HomeMy WebLinkAbout04-07-1993 CITY COUNCIL AGENDASARATOGA CITY COUNCIL
EXECUTIVE SUMMARY NO. Z S y 0
MEETING DATE: April 7, 1993
ORIGINATING DEPT Finance Department
AGENDA ITEM.
CITY MGR.
416-,
SUBJECT: .June 30, 1992 Audited Financial Reports & Response
Recommended Motion(.$): Note and File the Comprehensive Annual
Financial Report (CAFR), the Single Audit Report, and the Internal
Control Recommendations and.response thereto for .June 30, 1992.
Report Summary: Enclosed are the above noted reports and the
City's response to the Recommendations for Improvement in Internal
Controls. The Financial Reports were reviewed by the Finance
Director and the Finance Advisory Committee at an Audit Exit
Conference held on 2/11/93.
Internal Control recommendations have been implemented as described.
in my response to the Auditors.
Fiscal ImRacts: None.
Follow Up Actions: Mail Response to Internal Control
Recommendations to Maze and Associates. Mail all reports to State
Controller's Office for their followup as the City's Single Audit
Cognizant Oversight Agency. '.
Consequences of Not Acting on the Recommended Motions: Delay in
mailing of response and.reports.
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Note: The reports are availablel.-J the Finance Department for
the public to review.
i
13777 FRUITVALE AVENUE • SAR.ATOGA, CALIFORNIA,95070 •_(408).867 3438_
p� COUNCIL MEMBERS:
Karen Anderson.
April 1 ,, ' 1993 Ann Marie Burgei
Willem Kohler
Victor Monia
Karen Tucker
Maze and Associates
•1670 Riviera Avenue.=- Suite'100
Walnut - Creek, CA_ 94596
RE:' INTERNAL CONTROL..RECOMMENDATIONS - JUNE 3:0,:1992
Recommendation "1- - - .The".City - should - document the current status of
the - loans: to the- Hakone.Foundat ion.
The _ Finance< Director • has: ,add ed all Loans- to 'the, Hakohe
Foundation to ,the monthly`, Cash' and- Investments report•. The
issue of , write -of'f . 'ver,sus repayment arid`: interest rates• of ' the
old loans'($2'3;.500) will,be.,agendi"2ed at,.the ;joint meeting of
the :City- :.Counc'il . and the Hakone Foundation.
Recommendation 2 The City should document employee authorizations
for' the' direct deposit program.,.
The Payroll- Clerk now requires'.' that any" Employee, making
Payroll._ changes - subinit a written•'re4'ues:t for the' change.. - Th;is'.
.written request is.i.ncorporated,;within the Employee's payroll
file.
' Recommendation' 3" 'The :;City should compare..the. businesses- on its
sales tax -database to 'its business license database to ensure that.`
'business license fees.; are , collected . from . all "businesses: operating -
within, City., limits.
The. .,State. of •California. reports- Sales Tax collect-ion,• .and
registration information to -the; City ,monthly in the form of an , ,'
ASCII file - onf, diskette.- These.. files are now-'being., imported - '
` into;a.: Paradox Database format''for .comparison, with the City's. .
Business License Database. :This process was implemented with
-the Board of Equalization "s reporting for 1- 0,/15 - ,11/15/92. We
are identify in -
y q' .newly registered Businesses,: as . well as
businesses' which, have- operated Without ',Biisiness Licenses in'
the- part-.' This :is . a `time- consuming process but' it should net
additional-'reve'nues for-the City.
Printed on recycled paper.
Recommendation 4 - A copy of all completed Grant applications
should be given to the Finance Department.
Grant_ applications are included on City Council Agendas and as
such are included in the Council Packet distributed to the
Finance Director. The Grant application will be copied and
given to the Accountant for accurate identification of
Revenue.
Recommendation 5 - The City should establish and maintain inventory
records for Corporation Yard small tools and fixed assets.
Fixed Assets ($250 or more) in the Corporation Yard are
subject to the same controls as all Fixed Assets. They are to
be tagged upon purchase and counted as. part of the annual
physical inventory. The Maintenance department will tag or
identify Fixed Assets under their control (including surplus
assets) and account for their movement between departments.
Small tools have not been considered part of the Fixed Asset
control system; however there is no reason to exclude them
from an inventory control process. All small tools
(including: gloves, shovels, rakes, shears, etc) will be
assigned to individuals or crews and will be inventoried
quarterly.
Recommendation 6 - The City should establish records to account for
fuel usage by City and Saratoga Fire District vehicles.
These records have been created for both gasoline and diesel
fuel.. Records for total gas taken versus total gas purchased
`ll be reconciled on a monthly basis.
Sin ely,
atricia Shriver
Finance Director
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SARATOGA CITY COUNCIL T
EXECUTIVE SUMMARY NO. a o� % AGENDA ITEM ,'R l -7
MEETING DATE: April 7, 1993 CITY MGR.
ORIGINATING DEPT. Engineering
SUBJECT: Cooperative Agreement with Santa Clara County Traffic
Authority concerning Measure A Improvements for former Paul Masson
Winery site on Saratoga Ave.
Recommended Motion(s): Move to approve the Cooperative Agreement as
corrected by staff and authorize the.City Manager to execute the
agreement on behalf of the City.
Report Summary: The attached Cooperative Agreement between the
Traffic Authority and the City memorializes the commitments made in
the Route 85 Performance Agreement for freeway related improvements
for the Paul Masson Winery site on Saratoga Ave. Essentially, the
agreement stipulates that the City will reimburse the Authority for
the costs of the soundwall along the property and for the traffic
signal on Saratoga Ave. at Vineyard Ln. (the presumed main entrance
to any development on the winery site) through the collection of
fees from the property's developer. The contract cost for these
improvements is $ 230,000 although a final cost will be provided to
the City after the project is completed. Also, the agreement
provides for interest to be paid as of the date of the agreement,
however I suggest changing the accrual date to the date the
Authority actually invoices the City. Lastly, I suggest the City
Attorney add language to the agreement to make it unmistakably
clear that the City, is in no way responsible for any of the
reimbursement regardless of how long the property sits vacant or if
a future developer successfully challenges this sort of encumbrance
of the property.
Fiscal Impacts: None direct to the City.
Follow Up Actions: The corrected agreement will be returned to the
Authority where it will be revised, approved and signed. It will
then be returned to the City for final execution.
Consequences of Not Actinq on the Recommended Motions: The
Authority will most likely cancel the installation of the traffic
signal until some type of reimbursement agreement is, reached. How
they would seek to 'get reimbursed for the soundwall which is
already built is anyone's guess.
COOPERATIVE AGREEMENT NO. 2 -SAR
ROUTE 85
CONSTRUCTION OF SOUNDWALLS AND TRAFFIC
SIGNAL AT SARATOGA AVENUE AND VINEYARD LANE
This AGREEMENT is entered into on the
day of ,
1993, by and between the SANTA CLARA COUNTY TRAFFIC AUTHORITY, a
public entity of the State of California (referred to hereinafter
as "AUTHORITY ") and the CITY OF SARATOGA, a municipal corporation
of the State of California (referred to hereinafter as "CITY ").
RECITALS
1. AUTHORITY and CITY contemplate constructing improvements
consisting of a 1290 foot soundwall along Route 85, referred
to hereinafter as "WALL ", and a traffic signal at Saratoga
Avenue and Vineyard Lane north of Route 85, referred to
hereinafter as "SIGNAL ", as part of Caltrans EA 437561
herein referred to as "PROJECT." A diagram identifying the
location of the PROJECT is attached as EXHIBIT A and is
hereby incorporated by this reference.
2. Construction of PROJECT is necessary to accommodate the
future development of the former Paul Masson Winery property
(property) located in the northeast quadrant of the Saratoga
COOP106.21 Agreement No. 2 -SAR
February 10, 1993 Page 1 of 7
Avenue and Route 85 interchange which is part of the
AUTHORITY's Measure A Program.
3. AUTHORITY will fund the costs of design and construction
administration of PROJECT.
4. CITY will guarantee to reimburse AUTHORITY the cost of
construction of PROJECT, through collection of development
fees on the property.
5. AUTHORITY is willing to provide plans, specifications and
estimates (PS &E) for PROJECT.
6. AUTHORITY is willing to provide design and construction
administration of PROJECT and construct PROJECT by contract.
Construction administration shall include pre- contract
administration (processing of PS &E through a bidding process
for advertising, bid evaluation and award of contract for
constructing PROJECT), construction contract administration,
construction engineering, inspection, materials testing,
claims processing, and closeout.
7. CITY will enter into a separate agreement with the State of
California Department of Transportation, referred to herein
as "STATE," regarding maintenance of SIGNAL.
8. AUTHORITY and CITY do mutually desire to cooperate in the
design, construction, and construction administration of the
PROJECT, and to set forth herein the terms and conditions
under which the PROJECT is to be designed, administered,
constructed, maintained, and financed.
COOP106.21 Agreement No. 2 -SAR
February 10, 1993 Page 2 of 7
Now, therefore, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
SECTION I
AUTHORITY AGREES:
1. To proceed with PROJECT following execution of this
cooperative agreement between CITY and AUTHORITY; or, in the
event the PROJECT does not proceed for any reason, to so
notify CITY.
2. To provide plans, specifications, and estimates (PS &E) for
PROJECT at no cost to CITY.
3. To provide, or arrange to have provided, construction
administration for PROJECT as defined in RECITALS, Article 7
above, at no cost to CITY.
4. To construct PROJECT by contract in accordance with PS &E.
5. To submit to CITY, within thirty working days after
completion of PROJECT, an invoice for the total actual cost
of construction of PROJECT which CITY agrees to reimburse
AUTHORITY as provided in Section II, Article 5.
COOP106.21 Agreement No. 2 -SAR
February 10, 1993 Page 3 of 7
SECTION II
CITY AGREES:
1. To provide all permits and clearances required for PROJECT
at no cost to AUTHORITY.
2. To provide technical oversight and direction of the
development of the plans, specifications, and estimates
(PS &E) for PROJECT at no cost to AUTHORITY.
3. To guarantee reimbursement to AUTHORITY of $230,000, which
is one hundred percent (100 %) of the total actual cost of
construction of PROJECT including all materials,
supplemental work, and changes associated with construction
of PROJECT plus interest as specified in Article 4 below.
4. Interest accrued on funds shall be at the commingled pool
rate being earned by County of Santa Clara's investments and
shall commence on the ____snl!ien date of the Author;iy
x 'invoices the Ct*fy as srecif ifd ;n Sec };on I , Article G above,
5. To reimburse AUTHORITY, or its designated successor, for
cost of construction of PROJECT plus interest through
COOP106.21 Agreement No. 2 -SAR
February 10, 1993 Page 4 of 7
X
collection of development fees from property's developer.
The CITY will reimburse the AUTHORITY prior to any Final
Subdivision Map Approval for the property, i'f Gip Iica bl , or
-prior +o +h{ iss vance of any $vild(n �{
-p rrw its -For
+h-e -property. 5
6. To provide for maintenance of SIGNAL as constructed under
this PROJECT in accordance with RECITALS, Article Y above,
and make no claim against AUTHORITY for any portion of such
maintenance expense.
SECTION III
IT IS MUTUALLY AGREED:
1. That neither AUTHORITY, nor any officer or employee thereof,
shall be responsible for any damage or liability occurring
by reason of anything done or omitted by CITY under or in
connection with any work, authority or jurisdiction
delegated to CITY under this Agreement. It is also
understood and agreed that, pursuant to Government Code
Section 895.4, CITY shall fully indemnify and hold AUTHORITY
harmless from any liability imposed for injury, as defined
by Government Code Section 810.8, occurring by reason of
anything done or omitted by CITY under this Agreement or in
connection with any work, authority or jurisdiction
delegated to CITY under this Agreement.
COOP106.21
February 10, 1993
Agreement No. 2 -SAR
Page 5 of 7
2. That neither CITY, nor any officer or employee thereof,
shall be responsible for any damage or liability occurring
by reason of anything done or omitted by AUTHORITY under or
in connection with any work, authority or jurisdiction
delegated to AUTHORITY under this Agreement. It is also
understood and agreed that, pursuant to Government Code
Section 895.4, AUTHORITY shall fully indemnify and hold CITY
harmless from any liability imposed for injury, as defined
by Government Code Section 810.8, occurring by reason of
anything done or omitted by AUTHORITY under this Agreement
or in connection with any work, authority or jurisdiction
delegated to AUTHORITY under this Agreement.
COOP106.21 Agreement No. 2 -SAR
February 10, 1993 Page 6 of 7
3. The portions of this Agreement pertaining to the
construction of PROJECT shall terminate upon completion and
acceptance of the PROJECT by CITY and upon fulfillment by
AUTHORITY and CITY of their respective financial obligations
under this Agreement.
SANTA CLARA COUNTY TRAFFIC
AUTHORITY
By
JAMES T. BEALL, JR.
Chairperson
APPROVED AS TO FORM AND
LEGALITY:
KEVIN D. ALLMAND
Deputy County Counsel
Attest:
PHYLLIS A. PEREZ
Assistant Clerk of the Board
of Supervisors and Acting
Secretary, Traffic Authority
COOP106.21
February 10, 1993
CITY OF SARATOGA
By
HARRY PEACOCK
City Manager
APPROVED AS TO FORM AND
LEGALITY:
MICHAEL RIBACK
City Attorney
Attest:
GRACE E. CORY
Deputy City Clerk
Agreement No. 2 -SAR
Page 7 of 7
.540 ( a
SARATOGA CITY COUNCIL 91 A,
EXECUTIVE SUMMARY NO . ,-�o� j D AGENDA ITEM: 0
MEETING DATE: April
ORIGINATING DEPT.: P
SUBJECT: V -92 -023 -
Appeal of
Resolution
Recommended Motion:
7, 1993
lannigg CITY MGR. APPROVAL
Johnson; 13877 Upperhill Court
Planning Commission condition number. 3a of
V -92 -023.
Deny the appellant's request and uphold the conditions of Resolution V-
92 -023 adopted by the Planning Commission.
Report Summary:
On February 10, 1993, the Planning Commission reviewed the applicant's
variance request to allow the construction of a 14 ft. high retaining
wall which would replace an existing failed wall. The Planning
Commission unanimously approved the request per staff's recommendation
which required the applicant to modify the location of the proposed wall
(condition 3a) as discussed below. The applicant is appealing the
condition that requires this modification.
The applicant proposed to locate a new wall that varies in height from
4 to 14 feet approximately 20 feet down slope from the existing failed
wall, which would increase the wall height by as much as eight feet.
Staff recommended approval of the height variance with the condition
that the wall be located closer to the existing wall (See Exhibit "B")
to minimize the wall's height and visual impacts.. A 3.5 foot high
picket fence was also proposed to be placed along the top of the wall.
A condition was included that required the fence to be off -set from the
wall by two feet to provide some relief to the wall and to minimize the
visual height of the wall.
At the public hearing, the applicant indicated that staff's
modifications were unacceptable. He presented a letter stating that his
insurance company, Allstate, would extend a three year guarantee on the
wall as it had been designed and engineered by Alexanian & Associates as
long as the plans were not altered. Staff contacted Allstate to clarify
the intent of this letter and spoke with Linda Jones the Claims Manager.
She explained that the plans reviewed at the time the claim was
processed were the ones Allstate would guarantee. She also stated that
Allstate would guarantee the wall if the plans are revised, as long as
the revisions are prepared by Alexanian and Associates and a copy of the
new plans are submitted to Allstate. A concern of the applicant is that
a settlement has already been made with Allstate and that they will not
cover the cost of having the plans revised. However, staff's position
is that the settlement with Allstate should not have occurred prior to
variance approval.
As the attached Planning Commission minutes indicate, the Planning
Commission approved Resolution V -92 -023 per staff's recommendation with
a modification to condition 3b. This modification allows the applicant
to choose the type of trees to be planted, subject to review and
approval by the City Arborist, and to remove two pine trees.
Fiscal Impacts: None
Follow Up Actions: None
Consequences of Not Acting on the Recommended Motions:
The applicant would be permitted to construct the wall with a maximum
height of 14 feet as originally submitted.
Attachments:
1. Staff's Recommendation, Exhibit "B"
2. Letter from Allstate, dated 10/16/92
3. Resolution V -92 -023
4. Planning Commission Minutes, dated 2/10/93
5. Staff Report, dated 2/10/93
6. Plans, Exhibit "A"
FEB 23 '93 10:52 CITY OF SARATOGA
Date Received:
Hearing Date: �3
Fee: $161.00
Receipt No.: O
315 P02.
APPEAL APPLICATION'
Name of Appellant: 064Lk- C , -J 04,J.SO�
Address: _ 1 3 X IZ 04V 12 Z IL(, T�
Telephone*
F67- 03 77 7
Name of Applicant (if
different from Appellant:
Project File Number and Address: V- ?2 - (D 3 .�Lrt� /�i3r� ►C /q��V�2t3y
Decision Being Appealed: 10Z_,+AJ.) „(1 l_.Lcc�/�I� 55 %Ocl� %Pp2c c /c9 L
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77,9 kr?zt1(q ES 1yr417G- I� y STHrF r Ale i7r/T��2 /�n�q3
Grounds for Appeal (letter may be attached):
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A)C'ZC, 4';gc� �CIC�r /Gi�Irii Ti ii� C�rilL/� Lr ��1s4�7 AjC !"r2 /Ci2 JeA4 Ot.i4;-c c'7G�C�
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i S A: CT /-F t rt: R[--JDJ
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*Appe ant's Signature
*Please do not sign until application is presented at City offices. If you
wish specific people to be notified of this appeal, please list -them on a
separate sheet.
THIS APPLICATION MUST BE SUBMITTED TO THE CITY CLERK, 13777 FRUITVALE
AVENUE, SARATOGA CA 95070, BY 5:00 P.M. WITHIM FIFTEEN (15).CALENDAR DAYS
OF THE DATE OF THE DECISION.
6.5 ;sue 9.5' 1
5�� ; /''��••�°� 12.3' typ. wall heights
exist.
residence �: 13' _
000 oo�
i
4ti
1
EXISTING WALL
` APPLICANT'S PROPOSAL
••••.,�. LOCATION APPROVEQ BY
THE PLANNING COMMISSION
UPPERHILL COURT
EXHIBIT B
Allstate'
_ - U
ALLSTATE INSURANCE COMPANY
October 16, 1992 FREMONT MARKET CLAIM OFFICE
PO BOX 1848
FREMONT CA 94538
510- 226 -6600
In reply please refer to
Wayne Johnson
13877 Upper Hill Court
Saratoga, California 95070
RE: Claim No. 6216847415
Insured: Wayne and Carol Johnson
Date of Loss: January 15, 1991
Dear Mr. Johnson:
Thank you for meeting with me on October 13, 1992. I would like
this letter to reflect our conversation.
