HomeMy WebLinkAbout71.127 ORDINANCE NO. 71-427
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SARATOGA REPEALING ARTICLE
4-25 OF THE SARATOGA CITY CODE AND ADOPTING A NEW CABLE
COMMUNICATIONS ORDINANCE
The City Council of the City of Saratoga hereby ordains as follows:
SECTION 4-25.010 TITLE.
This Ordinance shall be known and cited as the "City of Saratoga
Cable Communications Ordinance" and shall be referred to herein as
"this Ordinance."
SECTION 4-25.020 DEFINITIONS.
For the purposes of this Ordinance, 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) Federal Law. - refers to all federal statutes and!regulations,
including but not limited to the Cable Communications Policy Act of
1984, Cable Television Consumer Protection and Competition Act of 1992,
and any amendments thereto as codified in Title 47 of the United States
Code, Section 521 et seq.
(b) Cable System - means a facility consisting of a set of closed
transmission paths and associated signal generation, reception and
control equipment that is designed to provide cable service with a
minimum 550 MHZ bandwidth, which includes video programming and FM
radio service, and which is provided to multiple subscribers within a
community, but shall not include (a) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; (b) a facility that serves only subscribers in one or more
multiple unit dwellings under common ownership, control or management,
unless such facility or facilities uses any public right-of-way; (c)
a facility of a common carrier which is subject, in whole or in part,
to the provisions of Federal Law, except that such facility shall be
considered a cable system (other than for purposes of 47 U.S.C. Section
541(c)) to the extent such facility is used in the transmission of
video programming directly to subscribers; or (d) any facilities of any
electric utility used solely for operating its electric utility
systems.
(c) City - means the City of Saratoga, a Municipal C~rporation of
the State of California, in its present incorporated form or in any
later reorganized, qonsoli~ated, enlarged or re-incorporated form.
(d) Council - shall mean the present highest governing body
of the City or any future board constituting the legislative body of
the City.
(e) Franchise - means and includes any authorization granted
pursuant to this Ordinance in terms of a franchise, privilege, permit,
license or otherwise to construct, operate and maintain a Cable System
in the City, including a satellite master antenna television system.
(f) Franchise Aqreement - shall mean an agreement between the City
and Grantee, approved by resolution of the Council, containing the
specific provisions of the Franchise granted, including any referenced
specifications, Franchise applications and other related material
within such agreement.
(g) Franchise Fee - means the tax, fee or assessment to be paid by
Grantee to Grantor solely because of Grantee's operation of a Cable
System within the Franchise Territory. Such fee does not include: (a)
any capital costs which are required by the Franchise to be incurred
by the Grantee for public, educational, or governmental access
facilities and equipment; (b) any tax, fee or assessment of general
applicability; or (c) any franchise application, renewal or transfer
fees or consulting fee reimbursements payable by the Grantee to the
City.
(h) Franchise Territory - means that portion of the City defined in
the Franchise Agreement for which a Franchise is granted.
(i) Grantee - means the person or entity to whom or which a
Franchise, as defined above, is properly granted by the Council under
this Ordinance, and the lawful successor, transferee or assignee of
said person or entity, as referenced in Section 4-25.060(d) hereto.
(j) Gross Quarterly Revenues - means all amounts which are
received, directly or indirectly, by the Grantee from or in connection
with the operation of its Cable System in the City during the first,
second, third or fourth three-month period in any year (or portion
thereof). Gross Quarterly Revenues as used herein shall include but
not be limited to revenues from the distribution of any basic, premium
or pay-per-view service over the Cable System to any Subscriber;
installation, reconnection and similar fees; fees paid for Channels
designated for commercial use; converter rentals or sales; studio and
other facility or equipment rentals, other than those not associated
with the operation of the System; advertising revenues (based on the
percentage of Subscribers in the Franchise Territory); revenue derived
from the sale of products advertised or promoted on the System, to the
extent such revenue represents payment, in whole or in part, for the
use of a channel on the System. Gross Quarterly Revenues shall also
include the gross revenue of any other Person which is derived directly
or indirectly from or in connection with the operation of the System
in the City, but only to the extent that said revenue is derived
through a means which has the effect of avoiding the payment of
Franchise Fees to the City that would otherwise be due hereunder and
in no event shall it include any amount received by any Person
for management or consulting services related to the Cable System.
Gross Quarterly Revenues shall not include: (1) the revenue of any
Person, including, without limitation, an Affiliated Person or supplier
of programming to Grantee, to the extent that said revenue is also
included in the Gross Quarterly Revenues of Grantee; (2) taxes or other
charges imposed by law on Subscribers or other Persons which Grantee
collects and which Grantee passes on, in full, to the applicable
authority or authorities; (3) amounts collected by Grantee from
Subscribers on behalf of commercial use or Access Channel programmers,
to the extent that said amounts are passed on, in full by Grantee to
said programmers; (4) any investment income earned by Grantee, or
revenues from Grantee's sale of assets; and (5) uncollected amounts,
provided, however, that any amounts later collected shall be included
immediately upon receipt by Grantee.
(k) Property of Grantee - means all property owned, installed or
used by a Grantee in the conduct of a television business in the City
under the authority of a Franchise.
(1) Street - means the surface of and the space above and below any
public street, road, highway, freeway, lane, path, alley, court,
sidewalk, parkway or drive, easements, utility easements, licenses,
permits, rights-of-way of any kind or nature whatsoever and public
property and areas now or hereafter existing as such within the City.
(m) Subscriber - means any person or entity receiving for any
purpose Cable System service from a Grantee under this Ordinance.
SECTION 4-25.030 FRANCHISE TO OPERATE.
(a) Grant. A nonexclusive Franchise to construct, operate and
maintain a Cable System within all or any portion of the City may be
granted by the Council to any person or entity, whether currently
operating under an existing Franchise or not, who or which offers to
furnish and provide such services pursuant to the terms of this
Ordinance.
(b) Limitation. 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 public interest not to makelsuch a grant
and/or to restrict the number of Grantees to one or more'.
(c) Use of Public Streets and Highways. Any such Franchise shall
authorize and permit the Grantee to engage in the business of operating
and providing a Cable 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
or Highway within the area of the Franchise, such poles, wires, cable,
conductors, ducts, conduit, vaults, manholes, amplifiers, appliances,
pedestals,
attachments, and other property as may be necessary and appurtenant to
the Cable 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 area of
the Franchise.
SECTION 4-25.040 DURATION OF FRANCHISE
(a) Duration. No Franchise granted by the council under this
Ordinance shall be for a term longer than fifteen (15) years following
the Effective Date (as herein defined) of such Franchise by the Grantee
or any renewal thereof.
(b) Effective Date. The Effective Date of any Franchise granted
hereunder shall be the date of adoption of the resolution approving the
Franchise Agreement by the City. Such a resolution shall not be
adopted until Grantee has properly executed the Franchise Agreement.
