HomeMy WebLinkAbout38.12.3 ORDINANCE NO. 38.12.3
AN ORDINANCE OF THE CITY OF SARATOGA AMENDING~
ARTICLE VI OF CHAPTER 4 OF THE SARATOGA CITY~
CODE, PROVIDING FOR THE GRANTING OF FRANCHISES
FOR CABLE TELEVISION SYSTEMS IN SAID CITY.
The City Council of the City of Saratoga does hereby
ordain as follows:
Section 1: Chapter 4, Article VI of the Saratoga City
Code, together with all of the sections and subsections thereof,
is amended to read as follows:
ARTICLE VI - CABLE'TELEVISION FRANCHISES
Sec. 4-200. DEFINITIONS. For the purpose of this article,
the following terms, phrases, words, abbreviations, and their
derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense
include the future tense, words in the plural number include
the singular number, and words in the singular number include
the plural number.
(a) "City" shall mean~ the City of Saratoga, a municipal
corporation, and '?Council" shall mean the City Council of said City.
(b) "Franchise"Shall mean and include any authoriza-
tion granted hereunder in terms of a franchise, privilege, permit,
license or otherwise to construct, operate and maintain a CATV
system in the City. Any such authorization, in whatever term
granted, shall not mean and include any license or permit required
for the privilege of transacting and carrying on a business within
the City in accordance with Article V of this Chapter.
(c) "Grantee" shall mean the person, firm or corpora-
tion to whom or to which a franchise, as hereinabove defined is
granted by the Council to construct, operate or maintain a CATV
system as hereafter defined,-Tunder this ordinance, and the lawful
successor, transferee or assignee of said person, firm or corpora-
tion.
(d) "Street" shall meansthe surface'of and the space
above and below any part-of the entire width of right of way of
a public street, road, highway, freeway, lane, path, alley, court,
sidewalk, parkway, or drive, or of any unaccepted street offered
for dedication to City whether or not such'entire area is actually
used or improved for street purposes, now or hereafter existing
as such within the City, or any public utility easement.
(e) "Property of grantee" shall mean all property
owned, installed or used by a grantee~in the conduct of a CATV
business in the City under the authority of a franchise granted
pursuant to this Ordinance.
(f) "Subscriber" or "User" shall mean an~persSn or
entity receiving for any purpose any service of the Grantee s
cable television system including, but not limited to, the con-
ventional cable television system service of retransmission of
television broadcast, radio signals, grantee's original cable-
casting, and the local government, education and public access
channels; and other services, such as leasing of channels, data
and facsimile transmission, pay television, and police, fire
and similar public service communication.
(g) "Cable TeleVision System" (CATV) shall mean
any facility including any system of antennae, micro-wave,
wires, wave-guides, coaxlal cables or other conductors and
equipment designed, constructed or used for the purpose of
collecting and amplifying local and distant broadcast television
or radio signals and distributing and transmitting them to
subscribing members of the public who pay for such service,
and shall also include the transmitting of original cable
programming not received through television or radio broadcast
signals, and transmitting and receiving all other digital, voice
and audio-visual signals. CATV, for the purpose of this fran-
chise Ordinance or any ordinance granting a franchise pursuant
thereto, shall not include the delivery or transmission of any
copyrighted program or event withoutI~he owner of the facility
first complying with all laws applicable thereto.
(h) "Subscriber" Shall mean any person or entity
receiving for any purpose the.CATVservice of a grantee.
(i) "Gross Annual. Basic Subscriber Receipts" shall
mean any and all compensation and other consideration received
directly or indirectly by the grantee from subscribers in payment
of the regularly furnished service of the cable television system
in the transmission of broadcast television, radio signals and
original cablecast programming of the grantee.
(j) "Gross Annual Non-Basic Service Receipts"
shall mean any and-all compensation and other consideration
received directly or indirectly by the grantee from subscribers
or users in payment for the receipt of signals other than
broadcast television, radio,~ or original cablecast programming
of the grantee whether for 'pay television","facsimile"
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transmission, return", or "response" communication, and whether
or not transmitted encoded or processed to permit reception by
only selected subscribers.
(k) "Gross Annual Advertising Receipts" shall
mean any income, compensation and other consideration received
by grantee derived from any form of advertising.
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C~~) "Gross Annual Lease Receipts" shall mean any
fees or income received by grantee for the lease or rental,
and compensation for any service in connection therewith, such
as studio and equipment rental and production costs, of any
channel permitted or designated by the Federal Communications
Commission to be so leased or rented.
Sec. 4-201. FRANCHISE TO INBTALL AND OPERATE.
(a)~= A non-exclusive franchise to install, construct,
operate, and maintain a cable television system on streets within
all or a specific portion of the City may be granted by the
Council to any person, whether operating under an existing fran-
chise, who Or which offers to furnish and provide such system
under and pursuant to the terms and provisions of this ordinance.
Each franchise for a CATV system as herein defined shall be
subject to the provisions of this ~r~icle VI exclusively, rather
than to the general franchise regulations of Article IV of this
Chapter.
?~ No provision of this ordinance may be deemed
or construed'a~ to require the granting of a franchise when in
the opinion of the Council it is in the public interest to
restrict the number of grantees to o~ or more.
(b) When and in the event that the grantee of any
franchise granted hereunder uses in his cable televisionsystem
distribution channels furnished to the grantee by a telephone
company pursuant to tariff or contract on file with a regulatory
body having jurisdiction and said grantee makes ao use of the
streets independent of such telephone company-furnished facili-
, be to
ties said grantee shal~ required comply with all of the
provisions hereof as a Licensee" and in such event whenever the
term "Gz~ntee" is used herein it.shall be deemed to mean and
include "Licensee."
Sec. 4-202. USES PERMITTED BY GRANTEE. A franchise
granted pursuant to the provisions of this. Ordinance shall author-
ize and permit the grantee to engage in the business of operating
and providing a CATV system in the City, and for that purpose to
erect, install, construct, repair, replace, reconstruct, maintain
and retain in, on, over, under, upon, across and along any public
street such poles, wires, cable, conductors, ducts, conduit,
v~ts, manholes, amplifiers, appliances, attachments, and other
property as may be necessary and appurtenant to the CATV system;
and in addition, go to use, operate, and provide'similar facili-
ties or propertie~~ rented or leased from other persons, firms or
corporations, including but not limited to any public utility or
other grantee franchised or permitted to do business in the
subject', however, to all of the other terms, conditions, and
provisions of this OrdinanCe and any additional conditions or
provisions of any Ordiance which grants a franchise in accord
herewith.