Allstate Insurance Company has issued payment in the amount of
$146,470.00 which was given to you on October 13, 1992. This
payment is based on Draeger Construction's bid dated October 9,
1992 less your $1,000.00 deductible. Allstate Insurance Company
will extend a three year guarantee on the design and
specifications of the retaining wall as long as the s
drafted by Albert A. Alexanian & Associates are not altered.
Allstate Insurance Company will also extend a three year
guarantee on the workmanship and construction of the retaining
wall for the itemized damages only on the Draeger Construction
bid dated October 9, 1992. If you choose to apply payment of any
of the itemized damages toward any other construction on your
property, Allstate will not extend a guarantee of workmanship or
construction.'
I would like to reiterate that if your new retaining wall fails
from earth movement., settlement or landslide, there would be no
coverage under your policy with Allstate as stated in the
following exclusions of the Deluxe Plus Policy, Form AU1778,
Page 7, it states:
Property We Do Not cover
1. Land, no matter where located, or the replacement,
rebuilding, restoration, stabilization or value of any
such land.
2. Earth movement, including, but not limited to
earthquake, volcanic eruption, landslide, subsidence,
mudflow, sinkhole, erosion, or the sinking, rising,
shifting, expanding, bulging, cracking, settling or
contracting of the earth. This exclusion applies
whether or not the earth movement is combined with
water.
Wayne Johnson
October 16, 1992
Page Two
We.do cover direct loss caused by fire, explosion,
glass breakage or theft resulting from earth movement.
3. Enforcement of any building codes, ordinances or laws
regulating the construction, reconstruction,
maintenance,,repair or demolition of building
structures or other structures unless otherwise covered
in this policy.
-The foll`oWing 3aems°:�rema3 n >open or estimation° n ;
osmetic� e
,._ _ ps to the raster bathroom; =- .permit
.
betweenheaster;nbathnd.�hQ_ staining =wa1 -rte'
.awn ,area
If you have any questions or concerns please call me at
415 - 348 -8949.
Sincerely,
Suzan 'e pland
Staff aims Representative
SU:jjg
. RESOLUTION NO. V -92 -023
CITY OF SARATOGA PLANNING COMMISSION
STATE OF CALIFORNIA
Johnson; 13877 Upper Hill Court
WHEREAS, the City of Saratoga Planning Commission has received
an application for the Variance approval to allow the replacement
and extension of an existing retaining wall with a maximum height
of 14 feet.
WHEREAS, the Planning Commission has conducted a duly noticed
public hearing at which time all interested parties were given a
full opportunity to be heard and to present evidence; and
WHEREAS, the applicant has met the burden of proof required to
support his said application, and the Planning Commission makes the
following findings:
(a) That because of special circumstances applicable to the
property, including size, shape, topography, location or surround-
ings, strict enforcement of the specified regulations would deprive
the applicant of privileges enjoyed by the owners of other
properties in the vicinity and classified in the same zoning
district; in that this 14 ft. tall wall is replacing an existing
structure and is necessary to stabilize the failing slope.
(b) That the granting of the variance will not constitute a
grant of special privilege inconsistent with the limitations on
other properties in the vicinity and classified in the same zoning
district; in that the retaining wall is existing and the failed
slope is confined to the subject property.
(c) That the granting of the variance will not be detrimental
to the public health, safety or welfare, or materially injurious to
properties or improvements in the vicinity; in that the new wall
will halt further slope failure.
NOW, THEREFORE, the Planning Commission of the City of
Saratoga does hereby resolve as follows:
Section 1. After careful consideration of the site plan,
architectural drawings, plans and other exhibits submitted in
connection with this matter, the application of Johnson for
Variance approval be and the same is hereby granted subject to the
following conditions:
1. The development shall be located and constructed as shown on
Exhibit "A," incorporated by reference.
2. Prior to submittal for building permit or grading permit, a
zone clearance shall be obtained from the Planning Department.
File No. V -92 -023; 13877 Upper Hill Court
3. Prior to the issuance of a zoning clearance, applicant shall
submit the following:
a. Revised plans indicating the relocation of the proposed
wall per the exhibit prepared by Staff and the relocation
of the picket fence to two feet behind the back of the
wall. The plan shall be reviewed and approved by the
Planning Director.
b. Landscape plan indicating the installation of seven 24-
inch box trees (combination of Coast Live Oak and Canary
or Afghanistan Pine) down slope from the new wall and 5-
gallon Carolina Laurel or Catalina Cherry at 6 ft. on
center along the bottom of the wall. The plan shall be
,reviewed and approved by the Arborist to ensure appropri-
ate planting for the degree of slope. The applicant may
substitute the required trees with similar species of the
same size upon City Arborist approval and may remove
trees no. 1 and 2, as identified in the City Arborist's
report, upon commencement of construction.
4. The above landscaping shall be installed prior to final
inspection.
5. Landscaping shall be of native and drought tolerant species in
conformance with the City's xeriscape guidelines.
6. Prior to issuance of any permit, 6' chain link or welded wire
mesh protective fencing shall be placed around the trees under
the dripline, per the City Arborist report dated 1/26/93, and
shall remain in place until all construction activity is
completed.
7. Prior to zone clearance, the applicant must obtain geotech-
nical clearance from the City Engineer.
8. Prior to final inspection, the applicant shall paint the
existing retaining wall located at the rear property line an
earthtone color.
9. Applicant agrees to hold City harmless from all costs and
expenses, including attorney's fees, incurred by the City or
held to be the liability of City in connection with City's
defense of its actions in any proceeding brought in any State
or Federal Court, challenging the City's action with respect
to the applicant's project.
10. Noncompliance with any of the conditions of this permit shall
constitute a violation of the permit. Because it is impossi-
ble to estimate damages the City could incur due to the
violation, liquidated damages of $250 shall be payable to this
City per each day of the violation.
Section 2. Applicant shall sign the agreement to these
conditions within thirty (30) days of the passage of this resolu-
File No. V -92 -023; 13877 Upper Hill Court
tion or said resolution shall be -void.
Section 3. Construction must be commenced within 24 months or
approval will expire.
Section 4. All applicable requirements of the State, County,
City and other Governmental entities must be met.
Section 5. The applicant shall affix a copy of this resolu=
tion to each set of construction plans which will be submitted to
the Building Division when applying for a building permit.
Section 6. Unless appealed pursuant to the requirements of
Article 15 -90 of the Saratoga City Code, this resolution shall
become effective fifteen (15) days from the date of adoption.
PASSED AND ADOPTED by the City of Saratoga Planning Commis-
sion, State of California, this 10th day of February, 1993, by the
following vote:
AYES: CALDWELL, JACOBS, MORAN, MURAKAMI, WOLFE
NOES: none
ABSENT: ASFOUR, BOGOSIAN
Chairper n, Planning C mmission
ATTEST:
Secretary, Planrfing Commission
The foregoing conditions are hereby accepted
Signature of Applicant Date
Planning Commission M tes
Meeting of February 10, 1993
Page 4
4. V- 92-023 - Johnson; 13877 Upperhill Ct., request for variance approval to
allow the replacement and extension of an existing retaining wall
with a maximum height of 14 feet per Chapter 15 of the City Code.'
The subject property is approximately 1.25 acres and is located
within an R- 1- 40,000 zone district (cont. from 1/27/93;
application expires 6/22/93).
--------------- - - - --
Planner Walgren presented the Report dated February 10, 1993, to the Commission.
CHAIRPERSON CALDWELL OPENED THE PUBLIC HEARING AT 7:55 P.M.
Wayne Johnson, applicant, submitted a letter from the insurance company offering a 3
year guarantee on the proposed wall only 'd the plans which the insurance company
had specifically engineered were followed. Mr. Johnson spoke in opposition to staff's
recommended location for the wall and the picket fence. He expressed his preference
for a different species of trees to be used for screening purposes and urged the
Commission to allow him to remove two pine trees. Mr. Johnson also answered
questions. from the Commission with regard to his project.
Commissioner Jacobs inquired about the City Engineer's opinion regarding the
location of the wall as recommended by staff. Planner Walgren explained that the City
Engineer had reviewed the plans and that it was determined no engineering difficulties
exist with regard to this project. He noted that the concerns were mainly associated
with the aesthetics of the wall.
Commissioner Moran inquired about the process in which staff chooses the type of
landscaping (specifically trees) to be used for a project.
Planner Walgren explained that the City Arborist make a recommendation to staff
based on the site's soil, slope, location, etc.
MORAN /MURAKAMI MOVED TO CLOSE THE PUBLIC HEARING AT 8:17 P.M.
PASSED 5 -0.
MORAN /JACOBS MOVED TO APPROVE V -92 -023 AS RECOMMENDED IN THE
STAFF REPORT WITH A MODIFICATION TO CONDITION 3B ALLOWING THE
APPLICANT TO CHOOSE THE TYPE OF TREES TO BE USED PROVIDED THAT
THE TREES BE REVIEWED AND APPROVED BY THE CITY ARBORIST TO
ENSURE THAT THE SPECIES IS FAST GROWING AND SLOPE TOLERANT.
Planning Commission N tes
Maeting of February 10, .1993
Page 5
CHAIRPERSON CALDWELL AMENDED THE MOTION TO INCLUDE PLANNING
COMMISSION'S APPROVAL FOR THE APPLICANT TO REMOVE THE TWO
MONTEREY PINE TREES IDENTIFIED AS TREES 1 AND 2 ON THE LANDSCAPE
PLAN. THIS AMENDMENT WAS ACCEPTABLE TO THE MAKER AND
SECONDER OF THE MOTION.
THE MOTION PASSED 5-0.
DR -92 -044 - Van Dyke; 18774 McFarland Ave., request for
UP -92 -015 - design review approval to construct a 821 sq. ft. addition to an
existing 1,227 sq. ft. single story residence and to construct a 13
ft. 2 in. tall 390 sq. ft. detached garage. Pursuant to Chapter 15 of
the City Code, use permit approval is also requested to allow the
detached garage to be located within the rear yard setback. The
subject property is approximately 10,000 sq. ft. and is located
ithin an R- 1- 10,000 zone district.
Planner Walgren presen *d the Report dated February 10, 1993, to the Commission.
CHAIRPERSON CALDWELL'OPENED THE PUBLIC HEARING AT 8:22 P.M.
Matthew Van Dyke, applicant, spo in favor of the application and offered to answer
questions from the Commission.
MORAN/WOLFE MOVED TO CLOSE T PUBLIC HEARING AT 8:24 P.M.
PASSED 5 -0.
MORAN/WOLFE MOVED TO APPROVE DR -92 4 AND UP- 92 -015. PASSED 5-0.
6. UP -550.3 - Desert Petroleum; 12600 Saratoga Av request for a one -year
review of an existing gasoline service statio (ARCO) pursuant to
Resolution UP -550.1 conditions of approval. a parcel is
approximately 23,715 sq. ft. and is located withi an R -M -5,000 P-
C zone district.
--------------------------------------------------------------------------------- - - - - -- ------- - - - - --
Planner Walgren presented the Report dated February 10, 1993, and answ ed
questions from the Commission.
REPORT TO THE PLANNING COMMISSION
-Application No. /Location: V -92 -023; 13877 Upper Hill Court
Applicant /Owner: Johnson
Staff Planner: Lynette Dias
Date: February 10, 1993
APN: 503 -50 -020 Director Approval: AW
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File No. V -92 -023; 13877 Upper Hill Court
EXECUTIVE SUMINARY
CASE HISTORY:
Application filed:
12/22/92
Application complete:
01/06/93
Notice published:
01/13/93
Mailing completed:
01/14/93
Posting completed:
01/07/93
PROJECT DESCRIPTION:
Request for Variance approval to allow the replacement and
extension of an existing retaining wall with a maximum height of 14
feet per Chapter 15 of the City Code. The subject property is
approximately 1.25 acres and is located within an R -1- 40,000 zone
district.
STAFF RECOMMENDATION:
Approve the application, with conditions, by adopting Resolution V-
92 -023.
ATTACHMENTS:
1. Staff Analysis
2. Resolution V -92 -023
3. Arborist Report
4. Correspondence
5. Staff's Recommendation,.Exhibit "C"
6. Plans, Exhibit "A"
7. Photos, Exhibit "B"
File No. V -92 -023; 13877 Upper Hill Court
STAFF ANALYSIS
ZONING: R -1- 40,000 GENERAL PLAN DESIGNATION: Residential
PARCEL SIZE: 1.25 AC
GRADING REQUIRED: Fill: 125 cu. yds. Depth: 12 ft.
Cut: 0 cu. yds.
MATERIALS AND COLORS PROPOSED: The wall will be constructed of 7x9
treated timber on top of concrete piers.
PROPOSAL CODE REQUIREMENT/
ALLOWANCE
HEIGHT: 14 ft. maximum 5 ft.
PROJECT DISCUSSION:
Site Characteristics:
The subject property is located at the corner of Upper Hill Court
and Upper Hill Drive. The site is characterized by steep northeast
facing terrain with an approximate average slope of 40 %. The slope
is well vegetated with several pine and chinese pistache trees, and
various shrubs and groundcover.
The existing residence is located at the top of the parcel and is
terraced into the hillside with a large deck extending out from the
west side of the house. At the north side of the parcel, a level
yard area that extends from the house to the north property line
has been terraced into the hillside. There are two existing
retaining walls that define this area. The up slope wall is
approximately 90 feet. long and is located on the adjacent property.
This wall was constructed several years back to stabilize the hill
above.
The down slope wall is the subject of this application. The wall
is approximately 170 linear feet and varies in height from four to
13 feet and has recently failed. There are also several other
retaining walls located on this parcel and according to City
records it appears that permits were obtained for their construc-
tion.
Proposal:
The applicant is proposing to replace an existing retaining wall
that has failed (See Exhibit B) . The proposed wall will 'be
approximately 140 linear feet, will vary in height from four to 14
feet, and be constructed of 7x9 treated timber. The new wall is
File No. V -92 -023; 13877 Upper Hill Court
proposed to be constructed down slope from the existing failed wall
(See sheet 5 -104 of Exhibit A) , which will be.removed once the new
wall is constructed. A 3.5 foot high picket fence is also proposed
to be constructed along the top of wall.
Ordinance Requirement:
Per Section 15- 29.010 of the City Code, no retaining. wall on a
hillside lot (defined as greater than 10% slope) shall exceed five
feet in height. This requirement minimizes the visual impact the
wall will have on down slope properties by requiring properties to
be terraced with several parallel walls when a.wall greater than
five feet is necessary. Therefore, variance approval is necessary
for the applicant to construct this wall.
Analysis:
Staff believes that the construction of this wall is necessary and
that the findings to approve a variance to the five foot maximum
height requirement can be made. However, staff does have some
concerns about the design and location of the wall and recommends
the plans be revised to address the following concerns. ,
1. The applicant is requesting to locate the new wall down slope
by as much as 20 feet from the existing failed wall. This
will extend the property's useable yard area and straighten
out the configuration of the wall. However, it will also
result in an increased maximum wall height and require the
removal of at least one pine tree.
Staff feels that the wall should be located as close to the
existing wall as possible as illustrated on Exhibit "C." This
would allow the applicant to simplify the configuration. of the
wall and at the same time minimize the impact the wall will
have on existing vegetation. A condition of approval requir-
ing the relocation of the wall has been incorporated into the
resolution.
2. A 3.5 foot high picket fence °is proposed to be placed along
the top of the wall. The applicant has indicated that this is
a building code requirement. However, the building department
stated that it is only required if there is a walkway adjacent
to the wall.. Staff's recommendation is that the fence be off-
set from the wall by two feet to provide some relief to the
wall and to minimize the maximum height of the wall.
Although the retaining wall will be constructed of timber to blend
into the hillside, the walls visual impact on the properties below
will be significant. A possible alternative to this project would
be a series of shorter, parallel walls, but it is staff's opinion
this option would not reduce the visual impact of the site.
File No. V -92 -023; 13877 Upper Hill Court
Arborist Review:
The City Arborist visited the site to evaluate the impact of the
proposed wall on the two existing Monterey Pine trees adjacent to
the wall. He concluded that the applicant's proposal would remove
tree #2 and pose serious impact on tree #1, probably resulting in
it's eventual death. Staff's recommended design. would minimize the
impact on the trees, but he did state that the construction would
still cause serious damage to tree #2. In addition, there are two
smaller multi -trunk pine trees in the vicinity of the construction
that staff feels will be significantly impacted by the construction
of the wall.
Therefore, the applicant shall provide a minimum of five 24 inch
box trees, equal in value to the two large Monterey Pine trees; and
two 24 inch box trees, as replacement value for the two smaller
pine trees. The trees shall be a combination of Coast Live Oaks
and Canary Island Pine or Afghanistan Pine. In addition, 5- gallon
Carolina Laurel Cherry or Catalina Cherry shall be planted at six
feet on center along the bottom of the wall. A condition of
approval has been incorporated into the resolution requiring the
applicant to prepare.a new landscape /re- vegetation plan that will
be reviewed and approved by the City Arborist. Also, staff feels
that all of the pine trees shall be left in place as long as they
remain healthy. This will allow the new trees time to mature.
RECOMMENDATION: Based on the findings and subject to the condi-
tions of approval, approve Resolution V -92 -023.
BARRIE D. CC ' TE
and ASSOCIAZ r-S
Horticultural Consultants
408- 353 -1052
23535 Summit Road., Los Gatos, CA 95030
COMMENTARY ON TREE VALUE
AT 13877 UPPER HILL COURT
SARATOGA
Prepared at the Request of:
Lynette Dias, Planner
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070
Site Visit by:
Barrie D. Coate
January 26, 1993
Job #01 -93 -019
BARRIE D. C0 " TE
and ASSOCIAZ r-S
Horticultural Consultants
408 - 353 -1052
23535 Summit Road., Los Gatos, CA 95030
COMMENTARY ON TREE VALUE
AT 13877 UPPER HILL COURT
SARATOGA
The Purpose of this Report
The purpose of this report is to assess the condition of two Pine trees downhill from a retainer
wall at 13877 Upper Hill Court and offer an opinion of the expected affects of the proposed
construction.
During the recent heavy rains a retainer wall section approximately 170 feet long near the
north end of this property has begun to collapse. The owners have planned on removing and
replacing this wall
There are two Monterey Pine trees, Pinus ra iata, which are adjacent to the wall and would
certainly be affected by this construction activity and the construction procedures used in
replacing this wall..
Description of Trees
The two trees in question (hereafter, number 1 and 2 as shown on the plan prepared by
Farrington Tree and Landscaping Company) are Monterey Pines, Pinus radiata.
