HomeMy WebLinkAbout38.12.5 ORDINANCE NO. 38.12.~
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 singu-
lar number include the. plural number.
(a) "City" shall mean the City oE Saratoga, a municipal
corporation, and "Council" shall mean the City Council of said City.
(b) "Franchise" shall mean and include any authorization
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 corporation
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, under this ordinance, and the lawful successor, transferee or
assignee of said person, firm or corporation.
(d) ."Street" shall mean the surface of and the space above
and below any part of the entire width of right o~=wa~7. of Ta~rpubl~s~r~Ft,
road, highway, freeway, lane, path, alley, court, ~b=ide~a~k~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 any person or entity
receivin~ for any purpos~ any service of the Grantee's cable television
system, including, but not limited to, the conventional cable television
system service of retransmission of television broadcast, radio signals,
grantee's original cablecasting, 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,
coaxial cables or other conductors and equipment designed, constructed or
used for the purpose of collecting and amplifying-local and distant.broad-
cast 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 franchise ordinance or any ordinance granting a franchise pursuant
thereto, shall not include the delivery or transmission of any copyrighted
program or event without the owner of the facility first complying with all
laws applicable thereto.
(h) "Subscriber" shall mean any person or entity receiving
for any purpose the CATV service of a grantee.~
(i) "Gross Annual Basic Subscriber Receipts" shall mean
any and a~l compensatipn 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, wh~her for "pay television",
"facsimile" 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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(1) "Gross Annual Lease Receipts" shall mean any fees or in-
come 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 INSTALL 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 franchise, who or which offers to furnish and pr~
vide such system under and pursuant to the terms and provisions of this
ordinance. Each franchise for a CATV system as herein defined shall be sub-
ject to the provisions of this Article 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
as to require the granting of a franchise when in the opinion of the Council
it is in the ~ublic interest to restrict the number of grantees to one or
more.
(b) When and in the event that' the grantee of any franchise
granted hereunder uses in his cable television system distribution channels
furnished ~o the grantee by a telephone company pursuant to tariff or contract
on file with a regulatory body having jurisdiction and said grantee makes no
use of the streets independent of such telephone company-furnished facilitie~
said grantee shall be required to comply with all of the provisions hereof as
a '~icensee" and in such event wh~m~ever the term "Grantee" 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 authorize 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, vaults, manholes, amplifiers, appliances, attachments, and other
property as may be necessary and appurtenant to the CATV system; and in
addition, so to use, operate, and provide similar facilities or properties'
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 City; subject, however, to all of the other terms, con-
ditions, and provisions of this Ordinance and any ~additional conditions or
provisions of any ordinance which grants a franchise in accord herewith.
No franchise granted hereunder shall constitute 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 installation or
connection to its CATV system and a fixed monthly charge as filed and approved
herein provided. No increase in the rates and charges to subscribers, as set
forth in the schedule and conditions filed and approved with grantee's application,
may be made without the prior approval of the Council expressed by resolution.
Rates may not be discriminatory.
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Sec. 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 subject to the following
conditions which shall also be obligations of the grantee:
(a) The grantee shall comply 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, loperation, maintenance and use of the CATV system or any part
thereof, provided however, that this section shall not affect the location of
construction of the CATV system which has been located or constructed in
accordance with existing laws and ordinances.
(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 effect, 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 enaqted, promulgated or adopted, and shall also comply with any and
all other laws, whetherlocal, state, or national, as presently existing or
as hereafter enacted, regulating or governing any of the activities of the
grantee, except as otherwise stated herein.
(c) Th~ 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 shielding, filtering, and grounding at
affected installations within the CATV system. The grantee shall further make
efforts to minimize television interference encountered from fundamental
frequency overload by radio amateur transmissions which are in compliance with
Federal Communications Commission regulations.
(d) No grantee shall engage in the business of leasing or
selling television or other receivers which make use of signals transmitted
by the CATV system, nor shall any grantee offer or 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 o~
'bpecial receivers" that are not part of the basic CATV system as designed
and engineered.
