Loading...
Ord 1428 - CONCERNING CABLE ANTENNAE TELEVISION FRANCHISEORDINANCE NO. 1428 ORDINANCE OF THE TOWN OF LOS GATOS CONCERNING CABLE ANTENNAE TELEVISION FRANCHISE THE TOWN COUNCIL OF THE TOWN OF LOS GATOS ORDAINS: 5 -4 -79 PWH /j SECTION 1. Chapter 9 (before adoption of this ordinance, composed of Sections 9 -1 through 9 -25) of the Los Gatos Town Code is amended to read: Definitions Section 9 -1 When not inconsistent with the context, the present tense includes the future, the plural number includes the singular, and the singular number includes the plural. (A) "Basic CATV Service" means the distribution of all broadcast television and radio signals carried by the grantee as of the effective date of the.franchise, or substitutions therefor. (B) "Cable Television System" means a system com- posed of devices such as antennae, cables, wires, lines, ducts, towers, wave guides, or any other conductors, converters, equipment or facilities, designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable audio or visual radio and television, to persons, subscribers and locations in the franchise area. (C) "CATV" or "cable system" means a cable television system. (D) "Company" means the grantee of rights under this chapter and those who are properly its successors -2- 3 -27 -79 PWH /j 5 -4 -79 PWH /j and assigns under the terms of this chapter. (E) "Council" means the Town Council. (F) "Gross Annual Basic Subscriber Revenues" means any and all compensation received directly by the Company from subscribers for Basic CATV Service and Pay TV service provided by grantee within the franchise area. Gross annual basic subscriber revenues does not include receipts derived from any taxes on services furnished by the Company imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the Company for such governmental unit. (G) "Pay TV" means any additional live, filmed or videotaped programming offered by the Company via the cable system for which the Company charges the subscribers a per channel or per program fee in addition to the monthly subscriber fee for Basic CATV Service. (H) "Person" means any .individual, partnership, association, corporation, company or organization. (I) "Property of the Company" means all property owned, installed or used by the Company in the conduct of a CATV business in the Town. -3- 3 -27 -79 PWH /j (J) "Service Drop" means the cable or line which carries the signal between the nearest distribution line and the subscriber's television set. (K) "Street" means the surface of and the space above and below any public right -of -way, sidewalk, communications easement, street or utility easement, now or hereafter existing as such within the franchise area. (L) "Subscriber" means any person, other than the Company, legally receiving electronic signals by means of the Company's cable television system. (M) "Town" means the Town of Los Gatos, apolitical subdivision of the State of California. Authority to Grant F Section 9 -2 The council may grant any person a franchise to use the streets to operate a CATV system or any function of a CATV system in all or any part of the Town, including,_ if the council so specifies, areas that become part of the Town after the franchise is granted. The council may grant several such franchises, or may limit the number of franchises in any way that it determines is proper. IME 4 -25 -79 PWH /j on- Exclusive Grant Section 9 -3 Any privilege granted under the terms of this ordinance is non - exclusive. Duration of Franchise Section 9 -4 The duration of the franchise is as follows: (A) Franchises authorized by this chapter are for a period of ten years beginning on the date of acceptance by the grantee. (B) Franchises may be extended for one period of nine months provided that proceedings for renewal of the franchise have been commenced by giving public notice thereof and the Company has accepted such extension prior to the expiration date of the franchise. (C) The franchise may be terminated sooner than the scheduled termination date for the reasons and in the manner provided in Section 14. -5- 3 -27 -79 PWH /j Conditions o f Street Occupancy Section 9 -5 Streets may be occupied on the following conditions: (A) The Company shall locate its CATV system within the franchise area only at such locations and in such manner as is approved by the Town Engineer acting in the exercise of his reasonable discretion. The CATV system shall be constructed and operated in compliance with all Town ordinances. The Company shall install and maintain its CATV system in a manner that will not interfere with any installations or activities of the Town. (B) To the extent possible, the Company shall, at its own expense and in a manner approved by the Town, restore any street or paved area which the Company disrupts to as good a condition as before the disruption. (C) The Company shall, at the request of any person holding a building moving permit issued by the Town, temporarily raise or lower its cables to permit the moving of buildings. The expense of such temporary raising or lowering of cables shall be 3 -27 -79 PWH /j paid by the person requesting the same, and the Company may require payment in advance, except that no charge therefore shall be levied against the Town for the moving of any buildings owned by the Town. The Company shall be given not less than 48 hours' advance notice to arrange for such temporary changes. (D) The Company shall not have the authority to trim trees upon and overhanging streets unless it has obtained approval from the superintendent of parks and forestry, and uses the methods prescribed by the superintendent. (E) In areas where the transmission or distribution facilities of both the telephone and electric utilities are underground or hereafter may be placed underground, then.grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground, except that amplifiers in grantee's transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the Town Engineer. The council may grant exceptions to this requirement in cases where unusual conditions would cause severe practical difficulties -7- 3 -27 -79 PWH /j or undue hardship in its application. (F) The Company shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place (all such activity of the Company being herein referred to as "relocation ") property of the Company when reasonably required by the Town by reason of traffic conditions, public safety, street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, and tracks or structures or improvements by public agencies, provided, however, that if the need for such relocation is brought about by virtue of the imposition by the Town of conditions of approval by the Town of a building permit, building moving permit, rezoning, zoning approval, or subdivision or parcel map, then the cost of relocation shall be borne by the permitee, applicant or subdivider. The Company may require payment in advance. Saf Requirements ection 9 -6 The Company shall observe the following safety requirements: 3 -27 -79 PWH /j (A) The Company shall at all times employ ordinary care and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance. (B) The Company shall maintain all structures, lines and equipment, wherever located, in a safe condition and in good order and repair. Service Policies Section 9 -7 In order that existing subscribers will not be unfairly burdened, the following service policies are adopted: (A) Standard Service Connection 1. The Company shall provide cable television service to any resident of the Town at the standard rate if: (a) The resident requests the service connection; and (b) The service connection to the resident would require no more than a standard 150 foot aerial service drop. 3 -27 -79 PWH /j 2. The Company shall provide cable television service to any resident requiring more than a standard 150 foot service drop or underground service connection at an added installation charge if such service has been requested by the resident. The added installation charge shall be the actual cost in excess of the cost of a standard aerial service drop 150 feet in length. The Company may require advance payment of the installation charge. (B) System Expansion to New or Existing Developments. 1. The Company need not provide cable television service pursuant to Section 7(A) above to residents within a new or existing development until potential subscriber density equals a density of 50 residences per mile of cable contiguous to the already activated system. Such density shall be computed on the basis of the number of dwellings which can be served on either side of the cable. 2. The Company may extend its cable to any part of the Town specified in the ordinance granting the franchise. Subject to the limitation in the preceding Part (B)l., the Company shall extend cable to all new residential developments as they are constructed. Costs of trenching, conduit, pedestals, vaults and service laterals, the prewiring of structures to receive CATV Service as well as of easements and any aUSM 4 -25 -79 PWH /j interconnection from the existing system required to bring cable television service to and within the development shall be borne by the developer or landowner. All installations and construction by developer or landowner shall be to the specifications of the Company. (C) System Expansion Limitation. Upon request of the Company, the Council may defer or suspend any required system expansion upon a showing by the Company that such expansion would cause financial hardship to the Company. The Town Manager shall publish a notice of the time and place of any hearing on such request at least ten days before any hearing, in a newspaper of general circulation within the Town. The Town Manager shall also cause a copy of such notice to be mailed to Company at least ten days before the hearing. Operational Stan Section 9 -8 (A) The Company shall operate and maintain its cable television system in substantial compliance with the applicable performance standards from time to time established by the Federal Communications Commission. A -11- 3 -27 -79 PWH /j copy of the applicable F.C.C. performance standards in effect at the time of the grant of any franchise shall be attached to the granting ordinance as an exhibit. The Company shall furnish the Town with a copy of the annual performance test which it provides to the F.C.C. In addition to receiving the annual performance test data, the Town may cause the progress, quality and performance of the system of the Company to be examined by an independent person or firm selected by the Town, at the expense of the Company, at three year intervals. The Town may cause additional examinations to be made at reasonable intervals, at its own expense. (B) The Company shall, concurrently with its furnishing to the Town of its F.C.C. annual performance test data, provide to the Town a list of all television and radio broadcast stations distributed by it under its basic CATV Service and shall note any changes thereon from the prior year. The list as of the effective, date of any franchise shall be attached to the granting ordinance as an exhibit. -12- 3 -27 -79 PWH /j ndemnification of Town Section 9 -9 The Company shall indemnify and hold harmless the Town, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to damages to the Town property and damages arising out of copyright infringements, and damages arising out of any failure by Grantee to secure consents from the owners or authorized distributors or licensees of programs delivered by the Company's cable television system), expenses and liabilities of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, caused by the negligent act or omission of the Company, its officers, agents, and employees in or relating to the exercise of any of its franchise