80-014e - Cable TV Heritage CableVision, Reso. 7986RESOLUTION NO. 7986
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGRREEN'!ENT BETWEEN HERITAGE CABLEVISION
AND THE CITY OF CUPERTINO FOR RENEWAL OF FRANCHISE
WH12EAS, an agreement between the City of Cupertino and Heritage
Cablevision, outlining the terms and conditions for the renewal of the
franchise authorizing Heritage Cablevision to operate a cable system in
that portion of Cupertino where it presently provides cable television
service has been presented to the City Council; and said agreement having
been approved by the City Manager and the City Attorney;
NOW, THEREFORE, BE IT RESOLVED, that the Mayor and the City Clerk are
hereby authorized to execute the agreement herein referred to in behalf of
the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 20th day of November 1989 by the following vote:
vote Members of the City Council
AYES: Goldman, Koppel, Sorensen, Szabo, Rogers
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornelius
City Clerk
/s/ Barbara A. Rogers
Mayor, City of Cupertino
THIS IS TO CERTIFY 'THAT THE WITHIN
INSTRUMENT ISATRUE AND CORRECTCOPY
OF THE ORIGINAL ON FILE IN THIS OFFICE.
ATTEST CITY DFCUF4RTINOCITYI-C K ❑F THE
oY
[ORDINANCE NO. 1
FRANCHISE AGREEMENT
BETWEEN
THE CITY OF CUPERTINO AND HERITAGE CABLEVISION:
The City of Cupertino, hereinafter referred to as the
"Franchisor," and Heritage Cablevision, hereinafter referred to
as the "Franchisee," hereby agree as follows:
DLOTTTT e.
A. Franchisor is a municipal corporation existing
pursuant to the laws of the State of California, and located in
Santa Clara County, California.
B. Franchisee is a corporation duly organized and
existing pursuant to the laws of the State of Delaware, and doing
business as Heritage Cablevision. Pursuant to the terms of
Cupertino Ordinance No. 934 (June 1979), which incorporated the
terms of San Jose City Ordinance No. 12964 and No. 12800,
Franchisee presently operates a cable system -- as that phrase is
used in 47 U.S.C. §522(b) [Cable Communications Policy Act of
1984, §602(b)] -- in the City of Cupertino.
C. Franchisor presently has in effect Chapter 6.28 of
the Cupertino Municipal Code which governs the Franchising of
cable systems within the City of Cupertino. Section 6.28.010(H)
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of Chapter 6.28 describes cable television systems somewhat dif-
ferently than 47 U.S.C. §522(6), and uses the phrase "CATV
Systems." The parties understand and agree that the phrase
"cable system" in this agreement shall include "CATV System" as
that phrase is used in Chapter 6.28.
D. Franchisee has requested renewal of the Franchise
authorizing it to operate a cable system in that portion of
Cupertino where it presently provides cable television service.
FOLLOWS:
NOW, THEREFORE, FRANCHISOR AND FRANCHISEE AGREE AS
SECTION 1: FRANCHISE RENEWED:
Franchisor hereby renews Franchisee's non-exclusive
Franchise to construct, operate, and maintain a cable system
within that portion of City of Cupertino, described more fully in
Exhibit "A" attached hereto, in accordance with Chapter 6.28 of
the Cupertino Municipal Code (hereinafter Chapter 6.28), except
as the provisions of said Chapter 6.28 may be modified or
excepted herein.
SECTION 2: TERM OF FRANCHISE:
Unless terminated pursuant to the provisions of Chapter
6.28 as modified herein, the term of the Franchise granted hereby
shall be for a period of 15 years. The 15 year term of the
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renewed Franchise shall commence upon the filing of the
Franchisee's written acceptance of the renewed Franchise.
SECTION 3: FRANCHISE FEE:
A. Franchisee shall annually pay to the City of
Cupertino during the term of this Franchise, as a Franchise fee,
a sum equal to five percent (50) of Franchisee's gross revenues.
Said payment shall be in lieu of any business license tax as
required by Chapter 5 of the Cupertino Municipal Code. The
franchise fee shall be paid to franchisor by delivery to the
Cupertino Director of Finance.
Franchise fee payments shall be made quarterly. Within
30 days after the end of each quarter of each calendar year, the
franchisee shall pay to the franchisor the franchise fee for the
immediately preceding quarter year. The franchise fee shall be
accompanied by a financial statement prepared by a certified
public accountant showing, in detail, the gross revenues of the
franchisee, as defined herein.
