HomeMy WebLinkAboutComcast Franchise Agreement. CABLE SYSTEM FRANCHISE AGREEMENT
BETWEEN THE TOWN OF LOS ALTOS HILLS
AND COMCAST OF
CALIFORNIA/OHIO/PENNSYLVANIA/UTAH[WASHINGTON, INC.
EFFECTIVE: NOVEMBER 18, 2004
FRANCHISE
This Franchise (hereinafter, the "Franchise") is between the Town of Los Altos Hills
(hereinafter, "Town") and Comcast of California/Ohio/Pennsylvania/Utah/Washington, Inc.
(hereinafter, "Grantee").
The Town, having determined that the financial, legal, and technical ability of the
Grantee is reasonably sufficient to provide the services, facilities, and equipment
necessary to meet the future cable -related needs of the community, desires to enter into
this Franchise with the Grantee for the construction, operation and maintenance of a
Cable System on the terms and conditions set forth herein.
SECTION 1- Definition of Terms
For the purpose of this Franchise, capitalized terms, phrases, words, and
abbreviations shall have the meanings ascribed to them in the Cable Communications
Policy Act of 1984, as amended from time to time, 47 U.S.C. §§ 521 et seq. (the "Cable
Act"), unless otherwise defined herein.
1.1 "Cable Services" shall mean (1) the one-way transmission to Customers of
(a) video programming, or (b) other programming service, and (2) Customer interaction,
if any, which is required for the selection or use of such video programming or other
programming service.
1.2 "Cable System" shall mean the Grantee's 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 within the Franchise Area.
1.3. "Customer" means a Person or user of the Cable System who lawfully
receives Cable Service therefrom with the Grantee's express permission.
1.4. "Effective Date" means the date on which all persons necessary to sign
this Franchise in order for it to be binding on both parties have executed this Franchise as
indicated on the signature page.
5. "FCC" means the Federal Communications Commission, or successor
governmental entity thereto.
1.6. "Franchise" shall mean this document and any amendments or
modifications hereto.
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1.7. "Franchise Area" means the area within the present legal boundaries of the
Town as of the Effective Date, and shall also include any additions thereto, by annexation
or other legal means.
1.8. "Town" means the Town of Los Altos Hills or the lawful successor,
transferee, designee, or assignee thereof.
1.9. "Grantee" shall mean Comcast of California/Ohio/Pennsylvania/Utah/
Washington, Inc.
1.10. "Gross Revenue" means the revenue derived by the Grantee from the
operation of the Cable System in the Franchise Area to provide Cable Services,
calculated in accordance with generally accepted accounting principles, including but not
limited to monthly basic, premium and pay-per-view fees, installation fees, and
equipment rental fees. Gross Revenue shall not include advertising or home shopping
revenue, refundable deposits, bad debt, late fees, investment income, nor any taxes, fees
or assessments imposed or assessed by any governmental authority.
1.11. "Person" means any natural person or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether for-profit or not -for
profit, but shall not mean the Town.
1.12. "Public Way" shall mean the surface of, and the space above and below,
any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
way, lane, public way, drive, circle or other public right-of-way, including, but not
limited to, utility easements, dedicated utility strips, or rights-of-way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Town in the Franchise Area, which shall entitle the
Town and the Grantee to the use thereof for the purpose of installing, operating,
repairing, upgrading and maintaining the Cable System. Public Way shall also mean any
easement now or hereafter held by the Town within the Franchise Area for the purpose of
public travel, or for utility or public service use dedicated for compatible uses, and shall
include other easements or rights-of-way as shall within their proper use and meaning
entitle the Franchising Authority and the Grantee to the use thereof for the purposes of
installing, operating, and maintaining the Grantee's Cable System over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments,
and other property as may be ordinarily necessary and pertinent to the Cable System.
SECTION 2 - Grant of Authority
2.1. The Town hereby grants to the Grantee under the Cable Act a
nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System
in, along, among, upon, across, above, over, under, or in any manner connected with
Public Ways and easements within the Franchise Area, and for that purpose to erect,
install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon,
across, or along any Public Way and all extensions thereof and additions thereto, such
poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers,
appliances, attachments, and other related property or equipment as may be necessary or
appurtenant to the Cable System. Nothing in this Franchise shall be construed to prohibit
the Grantee from offering any service over its Cable System that is not prohibited by
federal or state law.