privileges. The term "expenses and liabilities" also includes but is not limited to, attorney's fees, accountant's fees, expert witness or consultant fees, and per diem expenses and traveling expenses for witnesses, and costs in reasonable amounts and reasonably incurred. (A) Expense of Litigation In the event of any legal action between the Company and -13- 3 -27 -79 PWH /j the Town arising out of any alleged breach by Grantee of any term or condition or provision of this franchise, the successful party shall be entitled to reasonable attorney's fees and court costs related to the litigation. (B) The Company shall maintain in full force and effect during the life of this franchise, public liability insurance in a solvent insurance company authorized to do business in the State of California, in the amount of: 1. $200,000 property damage in any one occurrence; 2. $500,000 for personal injury to any one person; 3. $1,000,000 for personal injury in any one occurrence; provided, however, that all such insurance may contain reasonable deductible provisions not to exceed $1,000 for any type of coverage. (C) The Company shall provide the Town with respect to the insurance described in Section 9(B) a Certificate or Certificates of Insurance endorsed as follows: "It is hereby agreed that the Town of Los Gatos, its Councilmembers, Boards, Commissions, employees -14- 3 -27 -79 PWH /j and agents, acting in their capacity as such, are hereby added as additional insured under this policy. The insurance coverage extended by this endorsement is primary and any insurance carried by the foregoing additional insured is excess. It is agreed that no less than 30 days' written notice will be given to the holder of this certificate before cancellation or other material change in the coverage evidenced above." (D) If satisfaction of any of the preceding insurance requirements depends on the existence of an excess loss policy, then either every certificate shaving the primary coverage shall also state the amounts of the excess coverage, or the certificate showing the primary coverage shall be accompanied by another certificate stating the excess coverage. Where there is a separate certificate stating the excess coverage, that certificate shall refer to the primary policy by name of the carrier and number. (E) If at any time-in the future, damages recoverable by injured parties for personal injury or property damage are limited by law to a specific maximum amount, which is less than the insurance coverage required by this sub- section, then the Company may reduce its coverage to the specified maximum legal limits. -15- 3 -27 -79 PWH /j (F) All liability policies required to be kept in force by this Section 9 shall contain cross liability and waiver of subrogation endorsements. aithful Performance Bond Section 9 -10 (A) Grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this Ordinance, file with the Town Manager, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company approved by the Town Manager, and in a form approved by the Town Attorney, in the amount of $12,500, renewable annually, and conditioned upon the faithful performance of grantee, and upon the further condition that in the event grantee shall fail to comply with any one or more of the provisions of this Ordinance, or of any franchise issued to grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by Town as a result thereof, including the full amount of any compensation, indemnification, or cost of -16- 3 -27 -79 PWH /j removal or abandonment of any property of grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until grantee has liquidated all of its obligations with Town that may have arisen from the acceptance of said franchise or renewal by grantee or from its exercise of any privilege therein granted. The bond shall provide that 30 days' prior written notice of intention not to renw, cancellation, or material change, be given to Town. (B) Neither the provisions of this section, nor any bond accepted by Town pursuant thereto, nor any damages recovered by Town thereunder, shall be construed to excuse faithful performance by grantee or limit the liability of grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. Procedures Section 9 -11 In order that all parties be afforded due process of law: -17- 3-27-79 PWHj (A) Any proceeding or action taken or proposed to be taken by the council which may be adverse to the operation of the Company's cable television system, shall be taken only after: 1. The minimum legally required public notice is published in a local newspaper having general circulation in the Town and in the absence of any such requirement, the notice shall be published once at least ten days prior to the date of the proposed action; and, 2. A written description of such action or proposed action is served on the Company at least ten days prior to the proposed action; and, 3. The Company has been given an opportunity to respond, in writing, and at any hearing held by the Town. (B) The public notice required by this action shall state clearly the action or proposed action to be taken, the time provided for response and the person or persons in authority to whom such responses should be addressed, and such other procedures as may be specified by the Town. If a hearing is to be held, the public notice shall give the date and time of such hearing, whether public SOM 4 -25 -79 PWH /j participation will be allowed and the procedures by which such participation may be obtained. The Company shall be an indispensable party to any proceedings conducted in regard to its operations. Procedure Upon Termination Section 9 -12 Upon expiration of the term of this franchise or any renewal thereof, if the Company has not been granted an extension or renewal thereof and accepted the same, the Company may, for a period of one year thereafter, enter upon the streets of the Town for the purpose