Ord 1569 - REPEALING CHAPTER 9 OF THE TOW CODE AND ADOPTING A REVISED CHAPTER 9ORDINANCE NOa: 1569
AN ORDINANCE REPEALING CHAPTER 9
OF THE TOW CODE AND ADOPTING
A REVISED CHAPTER 9
The Town Council of the Town. of Los Gatos hereby ORDAINS:
SECTION'l.
Chapter 9 of the Town Code, adopted as Ordinances No. 935 and 1428, is hereby
repealed
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A new Chapter 9 is hereby added, the exact language thereof to be as follows:
CHAPTER 9.
CABLE TELEVISION
Article I Introductory Provisions
Sec. 9.10.010 Title
This chapter shall be cited as the Los Gatos Cable Television Franchise
Ordinance.
Sec. 9.10.015
Purpose
The Town Council finds and declares as follows:
a. The development of cable television and communications systems has
the potential of providing great benefits to the people of the Town.
b. In order to maximize such benefits.in an area of complex and
rapidly- changing technology, it is necessary that the Town exercise regulatory
powers over cable television, including but not limited to such matters as
rates and performance.
Sec. 9.10.020 Repeal
This chapter shall constitute the amendment and repeal of Ordinance No.
1428 and substitution therefor. The second paragraph of Section 1 of Ordinance
No. 1429, granting a franchise to Teleprompter Corporation, is retained, and
the balance of Ordinance No. 1429 is also repealed.
Article II Definitions
Sec. 9.20.010 General
For the purpose of this chapter, the following terms, phrases, words and
their derivations shall have the meaning given herein. When not inconsistent
with the context, words used in the present tense include the future, words in
the plural number include the singular number, and words in the singular number
include the plural number. The word "shall" is mandatory and "may" is
permissive. Words not defined shall be given their common and ordinary
meaning.
Sec. 9.20.015 " Access Channel means any program or signal channel
available for non - profit use by government agencies, educational institutions,
community groups, or individual members of the public, under terms established
by the franchise agreement.
Sec. 9.20.020 " Access Channel Manager means any entity designated by the
Grantor to manage channels, facilities and resources provided by the Grantee
for public use.
Sec. 9.20.025. "Additional Subscriber Service" means any service not
inns u2ed in "Basic SuBscriber Te evision ervice," or "Basic Subscriber Radio
Service," or "Institutional Service," including, but not limited to, pay - cable.
Sec. 9.20.030 " Basic Subscriber Radio Service means the provision to all
subscribers of such audio services as the transmission of broadcast AM or FM
radio signals, the retransmission of shortwave, weather, news, time and other
similar audio broadcast channels, and the transmission of cablecast AM or FM
radio signals, as permitted by the FCC.
Sec. 9.20.035. "Basic Subscriber Television Service" means the service so
designated in the Franc ise Agreement.
Sec. 9.20.040 " Broadcast Signal means a television or radio signal that is
transmitted over the air to a wide geographic audience, whether received by a
Cable Communications System off - the -air or by microwave or satellite link.
Sec. 9.20.045. "Cable Communications System" or "System," also referred to
as "Ca 5l evision System or 11 MV S means a system of antennas,
cables, amplifiers, towers, microwave links, cablecasting studios, and any
other conductors, converters, equipment or facilities, designed and constructed
for the primary purpose of distributing video programming to home subscribers,
and the secondary purpose of producing, receiving, amplifying, storing,
processing, or distributing audio, video, digital, or other forms of elec-
tronic or electrical signals.
Sec. 9.20.050. " Cablecast Facility means a facility used to originate cable
programming and distribute programming to subscribers.
Sec. 9 .20.055. "Cablecast Signal" means a nonbroadcast signal that origi-
nates wi�the facilities of the Cable Communications System.
Sec. 9.20. "Channel" means a six Megahertz (Mtiz) frequency band, which
is capab e of carrying her one standard video signal, a number of audio,
digital or other non -video signals, or some combination of such signals.
Sec. 9.20.065. "Town" or " Grantor " means the Town of Los Gatos, as it is
present y, and may eein the future, constituted.
Sec. 9.20.070 " Closed- Circuit or " Institutional Service means video,
audio, data and other services provided to institutional users on an individual
application, private channel basis. These may include, but not be limited to,
two -way video, audio or digital signals among institutions, or from
institutions to residential subscribers.
Sec. 9.20.075. "Communit Access Group means any nonprofit group or organi-
zation designated as eligible to utilize access channels and facilities.
Sec. 9.20.080 " Connection Charge or " Installation Charge means any non-
recurring charge for connecting a subscriber to the cable television system, or
to a particular service.
Sec. 9.20.085. " Council " means the Town Council, the governing body of the
Town of `I s Gatos.
Sec. 9.20.090. "Educational Channel," or "Educational Access Channel" means
any c anne where educational institutions are t e only design ed programmers.
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Sec. 9.20.095. " means the Federal Communications Commission and any
a' yfl appointed or elected successor.
Sec. 9.20.100 " Franchise " means the rights granted pursuant to this ordi-
nance to construct and operate a Cable Communications System along the public
ways within all or a specified area in the Town.
Sec. 9.20.105. "Franchise Agreement" means a franchise grant ordinance
acceptec on the part of tie Grantee, or a written agreement between the
Grantor and Grantee relating to the System.
Sec. 9.20.110. "Franchise Fee" means the charges imposed as consideration
for tree granting of a franc��i a and the continuing use of the public streets
and rights -of -way.
Sec. 9.20.115 " Government Channel or " Government Access Channel means any
channel where local government agencies are the only designated programmers.
Sec. 9.20.120 " Grantee " means any person, corporation or other business
entity receiving a franchise pursuant to this ordinance and its lawful
successor, transferee or assignee.
Sec. 9.20.125. "Grantor" means the Town of Los Gatos as represented by the
Town Coun or its - Tegate acting within the scope of its jurisdiction.
Sec. 9.20.130. "Gross Revenues" means all cash, credits, property of any
k ind or nature or of er consla eration derived directly or indirectly by a Fran-
chisee, its affiliates, subsidiaries, parent, and any other person or entity in
which the Franchisee has a financial interest or which has a financial interest
in the Franchisee, arising from or attributable to operation of the Cable Tele-
vision System within the franchise area including, but not limited to: (1)
revenue from all services provided on the Subscriber Network and Institutional
Network (including Leased Access fees); (2) advertising revenues; (3) revenue
from the use of studio facilities, production equipment and personnel; (4)
revenue from installation, connection and reinstatement and the provision of
subscriber and other services; and (5) the sale, exchange or cable cast for a
value of any programming developed for community use or institutional users.
"Gross Revenues" shall include, valued at retail price levels, the value of any
goods, services or other remuneration in non - monetary form received by the
Franchisee or others described above in consideration for performance by a
Franchisee or others described above of any advertising or other service in
connection with the Cable Television System. "Gross Revenues" shall not
include: (1) any taxes or services furnished by the Franchisee which are
imposed directly upon any Subscriber or User by the United States, State of
California or local agency and collected by the Franchisee on behalf of the
government, or any copyright or other fee collected on behalf of the Federal
Copyright Tribunal or similar or successor entity; (2) revenue received
directly from the Franchisee by an affiliate, subsidiary or parent of the
Franchisee or any other person or entity in which the Franchisee has a
financial interest in the Franchisee, when the revenue received has already
been included in reported Gross Revenue as received by the Franchisee; (3)
revenue received for refundable deposits or converter rentals; provided, that
any converter rental in excess of Twenty -five Dollars ($25.00) per unit per
year shall be included in Gross Revenues.
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Sec. 9.20.135 "Initial Service Area" means the area of the Town which will
receive service initially, as set forth in the Franchise Agreement.
Sec. 9.20.140 "Institutional Network" or " Institutional Loop means a
closed circuit portion of the cable system designed to provide communication
services between institutions, such as schools, banks, etc.
Sec. 9.20.145. "Leased Channel" or "Leased Access Channel" means any channel
availa5l e "or lease a�u prog` ra m ng by persons or entities other than the
Grantee, including those portions of the other access channels not in use by
their designated programmers.
Sec. 9.20.150 " Local Origination Channel means any channel where the
Grantee is - the only designated programmer, and provides local programs to sub-
scribers.
Sec. 9.20.155 " Non- Broadcast Signal means a signal that is transmitted by
a Cable Communications System and that is not involved in an over -the -air
broadcast transmission path.
Sec. 9.20.160. "Open Channel" means any channel that can be received by all
su scri ers, without the necessity for special equipment.
Sec. 9.20.165. "Pay -Cable" or "Pay-Television" means the delivery to
subscri ers, over the Cable Communicat' _6ns Sy`' stem, of television signals for a
fee or charge to subscribers over and above the charge for Basic Subscriber
Service, on a per program, per channel, or other subscription basis.
Sec. 9.20.170 " Penetration " means the ratio of cable system subscribers to
the number of dwelling -units passed by the Cable Television System.
Sec. 9.20.175 " Person " means an individual, partnership, association,
organization, corporation or any lawful successor, transferee or assignee of
said individual, partnership, association, organization or corporation.
Sec. 9.20..180. "Private Channel," or "Closed- Circuit Channel" means any
cchannei�w is is available on y-to subscribers who are provided with special
converter or terminal equipment to receive signals on that channel.
Sec. 9.20.185 " Programmer " means any person or entity who or which pro-
duces or otherwise provides program material or information for transmission by
video, audio, digital, or other signals, either live or from recorded tapes or
other storage media, to subscribers, by means of the Cable Communications
System.
Sec. 9.20.190 "Public Access Channel," " Community Access Channel or
Community Channel means any channel wFiere any member of the general public or
any non - commercial organization may be a programmer, without charge, on a
non - discriminatory basis.
Sec. 9.20.195. "Resident" means any person residing in the Town as otherwise
define y applicable faw.
Sec. 9.20.200. " Section " means any section, subsection, or provision of this
rant ise o inance.
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Sec. 9.20.205. " Service Area means the entire geographic area within the
ranc ise territory.
Sec. 9.20.210 " State " means the State of California.
Sec. 9.20.215. " Street " shall include each of the following which have been
edicate to the public or hereafter dedicated to the public and maintained
under public authority or by others and located within the Town limits:
streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements,
right -of -way and similar public ways and extensions and additions thereto,
together with such other public property and areas that the Town shall permit
to be included within the definition of street from time to time.
Sec. 9.20.220. " Subscriber " means any person, firm, corporation, or other
entity w o or which elects to subscribe to, for any purpose, a service provided
by the Grantee by means of or in connection with the Cable Communications
System.
Sec. 9.20.225 " Tapping " means observing a communications signal exchange,
where the observer is neither of the communicating parties, whether the
exchange is observed by visual or electronic means, for any purpose whatsoever.