No franchise granted hereunder shall be construed as either
(a) a franchise, permit or license to transmit any special program
or event for which a separate and distinct charge is made to the
subscriber prog,r, am-by-~rogram ~n the manner commonly known and
referred to as 'pay television , and no grantee shall directly or
indirectly install, maintain or operate on any television set any
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coin box or other device or means for collecting of money for
individual programs, nor (b) as any franchise, permit or
license to transmit any copyrighted program or event without
complying with all laws relating thereto.
The grantee may make a charge to subscribers for installa-
tion or connection to its CATV system and a fixed monthly charge
d No increase in the
as filed and approved as herein provi ed.
rates and charges to subscribers, as set forth in the schedule
filed and approved with grantee's application, may be made
without the prior approval of the Council expressed by resolu-
tion. Rates may not be discriminatory.
Seco 4-203. GENERAL FRANCHISE PROVISIONS. Any franchise
granted hereunder shall be subject to such reasonable conditions
as may be imposed in the granting of the same, and in addition
shall be automatically subject to the following conditions which
shall also be obligations of the grantee:
(a) The grantee shall compl~ with all encroachment
permit, zoning, building, and other laws and ordinances of the
City, and the City Code, as presently existing or hereafter
enacted or adopted, in the location, construction, operation,
maintenance and use of the CATV system or any part thereof.
(b) The grantee Shall obtain such licenses and
certificates as required, and at all times during the term of
any franchise keep such licenses in full force and effeet,
from the Federal' Communications.%Commission, and shall comply
with all present and future laws, regulations, rules and orders
of the Federal Communications Commission, as presently existing
or hereafter enacted,..promulgated or adopted, and shall also
comply with any and all other laws, whether local, state or
national, as presently existing or as hereafter enacted, regulat-
ing or governing any of the activities of the grantee.
(c) The grantee shall at all times during the term
of any franchise,at its own cost and expense, properly and in
good, workmanlike manner, install and maintain adequate shield-
ing, filtering and grounding at affected installations within
the CATV system to eliminate television interference encountered
from fundamental frequency overload by radio amateur transmissions
which are in compliance with Federal Con~Lunications Commission
regulations.
(d) No grantee shall engage in the business of leasing
or selling television or other receivers which make useI~of signals
transmittedby the CATV system, nor shall any grantee offer of
provide any service of television or radio maintenance, sale of
parts, or repair, to subscribers, other than initial or subsequent
adjustment of equipment as may be necessary by virtue of the CATV
installation, and which adjustment service shall be included in
and not be in addition to the installation charge to the sub-
scriber. This shall not preclude the grantee from furnishing
converters that are not part of the basic CATV system as designed
and engineered.
(e) No g~antee shall add 'to, alter, change, or delete
any non-original cablecast programming other than deletion of
advertising commercials, if such deletion is otherwise permitted
by law.
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Sec. 4-204. CABLE TELEVISION SERVICE.
(a) Bas,~ Service. The cable television system
permitted to be installed and operated hereunder shall:
(1) be operatlonally capable of relaying to
b
su scriber terminals those television and
radio broadcast signals for the carriage
of which the-grantee is now or hereafter
authorized by the Federal Communications
Commission;
(2) be constructed with the potential of
two-way digital signal transmission;
(3) distribute color television signals which
it receives in color;
(4) provide at least one (1) channel, without
charge, for exclusive use of the City;
(5) provide at least one (1) channel each for
those educational and publi~ access uses
as now or hereafter required~by the
Federal Communications Commission for
systems operating in the top 100 markets;
(6) have a minimum capacity of 27 channels,
with ultimate 54 channel capacity.
(b) Non-Basic Services. The cable television
system permitted to be installed and operated hereunder, may
also engage in the business of:
(1) transmitting original cablecast togramming
not received through television groadcast
signals;
(2) transmitting and receiving all other signals:
digital, voice and audio-visual.
(c) Subscriber Complaints. In addition to other
service regulations adopted by the Council, and excepting cir-
cumstances beyond grantee's control, such as Acts of God,
riots and civil disturbances, and in providing the foregoing
services, the grantee shall:
(1) limit System failures to minimum time
durati6nlby locating and correcting malfunc-
hours after occurrence, irrespective
of holidays or other non-business hours;
(2) upon complaint by a subscriber, make a
demonstration satisfactory to the chief
administrative officer that a signal is
being delivered which is of sufficient
strength and quality to meet the standards
set forth in the regulations of the Federal
Communications Commission, or in regulations
hereafter adopted by the Council;
(3) render effiCient service, making repairs
~romptly and interrupting~service only
or good cause and for the shortest time
possible. Planned interruptions, insofar
as possible, shall be preceded by notice
given to subscribers 24 hours in advance
and shall occur during periods of minimum
use of the system;
(4) maintain an office in the City, which office
shall be open during all the usual business
hours, with its telephone listed in direc-
tories of the telephone company serving the
City, and be so operated that complaints
and requests for repairs or adjustment may
be received at any time, day or night,
seven days a week.
(d) Municipal Service.
(1) With respect to the local government channel,
the grantee shall provide, at the request of
the chief administrative officer, and upon
City reimbursement of grantee's actual cost,
use of grantee's studio, equipment and
technical services for production of live
and video-tape municipal programs, subject
to scheduling requirements of the grantee;
(2) With respect to the basic television services,
the grantee shall provide all subscriber
services, and a tie-in connection, without
cost, when the system passes such facilities
and as designated by the Council, to
(i) public' schools and community colleges
within the City, and
(ii) buildings owned and controlled by the
'City used for public purposes and not
for ~esidential use (fire and police
stations excepted).
(e) Compatibility and Connectibility.
(1) It is the desire of the City that all cable
television systems franchised hereunder shall,
insofar as financially and technically possible,
be compatible one with another and with systems
adjacent to the City;
(2) Wherever it is financially and technically
feasible, the grantee shall so construct,
operate and modify the system so as to tie
the same into all other systems within and
adjacent to the City.