2.2 Other Ordinances. The Grantee agrees to comply with the terms of any
lawfully adopted generally applicable local ordinance, to the extent that the provisions of
the ordinance do not have the effect of limiting the benefits or expanding the obligations
of the Grantee that are granted by this Franchise. Grantee reserves the right to challenge
provisions of any ordinance which conflict with its contractual rights, either now or in the
future. In the event of a conflict between any ordinance and this Franchise, the Franchise
shall control, provided however that the Grantee agrees that it is subject to the lawful
exercise of the police power of the Grantor.
2.3. Term of Franchise. The term of the Franchise granted hereunder shall be
twenty (20) years, commencing upon the Effective Date of the Franchise, unless the
Franchise is renewed or is lawfully terminated in accordance with the terms of this
Franchise and the Cable Act.
2.4. Renewal. Any renewal of this Franchise shall be governed by and comply
with the provisions of Section 626 of the Cable Act, as amended.
2.5. Reservation of Authority. Nothing in this Franchise shall (A) abrogate the
right of the Town to perform any public works or public improvements of any
description, (B) be construed as a waiver of any codes or ordinances of general
applicability promulgated by the Town, or (C) be construed as a waiver or release of the
rights of the Town in and to the Public Ways.
2.6. Competitive Equity.
2.6.1. The Grantee acknowledges and agrees that the Town reserves the
right to grant one or more additional franchises to provide Cable Service within the
Franchise Area; provided, however, that no such franchise agreement shall contain terms
or conditions more favorable or less burdensome to the competitive entity than the
material terms and conditions herein, including, but not limited to: franchise fees;
insurance; system build -out requirements; security instruments; public, education and
government access channels and support; customer service standards; required reports
and related record keeping; and notice and opportunity to cure breaches. If any such
additional or competitive franchise is granted by the Town which, in the reasonable
opinion of the Grantee, contains more favorable or less burdensome terms or conditions
than this Franchise, the Town agrees that it shall amend this Franchise to include any
more favorable .or less burdensome terms or conditions in a manner mutually agreed upon
by Town and Grantee.
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2.6.2. In the event an application for a new cable television franchise is
filed with the Town proposing to serve the Franchising Area, in whole or in part, the
Town shall serve or require to be served a copy of such application upon any existing
Grantee or incumbent cable operator by registered or certified mail or via nationally
recognized overnight courier service.
2.6.3. In the event the City enters into a franchise, permit, license,
authorization or other agreement of any kind with any other Person or entity other than
the Grantee to enter into the city's Public Rights of Way for the purpose of constructing
or operating a Cable System or providing Cable Service to any part of the Franchise
Area, the material provisions thereof shall be comparable to those contained herein, in
order that one operator not be granted an unfair competitive advantage over another, and
to provide all parties equal protection under the law.
2.6.4. Conditions of Sale. If a renewal or extension of the Grantee's
Franchise is denied or the Franchise is lawfully terminated, and the Grantor lawfully
acquires ownership of the Cable System or by its actions lawfully effects a transfer of
ownership of the Cable System to another parry, any such acquisition or transfer shall be
at the price determined pursuant to the provisions set forth in Section 627 of the Cable
Act.
The Grantee and the Grantor agree that in the case of a final determination of a
lawful revocation of the Franchise, the Grantee shall be given at least twelve (12) months
to effectuate a transfer of its Cable System to a qualified third party. Furthermore, the
Grantee shall be authorized to continue to operate pursuant to the terms of its prior
Franchise during this period. If, at the end of that time, the Grantee is unsuccessful in
procuring a qualified transferee or assignee of its Cable System which is reasonably
acceptable to the Grantor, the Grantee and the Grantor may avail themselves of any rights
they may have pursuant to federal or state law. It is further agreed that the Grantee's
continued operation of the Cable System during the twelve (12) month period shall not be
deemed to be a waiver, nor an extinguishment of, any rights of either the Grantor or the
Grantee.