Sec. 9.`20.230. " Year " means the remaining portion of 1983. Thereafter,
' ear' means a full calendar year.
Article III. Grant of Franchise
Sec. 9.30.010 Grant
In the event that Grantor shall grant to a Grantee a revocable—franchise
to construct, operate, install, maintain, and reconstruct a Cable
Communications System within the Town, said franchise shall constitute both a
right and an obligation to provide the services of a Cable Communications
System as required by the provisions of this ordinance and any franchise
agreement.
Any franchise granted under the terms and conditions contained herein
shall be consistent with the statutory requirements of the State of
California. In the event of conflict between the terms and conditions of the
franchise and the terms and conditions under which the Grantor can grant a
franchise, the Charter and /or statutory requirements shall, without exception,
control.
Any franchise granted is hereby made subject to the general ordinance
provisions now in effect or hereafter made effective. Nothing in the franchise
shall be deemed to waive the requirements of the various codes and ordinances
of the Town regarding permits, fees to be paid or manner of construction,
except as provided in the last sentence of Section 9.30.045(a) hereof.
Sec. 9.30.015
Franchise Territory
The Grantor may grant a franchise for all or any defined portion of the
Town. The service area shall be the entire territory defined in the Franchise
Agreement, including residential, commercial, industrial and business areas
thereof.
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Sec. 9.30.020. Use of Public Streets and Ways.
For the purpose of operating and maintaining a Cable Communications
System in the Town, the Grantee may erect, install, construct, repair, replace,
reconstruct, and retain in, on, over, under, upon, across, and along the public
streets and ways within the Town such wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and
other property and equipment as are necessary and appurtenant to the operation
of the Cable Communications System. Prior to construction or alteration,
however, the Grantee shall in each case file plans with the appropriate Town
agencies and utility companies, and receive written approval before proceeding.
Sec. 9.30.025 Duration
The term of any franchise and all rights, privileges, obligations and
restrictions pertaining thereto shall not exceed fifteen (15) years from the
effective date of the franchise unless terminated sooner as hereinafter
provided.
Sec. 9.30.030 Transfer of Ownership or Control
a. Transfer of Franchise
Any franchise granted hereunder shall be a privilege to be held for
the benefit of the public. Said franchise cannot in any way be sold, trans-
ferred, leased, assigned or disposed of, including but not limited to, by
forced or voluntary sale, merger, consolidation, receivership, or other means
without the prior consent of the Grantor and then only under such reasonable
conditions as the Grantor may establish in order to ensure compliance with this
ordinance and the Franchise Agreement. No such transfer shall be approved
without a System and Services Review under Section 9.40.040 of this Chapter,
and the Grantor may impose conditions on transfer based on the findings in such
Review. If any transfer of the franchise occurs without the prior consent of
the Grantor, the franchise may, at Grantor's sole option, be terminated
immediately. Notwithstanding the foregoing, the transfers specified in Section
9.30.030(c) may be made by Grantee as therein set forth.
b. Ownership or Control
The Grantee shall promptly notify the Grantor of any change in, or
transfer of, or acquisition by any other party of, control of the Grantee. A
rebuttal presumption that the transfer of control has occurred shall arise upon
the acquisition or the accumulation by any person or group of persons of ten
percent (10 /) of the voting shares of the Grantee.
C. No Consent Required
No transfer, assignment or other disposition referred to in Section
9.30.030(a) shall require the consent of Grantor if same is a transfer in
trust, mortgage or other hypothecation, in whole or in part, to secure an
indebtedness or an assignment, transfer or other disposition to (i) any parent
or wholly -owned subsidiary of Grantee or (ii) any corporation or partnership in
which Grantee has at least 66 -2/3% of the outstanding stock or power or assets
if such transferee expressly agrees in writing to perform all the obligations
under this Chapter and the Franchise Agreement. Any dilution below 66 -2/3%
shall require the consent of the Council as hereinabove provided.
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d. The consent or approval of the Grantor to any transfer of the
Grantee shall not constitute a waiver or release of the rights of the Grantor
in and to the streets, and any transfer shall by its terms, be expressly
subordinate to the terms and conditions of this Chapter.
e. In the absence of extraordinary circumstances, the Grantor shall not
approve any transfer or assignment of the franchise prior to substantial
completion of construction of the proposed system, or of any other provisions
for extended construction or services as contained in the latest Franchise
Agreement.
f. In no event shall a transfer of ownership or control be approved
without successor in interest becoming a signatory to the Franchise Agreement.
Sec. 9.30.035 Holding Over
If the Grantee shall continue in operation and /or possession of the cable
system after the franchise has expired, been terminated, or been transferred in
violation of this Chapter, after thirty (30) days' written notice from the
Grantor, the Grantee shall be deemed to be "holding over" under the franchise
and all of the revenues of the system from the date of violation shall be
returned to the system subscribers on a pro rata basis. Notwithstanding the
provisions of this Section 9.30.035, in the event that Grantee is required
pursuant to Section 9.30.050(f) to continue the operation of the system for the
period therein set forth, Grantee shall not be deemed to be "holding over"
within the meaning of this Section, and any revenues generated by the operation
of the system shall be the property of Grantee.
Sec. 9.30.040. Police Powers.
In accepting a franchise granted pursuant to this Chapter, the Grantee
acknowledges that its rights thereunder are subject to the police power of the
Town to adopt and enforce general ordinances necessary to the safety and
welfare of the public; and it agrees to comply with all applicable general laws
and ordinances enacted by the Town pursuant to such power.
Sec. 9.30.045 Franchise Fee
a. Annual Franchise Payment
Grantee shall pay to the Town five percent (5%) of its gross annual
revenues derived from operations within the Town of Los Gatos as a franchise
fee. Of said five percent (5%), the Town may add 3/5 to its general - fund, but
shall deposit the remaining 2/5 in a special trust fund to be used solely for
public access purposes. If the Town seeks a ruling from the Federal
Communications Commission which would allow the Town to receive five percent
(5%), Grantee shall support and assist the Town therein. Franchise payments
required hereunder shall be in lieu of any business license, occupation tax or
similar levy.
b. Acceptance by Grantor
No acceptance of any payment by the Grantor shall be construed as a
release or as an accord and satisfaction of any claim the Grantor may have for
further or additional sums payable as a franchise fee under this Chapter or for
the performance of any other obligation of the Grantee.
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C. Failure to Make Required Payment
In the event that any franchise payment or recomputed amount is not
made on or before the dates specified herein, Grantee shall pay as additional
compensation:
(1) an interest charge, computed from such due date, at the
annual rate equal to the prevailing commercial prime interest
rate in effect upon the due date.
(2) a sum of money equal to five percent (5%) of the amount due
in order to defray those additional expenses and costs
incurred by the Grantor by reason of delinquent payment.
d. Payments due the Grantor under this provision shall be computed
quarterly, for the preceding quarter, as of March 31, June 30, September 30,
and December 31. Each quarterly payment shall be due and payable no later than
thirty (30) days after the dates listed in the previous sentence. Each payment
shall be accompanied by a brief report showing the basis for the computation
and such other relevant facts as may be required by the Grantor, provided that
any adjustment resulting from the fourth quarterly report shall be reflected in
the payment next due.
Sec. 9.30.050.
Forfeiture or Revo cation.
a. Except as may otherwise be provided in a Franchise Agreement, the
Grantor reserves the right to revoke any franchise granted hereunder and
rescind all rights and privileges associated with the franchise in the
following circumstances, each of which shall represent a default and breach
under this ordinance and the franchise grant:
(1) If the Grantee should default in the performance of any of
its material obligations under this ordinance or under such
documents, contracts and other 'terms and provisions entered
into by and between the Grantor and the Grantee.
(2) If the Grantee should fail to provide or maintain in full
force and effect, the liability and indemnification coverages
or the performance bond as required herein.
(3) If the Grantee should frequently violate any orders or
rulings of any regulatory body having jurisdiction over the
Grantee relative to this franchise, unless such orders or
rulings are being contested by the Grantee in a court of
competent jurisdiction.
(4) If the Grantee's construction schedule is delayed for more
than six (6) months later than the schedule contained in the
Franchise Agreement.
(5) If the grantee becomes insolvent, unable or unwilling to pay
its debts, or is adjudged a bankrupt.
b. Procedure Prior to Revocation
(1) Provided that Grantor shall have first imposed sanctions
pursuant to Article VII hereof for five (5) separate
violations in any twelve month period and thereafter Grantor
has determined default has occurred as specified in the
subsection (a) of this Section 9.30.050, then Grantor shall
make written demand that Grantee do so comply with any such
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requirement, limitation, term, condition, rule or regulation or correct any
action deemed cause for revocation and shall specifically identify same to
Grantee. If the failure, refusal and neglect of Grantee continues for a period
of 30 days following such written demand, the Grantor may place its request for
termination of the franchise upon a regular Council meeting agenda. The
Grantor shall cause to be served upon Grantee, at least ten (10) days before
such meeting, written notice of the time and place of the meeting in which the
request for termination shall be heard.
(2) The Council shall hear any persons interested therein, and
shall determine, in the exercise of its reasonable
discretion, the following:
(a) Whether or not any failure, refusal or neglect by
Grantee was due to a cause beyond its reasonable
control, as same is defined in Section 9.70.020 hereof;
and
(b) Whether a reasonable effort has been made to obtain
compliance by the use of monetary sanctions under
Article VII, without success.
(3) If such failure, refusal or neglect by Grantee was beyond the
reasonable control of Grantee, the Council shall direct the
Grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(4) If the Council determines that the Grantee's violation was
without just cause and that the imposition of sanctions has
been reasonably exhausted as a remedy and the Council has no
reason to believe that the violation will be cured in a
timely manner, the Council may, by resolution declare that
the franchise of such Grantee shall be terminated and the
bond specified in Section 9.50.010 hereof forfeited.
C. Disposition of Facilities
In the event a franchise expires, is revoked, or otherwise
terminated, the Grantor may order the removal of the system facilities from the
Town within a reasonable period of time as determined by the Grantor.
d. Restoration of Property
In removing its plant, structures and equipment, the Grantee shall
refill, at its own expense, any excavation that shall be made by it and shall
leave all public ways and places in as good condition as that prevailing prior
to the Grantee's removal of its equipment and appliances without affecting the
electrical or telephone cable wires, or attachments. The Grantor shall inspect
and approve the condition of the public ways and public places; and cables,
wires, attachments and poles after removal. The liability, indemnity and
insurance as provided herein and the performance bond provided therein shall
continue in full - force and effect during the period of removal and until full
compliance by the Grantee within the terms and conditions of this paragraph and
this ordinance.