B. For the purpose of this section, "gross revenues"
shall mean any and all compensation in any form, directly or
indirectly recovered by Franchisee from any subscriber for cable
television service in the City of Cupertino. For the purpose of
calculating Franchisee's franchise fee payments, "gross reve-
nues," shall not include revenue received from installation fees,
line extension fees, advertising, delinquent service charges,
returned check charges, or any taxes or fees on services provided
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by Franchisee which are imposed by a federal, state, or other
governmental unit.
C. The City shall have the right to inspect or audit
the Franchisee's fiscal records. If any independent audit of the
Franchisee's records directed by the City shows a Franchise fee
error in excess of five percent in the City's favor, the
Franchisee shall assume all reasonable costs for the audit. No
acceptance of any payment shall be construed as a release or as
an accord and satisfaction of any claim the City may have for
further additional sums payable under this section for the
performance of any other obligation hereunder.
SECTION 4: NOTICE TO SUBSCRIBER'S OF RATE INCREASES:
Franchisee agrees to provide thirty (30) days' written
notice to each of its subscribers who are subject to a rate
increase imposed by Franchisee.
SECTION 5: PUBLIC, EDUCATIONAL AND GOVERNMENT ACCESS
[PEG] CHANNELS:
As its contribution to and satisfaction of PEG require-
ments, Franchisee agrees to undertake the work necessary, and
make the expenditures necessary, to make available to
Franchisee's Cupertino subscribers, on or prior to October 1,
1990, the signals generated by United Cable Television (or its
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successors) on Channel 30 and Channel 53, on a non -delayed basis,
and of a comparable signal quality.
SECTION 6: FAITHFUL PERFORMANCE BONDS:
A. Faithful Performance Bond: Franchisee shall
maintain in full force and effect for the term of the renewed
franchise, at the franchisee's sole expense, a corporate surety
bond in the amount of $50,000.00, renewable annually, and
conditioned upon the faithful performance of the franchisee, and
upon the further condition that in the event the franchisee fails
to comply with any one or more of the material provisions of this
agreement, there shall be recoverable jointly and severally from
the principal and surety of such bond any damages or loss
suffered by the City as a result thereof, including the full
amount of any compensation, indemnification, or cost of removal
or abandonment of any property of the franchisee as prescribed
hereby which may be in default, plus a reasonable allowance for
attorneys' fees and costs, up to the full amount of the bond.
The bond shall provide that thirty days' prior written notice of
intention not to renew, cancellation, or material change, be
given to the City.
SECTION 7: INSURANCE AND INDEMNIFICATION REQUIREMENTS:
A. The Franchisee shall indemnify and hold harmless
the City, its officers and employees from and against any and all
claims, demands, actions, suits, and proceedings by others,
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against all liability to others, including but not limited to any
liability for damages by reason of or arising out of any viola-
tion of proprietary or copyright interests, and against any loss,
costs, expense and damages resulting therefrom, including reason-
able attorney's fees, arising out of the exercise or enjoyment of
its Franchise irrespective of the amount of the comprehensive
liability insurance policy required hereunder.
B. The Franchisee shall, concurrently with acceptance
of a Franchise renewal granted under this chapter, furnish to the
City and file with the City Clerk, and at all times during the
existence of any Franchise granted hereunder, maintain in full
force and effect, at its own cost and expense, a general compre-
hensive liability insurance policy, in protection of the City,
its officers, boards, commissions, agents and employees in a
company approved by the City Manager and a form satisfactory to
the City Attorney, protecting the City and all persons against
liability for loss or damage for personal injury, death and
property damage, occasioned by the operations of Franchisee under
such Franchise, with minimum liability limits of three hundred
thousand dollars ($300,000) for personal injury or death of any
one person and one million dollars ($1,000,000) for personal
injury or death of two or more persons in any one occurrence, and
two hundred thousand dollars ($200,000) for damage to property
resulting from any one occurrence.
C. The policies mentioned herein shall name the City,
its officers, boards, commissions, agents and employees, as addi-
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tionally insured and shall contain a provision that a written
notice of cancellation or reduction in coverage of the policy
shall be delivered to the City ten days in advance of the effec-
tive date thereof; if such insurance is provided by a policy
which also covers Franchisee or any other entity or person other
than those above named, then such policy shall contain the stan-
dard cross -liability endorsement.
SECTION 8: MAPS:
A. Franchisor and Franchisee agree to utilize large
scale street and photogrametric maps provided by the Franchisor
as the accepted source of information for:
1. Determining the number of dwelling units
within the required Franchise service area;
2. Determining the required service area itself
as of the date of the Franchise renewal award; and
3. Determining the areas where other Franchised
CATV service is offered by others.