Sec. 4-205. DURATION OF LICENSE. No franchise granted
under this ordinance shall be for a term of. longer than 15 years
from the date of acceptance of such franchise by the grantee or
the renewal thereof. Any such franchise granted hereunder shall
automatically terminate without notice Or hearing in the event
that the grantee directly or indiredtly transmits or delivers
any copyrighted program or event without complying with all
laws relating thereto.
Any such franchise granted hereunder may be terminated
by the Council prior to its date of expiration after a public
hearing, in the'event that said Council shall have found after
thirty (30) days notice of any such proposed termination and
hearing, that: (a) the grantee has failed to comply with any
condition, limitation, obligation, or provision of this Ordinance,
or has, by act or omission, violated any term, condition or pro-
vision of any franchise, permit, or license issued here~nder and
has failed after thirty (30) days written notice to completely
obviate such default, or (b) any provision of this ordinance
has become invalid or unenforceable and the Council further finds
that such provision constitutes a consideration material to the
grant of said franchise.
Sec. 4-206. FRANCHISE pAYMENTS. Any grantee granted a
franchise under this ordinance shall pay to the City, during the life
of such franchise, a sum equal to three percent (3%) of the Gross
Annual Basic Subscriber Receipts of the grantee, or such greater
percentage as may at any time be permitted or allowed as a maximum
percentage rate by the rules and regulations of the Federal
Communications Commission and.~s set forth in the ordinance
grating the franchise or any a~endments thereto. Such payment
shall be made by the grantee monthly, Or as may otherwise be
provided in the '
grantee s franchise, and such payment by the
grantee to the City shall be in lieu of any occupation tax,
license tax, or similar levy~ :
The Grantee shall file with the City, within thirty (30)
days after the expiration of any calendar year during which such
franchise is in force, a financial statement prepared by a
certified public accountant showing in detail the total gross
receipts, as defined herein, of grantee, its successors or assigns,
during the preceding calendar year. It shall be the duty of
grantee to pay to the City, within fifteen (15) days after the
time for filing such statements, any unpaid balance for the
calendar year covered by such statements. In any year, or
portion thereof, following the first fullyear service has been
provided, and during which payments under this section amount
to less than $100 per month grantee shall pay the City as
a minimum, and amount equal to $100 per month.
The City shall have the.right to inspect the grantee's
records showing the gross receipts from which its franchise
payments are computed and the right of audit and recomputation
of any and all amounts paid under this Ordinance. No acceptance
of any payment shall be construed as a release or as an accord
and satisfaction of any claim the City may have for further or
additional sums payable under this Ordinance or for the performance
of any other obligation hereunder.
In the event of any holding over after expiration or
other termination of any franchise granted hereunder, without
the consent of the City, the grantee shall pay to the City
reasonable com ensation and damages, of not less than one hundred
per cent (100%3 of its total gross profits during said period.
Unless and until specifically permitted by the terms
of the Ordinance granting the franchise, or any amendments thereto,
the grantee shall not engage in, nor have commercial receipts
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from, non-basic services, advertising or channel leaselot rental.
At such time as grantee may be permitted to expand to include
such services and their receipts, then and at that time grantee
shall in addition pay to City a percentage of such annual non-
basic service receipts, gross annual advertising receipts and
gross annual lease receipts, such percentage to be determined
and approved by City.
Sec. 4-207. LIMITATIONS .OF FRANCHISE.
(a) Any franchise granted'~nder this Ordinance shall
be non-exclusive.
(b) No privilege or exemption shall be granted or
conferred by any franchise granted under this Ordinance except
those specifically prescribed'~erein.
.(c)~ Any p~ivilege ~Iaimed.under any franchise by
the grantee in any street or ~ther publi~ property shall be sub-
ordinate to any prior lawful occupancy of the streets or other
phblic property, and subject to removal and relocation as herein-
after set forth in this Article.
(d) Any such franchise shall be a privilege to be
held in personal trust by the original grantee. It cannot in
any event be sold, transferred, leased, assigned or disposed of,
in whole or in part, either by forced or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise,without prior
consent of the Council expressed by resolution, and then only
under such conditions as may therein be prescribed. Any such
transfer or assignment shall be made only by an instrument in
writing, such as a bill of sale, or similar document, a duly
executed copy of which shall be filed ~n the office of the City
Clerk within thirty (30) days after any such transfer or assignment.
The said consent of the Council may not be unreasonably refused;
provided, however, the proposed assignee must show financial
responsibility as determined by the Council and must agree to
comply with all provisions of this ordinance; and provided,
further, that no such consent shall be required for a transfer
in trust, mortgage, or other hypothecation, in whole or in part,
to secure an indebtedness, except that when such hypothecation
shall exceed 50% of the market value of the property used by the
franchise in the conduct of the cable television system, prior
consent of the Council shall be required for such a transfer.
Such consent shall not be withheld unreasonably.
In the event that Grantee is a corporation,
prior approval of the City Council, expressed by ordinance, shall
be required where there is an actual change in control or where
ownership of more than 50% of the voting stock of Grantee is
acquired by a person or group of persons acting in.concert, none
of whom already own 50% or more of the voting stock, singly or
collectively. Any such acquisition occurring without prior
approval of the City Council shall constitute a failure to comply
with a provision of this ordinance within the meaning of Section 5
of this ordinance.
(e) Time shall be of the essence of any such .franchise
granted hereunder. The grantee shall not be relieved of his obli-
gation to comply promptly with any of the provisions of this
Ordinance or by any failure of the City to enforce prompt compliance.
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(f) The grantee shall have no recourse whatsoever
against the City fo~ any loss, cost, expense, or damage arising
out of any provision or requirement of this Ordinance, or of any
franchise issued hereunder or-because of its enforcement.
(g) Any such franchise granted shall not relieve
the grantee of any obligations involved in obtaining pole or
conduit space from any~department of the City, utility company,
or from others maintaining utilities in streets.