of removing therefrom its property. Additionally, the Company, at its own expense, shall remove such of its property from the streets or public places as the Town Engineer may designate. In removing its property, the Company shall, at its own expense, leave the streets in as nearly as possible as good condition as that prevailing prior to the Company's removal of its property. Any property of the Company not required to be removed by the Town may be sold in place by the Company to any successor CATV franchise in the Town. Any property of the Company not removed by it or sold in place by it during the one year following expiration of the franchise shall be deemed abandoned or conveyed to the Town, as the Town shall elect. -19- 3 -27 -79 PWH /j Approval of Transfer Section 9 -13 (A) The Company may not sell or transfer its rights to another, except as security for monies borrowed, without council approval. Such council approval shall not be unreasonably withheld. (B) If the Company at any time during the terms of this franchise or any extension hereof (i) is adjudicated a bankrupt or insolvent, (ii) has a receiver appointed, or (iii) has all or substantially all of its property located in the Town sold at execution or foreclosure sale, then the franchise may be terminated at the sole option of the Town. Termination of Franchise Section 9 -14 The Town Council may terminate the franchise because of failure by the Company substantially to perform according to the terms of this Ordinance and the ordinance granting the franchise. When there are substantial facts otherwise warranting termination, the Town Council, may as an alternative, by ordinance, provide such additional franchise regulations as are reasonably suited to prevent recurrence of the Company's error or default. -20- 4 -25 -79 PWH /j Proceedings under the provision of this Section 14 are conducted in the manner provided in Section 11. Local Office, Complaints Section 9 -15 The following complaint procedure is established: (A) The Company shall maintain a local business office, or agent, which subscribers may telephone during regular business hours without incurring added message or toll charges, so that CATV maintenance service shall be promptly available. (B) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Ordinance and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The Town Manager is hereby authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this Ordinance, either on behalf of Town, grantee, or any subscriber, in accordance with the terms of this franchise ordinance and agreement. The Company or any member of the public who may be dissatisfied with the decision of the Town-Manager may appeal the -21- 4 -25 -79 PWH /j matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the Town Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this Ordinance. (C) The Company shall notify each subscriber, at the time of initial subscription to the service of the Company, and at least once a year of the procedures for reporting and resolving such complaints. Miscellaneous Provisions Section 9 -16 The following general provisions are adopted: (A) When not otherwise prescribed herein, all matters herein required to be filed with the Town shall be filed with the Town Manager. (B) The Company shall pay the cost of all legally required publication of this Ordinance and of the ordinance granting its franchise. A. bill for the publication costs shall be presented to the Company by the Town Manager upon the Company's filing of acceptance and shall be paid ,at that time. (C) The Company shall provide without charge one outlet to each government office building, fire station, -22- 4 -25 -79 PWH. /j 5 -11 -79 PWH /j police station, and public school building at locations passed by its cable. The distribution of the cable facility inside buildings shall be the responsibility of the building owner. (D) In the case of any emergency or disaster, the Company shall, upon request of the Town, make available its facilities to the Town for reasonable use during the emergency without charge. Compliance with Applicable Laws and Ordinances Section 9 -17 The Company shall during the life of this Ordinance be subject to all lawful exercise of police power by the Town. The Town reserves the right to adopt from time to time such ordinances as may be deemed necessary to the exercise of police power. The exercise of the Town's police power shall be reasonable and not destructive of the rights herein granted and not in conflict with the laws of the United States, the State or other local laws or regulations. Violations Section 9 -18 The Town declares certain acts unlawful and provides penalties as follows: (A) It is unlawful for any person to construct, install or maintain within any street in the Town, or within any other public property of the Town, or within any privately -owned area within the Town, -23- 4 -25 -79 PWH /j 5 -11 -79 PWH /j which has not yet become a street but is designated or delineated as a proposed street on any tentative subdivision map approved by the Town, any equipment or facilities for distributing any television signals or radio signals through a CATV System, unless a franchise authorizing use of such street or property or area has first been obtained, and unless such franchise is in full force and effect. (B) It is unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this Town for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the operator of said system. (C) It is unlawful for any person, without the consent of the owner, willfully to tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or soudn. (D) When the Company has reasonable cause to believe a violation of Subsections (B) or (C) hereof has occurred it shall give notice in writing to the person residing or doing business at the location where the violation has -24- 4 -25 -79 PWH/j occurred to cause such