(c) Termination. The Franchise shall terminate without further
action by the City at the end of the term; provided, however, that the
City, at or before the end of the term, retains the exclusive power to
grant an extension, or a renewal of the Franchise to Grantee. Any
termination or revocation of the Franchise prior to its term shall be
executed in accordance with 47 U.S.C. Section 547.
(d) Franchise Renewal. The renewal procedure specified in 47 U.S.C.
Section 546 shall, if the Grantee requests, be commenced by the City
during the six month period which begins three years prior to the
expiration of the term of the Franchise. Any such renewal shall also
be subject to the requirements of Section 19 of this Ordinance.
SECTION 4-25.050. FRANCHISE PAYMENTS.
(a) Franchise Fee. Any Grantee under this Ordinance shall pay to
the City, during the life of the Franchise, a sum equal to five percent
(5%) of the Gross Monthly Revenues of the Grantee; provided, however,
that in no event shall the Franchise Fee for any twelve month period
ever exceed five percent (5%) of the sum of the Grantee's Gross Monthly
Revenues for such period. Grantee shall also pay or contribute to the
City when due such other sums and consideration as may be provided for
herein and in the Franchise Agreement. In no event shall the fee be
more than that authorized by applicable federal and state law. Such
fee due by the Grantee to the City shall be payable on or before the
thirtieth (30th) day following the end of each respective calendar
month during the term of the Franchise, by delivery of the same to the
City Clerk of the City. Each monthly payment shall be,subject to a
quarterly reconciliation to be completed within sixty (6d) days of the
end of each calendar quarter and no penalty shall be assessed by the
City for any variance between the sum of the monthly payments made
during any calendar quarter and the actual amount determined to be due
pursuant to any quarterly reconciliation provided such variance is paid
with such quarterly reconciliation.
In the event that the above payments and financial statements are not
4
received by the City within ten (10) days of the specified due dates,
Grantee shall pay to the City interest at the rate equivalent to the
prime rate then in effect at the Bank of America in San Francisco,
California on any late payment computed from the date due to date of
actual receipt of payment.
(b) Financial Statement. The Grantee shall file with the City,
within ninety (90) days after the expiration of any calendar year (or
portion thereof) during which such Franchise is in forceI, a financial
statement prepared by an independent Certified Public A~countant who
is satisfactory to the Council and certified by the Chief Financial
Officer of Grantee, showing in detail and warranting the accuracy of
the various categories and amounts of the Gross Monthly Revenues of
Grantee during the calendar month (or portion thereof in the case of
an initial or final month) in the preceding calendar year.
(c) Inspection; Audit. Upon written request made at least seven (7)
days in advance, any duly authorized representative of the City shall
have the right during normal business hours to inspect and audit the
Grantee's records showing the Gross Monthly Revenues from which its
franchise fee payments are computed. Any such inspection or audit
shall take place within forty-eight (48) months following the
respective month and records thereof in question. If an underpayment
in excess of three percent (3%) of the franchise fee for any calendar
month is determined in such inspection or audit conducted by or at the
direction of the City, then the cost of such inspection or audit shall
be borne by the Grantee and the City shall be reimbursed for such costs
incurred within thirty (30) days of receiving an itemized invoice for
such inspection or audit.
(d) Acceptance by City. No acceptance of any payment shall be
construed as a release or as an accord and satisfaction.of any claim
that the City may have for any sums payable under this Ordinance or for
the performance of any other obligation hereunder.
SECTION 4-25.060 LIMITATIONS OF FRANCHISE.
(a) Nonexclusive. Any Franchise granted under this Ordinance shall
be nonexclusive.
(b) Exemptions. No privilege or exemption shall be granted or
conferred by any Franchise except those specifically prescribed herein,
in the Franchise Agreement or as subsequently determined by the Council
and expressed by Resolution.
(c) Subordination. Any privilege claimed under any Franchise by the
Grantee in any public street or other public property shall be
subordinate to any prior lawful occupancy of the Streets or other
public property.
(d) Transfer. (1) Any Franchise granted hereunder shall be a
privilege to be held in personal trust by the original Grantee.
Neither the Franchise, nor any rights or obligations of the Grantee
pursuant to the franchise or cable system shall be transferred in part
or as a whole, by assignment, trust, mortgage, lease, subSease, pledge
5
or other hypothecation or by forced or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise, nor shall the title
to the Franchise or System, either legal or equitable, or any right or
interest therein, pass to or vest in any person or entity, nor shall
a change in control twenty-five percent (25%) or more of Grantee occur,
either by act of the Grantee, by operation of law or otherwise, in each
case, without the prior consent of the Council expressed by Resolution,
and then only under such conditions as may therein be prescribed. The
consent of the Council may not be unreasonably withheld; provided,
however, that any proposed assignee must demonstrate complete financial
and technical ability to operate a Franchise hereunder and must agree
to comply with all provisions of this Ordinance, the Franchise
Agreement, and any other preexisting agreements between the City and
the Grantee.
(2) Nothing contained in this Section (d) shall be deemed to prohibit
or require City approval of any assignment, pledge, lease, sublease,
mortgage, or other transfer or hypothecation of all or any part of the
stock of (or other evidence of ownership in) or assets (not including
the franchise) of the Company or the System, or any right or interest
therein, for securing an indebtedness, provided that each such
assignment, pledge, lease sublease, mortgage, or other transfer or
hypothecation shall be subject to the rights of the City pursuant to
this Agreement, or applicable law, and such rights of the City shall
be recognized in each such hypothecation agreement between Grantee and
any such creditor.
(3) The restrictions contained in this Section (d) shall not apply
to any transfer or hypothecation, assignment, or other disposition,
between or among Persons in common control with the Grantee, provided
that in such instances or any other instances where any change in the
ownership of Grantee is to be undertaken, prior written notice of any
such change shall be provided to the City.
(4) A Grantee shall file written notice with the City as soon as it
acquires knowledge of any impending transaction or other event for
which the consent of the City is required under this Section (d). The
notice shall state the name and address of the interested parties in
the transaction, and enclose a copy of any executed agreement between
the interested parties, as well as a Five Thousand Dolla~ ($5,000.00)
transfer fee payable to the City. This fee shall not be in lieu of the
Franchise Fee. Furthermore, the Grantee shall agree to provide any and
all information and documentation as may be reasonably requested by the
City in connection with its review of any proposed transfer. By its
acceptance of the Franchise, the Grantee agrees that any such
acquisition occurring without prior approval of the City shall
constitute a material violation of the Franchise by the Grantee,
entitling the City to terminate the Franchise for cause.
(5) Any such transfer shall be subject and subordinate to the rights
of the City under any Franchise Agreement granted hereunder, and the
transferee shall acknowledge in writing such subordination and
agreement to comply with and be bound by all of the terms, conditions,
and requirements of the Franchise Agreement, as well as this Ordinance.