(h) Any franchise granted hereunder shall be in
lieu of any and all other rights, privileges, powers, incaunities,
and authorities owned, possessed, controlled, or exercisable
by grantee, or any successor to any interest of grantee, of
or pertaining to the construction, operation, or maintenance
of any CATV system in the City; and the acceptance of any
franchise hereunder shall operate, as between grantee and the
City, as an abandonment of any and all of such rights, privileges,
powers, immunities, and authorities within the City, to the
effect that, as between grantee and the City, and all construc-
tion, operation and maintenance by any grantee of any CATV system
in the City shall be, and shall be deemed and construed in all
instances and respects to be, under and pursuant to said franchise,
and not under or pursuant to any other right, privilege, power,
immunity or authority whatsoever.
Sec. 4-208. RIGHTS RESERVED TO THE CITY.
(a) Nothing herein shall bedeemed or construed to
impair or affect, in any way, to any extent, the right of the
City to acquire the property of the grantee, either by purchase
or through the exercise of the right of the eminent domain,
at a fair and just value, which shall not include any amount
for the franchise itself or for any of the rights or privileges
granted, and nothing herein contained shall be construed to
contract away or to modify or~abridge, either for a term or
in perpetuity, the City's right of eminent domain.
(b) There is hereby reserved to the City every right
and power which is required to be herein reserved or provided
by any ordinance of the City, and the grantee, by its acceptance
of any franchise, agrees to be bound thereby and to complyd
with any action or requirements of the City in its exercise of
such rights or power, heretofore or hereafter enacted or established.
(c) Neither the granting of any franchise hereunder
nor any of the provisions contained herein shallbe construed to
prevent the City from granting any identical, or similar, fran-
chise, to any other person, firm or corporation, within all
or any portion of the City.
(d) There is hereby reserved to the. City the power
to amend any.section or part of this Ordinance so as to require
additional or greater standards of construction, operation,
maintenance or otherwise, on the part of the grantee.
(e) Neither the granting of any franchise nor any
provision hereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
(f) The Council may do all things which are necessary
and convenient in the exerciseof-'its jurisdiction under this
Ordinance and may determine any question of fact which may arise
during the existence of any franchise granted hereunder. The
City Manager is hereby authorized and empowered to adjust, settle,
or compromise any controversy or charge arising from the opera-
tions of any grantee under this Ordinance, either on behalf of
the City, the grantee, or any subscriber, in the best interest
of the public.
Sec. 4-209. PERMITS AND CONSTRUCTION.
(a) Within thirty (30) days after acceptance of any
franchise the grantee shall proceed with due diligence to obtain
all necessary permits and authorizations which are required in
the conduct of its business, including, but notlimited to any
utility joint use attachment agreements, microwave carrier licenses,
and any other permits, licenses and authorizations to be granted
by duly constituted regulatory agencies having jurisdiction over
the operation of CATV systems, or their associated microwave
transmission facilities.
In connection therewith, copies of all petitions,
applications and communications submitted by the grantee to the
Federal Communications Commission, Securities and Exchange
Commission, or any other Federal or State regulatory commission
or agency having jurisdiction in respect to any matters affect-
ing grantee's cable television operations, shall also be submitted
simultaneously to the Chief Administrative Officer.
(b) Within ninety (90) days after obtaining all
necessary permits, licenses and authorizations, grantee shall
commence system mapping, engineering and pole clearance and
thereafter within such time as set forth in the Ordinance granting
the franchise, commence physical installation of the system.
(c) Within such number of days as set forth in the
ordinance granting the franchise after the commencement of con-
struction and installation of the system, grantee shall proceed
to render service to subscribers, and the completion of the
construction and installation shall be pursued with reasonable
diligence thereafter. Such ordinance may specify particular
areas of the City to first be served, and may set up a schedule
of chonological steps or stages of facility installation and
service, both by area and by state of construction facilities,
and shall provide specific time limits on or before which each
area shall have full CATV service available so all persons in
each such area desirous of subscribing to such service.
(d) Failure on the part of the grantee to commence
and diligently pursue each of the foregoing requirements and
to complete each of the matters set forth herein, shall be
grounds for termination of such franchise, under and pursuant
to the terms of Section 4-205 hereof; provided, however, that
the Council in its discretion may extend the time for the
commencement and completion of construction and installation
for additional periods in the event the grantee, acting in good
faith, experiences delays by reason of circumstances beyond
control.
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(e) In the event that the grantee does not obtain
certification from the Federal Communications Commission within
120 days after applying for such certification, then City
s"'~have the right, at its option, to terminate the within
franchise.
(f) 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 unless and until first securing the written
approval of the Director of Public Works.
Whenever grantee shall not utilize existing
poles, conduits and other facilities, or whenvet existing
conduits and other facilities shall be located beneath the
surface of the streets, or whenever the City shall undertake
a program designed to cause all conduits and other facilities
to be located beneath the surface of the streets in any area
or throughout the City, in the exercise O~ its police power or
pursuant to the terms hereof, upon reasonable notice to grantee,
any such conduits or other facilities of grantee shall be con-
structed, installed, placed or replaced beneath the surface of
the streets. Any construction, installation, placement, replace-
ment or changes which may be so required shall be made at the
expense of grantee, whose costs shall be determined as in the case
of public utilities.
(g) The City shall have the right, free of charge,
to make additional use, for any public or municipal purpose,
whether governmental or proprietary, of any poles, conduits,
or other similar facilities erected, controlled or maintained
exclusively by or for grantee in any street, provided such use
by City does not interfere with the use by grantee.
(h) In those areas of the City where the transmission
or distribution facilities or service drops of the respective
public utilities providing telephone, communication or electric
services are underground, or hereafter are placed underground,
the grantee likewise shall construct, operate and maintain all
of his transmission, distribution and service drop facilities
undergound. The term "underground" shall include a partial
underground system; provided, that-upon obtaining the written
approval of the Director of Public Works, amplifiers in the
grantee's transmission and distribution lines may be placed in
appropriate housings upon the surface of the ground.