SECTION 3 — Construction and Maintenance of the Cable System
3.1. Permits and General Obligations. The Grantee shall be responsible for
obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or
authorization necessary to construct, operate, maintain or repair the Cable System, or any
part thereof, prior to the commencement of any such activity. Construction, installation,
and maintenance of the Cable System shall be performed in a safe manner using materials
that meet or exceed industry standards. All facilities, poles, conduits, cables, and
equipment installed by the Grantee for use in the Cable System in accordance with the
terms and conditions of this Franchise shall be located so as to minimize interference
with the designated use of the Public Ways at the time of Cable System facilities
installation.
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3.2. Conditions on Occl1pancy of Public Ways.
3.2.1. Relocation at Request of Town. Upon thirty (30) days prior
written notice to Grantee, Town shall have the right to require Grantee to relocate any
part of Grantee's Cable System within the Public Ways when the safety, health or welfare
of the public requires such change, and the expense thereof shall be paid by Grantee.
Should Grantee fail to remove or relocate any such facilities by the date established by
Town, Town may effect such removal or relocation, and the expense thereof shall be paid
by Grantee, including all costs and expenses incurred by Town due to Grantee's delay. If
Town requires Grantee to relocate its facilities located within the Public Ways, City shall
make a reasonable effort to provide Grantee with an alternate location within the Public
Ways. This Section does not apply to overhead to underground conversions, see Section
3.2.6 "Aerial and Underground Construction". If public funds are available to any Person
using such Public Ways for the purpose of defraying the cost of any of the foregoing, the
Town shall upon written request of the Grantee make application for such funds on behalf
of the Grantee.
3.2.2. Temporary Relocation at request of Third Party. The Grantee
shall, upon reasonable prior written request of any Person holding a permit issued by the
Town to move any structure, temporarily move its facilities to permit the moving of such
structure; provided (i) the Grantee may impose a reasonable charge on any Person for the
movement of its facilities, and such charge may be required to be paid in advance of the
movement of its wires or cables; and (ii) the Grantee is given not less than ten (10)
business days advance written notice to arrange for such temporary relocation.
3.2.3. Restoration of Public Ways. If in connection with the
construction, operation, maintenance, or repair of the Cable System, the Grantee disturbs,
alters, or damages any Public Way, the Grantee agrees that it shall at its own cost and
expense replace and restore any such Public Way to a condition reasonably comparable
to the condition of the Public Way existing immediately prior to the disturbance.
3.2.4 Safety Requirements. The Grantee shall, at its own cost and
expense, undertake all necessary and appropriate efforts to maintain its work sites in a
safe manner in order to prevent accidents that may cause damage or injuries. All work
undertaken on the Cable System shall be performed in substantial accordance with
applicable FCC or other federal and state regulations. The Cable System shall not
unreasonably endanger or interfere with the safety of Persons or property in the Public
Ways.
3.2.5. Trimming of Trees and Shrubbery. The Grantee shall have the
authority to trim trees or other natural growth interfering with, damaging, or restricting
access to, any of its Cable System facilities in the Public Ways. All such trimming shall
be done at the Grantee's sole cost and expense. The Grantee shall be responsible for any
damage caused by such trimming.
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3.2.6. Aerial and Underground Construction. If all of the transmission
and distribution facilities of all of the respective wireline service providers in any given
area within the Franchise Area are underground, the Grantee shall place its Cable
Systems' distribution cables underground; provided that such underground locations are
actually capable of accommodating the Grantee's cable and other equipment without
technical degradation of the Cable System's signal quality. In any region(s) of the
Franchise Area where the transmission or distribution facilities of any of the respective
wireline service providers are both aerial and underground, the Grantee shall have the
discretion to construct, operate, and maintain all of its distribution cables, or any part
thereof, aerially or underground. In areas where a wireline service provider's wiring is
aerial, the Grantee may install aerial cable, except when a property owner or resident
requests underground installation and agrees to bear the additional cost in excess of aerial
installation.
