Ordinance No. 1703
ORDINANCE NO,
1703
ORDINANCE OF THE COUNCIL OF THE CITY OF CUPERTINO
REPEALING AND REENACTING CHAPTER 6.28 OF THE CUPERTINO
MUNICIPAL CODE RELATING TO CABLE TELEVISION FRANCHISE
REGULATIONS
THE COUNCIL OF THE CITY OF CUPERTINO ORDAINS AS FOLLOWS:
SECTION 1 LEGISLATIVE FINDINGS The City Council finds that the
adoption of this ordinance is necessary to protect the public
health, safety and welfare, The City Council hereby adopts the
following findings in support of this ordinance:
A, Pursuant to California Government Code § 53066 and the Cable
Television Consumer Protection and Competition Act of 1992 ("Cable
Act"), the City is authorized to grant or renew a franchise for
the installation, operation and maintenance of a cable system
within the City's boundaries.
B. This ordinance shall be deemed to adopt by this reference the
provisions of the Cable Act, 47 U,S.C. sections 521 ~ .s..e.Q;"
inclusive, and the FCC Cable Television Regulations Pursuant to
the 1992 Cable Act, as now in effect or as later amended, which
are required to be included in this ordinance, regardless of
whether the Cable Act or the Regulations were adopted or amended,
prior to or after the effective date of this ordinance.
SECTION 2 AMENDMENTS Cupertino Municipal Code Chapter 6.28 is
hereby repealed in its entirety and a new Chapter 6.28 is hereby
enacted to be entitled "Cable Television Franchise Regulations",
and to read as follows:
6,28,010 Definitions. In addition to the definitions set forth
below, the definitions of the Cable Act, including the Regulations
adopted thereto, and any definitions contained in the franchise
agreement shall apply to this chapter,
A,
"Cable Operator" means Grantee.
B, "Cable System" means a facility, consisting of a set of
closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide cable
service which includes video programming and which is provided to
multiple subscribers within a community, Facilities excluded from
this definition are enunciated in the Cable Act,
C,
"City" means the City of Cupertino.
D. "Council" means the present governing body of the City or any
future board constituting the legislative body of the City.
E, "Customer" means any person who subscribes to a service
provided by Grantee and lawfully receives that service through the
facilities of the Cable System.
F, "FCC" means the Federal
designated representative(s).
Communications
Commission
or
its
G, "Franchise" means an initial authorization, or renewal
thereof, permit, license, resolution, contract, certificate,
agreement, or otherwise, which authorizes the construction or
operation of a Cable System,
H,
"Franchising Authority" means the City,
I. "Grantee" means the entity to which a franchise is granted by
the Council for the installation, operation and maintenance of a
Cable System and the lawful successors, transferees or assignees
of said entity,
J, "Public, Educational, or Governmental ("PEG") Access
Facilities" means channel capacity designated for PEG use, and
facilities and equipment for the use of such channel capacity,
K. "Service Area" means the entire geographic area within the
City, including any additions thereto by annexation or other legal
means,
L. "Streets and Public Ways" means the surface and the space
above and below any public street, sidewalk, alley or other public
way or right of way of any type whatsoever.
6,28,020
Grant of Franchise.
A. Authority to Grant Franchises. Pursuant to California
Government Code section 53066 and the Cable Television Consumer
Protection Act of 1992 ("Cable Act"), the Council is authorized to
grant or renew a franchise for the installation, operation and
maintenance of a cable system within the City's boundaries,
B, Grants Not Required, No provision of this chapter shall
require the granting of a franchise when, in the opinion of the
Council, it is in the public interest not to do so.
C, Nonexclusi ve, The Cable Act prohibits the granting of an
exclusive franchise and provides that where the City has
unreasonably refused to award an additional competitive franchise,
the entity whose application for a second franchise was denied by
a final decision of the Council may appeal that decision pursuant
to the Cable Act, Accordingly, the Council specifically reserves
the right to grant, at any time, any additional franchises as it
deems appropriate.