Sec. 4-204. CABLE TELEVISION SERVICE. ~_~ ......
(a) Basic Service. The cable television system'permitted
to beinstalled and operated hereunder shall:
(1) be operationally capable of relaying to sub-
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. Basic
services shall not include those programs and
signals defined in non-basic services, sub-
paragraph (b) below;
(2) be constructed with the potential of two-way
digital signal transmission;
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(3) distribute color television signals which it
receives in color;
(4) provide at least one (i) channel, without
charge, for exclusive use of the Cit~, i.e.
government channel per ~Federal Communication Commission
rules.
(5) provide at least one (1) channel each for
I -.those educational and public access uses as
now or hereafter required by the Federal
Communications Commission for systems
operating in the top 100 markets;
(6) have a minimum'~pacity of ~18 channels,
with ultimate 3~ 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) transmittiBg original cablecast programming
not received through television broadcast
signals;
~ (2i transmitting television pictures, film and
videotape programs not received through
broadcast television signals, whether or not
encoded or processed to permit reception by
only selected receivers or subscribers.
(3) transmitting and receiving all other signals:
digital, voice, and audio-visual.
(c) Subscriber Complaints. Excepting circumstances beyond
granteels control, such as Acts of God, riots, civil disturbances, strikes,
fire, or other major casualties in providing the foregoing services. The
grantee shall:
(1) limit system failures to minimum time
duration by locating and correcting malfunc-
tioning promptly, but in no event longer than
24 hours after occurrence, irrespective of
holidays or other'non-business hours;
(2) upon complaint by a subscriber and upon. request
of the chief administrative officer, make a
response satisfactory to the chief administrative
officer that a signal is being delivered which is
sufficient strength and quality to meet the
standards set forth in the regulations of the
Federal Communications Commission, or in regu-
lations hereafter adopted by the Council;
(3) 'render ef£icient service, making repairs promptly
and interrupting service only for good cause and
for the shortest time possible. Planned inter-
ruptions, insofar as possible, shall be prsceded
by notice given to subscribers 24 hours in
advance and shall occur during periods of minimum
use of the system;
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(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 tech-
nical services for production of live and
video-tape municipal programs, subject to
scheduling requirements of the grantee.
(2) The grantee shall provide all basic subscriber
services and a tie-in connection at feeder cable,
without cost, (except for installation costs)
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 residential use (fire and police
stations excepted).
(e) Compatibilit7 and Connectlbility.
(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;
Sec. 4-205. ~RA~I6N.OF LICENSE. No franchise granted under
this ordinance shall be for a term of longer than twenty (20) years from the
date of acceptance of such franchise by the grantee or the renewal thereof.
Any such franchise granted hereunder shall automatically be suspended during
the period of such transmission or delivery without notice or hearing in the
event the grantee willfully 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 d~te 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: the grantee has failed to comply with any material condition,
limitation, obligation, or provision of this Ordinance, or has, by act or
omission, vi~a~d~any material term, condition, or provision of any franchise,
permit, or license issued hereunder and has failed after thirty (30) days
written notice to completely obviate such default, or take action satisfactory
to the City to obviate such default.
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Sec. 4-206. FRANCHISE PAYMENTS! Any grantee granted a franchise
under this ordinance shall pay t'o the Cit~, during the life of such franchis~
a sum equal tO three percent (3%) of the Gross Annual Basic SubsCriber Receipts.
and Non-Basic Subscriber Receipts, including advertising and channel-leasing
receipts of the grantee, or such greater percentage as may at any time be per-
mitted or allowed as a maximum percentageSrate by the rules and regulations of
, p yment shall be made by the
the franchise or any amendments thereto. ~ uc a
...... grantee' annually~'0r as may' otherwise be provided in the granteeIs 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 fiscal year during which such franchise is in force, a
financial statement prepare y a certlfleH public ac ountant howlrig in
detail the tot 1 gro s receipts, as define. herein,' of grantee, its
successors or assigns, during the preceding fiscal year and shall pay the
franchise fee to the City within fifteen (~5) days from date of filing such
statement.