Nothing in this Section shall be construed to require the Grantee to construct, operate, or
maintain underground any ground -mounted appurtenances such as customer taps, line
extenders, system passive devices, amplifiers, power supplies, fiber splices, nodes,
pedestals, or other related equipment.
3.2.6.1. In the event of a Town driven facilities relocations project that
require conversion of overhead facilities to underground, such as projects that may
include, but not be limited to: road widening, surface grade changes, sidewalk
installation, or beautification, Grantee agrees to bear the costs of converting Grantee's
cable system from an overhead system to an underground system as follows:
A. Utility Trench and Vault/Pedestal Engineering -- To ensure proper space and
availability in the supplied joint trench, Grantee shall only pay for the work hours
necessary to complete cable system related engineering coordination with the
other utilities involved in the project.
B. Conduit and Vaults/Pedestals Placement -- Grantee shall only pay for the
direct cost of labor and materials it takes to place its conduits and vaults/pedestals
in the supplied joint trench and/or solo cable trench as follows:
1. If the Town contractor is completing this task, Grantee shall only pay
the direct costs in accordance with Grantee's approved labor and
materials exhibits at the time of the project.
2. If the direct costs of Grantee's approved labor and materials exhibits
are not agreeable to the Town or its contractor, Grantee shall have the
option to hire their own contractor(s) to complete the work in accordance
with Grantee's approved labor and materials exhibits at the time of the
project.
3. If Grantee chooses option (2), the Town and its contractor(s) are
responsible to coordinate with Grantee's contractor(s) to provide
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reasonable notice and time to complete the placement of Grantees
conduits and vaults/pedestals in the supplied joint trench.
C. Within the conversion area, Grantee shall not be responsible for any on-site
coordination and performance of traffic control, trenching, backfill, and
restoration, unless it is work related to solo cable trench. In those areas, Grantee
shall pay the direct cost of labor and materials in accordance with the provisions
listed in item B above.
3.2.6.2. In the event of a Local Improvement District (LID) project that
requires relocation of Grantees facilities, Grantee shall be reimbursed by the LID funding
for all expenses incurred as a result of the project.
3.2.6.3. The Grantee shall, upon reasonable prior written request of any
Person, relocate its wires or cables underground; provided (i) the Grantee may impose a
charge for all time and material costs associated with the project on any Person for the
relocation of its facilities, and such charge may be required to be paid in advance of the
relocation of its wires or cables, and (ii) Grantee is granted a permit for such work by the
Town.
3.2.6.4. In the event an underground conversion of cable facilities is
required as part of the street improvement condition(s) of a new subdivision and/or
planned development, the developer shall be responsible for the all time and material
costs associated with the conditioned underground conversion of cable facilities. Comcast
and/or its authorized contractor are the only agent allowed to complete the reconnection
aspects of the conversion.
3.2.6.5. The Grantee shall utilize existing poles and conduit wherever
possible.
SECTION 4 - Service Obligations
4.1. General Service Obligation. The Grantee shall make Cable Service
available to every residential dwelling unit within the Franchise Area where the minimum
density is at least thirty (30) dwelling units per strand mile in areas served by overhead
facilities and sixty (60) dwelling units per strand mile in areas served by underground
facilities. Subject to the density requirement, Grantee shall offer Cable Service at
standard installation rates to all new homes or previously unserved homes located within
one -hundred twenty five (125) aerial feet of the Grantee's aerial distribution cable, or
within sixty (60) underground trench feet of either aerial or underground distribution
facilities.
4.1.1. The Grantee may elect to provide Cable Service to areas not
meeting the above density and distance standards. The Grantee may impose an additional
charge in excess of its regular installation charge for any service installation requiring a
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drop in or line extension in excess of the above standards. Any such additional charge
shall be that portion of the installation that exceeds the standards set forth above.
4.1.2. In private streets that are not subject to the Public Rights of Way,
Grantee will offer a cost-sharing plan that will allow residents to obtain cable service
provided that: 1) At least 50% of the residents along that street approve a work order in
writing indicating that they are interested in obtaining service; 2) All necessary recorded
easements and permits are obtained, and; 3) Those participating provide the capital for
construction, including cost of material, labor, customary overhead and easements.