(i) The grantee at his expense shall protect, s~pport,
temporarily disconnect, relocate, or remove any property of
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grantee when, in the opinion of the irector of Public Works
the same is required by reason of traffic conditions, public
safety, street vacation, freeway or street construction, change
or establishment 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 improve-
ment, including but not limited to mo~ment of buildings, urban
renewal and redevelopment, and any general program under which
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the City shall undertake to cause all such properties to be
located beneath the surface of the ground. The grantee shall
in all cases have the privilge, subject to the corresponding
obligations, to abandon any property of grantee in place, as
herein provided. 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. If such removal
or reloeation relates to any underground conduit or other
facility, the same shall be subject to .the requirements of
Sections 13-16 through 13-19of this Code. All facilities of
grantee, whether abo~e ground or underground, shall be con-
sidered encroachments within the terms and meaning of, and
subject to the provisions of, Articles IV and V of Chapter 13
of this Code.
l(j) Upon the failure, refusal or neglect ofgrantee
to cause any work or other act required by law or hereunder
to be properly completed in, on, over, or under any street
within any time prescribed therefor, or upon notice given,
where no time is prescribed, the Director of Public Works
may cause such work or other act to be completed in whole or
in part, and upon so doing shall submit to grantee an itemized
statement of the costs thereof. The grantee shall, within
thirty (30) days after receipt of such statement, pay to the
City the entire amount thereof. The performance bond herein-
after set forth in Section 4-211 (a) is specifically made
applicable to these provisions.
Sec. 4-210. REMOVAL'AND ABANDONMENT OF PROPERTY
OF GRANTEE.
(a) In the event that the use Of any part of
the CATV system is discontinued for any reason for a continuous
period of thirty (30) days, or in the event such system or
property has been installed in any street or public place
without complying with the requirements of grantee's franchise
or this Ordinance, or the franchise has been terminated,
cancelled or has been terminated,. cancelled or has expired,
the grantee shall promptly, upon being give~ thirty (30) days'
notice, remove from the streets or publ-ic places all such
property and poles of such system other than any which the
Director of Public Works may permit to be abandoned in place.
In the event of such removal, the grantee shall promptly
restore the street or other area from which such property
has been removed to a condition satisfactory to the Director
of Public Works.
(b) Any property of the grantee remaining in place
sixty (60) days after the termination of expiration of the
franchise shall be considered permanently abandoned. The
Director of Public Works may extend such time not to exceed
an additional thirty (30) days. Upon any such abandonment of
the property of the grantee in place, such property shall be
and become the property of the City.
Seco 4.-211. BONDS~ INDEMNIFICATION AND LIABILITY INSURANCE.
(a) Performance Bond to City.
~he grantee shall, concur~ently with the filing
of an acceptance of award of any franchise granted under this
Ordinance, file with the City, and atoll times thereafter
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maintain in full force and effect for the term of such franchise
or any renewal thereof, at grantee's sole expense, C&i~_sH~glF~c~orate
surety bond in a company and in a form ap ~oved by the City
Attorney, in the amount of not less than F~50,000.00 to.guarantee
completion of construction of all facilities, faithful performance
by grantee under the franchise, and compliance by grantee with
all provisions of this Ordinance and the Ordinance granting such
franchise. Upon completion of construction of all facilities, and
when service to all areas as required by the franchise is avail-
able to the required standards, the amount of such bond may be
reduced to a sum of not less than $25,000.00. The exact amount
of such bond, both original and as to be reduced, shall be set
forth in the Ordinance granting the franchise. Said bond shall
provide, inter alia, not only for payment to City of any and all
damages or loss suffered or to be suffered by City in the event
of any breach or failure by grantee under such franchise, includ-
ing the full amount of any compensation, indemnification or cost
of renewal or abandonment of any property of the grantee, but
also that upon any failure of grantee to complete construction
and installation of such CATV system in accord with the applicable
time limits and scheduling or after completion, upon any failure
of grantee to continue to provide CATV service to the levels and
standards as required by such franchise and this Ordinance, the
proceeds of such bond, up to the whole thereof, shall be used
by such bonding company, on demand of City, to complete such
construction and installation and/or operate said system and so
provide said service together with any and allattorneys' fees
and costs incurred by City by reason of any such breach or
default or by reason of any action or proceeding taken or suffered
by City against either grantee or said bonding company up to
the full amount of said bond, such condition to be a continuing
obligation for the duration of such franchise and of any renewal
thereof and thereafter until the grantee has liquidated all of
its obligations With the City that may have arisen from the
acceptance of said franchise or renewal by the grantee or from
its exercise of any privilege,therein granted. The bond shall
provide that thirty (30) days prior written notice of intention
not to renew, cancellation, or material change, be given to the
City. Neither the provisions of this section, nor any bond
accepted by the City pursuant h~reto, nor any damages recovered
by the-City thereunder, shall be construed to excuse faithful
performance by the grantee, or limit 'the liability of the grantee,
under any franchis~ issued hereunder, or for damages, either to
the full amount of the bond orotherwise.
(b) Performance Bond for Subscribers.
Upon being granted a franchise, and upon filing
of the acceptance required under Sec~4~-~2~_~YDhereof, the grantee
shall file, annually, with the City Clerk and shall thereafter
during the entire term of such franchise maintain in full force
and effect a corporate surety bond, or other adequate surety
agreement,in the amount as shall have been approved by the
Council. The bond or agreement shall be so conditioned that
in the event such grantee shall fail to comply with any one or
more of the provisions of any agreement or undertaking made
between grantee and any subscriber, then there shall be recover-
able jointly and severally from the principal and surety any
damages or costs suffered or incurred by any subscriber as a
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result thereof, including reasonable attorneys' fees and
costs of any action or proceeding. Said condition shall be
a continuing obligation during the entire term of such franchise
and thereafter until grantee shall have satisfied in full any
and all obligations to any subscriber which arise out of or
pertain to any such agreement or undertaking.
(c) Indemnification.
The grantee shall indemnify and hold harmless
the City, its officers, boards, commissions, agents and employees,
from and against.any and all claims, actions, demands, causes
of actions, suits, proceedings, damages (including but not
limited to damages arising out of copyright infringements, and
damages arising out of any.failure by grantee to secure consents
from the owners, authorized distributors or licensees of programs
to be delivered by grantee's Cable Television System), costs or
liabilities (including costs o~ t~abilities of the City with
respect to its employees) of every kind and nature whatsoever,
including but not limited to damages for injury or death or
damage to person or property, and regardless of the merit of
any of the same, and against all liability to others, and against
any loss, cos,t and expense-arising or resulting from any of the
same, including any attorneys~ fees, accountants' fees, expert
witness or consultants' fees, court costs, per diem expenses,
traveling and transportation expense, and other costs or expenses
arising out of or p~rtainingto the exercise or the enjoinment
of any franchise hereunder by grantee, or the granting thereof
by the City.