(e) Time of the Essence. Time shall be of the essence of any
Franchise. The Grantee shall not be relieved of its Obligation to
comply promptly with any of the provisions of this Ordinance or by any
failure of the city to enforce prompt compliance.
(f) City Right to Transfer. Any right or power in, or duty
impressed upon, any officer, employee, department, or board of the City
may be transferred at any time by the City to any other officer,
employee, department, or board of the City.
(g) Legal Compliance. The Grantee shall comply with all federal,
state, City and local laws as now or hereafter enacted during the term
of any Franchise. Copies of all petitions and applications concerning
the Franchise submitted by the Grantee to the Federal Communication
Commission, Securities and Exchange Commission or any other federal or
state regulatory commission or agency having appropriate jurisdiction
shall also be contemporaneously submitted to the City Clerk.
(h) Pole Attachments. Franchises granted under this Ordinance shall
not relieve the Grantee of any obligation involved in obtaining pole
space from any department of the City, utility company, or from others
maintaining utility poles.
(i) Private Property. The granting of a Franchise ishall not be
construed as permission or authority to enter on, occupy, or otherwise
use any private property without the express consent of the owner or
agent in possession thereof.
SECTION 4-25.070 RIGHTS RESERVED TO THE CITY.
(a) Eminent Domain. Subject to state and federal law, nothing
herein shall be deemed or constructed to impair or affect, in any way
or 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
eminent domain, at fair market value as provided by law. 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) Reservation of Rights. 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 establ~ished, except
as may limit the Grantee's contractual rights under this ~rdinance and
the Franchise Agreement or Grantee's constitutional rights.
Notwithstanding anything in this Ordinance, the City reserves the
right to regulate rates, fees and all charges made by Grantee upon
subscribers to the fullest extent permitted by Federal Law as of the
date of enactment and at all times subsequent thereto. In exercising
its rate regulation authority the City will:
(1) regulate in accordance with the rules established by the Federal
Communications Commission.
(2) provide for public participation in the rate making process
through the conduct of a noticed public hearing before the City Council
prior to any decision on rates.
(c) Additional Franchises. Neither the granting of any Franchise
hereunder nor any of the provisions contained herein shal~ be construed
to prevent the City from granting any identical Franchis~ to any other
person or entity. :
(d) Rules and Requlations. The City may, from time to time, in the
exercise of its police powers, adopt or issue such reasonable rules,
regulations, orders or other directives governing Grantee under this
Ordinance and require full and timely compliance on the part of the
Grantee, provided such rules, regulations, orders and directives are
equally imposed on all Persons operating Cable Systems in the City, and
are reasonably necessary or appropriate in furtherance of the purposes
of this Ordinance.
(e) Governmental Power. 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) Use of Poles. The City shall have the right, during the life of
any Franchise, to install and maintain free of charge upon the poles
of the Grantee any wire and pole fixtures necessary for police and fire
alarm systems, on the condition that such wire and pole fixtures do not
interfere with the operations of the Cable System of the Grantee. The
City shall assume, indemnify, defend and hold Grantee harmless from and
against all claims and liability for damages caused or 6ccasioned by
the construction and maintenance of such police and fire ~larmsystems.
SECTION 4-25.080 PERMITS, INSTALLATION AND SERVICE.
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 without limitation, 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 cable systems, or
their associated microwave transmission facilities.
SECTION 4-25.090 DESIGN AND CONSTRUCTION PROVISIONS.
(a) System Desiqn. The Cable System shall be constructed in
accordance with the design requirements, if any, contained in the
Franchise Agreement.
(b) Geoqraphical Coveraqe. Subject to the density requirements of
Section (h), Grantee shall design and construct the Cable System and
any modifications and additions thereto in such a manner]so as within
a reasonably short period of time to pass by every single dwelling
unit, multiple dwelling unit, business establishment, public school,
hospital, library, law enforcement station, fire station and all other
buildings owned or controlled by the City within the Franchise
Territory. Such service shall be provided to Subscribers in accordance
with the schedules in the Franchise Agreement and line extension
policies specified in Subsection (h) herein. Cable System construction
and provision of service shall be non-discriminatory, and shall not
delay or defer service to any section of the Franchise Territory on the
grounds of economic preference of the Grantee.
(c) System Construction Schedule.
(1) Grantee shall comply with the requirements of the Cable System
construction schedule, if any, contained in the Franchise Agreement and
any amendments thereto.
(2) Construction of the Cable System and service need n6t be provided
where power and telephone utility services are not available.
(3) In the Franchise Agreement, Grantee shall provide a detailed
construction plan indicating progress schedule, area construction maps,
test plan, and dates for offering service. In addition, Grantee shall
provide to Grantor an update of this information for Grantor on a
monthly basis, showing specifically whether schedules are being met and
the reasons for any delay.
(4) Failure to begin construction within six (6) months and complete
construction within eighteen (18) months after award of the Franchise
shall each be grounds for immediate Franchise termination, at the
option of the City.
(d) New Development Underqroundinq. In cases of new construction
or property development where utilities are to be placed underground,
the developer or property owner shall give Grantee reasonable notice
of the particular date on which open trenching will be available for
Grantee's installation of conduit, pedestals, vaults, and other
equipment required to provide service. Grantee shall. also timely
provide specifications to the developer and property owner as needed
for trenching. Costs of trenching, installing conduit, and obtaining
easements required to bring service to any development shall be
apportioned between Grantee, utility service providers, and the
property owner as they may agree among themselves.
(e) Underqroundinq at Multiple-Dwellinq Units. In cases of utility
services delivered aerially to multiple dwelling units, Grantee shall
make every effort to minimize the number of individual aerial drop
cables, giving preference to undergrounding of multiple drop cables
between the pole and dwelling unit.
(f) Additional Underqrounding. In those areas and portions of the
City where the transmission or distribution facilities of both the
public utility providing telephone service and those of the utility
providing electric service are already placed or to be placed
underground, subject to Section 4-25.090(d) above, the Grantee shall
likewise construct, operate and maintain all of its transmission and
distribution facilities underground. For the purposes of this
9
subsection, "underground" shall include a partial underfround system,
e.g., streamlining. Amplifiers and other equipment 'in Grantee's
transmission and distribution lines, may be placed in appropriate
housings upon the surface of the ground if approved by the City
Engineer. The City shall not in any manner be responsible for any
costs or liabilities incurred by Grantee in placing Grantee's
facilities underground.
(g) Service Connections
(1) The Grantee shall extend cable service to all premises located
in the service area served by the Grantee's energized distribution
cable which requires only the connection of a standard drop or tap to
make such service available, including those premises serviced by
underground utilities, at a standard rate if the owner or occupant of
the premises requests such service.
(2) If the service connection requires no more than a one hundred
fifty foot (150') aerial drop line, the Grantee shall provide
connection to its service at no charge for the initial one hundred
fifty feet (150'), other than the Grantee's standard installation fee.
