80-014 - Cable TV United Cable Television - Reso 5454FRANCHISE AGREEMENT
between
THE CITY OF CUPERTINO
and
UNITED CABLE TELEVISION OF CUPERTINO
The City of Cupertino, hereinafter called the
"Franchisor," and United Cable Television of Cupertino, Inc.,
hereinafter called the "Franchisee," in consideration of the
promises made herein and intending to be legally bound, agree as
follows:
ARTICLE 1. LEGAL STATUS
Section 1.01.
The Franchisor is a municipal corporation existing under
and by virtue of the laws of the State of California, and located
in Santa Clara County, California.
Section 1.02.
The Franchisee is a Corporation duly organized and
existing under the laws of the State of California. The
Franchisee's principal place of business shall be selected within
sixty (60) days from the date hereof. Promptly upon its
selection, the Franchisee shall notify the Franchisor as to the
location of the Franchisee's principal place of business.
ARTICLE 2. FRANCHISE
Section 2.01.
The Franchisor hereby grants to the Franchisee a
non-gxclusive franchise to construct, operate, and maintain a
community antenna television system within the City of Cupertino
in accordance with Chapter 6.28 of the Cupertino Municipal Code.
Section 2.02.
The Franchisee hereby agrees to provide community
antenna television system services to the areas of the City of
Cupertino, designated as mandatory service areas in Exhibit "A", attached
hereto and by this reference made a part hereof, The Franchisee shall have the
right, but not the obligation, to provide community antenna
television system services to other areas of the City of Cupertino
designated as optional service areas in Exhibit "A". However, the Franchisee shall
extend community antenna television system service to newly
developed or annexed areas of the City of Cupertino where housing
density exceeds forty (40) homes per street mile within six months
of said development or annexation unless a justified different
time period is authorized by the City Manager.
Community antenna television system services shall
include those services described in the application dated
December 27, 1979, from United Cable Television for the franchise
as modified by the representations contained in a letter dated
August 29, 1980, from United Cable Television Corporation to
Mr. Robert Quinlan, City Manager, City of Cupertino. A copy of
said letter is attached hereto as Exhibit "B" and by this
reference made a part hereof.
Section 2.03.
Unless previously terminated, as hereinafter provided,
this Franchise shall be for a period of fifteen (15) years.
The term of the franchise shall commence when the
requirements of Section 6.28.230, Chapter 6.28 of the
Cupertino Municipal Code have been met.
In no event shall the term of the Franchise commence
before the effective date of Ordinance No. 930 of the City of
Cupertino, passed and adopted on September 15, 1980.
Section 2.04.
Provided that the covenants and undertaking which
Franchisee has assumed are faithfully and truly performed, the
Franchisee may apply to the City Council of the City of Cupertino
for renewal of the Franchise for successive fifteen (15) year
terms. The application of the Franchisee for renewal of the
Franchise shall comply with all provisions of Section 6.28.210 of
Chapter 6.28 of the Cupertino Municipal Code, except those which
are by their terms expressly inapplicable; provided, however, that
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the City Council of the City of Cupertino may, at its option,
waive compliance with any or all of the requirements of Section
6.28.210 of Chapter 6.28 of the Cupertino Municipal Code.
Section 2.05.
The Franchisee shall pay to the Franchisor, during the
term of this Franchise, a sum equal to five percent (50) annually
of the Basic Service Gross Receipts of the Franchisee, together
with a sum equal to five percent (50) annually of the Additional
Service Net Receipts of the Franchisee. Said payment shall be in
lieu of any business license tax as provided for in Chapter 5 of
the Cupertino Municipal Code.
In addition to the above payments, Franchisee shall pay
to the citizens' cable communications advisory board established
by the City Council of the City of Cupertino, a sum equal to one
percent (1%) annually of the Basic Service Gross Receipts of the
Franchisee, together with a sum equal to one percent (10) annually
of the Additional Service Net Receipts of the Franchisee.
In the event that the FCC requires a reduction in the franchise
payment to the franchisor, the percentage amount so disallowed by the FCC
shall be paid by the franchisee to the citizens cable communications advisory
board estabished by the City Council of the City of Cupertino.
"Basic Service Gross Receipts" and "Additional Service
Net Receipts" are defined in Section 6.28.010, Chapter 6.28, of
the Cupertino Municipal Code.
The franchise fee payments shall be made annually to the
City Clerk. The Franchisee shall file with the Franchisor, within
ninety (90) days after the expiration of the Franchisee's fiscal
year or portion thereof during which such franchise is in force, a
financial statement which shall include a balance sheet and
profit/loss statement prepared by a certified public accountant,
or person otherwise satisfactory to the City Council, showing in
detail the gross and net receipts as defined in Section 6.28.010
of Chapter 6.28 of the Cupertino Municipal Code, of Franchisee
during the preceding calendar year or portion thereof. It shall
be the duty of the Franchisee to pay to the Franchisor, within
fifteen (15) days after the time for filing such statements, the
sum hereinabove prescribed or any unpaid balance thereof for the
calendar year or portion thereof covered by such statements.
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The Franchisor 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 Franchisor shows a
franchise fee error in excess of five percent (50) in the
Franchisor's favor, the Franchisee shall assume all reasonable
costs for said audit.
No acceptance of any payment shall be construed as a
release or as an accord and satisfaction of any claim the
Franchisor may have for further additional sums payable under this
section or for the performance of any other obligation hereunder.
If any payment is not made within the time limits above
described, the Franchisee shall pay a penalty in the amount of ten
percent (10%) per month on the unpaid balance until said amount is
paid. In the event that there is a dispute between the Franchisor
and the Franchisee as to the amount of the franchise fee payment
properly due from the Franchisee to the Franchisor, no penalty
shall be assessed against the Franchisee and/or paid by the
Franchisee if resolution of the dispute results in a finding that
no further franchise fee payments are due from the Franchisee.
In addition to any other remedy provided in Chapter 6.28
of the Cupertino Municipal Code to insure payment of said sums,
the Franchisor shall have the right to bring a civil action
against the Franchisee for collection of said sums.
ARTICLE 3. OPERATIONS
Section 3.01.
Franchisee is authorized to engage in the business of
opera,ting and providing a community antenna television system in
the City of Cupertino. For that purpose, the Franchisee may
erect, install, construct, -repair, replace, reconstruct, maintain,
and retain in, on, over, under, upon, across, and along any public
street such poles, wires, cable, conductors, ducts, conduit,
valuts, manholes, amplifiers, applicances, attachments, and other
property as may be necessary and appurtenant to the community
antenna television system; and, in addition, so to use, operate,
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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 franchisee franchised or permitted
to do business in the City of Cupertino.
Section 3.02.
The grant of this franchise does not relieve that
Franchisee of any obligation involved in obtaining pole space from
any department of the City of Cupertino, utility company, or from
others maintaining poles in streets.