Grantee may require that such prospective subscribers pay this capital contribution in
advance and that they provide Grantee with all of the recorded easements and
encroachment permits required for construction, installation and maintenance purposes.
4.2. Programming. The Grantee shall offer to all Customers a diversity of
video programming services.
4.3. No Discrimination. Neither the Grantee nor any of its employees, agents,
representatives, contractors, subcontractors, or consultants, nor any other Person, shall
discriminate or permit discrimination between or among any Persons in the availability of
Cable Services provided in connection with the Cable System in the Franchise Area. It
shall be the right of all Persons to receive all available services provided on the Cable
System so long as such Person's financial, and other business obligations to the Grantee
are satisfied. Grantee shall not however be required to continue service to a customer
who is verbally or physically abusive, harassing, or threatening to Grantee or any of its
employees, agents, representatives, contractors, subcontractors, or consultants. Nothing
contained herein shall prohibit the Grantee from offering bulk discounts, promotional
discounts, package discounts, or other such pricing strategies as part of its business
practice.
4.4. New Developments. The Town shall provide the Grantee with written
notice of the issuance of formal approvals for new subdivisions and/or planned
developments within the Franchise Area requiring underground installation and/or
conversion of cable facilities as part of the approval condition(s). The Town agrees to
require the developer, as a condition of issuing land use and building permits, to give the
Grantee access to all open trenches for deployment of cable facilities throughout the
development and at least ten (10) business days written notice of the date of availability
of open trenches. Developer shall be responsible for the digging and backfilling of all
trenches. The Grantee shall be responsible for engineering and deployment of labor
applicable to its installation of cable facilities within the development. For conversion of
cable facilities as part of the street improvement condition(s), see Section 3.2.6 "Aerial
and Underground Construction."
4.5. Prohibition Against Reselling Service. No Person shall resell, without the
express prior written consent of the Grantee, any Cable Service, program or signal
transmitted over the Cable System by the Grantee.
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SECTION 5 - Fees and Charzes to Customers
5.1 All rates, fees, charges, deposits and associated terms and conditions to be
imposed by the Grantee or any affiliated Person for any Cable Service as of the Effective
Date shall be in accordance with applicable FCC rate regulations. Before any new or
modified rate, fee, or charge is imposed, the Grantee shall follow the applicable FCC
notice requirements and rules and notify affected Customers, which notice may be by any
means permitted under applicable law.
SECTION 6 - Customer Service Standards; Customer Bi1Ls;
and Privacy Protection
6.1. Customer Service Standards. The Town hereby adopts the customer
service standards set forth in Part 76, §76.309 of the FCC's rules and regulations, as
amended. The Grantee shall comply in all respects with the customer service
requirements established by the FCC.
6.2. Customer Bills. Customer bills shall be designed in such a way as to
present the information contained therein clearly and comprehensibly to Customers, and
in a way that (A) is not misleading and (B) does not omit material information.
Notwithstanding anything to the contrary in Section 6. 1, above, the Grantee may, in its
sole discretion, consolidate costs on Customer bills as may otherwise be permitted by
Section 622(c) of the Cable Act (47 U.S.C. §542(c)).
6.3. Privacv Protection. The Grantee shall comply with all applicable federal
and state privacy laws, including Section 631 of the Cable Act and regulations adopted
pursuant thereto.
SECTION 7 EDUCATIONAL AND GOVERNMENT (EG) ACCESS
7.1 Upstream Video Capacity
7.1.1. For the term of this Agreement, Grantee shall provide upstream
capability to Los Altos Town Hall located at 26379 Fremont Road, Los Altos Hills. The
purpose of this upstream capability is to permit live cablecasting of video and audio
programming from those locations on Grantee's Cable System. Any request by the
Grantor to move this capability to an alternative location shall be at the expense of the
Grantor.