D, Mutual Consideration. The grant of a franchise shall be
deemed consideration by the City in exchange for an agreement to
provide the Cable System and services offered in accordance with
the provisions in this chapter, the franchise agreement and
relevant local, state and federal law. The franchise shall
constitute both a privilege and an obligation to provide the Cable
System and services required by this chapter and the franchise
agreement.
E, Com~liance with Laws. Neither this chapter nor a franchise
granted under it relieves Grantee of any requirement of the City
or of any ordinance, rule, regulation or specification of the City
now or hereafter in effect, including but not limited to, the
payment of all normal permit and inspection fees so long as the
ordinance, rules, regulations or specifications do not materially
conflict with or alter the express terms of this chapter and the
franchise,
F, Limitation, No privilege shall be granted or conferred by a
franchise except those specifically prescribed in this chapter or
in the Cable Act.
G. Use of Public Streets and Ways, For the purposes of
operating and maintaining a Cable System in the Service Area, a
Grantee may place and maintain within the public rights of way
such property and equipment as are necessary and appurtenant to
the operation of the Cable System; provided however, prior to the
use of any public rights of way for such purposes, the Grantee
shall apply for and receive any necessary permits,
H, Franchise Area, Any franchise granted hereunder shall only
entitle the Grantee to utilize the City's rights of way within the
Service Area as specifically denoted in the franchise.
I. Non-transferable, Except for transfers between and among
wholly-owned subsidiaries of Grantee, or Affiliates of Grantee
which are wholly-owned by the same parent, the franchise shall not
be sublet or assigned, nor shall any of the rights or privileges
granted or authorized by the franchise be leased, assigned, sold
or transferred, either in whole or in part, nor shall title
thereto, either legal or equitable, or any right, interest or
property therein, pass to or vest in any person, except the
Grantee, either by act of the Grantee or by operation of law,
without the prior written consent of the City, The granting of
such consent shall not render unnecessary any subsequent consent.
A change of control will exist upon sale or transfer of thirty
percent (30%) or more of the Grantee's stock ownership, the stock
ownership of Grantee's parent entity or other control even if
there is no change in the management entity, and/or a change in
identity in any entity which possesses some form of management
contract, The City shall approve, disapprove or conditionally
approve said request within a reasonable period of time, to be
determined by the City, upon the receipt of all requested
information, Every transfer or change of control shall be deemed
void unless the City has given written approval by resolution of
the Council. If the Grantee violates this section, the franchise
held by that Grantee shall terminate,
6,28,030 Duration of Franchise. The term of any franchise, and
all rights, privileges, obligations and restrictions pertaining
thereto, shall be specified in the franchise agreement. The
effective date of any franchise shall be as specified in the
franchise agreement,
6,28.D40
Rights Reserved to the City,
A, Reservation, There is hereby reserved to the City every
right it may have in relation to its power of eminent domain over
Grantor's license and property,
B, Non-waiver or Bar. Neither the granting of any franchise,
nor any provision in this chapter, shall constitute a waiver or
bar to the exercise of any governmental right or power by the
City.
C, Delegation of Powers. The City Manager is authorized and
empowered to compromise or resolve any controversy or charge
arising from the operations of any Grantee under this chapter, on
behalf of the City, in the public I s best interest. Either the
Grantee or any member of the public who may be dissatisfied with
the decision of the City Manager may appeal the matter to the
Council for hearing and determination, The Council may accept,
reject or modify the decision of the City Manager,
D. Right of InsDection of Construction. Tne City shall have the
right to inspect all installation or other physical work performed
by Grantee in connection with the franchise, and to make such
tests as it deems necessary to ensure compliance with the terms of
the franchise and other pertinent provisions of law, so long as
such inspection and testing does not unreasonably interfere with
Grantee's operations,
E, Right to ReQ:uire Removal of Property, At the expiration of
the franchise term, or upon its lawful revocation or termination,
the City shall have the right to require the Grantee to remove, at
Grantee's expense, all portions of its Cable System and any other
property from all streets and public ways within the Service Area
within a reasonable period of time.