Upon development of its system maps, the Franchisee
may object to the Franchisor's dwelling unit information and
request a change in the dwelling unit count. If the Franchisor
and the Franchisee are unable to resolve any dwelling count dif-
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ferences, the City Manager shall arbitrate the matter and his
decision shall be final.
SECTION 9: TRANSFER OF FRANCHISE:
A. This Franchise shall be a privilege held in
personal trust by the Franchisee. The Franchise cannot in any
event be sold, transferred, leased, assigned, or disposed of, in
whole or in part, either by forced or involuntary sale, or by
voluntary sale, merger, consolidation or otherwise, without the
prior consent of the City Council, expressed by resolution.
B. Any such transfer or assignment shall be made only
by an instrument in writing, a duly executed copy of which shall
be filed in the Office of the City Clerk within thirty (30) days
after any such transfer or assignment. The said consent of the
City Council may not be unreasonably withheld; provided, however,
that the proposed assignee or transferee must show financial
responsibility and must agree to comply with all the provisions
of this Agreement, and the documents comprising the Franchise
renewal as set forth in Ordinance enacted by the City Council and
provided, further, that no such consent shall be required for a
transfer in trust, mortgage, or other hypothecation as a whole,
to secure an indebtedness.
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SECTION 10: TIME OF THE ESSENCE:
Time shall be of the essence of this Franchise. The
Franchisee shall not be relieved of its obligation to comply
promptly with any of the provisions of this renewed agreement or
of Chapter 6.28 of the Cupertino Municipal Code (except as
modified or excepted herein) by any failure of the Franchisor to
enforce prompt compliance; provided, however, that acts of God,
labor strikes, unavailability of materials, and any other events
beyond the Franchisee's control shall excuse Franchisee's failure
to promptly perform.
SECTION 11. FRANCHISE NON-EXCLUSIVE:
Neither the granting of this Franchise renewal nor any
of the provisions contained herein shall be construed to prevent
the Franchisor from granting any identical or similar Franchise
to any other person, firm, or corporation within all or any
portion of the City of Cupertino.
SECTION 12: COMPROMISE OF CLAIMS:
On behalf of Franchisor, the City Manager is hereby
authorized and empowered to adjust, settle, or compromise any
controversy or charge made by Franchisee and arising from the
operations of the Franchisee under this agreement for the purpose
of entering into a mutually acceptable Settlement Agreement. Any
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such adjustment, settlement, or compromise shall be made in the
best interests of the public.
SECTION 13: SYSTEM OUTAGE AND SUBSCRIBER COMPLAINT
SERVICE; NOTICES TO SUBSCRIBERS:
A. Franchisee will maintain a subscriber complaint
service operated from Franchisee's main office, and qualified
technicians will be permanent members of Franchisee's staff.
B. Routine handling of customer service requests will
be the responsibility of Franchisee's local staff as follows:
1. A call involving loss of reception on all
channels will be dispatched to the field within twenty-four (24)
hours via two-way radio. If the loss of reception on all
channels affects five (5) or more customers, at any time of the
day or night, repairs will be commenced promptly and pursued
diligently. Total loss of reception involving less than five (5)
customers will be corrected on the same day received, if so
requested by subscriber, except if reported after 2:00 p.m., in
which case correction may be postponed to the following day. The
majority of all outages (total loss of reception on all channels)
will be corrected in four (4) to eight (8) hours or less.
2. The majority of calls involving degraded
reception or single outage will be handle on the same business
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day if received prior to 2:00 p.m. In all cases, such services
calls will be handled no later than the following day.
3. Requests for repairs made after hours or on
weekends shall be answered by an answering service or staff.
Outage calls affecting five (5) or more subscribers will be
referred promptly to the standby technician for resolution in
accordance with subparagraph (b) (1) of this paragraph. Calls
involving degraded service will be reported by the answering
service the next day. The staff will call the customer to
schedule service calls in accordance with subparagraph (2) above.
4. Customers shall be notified by Franchisee of
Service and Complaint policy at the time of initial installation
and at least yearly thereafter. Such notification shall
include: Franchisee's telephone number for requesting service,
hours and conditions of service, and procedure for registering
complaints for unsatisfactory service.
C. Franchisee shall maintain a data base or "log,"
listing date of consumer complaints, identifying the subscriber
and describing the nature of the complaint, and when and what
action was taken by the Franchisee in response thereto. This log
shall be kept at Franchisee's local office for the term of this
extension and renewal, and shall be available for inspection by
the City Manager or any other duly authorized representative of
the City during regular business hours without further notice.
In addition, a copy of new entries on the log, if any, shall be
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mailed to the City Manager or the City Manager's designated
representative on a monthly basis.