The Grantee may charge any new subscriber for the Grantee'Is actual cost
of all labor, equipment and materials for (1) that portion of any new
aerial service connection in excess of one hundred fifty~ feet (150'),
(2) the length of any new service connection installed underground in
excess of the cost of a 150' aerial drop line and (3) the entire length
of any new service connection to remote or relatively inaccessible
subscribers. Prior to installing any service connection for which, in
accordance with the provisions of Section 4-25.090(g)(1) above, the
Grantee will charge a potential subscriber on a time and materials
basis, the Grantee must present the prospective subscriber and the City
Engineer with a written statement of its estimated costs for the
service connection.
(h) Line Extensions. The Grantee shall be required to extend
energized trunk cable from any existing terminus of the cable system
to any area within the franchise territory having a density of at least
twenty (20) existing and completed dwelling units within any one half
(1/2) linear mile of uninterrupted public right of way or public
utility easement, provided that the dwelling unit nearest to the
existing terminus of the cable system in such one half (1/2) linear
mile of uninterrupted public right of way or public utility easement
area is within one-half (1/2) linear mile of uninterrupted public right
of way or public utility easement of the existing terminu~ of the cable
system. within thirty (30) days after Grantee has 6onfirmed the
existence of the density provided above, Grantee shall proceed with due
diligence to obtain all necessary permits and authorizations which are
required for the extension of such trunk cable, including any utility
joint use agreements and any permits, licenses and authorizations to
be granted by duly constituted regulatory agencies having jurisdiction
over the operation of the Cable System. Within thirty (30) days
following completion of such line extension construction, the Grantee
shall proceed to render service, provided, however, that any such
subscriber requesting service from the extension of the energized trunk
cable shall be subject to the provisions of Subsection (g) herein with
10
regard to costs of a tap or drop in excess of one hundred fifty feet
(150').
(i) Periodic Evaluation. The field of cable communications is
a relatively new and rapidly changing one which may see many
regulatory, technical, financial, marketing and legal changes during
'the term of this Franchise. Therefore, in order to ~rovide for a
maximum degree of flexibility in this Franchise, and tolhelp achieve
a continued- advanced and modern System, the following evaluation
provisions shall apply:
(1) The City may require evaluation sessions at any time during the
term of this Franchise, upon thirty days written notice to grantee,
provided, however, there shall not be more than one review session
during any five (5) year period.
(2) Topics which may be discussed at any evaluation session may
include, but are not limited to, application of new technologies,
system performance, programming offered, access channels, facilities
and support, municipal uses of cable, customer complaints, amendments
to this Franchise, judicial rulings, FCC rulings, line extension
policies and any other topics the City and Grantee deem relevant.
(3) As a result of a periodic review or evaluation session, the City
and Grantee may, in good faith, develop such changes and modifications
to the terms and conditions of the Franchise, as are mutually agreed
upon and which are both economically and technically feasible.
SECTION 4-25.100 LOCATION OF PROPERTY OF GRANTEE.
(a) Approval of City. Any poles, wires, cable lines~ conduits or
other properties of the Grantee to be constructed or installed in
Streets, shall be so constructed or installed only at such locations
and in such manner as shall be approved by the City. Further, the
Grantee shall install or erect any facilities or apparatus in or on
other public property, places or right-of-way, or within any privately
owned area within the City which has not yet become a public street but
is designated or delineated as a proposed public street on any
tentative subdivision map approved by the city, except those installed
or erected upon public utility facilities now existing only after
obtaining the prior written approval of the City and the owner of any
applicable privately owned property.
(b) Interference. All transmission and distribution structures,
lines and equipment erected by the Grantee within the City shall be so
located as to cause minimum interference with the proper use of
streets, alleys, and other public ways and places, and to cause minimum
interference with the rights and reasonable convenience of property
owners who join any of the said streets, alleys or other public ways
and places. In the case of disturbance of any street, sidewalk, alley,
public way, or paved area, the Grantee shall, at its ~own cost and
expense and in a manner approved by the City Engineer replace and
restore such street, sidewalk, alley, public way, landscaped or paved
area in as good a condition as before the work involving such
disturbance was done. Any such work shall be completed as soon as is
11
practicable.
SECTION 4-25.110 REMOVAL AND ABANDONMENT OF PROPERTY OF GRANTEE.
(a) Abandonment. If use of ,any part of the Cable System is
discontinued for any reason for a period of ninety (90) consecutive
days or if such system or property has been installed in any street or
public place without complying with the requirements of the Franchise
Agreement or this Ordinance, or the Franchise has been terminated,
canceled or has expired, then the Grantee shall promptly, upon being
given thirty (30) days written notice from the City, promptly remove
from the streets or public places within one hundred eighty (180) days
of receiving such notice to remove all such property and Voles of such
Cable System or, at the option of the City, such property may be
abandoned in place. Upon removal of the System, the Grantee shall
promptly restore the street or other area from which such' property has
been removed in accordance with Section 4-25.140(m).
(b) Property Abandoned in Place. Any property of the Grantee to be
abandoned in place shall be abandoned in such manner as the City shall
prescribe. Upon permanent abandonment of the property of the Grantee
in place, the property shall become that of the City and no longer be
the obligation of the Grantee. The Grantee shall submit to the City
an instrument in writing, to be approved by the City Attorney,
transferring to the City the ownership of such property.
SECTION 4-25.120 CHANGES REQUIRED BY PUBLIC IMPROVEMENTS.
The Grantee shall protect, support, temporarily disconnect, relocate
in the same street or other public place or remove from the street or
other public place, any property of the Grantee when required by the
City by reason of traffic conditions, public safety, street vacation,
freeway and street construction, change or establishment of street
grade, installation of sewers, drains, water pipes, power lines, signal
lines and tracks or other type of structures or improvements by public
agencies at the expense of Grantee. However, the Grante~ shall in all
such cases have the privileges and be subject to the obligations to
abandon any property of the Grantee in place, as provided in Section
4-25.110 above.
SECTION 4-25.130 FAILURE TO PERFORM STREET WORK.
Upon failure of the Grantee to commence, pursue, or complete any work
required by law, this Ordinance or by the Franchise Agreement to be
done in any Street or other public place, within the time prescribed,
the City may, at its option, cause such work to be done and the Grantee
shall pay to the City one and one-half times the cost thereof in the
itemized amounts reported by the City Engineer to the Grantee within
thirty (30) days after receipt of such itemized report.
SECTION 4-25.140 LIABILITY, INDEMNIFICATION AND TERMINATION.