When a portion of the community antenna television
system is to be installed on public utility poles and facilities,
the Franchisee shall, upon request by the Franchisor, file with
the City Clerk certified copies of the agreements for such joint
use of poles and facilities.
Section 3.03.
Any poles, wires, cable lines, conduits, or other
properties of the Franchisee 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 Director
of Public Works acting in the exercise of his reasonable
discretion. Any poles, wires, cable lines, conduits, or other
properties of the Franchisee to be constructed or installed in
public utility easements shall be so constructed or installed in
such manner as shall be approved by the Director of Public Works
acting in the exercise of his reasonable discretion. Such
approval shall not be needed wherever the property of the
Franchisee is to be attached to, constructed, or installed on
existing aerial public property.
Section 3.04.
The Franchisor shall notify the Franchisee of any
planned relocation of public streets or public rights -of -way in
advance of said relocation; and, whenever possible, in advance of
any attachments to construction or installation in said public
streets or public rights -of -way.
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Section 3.05.
In those areas and portions of the City where the
transmission of distribution facilities of both the public utility
providing telephone service and those of the utility providing
electric service are underground or hereafter may be placed
underground, then the Franchisee 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, i.e., streamlining.
Amplifiers in Franchisee's transmission and distribution lines may
be in appropriate enclosures upon the surface of the ground as
approved by the Director of Public Works.
Section 3.06.
Within thirty (30) days after acceptance of any
franchise, the Franchisee shall apply for and diligently pursue
all necessary permits and authorizations which are required in the
conduct of its business, including, but not limited to, any
utility joint use attachment agreements, microwave carrier
licenses, and any other permits, licenses, and authorizations to
be granted by duly constituted regulatory agencies having
jurisdiction over the operation of community antenna television
systems, or their associated signal transmission facilities.
Section 3.07.
Within ninety (90) days after obtaining all necessary
permits, licenses and authorizations, necessary materials,
contractors, easements and clearances, Franchisee shall commence
construction and installation of the community antenna television
system.
Section 3.08.
Within ninety (90) days after the commencement of
construction and installation of the system, Franchisee shall
proceed to render service to subscribers, and the completion of
the construction and installaton shall be pursued with reasonable
diligence thereafter, so that service to all areas designated on
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the map accompanying this Franchise Agreement shall be provided.
Section 3.09.
By acceptance of the Franchise granted hereunder,
Franchisee agrees that negligent or willful failure to comply with any time
requirements referred to in Sections 3.06, 3.07, and 3.08, or as
extended by the City Council, will result in damage to the
Franchisor, and that it is and will be impracticable to determine
the actual amount of such damage in the event of delay; and
Franchisee therefore agrees that, in addition to any other damage
suffered by Franchisor, it will pay to the Franchisor the sun of
five hundred dollars ($500.00) per day for each and every day's
delay beyond the time prescribed, plus authorized extensions
thereof, for the completion of any of the acts required to be done
by this sections 3.06, 3.07, and 3.08.
Section 3.10.
In the event that the use of any part of the community
antenna television system, excluding service drops, is
discontinued for any reason for a continuous period of twelve (12)
months, or in the event such system or property has been installed
in any street or public place without complying with the
requirements contained herein or in Chapter 6.28 of the Cupertino
Municipal Code, or the Franchise has been terminated, cancelled,
or has expired, the Franchisee shall promptly, upon being given
thirty (30) days notice, remove from the streets or public places
all such property and poles of such system other than any which
the Director of Public Works may permit to be abandoned in place.
In tYe event of such removal, the Franchisee shall promptly
restore the street or other area from which such property has been
removed to a condition satisfactory to the Director of Public
Works.
Section 3.11.
Any property of the Franchisee remaining in place one
hundred eighty (180) days after the termination or expiration of
the Franchise shall be considered permanently abandoned. The
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Director of Public Works may extend such time not to exceed an
additional thirty (30) days.
Section 3.12.
Any property of the Franchisee to be abandoned in place
shall:be abandoned in such manner as the Director of Public Works
shall prescribe, following written notice to the Franchisor of
Franchisee's intention to abandon said property, or following
written notice by the Franchisor of the expiration of the time
period stated above. Upon permanent abandonment of the property
of the Franchisee in place, the property shall become that of the
Franchisor, and the Franchisee shall submit to the Director of
Public Works an instrument in writing, to be approved by the City
Attorney, transferring to the Franchisor the ownership of such
property.
CHANGES REQUIRED BY PUBLIC IMPROVEMENT
Section 3.13.
The Franchisee shall, at its expense, 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 Franchisee when required by the Director of Public
Works 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 any other type of
structure of improvements by public agencies; provided, however,
that the Franchisee shall in all such cases have the privileges
and 8e subject to the obligations to abandon any property of the
Franchisee in place. Any relocation of Franchisee's facilities
necessitated by actions other than those stated above shall be at
the expense of the persons responsible therefor.
Section_ 3.14.
Upon failure of the Franchisee to commence, pursue, or
complete any work required by law, by the provisions of Chapter
6.28 of the Cupertino Municipal Code, or by its franchise to be
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done in any street or other public place, following notice and
request for such performance, within the time prescribed, and to
the satisfaction of the Director of Public Works, the Director of
Public Works may, at his option, cause such work to be done and
the Franchisee shall pay to the Franchisor the cost thereof in the
itemized amounts reported by the Director of Public Works to the
Franchisee within thirty (30) days after receipt of such itemized
report. If repayment is not made within thirty (30) days, the
cash bond or line of credit hereinafter required may be used for
this purpose.
SUBSCRIBER RATES AND CHARGES
Section 3.15.
The Franchisee shall charge its subscribers and users
the rates and charges as described in Exhibit "C", which is
attached hereto and incorporated herein by this reference.
Franchisee shall not arbitrarily refuse service to
any person, firm, or corporation in the existing service area of
the Franchisee; provided, however, that the Franchisee is not
required to provide service to any subscriber who does not pay the
applicable connection fee or monthly service charge. The
Franchisee shall provide free basic (non -premium) service to
schools within the City of Cupertino, City Hall, and the Library,
provided that such locations are passed by transmission cable
maintained for the service of paying subscribers. An installation
charge based on the cost of materials, labor, and easements will
be charged in the event that service to such public buildings
requires the installation of underground cable or a service
connection cable greater than one hundred fifty (150) feet in
length.
The City Council of the City of Cupertino shall have the
right and the power at all times during the term of the Franchise
to regulate and establish reasonable rates and charges by
Franchisee for franchise services consistent with applicable FCC
rules and California law.
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No increase in any of the subscriber rates shall be
authorized by the City Council for a period of three (3) years.
After said three (3) year period, no increase in the
basic service rates and charges may be made until the cable system
is completed and an increase authorized by the City Council.
Unless otherwise directed by the City Council, future
rate increases shall be based on the criteria set forth in Section
6.28.045, Chapter 6.28 of the Cupertino Municipal Code.