F. Right of Intervention. The City shall have
intervention in any suit, proceeding or other
administrative proceeding in which the City has
interest, to which the Grantee is a party, and the
not oppose the City's intervention.
the right of
judicial or
any material
Grantee shall
G, Right of Inspection of Records, The City shall have the
right to inspect and receive copies of all relevant information
that is reasonably necessary for the exercise of the City's
regulatory authority over the matters provided in this chapter,
the franchise and the Cable Act, upon reasonable notice on
Grantee's premises at any time during normal business hours.
Further, any of Grantee's records shall, within ten (10) days of
the City's written request, be made available at Grantee's local
premises for the City's inspection and/or copying, so long as the
inspection does not unreasonably interfere with Grantee's
operations.
6.28.050
Consideration to the City.
A, Franchise Fees to the City, As compensation for any
franchise granted hereunder, and in consideration of permission to
use the streets and public ways of the City for the installation,
maintenance and operation of a Cable System, the Grantee shall pay
to the City such amounts as may be specified in the franchise,
B. Payments Due Quarterly, Payments due the City under this
provision shall be computed quarterly for the succeeding quarter,
and shall be paid within thirty (30) days of the close of each
calendar quarter, The payment shall be accompanied by a report
showing the basis for the computation and such other relevant
facts as may be required by the City to determine the accuracy of
the payment,
C, Failure to Make Payment, In the event that any payment or re-
computed amount is not made on or before the dates specified
herein, Grantee shall pay as additional compensation the greater
of the following:
1) An interest charge, computed from the due date, at the
annual rate equal to the prevailing commercial prime interest rate
in effect upon the due date; or
2) A sum of money equal to $2,000.00 for each month or part
thereof of delay, which sum shall also bear interest from the due
date at an annual rate equal to the prevailing commercial prime
interest rate in effect upon the due date,
D. Further Consideration to the City, As further compensation
to the city for the right to use its rights of way for purposes of
installing, maintaining and operating a Cable System, Grantee
shall, if required in the franchise to do so by the City, provide
PEG access, services and equipment, as more precisely defined in
the franchise, to the City without requiring the City to pay any
charge or fee for the services.
6,28,060
Finance,
A. Security Fund, Within thirty (30) days after the Effective
Date of the franchise the Grantee shall deposit into a bank
account established by the City, and maintain on deposit through
the term of the franchise, a sum specified in the license as
security for the faithful performance by Grantee of all of the
provisions of the franchise, and compliance with this ordinance
and all orders, permits and directions of any agency of the City
having jurisdiction over Grantee's acts or defaults, and the
payment by the Grantee of any claims, fees, liens or taxes due the
City which arise by reason of the installation, maintenance or
operation of the Cable System. If Grantee fails, after twenty
(20) days notice to pay the City any fees due and unpaid, or fails
to repay any damages or costs which the City incurred by reason of
any act or default of the Grantee in connection with its
franchise; or fails after thirty (30) days notice of such failure
to comply with any provision of the franchise which the City
reasonably determines can be remedied by an expenditure of the
security, the City may immediately withdraw the amount thereof,
with interest and any penalty imposed, from the security fund.
Upon any withdrawal, the City shall notify the Grantee of the
amount and the date of the withdrawal, Within thirty (30) days
after such notice, the Grantee shall deposit a sum of money
sufficient to restore the security fund to the original amount.
Grantee shall be entitled to the return of the security fund,
or portion thereof I with interest, as remains on deposit at the
expiration or termination of the franchise, once all amounts due
to the City have been paid.
The rights reserved to the City with respect to the security
fund are in addition to all other rights of the City and no
action, proceeding or exercise of a right, with respect to the
security fund, shall affect any other right or remedy the City may
have,
B. Faithful Performance Bond. In addition to the security
required in section 6.28.060{a) above, within thirty (30) days
after the Effective Date of the franchise, the Grantee shall
furnish proof of the posting of a faithful performance bond in
favor of the City, with a surety approved by the City, in the sum
specified in the franchise, conditioned that the Grantee shall
observe, fulfill and perform each term and condition of the
franchise relating to the construction of the Grantee's Cable
System. Provided however, that the bond shall no longer be
required upon certification by the City of completion of
construction and upgrade of Grantee's Cable System.