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e. Restoration by Grantor, Reimbursement of Costs
In the event of a failure by the Grantee to complete any work
required by subsection d. above or any other work required by Grantor law or
ordinance within the time as may be established and to the satisfaction of the
Grantor, the Grantor may cause such work to be done and the Grantee shall
reimburse the Grantor the cost thereof within thirty (30) days after receipt of
an itemized list of such costs or the Grantor may recover such costs through
any security fund provided by Grantee.
f. Extended Operation and Continuity of Service
In the event of expiration or revocation of the franchise (and where
Grantor has not ordered Grantee to remove its facilities pursuant to Section
9.30.050(c)), Grantor may require the Grantee to continue to operate the system
for a period of time not to exceed three (3) months from the date of such
expiration or revocation, in which case the Grantee's permission to use Town
streets shall be extended for a like period. In furtherance of this
subsection, it shall be the right of all subscribers to continue to receive all
available services insofar as their financial and other obligations to the
Grantee are honored. Grantee shall do everything in its power to ensure that
all subscribers receive continuous, uninterrupted service regardless of the
circumstances, including operation of the system during transitional periods
which are the subject of this subsection M.
g. Grantor's Right Not Affected
The termination of any franchise shall in no way affect any of the
rights of the Grantor under the franchise or any provision of law.
Sec. 9.30.055
Receivership and Foreclosure
a. The franchise herein granted shall, at the option of the Grantor,
cease and terminate one hundred twenty (120) days after the appointment of a
receiver or receivers or trustee or trustees to take over and conduct the
business of the Grantee whether in a receivership, a reorganization, bankruptcy
or other action or proceeding unless such receivership or trusteeship shall
have been vacated prior to the expiration of said one hundred twenty (120)
days, or unless:
(1) Such receivers or trustees shall have, within one hundred
twenty (120) days after their election or appointment, fully
complied with all the terms and provisions of this ordinance
and the franchise granted pursuant hereto, and the receivers
or trustees within said one hundred and twenty (120) days
shall have remedied all defaults under the franchise.
(2) Such receivers or trustees shall, within said one hundred
twenty (120) days, execute an agreement duly approved by the
Court having jurisdiction in the premises, whereby such
receivers or trustees assume and agree to be bound by each
and every term, provision and limitation of the franchise
granted hereunder.
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b. In the case of a foreclosure or other judicial sale of the plant,
property and equipment of the Grantee, or any part thereof, including or
excluding this franchise, the Grantor may serve notice of termination upon the
Grantee and the successful bidder at such sale, in which event the franchise
herein granted and all rights and privileges of the Grantee hereunder shall
cease and terminate thirty (30) days after service of such notice, unless:
(1) The Grantor shall have approved the transfer of this
franchise, as and in the manner in this ordinance provided,
and
(2) Such successful bidder shall have agreed with the Grantor to
assume and be bound by all the terms and conditions of this
franchise.
Article IV. Regulation of Franchise
Sec. 9.40.010 Regulatory Authority
The Grantor shall exercise appropriate regulatory authority under the
provisions of this ordinance and applicable law. Grantor may, at its sole
option, participate in a joint regulatory agency, with delegated responsibility
in the area of cable related communications.
Sec. 9.40.015
Regulatory Responsibility
The Grantor may exercise or delegate the following regulatory
responsibility:
a. Administering and enforcing the provisions of the Cable Communica-
tions System franchise.
b. Coordination of the operation of facilities and channels dedicated
for public use, as provided for in any franchise agreements.
C. Providing for technical, programming and operational support to
public agency users, such as Town departments, schools and health care
institutions.
d. Establishing procedures and standards for institutional operations
and services, use of dedicated channels, and sharing of public facilities.
e. Planning expansion and growth of cable services.
f. Analyzing the possibility of integrating cable communications with
other City, State or regional telecommunications networks.
g. Formulating and recommending long -range telecommunications plans.
Sec. 9.40.020 Performance Standards
The primary purpose of this chapter is to ensure that a wide variety of
cable communication services will be provided with high quality and on a
consistent basis to users of any cable communications system authorized
hereunder. It is therefore required that all services provided by any system
authorized under this chapter, whether to residential or institutional users,
whether required by ordinance or contract or voluntarily offered by Grantee,
whether full time or part time or occasional, and whether offered to the entire
community or to a sub -part, shall be provided at the best quality possible
under the technical standards set forth in the Franchise Agreement. To that
end, the Grantee shall proceed with construction of any and all facilities in a
timely manner, utilize proper equipment for each function within the system,
utilize sound construction practices, utilize trained operating personnel,
utilize proper test equipment and procedures for maintenance and repairs,
perform all required periodic preventive maintenance procedures, and perform
all necessary repairs in a timely manner, in order to provide such high and
consistent service quality and in order to ensure that all technical and
operational standards and other requirements of this ordinance and the
Franchise Agreement are met.
Sec. 9.40.025. Public Usage of the System
If so specified in a franchise agreement, the Grantor may utilize a
portion of the cable system capacity, and associated facilities and resources,
to develop and provide cable services that will be in the public interest. In
furtherance of this purpose, the Grantor may establish a public non - profit
corporation, to receive and allocate facilities, support funds and other
considerations provided by the Grantee, and /or others; provided, however, that
any such entity shall satisfy the requirements for a nonprofit foundation
specified in California Government Code Section 53066.1(f)(3). Such a public
corporation, if established, may be delegated the following responsibilities:
a. Receive, and utilize or reallocate for utilization, channel
capacity, facilities, funding and other support provided specifically for
public usage of the cable system.
b. Review the status and progress of each service developed for public
benefit.
C. Reallocate resources on a periodic basis to conform with changing
priorities and public needs.
d. Report to the Grantor annually on the utilization of resources, the
new public services developed and the benefits achieved for the Town and its
residents.
Sec. 9.40.030
Reservation by Grantor
The Grantor reserves the right, at its discretion, from time to time, to
determine if the corporation described in the preceding section is performing
its purposes in a manner satisfactory to the Grantor, and if it is not, the
Grantor may receive and re- allocate all or a portion of the channel capacity,
operating appropriation, and capital appropriation, including any facilities
and equipment purchased previously with such appropriations, to another
entity. A new entity shall be required to comply in all respects with the
legal responsibilities which the corporation has assumed under Section
9.40.025.
Sec. 9.40.035
Triennial Review of Performance
a. Grantor may require, at its option, that performance audits of the
System be conducted as often as every three (3) years by an independent
technical consultant, to verify substantial compliance of the System to all
technical standards and other specifications of the Franchise Agreement. The
audit shall be at the expense of the Grantee, subject to any limitations in the
Franchise Agreement.
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b. Upon completion of a performance audit, the Grantor and Grantee
shall meet publicly to review the performance, quality of service and rates of
the Cable Television System. The reports required herein regarding subscriber
complaints, the records of performance tests and the opinion survey report
shall be utilized as the basis for review. In addition, any subscriber may
submit complaints during the review meetings, either orally or in writing, and
these shall be considered.
C. Within thirty (30) days after the conclusion of the system
performance review meetings, Grantor shall issue findings with respect to the
adequacy of system performance and quality of service. If inadequacies are
found, and same are within the reasonable control of Grantee, Grantor may
direct Grantee to correct the inadequacies within a reasonable period of time.
Grantor may also hire an independent technical consultant to verify that the
inadequacies have been properly corrected, the cost of said consultant being at
Grantee's expense, subject to any limitations in the Franchise Agreement.
d. Failure of Grantee, after due notice, to correct the inadequacies
shall constitute grounds for the commencement of the sanction proceedings set
forth in Article VII hereaf.
Sec. 9.40.040
System and Services Review
To provide for technological, economic, and regulatory changes in the
state of the art of cable communications, to facilitate renewal procedures, to
promote the maximum degree of flexibility in the cable system, and to achieve a
continuing, advanced, modern system, the Grantor and the Grantee shall comply
with the following system and services review provisions:
a. Concurrently with the public review of the triennial review of
performance referred to in Section 9.40.035, Grantor and Grantee shall hold a
Systems and Services Review Session. Such Review Sessions shall be open to the
public and notice shall be given.
b. Thirty (30) days prior to the scheduled System and Services Review
Session, Grantee shall submit a report to Grantor describing cable system
services that are then being provided on an operational basis, excluding tests
and demonstrations, through a representative sample of cities in California
with populations from fifty to one hundred thousand that are not provided to
Town and, shall simultaneously therewith, provide a plan for the provision of
such services, or an explanation indicating why such services are not feasible.
C. Topics for discussion and review at the System and Services Review
Sessions shall include but shall not be limited to, services provided, rate
structure, free or discounted services, application of new technologies, system
performance, programming, subscriber complaints, user complaints, rights of
privacy, amendments to the franchise, undergrounding processes, developments in
the law, and regulatory constraints.
d. Either the Grantor or the Grantee may select additional topics for
discussion at any Review Session.
e. Not later than thirty (30) days after the conclusion of each System
and Services Review Session, Grantor shall issue findings, including
specifically a listing of any cable services not then being provided to the
Town that are considered feasible. Grantor and Grantee shall then negotiate in
good faith on whether and on what terms such additional services may be
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provided. However, Grantee may not be required to provide any services not
called for in this Chapter or the Franchise Agreement.
Sec. 9.40.045 Audit of Alleged Inadequate Performance
a. Provided that no less than one year shall have elapsed from the last
performance audit conducted pursuant to this chapter or the Franchise
Agreement, if at any time, after a public hearing with at least ten (10) days'
notice to Grantee, Grantor determines that reasonable evidence exists of
inadequate system performance, it may require Grantee to perform tests and
analyses directed toward such suspected inadequacies. Grantee shall fully
cooperate with Grantor in performing such testing and shall prepare results and
a report, if requested, within thirty (30) days after notice. Such report
shall include the following information:
(1) The nature of the complaint or problem which precipitated the
special test.
(2) What system component was tested.
(3) The equipment used and procedures employed in testing.
(4) The method, if any, in which such complaint or problem was
resolved.
(5) Any other information pertinent to said tests and analyses
which may be required.
b. Grantor may hire a consultant to supervise the foregoing tests,
review their results, and advise Grantor of his findings. If the findings of
the independent consultant establish inadequate system performance, Grantee
shall reimburse Grantor for the costs of hiring the consultant, including the
costs of verifying compliance with any recommended corrective measures, subject
to whatever limitations are contained in the Franchise Agreement.
Sec. 9.40.050
Rate Regulation
a. Grantor may regulate cable system rates and charges in accordance
with this ordinance and applicable law. If any rate regulation authority
currently preempted by State or Federal government laws or regulations should,
in the future, no longer be preempted, Grantor shall have the right to assume
regulatory authority to the extent then permitted, in which event the procedure
set forth in Section 9.40.055 shall apply. Grantor shall notify Grantee in
writing if it believes said procedures are applicable.
b. Reasonable deposits and rental fees may be required for equipment
provided to subscribers by the Grantee.