(d) Defense of Litigation.
Grantee shall at the sole risk and expense of
grantee, upon demand of the City, made by and through the City
Attorney, appear in and defend any and all suits, actions or
other legal proceedings, whether judicial, quaSi-judicial,
administrative, legislative, Or otherwise, brought or instituted
or had by third persons or duly constituted authorities, against
or affecting the City, its officers, boards, commissions, agents,
or employees, and arising out of or pertaining to the exercise or
the enjoyment of such franchise, or the granting thereof by the
City.
Grantee shall pay and satisfy and shall cause
to be paid and satisfied any judgment, decree, order, directive,
or demand rendered, made or issued against grantee, the City,
its officers, boards, commissions, agents, or employees in any
of these premises; and such indemnity shall exist and continue
without reference to or limitation by the amount of any bond,
policy of insurance, deposit, undertaking or other assurance
required hereunder, ~r otherwise; provided, that neither grantee
nor City shall make or enter into any compromise or settlementt
of any claim, demand, cause of action, action, suit, or other
proceeding, withoutfirst obtaining the written consent of the other.
(e) Insurance Required.
Upon being granted a franchise and upon the
filing of the acceptance required under Sec~'~2~.l hereof, the
grantee shall file with the City Clerk and s~all'thereafter during
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the entire term of such franchise maintain in full force and
effect at its own cost and expense each of the following:
policies of insurance:
(1) General Comprehensive Liability Insurance
in the amount of $1,000,000.00, together
with Bodily injury Liability Insurance
in an amount of not less than $1,000,000.00
for injuries including accidental death,
to any one person~ and subject to the same
limit for each person in an amount of not
less than ~1,000,000.00 onaccount of any
one occurrence!, and Property Damage
Liability Insurance in an amount of not
less than $50,000.00 resulting from any
one occurrence;
(2) In addition to the foregoing, the liability
policy or Certificate of Insurance in an
amount of not less than $1,000,000.00,.
insuring against any and all claims, actions,
demands, suits, damages or liability by
reason of any copyright infringement or
arising out of any failure by grantee to
secure consents from the owners, authorized
distributors or licensees of programs to
be delivered by the grantee's CATV system
or arising out of the exercise of enjoy-
ment of its franchise.
Each of the foregoing policies and certificates shall name
the City, its officers, boards, commissions, agents and employees,
as additional named insureds, and shall contain a provision that
a written notice of cancellation or reduction in coverage of
each such policies shall be delivered to the City no less than
thirty (30) days in advance of the effective date thereof;
each such pbliCy shall include, in the losses, expenses and damages
insured against, reasonable attorneys' fees, and each of said
policies shall, in the event such insurance also covers grantee
or any other entity or person, contain the standard cross-
liability endorsement.
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Sec. 4-212. INSPECTION OF PROPERTY AND TEC.HNICAL RECORDS.
(a) At all reasonable times, the grantee shall
permit any duly ~uthorized representatives of the City to
examine all property of the grantee, together with any appur-
tenant property of the grantee situated within or without the
City, and to examine and transcribe any and all maps and other
technical records kept or maintained by the grantee or under
its control which deal with the operations, affairs, transactions
or property of the grantee with respect to its franchise. If
any maps or technical records are not kept in the City, or upon
reasonable request made available in the City, and if the
Council shall determine that an examination thereof is necessary
or appropriate, then all travel and maintenance expense necessarily
incurred in making such examination shall be paid by the grantee.
(b) The grantee shall prepare and furnish to the
City at the times, and in the form prescribed by the City Manager,
such reports with respect to its revenues, gross recei ts,
affairs, transactions, and property as may be reasonabYy
necessary or appropriate to the performance of any of the
rightS, functions 6r duties of the City or any of its officers
in connection with the franchise, and in this regard shall
submit to the City copies of all data and information furnished
to the Federal Communications Commission under Section 403 of
the Communications Act, and regulations and orders pursuant
thereto, at such times as such information' is submitted to the
Federal Communications Commission.
(c) The grantee shall at all times make and keep
in the City full and complete plans and records showing the
exact location of all CATV systems equipment installed or in
use in streets and other. public places in the City.
(d) The grantee shall file with the City, on or
before the last day of June of each year, a current map
or set of maps drawn to scale, showing all CATV system equipment
installed and in place in streets and other public places in
the City.
(e) When any portion of the CATV system is to be
installed on public utility poles or facilities, certified copies
of the agreement for such use of poles and facilities shall be
filed with the City Clerk.
Sec. 4-213. OPERATIONAL S%ANDARDS.
The grantee's CATV system shall be installed and
maintained in accord with the highest and best accepted standards
of the industry to the effect that subscribers shall receive the
highest possible service as the state of the art allows. In
determining the satisfactory extent of such standards the follow-
ing among ot~e~s ~halltbe considered minimums:
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(a) That the system be installed using all band
equipment capable of passing the entire VHF and FM spectrum,
and that it have the further capability of converting UHF for
distribution to Subscribers on the VHF bank.
(b) That the system, as installed and maintained,
be capable of passing standard color TV signals without the
introduction of material degradation of color fidelity and
intelligence.
.(c) That the system and all equipment be designed
and rated for 24-hour per day continuous operation.
(d) That the system provide a nominal signal level
of 2000 microvolts at the input te~Tninals of each TV receiver
of each subscriber, measured against 300 OHMs.
(e) That the system carrier-to-noise ratio be not
less than 40 decibels, as measured at the furthermost amplifier
from the head end.
(f) That the hum modulation of the picture signal
is less than two (2) per cent.
(g) That the system use components having a
VSWR of 1.4 or less.
(h) That the system, as to television, produce
a picture, whether in black and white or in color, which is
undistorted, free of ghost images and accompanied by proper
sound on typical standard production television receivers in
good repair. On request of City, grantee shall demonstrate
by monitor or otherwise, the adequacy of signal strength and
'quality, and the quality of the resultant audio and video
product.
In addition to the foregoing, performance requirements
of a more specific nature shall be set forth in the Ordinance
granting the franchise, or in a separate document or series
of documents incorporated by reference into such Ordinance
granting said franchise.
