C.

Construction, operation, upgrade or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city 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 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 in accordance with the reasonable timeline set forth by the city. A franchisee shall reimburse the city for costs incurred in inspecting construction projects undertaken in the course of major or minor upgrades, installation of fiber optics, minor and major repairs, all other work for which the city requires inspection, and permit review and processing.

D.

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, except as prohibited by law or the franchise, a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.

E.

To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City Administrator, which permission shall not be unreasonably withheld.

F.

Undergrounding.

1.

Whenever all existing utilities are located underground in an area in the city, 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 underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its cables, wires or fiber optics underground.

3.

The City Council may, in its discretion, 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 a franchisee has demonstrated that relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner.

G.

Any and all public property, or private property that is disturbed or damaged during the construction, operation, upgrade or repair of a cable communications system shall be promptly repaired by the operator. Public property must be restored to a condition as good as before the disturbance or damage occurred. Public rights-of-way must be restored to a condition consistent with city standards that are generally applicable to all persons performing construction or excavation in the public rights-of-way.

H.

Relocation.

1.

A cable communications system operator shall at no cost to the city and by a time specified by city, protect, support, temporarily disconnect, relocate, or remove any of its property when requested 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 three weeks 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. The city shall not unreasonably deny such an extension where the operator demonstrates it can not perform the work by the deadline even with the exercise of due diligence. 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; however, city will make reasonable efforts, considering the circumstances, to provide prior notice.

I.

Construction activities of others.

1.

To accommodate the construction, operation, upgrade 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 fifteen (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 city, even if the city makes the request for such action. In cases where the requesting person is required under this Section 5.16.390(I)(1) 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.

2.

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 fifteen (15) 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 in advance by the person requesting the same.

J.

Abandonment.

1.

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 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 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 specified by the city. In specifying a date for removal, the city shall take into account the amount of work to be performed.

2.

A cable communications system operator that abandons its property must, upon request, transfer ownership of the property to the city 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. Whether or not ownership is transferred, the operator must indemnify the city against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.

K.

Every cable communications system shall be subject to inspection and testing by the city. Each operator must timely and fully 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 for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

L.

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.

M.

At least ninety (90) days prior to commencing construction, each cable communications system operator shall provide the city a construction 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 city that will be affected. The construction plans and timetables shall be reviewed by the city. The city acknowledges that certain portions of the construction plan may be tentative. The cable communications system operator shall provide additional information requested by the city within thirty (30) days of receipt of the request, to the extent such information is available. During construction, notice of changes to the construction plans and/or timetables must be provided to the city forty-eight (48) hours in advance. To the extent that any portion of such plan is tentative, franchisee shall provide the city with an update reasonably in advance of initiating such construction and repair.

N.

Unless otherwise specified in a franchise, upon request of the city and subject to the terms of the franchise, every cable communications system shall be required to interconnect, temporarily, with every other cable communications system within the city, on fair and reasonable terms, for the purpose of providing access to PEG programming.

O.

Upon any request given within one hundred eighty (180) days from and after effective date of the ordinance awarding the franchise or franchise renewal, the franchisee shall make available for the city's review all contracts which it may have with all public utility companies, whereby franchisee is granted any right to use any of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said franchisee.

(Ord. 12729 § 1 (part), 2006)

5.16.400 - Protection of city and residents.

A.

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

1.

Release the city from and against any and all liability and responsibility in or arising out of the construction, operation, upgrade repair or maintenance of the cable communications system; and

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, upgrade or repair of the system except those claims which arise out of the negligence or willful misconduct of the city.

B.

A franchise (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 satisfactory to the city. 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 city 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 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 expiration of or 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 sixty (60) days of the effective date of this chapter, annually thereafter, and whenever there is any expiration of or 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 respects the city. Any insurance or self-insurance maintained by the city 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 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.

A cable communications system operator (and those acting on its behalf to construct, operate or repair the system) shall maintain the following insurance, in the minimum amounts specified under the applicable franchise. The city shall be named as an additional insured on the general liability and automobile policies; those insurance policies shall be primary and contain a cross-liability clause.

1.

Commercial 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.

Completed operations and products liability shall be maintained for two 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 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 employers liability insurance.

3.

Comprehensive auto liability 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, or to upgrade a system, the amount of the bond shall be specified in the franchise. The amount of the bond shall be reduced upon successful completion of the required construction. The amount of the performance bonds shall be set by the City Administrator 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. 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 city an irrevocable letter of credit in a form mutually acceptable to the city and franchisee, in an amount specified in the franchise ordinance but no less than one hundred thousand dollars ($100,000.00) to secure the payment of fees owned, to secure any other performance promised in a franchise ordinance, and to pay any taxes, fees or liens owned 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. Should the city lawfully draw 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 ordinance specifically provides otherwise.

H.

A franchise ordinance may provide that the security fund requirements of Section 5.16.400(G) may be satisfied by a security bond in an amount provided in a franchise ordinance and in a form satisfactory to the city.

(Ord. 12729 § 1 (part), 2006)

5.16.410 - Enforcement and remedies.

A.