In the event a rate increase is granted by the City
Council as requested, the Franchisee shall refrain from applying
for further increases for a period of eighteen (18) months from
the date of the prior filing. If the rate request is denied, or a
lesser increase than requested is approved, the Franchisee shall
refrain from applying for further increases for a period of twelve
(12) months from the date of the prior filing.
REPAIR AND SUBSCRIBER COMPLAINTS
Section 3.16.
The Franchisee shall:
A. Render efficient service, making repairs promptly
and interrupting service only for good cause and for the shortest
time possible; such interruptions insofar as possible shall be
preceded by notice given to subscribers twenty-four (24) hours in
advance and shall occur during period of minimum use of the
system.
B. Limit system failures to minimum time duration by
locating and correcting malfunctions promptly but, in no event,
any longer than twenty-four (24) hours after occurrence, if
reasonably possible, irrespective of holidays or other nonbusiness
hours. No charge shall be made to the subscriber for this
service.
C. Establish procedures for -receiving, acting upon and
resolving subscriber complaints to the satisfaction of the City
Manager. The Franchisee shall furnish notice of such procedures
to each subscriber at the time of initial subscription to the
system.
D. Maintain a retrievable record, or "log" listing date
and time of customer complaints, identifying the subscriber and
describing the nature of the complaints and when and what action
was taken by the Franchisee in response thereto; such record shall
be kept at Franchisee's local office, reflecting the operations to
date for a period of at least three (3) years, and shall be
available for inspection during regular business hours without
further notice or demand by the City Manager.
E. The Franchisee shall obtain from each subscriber who
contracts with the Franchisee for security services a signed form
acknowledging an understanding on the part of the subscriber of
the nature of the applicable municipal and other codes relating to
security and/or alarm services and the penalty liabilities said
subscriber incurs when accepting such services. A synopsis, no
longer than one-half page, of the applicable codes printed on the
Franchisee's work order form is acceptable.
Section 3.17.
In the event that a customer complaint is not resolved
to the mutual satisfaction of the customer and the Franchisee,
either the customer or the Franchisee may request that the matter
be presented to the City Manager for a hearing and resolution.
Section 3.18.
When there have been similar complaints made or where
there exists other evidence which, in the judgment of the City
Manager casts doubt on the reliability or quality of cable
service, the City Manager shall have the right and authority to
compel the Franchisee to test, analyze, and report on the
performance of that part of the system involved in the problem.
Such test or tests shall be made and the reports of such test or
tests shall be delivered to the Franchisee no later than fourteen
(14) days after the City Manager formally makes such a request of
the Franchisee. Such report shall include the following
information: the nature of the complaint which precipitated the
special tests; what system component was tested; the equipment
used and procedures employed if complaints were resolved. Any
other information pertinent to the special test shall also be
recorded.
The Franchisor's rights under this section shall be
limited to requiring tests, analyzses, and reports covering
specific subjects and characteristics based on said complaints or
other evidence, when and under such circumstances as the
Franchisor has reasonable grounds to believe that the complaints
or other evidence require that tests be performed to protect the
public against substandard cable service.
INADEQUATE SERVICE REMEDIES
Section 3.19.
In the event and upon notice to the Franchisor that its
service to any group of five (5) or more subscribers served by a
common distribution feed is interrupted for forty-eight (48) or
more consecutive hours, except for acts of God, acts beyond the
control of the Franchisee, and except in circumstances for which
the prior approval of the interruption is obtained from the City
Manager, Franchisee shall pay a fine to the Franchisor as a duly
levied penalty up to five hundred dollars ($500.00) per day. The
City Manager shall rule to the applicability of said penalty with
appeal by the Franchisee available via the City Council.
Section 3.20.
In the event that the system fails to meet the
requirements of substantial technical compliance for a full three
(3) month period, Franchisee shall pay a fine to the Franchisor as
a duly levied penalty in the amount of one hundred dollars
($100.00) per day until a level of substantial compliance with the
technical standards herein contained is demonstrated by the
Franchisee. The City Manager shall notify the Franchisee durinq
the first month of the three (3) month period that the system has
failed to meet performance standards.
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MAINTENANCE AND INSPECTION OF RECORDS AND PROPERTY
Section 3.21.
Franchisee shall maintain and make available for public
inspection at the Cupertino main office of the Franchisee during
normal business hours a list of all local cable company
stockholders and their percentage ownership in the Franchisee.
Section 3.22.
Upon written request and during normal business hours,
the Franchisee shall permit any duly authorized representative of
the Franchisor to examine all property of the Franchisee, together
with any appurtenant property of the Franchisee situated within or
without the City of Cupertino, and to examine and transcribe any
and all maps and other records kept or maintained by the
Franchisee or under its control which deal with the operation,
affairs, transactions, or property of the Franchisee with respect
to its franchise. If any such maps or records are not kept in the
City of Cupertino, or upon reasonable request made available in
the City of Cupertino, and if the City 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 Franchisee. Franchisee shall
provide to the City Engineer annually a current map indicating the
existing district system and location of its facilities and
equipment, which map shall be revised and updated at least once
each calendar year.
Section 3.23.
The Franchisee shall prepare and furnish to the Director
of Public Works and the City Manager at the times and in the form
prescribed by either of said officers, such reports with respect
to its operations, affairs, transactions or property, as may be
reasonably necessary or appropriate to the performance of any of
the rights, functions or duties of the City or anv of its officers
in connection with the franchise.
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Section 3.24.
The Franchisee shall at all times maintain at its local
office for public inspection file containing copies of all reports
required by Federal Communications (FCC) Rules and Regulations,
Part 76, Subpart H (General Operating Requirements) as the same
now exist or may hereafter be changed or amended.
Section 3.25.
The Franchisee shall submit copies of all reports
required by Federal Communications Commission (FCC Rules and
Regulations, Part 76, Subpart 1, Forms and Reports) as the same
now exist or may hereafter be changed or amended including, but
not limited to, FCC Form 325, FCC Form 326, FCC Form 326-A and FCC
Form 395. Said documentation must be submitted to the City
Manager concurrent with submittal to the FCC, unless said
requirement is waived from time to time by the City Manager.
Section 3.26.
The Franchisee shall give formal notice to the
Franchisor that it has filed a signal registration statement or
subsequently required equivalent registration or application with
the Federal Communications Commission, (FCC). Within ten (10)
calendar days after filing such a statement with the FCC, the
Franchisee shall file two (2) copies of its statement with the
City Manager unless said requirement is waived from time to time
by the City Manager.
Section 3.27.
Franchisee shall submit copies of all petitions,
applications, reports and communications of all types submitted by
Franchisee to the Federal Communications Commission, Securities
and Exchange Commission, California Public Utilities Commission,
or any other Federal or State regulatory commission or agency
having jurisdiction over any matter affecting operation of
Franchisee's Cable System simultaneously to the Franchisor by
delivery to the City Clerk who shall advise interested City
departments of such filing.