C. Charges may be levied for initial installation of service to any
building. The charge for reconnection, where a drop already exists, must be
less than the initial installation charge. Procedures must be provided, where
addressable converters are utilized, to permit a minimum installation charge
when the customer is willing to pick up the addressable converter at a
designated location and connect it to an existing pre -wired point.
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Sec. 9.40.055. Rate Chance Procedure.
Where Grantor shall have the right to regulate rates and charges of
Grantee, the following procedures shall apply unless otherwise provided in the
Franchise Agreement:
a. Within forty -five (45) days of the filing of a completed petition
for rate change (defined herein as a petition containing all information
required pursuant to Section 9.40.055.e.), the Grantor shall hold an
appropriate public hearing to consider the proposed rate change, at which
hearing all persons desiring to be heard, including the Grantee, shall be heard
on any matter, including but not limited to the performance of the franchise,
the Grantee's services, and the proposed new rates.
b. Upon notice of any public hearing, the Grantee shall notify its
subscribers of the time, place, and subject matter of the public hearing by
announcement on at least two (2) channels of its system between the hours of
7:00 p.m. and 9:00 p.m., for at least five (5) consecutive days prior to the
hearing. In addition, notice of any public hearing shall be published in a
newspaper of general circulation at least once.
C. Within thirty (30) days after said hearing, the Grantor shall render
a written decision on the Grantee's petition, either accepting, rejecting,
modifying or deferring the same and reciting the basis of its decision. The
Grantor shall consider, but not be limited to, the following factors in
approving or disapproving the petition:
(1) Grantee's substantial fulfillment of all material
requirements of the franchise.
(2) Quality of service, as indicated by the number and type o f
service complaints, Grantee's response to complaints, and the
result of periodic system performance tests and the annual
reviews specified in Section 9.40.035.
(3) Prevailing rates for comparable services in other cable
systems of similar size, complexity, demographic
characteristics and franchise terms and conditions.
(4) Rate of return on Grantee's equity, as compared to businesses
of equivalent, lower or higher risk. For the purposes of
this ordinance, the rate of return on equity shall be defined
as the net, after -tax profit divided by the equity portion of
Grantee's investment in tangible assets. The investment
shall be defined as the cumulative cost of tangible assets
such as plant, property and equipment, less the cumulative
depreciation charges, plus workin capital, which shall be
defined as equivalent to three (3? months total operating
expenses. The rate of return shall be calculated on a
cumulative basis for all system revenues and costs, derived
from the franchise area, including services such as
pay - television that may be exempt from local rate
regulation. Upon request of Grantor, Grantee shall promptly
provide, from the Grantee, its parent company and any
subsidiary company, all information as shall be reasonably
necessary to determine system revenues and costs.
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(5) Performance of Grantee in introducing new services and
expanding the cable system's capability, as compared to other
systems of similar size and complexity.
(6) The original cost of the system less depreciation determined
on a straight line, actual life basis.
d. If the Grantor fails to render a written decision either accepting,
rejecting, modifying, or deferring Grantee's petition within seventy -five (75)
days of the Grantee's completed petition pursuant to subsection c. above, the
Grantee shall thereafter be entitled to put its proposed new rates into effect.
e. The Grantee's petition for a rate increase shall include, but not be
limited to, the following financial reports, which shall reflect the operations
of the system:
(1) Balance Sheet
(2) Income Statement
(3) Statement of Sources and Application of Funds
(4) Detailed Supporting Schedules of Expenses, Income, Assets and
other items as may be required
(5) Statement of Current and Projected Subscribers and
Penetration.
The Grantee's accounting records applicable to the system shall be
available for inspection by the Grantor at all reasonable times. The
documents listed above shall be prepared in accordance with generally accepted
accounting principles, and shall include sufficient detail and /or footnotes as
may be necessary to provide the Grantor with the information needed to make
accurate determinations as to the financial condition of the system. All
financial statements shall be audited by an independent Certified Public
Accountant and shall be certified as accurate by an officer of Grantee.
f. Schedule of Rates
Grantee shall maintain and file with the Grantor a complete schedule
of subscriber rates and nonrecurring charges and deposits, including all fees
and charges for services not subject to approval by the Grantor.
9•
Disconnections
There shall be no charge for disconnection from the system.
However, if a subscriber has failed to pay properly due monthly fees or if a
subscriber disconnects for seasonal periods, the Grantee may require, in
addition to full payment of any delinquent fees, a reasonable fee for
reconnection.
h. No Consideration Beyond Schedule
The Grantee shall receive no consideration whatsoever for or in
connection with its provision of service to its subscribers other than as set
forth in this section or as filed with and /or approved by the Grantor.
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i. Submission of Rate Increase Requests
Where the provisions of this Section 9.40.055 are applicable, and
except as may be expressly provided to the contrary in the Franchise Agreement,
Grantee shall not submit a request for rate increases earlier than twelve (12)
months after the prior request, if the request has been granted.
Sec. 9.40.060. Access Channel Management
a. Intent.
It is the intent of the Grantor to ensure that access and community
channels provided for in any franchise agreement shall be managed in the best
public interest, so that programming on such channels will be free of
censorship, open to all residents, and available for all forms of public
expression, community information and debate of public issues. Pursuant to
these objectives, the Grantor may delegate the responsibility for access
channel management to a nonprofit entity, termed the Access Channel Manager,
which may include, but not be limited to, any of the following:
(1) A nonprofit public corporation
(2) An access management commission or committee, appointed by
Grantor, and representing a broad spectrum of the community;
or
(3) An established nonprofit entity with special cablecasting
capability, such as a local or regional community college or
high school.
b. Functions.
The Access Channel Manager shall have the following functions:
(1) Responsibility for program production for and management of
the Public Access Channel and all other channels as may in
the Franchise Agreement be designated for community -based
programming. Community channels may include Government and
Educational Access channels as well as Public Access
channels.
(2) Establishment of budgets on an annual basis, and utilization
of funds and resources received from trhe Grantor or the
public useage corporation designated in Section 9.40.025, for
the purpose of access programming.
(3) To assure that no censorship or control over program content
of the Public Access and Community channel(s) exist, except
as necessary to comply with FCC prohibition of material that
is obscene, or contains commercial advertising, or conducts a
lottery, and to assure that Public Access and Community
channels are made available to all residents of the Town on a
non - discriminatory, first -come, first - served basis.
(4) To devise, establish, and administer all rules, regulations,
and procedures pertaining to the use and scheduling of the
Public Access and Community channels.
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(5) To prepare, in conjunction with the Grantee, such regular or
special reports as may be required or desirable.
(6) To hire and supervise staff.
(7) To make all purchases of materials and equipment that may be
required.
(8) To develop additional sources of funding, such as foundation
or Federal or State grants, to further community programming.
(9) To perform such other functions relevant to the Public and
Community channel(s) as may be appropriate.
C. Access Channel Manager Reports to Grantor.
The Access Channel Manager shall provide a report to Grantor and
Grantee, at least annually, indicating achievements in community -based
programming and services.
Sec. 9.40.065 Favored Nations Clause.
a. Throughout the term of any franchise granted pursuant to this
ordinance, the Grantee shall have an affirmative duty to notify the Town that
it has been granted a cable television franchise by another municipality or
franchising authority located anywhere within this county.
b. For the purpose of this section, any affiliated person, subsidiary,
partnership or wholly owned corporation related to the Grantee shall qualify as
an entity which shall be considered to be equivalent to the Grantee.
C. Subject to the conditions "set forth hereinbelow in paragraph e., the
Town shall have the right to require the Grantee to modify its cable services
or system design to include, within a reasonable time, any services which the
Grantee is required to offer in any of its cable systems located anywhere in
the county.
d. The Grantee shall be obligated to accept any modification in its
franchise or in its service obligation unless the Grantee is able to
affirmatively demonstrate to the satisfaction of the Town Council the
following:
(1) The additional or modified services involve services which
are only being tested on a trial basis only; or
(2) The modification is not feasible within the Town due to
population, technical complexity, demographic
characteristics, or other relevant factors; or
(3) The modification would have a substantial adverse impact upon
the Grantee's reasonable rate of return on investment during
the remaining term of the franchise based upon the then
current standards in the cable communications industry, and
with the adverse impact being determined upon the cumulative
effect of the proposed modification and all prior
modifications required by the Town pursuant to the provisions
of t h i s section.
so
e. Nothwithstanding anything contained in this Section 9.40.0615 to the
contrary, Grantee's obligations hereunder shall be subject to the following
conditions:
(1) Subsection c. shall not apply to any services or features of
system design offered prior to May 1, 1983.
(2) If the services or system design features offered to other
cable systems were made in connection with an extension of
Grantee's franchise in said area, the Town shall not have the
right to require Grantee to offer similar services in the
Town unless the Town as Grantor accepts all the provisions of
the franchise being compared, including extension of the
franchise between Town and Grantee for an equivalent period.
The Town shall not be permitted to select some, but not all,
of the provisions of any such other franchise award.
Article V General Financial and Insurance Provisions
Sec. 9.50.010
Construction and Performance_ Bond
a. Prior to the commencement of any construction work by the Grantee,
the Grantee shall file with the Grantor a construction and performance bond in
the amount specified in the Franchise Agreement, in favor of the Grantor and
any other person who may claim damages as a result of the breach of any duty by
the Grantee assursed by such bond.
b. The bond contemplated herein shall be in the form approved by the
Town Attorney and shall among other matters cover the cost of removal of any
properties installed by the Grantee in the event said Grantee shall default in
the performance of its construction obligation.
C. In no event shall the amount of said bond be construed to limit the
liability of the Grantee for damages.
Sec. 9.50.015 Security Fund
a. Within thirty (30) days after the effective date of the franchise,
the Grantee shall deposit into a bank account, established by the Grantor, and
maintain on deposit through the term of this franchise, the sum specified in
the Franchise Agreement, as security for the faithful performance by it of all
the provisions of this franchise, and compliance with all orders, permits and
directions of any agency of the Grantor having jurisdiction over its acts or
defaults under the franchise, and the payment by the Grantee of any claims,
liens and taxes due the Grantor which arise by reason of the construction,
operation or maintenance of the system. The security fund may be assessed by
the Grantor for purposes including, but not limited to, the following:
(1) Failure of Grantee to pay Grantor sums due under the terms of
the franchise;
(2) Reimbursement of costs borne by the Grantor to correct
franchise violations not corrected by Grantee, after due
notice;
(3) Monetary penalties assessed against Grantee due to default or
violation of franchise requirements.