D. In the event of service interruption of more than
twenty-four (24) consecutive hours, or unresolved service
complaint not caused by the subscriber resulting in a degraded
signal for more than twenty-four (24) consecutive hours,
Franchisee shall, at the request of the subscriber, credit the
subscriber's account on a pro rata basis as an offset to the
monthly billing charge. Franchisee may, if the Franchisee deems
appropriate, credit the subscriber's account for the full period
of outages of less than twenty-four (24) hours on a case -by -case
basis. The subscriber must allow, within a reasonable time, the
service technicians access to the problem if located on the
subscriber's property, or forfeit any claim for refund due for
service outage.
E. Franchisee will not be responsible for problems
created by subscribers or for problems caused by subscriber -owned
equipment.
F. The service standards listed in this section are
meant as guidelines and should be adhered to in at least eighty
percent (80%) of cases under normal conditions. Neither isolated
cases of non-conformance nor failure to meet these standards
during extreme conditions shall constitute violations of the
terms of this extension and renewal.
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SECTION 14: SIGNAL QUALITY
On at least one occasion annually, Franchisee shall test
its cable distribution system at one location within Franchisor's
city limits for the purpose of verifying the cable system's sig-
nal quality and compliance with F.C.C. technical guidelines.
Within 60 days of conducting this test, Franchisee shall provide
Franchisor with the results of the annual test of the Cupertino
portion of Franchisee's system.
SECTION 15: NONCOMPLIANCE
In the event that Franchisee has failed to comply with
any significant provision of this Franchise Renewal, or has, by
act or omission, violated any term or condition of any permit
issued hereunder, any such Franchise Renewal may be terminated in
accordance with the provisions of this section. Prior to such
termination, the City must give notice to the Franchisee of any
noncompliance, and that such noncompliance must be cured within
sixty (60) days, which period may be extended for one additional
sixty (60) day period. In the event that said noncompliance is
not remedied within the aforesaid cure period, the City shall
hold a public hearing at which findings shall be made and said
Franchise may be continued, terminated, or continued subject to
performance of such conditions as the City Council may provide.
Franchisor and Franchisee also retain all rights under the Cable
Communications Policy Act of 1984.
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SECTION 16: FILING AND NOTICE PROCEDURES:
A. When not otherwise prescribed herein, all matters
required to be filed with the Franchisor shall be filed with the
City Clerk.
Any notice, request, demand, or other communication
required or permitted hereunder shall be deemed to be properly
given when deposited in the United States mail, postage prepaid,
or when deposited with a public telegraph company for
transmittal, charges prepaid, addressed:
1. In care of Franchisor to City of Cupertino,
City Manager, P. 0. Box 580, Cupertino, California, 95015 or to
such other person or address as Franchisor may from time to time
furnish to Franchisee.
2. In care of the Franchisee to Heritage Cable -
vision, 234 East Gish Road, San Jose, California 95112. The
Franchisee may from time to time furnish the Franchisor with the
names and addresses of other persons or entities to whom
communications should be sent.
SECTION 17: SEVERABILITY OF TERMS:
The illegality of any particular provision of this
agreement shall not affect the other provisions thereof, but the
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agreement shall be construed in all respects as if such invalid
provisions were omitted.
SECTION 18: PROVISIONS EXCEPTED:
Except as specifically provided herein, Franchisee shall
be subject to all provisions of the Cupertino Municipal Code,
including Chapter 6.28, provided, however, that the following
provisions of Chapter 6.28 are excepted, and are not applicable
to the Franchisee: §§6.28.030(A), 6.28.045-.100, 6.28.140-.190,
6.28.220-.246, 6.28.247(4), 6.28.260-.270. To the extent that
this renewal ordinance conflicts with Chapter 6.28 or other City
ordinances, the terms and provisions of this ordinance shall
control.
Executed on /Z - 1 , 1989.
AT T T:
OY� ity Clerk
CITY OF CUPERTINO
By �C' �'• t
or, City of C rtino
Executed on lJecemlley )S- , 1989.
HERITAGE CABLEVISION
By
Its President & General Manager
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STATE OF CALIFORNIA )
ss.
COUNTY
On `lfcetNber l , 1989, before me, the undersigned,
a Notary Public in and for said State, personally
appearedD ,�;` .�G7r��r`Pr, personally known to me
(or provided to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within
FRANCHISE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND HERITAGE
CABLEVISION and acknowledged to me that he executed the same.
WITNESS my hand and official seal.
Y4�
[:NOTARY
OFFICIAL SEAL
SHERRY A HYDE Notary Public in and for
PUBLIC - CALIFORNIA the State of California
SANTA CLARA COUNTY
MY comm. expires MAY 14, I'll
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