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BONDS, INSURANCE AND INDEMNIFICATION
Section 3.28.
The Franchisee shall, concurrently with the filing of
its acceptance of this Agreement, file with the City Clerk, and at
all times thereafter maintain in full force and effect for the
term of such franchise or any renewal thereof, at Franchisee's
sole expense, a corporate surety bond in a company and in a form
approved by the City Attorney, in the amount of fifteen thousand
dollars ($15,000), renewable annually, and conditioned that in the
event Franchisee shall fail to comply with any one or more of the
provisions of Chapter 6.28 of the Cupertino Municipal Code, or 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 Franchisor 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
attorney's fees and costs, up to the full amount of the bond; said
conditions to be a continuing obligation for the duration of such
franchise and any renewal thereof and thereafter until the
Franchisee has liquidated all acceptance of said franchise or
renewal by the Franchisee or from its exercise of any privilege
therein granted. The bond shall provide that thirty (30) days'
prior: written notice of intention not to renew, cancellation, or
material change, be given to the Franchisor.
Neither the provisions of this section, nor any bond
accepted by the Franchisor pursuant hereto, nor any damages
recovered by the Franchisor thereunder, shall be construed to
excuse faithful performance by the Franchisee or limit the
liability of the Franchisee under this Agreement or for damages,
either to the full amount of the bond or otherwise.
Section 3.29.
The Franchisee shall indemnify and save harmless the
Franchisor, its officers and employees from and against any and
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all claims, demands, actions, suits, and proceedings by others,
against all liability to others, including but not limited to any
liability for damages by reason of or arising out of any violation
of proprietary or' copyright interests, and against any loss, cost,
expense and damages resulting therefrom, including reasonable
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.
Section 3.30.
The Franchisee shall, concurrently with the filing of
this Agreement, furnish to the Franchisor and file with the City
Clerk, and at all times during the existence of the franchise
granted, maintain in full force and effect, at its own cost and
expense, a general comprehensive liability insurance policy, in
protection of the Franchisor, its officers, boards, commissions,
agents and employees in a company approved by the City Managger
and a form satisfactory to the City Attorney, protecting the
Franchisor and all persons against liability for loss or damage
for personal injury, death and property damage, occasioned by the
operations of Franchisee under the 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 (2) or more
persons in any one occurrence, and two hundred thousand dollars
($200,000) for damage to property resulting from any one
occurrence.
The policies mentioned in the foregoing paragraph shall
name the Franchisor, its officers, boards, commissions, agents and
employees, as additionally insured and shall contain a provision
that a written notice of cancellation or reduction in coverage of
said policy shall be delivered to the Franchisor ten (10) days in
advance of the effective 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
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shall contain the standard cross -liability endorsement.
Section 3.31.
The Franchisee must post a cash bond or letter of credit
payable on demand to the Franchisor, from a federal or State of
California bank or savings and loan association in the name of the
City of Cupertino in the amount of fifty thousand dollars
($50,000) for use by the Franchisor to repair, replace or restore
streets or other public facilities damaged by the Franchisee's
work. The Franchisor shall have the right to withdraw sufficient
funds for such repairs following fifteen (15) days written notice
to the Franchisor that such repairs are necessary and the
Franchisee fails to perform necessary repair, replacement or
restoration. Upon such withdrawals, said cash bond shall be
replenished by the Franchisee to its full original amount.
Interest from cash bond shall be reserved to the Franchisee on
terms and conditions approved by the City Manager. The above
street repair bond or letter of credit may be withdrawn by the
Franchisee and substituted by a five thousand dollar ($5,000) cash
bond or letter of credit, payable on demand to the Franchisor,
upon substantial completion of the community antenna television
system.
OPERATIONAI,, STANDARDS
Section 3.32.
The cable system permitted to be installed and operated
by the Franchisee shall conform to the system -functional
performance requirements as specified in the following documents:
(a) Application dated December 27, 1979, from United
Cable Television Corporation for the franchise;
(b) Letter dated August 29, 1980, from United Cable
Television Corporation to Mr. Robert Quinlan, City Manager, City
of Cupertino; and
(c) Section 6.28.180 of Chapter 5.28 of the Cupertino
Municipal Code.
In the event of any conflict between or among the
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provisions contained in the above listed documents, the more
stringent standards shall be deemed controlling.
Section 3.33.
Franchisee shall design, install, maintain and test the
cable system in accordance with the technical performance
standards as specified in the following documents:
(a) Application dated December 27, 1979, from United
Cable Television Corporation for the franchise;
(b) Letter dated August 29, 1980, from United Cable
Television Corporation to Mr. Robert Quinlan, City Manager, City
of Cupertino; and
(c) Section 6.28.180 of Chapter 6.28 of the Cupertino
Municipal Code.
In the event of any conflict between or among the
provisions contained in the above listed documents, the more
stringent standards shall be deemed controlling.
Section 3.34.
The Franchisee shall connect the following points
initially on the institutional cable network:
(a) DeAnza College Learning Center and Flint Center;
(b) City Hall, City of Cupertino;
(c) Public Library, City of Cupertino;
(d) All high schools within the city limits of the
Franchisor; and
(e) Wilson School, City of Cupertino.
Section 3.35.
Franchisee acknowledges and agrees that DeAnza College
shall be an origination point for the educational access channel.
In connection therewith, the Franchisee shall:
(a) Provide appropriate electric apparatus (modulator,
etc.) at DeAnza College for educational channel activation via the
institutional network;
(b) Provide to DeAnza College an electronic colorized
character generator suitable for use during non -program time on
=BM
the educational access channel;
(c) Provide to DeAnza College, on a real time basis via
the institutional network or other suitable means, programs
carried by the Appalachian Community Service Network so long as
such network is technically and legally available to Franchisee
via satellite;
(d) Provide to DeAnza College, on permission of the
originator, access to all non -premium programming available on the
cable and institutional networks except for private user
programming and grant permission for their non-commercial
distribution on campus via closed circuit facilities and/or to
other public agency sites via the institutional network;
(e) Reasonably cooperate with DeAnza College to provide
the use of satellite receiving capability when said use will not
interfere with normal system operations;
(f) Provide to DeAnza College staff reasonable access
to cable company personnel for advice on technical, programming,
management, and other matters relating to the operation of the
educational access channel; and
(g) Provide reasonable access to the cable company
studio, mobile production van, personnel, and equipment for the
purpose of producing educational access programming.
Section 3.36.
Franchisee shall provide program listings and
advertisement space for college and community events in the
Viewer's Guide provided to all subscribers by the Franchisee.
Section 3.37.
Franchisee shall cooperate in grant applications
initiated by DeAnza College and/or other Cupertino community
agencies seeking funding for expansion of local access
operations.
Section 3.38.