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b. Within thirty (30) days after notice to it that any amount has been
withdrawn by the Grantor from the security fund pursuant to subsection a. of
this section, the Grantee shall deposit a sum of money sufficient to restore
such security fund to the original amount.
C. If the Grantee fails, after ten (10) days notice to pay to the
Grantor any franchise fee or taxes due and unpaid; or, fails to pay the Grantor
within such ten (10) days, any damages, costs, expenses, or penalties which the
Grantor shall be compelled to pay by reason of any act or default of the
company in connection with this ordinance or the Franchise Agreement; or fails,
after thirty (30) days' notice of such failure by the Grantor to comply with
any provision of the franchise which the Grantor reasonably determines can be
remedied by an expenditure of the security, the Grantor may immediately
withdraw the amount thereof, with interest and any penalties, from the security
fund. Upon such withdrawal, the Grantor shall notify the Grantee of the amount
and date there f.
d. The security fund deposited pursuant to this section shall become
the property of the Grantor in the event that the franchise is cancelled by
reason of the default of the Grantee or revoked for cause in accordance with
the procedures of Section 9.30.050 above. The Grantee, however, shall be
entitled to the return of such security fund, or portion thereof, as remains on
deposit at the expiration of the term of the franchise, or upon termination of
the franchise at an earlier date, provided that there is then no outstanding
default on the part of the Grantee.
e. The rights reserved to the Grantor with respect to the security fund
are in addition to all other rights of the Grantor whether reserved by this
ordinance or authorized by law, and no action, proceeding or exercise -o of a
right with respect to such security fund shall affect any other right the
Grantor may have.
Sec. 9.50.020
Indemnification
Grantee by acceptance of the franchise agrees to indemnify, defend, and
hold harmless the Town, its officers, board, commissions, agents, and
employees, against and from any and all claims, demands, causes of action,
actions, suits, proceedings, damages (including but not limited to damages to
Town property and damages arising out of copyright infringement, and damages
arising out of failure by Grantee to secure consents from owners, authorized
distributors or licensees of programs to be delivered by Grantee's cable
system), costs or liabilities (including costs or liabilities of the Town with
respect to its employees), of every kind and nature whatsoever, including any
attorneys' fees, accountant fees, expert witness or consulting fees, court
costs, per diem expenses, travelling and transportation expense, or other costs
and expenses arising out of or pertaining to the exercise or enjoyment of any
franchise hereunder granted by franchisee; provided, however, that the
foregoing indemnity shall expressly exclude liability arising solely out of any
claim, demand, cause of action or proceeding resulting from the negligence or
wilfull misconduct of the Town, the Town Council, each member thereof, or
officers, agents, employees or members of boards and commissions of the Town.
Sec. 9.50.025
Liability Insurance
a. The Grantee shall maintain, throughout the term of its franchise and
shall specifically name therein the Town of Los Gatos, its officers, employees,
and agents, as additional insured, liability insurance expressly insuring both
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the Grantee and Grantor with respect to all loss contingencies mentioned in
Section 9.50.020, in the minimum amount specified herein.
b. Prior to the effective day of the franchise, the Grantee shall
furnish proof to the Grantor that a satisfactory insurance policy is in force.
Said insurance policy shall be approved by the Grantor, and, along with written
evidence of payment of required premiums, certification of said policy shall be
filed and maintained with the Grantor. Where such insurance is provided by a
policy which also covers Grantee or any other entity or person, it shall
contain the standard cross - liability endorsement. By resolution Grantor may,
from time to time, increase the required face amount of such insurance in
reasonable amounts not to exceed the amount of insurance carried by the Grantor
for the applicable type of coverage.
C. All insurance policies shall provide that coverage will not be
cancelled, reduced or changed without at least thirty (30) days' prior written
notice to Grantor. At least thirty (30) days prior to the expiration of any
such policy, a certificate showing that such insurance coverage has been
renewed shall be filed with Grantor. If for any reason Grantee fails to obtain
or keep any of such insurance in force, Grantor may (but shall not be required
to) obtain such insurance, in which event Grantee shall promptly reimburse
Grantor its premium costs therefor plus twenty percent (20 %) interest thereon
until paid.
d. The insurance coverages provided by the Grantor shall be in minimum
sums as follows:
Workers' Compensation - statutory amounts.
General Comprehensive Liability (including bodily injury and
property damage) -- $2,000,000.
Broadcaster General Liability - $2,000,000.
Vehicle Liability (including bodily injury and property damage) --
$2,000,000.
Article VI feports
Sec. 9.60.010
Reports - Requirements
On or before April 30 of each year during the term of a Franchise
Agreement, and within thirty (30) days following expiration or termination of
the franchise, all franchisees shall submit a written report to the Town
Manager, in a form reasonably satisfactory to the Town Manager, which shall
include the following information regarding the previous calendar year:
a. A summary of activities in the development of the system, including,
but not limited to, services begun or discontinued, total number of
subscribers, homes passed, subscribers added or discontinued and institutional
network development and user participation, all in accordance with the
provisions of this Chapter and the Franchise Agreement.
b. A list of all service related complaints received and system
"downtime" experienced during the reporting period. All such submitted data
shall include service request disposition and response time. For the purpose
of this provision, certified copies of the "complaint" log book reflecting all
such incidents will be sufficient. Said report shall include a summary by
category of complaints.
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C. A financial statement verified by an officer of Grantee showing by
major categories the gross annual receipts of Grantee for the prior calendar
year applicable to its business conducted pursuant to the franchise. Said
financial statement shall be in sufficient detail to enable the Town Manager to
determine the accuracy of the franchise fee paid by Grantee. In the event that
a Grantee shall be a publicly held company or shall otherwise prepare for
public distribution certified annual financial statements, a copy of said
certified financial statement shall be provided to Town with the general
financial statement.
d. A current statement of construction costs by category.
e. A copy of Grantee's annual report, if any, for the most recent
period for which it has been prepared.
f. A full schedule of all subscriber and user rates, and all fees and
charges for all cable services provided.
g. A report on any system expansions having occurred during the
preceding calendar year and, if the Franchise Agreement so requires, a report
as to the status and timeliness of any improvements required by the Franchise
Agreement to be made by Grantee and any other reports required by the Franchise
Agreement.
h. A full schedule of all subscriber and user rates, advertising rates,
leasing rates, fees and charges for all cable services provided under the
Franchise Agreement.
i. The reports submitted pursuant to this Section shall be available
for public inspection in the office of the Town Clerk during Town business
hours.
j. Franchisee shall file simultaneously with the Town a copy of any
document franchisee files with the FCC or any other state or federal regulatory
agency having jurisdiction over cable television and relating to the franchise
area and any document filed with the Securities and Exchange Commission
required in connection with the sale, transfer or merger of franchisee, its
stock or assets, if it relates to the franchise area.
k. To the extent that the Town shall in its reasonable judgment
determine that it does not have accurate information to assess whether or not
the franchise fee has been computed correctly, or to determine whether
performance or engineering requirements of a franchise under this Chapter or a
Franchise Agreement have been complied with, the Town may request such
information from franchisee as shall be reasonably necessary to make such
determination. All books and records of franchisee with respect to
franchisee's costs of operating and its determination of the franchise fee
payable pursuant to this Chapter shall be kept in accordance with generally
accepted accounting principles.
1. The reports required to be filed by this Section shall be examined
by the Town Manager for compliance with the requirements of the Franchise
Agreement in this Chapter. The Town Manager shall inform the franchisee in
writing within a reasonable time after receipt of the reports required to be
submitted in accordance with this Section if he determines same are not in
compliance with those requirements. A franchisee shall thereafter, within a
reasonable time of receipt of said notification from the Town Manager, submit
amended reports to the Town Manager.
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M. A franchisee shall be responsible for all subscriber and user
complaint resolution and shall maintain a written record or "log," listing the
date and time of customer complaints, describing the nature of the complaints
and when and what actions were taken by the franchise in response thereto. The
log shall be kept at the franchisee's local office, reflecting the operations
to date for a period of at least three (3) years, and shall be available for
inspection by the Town and the general public during regular business hours at
the franchisee's local office.
Sec. 9.60.015
Plant Survey Report
Subject to any limitations in the Franchise Agreement, Grantee shall,
simultaneously with the annual report required by Section 9.60.010, submit to
the Grantor an annual plant survey report which shall be a complete survey of
the Grantee's plant and a full report thereon. Said report shall include, but
not be limited to, a description and "as- built" maps of the portions of the
franchise area that have been cabled and have all services available, and an
appropriate engineering evaluation including suitable electronic measurements
conducted in conformity with such requirements, including supervision, as the
Grantor may prescribe. Said report shall be in sufficient detail to enable the
Grantor to ascertain that the service requirements and technical standards of
the FCC and/or the franchise are achieved and maintained.
Sec. 9.60.025
Reports on Service Calls and Outages
a. An accurate and comprehensive file shall be kept by the Grantee of
any and all service calls regarding the cable system. A procedure shall be
established by the Grantee by the time of installation of the cable system to
remedy service calls quickly and reasonably to the satisfaction of the
Grantor. Complete records of Grantee's actions in response to all servioee
calls shall be kept. These files and records shall remain open to the public
during normal business hours. Service calls shall be separated into the
following categories: System Problem, Set Problem, and No Problem. A graph of
this data for at least the preceding three (3) years shall be supplied.
Reports under this section may be combined with those required under Section
9.6O.010b.
b. A summary of service calls, identifying the number and nature of
service calls and their disposition, in a form approved by the Grantor, shall
be completed for each calendar quarter and submitted to the Grantor by the
tenth (10th) day of the succeeding calendar quarter.
C. A summary of outages, identifying the length of the outage and
approximate percentage of the system affected, in a form approved by the
Grantor, shall be completed - for each calendar quarter and submitted to the
Grantor by the tenth (10th) day of the succeeding calendar quarter.
d. A biennial opinion survey report which identifies satisfaction or
dissatisfaction among subscribers with cable communications services offered by
the Grantee shall be submitted to the Grantor no later than two (2) months
after the anniversary date of the effective date of a franchise. The surveys
required to make said report shall be conducted in conformity with standard
survey research techniques.
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Sec. 9.60.030 Privacy Report
Grantee shall comply with all federal and state requirements regarding
the privacy of subscribers and shall take all steps reasonably necessary to
assure that such privacy rights of individuals have been protected.
Sec. 9.60.040 Inspection of Facilities
The Grantee shall allow the Grantor to make inspections of any of the
Grantee's facilities and equipment at any time upon one (1) day's prior notice,
or, in case of emergency, upon demand without prior notice, to allow Grantee to
verify the accuracy of any submitted report.