Tree #1 is 14 inches DBH, 35 feet tall, with a branch spread of 20 feet north to south, and 18
feet toward the east.
Tree #2 is a Monterey Pine with 20 inch DBH, a 38 foot height, and a 35 foot branch spread.
Both trees are in reasonably good health.
Tree #2 has grown up with a twisted angle at the base of the trunk. This twisted form does not
affect the tree's health or structure, however.
It has has two California Turpentine Beetle sites at the base which are currently active and two
more which are currently inactive and are no more than two years old. This implies that
without treatment in the next few years the Turpentine Beetle infestation will probably
increase in severity and eventually result in attraction of Pine Bark Beetle, !Ps paraconfusus,
which could very quickly kill the tree.
-1-
COMMENTARY ON TREE VALUE
AT 13877 UPPER HILL COURT
SARATOGA
At this stage it is quite practical to treat this tree for the California Turpentine Beetle,
Dendroctonus v len , .and arrest the spread of the beetles if the owners wishes to do that.
Since the beetles are attracted primarily to drought stressed trees, it will also require monthly
watering and annual fertilizing of this tree for several years to rejuvenate it, however.
The Affects of Proposed Construction
The proposed retainer wall design as prepared by Farrington Tree and Landscaping would
remove tree #2 and pose serious impact on tree #1, probably resulting in its eventual decline
due to beetle attack.
Note that tree #1 is inaccurately located on this plan and is in reality far closer to the
proposed retainer wall than shown.
Since the impact of construction equipment and personnel activity adjacent to these trees will
result in soil compaction, root damage, and other unavoidable impacts, it should be fully
understood that no matter what procedure or which wall location is used, some damage to both of
these trees will be inevitable. On the other hand, it is obvious that the wall must be
reconstructed.
I suggest that the potential impact would be sufficiently great to kill tree #1 and for this
reason, if this plan is used, it should be assumed that both trees, #1 and 2, will be lost.
The staff's recommended design would leave both trees intact but would nonetheless cause
serious impact on tree #2 and some impact on tree #1 as construction process is carried out.
The most realistic decision might be to allow removal of tree #2 and then use the staff's
recommended plan for location of the wall and place a construction period fence as close to the
new wall construction on the south side of the tree as possible toward the goal of at least
preventing as much damage as possible to the one tree.
On the other hand, one could allow construction of the staff's recommended design for the new
wall, leaving both trees in place and if tree #2 dies at a later date, remove it at that time.
-2-
COMMENTARY ON TREE VALUE
AT 13877 UPPER HILL COURT
SARATOGA
Another approach might be to allow removal of both trees and to require the applicant to apply
the value to those trees (which is $2,450) to purchase. and installation of new California native
Oaks. This would certainly remove two large canopies from the skyline in this area, and even
though they are relatively short-lived Monterey Pines, are healthy enough to have several more
years of potential growth.
BDC:la
Enclosures: Sketch
Chart
-3-
Respectfully submitted,
J
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Barrie D. Coate
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Horticultural Consultants
408 353 -1052
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COMMENTS
Key
Plant Name
1
15
16
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sq.in 176.6 X $27 sgAn = $4,768.88 x sp. class ( 30%) _ $1,430.66 x cond (90 %) _ $1,359 x loc (75%) _ $1,019.35
Final Value
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sq.in 314 X $27 sgAn = $8,478 x sp. class (30 %) _ $2,543 x cond(75 %) _ $1,907.55 x loc (75 %) _ $1,430.66
Final Value $
sq.in X $27 sgln = $ x sp. class () _ $ x cond () _ $ x loc () =
Final Value $
sq.in X $27 sgAn = $ x sp. class ( %) _ $ x cond ( %) _ $ x loc
Final Value $
sq.in X $27 sgln = $ x sp. class ( %) _ $ x cond ( %) _ $ x loc ( %)=$
Final Value $
sq.in X $27 sgAn = $ x sp. class ( %) _ $ x cond ( %) _ $ x loc
Final Value $
juts i i I L-t: 13577 upper Hill Ct. /Jonnson Property
JOB #01 -93 -019
DATE: 1 -26 -93
Sq. in. is oeterminea wim the formula:
Sq. in= ( QW2rr
2
Page 1 of 1
1 =best 5--worst
Total Value
This Sheet = $2,450
WILLIAMSON JOHN A II
13852 UPPER HILL DR
SARATOGA CA 95070
CITY OF SARATOGA
13777 Fruitvale Avenue
Sarato a CA 95070
(408 A67 -3438
NOTICE OF HEARING
RECEIVED
JAN 26 1993
PLANNING DEPT.
A.P.N.: 503 -50 -017
The CITY OF SARATOGA'S PLANNING COMMISSION announces the following public
hearings on
Wednesday, the 27th day of January 1993, at 7:30 p.m.
in the City Council Chambers located at 13777 Fruitvale Avenue, Saratoga, CA.
V -92 -023 (APN 503 -50 -020) - JOHNSON; 13877 UPPERHILL CT.
REQUEST FOR VARIANCE APPROVAL TO ALLOW THE REPLACEMENT AND
EXTENSION OF AN EXISTING RETAINING WALL. WITH A MAXIMUM
HEIGHT OF 14 FEET PER CHAPTER 15 OF THE CITY CODE. THE
SUBJECT PROPERTY IS APPROXIMATELY 1.25 ACRES AND IS LOCATED
WITHIN AN R -1- 40,000 ZONE DISTRICT.
If you challenge any of the applications in court, you may be limited to raising
only those issues you or someone else raised at the public hearing, described in
this notice, or in written correspondence delivered to the Planning Commission
at, or prior to, the public hearing.
Paul. L. Curtis
Planning Director
f
suPrzt- -rte
is-
%03 1 -z
285 HAMILTON AVENUE • FIFTH FLOOR • PALO ALTO, CA 94301 -2588
TELEPHONE (415) 328 -7000 • TELECOPIER (415) 329.8925 or 327 -2501
March 30, 1993
APR � 1993
LAKIN•SPEARS
Attorneys at Law
Grace E. Cory
Deputy Clerk
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070 /
Re: - Hearing Scheduled for Appeal of Conditions of- Variance -'
- on Property located at'13877 Upper Hill Court.- i
Dear Ms. Cory:
I am an attorney and I represent Virginia Brown who is the owner of the
property at 21151 Saratoga Hills Road, Saratoga, California. I have just received a
copy of a notice sent to Virginia and David Brown at 2290 North First Street, Unit 3,
in San Jose. Please note the correct address for Virginia Brown for future
correspondence with respect to this property.
I have just been provided with a notice of the hearing set for Wednesday,
April 7, 1993 at 8:30 p.m. with respect to the variance requested by Mr. Johnson on
his property which abuts the property of my client, Virginia Brown. Because the
notice was forwarded to the San Jose address, I have just` been alerted to this
matter. My client, Virginia Brown, is out of the country returning April 8, 1993 and
will be unable to appear at the time of the hearing. I have not conducted any
investigation or communication with other parties regarding the requested variance
and am unsure of what Ms. Brown's 'position on the variance is. I would ask that
the ,hearing on this particular matter be continued to -a - dater "date when Ms. Brown
may be present and provide any comments-she may have regarding the .retaining
wall adjacent to her property. If you have any questions regarding this request for a
continuance of this matter, please feel free to contact me or Frank Small at the
above telephone number. Thank you for your attention to this matter.
Sincerely,
SLC:If Sh r "L!Z�ssedy
cc: Virginia Brown
Maggie Kritzer
David Brown
Frank Small
o-
GEORGE H. NORTON' THOMAS D. REESE
FRANK A. SMALL THOMAS J. CAHILL
!+
LEE S. PANTELL CAROLS. BOSS
J. ANTHONY VILLANUEVA RONALD A. VANDENBERG
MICHAEL G. DESMARAIS JESSICA F. ARNER
SHERROL L. CASSEDY DANIEL R. MORRIS
GEORGE B. RICHARDSON DANIEL F. PYNE, III
JENNIFER F. WALD
DONALD H. READ, TAX COUNSEL
JOHN P. KELLY, OF COUNSEL
EGERTON D. LAKIN (1886.1968)
ANDREW M. SPEARS (1915.1988)
. 'APRQES90t4XU 00FPoRAnM
285 HAMILTON AVENUE • FIFTH FLOOR • PALO ALTO, CA 94301 -2588
TELEPHONE (415) 328 -7000 • TELECOPIER (415) 329.8925 or 327 -2501
March 30, 1993
APR � 1993
LAKIN•SPEARS
Attorneys at Law
Grace E. Cory
Deputy Clerk
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070 /
Re: - Hearing Scheduled for Appeal of Conditions of- Variance -'
- on Property located at'13877 Upper Hill Court.- i
Dear Ms. Cory:
I am an attorney and I represent Virginia Brown who is the owner of the
property at 21151 Saratoga Hills Road, Saratoga, California. I have just received a
copy of a notice sent to Virginia and David Brown at 2290 North First Street, Unit 3,
in San Jose. Please note the correct address for Virginia Brown for future
correspondence with respect to this property.
I have just been provided with a notice of the hearing set for Wednesday,
April 7, 1993 at 8:30 p.m. with respect to the variance requested by Mr. Johnson on
his property which abuts the property of my client, Virginia Brown. Because the
notice was forwarded to the San Jose address, I have just` been alerted to this
matter. My client, Virginia Brown, is out of the country returning April 8, 1993 and
will be unable to appear at the time of the hearing. I have not conducted any
investigation or communication with other parties regarding the requested variance
and am unsure of what Ms. Brown's 'position on the variance is. I would ask that
the ,hearing on this particular matter be continued to -a - dater "date when Ms. Brown
may be present and provide any comments-she may have regarding the .retaining
wall adjacent to her property. If you have any questions regarding this request for a
continuance of this matter, please feel free to contact me or Frank Small at the
above telephone number. Thank you for your attention to this matter.
Sincerely,
SLC:If Sh r "L!Z�ssedy
cc: Virginia Brown
Maggie Kritzer
David Brown
Frank Small
o-
SARATOGA CITY COUNCIL
X03030
�r EXECUTIVE SUMMARY NO. a _ AGENDA ITEM
MEETING DATE: April 7, 1993 CITY MGR. '
ORIGINATING DEPT. City Manager(//� �<
SUBJECT: Cable Communications Ordinance and Franchise Agreement
Recommended Motion(s):
1) Introduce Ordinance
2) Approve Franchise Agreement and Authorize Mayor to Execute upon
adoption of a Resolution and adoption of the Cable Communications
Ordinance
Report Summary:
The City's current cable television franchise holder, Brenmor Cable
Partners L. P., dba South Bay Cablevision, has applied for a
franchise renewal. The City and South Bay are currently in the
extension period of the City's existing Cable Television Ordinance.
The City held a public workshop in May, 1992, and a public hearing
in August, 1992, to receive comments regarding South Bay's request
for extension and /or renewal of the franchise. Issues raised in
these hearings were included in the lengthy negotiations among the
cable company, the City Manager, and the City's consultant, Richard
Littorno. In November 1992, the City Manager requested Council
direction on 17 issues which were part of the franchise negotia-
tions. The parties have now reached agreement on these and other
items.
The revised Cable Communications Ordinance includes provision for
a density requirement for cabling of homes at a level of 20
existing and completed dwelling units within any one -half linear
mile of uninterrupted public right' of way or public utility
easement. The Ordinance also specifies technical and performance-
standards, and customer service standards which the cable company
must meet.
Included in the fifteen year non- exclusive franchise agreement are
requirements that South Bay will complete construction of an
upgrade of the system within eighteen months of the effective date
of the franchise, and complete cable installation throughout the
franchise territory as required by the current ordinance within six
months from the effective date of the franchise.
Additionally, the franchise agreement makes available to qualified
seniors a 15% discount for basic cable service. Qualification
includes a minimum age of 60 and eligibility for exemption from the
City's utility users tax.
Fiscal Impacts:
The new agreement provides for financial contributions from South
Bay for communications facilities and equipment for local schools;
for the City public access channel KSAR; and for support of�Council
meeting broadcasts. It is anticipated that it will also result in
a higher franchise fee payment to the City.
Follow Up Actions:
Obtain Grantee signature on Franchise Agreement
Approve Resolution adopting Franchise Agreement - April 21
Adopt Ordinance - April 21
Franchise Agreement and ordinance will become effective May 21
Consequences of Not Acting on the Recommended Motions:
Renewal of franchise will be delayed.
ORDINANCE NO.
CITY OF SARATOGA
CABLE COMMUNICATIONS ORDINANCE
Draft dated 3/30/93
u
t_
SECTION 1. 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 2. 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.
2.1 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.
2.2 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.
2.3 City - means the City of Saratoga, a Municipal
Corporation of the State of California, in its present
incorporated form or in any later reorganized, consolidated,
enlarged or re- incorporated form.
2.4 Council - shall mean the present highest governing
body of the City or any future board constituting the
legislative body of the City.
2.5 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.
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2.6 Franchise Agreement - 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.
2.7 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
theFranchise 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.
2.8 Franchise Territory - means that portion of the City
defined in the Franchise Agreement for which a Franchise is
granted.
2.9 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 6.4
hereto.
2.10 Gross Quarterly Receipts - 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 Receipts as used
herein shall include but not be limited to receipts 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 Receipts 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 Receipts 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 Receipts of
Grantee; (2) taxes or other charges imposed by law on
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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 receipts 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.
2.11 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.
2.12 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.
2.13 Subscriber - means any person or entity receiving for
any purpose Cable System service from a Grantee under this
Ordinance.
SECTION 3. FRANCHISE TO OPERATE.
3.1 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.
3.2 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 make such a grant and /or to restrict the number of
Grantees to one or more.
3.3 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. DURATION OF FRANCHISE
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4.1 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.
4.2 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.
4.3 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.
4.4 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 5. FRANCHISE PAYMENTS.
5.1 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 Receipts 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 Receipts 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 (60) 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 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.
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5.2 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 force, a financial statement prepared by an independent
Certified Public Accountant 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 Receipts of Grantee during the
calendar month (or portion thereof in the case of an initial or
final month) in the preceding calendar year.
5.3 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 Receipts 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.
5.4 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 6. LIMITATIONS OF FRANCHISE.
6.1 Nonexclusive. Any Franchise granted under this
Ordinance shall be nonexclusive.
6.2 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.
6.3 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.
6.4 Transfer. (a) 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, sublease, pledge or other hypothecation or by
forced or involuntary sale, or by voluntary sale, merger,
consolidation or otherwise, nor shall the title to the Franchise
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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.
(b) Nothing contained in this Section 6.4 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.
(c) The restrictions contained in this Section 6.4 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.
(d) 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 6.4. 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 Dollar ($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.
(e) 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
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of the terms, conditions, and requirements of the Franchise
Agreement, as well as this Ordinance.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
6.9 Private Property. The granting of a Franchise shall
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 7. RIGHTS RESERVED TO THE CITY.
7.1 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.
7.2 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 established, except as may limit the
Grantee's contractual rights under this Ordinance and the
Franchise Agreement or Grantee's constitutional rights.
S
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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.
7.3 Additional Franchises. 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 Franchise to any other person or entity.
7.4 Rules and Regulations. 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.
7.5 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.
7.6 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
occasioned by the construction and maintenance of such police
and fire alarm systems.
SECTION 8. 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 9. DESIGN AND CONSTRUCTION PROVISIONS.
9.1 System Design. The Cable System shall be constructed
in accordance with the design requirements, if any, contained in
the Franchise Agreement.
9.2 Geographical Coverage. Subject to the density
requirements of Section 9.8, 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 9.8 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.
9.3 System Construction Schedule.
(a) Grantee shall comply with the requirements of the Cable
System construction schedule, if any, contained in the Franchise
Agreement and any amendments thereto.
(b) Construction of the Cable System and service need not be
provided where power and telephone utility services are not
available.
(c) 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.
(d) 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.
9.4 New Development Undergrounding. 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.
9.5 Undergrounding at Multiple - Dwelling 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.
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9.6 Additional Undergrounding. 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 9.4 above, the Grantee
shall likewise construct, operate and maintain all of its
transmission and distribution facilities underground.. For the
purposes of this subsection, "underground" shall include a
partial underground 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.
9.7 Service Connections
(a) 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.
(b) If the service connection requires no more than a one
hundred fifty foot (1501) aerial drop line, the Grantee shall
provide connection to its service at no charge for the initial
one hundred fifty feet (1501), other than the Grantee's standard
installation fee. The Grantee may charge any new subscriber for
the Grantee's 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 (1501), (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 9.7(a)
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.
9.8 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 right of way or public utility easement of the
existing terminus of the cable system. Within thirty (30) days
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after Grantee has confirmed 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 9.7 herein with regard
to costs of a tap or drop in excess of one hundred fifty feet
(1501).
SECTION 10. LOCATION OF PROPERTY OF GRANTEE.
10.1 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.
10.2 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 I 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 practicable.
SECTION 11. REMOVAL AND ABANDONMENT OF PROPERTY OF GRANTEE.
11.1 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
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streets or public places within one hundred eighty (180) days of
receiving such notice to remove all such property and poles 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
14.13.
11.2 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 12. 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 Grantee 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 11 above.
SECTION 13. 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 14. LIABILITY, INDEMNIFICATION AND TERMINATION.
14.1 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 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
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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.
14.2 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 14.1 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.
14.3 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.
14.4 General Liability Insurance Policy: The insurance
policy mentioned in Section 14.3 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 considerations of risk and
potential liability.
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14.5 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:
(a) Payment of Franchise Fees which the Grantee has failed
to pay to the City for any Franchise hereunder;
(b) Reimbursement of costs incurred by the City to correct
franchise violations not corrected by the Grantee after written
notice, and after a reasonable time to correct such violations;
(c) Payment of liquidated damages assessed against the
Grantee due to default or violation of this Ordinance or the
Franchise Agreement requirements;
(d) Compensation and costs of completing or repairing the
Cable System;
(e) 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 11.2.
(f) Repair of damage to streets caused by Grantee or any
officer, agent, employee, contractor or subcontractor retained
by Grantee;
(g) 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 shall
deposit in the Security,Account such sum as necessary to restore
the account to its required amount, including any interest which
may have accrued and been credited to the account.
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14.6 Evidence. The Security Account passbook, checks, and
a certificate of insurance evidencing the insurance policy
mentioned in Section 14.5 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.
14.7 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.
14.8 Sanctions. Subject to the provisions of this
Ordinance and any Franchise Agreement granted hereunder, the
City shall be empowered, following:
(a) written notice to Grantee;
(b) a sixty (60) day opportunity to cure commencing upon
the mailing of such notice;
(c) a public, hearing before the Council;
(d) a majority vote of the Council to impose a Sanction; and
(e) the issuance by the City of its written findings of fact
and conclusions of law, (all in that order), to impose the
following sanctions:
1. The termination of a franchise in whole or in part as
provided in Sections 14.11 and 14.12.