Franchisee shall reserve for future use a second
educational access channel on the system. Until such time as the
AGM
initial educational access channel is utilized over 80% of the
normal broadcast day for a three (3) month consecutive period, the
Franchisee may temporarily use the reserved channel for other
purposes.
Section 3.39.
Franchisee shall make available for use in Cupertino on
a scheduled first priority basis the mobile television production
van which the Franchisee has agreed to provide as a part of the
minimum complement of production equipment.
Section 3.40.
Within thirty (30) days from the date hereof, Franchisee
shall'submit a letter satisfactory to the Franchisor functionally
describing the technical capability and equipment for the proposed
local studio and mobile van.
Section 3.41.
In order to verify the Franchisee's adherence to the
terms and conditions of the franchise, an independent engineering
firm ,shall review the design, spot examine the installation, and
witness the initial proof of performance testing of the system.
If said proof of performance tests show that the community antenna
television system is significantly below the performance standards
specified herein, Franchisor shall give notice thereof to
Franchisee and Franchisee shall have thirty (30) days to correct
said deficiency. If Franchisee fails to correct said deficiency
within this time, Franchisor may request mutually agreed upon
independent engineers to demonstrate, at Franchisee's cost, the
appropriate correction to the Franchisee. Franchisee shall then
have sixty (60) days or other approved reasonable time required,
to correct the deficiency. If the deficiency still has not been
corrected, the Franchisor shall have the option to terminate this
franchise, subject to the Franchisor's rights, requirements and
restrictions regarding termination of this franchise as provided
in Article 4.
- 20 -
ARTICLE 4. --TERMINATION
In the event that the Franchisee has failed to comply
with any significant provision of Chapter 6.28 of the Cupertino
Municipal Code or of this Agreement, or has, by act or omission,
violated any material term or condition of the franchise, the
franchise may be terminated in accordance with the provisions of
Section 6.28.050, Chapter 6.28 of the Cupertino Municipal Code.
Upon termination of the franchise, as hereinabove
provided, or upon the expiration of the term of the franchise, the
facilities, rights, and equipment comprising the community antenna
television system of the franchise, or any material part thereof,
may be purchased by the Franchisor according to the following
terms and conditions:
A. Franchisor shall Ibe granted a right of first
refusal, whereby it may elect to purchase all or any part of said
community antenna television system, at a cost to Franchisor equal
to any bona fide purchase offer made by a third party to the
Franchisee.
B. Franchisee shall notify the Franchisor within ten
(10) days in writing, of any bona fide purchase offer made by a
third party. Thereupon, the Franchisor shall have sixty (60) days
within which to elect to purchase that part of the community
antenna television system described in said offer. Within such
period Franchisee shall not remove, destroy, transfer, replace or
render inoperative any material part of the system so described.
ARTICLE 5. - MISCELLANEOUS PROVISIONS
Section 5.01.
Franchisor acknowledges the existence of statutes of the
State of California which, under specified conditions, would
permit the Franchisee to deregulate community antenna television
system service rates under this franchise.
Section 5.02.
Franchisor and Franchisee agree to utilize large scale
street and photogrametric maps provided by the Franchisor as the
- 21 -
accepted source of information for:
A. Determining the number of dwelling units within the
required franchise service area;
B. Determining the required service area itself as of
the date of the franchise award; and
C. Determining the areas where other franchised
community antenna television system 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 differences,
the City Manager shall arbitrate the matter and his decision shall
be final.
Section 5.03.
The City Council of the City of Cupertino shall have the
power and the right at all times during the term of the term of
the franchise to require the Franchisee to conform to reasonable
rules and regulations now or hereafter adopted by the City Council
of the City of Cupertino.
Section 5.04.
No privilege or exemption is granted or conferred upon
the Franchisee except those specifically prescribed herein.
Section 5.05.
Any privilege claimed under this franchise by the
Franchisee in any street or other public property shall be
subordinate to any prior lawful occupancy of the streets or other
public property, and shall be superior to subsequent conflicting
claims to such occupancy made by any agency not acquiring such
rights by lawful exercise of the power of eminent domain.
Section 5.06.
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
- 22 -
sale, merger, consolidation or otherwise, without the prior
consent of the City Council, expressed by resolution, and then
only under such conditions as may therein be prescribed. Sale,
transfer, leasing, or assignment of this franchise shall not be
permitted for a period of at least one (1) year after the
Franchisee has completed all agreed system construction, the
system is judged satisfactory, and the system is supplying the
proposed level of service to paying subscribers in said required
franchise service areas.
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, Chapter 6.28 of the Cupertino Municipal Code, and
the documents comprising the franchise as set forth in Resolution
No. 5410 adopted by the City Council on September 15, 1980; 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.
Section 5.07.
Time shall be of the essence of this franchise. The
Franchisee shall not be relieved of its obligation to comply
promptly with any and all of the provisions of Chapter 6.28 of the
Cupertino Municipal Code or 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 5.08.
Any right or power in, or duty impressed upon any
officer, employee, department, or board of the Franchisor shall be
- 23 -
subject to transfer by the Franchisor to any other officer,
employee, department, or board of the City of Cupertino.
Section 5.09.
The Franchisor shall not be liable for any amounts of
consequential, special, or exemplary damages, costs or expense not
directly arising from any provision, requirement, or enforcement
of Chapter 6.28 of the Cupertino Municipal Code or of this
Agreement.
Section 5.10.
Nothing herein shall be construed to impair or affect, in any way,
the right of the Franchisor to acquire the property of the Franchisee through
the lawful exercise of the right of eminent domain, the price of which shall
not include any amount for the franchise iteself or for any of the rights or
privileges granted by the franchise, and nothing herein contained shall be
construed to modify or abridge the Franchisor's right of eminent domain.
Section 5.11.
There is hereby reserved to the Franchisor every right
and power which is required to be herein reserved or provided by
any legislative enactment of the Franchisor, and the Franchisee,
by its acceptance of this franchise, agrees to be bound thereby
and to comply with any action or requirements of the Franchisor in
its exercise of such rights or powers, heretofore or hereafter
enacted or established.
Section 5.12.
Neither the granting of this franchise 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 5.13.
Neither the granting of this franchise nor any provision
contained herein shall constitute a waiver of or bar to the
exercise of any governmental right or power of the Franchisor.
Section 5.14.
The City Manager is hereby authorized and empowered to
adjust, settle, or compromise any controversy or charge arising
from the operations of the franchise under this Agreement on
behalf of the Franchisor; any such adjustment, settlement, or
- 24 -
compromise shall be made in the best interests of the public.
Either the Franchisee or any member of the public who may be
dissatisfied with the decision of the City Manager may appeal the
matter to the City Council for hearing and determination. The
City Council may accept, reject, or modify the decision of the
City Manager and the City Council may adjust, settle, or
compromise any controversy or cancel any charge arising from the
operations of the Franchisee or from any provision of this
Agreement.
Section 5.15.