The City shall have the.right to +nspect the grantee's records
showing the gross receipts from which its ~ranchise 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 d a c for the performance of any
other obligation hereunder.
In the event of any holding over ~fter expiration or other termination
of any franchise granted hereunder withoutlthe concent of the City the grants
shall pay to the City reasonable compensation and damages, of not less than
one hundred percent (100%) Of its total gr~ss profits during said period.
Sec. 4-207. LIMITATIONS OF FRANCHISE.
(a) Any franchise granted uhder this ordinance shall be'
non-exclusive.
(b) No privilege or exemptibn shall be granted or conferred
by any franchise granted under thi's ordinance except those specifically pre-
scribed herein.
(c) Any privilege claimed u~der any franchise by the grantee
in any street or other public property shall be subject to any prior lawful
occupancy of the streets or other p bl c prqperty, and subject to removal
and relocation as herOinafter set forth in ~ection 4-209(h). -.
(d) Any such franchise'shall be a privilege to be held in
personal trust by the original grantee. I ca in any be sold,'
t. nnot event
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 trans-
fer or assignment shall be made only by an ~nstrument in writing, such as a
bill of sale, or similar document, a duly ex uted copy of which shall be
filed in the office of the City Clerk withinI 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 responsi-
bility as determined by the Council and must%agree to comply with all provisions
of this ordinance; and provided further, tha~ 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 ex ed
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 notlbe 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. Approval
of the'City Council shallnotbelwithheld unreasonably.
(e) Time shall be of the essence of any such franchise
granted hereunder. The grantee shall not be relieved of his obligation to
comply promptly with any of the provisions of this ordinance or by any failure
of the City to enforce prompt compliance.
(f) The grantee shall have no recourse whatsoever against
the City for 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 lawful 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, if any, owned, possessed, controlled,
or exercisable by grantee or any successor to any interest of grantee.
Sec. 4-208. RIGHTS RESERVED TO THE CITY.
(a) Nothing herein shall be deemed 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 in-
clude any amount for the franchise itself or for any of the rights or
privileges granted, and nothing h~rein 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 comply with any action or requirements of the City
in its exercise of such rights or power, heretofore or hereafter enacted or
established, except as may otherwise be provided in this agreement.
(c) Neither the granting of any franchise hereunder nor any
of the provisions contained herein shall be construed to prevent the City
from granting any identical or similar franchise to any other person, firm,
or corporation within all or any portion of the City.
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(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, provided
that such amendments are mutually agreed to between City and Orantee.
(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 exercise of its jurisdiction under this ordinance and may
examine 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 operations of any grantee under this ordinance, either on behalf of
the City, the grantee or any subscribe~ in the best interest of the public.
Sec. 4-209. PERMITS AND CONSTRUCTION.
(a) Within fifteen (15) 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 not limited to, any utility joint use attachment agreements,
microwave carrier licenses, and any other permits, licenses, and authori-
zations to be granted by duly constituted regulatory agencies having juris-
diction 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 affecting grantee's cable television operations shall
also be submitted simultaneously to the Chief Administrative Officer.
....................... ~b) w/thin'ninety (9o~ days'after gbtaining all necessary .....
permits, licenses, (including F.C.C. Certificate of Compliance) and authori-
zations, grantee shall commence system mapping, engineering and pole
clearance, and thereafter, within such time as set forth in the ordinance
................. granting the franchise, comence physical installation of the_ system._
In the event the Federal Communications Commission
should notify City that it does not intend granting a certificate to
licensee, then City thereafter shall have the right, on thirty (30) days
................... prior written notice .to licensee,_to.cancelthe franchise previously granted ....
to such li~ensee.
(c) Within such number of days as set forth in the ordinance
granting the franchise after the commencement of construction 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 chrono-
logical 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.
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(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 its control.