7.1.2. A point of demarcation shall be established for Town Hall. Grantee
shall be responsible for acquiring, installing, operating and maintaining all networking
equipment and facilities on the network side of the demarcation point. Grantor shall be
responsible for acquiring, installing, operating and maintaining all equipment on its side
of the point of demarcation necessary to interface with and utilize Grantee's network. It
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is the intent of this provision that the Grantee's side of the point of demarcation shall
include all necessary interface equipment necessary to insert the signal provided by the
EG Access user onto Grantee's network. Such interface equipment may include, but is
not necessarily limited to, RF modulators and transceivers.
7.2 Education and Government (EG) Access Channels
7.2.1. No later than three (3) months after the effective date of this
agreement, Grantee shall make one (1) downstream analog channel available exclusively
for Education and Government (EG) Access use. This channel shall be dedicated for the
term of this agreement.
7.2.2. With respect to the designated channel, the Town will share
governmental programming with the Community College Network One (CNN 1)
programming. Sharing of the channel will be accommodated by the capability located at
Town Hall to override CNN programming.
7.2.3. One (1) additional channel for EG use shall be made available
within 90 days written request provided the following triggers have been met: Grantee
must provide an additional EG Access Channel when the first channel set aside for EG
Access use is programmed at least eighty percent (80%) of the cumulative time of sixty
(60) hours per week over a consecutive sixteen (16) week period with original, locally
produced, non -duplicative, non -character generated programming.
7.3 Provision of EG Access Equipment and Facilities
7.3.1. Within sixty (60) days of the effective Date of this agreement,
Grantee shall provide to Grantor a capital grant of eighty thousand dollars ($80,000) for
capital expenditures associated with EG Access. Upon the Town's written notice sixty
(60) days prior to the ninth year anniversary of the effective date of this agreement,
Grantee shall provide to Grantor an additional capital grant of sixty thousand dollars
($60,000) for capital expenditures associated with EG Access.
7.3.2. Grantor shall not oppose inclusion on subscribers' bills a monthly
per subscriber pass-through for recovery of the EG Access capital grant provided above
so long as said inclusion is done in a manner consistent with the provisions of Applicable
Law.
SECTION 8 - Oversight and Regulation by Town
8.1. Franchise Fees. The Grantee shall pay to the Town a franchise fee in an
amount equal to five percent (5%) of annual Gross Revenues received from the operation
of the Cable System to provide Cable Service in the Franchise Area; provided, however,
that Grantee shall not be compelled to pay any higher percentage of franchise fees than
any other cable operator providing service in the Franchise Area. The payment of
franchise fees shall be made on an annual basis and shall be due forty-five (45) days after
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the close of each calendar year. Each franchise fee payment shall be accompanied by a
report prepared by a representative of the Grantee showing the basis for the computation
of the Franchise Fees paid during that period.
8.2. Franchise Fees Subject to Audit.
8.2.1. Upon reasonable prior written notice, during normal business
hours, at Grantee's principal business office, the Town shall have the right to inspect the
Grantee's financial records used to calculate the Town's franchise fees; provided,
however, that any such inspection shall take place within two (2) years from the date the
Town receives such payment, after which period any such payment shall be considered
final.
8.2.2. Upon the completion of any such audit by the Town, the Town
shall provide to the Grantee a final report setting forth the Town's findings in detail,
including any and all substantiating documentation. In the event of an alleged
underpayment, the Grantee shall have thirty (30) days from the receipt of the report to
provide the Town with a written response agreeing to or refuting the results of the audit,
including any substantiating documentation. Based on these reports and responses, the
parties shall agree upon a "Finally Settled Amount." For purposes of this Section (7.2),
the term "Finally Settled Amount(s)" shall mean the agreed upon underpayment, if any,
to the Town by the Grantee as a result of any such audit. If the parties cannot agree on a
"Final Settlement Amount," the parties shall submit the dispute to a mutually agreed
upon mediator within sixty (60) days of reaching an impasse. In the event an agreement
is not reached at mediation, either party may bring an action to have the disputed amount
determined by a court of law.