Sec. 9.60.045. Business Office and Files
Unless otherwise provided in the franchise, the Grantee shall maintain an
office within the franchise area and shall keep complete and accurate books and
records. The Grantor shall have the right to inspect at any time during normal
business hours all books, records, maps, plans, financial statements, service
complaint logs, performance test results and other like materials of the
Grantee which relate to the operation of the cable system.
Sec. 9.60.050
Public Inspection
All reports required under this section, except as otherwise herein
provided, shall be available for public inspection in the Town Clerk's office
during normal business hours.
Sec. 9.60.055
Failure to Report
The refusal, failure, or neglect of the Grantee to file any of the
reports required under this Chapter shall be deemed a material breach of the
franchise, and shall subject the Grantee to all penalties and remedies, legal
or equitable, which are available to the Grantor under the franchise or
otherwise.
Sec. 9.60.060 False Statements
Any materially false or misleading statement or representation made
knowingly by the Grantee in any report required under the franchise shall be
deemed a material breach of the franchise and shall subject the Grantee to all
penalties and remedies, legal or equitable, which are available to the Grantor
under the franchise or otherwise.
Sec. 9.60.065 Cost of Reports
All reports and records required under this or any other section shall be
furnished at the sole expense of the Grantee. Grantee shall also bear any
reasonable expense incurred by Grantor in verifying the completeness and
accuracy of any reports, as well as any correction undertaken as a result
thereof.
Article VII
Franchise Violations
Sec. 9.70.010 Remedies for Franchise Violations
a. Subject to the procedures hereinafter set forth, if the Grantee
fails to perform any material obligation under the franchise or Fails to do so
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in a timely manner, the Grantor may, at its option, and subject to such
moratorium, if any, which may be provided - for in the Franchise Agreement:
(1) Assess against the Grantee the following monetary sanctions,
or the maximum sanctions allowed by state law, whichever are
greater:
(a) If the system has less than five thousand (5,000)
subscribers, two hundred fifty dollars ($250.00) for
each day the violation continues.
(b) If the system has more than five thousand (5,000)
subscribers, five hundred dollars ($500.00) for each
day the violation continues.
The aforesaid assessments shall be levied against the
security fund, hereinabove provided, and collected by Grantor
immediately upon said assessment. Grantor and Grantee agree
that the amount of such assessment shall be deemed, without
proof, to represent liquidation of damages actually sustained
by Grantor by reason of Grantee's failure to perform. Such
assessment shall not constitute a waiver by the Grantor of
any other right or remedy it may have under the franchise or
under applicable law, including without limitation, its right
to recover from Grantee such additional damages, losses,
costs and expenses, including actual attorney fees, as may
have been suffered or incurred by Grantor by reason of or
arising out of such breach of the franchise. This provision
for assessment of damages is intended by the parties to be
separate and apart from Grantor's right to enforce the
provisions of the Construction and Performance bonds provided
for in Section 9.50.010, and is intended to provide
compensation to Grantor for actual damages.
(2) In the event such violation shall have materially degraded
the quality of service to subscribers, Grantee may direct
Grantor to issue as a credit to any subscriber whose
service has been interrupted as a result of such violation,
in the following percentages of the monthly fee otherwise
charged to said subscribers:
(a) 24 consecutive hours: 5% rebate of the monthly fee;
(b) 24 to 48 consecutive hours: 15% rebate of the monthly
fee;
(c) 48 to 72 consecutive hours: 25% rebate of the monthly
fee;
(d) Greater than 72 consecutive hours: 100% rebate of the
monthly fee.
Notwithstanding the foregoing, in no event shall Grantee be
required to credit to anyone subscriber any more than the
equivalent of 100% of the monthly fee in any one calendar
year; and, further provided that no such rebate shall be
required where the incident in question has occurred more
than sixty (GO) days prior to the violation which is the
subject of this Subsection.
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(3) Require Grantee to cure all defaults and breaches of its
obligations hereunder before Grantee is entitled to increase
any rate or charge to subscribers hereunder.
(4) Terminate the franchise, as provided in Section 9.30.050
above.
b. No penalty shall be imposed by Grantor against Grantee for any
violation of this franchise without Grantee being afforded due process of law,
as provided for in Section 9.70.015 below.
C. Grantor may, in its sole judgment and discretion, impose any or all
of the above enumerated measures against Grantee, which shall be in addition to
any and all other legal or equitable remedies it has under this franchise or
under any applicable law.
Sec. 9.70.015
Procedure for Remedying Franchise Violations
a. The Town Manager shall make the initial determination as to whether
a violation of this ordinance or the Franchise Agreement has occurred, and
shall immediately provide Grantee with written notice by personal service or
certified mail of such determination. The notice shall specify (1) the basis
for the determination, (2) the action required of Grantee to correct it, and
(3) a reasonable time within which Grantee may be allowed to correct it.
b. In the case of a penalty assessment under Paragraph 9.70.010.a., if
the Manager determines that a violation has not been satisfactority corrected
within the time allowed in the foregoing notice, he may levy against the
security fund immediately. However, Grantee shall have the right to appeal the
Manager's decision to the Council by filing an appeal within seven (7) days
after receipt of the Manager's determination, and upon hearing said appeal, the
Council may affirm, reverse, or modify the Manager's decision based on the
evidence presented. Once an appeal has been filed, it may not be withdrawn
without the consent of the Council.
C* Prior to imposing any of the other sanctions referred to in Section
9.70.010, the Manager shall give Grantee notice by certified mail of his intent
to recommend the sanction. The notice shall also contain the basis for the
recommendation, the action required of Grantee to correct the alleged
violation, and notice of a public hearing at which the recommendation will be
presented to the Council. At the conclusion of the public hearing, the Council
may impose whatever sanctions provided for herein it deems appropriate under
this Chapter or the Franchise Agreement, based upon the evidence presented.
The Council shall issue written findings of the basis for their determination.
Sec. 9.70.020 Grantee's Inability to Perform
In - the event Grantee's performance of any of the terms, conditions,
obligations, or requirements of this ordinance, or a franchise granted
thereunder, is prevented or impaired due to any cause beyond its reasonable
control and which is not reasonably foreseeable, such inability to perform
shall be deemed to be excused and no penalties or sanctions shall be imposed as
a result thereof; provided, that the determination as to whether the conditions
described in this paragraph exist or not shall be made by Grantor, based on
findings supported by substantial evidence. If a determination is made that
this paragraph applies, any penalties previously imposed for a violation
covered by such determination shall be returned to Grantee. Such causes beyond
Grantee's reasonable control and not reasonably foreseeable shall include, but
not necessarily be limited to, acts of God, civil emergencies, labor unrest
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or strikes, or inability to obtain gratis access to, by right of way or other
permission, to an individual's property.
Sec. 9.80.010
Article VIII
Inspection of Property and Records
Operation and Maintenance
At all reasonable times, Grantee shall permit examination by any
duly authorized .representative of the Grantor, all franchise property, together
with any appurtenant property of Grantee situated within or without the Town.
Grantee shall also permit any duly authorized representative of the Grantor to
examine and transcribe any and all maps and other records kept or maintained by
Grantee or under its control concerning the operations, affairs, transactions
or property of Grantee. If any of such maps or records are not kept in the
Town, or upon reasonable request made available in the Town, and if the Grantor
shall determine that an examination of such maps or records is necessary or
appropriate to the performance of any of their duties, then all travel and
maintenance expense necessarily incurred in making such examination shall be
paid by Grantee.
Sec. 9.80.015 Maintenance and Complaints
a. The Grantee shall maintain an office which shall be open during all
usual business hours, have a publicly listed toll -free telephone, and be so
operated to receive subscriber complaints and requests for repairs or
adjustments on a 24 -hour basis. A written log shall be maintained listing all
complaints and their disposition, including the time taken to respond tro the
complaint and to repair the problem.
b. The Grantee shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time possible.
Such interruptions, insofar as possible, shall be preceded by notice and shall
occur during period of minimum use of the system. A written log shall be
maintained for all service interruptions.
c. The Grantee shall maintain a repair force of technicians capable if
responding to and correcting subscriber complaints or requests for service
within twenty -four (24) hours after receipt of the complaint or request. No
charge shall be made to the subscriber for this service.
d. The Grantee shall furnish each subscriber, at the time service is
installed, written instructions that clearly set forth procedures, furnish
information concerning the procedures for making inquiries or complaints,
including the name, address and local telephone number of the employee or
employees or agent to whom such inquiries or complaints are to be addressed,
and furnish information concerning the Town office responsible for administra-
tion of the franchise with the address and telephone number of office.
Sec. 9.80.020
Rights of Individuals
a. Grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of race, color, religion, national origin, age or sex. Grantee shall
comply at all times with all other applicable Federal, State and local laws and
regulations, and all executive and administrative orders relating to
nondiscrimination which are hereby incorporated and made part of this ordinance
by reference.
Wil
b. Grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC, State and local regulations, and as amended from time
to time.
C. Neither the Grantee, nor any person, agency, or entity shall,
without the subscriber's consent, tap, or arrange for the tapping, of any
cable, line, signal input device, or subscriber outlet or receiver for any
purpose except routine maintenance of the system, polling with audience
participation, or audience viewing surveys to support advertising research
regarding viewers where individual viewer behavior cannot be identified.
d. In the conduct of providing its services or pursuit of any
collateral commercial enterprise resulting therefrom, Grantee shall take any
and all necessary action to prevent an invasion of a subscriber's or general
citizen's right to privacy or other personal rights as such rights are
delimited and defined by applicable law. Grantee shall not without lawful
court order or other applicable valid legal authority utilize the system's
interactive two -way equipment or capability for unauthorized personal
surveillance of any subscriber or general citizen.
e. No cable line, wire,amplifier, converter, or other piece of
equipment owned by Grantee shall be installed by Grantee without first securing
the written permission of the owner of any property involved; provided,
however, that where the property owner has granted an easement or a servitude
to another and the servitude by its terms and contemplates uses such as
Grantee's intended use, Grantee shall not be required to secure the written
permission of the owner for the installation of cable television equipment or
facilities unless Grantee elects to do so. If permission is later revoked,
whether by the original or a subsequent owner, the Grantee shall remove
forthwith any of its equipment which is visible and movable and promptly
restore the property to its original condition.
f. The Grantee shall not sell or otherwise make available lists of the
names and addresses of subscribers, or any list which identifies, by name,
subscriber viewing habits, or personalized data pertaining to a subscriber's
use of any of Grantee's services without the express consent of the subscriber
to which the personalized data pertains. For purposes of this section,
"personalized data" shall mean the name and /or addresses of an individual
subscriber directly associated with data obtained on his or her use of specific
services provided by or through the Grantee. Nothing herein shall be construed
to prevent, as a normal incident of commercial enterprise, the sale or
availability of "non - personalized" or "aggregated data" which is not
personalized data as defined herein.