(e) ~Grantee shall utilize existing poles and other facilities
whenever possible and shall not construct or install any new, different, 'or
additional poles 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, save and except that grantee shall not be
required to use existing underground conduit of another utility in the event
it is more economical for Grantee toinstall and use its own underground
facility. Approval of the Director of Public Works-~hall not be unreasonably
withheld.
Whenever grantee shall not utilize existing poles, con-
duits, and other facilities, or whenever 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 constructed, installed, placed, or replaced
beneath the surface of the streets. Any construction, installation, place-
ment, replacement, or changes w~ich may be so required shall be made at the
expense of grantee, whose costs shall be determined as in the case of public
utilities.
(f) 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 or compete with services .by grantee.
(g) In those areas of the City where the existing transmission
or distribution facilities or service drops of the respectrive public utilities
providing telephone, communication, or electric services are all underground
to the particular building or structure in question or are hereafter so placed
underground, the grantee likewise shall construct, operate, ~nd maintain all
of its respective transmission, distribution, or ser~ice. dro~ facilities under-
ground. The term "underground" shall include a partial underground system;
whereby, amplifiers in the granteets transmission and distribution lines may
b~ placed in 'appropriate housings upon the surface of the ground, subject to
obtaining written approval as to location by the Director of Public WorkS.
(h) The grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of grantee when,
in the opinion of the Director of Public Works, the same is required by
reason of traffic conditions, public safety, street vacation, freeway or
street construction, change or establishment of ~treet grade, installation
of sewers, drains, waterpipes, powersline, 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 o~ public improvement, including, but not
limited to, movement of buildings, urban renewal and redevelopment, and any
general program under which 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 privilege, subject to the corresponding obli-
gations, to abandon any property of grantee in place, as herein provided.
Nothing hereunder shall be deemed a taking of the property of grante~, and
grantee shall be entitled to no surcharge by reason of anything hereunder.
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If such removal or relocation relates to any underground conduit or other
facility, the same shall be subject to the requirements of Section 13-16
through 13-19 of this Code. All facilities of grantee, whether above ground
or underground, shall be considered encroachments within the terms and meaning
of, and subject to the provisions of, Articles IV and V of Chapter 13 of this
Code. In the event that funds, whether from Federal, State, or local sources,
are available for such programs, and these funds are made available to other
utilities, including CATV companies, grantee shall receive its proportionate
share of said funds as compensation for such ~nderground program.
(i) 'Upon the failure, refusal, or neglect of grantee 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 reasonable given notice, 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 hereinafter set forth in Section 4-211 (a) is speci-
fically 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 expired, the grantee shall promptly, upon being given thirty (30) days
notice, remove from the streets or public 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. Such removal by grantee may not be required if it
causes unreasonable economic hardship to grantee.
(b) Upon termination or expiration of the franchise, the
grantee may, at any time prior to the expiration of one hundred twenty (120)
days from such termination or expiration, remove said property or any part
thereof, and/or sell the same or any part thereof in place to a new CATV
franchise granteR. All property of grantee remaining in place one hundred
twenty (120) days after termination or expiration of such franchise, unless
its removal is otherwise directed, per 4-210 (a), above, or unless then owned
by the current CATV franchise grantee, shall be considered permanently
abandoned and shall automatically be and become the property of city.
Sec. 4-211. BONDS, INDEMNIFICATION~ AND LIABILITY' INSURANCE.
(a) ~erformance Bond to City.
The grantee shall, concurrently with the filing of an
acceptance of award of any franchise granted under this ordinance, file with
the City, 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 cash or corporate surety bond in a company and in a form approved by the
City Attorney, in the amount of not less than $25,000.00, to guarantee
faithful performance by grantee under the franchise, and compliance by
grantee with all provisions of this ordinance ~nd-'th~ 6rdlhance granting
such franchise. The exact amount of such bond, shall be set forth in the
ordinance granting the franchise. Said bond shall provide~ inter alia, not only
for .pa~nnent 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, including 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
start and 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 p~ovide 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 all
attorneysT 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 then remaining, 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 pro-
visions of this section, nor any bond acceptedby the City pursuant hereto,
nor any damages recovered by the City thereunder-shall be construed to excuse
faithful p~rformance by the grantee, or limit the liability of the grantee,
under any franchise issued hereunder, or for damages, either to the full
amount of the bond or otherwise.