8;2.3. Any "Finally Settled Amount(s)" due to the Town as a result of
such audit shall be paid to the Town by the Grantee within forty-five (45) days from the
date the parties agree upon the "Finally Settled Amount." Once the parties agree upon a
Finally Settled Amount and such amount is paid by the Grantee, the Town shall have no
further rights to audit or challenge the payment for that period. The Town shall bear the
expense of its audit of the Grantee's books and records.
8.3. oversight of Franchise. In accordance with applicable law, the Town
shall have the right to oversee, regulate and, on reasonable prior written notice and in the
presence of Grantee's employee, periodically inspect the construction, operation and
maintenance of the Cable System in the Public Ways, as necessary to monitor Grantee's
compliance with the provisions of this Franchise. The Town therefore exempts the
Grantee from Section 11.3 of the Cable System Regulatory Ordinance 435.
8.4. Technical Standards. The Grantee shall comply with all applicable
technical standards of the FCC as published in subpart K of 47 C.F.R. § 76. To the extent
those standards are altered, modified, or amended during the term of this Franchise, the
Grantee shall comply with such altered, modified or amended standards within a
reasonable period after such standards become effective. The Town shall have, upon
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written request, the right to review tests and records required to be performed pursuant to
the FCC's rules.
8.5. Maintenance of Books, Records, and Files.
8.5.1. Books and Records. Throughout the term of this Franchise, the Grantee
agrees that the Town, upon reasonable prior written notice to the Grantee, may review
such of the Grantee's books and records regarding the operation of the Cable System and
the provision of Cable Service in the Franchise Area which are reasonably necessary to
monitor Grantee's compliance with the provisions of this Franchise at the Grantee's
business office, during normal business hours, and without unreasonably interfering with
Grantee's business operations. Such books and records shall include any records
required to be kept in a public file by the Grantee pursuant to the rules and regulations of
the FCC. All such documents pertaining to financial matters that may be the subject of
an inspection by the Town shall be retained by the Grantee for a minimum period of three
(3) years. The Town therefore exempts the Grantee from Section 13 of the Cable System
Regulatory Ordinance 435.
8.5.2. File for Public Inspection. Throughout the term of this Franchise,
the Grantee shall maintain at its business office, in a file available for public inspection
during normal business hours, those documents required pursuant to the FCC's rules and
regulations.
8.5.3. Proprietary Information. Notwithstanding anything to the contrary
set forth in this Section, the Grantee shall not be required to disclose information that it
reasonably deems to be proprietary or confidential in nature. The Town agrees to treat
any information disclosed by the Grantee as confidential and only to disclose it to those
employees, representatives, and agents of the Town that have a need to know in order to
enforce this Franchise and who agree to maintain the confidentiality of all such
information. The Grantee shall not be required to provide Customer information in
violation of Section 631 of the Cable Act or any other applicable federal or state privacy
law. For purposes of this Section, the terms "proprietary or confidential" include, but are
not limited to, information relating to the Cable System design, customer lists, marketing
plans, financial information unrelated to the calculation of franchise fees or rates pursuant
to FCC rules, or other information that is reasonably determined by the Grantee to be
competitively sensitive. In the event that the Town receives a request under a state
"sunshine," public records or similar law for the disclosure of information the Grantee
has designated as confidential, trade secret or proprietary, the Town shall notify Grantee
of such request and cooperate with Grantee in opposing such request.
SECTION 9 — Transfer or Change of Control of Cable System or Franchise
9.1. Neither the Grantee nor any other Person may transfer the Cable System
or the Franchise without the prior written consent of the Town, which consent shall not
be unreasonably withheld or delayed. No change in control of the Grantee, defined as an
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acquisition of 50% or greater ownership interest in Grantee, shall take place without the
prior written consent of the Town, which consent shall not be unreasonably withheld or
delayed. No consent shall be required, however, for (i) a transfer in trust, by mortgage,
hypothecation, or by assignment of any rights, title, or interest of the Grantee in the
Franchise or in the Cable System in order to secure indebtedness, or (ii) a transfer to an
entity directly or indirectly owned or controlled by Comcast Corporation. Within thirty
(30) days of receiving a request for consent, the Town shall, in accordance with FCC
rules and regulations, notify the Grantee in writing of the additional information, if any, it
requires to determine the legal, financial and technical qualifications of the transferee or
new controlling parry. If the Town has not taken action on the Grantee's request for
consent within one hundred twenty (120) days after receiving such request, consent shall
be deemed given.