Sec. 9.80.025 Tenant Rights
Grantee shall be required to provide service to tenants in individual
units of a multiple housing facility with all services offered to other
dwelling units within the Town, so long as the owner of the facility consents
in writing, if requested by Grantee, to the following:
a. To Grantee's providing of the service to units of the facility;
b. To reasonable conditions and times for installation, maintenance,
and inspection of the system on the facility premises;
C. To reasonable conditions promulgated by Grantee to protect Grantee's
equipment and to encourage widespread use of the system; and
d. To not discriminate in rental charges, or otherwise, between tenants
who receive cable service and those who do not.
Sec. 9.80.030 Grantee Rules and Regulations
The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as
shall be reasonably necessary to enable the Grantee to exercise its rights and
perform its obligations under this franchise, and to assure an uninterrupted
service to each and all of its customers; provided, however, that such rules,
regulations, terms and conditions shall not be in conflict with the provisions
hereof or applicable State and Federal laws, rules and regulations.
Article IX Design and Construction Provisions
Sec. 9.90.010 System Design
The Cable Communications System shall be constructed in accordance with
the design requirements contained in the Franchise Agreement.
Sec. 9.90.015 Geographical Coverage
Where Grantee is required to extend services as provided in the line
extension provisions of Section 9.90.065 hereof, the Grantee shall design and
construct the system in such a manner as to have the capability to pass every
single - family dwelling unit, multiple - family dwelling unit, agency, business,
industrial or other form of non - residential establishment within the area of
the franchise. Service shall be provided to subscribers in accordance with the
schedule and line extension policy specified herein. Cable system construction
and provision of service shall be non - discriminatory, and shall not delay or
defer service to any section of the franchise area on the grounds of economic
preference.
Sec. 9.90.020
Cablecasting Facilities
The Grantee shall provide cablecasting facilities in accordance with - the
requirements of the Franchise Agreement.
Sec. 9.90.025 Provision of Service
After service has been established by activating trunk cables for any
area, the Grantee shall provide service to any requesting subscriber within
that area within thirty (30) days from the date of request.
Sec. 9.90.030
Undergrounding of Cable
a. The undergrounding of cables is encouraged. In any event, cables
shall be installed underground at Grantee's cost where existing utilities are
already underground. Previously installed aerial cable shall be undergrounded
in concert, and on a cost- sharing basis, with other utilities, when such other
utilities may convert from aerial to underground construction. All under -
grounding plans shall be subject to prior Grantor approval, and the issuance of
permits, at designated permit fees.
b. In undergrounded areas, all cables and other equipment shall be
installed underground and in flush- mounted vaults. No pedestals shall be
FEE
permitted for passive subscriber taps. Waivers of these requirements may be
permitted for amplifiers, power supplies, and other active equipment where it
can be demonstrated that an above- ground mounting is necessary for technical
reasons or to avoid underground water, and where photographs or drawings are
submitted showing an acceptable intended mounting location.
Sec. 9.90.035
New Development Undergrounding
a. In cases of new construction or property development where utilities
are to be placed underground, the developer or property owner shall give
Grantee reasonable notice of such construction or development, and of the
particular date on which open trenching will be available for Grantee's
installation of conduit, pedestals and /or vaults, and laterals. Grantee shall
also provide specifications as needed for trenching.
b. The property owner or developer, as the case may be, of such new
construction or development shall be required by Town to provide cable services
to any such new development or construction. Where Grantee is required to
extend service consistent with the density standard set forth in Section
90.90.065 hereof, all the provisions of Section 9.90.065(c) shall apply.
Sec. 9.90.040 Undergrounding at Multiple - Dwelling Units
In of multiple- dwelling units serviced by aerial utilities, Grantee
shall make every effort to minimize the number of individual aerial drop
cables, giving preference to undergrounding of multiple drop cables between the
pole and the dwelling unit. The burden of proof shall be upon the Grantee to
demonstrate why undergrounding of drop cables is technically or economically
unfeasible.
Sec. 9.90.045 Street Occupancy
a. Grantee shall utilize existing poles, conduits and other facilities
whenever possible, and shall not construct or install any new, different, or
additional poles, conduits, or other facilities whether on public property or
on privately -owned property until the written approval of - the Grantor is
obtained. However, no location of any pole or wire holding structure of the
Grantee shall be a vested interest and such poles or structures shall be
removed or modified by the Grantee at its own expense whenever the Grantor
determines that the public convenience would be enhanced thereby.
b. Grantee shall notify the Grantor at least ten (10) days prior to the
intention of the Grantee to commence any construction in any streets. The
Grantor shall cooperate with the Grantee in granting any permits required,
providing such grant and subsequent construction by the Grantee shall not
unduly interfere with the use of such streets and that proposed construction
shall be done in accordance with the pertinent provisions of the ordinances of
the Town.
c. All transmission lines, equipment and structures shall be so
installed and located as to cause minimum interference with the rights and
reasonable convenience of property owners, and at all times shall be kept and
maintained in a safe, adequate and substantial condition, and in good order and
repair.' The Grantee shall, at all times, employ ordinary care and shall
install and maintain in use commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage, injuries,
or nuisances to the public. Suitable barricades, flags, lights, flares or
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other devices shall be used at such times and places as are reasonably required
for the safety of all members of the public. Any poles or other fixtures
placed in any public way by the Grantee shall be placed in such a manner as not
to interfere with the usual travel on such public way.
d. Grantee shall, at its own expense, and in a manner approved by the
Grantor, restore to Grantor standards and specifications any damage or
disturbance caused to the public way as a result of its operations or
construction on its behalf.
e. Whenever, in case of fire or other disaster, it becomes necessary in
the judgment of the Grantor to remove any of the Grantee's facilities, no
charge shall be made by the Grantee against the Grantor for restoration and
repair, unless such acts amount to gross negligence by the Grantor.
f. Grantee shall have the authority to trim trees on public property at
its own expense as may be necessary to protect its wires and facilities,
subject to the supervision and direction of the Grantor. Trimming of trees on
private property shall require written consent of the property owner.
g. The Grantee at his expense shall protect, support, temporarily
disconnect, relocate, or remove any property of Grantee when, in the opinion of
the Grantor, the same is required by reason of traffic conditions, public
safety, street vacation, freeway or street construction, change or establish-
ment of street grade, installation of sewers, drains, waterpipes, power line,
signal line, transportation facilities, tracks, or any other types of structure
or improvements by governmental agencies whether acting in a governmental or a
proprietary capacity, or any other structure or public improvement, including
but not limited to movement of buildings, urban renewal and redevelopment, and
any general program under which the Grantor shall undertake to cause all such
properties to be located beneath the surface of the ground. The Grantee shall
in all cases have the privilege, subject to the corresponding obligations, to
abandon any property of Grantee in place. Nothing hereunder shall be deemed a
taking of the property of Grantee and Grantee shall be entitled to no surcharge
by reason of anything hereunder. In the case of disagreement between utilities
over apportionment of costs, - the disagreement shall be resolved in accordance
with public Utilities Code Section 767.5.
h. Upon failure of Grantee to commence, pursue or complete any work
required by law or by the provisions of this ordinance to be done in any
street, within the time prescribed and - to the satisfaction of the Grantor, the
Grantor may, at its option, cause such work to be done and the Grantee shall
pay to the Grantor the cost thereof in the itemized amounts reported by the
Grantor to Grantee within thirty (30) days after receipt of such itemized
report.
i. The Grantee shall make no paving cuts or curb cuts unless absolutely
necessary, but only after written permission has been given by the Grantor.
j. The Grantee shall install in conduit all cable passing under any
major roadway.
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Sec. 9.90.050 Construction and Technical Standards
a. Construction Standard
(1) Compliance with Safety Codes
All construction practices shall be in accordance with all
applicable sections of the Occupational Safety and Health Act
of 1970 and any amendments thereto as well as all State and
local codes where applicable.
(2) Compliance with Electrical Codes
All installation of electronic equipment shall be of a
permanent nature, durable and installed in accordance with
the provisions of the Basic BOCA Electrical Code as amended.
(3) Antennas and Towers
Antenna supporting structures (towers) shall be designed for
the proper loading as specified in Electronics Industry
Association Standard RS -222c.
(4) Compliance with Aviation Requirements
Antenna supporting structures (tower) shall be painted,
lighted, erected and maintained in accordance with all
applicable rules and regulations of the Federal Aviation
Administration and all other applicable State or local codes
and regulations.
(5) Construction Standards and Requirements
All of the Grantee's plant and equipment, including but not
limited to the antenna sitse, head -end and distribution
system, towers, house connections, structures, poles, wire,
cable, coaxial cable, fixtures and appurtenances shall be
installed, located, erected, constructed, reconstructed,
replaced, removed, repaired, maintained and operated in
accordance with good engineering practices, performed by
experienced maintenance and construction personnel so as Not
to endanger or interfere with improvements the municipality
may deem proper to make, or to interfere in any manner with
the rights of any property owner, or to unnecessarily hinder
or obstruct pedestrian or vehicular traffic on municipal
properties.
(6) Safety, Nuisance Requirements
The Grantee shall at all times employ ordinary care and shall
install and maintain in use commonly accepted methods and
devices preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public.
b. Technical Standards
The Cable Communications System shall meet all technical and
performance standards contained in the Franchise Agreement.
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Sec. 9.90.055 System Testing
The Grantee shall perform periodic tests on the system, to demonstrate
compliance with the provisions of the technical standards, in accordance with
the following provisions:
a. Permanent Test Points
The Grantee shall establish a minimum of four (4) permanent test
points located at the end of the longest trunk and feeder amplifier cascades of
all major trunk runs.
b. Random Test Points
Random test points shall be at locations chosen by the Grantee
throughout the system and shall differ for each testing period.
C. Weekly Testing
Weekly testing shall be performed at each permanent test point.
Tests shall include measurement and logging of visual and aural carrier levels
on each cable channel, and shall also include observations of each channel on a
color picture monitor and notation of any picture impairements. A permanent
log shall be kept of all measurements and observations made. Immediate steps
shall be taken to correct any conditions not meeting the technical standards.
d. Monthly Tests
Monthly tests shall consist of the same tests described under Weekly
Testing, performed at each of the permanent test points and at an additional
four (4) random test points.
e. Exceptions from Testing
Grantee shall not be required to perform weekly tests at any
permanent test point which meets the technical specifications for a period of
four (4) weeks in succession. If any permanent test point then fails to meet
all specifications during any monthly test, the weekly testing shall resume
until that point again meets all specifications for a four -week period.
f. Logging and Retention of Data
All data collected during weekly and monthly testing shall be
provided to the Town on a quarterly basis prior to the end of the first month
following the close of each quarter.
g. Observation of Tests by Grantor
The Grantor may, at its option, witness any of the tests specified
herein.
h. Compliance and Retestin
If one or more of all points tested during monthly testing fail to
meet all technical specifications, the Grantee will correct all conditions
until satisfactory testing results at the affected points. The monthly test
shall then be repeated using a new set of random test points.