It shall be the policy of the Franchisor to liberally
amend' this franchise, upon application of the Franchisee, when
necessary to enable the Franchisee to take advantage of any
developments in the field of transmission of communication signals
which will afford it an opportunity more effectively, efficiently,
or economically to service its customers; provided, however, that
this section shall not be construed to require the Franchisor to
make any amendment or prohibit it from unilaterally changing its
policy stated herein.
Section 5.16.
When not otherwise prescribed herein, all matters herein
required to be filed with the Franchisor shall be filed with the
City Clerk.
Section 5.17.
Franchisee shall pay within thirty (30) days of receipt
of billing the cost of the consulting firm as well as advertising
and publication expenses incurred in connection with the granting
of this franchise. Franchisor shall submit to the Franchisee
copies of actual billings.
Section 5.18.
Franchisee shall pay within thirty (30) days of receipt
of billing the costs of an independent engineering firm employed
to review the design, spot examine the installation, and witness
the initial proof of performance testing of the system as a
25 -
verification of the Franchisee's adherence to the terms and
conditions of this franchise. Franchisor shall submit to the
Franchisee copies of actual billings.
Section 5.19.
The community antenna television system herein
franchised shall be used and operated solely and exclusively for
the purpose expressly authorized by Chapter 6.28 of the Cupertino
Municipal Code and no other purpose whatsoever.
Section 5.20.
In the event that any provision of Chapter 6.28 of the
Cupertino Municipal Code or of this franchise may be held to be
invalid or unenforceable by a court of competent jurisdiction, the
City Council of the City of Cupertino may find and declare that
such provision constitutes an essential consideration material to
the grant of this franchise. In such event, the City Council or
the Franchisee shall forward to the other party a written request
that substitute or alternative provisions be established in lieu
of any provisions thus invalidated. Establishment of said
alternative provisions shall be by binding arbitration conducted
pursuant to and governed by the provisions of the California
Arbitration Act, Sections 1280-1294.2 of the California Code of
Civil Procedure. The alternative provision so established shall
be binding and conclusive on the parties to their franchise,
subject to review by a court of competent jurisdiction, and shall
be considered in effect and enforceable as though a part of the
original ordinance or franchise from the date the original
provision was declared invalid.
Section 5.21.
No provision of this Agreement shall affect the existing
rights of franchisees under franchises issued prior to the
effective date of Chapter 6.28 of the Cupertino Municipal Code by
any jurisdiction. Any renewal of franchises currently existing
within all or any portion of the City of Cupertino shall be made
in compliance with Section 6.28.210 of Chapter 6.28 of the
- 26 -
Cupertino Municipal Code.
Section 5.22.
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:
(a) In the care of Franchisor to City of Cupertino, City
Manager, P. O. Box 580, Cupertino, California 95015, or to such
other person or address as Franchisor may from time to time
furnish to Franchisee.
(b) In the care of Franchisee to United Cable
Television, Attention: Legal Department, 4700 South Syracuse
Boulevard, Denver, Colorado 80237, and one (1) such copy to the
local office of the Franchisee at an address to be furnished to
the Franchisor within sixty (60) days from the date hereof. 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 5.23.
The failure of the Franchisor to act or exercise its
rights under this Agreement on the breach of any of the terms
thereof by Franchisee shall not be construed as a waiver of such
breach, or prevent Franchisor from enforcing strict compliance
with any and all of the terms thereof.
Section 5.24.
The illegality of any particular provision of this
Agreement shall not affect the other provisions thereof, but the
Agreement shall be construed in all respects as if such invalid
provisions were omitted.
Section 5.25.
There is hereby reserved to the Franchisor the power to
reasonably amend any section or part of Chapter 6.28 of the
Cupertino Municipal Code so as to require additional or greater
27 -
standards of construction, operation, maintenance, or otherwise,
on the part of the Franchisee when necessary to take advantage of
developments in the field of transmission of communication signals
which will afford an opportunity to provide more effective,
efficient, and/or economic service to the citizens of Cupertino.
Section 5.26.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, FRANCHISEE SHALL
BE SUBJECT TO ALL PROVISIONS OF THE CUPERTINO MUNICIPAL CODE,
INCLUDING CHAPTER 6.28, HERETOFORE OR HEREAFTER ENACTED OR
ESTABLISHED.
ATTEST:
Executed on
CITY OF CUPERTINO
By a�3.1
City Clerk M or; City 6f Cuperti
Executed on CJ��ii� , 1980.
STATE OF CALIFORNIA
COUNTYOF..... Santa Clara
c�
�,s\1 OFFICIAL Si 1L
i d DUI, ^Ci
My Commission Expisc-s Feb. 17, 1984
UNITED CABLE TELEVISION
OF CUPERTINO, INC.
i
By
Mark Van
s,%vice—rresiaenr
On this 14th October
........................... day of .......................... in the year one thousand nine
hundred and ......$0............ before me, ..porothy„Marie Cornelius
a Notary Public, State of C 1'for i duly com issioned and sworn, personally
appeared ..............................�aryavan Loucks
..............................................................................
known to me to be the ........ Vice -President of the corporation described
in and that executed the within instrument, and also known to me to be the
person ... -.. who executed the within instrument on behalf of the corporation
therein named. and acknowledged to me that such corporation executed the e
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal in the.Calif: County o Santa Clara f........................................... the day and
year in this certificate firs a ve written.
...................... .... .....-�.... C.......................�.
Notary blic, State of California
Cowdery's Form No. 28—Acknowledgment Corporation (C. C. Secs. 1190-1190.1) Printed 5/72
August 29, 1980
Mr. Robert Quinlan
City Manager
10300 Torre Avenue
Cupertino, CA 95.014
Dear Mr. Quinlan:
Pursuant to our discussions of the other day concerning the
franchise agreement, please accept this letter as clarification
of the following:
1. We will include channels 5 and 60 in our programming line-
up.
2. We will include full battery and/or generator stand-by
power for the system.
3. We will individually process FM service of at least 20
stations.
4. The distribution system band width shall be at least 300 MHz,
and the number of possible simultaneous channels to subscribers
will be at least 36.
5. The technical data described in the Cupertino proposal -
accurately specifies the'technical parameters of the system
we will construct in Cupertino.
With respect to a description of the technical capability and
equipment of the proposed studio and remote broadcast van.,
please see our letter of August 15 to Mr. Cy Humphries attached
herewith. Mr. Humphries has asked for more specificit.z, with
respect to some of the equipment described for the local studio,
and we are obtaining the additional information at the present
time.
40 East Denver Technological Center • 7995 East Prentice Avenue Englewood, Colorado, 80111 303/779-5999
a
i�d.y �Fcii a. r �LY li it
Page 2
Looking forward to working with you, I send you my
best regards.
Ma k Van Loucks
Vice President - Marketing, Subscriber
Services & Franchise Development
MVL/vsh
�rd�jM Ir ^-
r7l, JI
�dr Cdt� �u�%at
SUBSCRIBER RATES AND CHARGES
Subscriber Installation Charges
1.