C, Letter of Credit, At the option of the City, it may allow in
lieu of a Security Fund and/or Faithful Performance Bond, an
irrevocable letter of credit I issued by a bank approved by the
city, in the amount specified in the franchise. The letter of
credit shall incorporate wording approved by the City enabling it
to draw such sums from time to time as the City may find necessary
to satisfy any defaults of Grantee or to meet any payments due the
City under or in connection with Grantee's franchise. The letter
of credit shall provide for sixty (60) days written notice by
certified mail by its issuer to the City of any pending expiration
or cancellation, or other language acceptable to the City
Attorney, the notice shall also without further cause constitute
reason for the City to draw the full sum to be held in its own
accounts until the letter of credit shall be r established in good
and satisfactory form to the City. If the City requires a letter
of credit, Grantee shall pay all fees or other charges required to
keep it in force and shall, within thirty (30) days of any draw by
the City, restore its face value to the original amount, All
provision herein applying to bonds or security funds shall also
apply to letters of credit.
D. Guarantee, At the option of the City, it may allow in lieu of
a security fund or faithful performance Bond a Guarantee by
Grantee's parent company in the amount specified in the franchise,
The Guarantee shall provide that if Grantee fails to comply with
any material provision is the franchise, the City may recover
jointly and severally from the principal and the Guarantor any
damages suffered by the City as a result of Grantee's failure to
comply,
6,28,070
Insurance and Indemnification.
A, Insurance, Prior to the Effective Date of the franchise,
Grantee shall furnish to the City Certificates of Insurance
evidencing the minimum insurance coverages specified in the
franchise. Such certificates shall provide that the insurance is
in force and will not be canceled or modified without thirty (30)
days prior written notice to the City, Further, all liability
insurance policies shall name the City, its elective and appointed
boards and commissions, officers and employees as an additional
insured, Each policy shall provide that if the City has other
insurance against loss covered by Grantee's policies, the City's
insurance shall be excess insurance only,
B, Indemnification, Grantee shall hold harmless and indemnify
the City, its officers, boards, commissions, agents and employees
from and against all claims, actions, suits, proceedings, damages,
costs or liabilities which may arise out of or pertaining to the
exercise of Grantee's obligations under the franchise.
6,28,080
Design and Construction.
A, Cable System Installation. The Cable System
installed, constructed and upgraded in accordance
provisions of the franchise.
shall be
with the
B, Construction Components and Techniques. Consistent with
applicable law, the Cable System technical and performance
standards shall be in accordance with the franchise agreement.
C, Construction Codes, Grantee shall strictly adhere to all
building and zoning rules and regulations currently or hereafter
in force and obtain all necessary permits. The Grantee shall
arrange its cables, facilities and other appurtenances in the
public right of way in such a manner as to cause no unreasonable
interference with the use of the public right of way by any
person, In the event of such interference, the City may require
the removal
property.
of
the
Grantee1s
facilities
from
the
affected
D, Cable ¡~~rade Schedule, Grantee shall commence and complete
all upgrade, rebuild and construction of the Cable System no later
than as indicated in any schedule that may be contained in the
franchise, Grantee shall provide a detailed construction plan
indicating progress schedule, area construction or reconstruction
maps, test plan, and projected dates for completion,
E. Cable System Capability, The Cable System shall
exceed FCC specifications and shall provide the
capabilities mandated by the franchise,
meet
or
minimum
F. Underç¡rounding of Cable System. Undergrounding, mitigation
of visual impacts and safety precautions of Grantee's cable
facilities shall be in accord with the provisions of the franchise
and other relevant local laws,
G. Other utilities and Facilities, Nothing in this chapter or
in the franchise shall relieve Grantee of any obligations involved
in obtaining pole or conduit space from the City, any utility
company or from others maintaining utilities in streets, or from
Grantee's responsibility to verify the location of all existing
utilities prior to construction,
H, Repair of Streets and Public Ways. Any streets and public
ways damaged by the Grantee or its contractors during
construction, operation, upgrade or maintenance of the Cable
System shall be restored within the timeframe and limits specified
by the City, or the franchise, at Grantee's expense, to their
original condition unless otherwise authorized in writing by the
City.