(a) Indemnification. With the exception of the extent of any actual
or comparative negligence on the part of the City, its officers,
employees and agents, the Grantee shall indemnify and save harmless and
12
defend the City, its Officers and employees from and against any and
all injury, loss, damage, costs, expenses, claims, attorneys' fees,
demands, actions, suits, judgments, or other proceedings, or liability,
including but not limited to any liability for inverse condemnation or
for failure to secure consents for programs delivered by the Grantee's
system, arising out of or in any way connected with the grant, exercise
or enjoyment of Grantee's franchise. These damages or penalties shall
include, without limitation, damages arising out of copyright
infringements and all other damages arising out of the installation,
operation, or maintenance of the Cable System, whether or not any act
or omission complained of is authorized, allowed, or prohibited by the
Franchise.
(b) Defense Costs. The Grantee shall pay and by its acceptance of
a Franchise specifically agrees that it will pay all expenses incurred
by the City in defending itself under Section (a) above. These
expenses shall include all out-of-pocket expenses, such as reasonable
attorney fees, and shall also include the reasonable value of any
services rendered by the City Attorney or his assistants or any
employees of the City.
(c) General Liability Insurance. The Grantee shall maintain, and
by its acceptance of a Franchise specifically agrees that! it currently
possesses and will maintain throughout the term of the Franchise a
general comprehensive liability insurance policy in protection of the
City, its Officers, Boards, Commissions, agents and employees, in a
company approved by the City and in a form satisfactory to the City
naming the City, its Officers, Boards Commissions, agents, and
employees as additional insureds and protecting the City and all of
such persons named above against liability for loss or damage for
personal injury, death or property damage, occasioned by the operations
of Grantee under this Franchise, in the amounts of: (a) Two Million
Dollars ($2,000,000.00) for bodily injury or death to any one person,
within the limit, however; of Two Million Dollars ($2,000,000.00) for
bodily injury or death resulting from any one accident, (b) Two Million
Dollars ($2,000,000.00) for property damage resulting from any one
occurrence; and (c) Two Million Dollars ($2,000,000.00) for Workers
Compensation and Employer's Liability.
(d) General Liability Insurance Policy. The insurance policy
mentioned in Section (c) above shall contain an endorsement stating
that the policy is extended to cover the liability assumed by the
Grantee under the terms of the Franchise, and shall contain an
endorsement as follows:
"It is hereby understood and agreed that this policy may not be
canceled nor the amount of any coverage thereof reduced until thirty
(30) days after receipt by the City Clerk by registered mail, of a
written notice of such proposed cancellation or reduction in
coverage."
Additionally, Grantee agrees to comply with all reasonable insurance
requirements imposed by the City and agrees that the amount of the
insurance required hereunder may be reasonably amended not more often
than every two (2) years by the City to take into account inflation and
13
considerations of risk and potential liability.
(e) Security Account and Completion Bond. No later than the
effective date of any Franchise granted hereunder, the Grantee shall
deposit into an interest-bearing bank account (Security Account), and
establish and maintain, throughout the term of the franchise within the
City, the sum of Ten Thousand Dollars ($10,000.00) as security for the
faithful performance by the Grantee of specified provisions of the
Franchise Agreement, and compliance with all orders, permits and
directions of any agency of the City having jurisdiction over the acts
of the Grantee. The Security Account shall be in the form of either
a cash deposit made with the City or an irrevocable letter of credit
subject to approval by the City Attorney as to the content, form, and
identity of the credit provider. Interest shall accrue to the credit
of the Grantee.
In addition, Grantee shall post with the City a bond or bonds,
subject to approval by the City Attorney as to form, content and
identity of surety, in the amount of One Hundred Ten Percent (110%) of
the cost to complete any required construction of the Cable System
("Completion Bond"). Said Security Account and Completion Bond shall
be assessed by the City for the following purposes:
(1) Payment of Franchise Fees which the Grantee has failed to pay to
the City for any Franchise hereunder;
(2) Reimbursement of costs incurred by the City to correct franchise
violations not corrected by the Grantee after written notice, and after
a reasonable specified time to correct such violations;/
(3) Payment of liquidated damages assessed against the Grantee due
to default or violation of this Ordinance or the Franchise Agreement
requirements;
(4) Compensation and costs of completing or repairing the Cable
System;
(5) Compensation and costs of removal of any abandoned property
abandoned by Grantee except such property which comes into the
ownership of the City under Section 4-25.110(b).
(6) Repair of damage to streets caused by Grantee or any officer,
agent, employee, contractor or subcontractor retained by Grantee;
(7) Other public or private improvements made necessary as a result
of the failure of Grantee to comply with any provisions of any
Franchise Agreement granted hereunder.
Within fifteen (15) calendar days after notice is "
mailed to the
Grantee that any amount has been withdrawn by the City from the
Security Account pursuant to this Section, the Grantee ~hall deposit
in the Security Account such sum as necessary to restor~ the account
to its required amount, including any interest which may have accrued
and been credited to the account.
14
(f) Evidence. The Security Account passbook, checks, and a
certificate of insurance evidencing the insurance policy mentioned in
Section (e) above and written evidence of payment of required premiums,
shall be filed before the effective date of any franchise granted
hereunder and maintained with the City Clerk throughout the term of the
Franchise.
(g) No Excuse. Except in cases of war, civil unrest, natural
disasters or other acts of God, neither the provisions of this
Ordinance, nor any bond accepted by the City pursuant hereto, 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 Franchise Agreement hereunder or for damages, either
to the full amount of the Security Account or otherwise. I
(h) Sanctions. Subject to the provisions of this Ordinance and any
Franchise Agreement granted hereunder, the City shall be empowered,
following:
(1) written notice to Grantee;
(2) a sixty (60) day opportunity to cure commencing upon the mailing
of such notice;
(3) a public hearing before the Council;
(4) a majority vote of the Council to impose a Sanction; and
(5) the issuance by the City of its written findings of fact and
conclusions of law, (all in that order), to impose the following
sanctions:
(i) The termination of a franchise in whole or in part as provided
in Sections (k) and (1).
co ~
(ii) For failure by the Grantee to initially mpl te the Cable
System, upgrade or rebuild the Cable System by the date~set forth in
the Franchise Agreement, the Grantee shall pay Five Hundred Dollars
($500.00) per day for each day that the deficiency continues.
(iii) For failure by the Grantee to provide extension of service in
accordance with the franchise agreement unless the City specifically
approves a delay due to the occurrence of conditions beyond Grantee's
control, Grantee shall pay to the City Two Hundred Fifty Dollars
($250.00) per day for each day that the deficiency continues.
(iv) For failure by the Grantee to provide the City with a copy of
the Financial Statement.required by Section 4-25.140(e), a copy of the
Surety Bond required by Section 4-25.110(d), a copy of the certificate
of insurance required by Section 4-25.140(d), Complaint logs, maps, and
permits, Grantee shall pay to the City One Hundred Dollars ($100.00)
per day for each day that such violation continues.
(v) For failure by the Grantee to comply with quality of service or
operation or technical standards following the City's written notice
15
directing Grantee to make improvements, Grantee shall pay to the City
Five Hundred Dollars ($500.00) per day for each day the violations
continue.