Sec. 4-214. APPLICATION FOR FRANCHISE.
Application for a franchise hereunder shall be in
writing, shall be filed with the City Clerk, and shall contain
the following information:
(a) .The name and address of the applicant. If the
applicant is a partnership, the name and address of each'partner
shall also be set forth. If the applicant is a corporation,
the application shall also state the names and addresses of
parent and subsidiary companies.
(b) A general statement and description of the
CATV system proposed to be constructed, installed, maintained
or operated by the applicant; the proposed location of such
system and its various components; the manner in which applicant
proposes to construct, install, maintain and operate the same;
and, particularly, the extent and manner in which existing or
future poles or other facilities of other public utilities will
be used for such system.
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(c) A general statement of the public streets,
public places and proposed public streets within which
applicant proposes or seeks authority to construct, install
or maintain any CATV equipment or facilities; a general
description of the equipment or facilities proposed to be
constructed, installed or maintained therein.
(d) A map specifically showing and delineating
the proposed service area or areas within which applicant pro-
poses to provide CATV services and for which a franchise is
requested, specifying p~oposed chronology and scheduling
of construction, installation and service completion.
(e) A statement o~ schedule in a form approved
by the City of proposed rates and charges to subscribers for
installation and services; and a copy of proposed service
agreement between the grantee and its subscribers shall
accompany the application. For unusual circumstances, such
as underground cable required, or more than 150 feet of
distance from cable to connection of service to subscribers,
an additional installation charge over that normally charged
for installation as specified in the applicant's proposal
may be charged, with easements to be supplied by subscribers.
For remote, relatively inaccessible subscribers within the
City, service may be made available on the basis of cost
of materials, labor and easements if required by the grantee.
(f) A copy of any contract, if existing, between
the applicant and any public utility providing for the use
of facilities of such public utility, such as poles, lines or
conduits.
(g) A statement setting forth all agreements and
understandings, whether written, '~.oral or implied, existing
between the applicant and any person, firm or corporation
with respect to the proposed franchise or the proposed CATV
operation. If a franchise is granted to a person, firm or
corporation posing as a front or as the representative of
another person, firm or corporation, and such information is
not disclosed in the original application such franchise
shall be deemed void and of no force and effect whatsoever.
(h) A current financial statement,. or latest
annual report if the applicant is listed on a domestic national
stock exchange, prepared by acertified public accountant, or
person otherwise satisfactory to the Council, showing appli-
cant's financial status and his financial ability to complete
the construction and installation of the proposed CATV system.
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(,!i~,) A full disclosure made of any criminal pro-
ceedings, or l~ny charges by any governmental agency, litigation,
or other legal proceedings, past, present, or pending, in
conjunction with any CATV operations of applicant.
(~)7! The CoUncil' may at any time demand, and appli-
cant shall pr0~ide, such supplementary, additional or other
information as the Council may deem reasonably necessary to
determine whether the requested franchise should be granted.
Sec. 4-215.... GRAN~.ING OR DENIAL Q.F FRANCHISE.
(a) UponlconSideration ~f any such application,
the Council may refuse to grant the requested franchise or
the Council may by ordinance grant a franchise for a CATV
system to any such applicant'as may appear from said applica-
tion to be in its opinion best qualified to'render proper
and efficient CATV service to television viewers and subscribers
in the City. The Council's decision in the matter shall be
final. If favorably considered, the application submitted
shall constitute and form part of the franchise as granted.
(b) Any franchise granted pursuant to this
Ordinance shall include the following condition:
"The CATV system franchised shall be used
-and operated solely and exclusively for
the purposes expressly authorized by
Article VI, Chapter 4, of the Saratoga
City Code, and for no other purpose what-
soever."
Inclusion of the foregoing statement in any
such franchise shall not be deemed to limit the authority of
the City to include any other reasonable condition, limitation,
restriction or, provision which it may deem necessary to impose
in connection with such franchise pursuant to the authority
Conferred by this Ordinance. In the event that any ordinance
granting franchise should fail to include the above-Set forth
statement, the same shall be deemed to beincluded in any such
franchise as if the same were more fully set forth therein.
Sec. 4-216. FRANCHISE RENEWAL.
At the expiration of the term of any franchise
hereunder, the franchise holder, not being in default of any
of the terms of the franchise, shall have the first right of
refusal for a renewal of such franchise on such terms and con-
ditions as required by this Article at that time, for the same
service area covered by the expired franchise or any part thereof.
Sec. 4-217. ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE.
(a) No franchise granted pursuant to the provisions
of this Ordinance shall become effective unless and until the
ordinance granting same has become effective and, in addition,
unless and until all thin~s required in this Section and Sections
4-211(~,~211(b)~'a~;.74~ ll(e) hereof are done and completed,
all of such things being hereby declared to be conditions pre-
cedent to the effectiveness of any franchise granted hereunder.
In the event any of such things are not done and completed in
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the time and manner required, this franchise shall automatically
be null and void.
(b) Within thirty (30) days after the effective
date of the ordinance awarding a franchise, or within such
extended period of tin~ as the Council in its discretion may
authorize, the grantee shall file with the City Clerk his
written acceptance, in form satisfactory to the City Attorney,
of the franchise, together with the bond and insurance policies
required by Sections4-211 hereof, respectively, and his agree-
ment to be bound by and to comply with and to do all things
required of him by the provisions of this Ordinance and the
franchise. Such acceptance and agreement shall be acknowledged
by the grantee before a notary public, and shall in form and
content be satisfactory to and approved by the City Attorney.
Sec..4-2~8. MISCELLANEOUS PROVISIONS.
(a) When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be filed with
the City Clerk.
(b) The grantee shall pay to the City a sum of
money sufficient to reimburse it for all publication expenses
incurred by it in connection with the granting of a franchise
pursuant to the provisions of this Ordinance. Such payment.
shall be made within ten (10) days after the City furnishes
the grantee with a written statement of such expenses.
(c) No person, firm or corporation in the existing
service area of the grantee shall be arbitrarily refused service;
provided, however, that the grantee shall not be required to
provide service to any subscriber who does not pay the appli-
cable installation fee pr'monthly service charge.