I. Trimming of Trees, Nothing contained in a franchise shall
empower a Grantee to cut or trim any tress in any street or public
way, However, Grantee may cut or trim trees pursuant to a prior
written agreement with the owner of property on which the tree
stands, or as otherwise authorized in writing by the City.
6,28,O9D
Customer Service Standards.
A. FCC and NCTA Standards Establish Minimum, Grantee shall
maintain and operate the Cable System in a manner which shall
exceed all FCC standards for customer service and meet or the
industry-wide customer service standards of the National Cable
Television Association,
B, Billing Procedures, Grantee shall provide customized billing
cycles upon Customer's request and upon request by either the City
or a Customer, Grantee shall not assess a late charge for past
due payments for those customers who have not been assessed a late
charge in the preceding twelve (12) month period. In no event
shall Grantee assess a customer a late charge in excess of Five
Dollars ($5,00),
6.28.1DO Enforcement Remedies. Consistent with all applicable
laws, including any rights specified in the franchise, the City
reserves the right, subject to notice requirements, to terminate a
franchise, to declare a forfeiture of a franchise, to order a stop
work notice and to impose monetary damages upon Grantee's failure
to comply with any of the terms of its franchise, this chapter or
other applicable law,
6.28.110 Discriminatory Practices Prohibited. Grantee shall not
deny Cable Service or otherwise discriminate against Customers on
the basis of race, color, religion, physical disability, national
origin, sex or age, Grantee shall strictly adhere to the equal
employment opportunity requirements of federal, state or local
governments and shall comply with all applicable laws and
executive and administrative orders relating to nondiscrimination,
6,28,120 Non-enforcement by the City, Grantee shall not be
relieved of its obligation to comply with any of the provisions of
this chapter, or of its franchise or any law or regulation, by
reason of any failure of the City to force prompt compliance,
6.28.130 Notices and Filings, All notices and other
communications to Grantee shall be addressed to it at the address
designated in the franchise. All notices and other communications
to the City shall be addressed to: City of Cupertino, 10300 Torre
Avenue, Cupertino, California 95014, Attn: City Manager. When
not otherwise prescribed, all matters required to be filed with
the City shall be filed with the City Clerk.
6.28.140 Grantee's Inability to Perform. In the event Grantee's
performance of any of the terms, conditions or obligations of this
chapter or any franchise granted hereunder, is prevented or
impaired due to any cause beyond Grantee's reasonable control,
which is not reasonably foreseeable, such inability to perform
shall be excused to the extent performance is prevented, and no
penalties or sanctions shall be imposed as a result thereof,
Causes beyond Grantee's reasonable control include acts of nature,
declared emergencies, labor unrest and strikes,
6,28,150 Severability. If any provision of this chapter is
determined to be void or invalid by any administrative or judicial
tribunal, that provision shall be deemed severable and the
invalidation shall not invalidate the entirety of this chapter or
nay other provision contained herein,
6,28,160 Prior Ordinances Repealed, All prior ordinances which
are deemed to be inconsistent, in whole or in part, with this
ordinance shall be and hereby are repealed to the extent of such
inconsistency and of no further effect,
SECTION 3 ENFORCEMENT This ordinance shall be effective on the
commencement of the thirty-first day after the date of its
adoption, The City Clerk is instructed to file a certified copy of
this ordinance upon its becoming effective with the Sheriff's
Office of the County of Santa Clara, State of California,
SECTION 4 PUBLICATION The City Clerk shall cause this ordinance
to be published at least once in a newspaper of general
circulation published and circulated in the City within 15 days
after its adoption, in accordance with Government Code §36933,
shall certify to the adoption of this ordinance and shall enter
this certified ordinance, with proof of publication, in the Book
of Ordinances of the Council of this City-
INTRODUCED:
PASSED:
November 6, 1995
November 20, 1995
~
Ayes:
Noes:
Absent:
Abstain:
Members of the City Council-
Bautista, Chang, Dean, Sorensen, Burnett
None
None
None
¿)~
ATTEST-
/ì
l~1A t '-fÁ )?--J/~
ity Clerk'
APPROVED'
/Í JJ)1 ß~
Mayor