violation to be corrected and may cause service to such location to be disconnected until such violation is corrected. When the Company has reasonable cause to believe a second such violation has occurred at the same premises and such premises continue to be occupied by the same person or persons, the Company may disconnect service to such location unless and until directed to reinstate service, upon payment of the proper fees and charges, by the Town pursuant to Section 15 of this Ordinance. (E) Nothing herein shall in any way limit the Company's right to pursue legal action to collect its few and charges from its subscribers as allowed, 'adjusted, settled or compromised pursuant to Section 15 (B) or as claimed by the Company if no recourse to dispute resolution by the Town Manager is sought by the Company or the subscriber involved. Access Section 9 -19 The Company, within a reasonable time following the making of a request, shall make available channel capacity of one channel or time on one channel, for use by others having no ownership affiliation with the Company for the purpose -25- 3 -27 -79 PWH /j of originating noncommercial programs over facilities of the system. The Company shall from time to time adopt and make available at its business office rules and price lists governing the use of such channel or time on a channel, and shall submit a copy of such rules to the Town and to the Federal Communications Commission. Fees and Charges Section 9 -20 (A) The Company may impose and collect such fees and charges for basic CATV Service and for the installation thereof as the Town from time to time approves. The initial subscriber fees and charges are set forth in Ordinance #$1266 of the Town of Los Gatos adopted October 6, 1975. (B) The Company may from time to time petition the Town for a change in its schedule of fees and charges so as to ` ensure a fair return on its investment. Within 30 days of the filing of such petition, the Town Council may request that the Company provide such supplementary or additional information as the Council deems reasonably necessary to determine whether the requested adjustment in the schedule of fees and charges should be granted. The Council mist take final action to grant or deny such petition within -26- 3-27-79 PWH /j 5 -4 -79 PWH /j 60 days of the filing of any such supplementary or additional information by the Company with the Town, or within 90 days from the filing of the original petition if the Council requested no supplementary or additional information. Notice of any rate modification hearing shall be given by publication once at least ten days before the hearing in a newspaper of general circulation circulated in the Town. (C) The Company may impose a late charge of one and one -half percent per month (or the maximum rate permitted by law, whichever is less) for each monthly payment not paid within 30 days of the date of required payment, and a charge of $5.00 for returned checks. The late charge cannot begin to accrue until the first of the month after the month for which service was rendered and properly billed. (D) Nothing in this ordinance prevents the Company from challenging in any court any action by the Council. Franchise Payments Section 9 -21 As a franchise fee: (A) For all rights granted-it, the Company shall pay the Town on or before April 30 of each year a three percent franchise fee based on Gross Annual Basic -27- 3- 27_ -79 PWH /j 5 -4 -79 PWH /j 5 -11 -79 PWH /j Subscriber revenues received for its cable system operations in the Town for the preceding calendar year. No other fee, charge or consideration is or shall be imposed. At the time of each payment due hereunder, the Company shall provide to the Town a written summary report showing Gross Annual Basic Subscriber Revenues received during the preceding year. (B) On or before January 30 of each year, the Company will pay to the Town an amount equal to three percent of the franchise fee paid in the preceding calendar year, such amount to be adjusted by additional payment or refund on or before April 30 to equal actual Gross Annual Basic Subscriber Revenue received during the preceding calendar year. In the event that the initial payment proves to be an overpayment, the Town shall refund the excess without interest within 30 days of delivery by the Company to the Town of the actual franchise fee calculations. (C) Any payment not made within 30 days of the due date specified in Section 21(A) above shall be subject to a late payment penalty of ten percent. If the payment is more than 30 days late, an additional penalty of one and one -half percent per month (or the maximum rate permitted by law, whichever is less) for each month after the first 30 days, is imposed. -28- 4 -25 -79 PWH /j 5 -11 -79 PWH /j Severability Section 9 -22 If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held invalid by the decision of any court or regulatory body of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof. The Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, and phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared illegal, invalid or unconstitutional. SECTION 2. This Ordinance takes effect 30 days after the date it is adopted. Within 15 days after this Ordinance is adopted the Town Clerk shall cause it to be published once in a newspaper of general circulation published and circulated in the Town. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on May 7, 1979 and adopted by the following vote as an Ordinance of the Town of Los Gatos at a regular meeting of the Town Council on May 21, 1979. AYES : COUNCIL MEMBERS Ruth Cannon, Thomas J. Ferrito, Peter W. Siemens and John B. Lochner NOES: COUNCIL MEMBERS None ABSTAIN: COUNCIL MEMBERS None ABSENT: COUNCIL MEMBERS Mardi Gualtieri SIGNED ATTEST: r Clerk of the Town of Los P os r of thcs Town of '5os Gatos -29- 3 -27 -79 PWH /j 5 -4 -79 PWH /j 5-11 -79 PWH /j