(d) No franchise granted under this Ordinance
shall ever be'given any value by any court or other authority,
public or private, in any proceeding of any nature or character,
wherein or whereby the City shall be a party or affected
therein or thereby.
(e) Grantee shall be subject to all provisions
of the other ordinances, rules, regulations, and specifications
of the City heretofore or hereafter adopted, including but not
limited to those pertainingto works and activities in, on,
over,under and about streets.:
Any privilege claimed under any franchise
granted pursuant to this Ordinance in any street or other public
property shall be subordinate to any prior lawful occupancy
of the streets orother public property.
Grantee also shall be subject to the provisions
of general laws of the State of California, or as hereafter
amended, when applicable to the exercise of any privilege
contained in any franchise granted under this Ordinance, includ-
ing but not limited to those pertaining to works and activities
in and about State highways.
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(f) If the Federal Communications Commission or
the Public Utilities Commission of the State of California or
ahy other Federal or State body or agency shall now or here-
after legally exercise any paramount jurisdiction over the
subject matter of any franchise granted under this Ordinance,
then to the extent such jurisdiction shall preempt or preclude
the exercise of like jurisdiction by the City the jurisdiction
of the City shall cease and no longer exist.
The preemption or preclusion of the exercise
by the City of any of its police power shall not diminish,
impair, alter or affect any contractual benefit to the City
or grantee nor any contractual obligation of the grantee
under any franchise issued hereunder.
Any and all minimum standards covering the
operation of grantee and any and all maximum rates, ratios
and charges specified herein or in any franchise issued here-
under, existing now and at any time in the future, including
such time as any paramount jurisdiction shall preempt or
preclude that of the City, and any and all rights, powers,
privileges and authorities of the City to determine, establish
or fix any of the same, are each and all hereby declared by
the City and by any grantee accepting any franchise hereunder
to be contractual in nature and to be for the benefit of the
City.
(g) Before providing cable television service to
any subscriber, the grantee shall provide a written notice
to the subscriber substantially as follows:
"Subscriber is hereby notified that in pro-
-viding cable television service, the grantee
is making use of public rights-of-way within
the City of Saratoga, and that the continued
use of such rights-of-way is in no way guaran-
teed. In the event the continued use of such
rights-of-way is denied to grantee for any
reason, grantee will make every reasonable
effort to provide service over alternate
routes. By accepting cable television service,
subscriber agrees he will make no claim nor
undertake any action against the City of
Saratoga, its officers, or its employees if
the service to be provided hereunder is
interrupted or discontinued."
Sec. 4-219. EQUAL OPPORTUNITY EMPLOYMENT AND AFFIRMATIVE.
" ~CTION PLAN.
In the carrying out of the construction, maintenance
and operation of the cable television system, the grantee shall
not discriminate against any employee or applicant for employ-
ment because of race, creed, color, sex or national origin.
The grantee shall take affirmative acti6n to ensure
that ~pplicants are employed, and that employees are treated
during employment, without regard to their race, creed, color,
sex or national origin. Such action shall include, but not be
-21-
limited to, the f~llowing: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and
selection of training, including apprenticeship.
The grantee shall post in conspicuous places, avail-
able to employees and applicant for employment, notices setting
forth the provisions of this non-discrimination clause.
The grantee shall, in all solicitations for employees
placed by or on behalf of the grantee, state that all qualified
applicants will receive consideration for employment without
regard to race, creed, color, sex or national origin.
The grantee shall incorporate~the foregoing require-
ments in all of its contracts for worksrelative to construction
and maintenance of the cable television system, other than
contracts for standard commercial supplies of raw materials,
and shall require all of its contractors.for such work to
incorporate such requirements in all subcontracts for such work.
Sec. 4-220. VIOLATIONS.
(a) It shall be unlawful for any person~ firm or
corporation to establish, operate or to carry on the business
of distributing to any persons in this City any television
signals or radio signals by means of a CATV system unless a
franchise therefor has first been obtained pursuant to the
provisions of this Ordinande, and unless such franchise is
in full force and effect.
(b) .It shall b~ unlawful for any person, firm or
corporation to construct, install or maintain within any public'
street in the City, or within any other public property of
the City, or within any privately-owned area within the City
which has not yet become a public street but as designated
or delineated as a proposed public street on any tentative
subdivision map approved by the City, any equipment or facilities
for distributing any television signals or radio signals through
a CATV system, unless a franchise authorizing such use of such
street or property or area has first been obtained pursuant
to the provisions of this Ordinance, and unless such franchise
· f
is in ull force and effect.
(c) It shall be unlawful for any person, firm or
corporation to make any unauthorized connection, whether
physically, electrically, acoustically, inductively or other-
wise, with any part of a franchised CATV system within this
City for the purpose of taking or receiving television signals,
radio signals, pictures, programs or sound.
(d) It shall be unlawful for any erson firm or
corporation to make any connection, whether p~ysicatly,
electrically, acoustically, inductively or otherwise, with
any part of a franchise CATV system within this City for the
purpose of enabling himself or others to receive any television
signal, radio signal, picture, program or sound, without payment
to the owner'of said system of the requisite fees therefor.
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(e) It shall be unlawful for any person, without
the consent of the owner, to wilfully taper with, remove or
injure any cables, wires o~ equipment used for distribution
of television signals, radio signals, pictures, programs or
sound. ~
(f) It shall b~ unlawful.for~any person, firm or
corporation to represent to the City, or any officer, agent,
board, commission or employee thereof, that such person, firm
or corporation has the consent from the owner of any copy-
righted program or event to transmit the same, if such repre-
sentation is not true.
Section 2: If any section, subsection, sentence, clause
or phrase of this Ordinance is for any reason held illegal,
invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the
validity of the remaining portions hereof. The Council hereby
declares ~hat 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, sub-
sections, sentences, clauses or phrases be declared illegal,
invalidor unconstitutional.
Section 3: This Ordinance shall be in full force and
effect thirty (30) days after the date of its passage and
adoption.
The above and foregoing Ordinance was regularly introduced
and after the waiting time required by law was thereafter passed
and adopted this 24th day of April, 1973, by the following
vote;
AYES: Councilmen Bridges, Diridon, Kraus and Smith
NOES: None~'' .......... ~)
ABSENT: Councilman Dwyer
~ The above n~d fordDin is a t~
Deputy City Cle,'k Date