(vi) For failure by Grantee to test, analyze, and report on the
performance of the system following a request by the City pursuant to
the Franchise, Grantee shall pay to the City One Hundred Dollars
($100.00) per day for each day that such noncompliance continues.
(vii) For any other material violation of this Chapter, Grantee
shall pay to the City Two Hundred Dollars ($200.00) per day for each
day the violation continues.
(i) Credits to Subscribers.
Except as may be otherwise provided in any Franchise Agreement except
for acts beyond the reasonable control of Grantee or where prior
approval has been obtained from the City, in the event th'at service to
any individual subscriber or user is interrupted (and provided a claim
therefor shall have been made to Grantee's local office within thirty
(30) days of a subscriber's receipt of a service bill), a brantee shall
credit a percentage of the total monthly fees to affecte~ subscribers
or users as follows:
(1) Twenty-four (24) consecutive hours: five percent (5%) rebate of
the monthly fees:
(2) Twenty-four (24) to forty-eight (48) consecutive hours: fifteen
percent (15%) rebate of the monthly fees:
(3) Forty-eight (48) to seventy-two (72) consecutive hours: twenty-
five percent (25%) rebate of the monthly fees.
(4) More than seventy-two (72) consecutive hours to one hundred sixty
eight (168) hours: fifty percent (50%) rebate of the monthly fees.
(5) More than one hundred sixty eight (168) hours: one hundred
percent (100%) rebate of the monthly fees.
(j) Determination of Riqht to Credit.
Subsequent to first making a claim with Grantee as provided in
Section 4-25.140(i), above, and after' ten (10) days prior written
notice to Grantee and opportunity to be heard, the C~ity shall be
empowered to determine whether the individual subscriber is entitled
to a credit in all cases where the Grantee denies such. If the City
determines that a subscriber is entitled to a credit, it shall notify
Grantee in writing (by delivery to Grantee's local office or by regular
mail, neither certified nor registered) of the name of the subscriber,
the amount of the credit and the reason therefor. A copy thereof shall
be sent to the subscriber.
(k) Termination of Franchise for Cause.
In addition to all other rights and powers of the City, the City
16
reserves the right to terminate any franchise granted hereunder and all
rights and privileges of a franchisee hereunder in the event that any
Grantee:
(1) Violates any material provision of this Ordinance or any rule,
order, or determination of the City made pursuant hereto, provided
however, a sanction for such violation has been finally imposed on at
least one prior occasion within one (1) year of final determination of
the sanction and provided, further, that the City has found that said
violation is material to this Ordinance or the Franchise Agreement
awarded pursuant to this Ordinance;
(2) Becomes insolvent, unable or unwilling to pay its debts, or is
adjudged a bankrupt or is subjected to the appointment of a receiver;
(3) Fails to begin or complete system construction or extension as
provided in this Ordinance or a franchise granted thereunder; or
(4) Misrepresents any material fact or willfully misrepresents any
material fact in any reports required to be filed pursuant to this
Chapter.
(1) Termination Procedures.
No such termination shall take place unless and until the following
procedures have been followed:
The City Council shall provide Grantee with written ngtice of said
violation by certified mail. Said notice shall specify the basis for
City's determination and shall specify the immediate action required
of Grantee to correct said material violation.
If Grantee has not begun substantive steps to cure the violation
after a period of thirty (30) days following the certified mailing of
written notification from the City Council, the City may place request
for termination of the franchise on a regularly scheduled City Council
meeting agenda. The City Council shall cause to be served upon the
Grantee by certified mail at least ten (10) days prior to the day of
such City Council meeting, a written notice of the intent of the City
Council to request such a termination of the franchise and shall state
the time and place of the meeting.
After providing Grantee with notice and opportunity to be heard and
in the event the City Council determines that Grantee, by its acts or
omissions, has given the City cause for termination of the franchise,
the City Council shall make written demand upon Grantee for full
compliance. If the material violation is not cured to the reasonable
satisfaction of the City Council within thirty (30) days or such
additional time as the City Council may allow, then the~City Council
shall after providing written notice to Grantee, give Grantee a final
opportunity to be heard at a public hearing of the City~Council. In
the event a majority of the C~ty Council finds that a preponderance of
the evidence exists showing that Grantee has violated the franchise,
then the City Council shall declare the franchise terminated and of no
further force or effect. The City Council shall thereupon issue
17
written findings of fact and conclusions of law which shall become the
final basis for appeal by the Grantee.
(m) Restoration of Property.
In the event that the City requires Grantee to remove its property
from any portion of the service area, Grantee shall, in an expeditious
manner, at its own expense and at the direction
of the City, restore any property, public or private, to substantially
the same condition in which it existed prior to the' erection or
construction of the system, including any improvements~made to such
property subsequent to the construction of the system.
SECTION 4-25.150 INSPECTION OF PROPERTY AND RECORDS.
(a) Inspection. Upon written request made seven (7) days in advance,
during normal business hours, the Grantee shall permit any duly
authorized representative of the City to examine the Cable System 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 records kept or maintained by the Grantee or
under its control which pertain to the operation of the Cable System
in the City. If any such maps or records are not kept in the City, or
upon reasonable request are not 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) Reports. The Grantee shall prepare and furnish to the City at
the times and in the form prescribed by the City such reports with
respect to its operations, affairs, transactions or property, as may
be reasonably necessary or appropriate concerning both the cost to
Grantee and the value to the City to the performance 6f any of the
rights, functions or duties of the City or any of it~ officers in
connection with the Franchise. The costs
of furnishing such reports shall be borne by the Grantee~.
(c) Location of Equipment. The Grantee shall at all times make
and keep in the City full and complete plans and records showing the
exact location of all Cable System equipment installed or in use in
streets and other public places in the City. The Grantee shall file
with the City on or before the first anniversary date of the Franchise
grant or renewal, as the case may be, a current map or set of maps
drawn to scale, showing all Cable System equipment installed and in
place in Streets and other public places of the City. Grantee shall
also file, on an annual basis thereafter, any material revisions to
said map or maps showing any changes to the Cable system.
SECTION 4-25.160 OPERATIONAL STANDARDS, EVALUATION SESSIONS.
The Cable System shall meet all technical and performance standards
provided under Federal Law. If requested by either party not later
than the anniversary dates stated below, within one hundred twenty
(120) calendar days following ~he third, sixth, ninth' and twelfth
years' (if applicable) anniversary dates following the d~te of filing
18
of the certificate of acceptance of the franchise, the Grantee and the
City shall conduct evaluation sessions for the purpose of evaluating
the Grantee's performance in meeting the requirements of this Ordinance
and the Franchise Agreement and for the purpose of evaluating the
efficiency and effectiveness of the Cable System to meet community
needs and consumer demand.