(b) 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 granteels cable television system), costs, or liabilities
(including costs or'liabilities 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 tha'
merit of any of the same, and against all liability to others, and against
any loss, cost and expense arising or resulting from any of the same, including
any attorneysT fees, accountants~ fees, expert witness or consultantsT fees,
court costs, per diem expenses, traveling and transpO=tati0n expense] and other
costs or expenses arising out of or pertaining to the exercise or the enjoin-
ment of any franchise hereunder by grantee, or the granting thereof by the
City.
(c) Defense of LitiMation.
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 performance or non-performance
of any duty by grantee, as specified in said ordinance or ordinance granting
said franchise.
Grantee shall pay and satisfy or 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, co~nissions, agenm,
- 12 -
or employees in any of these premises; and such indemnity shall exist and
continhe without reference to or limitation by the amount of any bond, policy
of insurance, deposit, undertaking, or other assurance required hereunder,
or otherwise; providedfthat neither grantee nor City shall make or enter into
any compromise or settlement of any claim, demand, cause of action, action,
suit, or other proceeding, without first obtaining the written consent of the
other.
(d) Insurance Required.
Upon' being granted a franchise, and upon the filing of
the acceptance required under Sec. 4-201 hereof, the grantee shall file
_with the City Clerk and shall. thereafter during the entire term of such
franchise maintain in full force and effect at its own cost and expense each
of the followingspolicies 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
on account 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 distri-
butors or licensees of programs to be delivered
by the grantee's CATV system or arising out of
the exercise of enjoyment 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.~nq~ice of cancellation
or reduction in coverage of each such policies sh~I~'b~/~livered to the City
no ess than th' 6 ( 0 das in a vance of th effec ive date thereof. Each
suc~ policy s~a~ ~nc~u~e r~asonab~e attorney ~ees an~ court costs in the losses
and damages insured against.
Sec. 4-212. INSPECTION OF PROPERTY AND TECHNICAL RECORDS.
(a) At all reasonable times, the grantee shall p~rmit any
duly authorized representatives of the City to examine all property of the
grantee, together with any appurtenant 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 appropria~ ,
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
respec~ to its revenues and gross receipts, as may be reasonably necessary
- 13 -
or appropriate to the performance of any of the rights, functions, or duties
of the City or any of its officersin 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 plaees 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 p~les and facilities shall be filed with the City Clerk.
Sec. 4-213. OPERATIONAL STANDARDS.
The grantee's CATV system shall be installed and maintained
in accord with the F.C:C. specifications governing CATV systems, including
the following minimum specifications:
~a) That the system be installed using all band equip-~
ment 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 VHFbank.
(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
2,000 microvolts at the input terminals 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) percent.
(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.
- 14 -
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 infor-
mation:
(a) The name and address of the applicant. If the appliT
cant 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
orfuture poles or other facilities of other public utilities will be used
for such system.
(c) A general statement of the public streets,""
public plades, 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, inst~lled or maintained therein,
(d) A map specifically showing and delineatinglthe proposed
service area or areas within which applicant proposes to provide CATV
services and for which a franchise is requested, specifying proposed
chronology and scheduling of construction, installation and service com-
pletion.
(e) A statement or 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 easementa~to~be supplied by sub-
scribers. 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 under-
standings, wh~ther 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,
- 15-
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 what-
soever..
(b)' A current financial statement, or latest .annual report, if
the applicant is listed on a domestic national stock exchange, prepared by a
certified public accountant, or person otherwise satisfactory to the Council,
showing applicant's financial statu~ and his financial ability to complete the
construction and installation of the proposed CATV system.