The City Council may revoke a franchise if it finds, after a hearing, that a cable communications system operator has violated any material 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 city 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 City Administrator must have given written notice of a claimed violation, breach, default or failure; and (2) the franchisee must have been given thirty (30) days to: (a) cure the claimed default, or (b) in the event that, by nature of the default, a cure is not feasible within such thirty (30) day period, initiate reasonable steps to remedy such default. An opportunity to cure is not required where the city finds that the defect in performance is part of a pattern of violations where the franchise has already had notice and opportunity to cure. The franchisee will be given at least thirty (30) days notice of the hearing date, and will be provided an opportunity to be heard at the hearing. Any revocation proceeding must be conducted in accordance with then applicable federal and state laws, and city shall be responsible for ensuring that franchisee is afforded due process under the law.

B.

To the extent not prohibited by the U.S. Bankruptcy Code, 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 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 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 ordinance and this chapter.

C.

Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, the city may do one or a combination of the following.

1.

The franchisee must, as the city so directs, stop using the cable communications system for the purposes authorized by the franchise.

2.

The city may require the former franchisee to remove all of 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 city may have the removal done at the former franchisee's and/or surety's expense.

3.

The city, by resolution of the City Council, may acquire ownership or effect a transfer of all or a portion of the cable communications system at the prices and under the conditions set forth in 47 U.S.C. § 547.

4.

Subsection 5.16.410(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 city may require the franchisee to transfer title to the all of some of the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become the city's property and the city 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.

5.

Notwithstanding the foregoing, the city may not, pursuant to this section, issue an order that violates 47 U.S.C. § 541(b)(3)(C).

D.

Remedies provided for under this chapter, or under a franchise ordinance shall be cumulative and are in addition to all other remedies which may be available at law or equity. 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 otherwise relieve a franchisee of its franchise obligations.

E.

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

(Ord. 12729 § 1 (part), 2006)

5.16.420 - Books and records.

A.

The city shall have the right to inspect and copy books and records that are relevant to monitoring compliance with the terms of this ordinance, a franchise or applicable law; or that are relevant to the exercise of any right or duty of the city under the same. Each cable communications system operator is responsible for maintaining control over such books and records whether created by it, or by those acting on its behalf. It is responsible for producing these records upon the city's request, for the city's inspection and copying. The records that franchisee must 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 three 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 city by a time and at a location in the city designated by the City Administrator. However, if the requested books and records cannot be copied and moved for security reasons, 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 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.

Any proprietary information received by the city 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 city marked as provided in this Section 5.16.420(C), the city will notify the franchisee so that the franchisee may seek court protection against the release of the document.

(Ord. 12729 § 1 (part), 2006)

5.16.430 - Reports.

A.

The City Administrator 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, upgrade or repair of the cable communications system and to submit those reports by a date certain, in a format prescribed by the City Administrator, in addition to those required by this chapter.

B.

Each franchisee shall submit the reports specified in the franchise ordinance, within the time limits specified in the ordinance.

C.

No later than thirty (30) days after the end of each calendar year, a franchisee shall submit the following information:

1.

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); and (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.

2.

A report showing, for each applicable customer service standard, the franchisees performance with respect to that standard for 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 all escalated customer service complaints received and an explanation of their dispositions.

(Ord. 12729 § 1 (part), 2006)

5.16.440 - Maps required.

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 an as-built map to the city showing the location of its facilities and shall update such map whenever the facility expands or is relocated. Copies of the maps shall be provided on disk, in a commercially available electronic format specified by the City Administrator. As built must be submitted in the time and manner specified in the franchise ordinance and consistent with other city ordinances.

(Ord. 12729 § 1 (part), 2006)

5.16.450 - Other records required.

A franchisee shall make available for inspection by the City Administrator in the city during normal business hours within ten (10) business days a written request the following records for the preceding twelve (12) months or such longer period as the franchisee may be required to maintain the records under applicable state or federal law:

A.

Records of all escalated complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's construction, operations or repairs activities whether received directly by the franchisee or forwarded to the franchisee by the city or other agencies;

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; and

F.

Records identifying all credits and/or refunds for outages, missed appointments and other service refunds, provided to any.

(Ord. 12729 § 1 (part), 2006)

5.16.460 - Exemptions.

The City Administrator may temporarily exempt any franchisee from its obligations under Sections 5.16.430—5.16.450 if the City Administrator determines that city and subscriber interests may be adequately protected in some other manner, so long as such temporary exemption does not conflict with any other city ordinance.

(Ord. 12729 § 1 (part), 2006)

5.16.470 - Privacy.

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

(Ord. 12729 § 1 (part), 2006)

5.16.480 - Procedures for paying franchise fees and fees in lieu of franchise fees.

A.

The franchise fee paid pursuant to Part 3, and the fee in lieu of franchise fee paid pursuant to Part 4 shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be delivered to the city by check or electronic transfer not later than thirty (30) days after the end of each calendar quarter. Each payment made shall be accompanied by a report detailing how the payment was calculated.

B.

No acceptance by the city 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 city may have for additional sums payable or otherwise related to that payment.

C.

Neither the franchise fee under Part 3, nor the fee paid in lieu of the franchise fee under Part 4, is a payment in lieu of any tax, fee or other assessment.

D.

In the event that a fee payment is not received by the city on or before the due date set forth in this section or in a franchise ordinance, or the fee owed is not fully paid, 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 two percent above the rate for three-month Federal Treasury Bills, compounded daily, at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

E.

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 (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 5.16.430(C)(l).

(Ord. 12729 § 1 (part), 2006)