2. For failure by the Grantee to initially complete 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.
3. 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.
4. For failure by the Grantee to provide the City with a
copy of the Financial Statement required by Section 5.2, a copy
of the Surety Bond required by Section 14.5, a copy of the
certificate of insurance required by Section 14.4, 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.
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5. For failure by the Grantee to comply with quality of
service or operation or technical standards following the City's
written notice directing Grantee to make improvements, Grantee
shall pay to the City Five Hundred Dollars ($500.00) per day for
each day the violations continue.
6. 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.
7. 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.
14.9 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 that 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 Grantee shall credit
a percentage of the total monthly fees to affected subscribers
or users as follows:
(a) Twenty -four (24) consecutive hours: five percent (5%)
rebate of the monthly fees:
(b) Twenty -four (24) to forty -eight (48) consecutive hours:
fifteen percent (15 %) rebate of the monthly fees:
(c) Forty - eight (48) to seventy -two (72) consecutive hours:
twenty -five percent (25 %) rebate of the monthly fees.
(d) More than seventy -two (72) consecutive hours to one
hundred sixty eight (168) hours: fifty percent (50 %) rebate of
the monthly fees.
(e) More than one hundred sixty eight (168) hours: one
hundred percent (100 %) rebate of the monthly fees.
14.10 Determination of Right to Credit.
Subsequent to first making a claim with Grantee as provided
in Section 14.9, above, and after ten (10) days prior written
notice to Grantee and opportunity to be heard, the City 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
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credit and the reason therefor. A copy thereof shall be sent to
the subscriber.
14.11 Termination of Franchise for Cause.
In addition to all other rights and powers of the City, the
City reserves the right to terminate any franchise granted
hereunder and all rights and privileges of a franchisee
hereunder in the event that any Grantee:
.(a) 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;
(b) Becomes insolvent, unable or unwilling to pay its debts,
or is adjudged a bankrupt or is subjected to the appointment of
a receiver;
(c) Fails to begin or complete system construction or
extension as provided in this Ordinance or a franchise granted
thereunder; or
(d) Misrepresents any material fact or willfully.
misrepresents any material fact in any reports required to be
filed pursuant to this Chapter.
14.12 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 notice
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
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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 City 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 written findings of fact and
conclusions of law which shall become the final basis for appeal
by the Grantee.
14.13 Restoration of Propertv.
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 15. INSPECTION OF PROPERTY AND RECORDS.
15.1 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.
15.2 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 of any of the rights, functions or duties of the
City or any of its officers in connection with the Franchise.
The costs of furnishing such reports shall be borne by the
Grantee.
15.3 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 16. 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 the third,
sixth, ninth and twelfth years' (if applicable) anniversary
dates following the date of filing 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 time to
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.
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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 17. CUSTOMER SERVICE STANDARDS.
17.1 Subscriber Complaints. Grantee shall establish
procedures for receiving, acting upon, and resolving subscriber
complaints to the satisfaction of the City. Such procedures
shall, in all cases, meet or exceed those provided under State
and Federal Law. Grantee shall furnish to.subscribers at the
time of the initial subscription and not less than every year
thereafter a notice of such procedures.
17.2 Phone Service. 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 be 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.
17.3 Efficient Service. 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.
17.4 Monthly Reports. 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 relevant by the
City.
17.5 Service Call Notice. Grantee shall notify subscribers
of the expected time of any service visit. At a minimum such
notification shall indicate whether the visit will occur within
a four (4) hour period. To the extent practicable subscriber
preferences for the scheduling of service visits shall be
honored.
17.6 Customer Service Representatives. Within six (6)
months of the date this Agreement commences, the Grantee shall
employ sufficient customer service representatives and maintain
a sufficient number of telephone lines such that:
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(1) Incoming callers shall encounter "busy" signals on an
average of no more than one (1) out of every three (3) attempted
calls placed to Grantee's telephone numbers over a twenty -four
(24) hour period as measured over a thirty (30) day period.
Calls from the same household made within two (2) minutes of
each other (if such can be determined) shall be deemed a single
call.
(2) Incoming callers shall normally encounter "hold" time of
no more than two (2) minutes, on the average across all callers
over a thirty (30) day period. In computing the average set
forth in subparagraphs (1) and (2), Grantee shall have the
option to exclude from any such thirty (30) day period either
(i) any three (3) days of Grantee's selection or (ii) the actual
number of days in which a system failure occurred which affected
service to more than one hundred (100) subscribers.
(3) These standards are to be met when Grantee is providing
regular service delivery during normal business hours seven days
a week, including holidays, to the extent reasonably
practicable.
SECTION 18. MISCELLANEOUS PROVISIONS.
18.1 City Clerk. When not otherwise prescribed herein, all
matters herein required to be filed with the City shall be filed
with the City Clerk. .
18.2 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 Fire Stations, City Recreation Centers,
library, City Hall, and such other buildings owned or controlled
by the City, which shall from time 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.
18.3 Emergency 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.
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18.4 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 provide service to any Subscriber who does not
pay the applicable connection fee or monthly service charge, or
who does not pay at the time of request for service any amount
legally owed to grantee for connection or monthly service.
18.5 Subscription Agreement. Before Grantee shall provide
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,
and 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.
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.
18.6 Right of Grantee. Should Grantee become 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 19. USE OF UTILITY POLES & FACILITIES.
When any portion of the Cable System is to be installed 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 20. APPLICATION FOR FRANCHISE.
20.1 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
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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 to Section 5.1
hereof. Application for a franchise hereunder shall contain, at
option of the City, the following information:
(a) The name and address of the applicant. If the applicant
is a partnership, the name and address of each partner shall
also be set forth. If the applicant is a corporation, the
application shall also state the names and addresses of its
directors, executive officers, major stockholders, and the
name and addresses of parent and subsidiary companies.
(b) 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
future poles or other facilities of other public utilities
will be used for such system.
(c) A description, in detail, of the Streets, public 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.
(d) 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.
(e) 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.
(f) A statement or schedule in a form approved by the City
Manager of proposed rates and charges to subscribers for
installation and services, and a copy of proposed
subscription agreement between the Grantee and its
subscribers shall accompany the application.
(g) 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.
(h) A statement setting forth all agreements and
understandings, whether written, oral or implied, existing
between the applicant and any person, firm or corporation
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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.
(i) A financial statement prepared by a Certified Public
Accountant or person otherwise satisfactory to the City,
showing applicant's financial status and his financial
ability to complete the construction and installation of the
proposed Cable System.
(j) 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.
20.2 Grant to Applicant. Upon consideration 'of any such
application, the Council may refuse to grant the requested
Franchise or the Council may by Ordinance 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
submitted shall constitute and form part of the Franchise as
granted.
SECTION 21. FRANCHISE RENEWAL.
Any Franchise granted under this Ordinance may be renewed at
the application of the Grantee in accordance with Section 20
above and the Cable Act, as amended.
SECTION 22. ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE.
22.1 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 the
ordinance 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 14.4 and 14.5
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 the Franchise null and void.
22.2 Filinq. Within ten (10) working days after the
effective date of the ordinance accepting a Franchise Agreement,
or within such 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 14.4 above and its agreement to be bound by
and to comply with and to perform all acts required of Grantee
by the provisions of this Ordinance and the Franchise Agreement.
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SECTION 23. VIOLATIONS; PENALTIES.
23.1 Requirement of Franchise. From and after the effective
date of this Ordinance, it shall be unlawful for any person:
(a) 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
(b) to construct, install or maintain within any 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
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.
23.2 Pirating. 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, pictures, programs or sound, or (b) enabling himself or.
others to receive any television signal, radio signal, picture,
program or sound, without payment to the owner of said system.
23.3 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 television signals, radio signals, pictures,
programs or sounds.
23.4 Penalties. Any person wilfully violating any of the
provisions of Section 22 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 24. SEVERABILITY.
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.
The invalidity of any portion of this Ordinance shall not abate,
reduce or otherwise affect any consideration or other obligation
required of the Grantee of any Franchise granted hereunder.
25
SECTION 25. EFFECTIVE DATE.
This Ordinance shall become effective thirty (30) days from
and after its final passage.
PASSED AND ADOPTED at a regular meeting of the City Council
of the City of Saratoga this day of , 19
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINING:
ATTEST:
1454ccob
26
DRAFT 3/29/93
FRANCHISE AGREEMENT
This Agreement, made and entered into this ______ day
of __________1 1992, by and between the City of Saratoga, a duly
authorized California municipal corporation and Brenmor Cable
Partners L.P., a California Limited Partnership doing business
as South Bay Cablevision ( "South Bay ").
RECITALS
A. South Bay has operated and continues to operate a
cable communications system in the City pursuant to a franchise
awarded to Hearst Cablevision and assigned to Brenmor Cable
Partners, L. P. on December 21, 1989, which assignment was
accepted by South Bay.
B. Prior to adoption by the City of this Agreement, on
the ______ day of ................ 1993, the City Council
adopted Ordinance No. ________, entitled "City of Saratoga Cable
Communications Ordinance" ( "Ordinance ") which shall govern this
Agreement.
C. South Bay has requested that its franchise be
renewed.
D. The City Council has determined that the public
interest would be served by a renewal of the franchise to South
Bay.
NOW, THEREFORE, the City and South Bay do hereby agree as
follows:
1. Grant_ of Franchise. The City hereby grants to South
Bay a nonexclusive franchise to provide the services of a cable
communications system in that portion of the City designated in
Section 3 below as the "Franchise Territory," as required by the
provisions of the Ordinance and this Franchise Agreement. This
Agreement and the Ordinance are the sole documents embodying the
agreement pursuant to which South Bay shall provide services of
a cable communications system to the residents of the City, and
may sometimes be collectively referred to as the "Franchise
Documents." The Franchise Documents shall be and constitute the
terms of the Franchise granted to South Bay.
2. Definitions_ and Interpretation. All capitalized
terms not defined in this Franchise Agreement shall have the
meaning ascribed to them in the Ordinance. For purposes of
contract interpretation, the City and South Bay agree that they
are ,point authors of both this Agreement and the Ordinance.
3. Franchise_ Territory. The "Franchise Territory" for
the Franchise is that area which is within the incorporated area
of the City and any future annexations.
4. Acceptance. The City acknowledges that South Bay has
already installed and energized distribution cable throughout
most of the Franchise Territory. South Bay agrees to complete
the backbuilt construction throughout the Franchise Territory as
required by previous agreement within six (6) months from the
Effective Date of this Franchise Agreement.
5. Subscriber Survey.
(a) Within six months after the Effective Date of this
Franchise, and on an annual basis thereafter, South Bay agrees
to conduct a survey of its Subscribers regarding their
1
preferences for additional video cable programming and the
Subscribers' willingness to pay the cost for having such
additional cable programming available. The survey shall be in
form and substance reasonably satisfactory to the City. South
Hay shall provide the City with three (3) copies of the results
of the survey.
6. Upgrade_System.
(a) South Hay will activate and maintain at least
thirty -seven (37) Channels of cable programming through the end
of 1994. As used in this Agreement, "cable programming" shall
mean all video programming available on the Cable System,
including without limitation the transmission and retransmission
of: local broadcast signals, distant broadcast signals, premium
satellite signals, non- premium satellite signals, pay -per -view,
PEG programming, locally originated programming and alphanumeric
or character - generated information channels.
(b) Within eighteen (18) months of the Effective Date of
this Franchise, South Hay shall complete construction of an
upgrade of the Cable System ( "Upgrade ") as briefly outlined in
South Hay's System Upgrade Proposal dated April 24, 1992,
attached hereto marked Exhibit A and incorporated herein by
reference, and subject to final review by the City. The
eighteen (18) month period for completion of the Upgrade shall
be tolled from the time detailed plans for the Upgrade in a form
acceptable to the City are submitted to the City for its review
and until the City notifies South Hay by certified mailing of
either its approval or disapproval of such plans for the
Upgrade.
(c) South Hay shall assert completion of the Upgrade by
filing a written Notice of Completion with the City Clerk,
stating therein the total number of dwelling units, business
establishments and other buildings for which service is
available within the Franchise Territory, channel capacity and
other functional and technological features of the Cable System
as identified in the Franchise Documents. The Notice of
Completion shall certify to the City that all requirements of
the Franchise Documents with respect to the Upgrade have been
satisfied, but such Notice shall not be binding upon the City.
7. Term. the term of the Franchise granted herein shall
be fifteen (15) years from the Effective Date of the Franchise,
as that term is defined in Section 4.2 of the Ordinance.
8. Community_Access_Channels.
(a) South Hay shall make available up to three (3)
upstream and downstream channels on its Basic Cable Service (as
defined below) for public, educational and governmental use.
The upstream portion of the First Access channel shall originate
at City Hall and shall be operable not later than six (6) months
after the Effective date of the Franchise. South Hay also
agrees to make available to the City without charge a
character - generator which, when connected to the upstream
portion of the First Access Channel, will allow the City to
broadcast text or a so called "crawl message" from City Hall.
Additionally, South Bay agrees to provide to the City at no
charge, at the City's request, any closed captioning or other
equipment which is or becomes required by Federal or State law,
2
(including but not limited to the Americans Disabilities Act) in
order to provide live broadcasting of any City meetings. "Basic
Cable Service" as used in this Agreement shall mean that single
service tier as defined in the Cable Television Consumer
Protection and Competition Act of 1992 and as supplemented by
the "C- Span" and "Cal- Span" Services where allowable under
Federal Law.
(b) When the Cable System has a 78 video channel
capacity and the First Access Channel is 80% Fully Utilized (as
defined below) for sixty (60) consecutive days, then South Bay
shall make available a second downstream channel (the "Second
Access Channel ") on its Basic Cable Service for public,
educational and governmental use. The Second Access Channel
shall be made available within thirty (30)'days of the First
Access Channel being Fully Utilized. If, at any time commencing
two (2) years after activation of the Second Access Channel, the
First Access Channel and the Second Access Channel are not 40%
Fully Utilized on a combination basis during any twelve (12)
month period, then the Second Access Channel shall revert to
South Bay's sole use until such time as the First Access Channel
again becomes Fully Utilized.
(c) When the Second Access Channel is 80% Fully Utilized
(as defined below) for sixty (60) consecutive days, then South
Bay shall make available a third downstream channel (the "Third
Access Channel ") on its Basic Cable Service for public,
educational and governmental use. The Third Access Channel
shall be made available within thirty (30) days of the Second
Access Channel being Fully Utilized. If, at any time commencing
two (2) years after activation of the Third Access Channel, the
Second Access Channel and the Third Access Channel are not 40%
Fully Utilized on a combination basis during any twelve (12)
month period, the Third Access Channel shall revert to South
Bay's sole use until such time as the Second Access Channel
again becomes Fully Utilized.
(d) For the purpose of this Franchise Agreement, "Fully
Utilized" shall mean that (i) the Subscribers, the City and
local educational institutions have provided live, taped or
character generated programming for the stated percentage of
time between the hours of 7:00 p.m. and 11:00 p. m. ( "Stated
Hours ") and (ii) no more than one hour per day of the
programming between these hours consists of character - generated
programming. When determining the percentage of utilization on
a combined basis, the total hours of programming on each Channel
during the Stated Hours shall be divided by the total hours of
time available for programming on each channel during the stated
hours.
9. Provision _of_PEG_Eguipment. As a means of satisfying
certain PEG requirements of the City, and not in lieu of the
Franchise Fee payable to the City under the Ordinance and this
Franchise Agreement, Grantee shall, within ten (10) days of the
Effective Date of this Franchise pay:
(a) Up to Eleven Thousand Two Hundred Dollars
($11,200.00) to the City for distribution in equal shares to the
public schools located in the franchise area for their various
communications facilities and equipment needs;
3
(b) Pay Thirty Thousand Dollars ($30,000.00) to the City
for distribution to KSAR or for other City communications
facilities and equipment needs.
(c) $25,000.00 both on or before April 30, 1999 and
April 30, 2003, respectively, for distribution to KSAR and /or
for other City communications facilities and equipment needs;
and
(d) A total of Fifteen Thousand Dollars ($15,000.00) to
the City, payable at the rate of Five Thousand Dollars
($5,000.00) per year commencing on the Effective Date of this
Franchise and on the next two succeeding anniversary dates
thereof to support and maintain the broadcast facilities in the
City's Community Theatre, the equiping of which was performed by
Grantee under its previous franchise agreement.
10. Discount for Senior_ Citizens. South Bay shall
-------- - - - - --
voluntarily make available to Qualified Subscribers, as
described below, a fifteen percent (15X) discount on the fee for
Basic Cable Service to the initial outlet for such services.
The discount shall be available to persons South Bay determines
meet the following criteria ( "Qualified Subscriber "): Any
subscriber who is:
(1) sixty (60) years of age or older; and
(2) who is personally responsible for the payment of the
cable charge and is directly billed by South Bay for
cable services; and,
(3) qualifies for exemption from the City's Utility
User's Tax. Only one (1) such residential exemption
shall be allowed to any such person.
The discount shall be prospective only and for each
eligible subscriber shall commence at the beginning of the next
billing cycle after agreement is reached between the City and
South Bay as to who is eligible for the discount.
South Bay shall notify subscribers of the availability of
the discount at least once a year.
11. Standby_Power. South Bay shall provide standby
power generating capacity to support the entire operating
portion of the Cable System in connection with the upgrade
referenced in Section 6 herein. Such standby power generating
capacity shall be subject to final review by the City as
specified in Section,6(b) herein.
12. Audio Service. South Bay agrees to provide service
consisting of the retransmission of not less than twenty -five
(25) FM radio stations or other substitute audio -only services
(such as cable radio) available on the Cable System. Subject to
applicable federal law, the Grantee may make an additional
charge for both such services.
13. Remote Control and Parental Control Lock. South Bay
-------- - - - - -- ----- - - - - --
agrees to make remote - control devices available upon the payment
of any reasonable fee to those subscribers who require a
converter to receive cable reception on their remote - controlled
cable television equipment to be able to change channels by
4
remote - control. South Bay further agrees to make available, at
no charge, a parental control device, whether in the form of a
separate unit or incorporated into a descrambler or other piece
of equipment used to provide cable television service, which is
made operational by a key or a code, and which enables the
subscriber to prevent the viewing of any pay channel offering
adult programming.
14. Testing_of_the_System. The City may, at any time,
make arrangements to test, analyze and evaluate the performance
of the Cable System. South Bay shall reimburse the City for the
reasonable costs of such testing and analysis only:
(a) after Grantee has been notified by the City of a
technical deficiency and has been given sixty (60) days to cure
such; and,
(b) the Grantee fails to either completely cure the°
technical deficiency or submit a reasonable plan for curing
such.