(i) A full disclosure made of any ~riminal proceedings, or
any '.charges by any governmental agency, litigation, or other legal proceedings,
past, present, or pending, in conjunction with any CATV operations of 'applicant.
(j) The Council may at any time demand, and.applicant shall
provide, such supplementary, additional or other information as the Council
may deem reasonably necessary to determine wh~ther the requested franchise should
'be granted.
Sec. 4-215. GRANTING OR DENIAL OF FRANCHISE.
(a) Upon consideration of any such application, the'Council
may refuse to grant the requested franchis~ or the Council may by ordinance
grant a franchise for a CATV system to any such applicant as may appear from
said application to be in it~ 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 p~rposes 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 t~e .a~ority ef the_City ~.o include any.othe~ ~easonable
condition, limitation, restriction, or provision which it may deem necessary t~
impose in connection with such franchise pursuant to the authority conferred by
this ordinance. In the event that any ordinance granting~£~apchise Should~ fail
to include the above-set-forth statement,.the same shall be deemed to be included
in any such franchise as if the same were more fully set forth thereih.
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 conditions as required by thi's Article at that time, for the same
service area covered by the expired franchise or any part thereof.
~ 16 -
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 things required
in this Section and Sections 4-211(a), 4-211(b), and 4-211(d) hereof, are done
and completed, all of such things being hereby declared to be conditions
precedent to the effectiveness of any franchise granted hereunder. In the
....... event.any.of. such things are not done and completed in the time and manner
required, this franchise may be declared null and Void in the absolute .
discretion of the City Council.
(b) Within thirty (30) days after the effective date of the
ordinanc~ awarding a franchise, or within such extended period of time 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
Section 4-211 hereof, respectively, and his agreement 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 acknow-
ledged by the grantee before a notary public, and shall in form and content
be satisfactory to and approved by the City Attorney.
Sec'. 4-218. 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 applicable installation fee or 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. I~-~7~
(e) If the Federal Communications Commission or the Fublic
Utilities CommiSsion of the State of California or any other federal or
state body or'agency shall now or hereafter 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, except as otherwise provided
by preempting or'precluding body.
(f) Before providing cable television service to any sub-
scriber, 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 wayguaran-
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 ~4PLOYMENT AND AFFIRMATIVE
ACTION 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 employment because of race, creed,
color, sex, or national origin.
The grantee shall take affirmative action to ensure that
applicants 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 limited to, the following: employment, up-
grading, 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 conspicuoh~p~aces availabl~ to
employees and applicant for employment, notices setting forth the provisions
of this non-discrimination clause.
The gr.antee 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 requirements in
all of its contracts for work relative 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.
- 18 -
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
~less a franchise therefor has first been obtained pursuant to the provisions
of this ordinance, and unless such franchise is in full force and effect,
......... (b) I It shall be 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,anytentative subdivision map approved
by the City, any equipment or facilities for distributing any television signals
or radio signals through aCATV 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 is in full force and
effect.
(c)' It shall be unlawful for any person, firm, 6r corporation
to make any unauthorized connection, whether physically, electrically, acousti-
Ically, inductively or otherwise, with any part of a franchised CATV system within
this City for the purpose of taking or. receiving television signals, radio sig-
nals, pictures, programs, or.sound.
(d) It shall be unlawful for any person, firm, or corporation
to make any connection, whether physically, electrically, acoustically, induc-
tively, 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.
(e) It' shall be unlawful for any person, without the consent
of the owner, to wilfully 'tamper with, remove, or injur~~ any cables, wire~ or
equipment used for distribution of television signals, radio signals, pictures,
programs, or sound. ·
(f) It shall be 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 copyrighted program or event to transmit the same, if such representation
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
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.
- 19 -
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 this
20 day of July ~ 77 by the following vote:
AYES: ~puncilmen Bridges, Brigham, Kraus, Corr & Matte, ni
NOES: Non~
ABSENT: No~e
ATTEST:
The above and fore oing is a true and correct
published acca~ding to law,
' Deputy City C~eFk .... Date