The evaluation sessions shall be conducted during public hearings
held by the City Council. Any and all technical and performance
requirements of this Ordinance and the Franchise Agreement may be
reviewed and evaluated. All sections in this Ordinance are subject to
revision so long as the revision is in accordance with State and
Federal law, as amended from timeto time. No substantive change in
the Franchise Agreement shall occur without the consent of the Grantee
unless the change is required to comply with Federal or State Law.
Topics discussed at such sessions may include, but shall not be limited
to, rate structures, completion of the System, formulae used in System
extension, application of new technologies, System technical
performance, maintenance procedures, services provided, upgrades and
rebuilds of the System, new services or additional transmission
capacity, subscriber preferences for categories of programming,
privacy, customer complaints and informal dispute resolution
procedures, customer service rules and penalty schedule, illegal
connections, office and field service, community programming facilities
and services, Public, Educational, and Governmental access facilities
and programming, public and school building connections,
interconnection, emergency override, affirmative action training and
employment and enterprise programs, Grantee or city rules and
regulations; and shall include any topic relating to technical and
performance requirements of the Ordinance and Franchise Agreement which
the Grantee, City or members of the public request to be discussed.
This Ordinance and any franchise agreement made hereunder shall be
modified to comply with all modifications required by Federal and State
law as applicable.
SECTION 4-25.170 CUSTOMER SERVICE STANDARDS.
(a) Federal Communications Commission National Standards Grantee
shall establish procedures for compliance with Federal C~mmunications
Commission customer service standards effective July 1,~1993, as set
forth in MM Docket No. 92-263 and shall transmit Mthe proposed
procedures to City in writing for review and approval within 30 days
of the date of execution of any franchise agreement. ~hould any of
those standards be amended, Grantee shall file an amended written
proposal on procedures to implement the amended standards within 30
days of their effective date.
(b) Local Standards In addition to the standards contained in
Section 4-25.170(a) Grantee shall establish procedures for compliance
with the following Local Standards. Where these standards are in
conflict with the standards contained in Section 4-25.170(a), these
standards shall apply. Grantee shall transmit its proposed procedures
to comply with these standards to the City in writing for review and
approval within 30 days of the date of execution of any franchise
19
agreement.
(1) Office and repair services are to be open and available Monday
through Friday from 7 a.m. to 7 p.m. and Saturday fro~ 9 a.m. to 5
p.m.
(2) Operator to provide services in such a manner as to provide
reasonable accommodation as defined by the ADA.
(3) Service call appointments not kept as scheduled sh'all result in
a waiver of any service call fees, or charges, unless the Grantee
contacts the customer at least 24 hours in advance to reschedule.
(4) All requests for service downgrades or disconnects shall be
processed and completed within 2 business days of request and charges
to customers for the service discontinued or disconnected shall cease
at that time. Customers shall surrender disconnected equipment to
the Grantee within seven business days.
(5) The Grantee shall maintain a publicly listed telephone with a
toll-free number and sufficient lines, and be so operated that
complaints and requests for repairs, billing or adjustments shall be
received on a twenty-four (24) hour basis, seven (7) days per week.
Grantee shall prominently display in each monthly bill such telephone
number for subscriber calls.
Any service complaints from a subscriber shall b& acted upon
as soon as possible consistent with the basis of the ! complaint.
Loss of cable service will be acted upon as soon as possible but
within twenty-four (24) hours. Grantee shall have available repair
and service technical personnel capable of responding to system
outages in cable service on a twenty- four (24) hour'basis, seven
(7) days per week, including holidays.
(6) Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the
shortest time possible. Maintenance and interruption of service
shall occur, to the extent possible, during periods of minimum
viewing hours.
(7) Grantee shall prepare and provide to the City on a monthly
basis, within thirty (30) days following the end of each month, a
monthly summary report on all complaints received by Grantee, the
resolution of all trouble calls, service outages, subscription data
analyses, disconnections, field services performed, telephone service
call details, and any other information deemed relevan[ by the City.
(8) Automatic standby power for all trunks and feeders shall be
installed as provided in the grant of any new or extended franchise
agreement if such facilities have not been previously ~nstalled.
SECTION 4-25.180 MISCELLANEOUS PROVISIONS.
(a) City Clerk. When not otherwise prescribed herein, all matters
herein required to be filed with the City shall be filed with the City
20
Clerk.
(b) Service to Public Facilities/PEG. Grantee shall, without
charge, within sixty (60) days of the grant of any franchise hereunder
fully wire with one outlet for existing buildings and up to three
outlets for each two thousand (2,000) square feet of any newly
constructed public buildings and to provide all ~legally and
contractually allowable subscriber services of its system, to all
public and nonprofit private schools, City Police and F~re Stations,
City Recreation Centers, library, City Hall, and such other buildings
·
owned or controlled by the City, which shall from tlm~ to time be
designated by the City, provided that such buildings shall be located
within the Franchise Territory. Additionally, Grantee shall as a
condition of any grant of a franchise hereunder provide a variety of
facilities, channel(s) on the system, and equipment for Public,
Educational and Governmental ("PEG") purposes as detailed in the
Franchise Agreement.
(c) EmerqencV Service. In the case of any emergency or disaster, the
Grantee shall upon request of the City Manager, make available its
facilities to the City for emergency use during any emergency or
disaster period. The Grantee shall, upon the City's request, provide
advance orientation and guidance regarding the use of its facilities
in an emergency or disaster within sixty (60) days of the Effective
Date of any franchise granted hereunder.
(d) Refusal of Service. Subject to the line extension provisions in
the Franchise Agreement, no person, firm, or corporation in the
.,
Franchise Territory shall be arbitrarily refused service; provided,
however, that the Grantee shall not be required to p vi~e service to
ro
any Subscriber who does not pay the applicable connection fee or
monthly service charge, or who does not pay at the time olf request for
service any amount legally owed to grantee for connection or monthly
service.
(e) Subscription Aqreement. Before Grantee shall provi'de service to
any subscriber, Grantee shall obtain a signed contract from the
Subscriber containing a provision substantially as follows:
Subscriber understands that in providing service Grantee is making use
of public rights-of-way within the City of Saratoga, ~nd that the
continued use of these public rights-of-way is in no way guaranteed.
If 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. Subscriber shall agree he will make no claim
nor undertake any action against the City, its officers, its employees,
or Grantee if a service to be provided by Grantee hereunder is
interrupted or discontinued because the continued use of such rights-
of-way is denied to Grantee for any reason.
21
The form of Grantee's contract with its Subscribers shall be subject
to approval of the City with respect to the inclusion of this
provision.
(f) Riqht of Grantee. Should Grantee becomel dissatisfied with any
material decision or ruling of the City pertaining to any matter in
this Ordinance, the Franchise Agreement or other cable communications
matters, Grantee may pursue such other remedies as are available,
including the bringing of action in any court of competent jurisdiction
for breach of contract and damages.