Basic Cable Television Service
$ 25.00*
Each additional set at time of first
connection
free
Each Additional set after initial
hook-up
15.00
2.
Premium Service (optional)
20.00*
Each additional connection _
15.00*
(If Premium Service is installed
at the same time as the basic
service, there is no charge.)
3.
Commercial Installations
Cost + 10`0
(Apartment Buildings, Corrinercial Buildi.n :s)
4.
Relocation of each outlet.
15.00
5.
Commercial Relocation of Equipment
Cost
6.
Disconnect
free
7.
Schools, Municipal Buildings, Fire
Houses, etc.
free (1 per
building)
**
8. Converter Deposit none
9. Special Installations:
If_ the in,,,t.al.lation exceeds the "normal" conditions of one
hundred and Fifty (150) feet from aerial or underground cable
input source, the company will charge $2o.00 plus additional
materials and labor at cost.
*During the cc)n_:truction and at various ti-inc.s for sales promotion
purposes, the installation fee will be �•:_-, i1.-ed or reduced
subs taritially.
**There will i-e a $15.00 per year converter sei:,Ace and maintenance
charge payable in advance.
r
Monthly
Service Charge/Basic
1.
Basic Cable Service
$ 6.50
2.
Multiple outlets each
2.50
3.
FM Stereo Service
2.50
4.
Commercial (Bulk Billing)
202. discount.
Monthly
Service Charges/Premium Service
5.
Home Box Office (HBO)*
8.50
6.
Sho-ati.me*
8.50
7.
Family Service (Mini -pay)
5.00
8.
Sports Service
6.00
9.
tilultiple outlets for premium service will
be installed flee but the full monthly
service rate will be charged.
10.
A Parental Guidance Key Lock Device (7.d.2)
will be provided free. A replaceniont ;:ee cf
$10.00 will be charged for lost keys.
*Both
combined $15.50.
Security
Services ---Basic Installation
11.
Eire, Burglary, Medical Alert (not to i�;:ceed)
20.00
12.
Installa�ion of Basic Service
250.00
(A99
ACCEPTANCE
United Cable Television of Cupertino, Inc. hereby
accepts the non-exclusive franchise granted to it by the
City Council of the City of Cupertino in Resolution No. 5410.
Dated: IO 1AY1 60
STATE OF CALIFORNIA
Santa Clara
COUNTY OF
('?.U?.c9CC7t
wS Y
dA
:fY
u 17, 1i34 6,7
ByUnite5d, �C ble Television
Mark `Van Loucks
Vice —President
On this � 4tkl............. day of ..October ._.. in the year one thousand nine
Dorothy Marie Cornelius
.. ......................
....................... .
hundred and ........ $Q........... before me . ............ personally
a Notary Public, State of California, duly commissioned and sworn, p 3
. Van Loucks - • • ••••••••••••••�
appeared ........... P" 'sident.................... corporation described
known to me to be the ...���_- rit.......
of the core
o known
o me to be the
me�
in rsonn••ttwt who execthe uted ed within
withinninstrument on behalf of tthe corporation
P
therein named, and acknowledged to me that such corporation executed the
........................................................
...
same .................. official
IN WITNESS WHEREOF I have hereunto set my hand and affixed my o ff
seal in the .....Calif ............. Coun
Santa-..C1-ara........... the daV and
year in this certificate first above rtt n _
Notary
Public, ate of California
Printed 5/72
. Se-- 1190-1190.1
Cowdery's Form No. 28—Acknowledgment Corporation (C. C)
ORDINANCE NO. 1076
AN ORDINANCE AMENDING VARIOUS SECTIONS OF CHAPTER 6.28
OF THE CUPERTINO MUNICIPAL CODE RELATING TO THE GRANT-
ING OF FRANCHISES FOR COMMUNITY ANTENNA TELEVISION
SYSTEMS, AND THE TERMS AND CONDITIONS FOR THE OPERA-
TION OF THE SAME WITHIN THE BOUNDARIES OF THE CITY AND
DECLARING THE URGENCY THEREOF
The City Council of the City of Cupertino hereby amends portions of
various sections of Cupertino Municipal Code Section 6.28 to read as follows:
Section 6.28.010 Definitions.
D. "Grantee" shall mean,the person, firm or corporation to whom or
which a franchise, as hereinabove defined; is granted by the Council under
this Ordinance, and the lawful successor, transferee or assignee of said
person, firm or corporation.
Section 6.28".045 Regulations of Rates and Services.
b. (4) (b) Grantee's net profit has increased beyond a reasonable
rate of return allowed in paragraph c.(2)(h) page 6 of Ordinance No. 930
in a greater percentage amount than the increase in the CPI, or
c. (1) (a) Copies of certified financial reports and income
statements for at least the preceding three (3) fiscal years. If the grantee
is a subsidiary of another firm, similar financial data shall be furnished
for the parent corporation.
C. (2) (g) Depreciated original cost of the cable plant and associ-
ated equipment. All intangible assets for which costs have not actually
been expended, such as the value of the franchise, goodwill, and the value
of the going concern shall not be amortized as an expense, and a return
shall not be calculated on any of these values. Actual costs, such as the
purchase of a system above net book value, may be amortized over a period
of not less than twenty (20) years, but the unamortized portion shall not
be, included in any rate base or rate of return calculations.
Section 6.28.060 Terms of Acquisition.
B. Said grantee shall notify the City within ter. (10) days in writing,
of any bona fide purchase offer made by a third party. Thereupon, the City
shall have sixty (60) days within which to elect to purchase that part of
the CATV system described in said offer. Within such period grantee shall
not remove, destroy, transfer, replace or render inoperative any material
part of the system so described.
Section 6.28.070 Franchise Payments. Any grantee granted a franchise under
this Chapter shall pay to the City, during tiie life of such franchise, a
sum equal to three percent (3%) annually of the Basic Service Gross Receipts
of the grantee together with a sum equal to three percent (3%) annually
of the additional service net receipts of the grantee. Such payment by
the grantee to the City shall be made annually, or as otherwise provided
in the grantee's franchise by delivery of the same to the City Clerk. The
said payment shall be in lieu of any business license tax as provided for
in Title 5 of this Code.
The grantee shall file with the City, within ninety (90) days after
the expiration of the operator's fiscal year or portion thereof during which
such franchise is in force, a financial statement to include balance sheet
and profit/loss statement prepared by a certified public accountant, or person
otherwise satisfactory to the Council, showing in detail the gross and net
receipts as defined herein, of grantee during the preceding calendar year or
portion thereof. It shall be the duty of the grantee to pay to the City, within
fifteen (15) days after the time for filizig such statements, the sum hereinabove
prescribed or any unpaid balance thereof for the calendar year or portion thereof
covered by suca statements.
