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