15. Attornevs'_Fees. If one party to this Agreement
shall institute any court action against the other party to this
Agreement to enforce, or concerning, any term or provision of
the Franchise Documents, the prevailing party in such action
shall be entitled to recover all of its costs of litigation
including, but not limited to, reasonable attorneys' fees.
16. Applicable_ Law. This Agreement shall be construed
according to and governed under California Law.
17. Reserv_ation_of_Rights. By entering into this
Franchise Agreement and accepting the Franchise under the
Ordinance, neither the City nor South Bay has waived any state
or federal constitutional rights it may now have or hereafter
acquire.
18. Notices. Any notice required to be given by the
Franchise Documents shall be presumed given upon personal
delivery or three (3) days after deposit in the United States
mail, postage prepaid, properly addressed as follows:
TO THE CITY: TO SOUTH BAY:
City Manager South Bay Cablevision
City of Saratoga 8700 Scott Blvd.
13777 Fruitvale Ave. Santa Clara CA 95050
Saratoga CA 95070
WITH A COPY TO: WITH A COPY TO:
Richard A. Littorno InterMedia Partners
Robert J. Sehr, Jr., APC 235 Montgomery Street, Suite 435
39 Quail Court, Suite 300 San Francisco CA 94104
Walnut Creek CA 94596
Either party may change its address for the provision of notice
by giving the other party notice under the provisions of this
paragraph.
19. Agreement_Binding. This Franchise Agreement shall
be binding on the successors, transferee, assigns and trustees
of the parties hereto.
20. Authorized_ Purpose. The Cable System herein
franchised shall.be used and operated solely and exclusively for
the purpose expressly authorized by Ordinance of the City of
Saratoga and no other purpose whatsoever.
5
PASSED AND ADOPTED by the City Council of the City of
Saratoga at a regular meeting of said Council held on
the ....... day of ___________ _ _ _ _ _, 19__, by the following vote
of said Council:
AYES:
NOES:
ABSENT:
IN WITNESS WHEREOF this Franchise Agreement has been
executed as of the day and year first above written by the City
of Saratoga pursuant to Resolution of its City Council.
ATTEST:
------------------ - - - - --
Betsy Cory, City Clerk
1454FAC
CITY OF SARATOGA
a California municipal
corporation
Karen Anderson, Mayor
BRENMOR CABLE PARTNERS L.P.,
a California Corporation
By its General Partner,
Intermedia Partners
6
�c
CITY of SARATOGA
SYSTEM UPGRADE PROPOSAL
- . D E c E � w E O
APR 2 81992
CITY OF SARATOGA
CITY MANAGER'S OMCZ
EXHIBIT A
APR 2 5. WZ
PRESENTED BY
South Bay CableVislon
April 24:'1992
1
TABLE OF CONTENTS
SECTION
TOPIC
PAGE
I.
EXECUTIVE SUMMARY
2
II.
OVERVIEW
6
M.
BACKGROUND
7.
IV.
DESCRIPTION OF CURRENT SYSTEM
Overview
9
Summary
11
V.
PROPOSAL
Proposed Upgrade
17
Channels and Services
20
Institutional Communications Services
21
VI.
SYSTEM CONSTRUCTION
Construction Methods
22
Density Standard
22
Codes
23
Upgrade Timetable
23
VII.
UPGRADE SUMMARY
Upgraded System To 550 MHz
24
VIII.
FRANCHISE EXTENSION
27
IX.
FINANCIAL BACKGROUND
28
X.
APPENDICES
Appendix I
29
Appendix II
31
Appendix III
33
XI.
ATTACHMENT
34
1
EXECUTIVE SUMMARY
Brenmor Cable Partners, L.P., which has successfully provided cable
television service to the City of Saratoga since January, 1990, as South
Bay CableVision, proposes to rebuild the cable system to 550 N1Hz-
capacity. This project, which would cost an estimated $4.5 million in
1992 dollars, would give the cable system an eventual capacity of
approximately 80 video channels using current technology.
In consideration of this substantial investment and such other
requirements as may be desired by the City for a renewal of its present
Franchise, Brenmor respectfully requests that its franchise be renewed
until August 30, 2012.
The design of the new cable system would commence immediately upon
the approval by the City of a new Franchise Ordinance and construction
would commence within six (6) months after the adoption of the
Ordinance. Barring acts of God or other unforeseen developments,
construction would be completed within eighteen (18) months after the
time it commences.
The new cable system would make extensive use of Fiberoptics and
would be designed to meet or exceed the stringent new standards of the
Federal Communications Commission, and such other national and local
construction codes as may be applicable. Thus, the citizens of Saratoga
can look forward to enjoying superior picture quality and the highest
possible system reliability. It is anticipated that the new system will
require significantly less maintenance than the present 10- year -old
system, which will help reduce operating costs and moderate upward
pressure on customer rates.
By way of background, Brenmor Cable Partners, L.P., purchased the
Saratoga cable system in January, 1990, from Hearst Cablevision.
Hearst held a franchise which expired on September 3, 1992, and which
would be extended at the request of either party for five additional
years.
2
As a condition of the City's agreement to transfer the franchise to
Brenmor, the City and Brenmor agreed to begin good -faith negotiations
in September, 1990, for the upgrading of the cable system. Accordingly,
Brenmor submitted to the City a proposal for a 60- channel cable system
on August 30, 1990. The City responded on November 20, 1991, with
a "request for information and refinement of the System Upgrade
Proposal." This document is a response to that request.
Without additional input from its customers and the elected officials and
staff of the City, it is not possible at this time for Brenmor to anticipate
all the features of the new system which the City would desire to meet
the needs and interests of the community. However, it is likely that the
new system, at a minimum, would possess the following capabilities and
refinements:
1. The system would be "addressable," meaning that customers would
be able to instantly add or delete premium services -- or order pay per
view events -- via telephone. Thus, customers would not be required to
bring their converters to an office or be visited at their homes by
employees of South Bay CableVision to upgrade their cable service.
2. A total of three channels would be dedicated for public, educational
and governmental access.
3. Free cable television connections and free basic service would be
provided to all public elementary and secondary schools; all libraries;
City Hall, and such other public facilities as may be determined by the
City in the Franchise Ordinance.
_ 4. Two-way capability would be available to permit live cablecasting
from City Hall and such other public buildings as may be determined by
the City in the Franchise Ordinance.
S. Institutional Communications Services would be provided to interlink
City offices, Fire Stations and Law Enforcement offices.
3
A
6. The rebuilt cable system will include such other features and
refinements as are necessary to meet the cable- related needs and
interests of the community, as set forth in the Franchise Ordinance.
In consideration of the system upgrade proposal contained herein,
Brenmor Cable Partners, L.P., formally requests the renewal of its
franchise under the provisions of Section 626(h) of the Cable
Communications Policy Act of 1984, which states, in part:
"[A] cable operator may submit a proposal for the renewal of the
franchise pursuant to this subsection at any time, and a franchising
authority may, after affording the public adequate notice and an
opportunity for comment, grant or deny such proposal at any time...."
As detailed elsewhere in this document, Brenmor believes it has met the
criteria for franchise renewal set forth in Section 626(c)(1) of the Cable
Act, specifically:
"(A) the cable operator has substantially complied with the material
terms of the existing franchise and with applicable law;
"(B) the quality of the operator's service, including signal quality,
response to customer complaints, and billing practices, but without
regard to the mix, quality or level of cable services or other service
provided over the system, has been reasonable in light of community
needs;
"(C) the operator has the financial, legal and technical ability to provide
the services, facilities, and equipment as set forth in the operator's
proposal; and,
"(D) the operator's proposal is reasonable to meet the future cable -
related community needs and interests, taking into account the cost of
meeting such needs."
N
Mindful of its responsibility to take into account the cost of meeting the
needs and interests of the community, Brenmor Cable Partners, LP.,
will endeavor to share with its customers and the officials. of Saratoga
the anticipated effect on subscriber rates of the new cable system and
any additional requirements imposed by the new Franchise Ordinance.
The officers and staffs of Brenmor Cable Partners and South Bay
CableVision look forward to working with the officials of Saratoga to
determine as rapidly as possible the specifics of the system upgrade and
the accompanying renewal of the franchise. Please feel free to call upon
any of us at any time.
5
OVERVIEW
In January, 1990, Brenmor Cable Partners, L.P. (dba South Bay
CableVision) purchased the cable system serving the City of Saratoga
from Hearst CableVsion of California, Inc. As a condition of the
transfer, South Bay CableVision, agreed to begin good faith negotiations
with the City in September, 1990, for the upgrading of the cable system.
This revised proposal is presented for the City's consideration pursuant
to that agreement. As contemplated by the parties, once an upgrade
plan has been agreed upon, the existing franchise, which expires on
September 3, 1997 (with a five -year extension available under the
existing franchise), will be extended to permit Brenmor to amortize the
cost of the upgrade. South Bay CableVision's proposal for an eighty (80)
channel, 550 MHz upgrade is set forth below.
rol
BACKGROUND
A cable television franchise to serve the City of Saratoga was granted to
Video Engineering Inc. on August 3, 1977, and construction of the
system began immediately thereafter. On August 22, 1985, the cable
system was sold to Hearst Cablevision of California, Inc. As a part of the
sale of all of its cable systems, Hearst sold the system to Brenmor Cable
Partners, L.P., on January 17, 1990.
;.Since acquiring the system, South Bay CableVision has focused on
improving the overall service to consumers. At the time of the sale, the
system passed 9,102 homes and served 5,215 basic subscribers. These
numbers have been increased, respectively, to 9,441 homes passed and
5,722 basic subscribers.
Other improvements have been made in the cable service offered to the
customers served by the system. Some of these improvements include:
* Expanded Customer Service department
* Expanded Repair Service department
* Upgraded computer system
* Upgraded and expanded telephone system
to create more customer trunk lines
* Company -wide training in customer service
techniques
* Added 2 new Pay- Per -View Services
* Added Turner Network Television and Bravo to the Basic
cable line -up at no additional charge
* Added Encore as a low cost Premium Channel
* Added Sports Channel Pacific
* Computer Aided training for all field operations
* Employee safety program and training
As a result of South Bay CableVision's efforts to improve the quality of
its pictures, an aggressive maintenance program has been put into place.
Field operations have been restructured to allow for the specialization
of personnel in the system. These aggressive preventive maintenance
programs have resulted in a decrease in the number of service calls in
the system and a decrease in outages caused by equipment failure.
E.
DESCRIPTION OF THE CURRENT SYSTEM:
OVERVIEW
CABLE PLANT
The current Saratoga cable plant is about ten years old. As a result, a
large percentage of the cable, trunk and distribution is Parameter 3
(P -3) gas injected coaxial cable. Since P -3 coaxial cable is the type
specified for all new construction or rebuild projects, cable replacement
would be expected to be minimal in both aerial and underground
applications. The older style P -1 coaxial cable existing in the system may
not have to be replaced unless there is significant damage or multiple
splices in the line. We will make the final determination as to how much
cable will be replaced when the final system design is completed
The Saratoga system currently operates 107 trunk amplifier locations
including 72 bridger amplifiers. There are nearly 185 line extender
amplifiers in the system. The current maximum cascade length is 23
trunk amplifiers.
The current active electronics are only capable �of passing 300 Nffh.
Pending individual evaluation of the passive devices - splitters, couplers,
taps, and power inserters - it is assumed that all of the existing passives
will require replacement in this rebuild.
South Bay CableVision has had under way, for the last 2 years, a drop
replacement policy for all service calls and installations. All older
non - messengered drops are replaced as part of the service call or install
activity. New drops are installed to meet a much more stringent
operating standard than that in place during initial construction. All non-
messengered drops will be replaced and grounded and all drops
currently not grounded will be upgraded as part of this rebuild
4
The Saratoga cable system amplifiers are powered by 60 VAC power
supplies. Roughly 50% of the power supplies are the emergency
standby type. These are battery backup power supplies that convert DC
voltage from the batteries to 60 VAC to operate the amplifiers. Under
normal loading conditions, the power supplies will stay operational for
up to 3 hours on battery power. This means the cable system stays
running in the event of an electrical power outage. Based upon the final
powering design of the system, it is assumed that the existing power
supply locations will be relocated. The new design will require the
installation of several additional power supplies.
I'll
The site for receiving the off air broadcast channels is located on a horse
ranch on a hill above Saratoga. The building is small and not adequate
to expand or enhance current reception. There is a coaxial cable line
that runs from the off -air site to the satellite receive site on
Saratoga/Sunnyvale road. As in the upper site, this location is also
crowded and does not allow for any expansion or adequate spacing of
existing equipment.,
10
DESCRIPTION OF THE CURRENT SYSTEM: SUMMARY
A. LOCATION
Satellite Office
Main Business Office
Headend
B. TRUNK
151 N. Santa Cruz Ave.
Los Gatos, CA
2700 Scott Blvd.
Santa Clara, CA
12333 Saratoga/Sunnyvale Rd
The trunk system is presently operating at its maximum channel loading capacity
of 37 channels at 300 Mhz.
Calculations have shown that the existing trunk system bandwidth cannot be
extended to 550 MHz, which would give the system the capacity to carry 80
standard NTSC television channels. All of the existing amplifiers, housings,
connectors and passives require replacement. The primary improvements to
upgrade the system are the replacement of the trunk electronic modules, the
re- powering of the system to meet South Bay CableVision's design specifications,
and the improvement of system grounding.
C. DISTRIBUTION
The distribution system can be divided into two general categories:
ORIGINAL DISTRIBUTION SYSTEM - The original distribution system
makes use of P -3 and P-1,.500 JA series jacketed coaxial cable. Passives
are Jerrold STC series splitters and Jerrold FXQ "flexi" taps. The strand
and hardware is in generally good condition with very few cases of
corrosion being observed. While the cable is in generally good condition
and will pass the extended bandwidth, the passive devices limit the higher
11
frequency operating range. Channel expansion of the original distribution
system will require new connectors, passives and electronics.
RECENT DISTRIBUTION SYSTEM - Since South Bay CableVision
began Saratoga operations, several areas have been upgraded with 450
MHz passives. Additionally, all new construction in the last 4 years was
designed to operate with extended bandwidth and employs passives with
a high frequency limit of at least 450 MHz. It will be necessary to replace
these devices to meet the 550 MHz design.
D. CONVERTERS
Scientific Atlanta 8580 and Jerrold 450 addressable converters with remote
capability are provided for premium services and basic service (if required).
These addressable Scientific Atlanta and Jerrold converters employ state of the
art technology and include many advanced features, such as parental control,
favorite channel memory, and VCR timer.
E. FM SIGNALS
FM Service is provided via a wideband FM antenna and wideband processor.
F. HEADEND
The Saratoga headend is located at 12333 Saratoga/Sunnyvale Road. The
television signals are received at that site in a number of ways:
BROADCAST STATIONS in the area are picked up locally and
individually processed to ensure consistent RF level and frequency control
and arrive from a remote pickup location via a dedicated transportation
trunk line.
SATELLITE STATIONS are received from 4 C -BAND satellites,
decoded as required, and individually modulated for transmission on the
cable system.
12
G. EQUIPMENT
S .
Broadcast antennas are commercial grade, tuned to specific channel
groups.
Satellite equipment includes a Scientific Atlanta 4.6 meter reflector
retrofitted for simultaneous reception of multiple satellite signals, a
Scientific Atlanta 4.1 meter, reflector and Scientific A anta and Jerrold
LNB type satellite receivers.
Processing equipment consists of the latest generation Scientific Atlanta
6150 and 6350 processors and modulators and Jerrold Commander IV
processors and'modulators.
H. CHANNELS AND SERVICES CARRIED
The cable system currently delivers 37 channels. Included in this selection are:
* 13 Broadcast Channels
* 14 Satellite Basic Channels
* 1 Cablecast Channel
* 7 Premium Channels
* 2 Pay - Per -View Channels
13
I
The channel line
-up follows:
CABLE
CHANNEL
CHANNEL AFFILIATION
CITY
2
2 KTVU
FOX
Oakland
3
CNN Cable News Network
4
4 KRON
NBC
San Fran
5
5 KPIX
CBS
San Fran
6
Community Service Channel
7
7 KGO
ABC
San Fran
8
THE DISCOVERY CHANNEL
9
9 KQED
PBS
San Fran
10
26 KTSF
IND
San Fran
11
11 KNTV
ABC
San Jose
12
44 KBHK
IND
San Fran
13
36 KICU
END
San Jose
- 14*
THE DISNEY CHANNEL
15*
REQUEST Pay Per View
16
SPORTS CHANNEL PACIFIC
17
MTV Music Television
14
18
60 KCSM
PBS
San Mateo
19*
THE MOVIE CHANNEL
20
20 KOFY
IND
San Fran
21
CNBC / BRAVO
22
TNT
23
54 KTEH
PBS
San Jose
24*
CINEMAX
25*
HOME BOX OFFICE
26
USA CABLE NETWORK
27
NICKELODEON
28
14 KDTV
IND
San Fran
29
ESPN Sports Network
30*
SHOWTIME
31
LIFETIME
32
TBS
END
Atlanta
33
ARTS & ENTERTAINMENT
34
C-SPAN CONGRESS
35
HOME SHOPPING CLUB
"r
36 CBN The Family Network
60* REQUEST 2 PPV
61* ENCORE
Premium/Pay Entertainment Service
16
PROPOSAL
PROPOSED UPGRADE
South Bay CableVision's upgrade and rebuild proposal for the Saratoga system is just
one element of a complex and comprehensive plan. This plan includes major
improvements to all of the systems operated by South Bay CableVision. At
completion of the proposed plan, Saratoga customers will be served by one of the
most modern cable systems in the country today.
The Saratoga 550 MHz, 80 Channel rebuild plan includes a state -of -the -art design
incorporating a Master Headend located in Santa Clara and an Interconnect Network
utilizing Fiberoptics. The signals originating at the Santa Clara Master Headend
would be transported to Saratoga and other cities via an AM Fiber link to the Fiber
Nodes located at key points within the Saratoga coaxial distribution system. There are
several advantages to implementing a Master Headend scheme.
A. Having a Master Headend reduces the time necessary to
respond to any channel problem.
B. Headend personnel would be , positioned at the Master
Headend site full -time to achieve greater system performance
and reliability.
C. The off -air broadcast stations would be received at the best
possible location within the Fiberoptic Network for all systems.
D. Since the cost of the Master Headend is shared by a larger
subscriber base, it is economically feasible to provide higher
quality equipment. This would include items such as generator
backup for the Master Headend in case of power outages and
uninterruptable power supplies for the data links and the
computers which control the converters. Additional services
and enhancements would also be more economically feasible.