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i. Annual Testing
Regardless of the requirements of the FCC for such testing, a full
FCC proof -of- performance test in accordance with the latest FCC Rules
specifying such a test shall be performed on an annual basis,'and a report of
the testing shall be submitted to the Grantor.
j. Test Equipment Accuracy
All measurements taken to verify
specifications shall utilize equipment whose
National Bureau of Standards. To this end a
shall be established. A description of the
submitted to the Grantor.
Sec. 9.90.060. Areawide Interconnection.
compliance with the technical
calibration is traceable to the
system of calibration controls
calibration process shall "be
Grantee shall use its best efforts to reach agreement with other cable
system operators to interconnection access and such other channels of the cable
system with adjacent areas upon direction to do so by Town. In the event
Grantee, after exercising said best efforts, determines same is infeasible,
Grantee shall provide Town with a written report setting forth the basis for
such determination.
Sec. 9.90.065. Line Extensions.
The Grantee shall be required to extend its system pursuant to the
following requirements:
a. As used in this Section, "residential dwelling unit" shall mean a
single - family dwelling unit which is or could be billed directly by the Grantee
on an individual basis. A "multiple dwelling unit facility" shall mean a
residential housing facility which is part of a complex or building containing
more than one (1) unit which is billed either on an individual or a bulk rate
single -bill basis to the owner of the facility. As used herein, "average
density of fifty (50) dwelling units" shall mean fifty (50) residential
dwelling units or multiple dwelling units with a total revenue potential equal
to fifty (50) residential dwelling units.
b. Grantee must extend and make cable television service available to
every occupied residential dwelling unit in any unserved area reaching the
average density of fifty (50) occupied units per mile of the portion of the
CATV system to be constructed.
C. At such times as utility lines are installed, Grantee must extend
and make cable television service available to residential dwelling unit areas
being subdivided and platted which, if completed and occupied, would reach an
average density of fifty (50) dwelling units.per mile of the portion of the
CATV system to be constructed; provided, however, that any such subdivision
developer shall have first paid to Grantee all costs of any such extension and
connection. As and upon subscription to the television and radio service of
Grantee by occupants of residential dwelling units constructed in said
subdivision, Grantee shall rebate to such developer a pro -rata portion of the
sums so paid by such developer, pursuant to such formula as may be agreed to by
Grantee and such developer and subject to subsection g. of this section.
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d. Grantee must extend and make cable television service available to
any isolated potential residential subscriber inside the current service area
requesting connection at the standard connection charge if the connection to
the isolated resident would require no more than a standard one hundred fifty
(150) foot above - ground residential service line.
e. With respect to requests for connection requiring an aerial dropline
in excess of one hundred fifty (150) feet, the Grantee must extend and make
available cable television service to such residents at a connection charge not
to exceed the actual installation costs incurred by the Grantee for the
distance exceeding one hundred fifty (150) feet.
f. In areas not meeting the requirements for mandatory extension of
service, Grantee shall provide, upon the request of a potential subscriber
desiring service, an estimate of all costs required to extend service to said
subscriber. Upon such potential subscriber's written agreement to pay the
actual costs thereof, Grantee shall then extend service upon request of said
potential subscriber. Grantee may require advance payment or assurance of
payment satisfactory to Grantee. In the event that subsequent subscribers
shall be connected utilizing the system so extended under this subsection e., a
pro -rata portion of the costs incurred by the initial subscriber requesting and
paying for such extension shall be refunded to said subscriber until such time
as the density in said area reaches - the level otherwise required under this
section.
g. Any rebate required or permitted under this section shall be limited
to the amount which would otherwise have been expended by Grantee had such
extension been provided as aboveground construction.
h. The Grantee shall not install or maintain, or cause, allow or permit
- to be installed or maintained, within any public street, way or other public
property of the Town, any equipment or facilities in connection with its
business unless and until the Grantee shall have filed with the Town Engineer a
map showing the area or portion of the Town within which cable services shall
be made available to subscribers by the Grantee, together with plans and
specifications for the installation of such equipment or facilities.
Article X Service Provisions
Sec. 9.100.010. Services to be Provided.
The Grantee shall provide the services listed in the Franchise
Agreement. Services shall not be reduced or changed without prior approval of
Grantor, which shall not be unreasonably withheld.
Article XI Rights Reserved to the Grantor
Sec. 9.110.010 Right to Purchase the System
The Grantor may in any lawful manner and upon the payment of a fair
valuation lawfully ascertained, purchase, condemn, acquire, take over and hold
the property and plant of Grantee (but only all of same and not a part or parts
of same). If such purchase or taking be upon the revocation of the franchise,
or at the expiration of the term of the franchise without renewal, or upon
transfer of the franchise in violation of Section 9.30.030 hereof, such
valuation shall be limited to the fair market value of the system but shall not
include any sum for the value of the franchise or grant thereof.
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Sec. 9.110.015
Right of Intervention
The Grantor shall have the right of intervention in any suit or
proceeding to which the Grantee is party, and the Grantee shall not oppose such
intervention by the Grantor.
Sec. 9.110.020 Right of First Refusal
Grantor shall be granted a right of first refusal, whereby it may elect
to purchase the cable communications system, upon the same terms and conditions
as contained in any bona fide purchase offer by a third party to Grantee which
Grantee intends to accept. Grantor must purchase all portions of the System so
offered to be purchased. Grantee shall notify Grantor, within ten (10) days,
in writing, of any such bona fide offer made by any third party. Thereupon
Grantor shall have forty -five (45) days in which to notify Grantee of its
intention to exercise said right of first refusal. The right of first refusal
so exercised by Grantor shall be upon the same terms and conditions as the
third party offer. Upon failure of Grantor to notify Grantee of the exercise
of the right herein provided, Grantee shall be free to consummate a sale to
said third party. Notwithstanding anything contained in this Section
9.110.020, should Grantor exercise the right herein provided, Grantor shall not
be permitted, either prior or subsequent thereto, to impose any conditions upon
the transfer of the franchise as might otherwise be permitted by Section
9.30.030. In the event of a transfer within the scope of Section 9.30.030(c),
Grantor shall have no right of first refusal.
Article XII Miscellaneous Provisions
Sec. 9.120.010
Compliance with State and Federal Laws
Notwithstanding any other provisions of this franchise to the contrary,
the Grantee shall at all - times comply with all laws and regulations of the
state and federal government or any administrative agencies thereof.
Sec. 9.120.015
Separability - Material Provisions
Should the State of California, the FCC, or any other agency of the state
or federal government or a court of competent jurisdiction require or allow
Grantee to perform or cease to perform any act which is inconsistent with any
provisions of this franchise, Grantee shall so notify Grantor. Upon receipt of
such notification, Grantor shall determine if a material provision of the
franchise is affected. Upon such determination, Grantor shall have the right
to modify any of the provisions of this franchise to such reasonable extent as
may be necessary to carry out the full intent and purpose of the franchise.
Grantee agrees to fully cooperate in pursuing any modifications or amendments
of the franchise as may be necessary to carry out the intent of the parties
hereto. Grantor may terminate the franchise in the event Grantor reasonably
determines a substantial material compliance with the original proposed terms
of the franchise has been frustrated by such state or federal requirements.
For the purposes of this Section, and not by way of limitation, any provision
of this ordinance, or any franchise granted pursuant to it, which relataes to
the prepayment of franchise fees, rate regulation, public access or local fees,
or any other financial inducement to the Grantor or its agents under the terms
of this franchise, shall be deemed to be material and any preemption or
nullification of any of these provisions shall be deemed to be grounds for
amendment and /or termination pursuant to this section.
-36-
Any determination by the Grantor under this paragraph shall be based upon
written findings, and such findings shall be based on substantial evidence.
Sec. 9.120.020 Notices
All notices from Grantee to the Grantor pursuant to this franchise shall
be to the Town Clerk. Grantee shall maintain with the Grantor, throughout the
term of the franchise, an address for service of notices by mail. Grantee
shall also maintain within the franchise territory, a local office and
telephone numbver for the conduct of matters related to this franchise during
normal business hours.
Sec. 9.120.025 Public Notice
Minimum public notice of any public meeting relating to the franchise
shall be by publication at least once in a newspaper of general circulation in
the area at least ten (10) days prior to the meeting, posting at Town tall, and
by announcement on at least two (2) channels of the Grantee's Cable
Communications System between the hours of 7:00 p.m. and 9:00 p.m., for five
(5) consecutive days prior to the meeting.
Sec. 9.120.030
No Recourse Against the Grantor
The Grantee shall have no recourse whatsoever against the Grantor or its
officials, boarads, commissions, agents, or employees for any loss, costs,
expense, or damage arising out of any provision or requirement of the franchise
or because of the enforcement of the franchise.
Sec. 9.120.035 Nonenforcement by the Grantor
The Grantee shall not be relieved of its obligation to comply with any of
the provisions of this permit by reason of any failure of the Grantor to
enforce prompt compliance.
Sec. 9.120.040 Theft of Services and Tampering
a. No person, whether or not a subscriber to the cable system, may
intentionally or knowingly damage or cause to be damaged any wire, cable,
conduit, equipment or apparatus of Grantee, or commit any act with intent to
cause such damage, or to tap, tamper with or otherwise connect any wire or
device to a wire, cable, conduit, equipment and apparatus, or appurtenances of
Grantee with the intent to obtain a signal or impulse from the cable system
without authorization from or compensationto the Grantee, or to obtain cable
television or other communications service with intent to cheat or defraud
Grantee of any lawful charge to which it is entitled.
b. Any person convicted of violating any provision of this section is
subject to a fine of not more than Five Hundred Dollars ($500.00) for each
offense. Each day's violation of this section shall be considered a separate
offense.
IXYC
SECTION ' 3 .
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.
The foregoing ordinance was duly and regularly introduced at a regular meeting
of the Town Council of the Town of Los Gatos held on the 7th day of February, 1983,
and adopted by the following vote as an ordinance of the Town of Los Gatos at a
regular meeting of the Town Council on February 2.Z, 1983
AYES: COUNCILMEMBERS Joann Benjamin, T J. D a i ly, Thomas J.
Ferrito, MarLyn J. Rasmussen and Mayor Brent N. Ventura
NOES: COUNCILMU,4BERS None
ABSTAIN: COUNCILMENBERS None
ABSENT: COUNCILMQKBERS None
SIGNED:
RU-NOM
Deputy Clerk of the TQvft of Los Gatos
WE