The City shall have the right to inspect or audit the grantee's fiscal
records. If any independent audit of the grantee's records directed by
the City shows a franchise fee error in excess of five percent (5i) in the
City's favor, the grantee shall assume all reasonable costs for said 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.
If any payment is not made within the time limits above described,
it is imposed upon the grantee a penalty in the amount of 10% per month
on the unpaid balance until said amount is paid. In addition to any other
remedy provided in this ordinance to insure payment of said sums, the City
shall have the right to bring a civil action against the grantee for collec-
tion of said sums. In the event that there is a dispute between the Franchisor
and t`le Franchisee as to the amount of the franchise fee property due from
the Franchisee to the Franchisor, no penalty shall be assessed against the
Franchisee and/or paid by the Franchisee if resolution of the dispute results
in a finding that no further franchise fee payments are due from the Franchisee.
Section 6.28.100 Permits, Installation and Service.
C. Within ninety (90) days after the commencement of construction
and installation of the system, grantee shall proceed to render service
to subscribers, and the completion of the construction and installation shall
be pursued with reasonable diligence thereafter so that service to all
areas designated as mandatory service areas on the map accompanying the franchise
agreement shall be provided.
- 2 -
Section 6.28.110 Location of Property of Grantee.
Paragraph 2 shall read as follows:
A. 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 Director of Public Works acting in the exercise of his reasonable
discretion. Any poles, wires, cable lines, conduits, or other properties
of the grantee to be constructed or installed in public utility easements
shall be so constructed or installed in such manner as shall be approved
by the Director of Public Works acting in the exercise of his reasonable dis-
cretion. Such approval shall not be needed wherever the property of the grantee
is to be attached to, constructed, or installed on existing aerial public utility
property.
Section 6.28.180 Operational Standards.
A. a. (4) Provide at least one (1) channel without charge for use
as public access channel. As a minimum, the public access channel capabilities
shall include a timebase corrected videotape playback capability (3/4"-U-matic
cassette or other approved format).
A. d. The grantee shall provide one (1) basic non premium subscriber
connection without cost and, as designated by the Council, when the system passes
within five hundred (500) feet of the lot line or boundary of any of the
following facilities:
A. e. When service is within one thousand (1,000) feet of the lot
line or boundary of City Hall, the grantee shall provide both one basic
non premium subscriber connection and an origination connection capability
at said facility. Said origination capability shall be limited to:
B. g. System mks and layout. The grantee shall have at all times
up-to-date route maps of suitable scale showing all transmitting and receiving
pickup locations and the location of all amplifiers and trunk and distribution
lines in the Cable System. Maps shall be annotated so that a failure or mal-
function in the transmission lines and assorted equipment can be evaluated
in terms of service area receiving less than full service. The scale of the
maps shall be sufficient to clearly show details to include horizontal and
vertical dimensions and in no event less than 1 inch = 200 feet. Grantee
shall provide City initial copies of said maps. At the beginning of con-
struction and every six (6) months after grantee shall indicate to the
City its plans for installation and engineering during the next six (6)
months.
Section 6.28.190. Miscellaneous Provisions.
C. No person, firm or corporation in the existing service area of
the grantee shall be arbitrarily refused service; provided, however, that
the grantee shall not be required to provide service to any subscriber
w'tio does not pay the applicable connection fee or monthly service charge.
The grantee shall provide free basic non premium service to schools, City Ball,
and the Library provided that such locations are passed by transmission cable
maintained for the service of paying subscribers. An installation charge
based on the cost of materials, labor, and easements will be charged in the
event that service to such public buildings requires the installation of
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undergound cable or a service connection cable greater than one hundred fifty.
(150) feet in length.
Section 6.28.246 Inadequate service remedies.
a. In the event and upon notice to the City that its service to any
group of five (5) or more subscribers served by a common distribution feed
is interrupted for forty-eight (48) or more consecutive hours, except for
acts of God, acts beyond the control of the grantee, and except in circum-
stances for which the prior approval of the interruption is obtained from
the City Manager, grantee shall pay a fine to the City as a duly levied
penalty up to the amount of Five Hundred Dollars ($500) per day. The City
Manager shall rule to the applicability of said penalty with appeal by the
grantee available via the City Council.
Section 6.28.260 Arbitration. In the event that any provision of this
Chapter or of any franchise granted hereunder may be held to be invalid
or unenforceable by a court of competent jurisdiction, the City Council
may find and declare that such provision constitutes an essential considera-
tion material to the grant of said franchise. In such event the City Council
or grantee shall forward to the other party a written request that substitute
or alternative provisions be established in lieu of any provisions thus
invalidated. Establishment of said alternative provisions shall be by binding
arbitration conducted pursuant to and governed by the provisions of the California
Arbitration Act, Sections 1280-1294.2 of the California Code of Civil Pro-
cedure. The alternative provision so established shall be binding and con-
clusive on the parties to said franchise subject to review by a court of competent
jurisdiction, and shall be considered in effect and enforceable as though
a part of the original ordinance or franchise from the date the original
provision was declared invalid.
Urgency Clause: The Council hereby finds, determines, and declares that
this ordinance is an urgency measure necessary for the public welfare and
shall, go into effect immediately upon adoption in order to award a Cable TV
franchise within the time requirements previously determined.
INTRODUCED AND E14ACTED at a regular meeting of the City Council of the
City of Cupertino this 14th_ day of October , 1980 by the following vote:
Vote Members of the
AYES: Gatto, Plungy,
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornelius
City Clerk
City Council
Sparks, Rogers
APPROVED:
/s/ Barbara A. Rogers
Mayor, City of Cupertino
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RESOLUTION NO. 5454
A RESOLUTION OF THE CITY COUNCIL OF TIIE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AGREEMENT WITH UNITED CABLE TEL-
EVISION OF CUPERTINO FOR INSTALLATION, CONSTRUCTION, OP-
ERATION AND REGULATION OF A COK-1UNITY ANTENNA TELEVISION
SYSTEM
WHEREAS, the City Council of the City of Cupertino has enacted Ordinance
No. 930, adding Chapter 6.28 to the Cupertino Municipal Code, entitled,
"Franchises for Community Antenna Television Systems"; and
WHEREAS, the City Council of the City of Cupertino has adopted Resolu-
tion No. 5410 granting a nonexclusive franchise for the installation, construc-
tion, operation and regulation of a Community Antenna Television System
to United Cable Television of Cupertino; and
WHEREAS, there has been presented to the City Council an agreement
between the City of Cupertino and United Cable Television of Cupertino for
installation, construction, operation and regulation of a Community Antenna
Television System; and said agreement having been approved by the Director
of Public Works 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 nth day of October 1980 by the following
vote:
Vote Members of the City Council
AYES: Gatto, Plungy, Sparks, Rogers
NOES. None
ABSENT: None
ADSTAIN: None
:ATTEST.
/s/ Dorothy Cornelius
City Clerk
APPROVED:
/s/ Barbara A. Rogers
Mayor, City of Cupertino