17
Signals would be delivered from the Master Headend via a Fiberoptic Interconnection
scheme. There are several advantages to this type of distribution design, including:
A. Fiber Nodes do not require towers, antennas or buildings and
they can be strand or pedestal mounted anywhere there is
cable plant. Thus they can be located to optimize the rebuild
of the coaxial cable plant.
B. Much of the cost of a Fiberoptic Interconnect is in the cable
protecting sheath and in the installation of the Fiberoptic
cables. Multiple Nodes can be installed along a single
fiberoptic route further reducing coaxial cable cascades and
simplifying the coaxial cable rebuild.
C. Since individual Fiberoptic transmitters feed individual optical
fibers within each cable, the channel program carriage can be
customized for each community to the degree required by local
franchises without losing the advantage of a single processing
center.
D. Locally generated channels can be fed back to the Master
Headend using separate optical fibers within each cable. This
eliminates processing centers in each community for local
insertion.
The distribution system will utilize a state -of -the -art "Fiber to the Feeder"
architecture. This is ideal for the distribution of today's programming and services and
is "future proofed" in providing:
A. Sufficient capacity for the future bandwidth increases which
may be required for additional channels and the developing
High Definition Television (HDTV) concept.
B. Sufficient spare optical fibers to be used for interactive
services, if interest develops for such services
C. Sufficient spare optical fibers to be used for future remote
performance status monitoring for greater reliability.
D. Sufficient bandwidth to theoretically support other services
such as high -speed data transportation.
South Bay CableVision has chosen to provide Addressable Converters as our mode
of channel selectivity once the signals are in the home. South Bay CableVision will
provide Addressable units that may provide many consumer conveniences such as
Parental Control, Favorite Channel Memory, Remote Control, PPV, VCR timer and
a clock. South Bay CableVision will select the converter that meets our requirements
for security, reliability, picture quality, stereo compatibility and ease of use.
To best utilize the capabilities of the Fiberoptic Interconnection scheme, careful
thought and analysis has gone into the design of the Fiberoptic architecture. The
architecture chosen for this rebuild is known as "Fiber to the Feeder ". In this type of
design, optical fibers are installed deep into the coaxial system. The optical fiber
carries all of the cable signals and the routing is of primary importance. The goal of
this rebuild is to optimize Node locations to minimize amplifier cascades. The final
design of the system is yet to be completed and therefore the actual locations of the
Optical receivers are yet to be determined. It is anticipated that amplifier cascades
will be less than 10 in succession. This will enhance our quality and reliability.
In order to expand the channel capacity of the trunk and distribution system, all of
the electronics, i.e. trunk amplifiers and line extender amplifiers, will be replaced with
550 MHz capacity equipment. All amplifier and passive devices will be installed with
an integral mandrel -type connector. This will ensure long life and maximum
protection against signal ingress and egress. Heat shrinkable tubing will be used at
19
all connector locations in the cable system, excluding the drop system.
The 550 MHz design will employ automatic gain control (AGC) and automatic slope
control (ASC) circuitry to ensure optimum system performance over wide
temperature variations. South Bay CableVision will specify and use amplifiers to
insure the system performs to the desired quality set forth in the rebuild design
Standards of Performance for all InterMedia systems across the United States.
InterMedia has formalized performance standards for all its systems and it is
our commitment that we meet or exceed current FCC standards and future
modifications to the Technical Standards for Cable Television Systems. This
upgrade plan, by design, will meet or exceed all FCC standards.
CHANNELS AND SERVICES
At the conclusion of the upgrade of the system to 550 MHz, the cable system
in Saratoga would be capable of delivering 80 channels of service. This is a
116% increase in the number of channels currently. provided.
As stated earlier, the system design and use of Fiberopocs to interconnect the
system also provides channel and service benefits. While the following services
are not anticipated today, the following may be possible, if consumer interest
warrants. However, it must be noted that the following features may
significantly increase the cost of rebuilding the system - a cost which may have
a bearing on the subscriber rates. Potential additional service include:
A. Two-way interactive services.
B. High Definition Television (HDTV).
C. Home shopping and Banking Services.
D. Fire and burglar alarms.
20
E. Digital Compression
F. Digital Audio services
The actual channels carried on the system will be determined through
community and customer opinion surveys. South Bay CableVision will conduct
an initial survey prior to introducing the new channels offered at the conclusion
of the. rebuild and conduct annual customer surveys thereafter.
INSTITUTIONAL COMMUNICATIONS SERVICES
South Bay CableVision will provide such Institutional Communications Services
for the City, if the city so desires. One possibility for providing such services
would be a network with an upper band limit of 450 MHz. The network could
be built as a mid -split system in order to provide the maximum bandwidth for
video and data transmission in the upstream direction. The Communications
System would serve a mutually agreeable list of City offices, Fire Stations and
Law Enforcement offices. South Bay CableVision would maintain, and service
the Communications System after it is constructed. The design would also
provide stand -by power for the Network.
SYSTEM CONSTRUCTION
CONSTRUCTION METHODS
Prior to and during the construction phase of this project, South Bay
CableVision will be able to provide a more accurate construction timeline.
21
Quarterly reports on construction in progress, construction completed and
planned construction will be provided to the City. The type of design chosen
for the rebuild will allow for close control to the timetables placed upon
contractors. Each Node will feed signals to a specific number of homes.
Construction crews will do all the necessary work within the Node boundaries
and the work will be proofed and signed off by South Bay CableVision's
Rebuild Manager prior to the crews moving into a new area. In this way, any
issues that may come up during the construction process can be resolved
before moving on to other areas. South Bay CableVision's contracts specify
these constraints and projects typically flow smoothly in this manner.
All construction work will be done by qualified contractors. Selected
construction companies will be experienced in Fiberoptic construction and
general coaxial rebuilds. ;They will be required to show proof of specific
insurance carriages and they must possess an exceptional safety record.
DENSITY STANDARD FOR SERVICE EXTENSION
South Bay CableVision will extend service ' to all homes meeting a density
standard of Forty (40) homes per plant mile. Standard methods of calculation
will be used to determine the home per mile density from the nearest location
of distribution cables capable of serving the area. Service will be extended to
all homes which do not meet the density standard on a proportional cost
sharing basis if the homeowners desire.
CODES
South Bay CableVision and its contractors will adhere to the codes and
requirements set forth in the Pole Attachment Agreements with GTE and
Pacific Bell. All work performed will comply with the State of California Public
Utilities Commission General Orders 95 and 128 in all regards. The guidelines
of the NEC (National Electric Code), for power supply installations and
22
electronic enclosures will be fully observed.
UPGRADE TIMETABLE
The upgrade of the Saratoga system will be a costly and involved project and
will be completed, in the interests of efficiency, in concert with the upgrade of
the Los Gatos and Monte Sereno systems. South Bay CableVision would
propose to begin construction within six (6) months after the adoption of the
Franchise Ordinance. Barring acts of God or other unforseen developments,
construction would be completed within eighteen (18) months after the time
it commences. A complete, ischedule will be completed and presented to the
City following final design.
UPGRADE SUMMARY
UPGRADED SYSTEM TO SSO MHz: FEATURES AND BENEFITS
CAPABILITIES:
23
* 116% increase in channel capacity from current
level
* 80 Channel loading possible with standard frequency offset
headend
* Provide quality signals not only for today's television systems but
for future services such as HDTV, Digital Compression and data
transmission
DESCRIPTION:
* Replace all trunk electronics with State -of- the -Art technology
* Maintain standby power on all major trunk runs and the Fiber
Nodes
* Replace all trunk housings, chassis and passives
* Replace taps, sputters and connectors on distribution lines, as
needed
* Install ground rods, where needed
*
Replace pedestals and vaults as needed
24
* Replace cable, as needed (estimate = 10 miles overhead; 4 miles
underground)
* Correct GO -95 and GO -128 infractions
* Replace drops, as required, and ground at point of entry
* Ground all drop cable currently not grounded
ADVANTAGES:
* Full 80 channel operation possible
* Performance equal to newly built system
* Designed and built with the future in mind
* Fiber has the capacity to meet the needs of residential and
commercial customers alike, for now and for the future
* Reduced cascades of trunk amplifiers, which will
have the following beneficial effect:
1. Improvement of picture quality
2. Reduced number of subscribers affected by amplifier
25
outages
3. Future proofed for services yet to be developed
FRANCHISE EXTENSION
In consideration of the substantial incremental investment in the community,
Brenmor Cable Partners, L.P., requests an extension of the existing franchise
through August. 30, 2012. It is requested that this franchise extension become
26
/.
effective upon the agreement of the City and Brenmor to the system upgrade
detailed elsewhere in this document
FINANCIAL BACKGROUND
Brenmor Cable Partners has fully met all -of its financial obligations to the City
of Saratoga on a timely basis since it assumed the franchise in January, 1990.
27
Brenmor also has fully met all of its obligations to its investors and lenders
since the inception of the partnership in 1988.
Brenmor furnished the City of Saratoga information on its structure, its
financing and its officers on September 25, 1989. A copy of this document
follows.
There has been only one material change since the document was submitted.
Edward M. Allen has retired for reasons of health, and has been replaced as
a General Partner by Edward M. Liebst, Jr.
Mr. Liebst, who was one of the founding partners of InterMedia Partners in
1988, serves as the Chief Financial Officer for the InterMedia operating
companies with overall responsibility for the financial performance of
InterMedia's assets. He brings the experience gained in 11 years of developing
and financing cable television transactions to the analysis and financing of
InterMedia's acquisitions. Immediately before joining InterMedia, Mr. Liebst
was a Vice President in the investment banking unit of Bank of America and
BankAmerica Capital Corporation.
APPENDIX I:
CALCULATED PERFORMANCE, CURRENT SARATOGA SYSTEM
W
System: Saratoga, California, 300 MHz
Assumptions: - Existing Cable and Amplifier Locations
- Independent headend
- 23 Amp Cascade
- PP (Push Pull) Trunks, LEs, Bridgers
MANUFACTURER'S PERFORMANCE SPECS UNDER STANDARD
CONDITIONS
TYPE DEVICE XMOD OUTPUT NOTES
1 Jer PP trunk 58 -80 -86 32 +9 dbmV In
2 Jer PP bridger 55 -59 -58 47
3 Jer PP LE 58 -59 -58 47
INDIVIDUAL DEVICE PERFORMANCE AT OPERATING LEVELS
29
J
TYPE DEVICE CLN CTB XMOD OUTPUT
1 Trunk Amplifier
58
-80
-86
32
2 Bridgers
55
-59
-58
47
3 Line Extenders
58
-59
-58
47
CASCADED PERFORMANCE CALCULATION
TYPE # CL
CUM
CTS AIM XMOD
C
1 23 44.4
44.4
-52.8 -52.8 -58.8
-58.8
2 1 55.0
44.0
-59.0 -49.3 -58.0
-52.4
3 2 55.0
43.7
-53.0 -44.9 -52.0
-46.1
NOTE: INTERMEDIA RECOMMENDED PRACTICES:
Meet or exceed current or future modifications to FCC Standards
APPENDIX II:
PERFORMANCE, SARATOGA FIBER TO THE FEEDER REBUILD
System: Saratoga Upgrade to 550 MHz
30
Assumptions: - Utilize existing cables
- Multiple Nodes fed via Fiberoptic cables from Master
Headend in Santa Clara
- < 10 Amp Cascade (> 95 % of customers)
- Distribution amplifiers meeting Fiber to the Feeder
design parameters
MANUFACTURER'S PERFORMANCE SPECS UNDER STANDARD
CONDITIONS
NOTE : South Bay CableVision's final design and amplifier selection is not yet
complete. We will, however, purchase equipment from an experienced and
reputable Cable TV electronics manufacturer. The amplifier type and
specifications stated below are for comparison purposes only and should not
be assumed as the final selection. The actual amplifier specifications will
exceed, in general, those stated in this example.
TYPE DEVICE
XMOD
OUTPUT NOTES
1 JER AM -550 2FO
53
-65
-65
12db Loss 33 ch
2 JER PD SJ TR
60
-89
-89 35
+8 In, 6db Tilt
3 JER SJBM -550B
67
-63
-63 47
6db Tilt
- 4 JL.P6 -550 PD LE
65
-71
-71 47
+ 14 In,6db Tilt
INDIVIDUAL DEVICE PERFORMANCE. AT OPERATING LEVELS
�' . __ I �M: �_u • • Lei r i
31
w
1 AM Fiber Link
53
-65
-65
2 Trunk, PD
61
-87
-87
3 Bridger, Std
66
-65
-65
4 LE, PD
64
-73
-73
CASCADED PERFORMANCE CALCULATION
TYPE - CIN C
1 1
53.0
53.0
2 10
51.0
48.9
3 1
66.0
48.8
4 2
61.0
48.5
A-Go
-65.0
-67.0
-65.0
-67.0
36
46
46
-65.0
-65.0
-65.0
-59.9
-67.0
-59.9
-56.1
-65.0
-56.1
-53.9
-67.0
-53.9
NOTE: INTERMEDIA RECOMMENDED PRACTICES:
Meet or exceed current or future modifications to FCC Standards
APPENDIX III:
PERFORMANCE COMPARISON
32
Push Pull Technology vs
23 Amp cascade vs
Conventional Headend vs
CURRENT PROPOSED
C/N 43.7 48.5
CTB -44.9 -53.9
XMOD -46.1 -53.9
Power Doubling
10 Amp cascade (max)
AM fiber Node
lul' : • ul �M
4.8
.:
7.8 dB
Footnote: The data on CTB and XMOD is based upon test conditions not
representative of actual video performance. The actual video performance as
measured under the new FCC Technical Rules, Part 76.605, issued. April 1,
1992, will exceed the numbers stated in all performance comparisons by
approximately 12 db.
33
ft-
INTERMEDIA PARTNERS
David G. Rozzelle
General Partner "It better is possible.
then good is not enough"
September 25, 1989
Harold Toppel, Esq.
Atkinson & Farasyn
P.O. Box 279
Saratoga, CA 94042
Re: Brenmor Cable Partners, L.P.
Dear Mr. Toppel:
I am writing to provide you with information concerning the financial qualifications
of Brenmor Cable Partners, LP., the proposed purchaser of the assets of Hearst
CableVision of Cafrfornia, Inc., and to discuss, in general terms our operating plans for
the Hearst systems.
Brenmor and InterMedia
Brenmor is a limited partnership composed of two partners: the general partner
is Hernandez Communications, Inc. and the limited partner is InterMedia Partners.
While each partner will contribute equity to the partnership, it is InterMedia that will
contribute the majority of the equity and it is InterMedia that will supply the bank
financing that will complete the acquisition financial package. At your request, I have
enclosed a copy of the Brenmor partnership agreement.
InterMedia is a limited partnership formed over a year ago for the sole purpose
of acquiring, operating and holding cable television systems. Unlike all other limited
partnerships in the cable area, InterMedia Partners is composed only of financial
institutions, banks, large corporations and pension funds. There are no individuals
holding limited partnership interests in InterMedia. Moreover, InterMedia is an operating
fund, as opposed to a financial fund. Each of our limited partners invested with the
idea that the acquired properties would be held and operated as long -term investments.
In short, we offer the citizens of Saratoga the prospect of stable, financially sound
ownership of their cable television system.
2785 Mitchell Drive • Suite 105 • P O. Box 30600 • walnut Creek. Catitorn a 94598 • Tel: (415) 256 -8043 • FAX. (415) 256 -8713
Harold Toppel, Esq.
Page 2
September 25, 1989
The limited partners of InterMedia are as follows:
1. Bank of America
2. The Bank of New York
3. Chrysler Corporation Master Retirement Fund
4. Equitable Life Assurance Society
5. Equitable Variable Life Insurance Company
6. Integrity Life Insurance Company
7. Mellon Bank
8. New York Life Insurance Company
9. Salomon Brothers Holding Company, Inc. .
10. Sumitomo Corporation
11. TO Development Corporation
12. Teachers Insurance & Annuity Association
These institutions and the general partner of InterMedia Partners have contracted
,. to provide over $100,000,000 in equity. The limited partners will contribute 99% of the
equity and the general will contribute 1%. The total equity, when combined with
available debt, will provide the partnership with total acquisition funds far in excess of
that needed to close the Hearst transaction. Pursuant to paragraph 7 (d) of the
InterMedia partnership agreement, the general partner simply calls, on ten days notice,
the necessary equity from the limited partners to complete an acquisition. The actual
capital call for the Hearst acquisition will be done at the time of closing on the Hearst
properties. The pertinent language of the partnership agreement is as follows:
The balance of the capital contributions of the Limited
Partners shall be paid in installments on ten (10) days'
written notice in the following manner: (i) as the General
M
1
Harold Toppel, Esq.
Page 3
September 25, 1989
Partner determines is necessary or appropriate for identified
purchases of or investments in cable television corporations
A copy of paragraph 7 (d) is attached for your review.
Finally, please be assured that our limited partners cannot withdraw from their
partnership commitment except in very carefully defined circumstances. Pursuant to
paragraph 8 of the agreement, copy attached, "A Limited Partner may not withdraw
from the Partnership in whole or in part prior to dissolution of the Partnership" unless
permitted to withdraw by the general partner, or unless continued participation would
result in a violation of law.
The general partner of InterMedia Partners is InterMedia Capital Management
( "ICM "). ICM is, itself, a limited partnership.- The general partners of ICM are Leo J.
Hindery, Jr., Edward M. Allen and David G. Rozzelle. These three individuals, in effect,
control ICM and InterMedia Partners. Ed and 1 explained our qualifications to Todd
Argow in our earlier meeting with him. Subsequently, we sent Todd a pamphlet
describing the management talent that Brenmor will provide. For your convenience, a
copy of the pamphlet is enclosed.
Attached hereto is a copy of the August 31, 1989, IP balance sheet and income
statement. As explained above, the unique nature of InterMedia significantly reduces
the usefulness of these documents. As of the moment, InterMedia incurs ongoing
liabilities and pays them. Other than the right to draw the total equity pledged by its
limited partners, there are no assets or bank balances of significance. In essence it is
the nature of InterMedia's limited partners that assures the financial soundness of
InterMedia. As you no doubt noticed, the limiteds virtually represent a "Who's Who" of
the cable lending and investment community. The Bank of New York will lead a
syndicate of banks which will lend InterMedia the money it needs to acquire and
operate the Hearst properties. (The banks have already formally committed to lend
InterMedia the funds necessary to do a two-stage closing on the Hearst properties,
although it appears that only one closing will occur.) It is likely that all or substantially
all of the members of the syndicate will be equity holders in InterMedia. Overall, we
believe we have structured a very tight, sound and imaginative financial package which
is unequalled.