SECTION 4-25.190 USE OF UTILITY POLES & FACILITIES.
in ,
When any portion of the Cable System is to be ' stalled on public
utility poles and facilities, certified copies of the agreements for
such joint use of poles and facilities shall be immediately filed with
the City Clerk. Existing utility poles shall be used whenever
possible.
SECTION 4-25.200 APPLICATION FOR FRANCHISE.
(a) Procedures. Application for or any grant of a Franchise
hereunder or any renewal or extension thereof shall be in a writing
filed with the City, accompanied by a check in the amount of Fifteen
Thousand Dollars ($15,000.00) payable to the City to be used in support
of the use of public, educational or governmental access facilities
including capital costs. The City may, in a Franchise Agreement
hereunder, provide for payment of the fee in installments. Such fee
shall be within the exclusion to the term "Franchise Fee" as defined
in 17 U.S.C. Section 542(g)(2) and shall not be deemed to be part of
the Franchise Fee obligations of Grantee pursuant t0 Section 4-
25.050(a) hereof. Application for a franchise hereunder shall contain,
at option of the City, the following information: ~
(1) 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 its directors, executive officers,
major stockholders, and the name and addresses of parent and subsidiary
companies.
(2) A statement and description of the Cable 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
22
future poles or other facilities of other public utilitiea will be used
for such system.
_. (3) A description, in detail, of the Streets, publi~ places and
proposed public streets within which applicant proposes or seeks
authority to construct, install or maintain any cable equipment or
facilities; a detailed description of the equipment or facilities
proposed to be constructed, installed or maintained therein; and the
proposed specific location thereof.
(4) A map specifically showing and delineating the existing and
proposed service area or areas within which applicant proposes to
provide Cable Services and for which a Franchise is requested.
(5) A statement or schedule setting forth the number of channels and
all of the television or radio stations proposed to be received,
transmitted, conducted, relayed, or otherwise conveyed over the Cable
System.
Clt Ma
(6) A statement or schedule in a form approved by the '[y nager of
proposed rates and charges to subscribers for inst!allation and
services, and a copy of proposed subscription agreement between the
Grantee and its subscribers shall accompany the applicatkon.
(7) 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.
(8) 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 cable operation. If a Franchise is granted to a
person, form, or corporation posing as a front or as the representative
of another person, form or corporation and such information is not
disclosed in the original application, such Franchise shall be deemed
void and or no force and effect whatsoever.
(9) A financial statement prepared by a Certified Public Accountant
or person otherwise satisfactory to the City, showin~ applicant's
financial status and his financial ability to complete th~ construction
and installation of the proposed Cable System.
(10) The City may at any time demand and applicant shall provide, such
supplementary, additional or other information as the City may deem
reasonably necessary to determine whether the requested Franchise
should be granted.
23
(b) Grant to Applicant. Upon consideration of any such application,
the Council may refuse to grant the requested Franchise or the Council
may by Resolution grant a Franchise for a Cable System to any such
applicant as may appear from said application to be in its opinion best
qualified to render proper and efficient Cable Service to television
viewers and subscribers in the City. The Council's decision in the
matter shall be final. If favorably considered, the application
.
ra
submitted shall constitute and form part of the F nchlse as granted.
SECTION 4-25.210 FRANCHISE RENEWAL.
Any Franchise granted under this. Ordinance may be renewed at the
application of the Grantee in accordance with Section 4~25,200 above
and the-Cable Act, as amended.
SECTION 4-25.220 ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE.
(a) Effective Date. No Franchise granted pursuant to the provisions
of this Ordinance shall become effective unless and until the Grantee
has executed a Franchise Agreement and a resolution accepting such
Franchise Agreement on the part of Grantor has become effective and,
in addition, unless and until all things required in this Section and
Sections 4-25.140(d) and 4-25.140(e) above are completed, all of such
things being hereby declared to be conditions precedent to the
effectiveness of any such Franchise granted hereunder. In the event
any of such things are not done and completed in the time and manner
required, the Council may declare ~he Franchise null andivoid.
(b) Filinq. Within ten (10) working days after the effe tive date of
the resolution accepting a Franchise Agreement, or withinlsuch extended
period of time as the Council in its discretion may authorize, the
Grantee shall file with the City Clerk, evidence of the Security
Account and insurance policies required by Section 4-25.140(d) above
and its agreement to be bound by and to comply with and t'o perform all
acts required of Grantee by the provisions of this Ordinance and the
Franchise Agreement.
SECTION 4-25.230 VIOLATIONS; PENALTIES.
(a) Requirement of Franchise. From and after the effective date of
this Ordinance, it shall be unlawful for any person:
(1) 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 Cable System or ~
(2) to construct, install or maintain within any Street~in the City,
24
or within any other public property of the city, or within any
privately-owned area within the City which has not become a public
street but is 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 Cable System, unless 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) Piratinq. It shall be unlawful for any person, or entity to make
any unauthorized connection, whether physically, electrically,
acoustically, inductively or otherwise, with any part of a franchised
Cable System within this City for the purpose of (a) taking or
receiving television signals, radio signals, pic~ures,i programs or
sound, or (b) enabling himself or others to receive any television
signal, radio signal, picture, program or sound, without ~ayment to the
owner of said system.
(c) Tampering. It shall be unlawful for any person, without the
consent of the owner, to wilfully tamper with, remove or injure any
cables, wires or equipment used for distribution of televi'sion signals,
radio signals, pictures, programs or sounds.
(d) Penalties. Any person wilfully violating any of the provisions
of Section 4-25.220 of this Ordinance shall be deemed guilty of a
misdemeanor and shall be subject to the penalties and relief provided
in 47 U.S.C., Subdivisions (b) and (c) of Section 553.
SECTION 4-25.240 SEVERABILITY
If any section, subsection, sentence, clause or phrase of this
Ordinance is for any reason held by a court of competent~jurisdiction
to be invalid or unconstitutional, such decision shall not affect the
validity of the remaining portions of this Ordinance. Tha City Council
of the City of Saratoga hereby
declares that it would have passed this Ordinance and each section,
subsection, sentence, clause and phrase thereof, irrespective of
the fact that one or more sections, subsections, sentences, clauses
or phrases may be held invalid or unconstitutional.
SECTION 4-25.250 EFFECTIVE DATE
This Ordinance shall be in full force and effect ~hirty days
after is passage and adoption.
The above and foregoing Ordinance was regularly introduced and
after the waiting time required by law, was thereafter passed and
adopted at a regular meting of the City Council of the City of
Saratoga held on the 15th day of SeDtember, 1993 , by the following
vote:
AYES: Council members Anderson, Burger, and Moni a
NOES: Council member Kohl er
ABSENT: Mayor Tucker
DEPUTY CITY CLEAR~
The ~bgve and faregoing is a true and correct
/
copy 'oi Or~i,~fi~ _7,/'-,2,3_ which has 'beeri
~ published ~q,,~oi'F:~!~n_ tO law.
~" ' Deputy city Cle'H~ ' Da~e- -