Finally, let me address one issue which has been raised by Todd -- the role of
Tele- Communications, Inc. in InterMedia. TCI is a limited partner with the same rights,
privileges and obligations as the other limited partners. Aside from the clear legal
Harold Toppel, Esq.
Page 4
September 25, 1989
restrictions on TCI's role given its limited partner status, the stature of each of our
limited partners precludes any one of them from exerting undue influence on the
operation of the partnership. We must be scrupulously -fair and we will be.
Although I am certain you understand the legal limitations imposed on our limited
partners when it comes to the management of the Hearst properties, enclosed is a
letter from Gregg Vignos, our business counsel, which confirms that our limited
partners will have no right to interfere with the management of the Hearst properties.
Operating Plans
Ed Allen and I have already addressed the employees of the Hearst systems
and have assured them that their jobs are secure. We do not intend to reduce the
number of service representatives, technicians or vehicles. Nor do we plan to reduce
office hours, service response time, the system's local origination commitments, or
customer relations efforts. Bill Haggarty, the present marketing director for - Hearst
Cablevision, has agreed to serve as the general manager of the Hearst properties,
including the Saratoga system. Bill has been with the system virtually the entire time
that Hearst has owned it and has served as Gene Musselman's number two for many
years. Given Bill's knowledge of the community and the system, we believe Saratoga
will hardly notice the change in ownership. Even the telephone number to the general
manager's office will remain the same -- Todd will be able to contact our GM as easily
as he now contacts Gene. In short, other than a name change -- probably South Bay
CableVision -- the ownership change should be transparent to the system's
subscribers. Moreover, we believe we are good enough to improve customer relations
and service over time, mindful as we are that Hearst's efforts in those areas will be
difficult to top.
As for the autonomy of the local manager, Ed and I believe that the local
manager is, in essence, the president of his own business. While "corporate" will be
involved in annual operating and capital budgets, all of the day -to -day operating
decisions will be made by Bill Haggarty.
In conclusion, we respectfully submit that InterMedia Partners is clearly qualified
to acquire and operate the Hearst cable properties. We offer highly experienced
management skills, knowledge of the industry, a commitment to long -term ownership
and a financial base of over $100,000,000 in equity committed by partners whose very
names assure their ability to perform when asked.
a
Harold Toppel, Esq.
Page 5
September 25, 1989
If you need anything further for the council to consider, please let me know.
cc: Todd W. Argow (all w /enc)
Ray Hernandez
Gene Musselman
Bill Haggarty
Very truly yours,
David G. Rozzelle y�
General Partner
If �73
or. /J. .,_- MAN 2 3 1993
RUDOLPH G. KRAFT, JR.
KAREN DRURY RUSSELL
March 4, 1993
KRAFT D RITRY
ATTORNEYS AT LAW
SUITE 1040 COMMUNITY BANK BUILDING
City of Saratoga
13777 Fruitvale Ave.
Saratoga, CA 95070
Attn: Deputy City Clerk
III WEST ST. JOHN STREET
SAN JOSE, CALIFORNIA 96113
RE: Cable Television Franchise
Dear Sirs:
AREA CODE 406
TELEPHONE 993 -1766
I am receipt of your letter dated February 23, 1993 concerning the
public hearing on April 7, 1993. I will be unable to attend that
meeting, but I appreciate being apprised of the situation.
The last time I wrote was about getting AMC, the American Movie
Channel, added in to the free channels that we can receive in
Saratoga. This has been done. We are now receiving it on Channel
60. As far as Mrs. Kraft and I are concerned, it has been a
wonderful addition to our television viewing. It has old movies,
quality movies, classic movies, and there is almost always
something on that channel that we like as opposed to the many other
channels that do not have quality programming on a regular basis.
I urge the City to make sure that this channel is continued on a
free basis and also that of the channels that are now available
free are continued.
There is also an occasional problem with the quality of the service
particularly on Channel 9. I am sure someone else is more
knowledgeable on these matters and will bring this up at the
appropriate time.
Thank you for your attention in this matter.
Very t yours,
Rudolph G. Kr t, Jr
RGK /tr
SARATOGA CITY COUNCIL
EXECUTIVE SUMMARY NO. AGENDA ITEM:9
MEETING DATE: April 7, 1993
ORIGINATING DEPT.: Planninci CITY MGR. APPROVAL
SUBJECT: Request from San Jose Symphony Auxiliary to erect two (2)
special event signs for the 1993 Showcase Home
Recommended Motion:
Approve request for special events sign; deny sign permit fee waiver.
Report Summary:
Ms. Ann Hexamer, representing the San Jose Symphony Auxiliary, has
requested the temporary erection of two (2) special event signs (24 sq.
ft. each) . The signs are to be located on Saratoga Avenue, south of Cox
Avenue and on Saratoga - Sunnyvale Road north of the Southern Pacific
Railroad right -of -way. The special event signs are not permitted as a
right and require approval by the City Council per Section 15- 30.180 of
the Zoning Ordinance.
The signs will advertise "Showcase 19311, the annual Auxiliary fund
raiser and will be placed on the sites between April 15 - June 7, 1993.
Approval of this, request is consistent with previous approvals of
Auxiliary special event signs which were located on the Paul Masson
Winery site - no longer an option due to demolition.
Ms. Hexamer has also requested waiver of any fees associated with her
request. There is no fee required for the City Council review of the
location of the signs. There is a $71.00 sign permit fee required for
the review /monitoring of the signs.
In the past, fees have been waived for similar requests. However,
because of the current significant revenue shortfall as discussed in the
recent Policy Development Conference, staff feels it is inappropriate to
recommend waiver of any fees at this time.
Fiscal Impacts:
Loss of sign permit fee ($71.00).
Follow Up Actions: None
Consequences of Not Acting on the Recommended Motions:
Denial of signs would negatively affect adequate advertising of the fund
raising event; denial of the fee waiver will require the applicant to
pay $71.00.
SEz93
S A N J O S E S Y M P H O N Y A U X I L I A R Y
20367 Glen Brae Drive
Saratoga, CA 95070
March 12, 1993
Saratoga City Council
13777 Fruitvale Avenue
Saratoga, CA 95070
Dear Members of Saratoga City Council:
IT) 17
MAH
CJ'i'Y Uk '_p:z_;Y'OGA
CITY MANAGER'S OFFICE
The San Jose Symphony Auxiliary requests permission to erect
two temporary special event signs promoting the organization's
sixteenth annual Designer Showcase home. We also request the
Council to waive any potential fees. This duplicates the request
made in 1992, which was approved by the Council.
Showcase is the Auxiliary's primary fund raising project on
behalf of the San Jose Symphony Orchestra. The Auxiliary is
a non - profit organization, and all proceeds from this activity
directly benefit the Orchestra.
The proposed temporary signs will be placed on the west side
of Saratoga, south of Cox, on currently vacant land, and on
Saratoga - Sunnyvale Road at the old Hubbard & Johnson location.
The owners of both properties have given us permission to use
these same sites used in 1992.
The signs would be erected on, or about, April 15, 1993, and
would be removed on, or about, June 7, 1993. Each sign is 4'
x 61, and is professionally painted with a blue background with
white graphics. They are to be mounted on two six foot 2" x 4 11s.
Showcase 193 is located in Los Gatos on Quito Road, and is open
May 8 through June 6. Traditionally, a significant number of
visitors to our homes come from Saratoga, and the presence of
our promotional signage has been a major help in attracting
these supporters.
Your favorable consideration of our request would be greatly
appreciated.
Sincerely yours,
Ann Hexamer
Showcase 193 Co -Chair
(408) 867 -4395
S
3 ,
SARATOGA CITY COUNCIL
EXECUTIVE SUMMARY AGENDA ITEM: o� I
MEETING DATE: April 7, 1993
ORIGINATING DEPT.: Planning CITY MGR. APPROVAL 1• '4t,
SUBJECT: Request to obtain a special permit to erect temporary signage in
all zone districts
Recommended Motion:
Staff recommends that the City Council approve a request for a special permit
to erect temporary signage in designated zone districts.
Report Summary:
The Planning Department received a request on March 8, 1993 from the Saratoga
Parent Nursery School to erect signage throughout the City. The signs will
advertise their annual Art and Wine Show in Wildwood Park as a fund raiser
for the nursery school. This event will take place on May 16, 1993 between
the hours of 11:00 a.m. and 5:00 p.m.
The areas specifically requested for signage are along Saratoga Avenue, Cox
Avenue, Allendale Avenue, Fruitvale Avenue, Quito Road; Prospect Road,
Herriman Avenue, Saratoga - Sunnyvale Road and Big Basin Way. The signs are
proposed to be posted on May 2nd,"two weeks prior to the event, and will be
removed two days after the event, on May 18th. Approximately 30 signs will
be situated along the above mentioned streets. The proposed signs are
double -faced (15" X 4411) and will incorporate a blue colored background with
white and green colored lettering. An example of the sign will be available
for your review at the meeting.
Pursuant to Section 15- 30.180 of the Saratoga Municipal Codes (Special
Permits from City Council), the City Council shall have authority to grant
temporary special permits on such terms as it deems proper, including such
things as signs, banners, or other advertising pertaining to any civic,
patriotic or special event of general public interest.
Fiscal Impacts: None (Note: No filing fees are required for this special
review by the City Council).
Follow Up Actions: none
Consequences of Not Acting on the Recommended Motions: Sign locations will
be limited to Commercial zone districts and the success of the show may be
impacted
Attachments:
1. Letter from Susan Gauthier
2. Reduced copy of the sign
paul \memo.cc \xsumsign
Parent
0490 Williams Avenue
oga, California 95070
867 -9774
City of Saratoga
13777 Fruitvale Ave.
Saratoga, Ca 95070
Dear Paul,
'° 44P
,VV�i
O X99
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March 1993
The Saratoga Parent Nursery School (a non profit organization) will be sponsoring it's
32nd Annual Art and Wine Show in Wildwood Park on Sunday May 16, 1993.
The success of our show has grown tremendously each year and this, in part, has to
do with publicity. This year, as in year's past, we will be again asking for your help.
As we did in 1991, we would like to have a permit to place signs throughout the City of
Saratoga. In that year we were allowed to post 50 signs, with the conditions that were
stated on the permit. (see copy)
We found out that in 1991 we did not need 50 signs, so we will not be putting up that
many. (probably 30)
Attached is a copy of the proposed sign and details on locations, etc.
Thank you for your help in this matter. The success of our show directly affects the
operations of our school and your consideration is very much appreciated.
If you should have any questions please feel free to call me at the above address or at
home 253 -1547.
We look foward to hearing from you.
Susan Gauthier
Art and Wine Show Coordinator
Parent
Description:
0490 Williams Avenue
oga, California 95070
867 -9774
SARATOGA.PARENT NURSERY SCHOOL
32ND ANNUAL ART AND WINE SHOW
SUNDAY MAY 16, 1993
15" X 44" DOUBLE SIDED, 6 PLY BOARD, WEATHERPROOF, BLUE AND WHITE
Proposed Locations:
Saratoga Ave.
Cox Ave.
Allendale Ave.
Fruitvale Ave.
Prospect Ave. (Saratoga side only)
Quito Ave. (Saratoga side only)
Herriman Ave.
Big Basin Way
Saratoga- Sunnyvale Rd.
32ndAnnua(
SARATOGC PARENT N`L1 R5E- ` ' SCHOOL
ART-& WI N E
sHioW
SUNDAY MAY 16.
Widwood Park St. Saratoga V dCage
Art Show 11:00 to 5:00 pm Wine Poured 11:00 to 4:30 pm
.dine Arts ey' Quality Handcrafts
Nine & Champagne Tasting
Live .Music es' Entertainment
Catered Gourmet Food
dun Activities ey food for 2eirfs
Free Admission - Wine Tickets: $7 donation at gate
includes wine glass, tasting coupons, brochure, hourly prize drawing
SAVE $2 ON ADVANCE PURCHASE TICKETS
available at Hobee's Restaurant on Big Basin Way, or call
Saratoga Parent Nursery School at (408) 867 -9774
Proceeds benefit the Saratoga Parent Nurser3�ool - a nonprofit oiganization affiliated with
the Los Gatos - Saratoga Department of Community Education and Recmation
In case of rain - Saratoga Community Center,
19666 Allendale Ave. Saratoga
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` SARATOGA CITY COUNCIL.
q10 /0
EXECUTIVE SUMMARY NO. l AGENDA ITEM
MEETING DATE: April 7,, 1993 CITY MGR.. Wa `
ORIGINATING DEPT. Finance Department
SUBJECT:. Heritage Preservation Trust Fund. Report
Recommended. Motion(s): Note and file. Trust Fund Activity.
Designate revenue from the sale of Heritage Resource Directory as
general - purpose OR AS designated revenue.
Report Summary: At your Joint Meeting with the Heritage
.Preservation Commission questions came up regarding financial
activity of the Heritage Preservation. Trust Fund. The following
summarizes the Fund's Activity since inception.
INCOME DISBURSEMENT BALANCE
Original Deposit * 5,606.34 5,606.34
Interest Allocated 1,323.66 6,930.00
Budgeted Disbursement 3,000.00 3,930.00
TOTALS $6,,930.00 $3,000.00 $3,930.00
*The first record.of this fund found on the City's books is the
ending, Fund Balance in 1987.
There was also a question as to whether or not the Trust Fund
should absorb the cost of the Heritage Resource Directory and
benefit from the proceeds of sale of the publication.
The estimated cost of the Heritage Resource Inventory is $13,000.
Development Costs ($5,000) incurred in 1990 and paid from the
General Fund to match.a Federal Grant consisted of:.
Project Coordinator
Clerical
Printing costs
In -kind Services
TOTAL
LOCAL: FEDERAL
SHARE
General Fund
1,500
2,800
700
$ 5,000
SHARE
General Fund.Revenue
$ 5,000
$ 5,000
A Grant Application reimbursement Claim was filed in 1990
requesting reimbursement of the above costs.
During the current Fiscal. Year the City has budgetted and paid.
$8,000 for printing of the Directory.
Paid from General..Fund 5,000
Paid from Heritage Preservation 3 -1000
The question of.which Fund gets the Proceeds from.the Sale of the
Heritage Resource Inventory is a policy issue for the City Council
to decide. At, the present' time, the Investment, in the Directory is
split 5/8 General Fund and 3/8 Heritage Preservation Trust Fund.
The Heritage Preservation Fund has a remaining balance of $3,9:30.
Over the past 7 years no disbursements had been made from this
fund.
Fiscal Impacts: A City Council decision to designate Revenue for
Heritage Preservation costs would simply be a budget priority
decision. I understand the Heritage Preservation.Commission has"
recommended a price. for the Directory.. The price of $15.00 is
justifiable in light of cost of publication.
Follow Up Actions: Implement Council's decisions regarding
designation of revenue and pricing of the Heritage Resource
Directory.
Consequences of Not Acting on the Recommended Motions: Inability to
proceed with sale of the Heritage Resource Directory.
F: \WPFILES \HPT4793
SARATOGA CITY COUNCIL
EXECUTIVE SUMMARY NO. �� /(o AGENDA ITEM ! 6
MEETING DATE: April 7, 1993 CITY MGR. ,
ORIGINATING DEPT. Engineering
SUBJECT: Establishment of City position concerning distribution of
Santa Clara County ISTEA funds
Recommended Motion(s): Move to establish a City position which
states that 1) The new Measure A projects should receive priority
for federal and state transportation funds in Santa Clara County,
2) The priority of projects within the new Measure A should be
consistent with the priorities established in the T -2010 Countywide
Transportation Plan, and 3) Federal and state transportation funds
not required for projects in the new Measure A should not be
allocated equally between transit and roadway projects,.
Report Summary: Subsequent to the passage of the new Measure A,. it
has been estimated that between 65 and 80 percent of the federal
ISTEA funds coming into Santa Clara County will be needed to
support completion of the new Measure A projects. The remaining
funds would be available for local non - Measure A projects.
Saratoga competes for ISTEA funds on a project scoring basis
developed by the Metropolitan Transportation Commission and in the
first funding cycle, received $340,000 for the Saratoga - Sunnyvale
Rd. median improvements. In the next funding cycle, I have
requested $1,092,000 for the rehabilitation of Saratoga - Sunnyvale
Rd.
In the first funding cycle, the Congestion Management Agency Board
adopted a policy that 50% of the County's ISTEA funds should be
allocated to transit projects. If this policy were to continue
into the next cycle for funding non - Measure A projects, then only
between 10 and 17.5 percent of County ISTEA funds would be
available for competitive bidding for local roadway projects.
In light of this, the CMA Board is seeking input from each City on
whether the new Measure A projects should receive priority for
federal and state transportation funds coming into Santa Clara
County. Further, the Board wants the Cities' input on whether the
policy of funding transit and non - transit projects on a 50 -50 basis
should continue. The attached letter dated March 10 from the CMA
helps to put these issues into perspective.
Briefly, it is my view that since the new Measure A represents the
only voter approved transportation plan in this County, it should
receive the necessary funding to ensure a successful delivery of
the program even at the expense of sacrificing local projects.
However, because the new Measure A is heavily geared towards
transit rather than roadway projects, I do not believe that 50% of
whatever funds not needed for new Measure A projects should be
allocated to local transit projects. Instead, local transit and
roadway projects should compete equally for all remaining funds not
allocated to new Measure A projects.
I also believe that to maintain the integrity of the new Measure A
program, it is necessary to maintain the priority of projects as
defined in the T -2010 Countywide Transportation Plan. If
priorities and projects in T -2010 are to be re- evaluated, then the
entire T -2010 process should also be revisited. Needless to say,
this would take a considerable amount of time and would disrupt the
implementation of the Countywide transportation program.
Fiscal Impacts: Overall, probably very little for Saratoga.
Depends on the Council's decision and ultimately, on decisions made
by the CMA Board and the MTC.
Follow Up Actions: Staff will communicate the City's position to
the CMA Governing Board.
Consequences of Not Acting on the Recommended Motions: The City
will not have a formal position which would be considered by the
CMA Board.
Congestion Management Agency
Santa Clara County
NOTE: This letter was sent to
All City Mayors
All City Managers
The Board of Supervisors
of Santa Clara County
2 y'
March 10, 1993
Vwe (0?y
�7�
{
-tell, a -
On February 24, 1993, the four transportation agencies in
Santa Clara County (Transit District Board of Supervisors;
Traffic Authority, Local Transportation Authority, Congestion
Management Agency) jointly sponsored a workshop on
transportation funding priorities.
The main point of the evening was that we are faced with some
very difficult decisions. Implementing the new Measure A will
require approximately two thirds of our limited state and
federal funding over the next twenty years. Since most of
Measure A's capital expenses will be incurred early in the
life of the measure, we can expect that Measure A projects
will require nearly all of the federal and state funds coming
to Santa Clara County in those 'early years and substantially
less in the later years.
For example, in the current funding cycle, Measure A projects
(including some "old Measure A" projects) require
approximately $68 million in STP /CMAQP funds and $100 million
in RTIP funds. Comparing these capital needs with Santa Clara
County's expected share (based on population) of these fund
sources, Measure A projects in this cycle alone require 1050
of STP /CMAQP funds and 1610 of RTIP funds. Although we can
bid for up to 1500 of our population based share, it is not
likely that Santa Clara County will receive significantly
more than its population based share of the funds.
All of this does not take into account the additional state
and federal funding needs of local cities, and the
non - Measure A needs of the County Transportation Agency, the
Traffic Authority, and Caltrans. It is clear that we must
reach consensus on what the funding priorities within Santa
Clara County will be if we are to compete effectively on the
regional and statewide levels for these critical funds. .
101 Metro Drive, Suite 248, San Jose, California 95110 PHONE: 408/4534030 FAX: 408/4534145
March 10, 1993
Page Two
The CMA Governing Board will be conducting public hearings on
this issue at its April, May, and June meetings to help us in
formulating priorities for the current state and federal
funding cycle and policies for future cycles. On behalf of
Jean McCown, Chairperson of the CMA Governing Board, we are
asking for your city's direct involvement in the decision
making process.
The key issues that must be resolved are: Is Measure A the
clear first priority for state and federal funds in Santa
Clara County? What are the priorities within the Measure A
program itself? How do we reconcile the non- Measure A needs
of our Member Agencies with the fact that funds are limited?
Please communicate your city's recommendations on these key
issues to the CMA Governing Board by April .12, 1993.
On behalf of the CMA Governing Board, I would like to express
my appreciation for your participation in the countywide
workshop and for your comments and suggestions. The key to
Santa Clara County's success in this funding cycle will be
our open, participatory process and spirit of cooperation.
The CMA staff is now assembling and reproducing the materials
that were presented at the workshop and will be distributing
them shortly. Please do not hesitate to call me or Walt
Streeter of my staff if you have any questions.
Sincerely,
Michael P. Evanhoe
Executive Director
cc: CMA Governing Board Members
Transit District Board of Supervisors
Traffic Authority Board Members
Local Transportation Authority Board Members
_��CMA Technical Advisory Committee Members
• 4
Measure A Share of Flexible Funds
Other.Federal /State Funds:
- Rail Bonds (Tasman) 116 N 116
- FTA Section 3 729 729
- Other (Estimate of TCI, Sect. 3 150 .b 150
Guideway and State /Local Partnership)
Flexible Funds Required 937
Potential Funds Available:
STP /CMAC 772
Gy9d a
FCR 699
(1471
Required Measure A Share of TSTEA 4 - 64%
937
625 ** BD�o
532 **
115
- 80%
Notes:
* MTC assumptions don't include new FTA Section 3 after-Tasman
** MTC assumptions are lower than T2010 due to the following:.
o CMAQ is not continued after 1997
o Growth rate is lower (1/2 of the inflation rate) '
Based
on
T2010
Financial
MTC
Plan
RTP
ZA
.1
Total �
Capital Required
$3271
$3271
less Measure
A Capital funds (per
1339 "21
1339
Expenditure
Plan)
3
Federal /State
Funds Required
1932
1932
Other.Federal /State Funds:
- Rail Bonds (Tasman) 116 N 116
- FTA Section 3 729 729
- Other (Estimate of TCI, Sect. 3 150 .b 150
Guideway and State /Local Partnership)
Flexible Funds Required 937
Potential Funds Available:
STP /CMAC 772
Gy9d a
FCR 699
(1471
Required Measure A Share of TSTEA 4 - 64%
937
625 ** BD�o
532 **
115
- 80%
Notes:
* MTC assumptions don't include new FTA Section 3 after-Tasman
** MTC assumptions are lower than T2010 due to the following:.
o CMAQ is not continued after 1997
o Growth rate is lower (1/2 of the inflation rate) '
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No/ -7`71W . lyx
Ecutorials&,.LeftPrs Monday, March 8 1993
San 3ose Aercurg News
LARRYJDrR.S Prendent and PLMiaher
ROBERrD.ING12 Senior ViuxAesidentandExecutiveEditor
JEROME M. CEPNOS Managing Editor
ROB EIDER Vice AESident and Editor
KAIMYAMM SeniorVweAraidenWC,ewra1M=ager
DEAN R BAKU Senior Vi rPnmdent
JOHN B.HAtm-rr Senior Vice Preaident
GQtun K Pout Vice
Bmi a CuNmNGHAa Vice Pr- Went!C?&iy RnancialQQ%r
IMALVw4m DisvlayAdwrtisingDirector
RONALD G. BEACH Qassj, WAdt- tisingDirector
9MVEWEAVER GtrtudationDirector
EDITORIALS
B's and C's of Measure A
Transit funding questions are becoming complicated
SANTA Clara County voted last
fall for a $3.6 billion,. 69 -mile
commuter rail network, for
which county residents will pay an ex-
tra half -cent of sales tax for 20 years.
Now, our 16 city councils face an
unexpected decision: Does the Measure
A transit program also deserve nearly
two- thirds of the state and federal
transportation money flowing to the
cities and county for 20 years?
In interviews with officials in seven
affected agencies and jurisdictions, we
found a strong consensus that voters
have given Measure A top priority. But
local officials are just beginning to find
out what the program will cost, as a
percent of total funds, and what trade-
offs may be necessary to finance it.
For instance, when city council mem-
bers and mayors from around the coun-
ty met recently in Mountain View, they
learned that the Measure A program
not only will require 66 percent of the
transportation money available to the
county and its cities for the next two
decades — in some years, Measure A
may take 100 percent.
Of course, when cities approved the
Measure A projects, they generally got
their own highest priorities included.
But there are other problems:
There's a fundamental difference be-
tween this Measure A and its 1984 pre-
decessor, which paid for road improve-
ments. In the earlier program, the local
sales tax paid most of the bill. In this
case, it provides the local match for
state and federal dollars, which must
provide at least 40 percent of the mon-
eyMuch of that money flows through
the Metropolitan Transportation Com-
mission, a. regional agency which
screens state and federal grants. MTC
voted last week to favor improvement
of existing systems, like BART, over
construction of new systems, such as
the one planned here.
That could reduce the overall pot of
money for this county. It threatens
both Measure A and unrelated road
improvements.
To further complicate matters, at
least some city officials had thought
they would have half of the state and
federal money for their own street pro-
jects. If Measure A takes 66 percent,
that leaves only 36 percent to cover all
other city and county needs. If the
county takes half of that, as it hopes,
that leaves the cities 17.6 percent.
The trade -offs are just beginning.
The Congestion Management Agency
and the Local Transportation Authori-
ty have yet to place Measure A into
their own overall scheme of county
transportation priorities.
One lesson is becoming clear. If any-
thing threatens to kill Measure A, it's
the incredible proliferation of overlap-
ping and redundant agencies making
transportation policy. We have the
county supervisors and the county
transportation commission, and now
we have the Traffic Authority (old
Measure A) and the LTA (new Measure
A) and the CMA (state Prop. 111). We
don't need cars to get congestion — we
have it with government agencies.
SANTA CLARA COUNTY
LOCAL TRANSPORTATION AUTHORITY
c/o Santa Clara County Manufacturing Group
5201 Great America Parkway, Suite 426
Santa Clara, CA 95054
(408) 496 -6806
AGENCY: The Santa Clara County Local Transportation Authority
(LTA) is funded through a one -half cent sales tax, to
commence on April 1, 1995 and expire on March 31, 2015.
The Agency itself came into existence in June of 1992, by
action of the Santa Clara County Board of Supervisors, at the
request of the Citizens Coalition for Traffic Relief.
GOVERNING BOARD COMPOSITION: The LTA consists of a five
member governing board, with an additional five non - voting
regional representatives. The five voting members are
selected through the use of a geographic distribution of
local elected officials, based on population: 1 member of the
Board of Supervisors, 1 representative from the seven North
Zone Cities, 1 representative from the seven South Zone
Cities, and 2 representatives from the City of San Jose (the
Mayor and a Council member). The five non - voting regional
representatives are selected from the following
transportation bodies: The California Department of
Transportation (CalTrans), Metropolitan Transportation
Commission (MTC), CalTrain Joint Powers Board (JPB),
Congestion Management Agency (CMA), and Santa Clara County
Transit District (SCCTD).
TECHNICAL AND OTHER ADVISORY COMMITTEES, INCLUDING CITIZENS'
ADVISORY: By Ordinance, the LTA is also accountable to a
Citizens Oversight Committee, which consists of 19 members.
10 of the 19 members are selected as "Citizens At Large,"
four of the 19 are appointed from specific transportation
agencies, and five of the 19 are representatives from the
Citizens Coalition for Traffic Relief, the organization of
private citizens that qualified Measure A for the ballot.
None of the 19 members can be elected office holders.
Responsibilities of the Citizens Oversight Committee include
the power to approve or veto any proposed changes in the
Expenditure Plan (specific project list), conduct annual
independent audits of the LTA, issue annual reports to Santa
Clara County residents, conduct annual public hearings, and
have the full use of LTA staff.
RESPONSIBILITIES: The responsibility of the LTA is to build
the specific list of projects identified in the Santa Clara
County Traffic Congestion Relief and Transit Improvement
Plan
REVENUE SOURCES: The LTA is funded through a 20 -year one -half
cent sales tax. The LTA may only expend 1 percent of its
annual revenues on staff salaries and benefits.
STAFFING: Currently, the LTA is staffed on an interim, part -
time, pro -bono basis. It consists of an administrative staff
person (Carl Guardino, VP, Santa Clara County Manufacturing
Group), Legal Counsel (Andrew Faber, Attorney at Law,
Berliner - Cohen) and an executive officer (Will Kempton,
Partner, D.J. Smith Associates.)
THE AGENCY'S ROLE: The role of the LTA is to collect the
funds allocated through the one -half cent sales tax, build
the projects identified in the voter approved expenditure
plan, and then go out of existence.
MAJOR POLICY ISSUES: As a new agency, the LTA is currently
addressing three key issues:
Organization --
Implementation --
Litigation --
file:scclta.fec
Establishment of Citizens Oversight
Committee, Policy Advisory Board, and the
LTA Organizational Structure.
The LTA is currently considering specific
projects identified in the expenditure plan
that are time sensitive due to available
state and federal funding, or considerable
cost savings. These projects include the
Tasman Light Rail Corridor, the 1984
Measure A enhancements, and the Guadalupe
Corridor (Route 87) Project.
The LTA has initiated legal action to
validate itself. This action is necessary
so that a court may determine whether a
simple majority (over 50 percent) is
sufficient to pass a sales tax to fund
transportation improvements, and not a
super majority (two- thirds). The case,
Santa Clara County Local Transportation
Authority VS. Guardino, has been filed in
the Sixth District Court of Appeals.
THE SANTA CLARA COUNTY
TRAFFIC CONGESTION RELIEF
AND TRANSIT IMPROVEMENT PLAN
PROPOSED AND DEVELOPED BY THE
CITIZENS COALITION FOR TRAFFIC RELIEF
The expenditure plan consists of three transportation
elements: rail transit, express bus transit, and highways.
The specific projects have been selected for their ability to
alleviate traffic congestion, improve air quality, and
attract regional, state and federal funds to maximize the
buying power of local dollars.
Each project in the plan is beneficial on its own merits, but
is further enhanced as a portion of the overall system of
transit and transportation improvements to keep Santa Clara
County residents, and workforce, moving.
The specific projects are as follows:
RAIL TRANSIT ELEMENT
1. TASMAN LIGHT RAIL EXTENSION
Description: Will Extend the current light rail system 12
miles from Milpitas to Mountain View, parallel to Highway
237.
Cost: $306 million for capital, operation and maintenance.
2. FREMONT - SOUTH BAY CORRIDOR
Description: Will build a new rail extension in Santa
Clara County to connect with BART in Alameda County.
Cost: $99 million for capital, operation and maintenance.
3. CALTRAIN COMMUTER RAIL (DOWNTOWN SAN JOSE NORTH)
Description: Increase CalTrain rail service by 65 percent,
from 60 to 100 trains per day, from downtown San Jose to
San Francisco. This includes station improvements and
electrification of the line.
Cost: $146 million for capital, operation and maintenance.
4. CALTRAIN COMMUTER RAIL (DOWNTOWN SAN JOSE SOUTH)
Description: Increase planned frequency of service, from 8
to 16 trains per day, on the CalTrain rail line from
downtown San Jose to Morgan Hill and Gilroy.
Cost: $37 million for capital, operation and maintenance.
5. VASONA LIGHT RAIL EXTENSION
Description: Extend the current light rail line 6 miles,
from downtown San Jose, through Campbell, to Los Gatos.
Cost: $165 million for capital, operation and maintenance.
6. CAPITOL - DOWNTOWN EVERGREEN RAIL EXTENSION
Description: This would connect to the Tasman Light Rail
extension at Hostetter Road In Milpitas \North San Jose,
and extend rail 14 miles through East San Jose and
Evergreen, and then on to downtown San Jose.
Cost: $238 million for capital, operation and maintenance.
7. STEVENS CREEK RAIL EXTENSION
Description: This 9 mile rail line would run from downtown
San Jose, through Santa Clara, to Cupertino, on or near
Stevens Creek Boulevard.
Cost: $260 million for capital, operation and maintenance.
8. SUNNYVALE - CUPERTINO RAIL EXTENSION
Description: This 6 mile line would connect with the
Tasman light rail line near Highway 237 and Lockheed,
proceed through Downtown Sunnyvale and on to Cupertino.
Cost: $140 million for capital, operation and maintenance.
9. ALMADEN UPGRADE - DOUBLE TRACK
Description: This will doubletrack the 1 mile Almaden
branch of the existing Guadalupe light rail line.
Cost: $1 million for capital construction.
MASS BUS TRANSIT ELEMENT
1. "SUPER EXPRESS" COMMUTER BUS SERVICE
Description: This will add 30 new
routes to the "Super Express" bus
directly from neighborhoods throui
employment centers during commute
competitive with the automobile.
shall include the following major
buses and several new
system. These buses go
1hout the County to major
hours, and are time
New routes to be served
employment areas:
1. Stanford Park (Palo Alto): Which includes Syntex,
Alza, Hewlett Packard, IBM, Varian, Watkins Johnson,
Xerox, and others.
2. Moffett (Sunnyvale): Which includes ESL, Martin
Marietta, Lockheed, and others.
3. Great America (Santa Clara): Which includes Intel,
Synoptics, Advanced Micro Devices, Siemens, Northern
Telecom and others.
4. Vallco \De Anza (Cupertino): Which includes Hewlett
Packard, Apple, Tandem, Measurex and others.
5. Shoreline (Mt. View): Which includes Silicon Graphics,
Alza, Sun Microsystems, Hewlett Packard and others.
Cost: $54 million for capital, operation and maintenance.
2. TRANSIT SERVICE FOR DISABLED SENIORS AND TRANSIT DEPENDENT
Description: This service will provide transit for
disabled and handicapped citizens, as called for in the
"Americans with Disabilities Act."
Cost: $217 million
HIGHWAY ELEMENT
I. MEASURE A ENHANCEMENTS
Description: Enhancements to the "Measure All system's
strategic plan.
1. Improve the interchange at Highway 237 \880 in Milpitas.
Cost: $76.9 million for capital construction.
2. Improve the interchange at Highway 85 \101 in Mt. View.
Cost: $23.5 million for capital construction.
3. Build interchanges on'Highway 237 at Maude and
Middlefield Roads in Sunnyvale and Mt. View.
Cost: $14.9 million for capital construction.
4. Improve the interchange at Highway 85 \87 in So. S.J.
Cost: $13 million for capital construction.
S. Improve the interchange at Highway 85 \101 in So. S.J.
Cost: $13 million for capital construction.
6. Widen Highway 85 between Highway 237 and 101 in
Mt. View.
Cost: $3.3 million for capital construction.
7. Build a partial interchange at Highway 237 and
Lafayette Street in Santa Clara.
Cost: $2.5 million.for capital construction.
8. Engineering costs and Right -of -Way reimbursement to
local jurisdictions.
Cost: $41.5 million.
2. SIGNAL SYNCHRONIZATION
Description: Synchronization and continuous monitoring
of the traffic signals on all eight of the County's major
expressways, using video surveillance from a traffic
operations control center: Foothill, Central, Lawrence,
San Tomas, Montague, Capitol, Almaden, and Oregon.. This
allows signal timing to be adjusted to minimize congestion
during peak traffic hours.
Cost: $13 million for capital, operation and maintenance.
3. HIGHWAY 87 (GUADALUPE PARKWAY)
Description: Upgrading Route 87, the Guadalupe Parkway,
from a surface street to a freeway, between downtown San
Jose and Highway 101, by removing 4 stoplights and
building a new access road to the San Jose International
Airport.
Cost: $26 million for capital construction.
4. HIGHWAY 1 -01 (BERNAL ROAD TO COCHRANE ROAD)
Description: Currently, Highway 101 has 4 lanes of .
traffic, each way, from the San Mateo County line until
South San Jose at Bernal Road, near IBM. Eight miles
south, at Cochrane Road in Morgan Hill, Highway 101
becomes 3 lanes each way. In between Bernal Road and
Cochrane, however, Highway lol is two lanes each way.
This will add one lane of traffic, each way, over the 8
mile stretch.
Cost: $15 million for capital construction.
Please note: Costs cited for all projects are based on 1992
dollars. Amounts listed are the local share necessary to
leverage regional, state and federal funds. Cost estimates,
adjusted for inflation for actual construction year dollars
over the life of the program, have been reviewed to ensure
that project capital, operation and maintenance costs are
accurate. Special emphasis has been placed on developing a
project list which would be completely built during the life
of the program with projected local, regional, state and
federal revenue.
Several steps have been taken to ensure project delivery.
These steps include:
1. A conservative estimate of sales tax revenue. Measure A
estimated an annual increase in sales tax revenue of 8
percent. This program is built on a conservative estimate
of 4.7 percent,'which is in -line with current and
projected revenue growth.
2. To ensure project delivery, the dollar figures for
capital construction are based on a conservative estimate
of project costs.
3. The program's intent is to build on a "Pay As You Go"
basis. Debt service on bonds can decrease purchasing
power by as much as 25 percent. Therefore, it is the
stated intent of this program to only bond for projects as
needed to maximize state and federal dollars, as they
become available.
4. Each project has been selected, in part, on its ability to
successfully compete for state and federal matching funds
to maximize the buying power of local dollars. The
anticipated amount of state and federal matching funds
built into the Expenditure Plan has been kept at a
conservative level, to ensure the project list will be
delivered during the life of the program.
file:explan.myc