SECTION 10 - Insurance and Indemnity
10.1. Insurance. Throughout the term of this Franchise, the Grantee shall, at its
own cost and expense, maintain Comprehensive General Liability Insurance and provide
the Town certificates of insurance designating the Town as additional insured and
demonstrating that the Grantee has obtained the insurance required in this Section. Such
policy or policies shall be in the minimum amount of One Million Dollars
($1,000,000.00) for bodily injury or death to any one person, and One Million Dollars
($1,000,000.00) for bodily injury or death of any two or more persons resulting from one
occurrence, and One Million Dollars ($1,000,000.00) for property damage resulting from
any one accident. Such policy or policies shall be non -cancelable except upon thirty (30)
days prior written notice to the Town. The Grantee shall provide workers' compensation
coverage in accordance with applicable law. The Grantee shall indemnify and hold
harmless the Town from any workers compensation claims to which the Grantee may
become subject during the term of this Franchise
10.2. Indemnification. The Grantee shall indemnify, defend and hold harmless
the Town, its officers, employees, and agents from and against any liability or claims
resulting from property damage or bodily injury (including accidental death) that arise
out of the Grantee's construction, operation, maintenance or removal of the Cable
System, including, but not limited to, reasonable attorneys' fees and costs, provided that
the Town shall give the Grantee written notice of its obligation to indemnify and defend
the Town within ten (10) business days of receipt of a claim or action pursuant to this
Section. If the Town determines that it is necessary for it to employ separate counsel, the
costs for such separate counsel shall be the responsibility of the Town.
14
SECTION 11- System Description and Service
11.1. System Capacity. During the term of this Franchise the Grantee's Cable
System shall be capable of providing a minimum of 85 channels of video programming to
its customers in the Franchise Area.
11.2. Service to School Buildings. The Grantee shall provide free "Basic" tier
Cable Service and free installation (within the installation guidelines described in Section
4.1 of this Franchise) at one outlet to each accredited public -anal private school, not
including "home schools," located in the Franchise Area.
11.3. Service to Governmental and Institutional Facilities. The Grantee shall
provide free "Basic" tier Cable Service and free installation (within the installation
guidelines described in Section 4.1 of this Franchise) at one outlet to each municipal
building located in the Franchise Area. Additional outlets or services will be installed by
Grantee at the normal non-discriminatory commercial rate and billed for on a monthly
basis at the normal commercial rate as determined by the Grantee's commercial accounts
guidelines. "Municipal buildings" are those buildings owned or leased and occupied by
the Town for government administrative purposes, and shall not include buildings or sites
owned by Town such as storage facilities, golf courses, utility offices or other facilities
not used for administrative purposes, or those buildings owned by the Town but leased to
third parties at which government administrative employees are not regularly stationed.
In instances wherein the Town is leasing and occupying the building, the Town shall be
responsible for acquiring any necessary right of entry agreement and paying any
associated fees that may be required by the building's owner.
SECTION 12 - Enforcement and Termination of Franchise
12.1. Notice of Violation or Default. In the event the Town believes that the
Grantee has not complied with the material terms of the Franchise, it shall notify the
Grantee in writing with specific details regarding the exact nature of the alleged
noncompliance or default.
12.2. Grantee's Right to Cure or Respond. The Grantee shall have forty-five
(45) days from the receipt of the Town's written notice: (A) to respond to the Town,
contesting the assertion of noncompliance or default; or (B) to cure such default; or (C) in
the event that, by nature of the default, such default cannot be cured within the forty-five
(45) day period, initiate reasonable steps to remedy such default and notify the Town of
the steps being taken and the projected date that they will be completed.
12.3. Public Hearings. In the event the Grantee fails to respond to the Town's
notice or in the event that the alleged default is not remedied within forty-five (45) days
or the date projected by the Grantee, the Town shall schedule a public hearing to
investigate the default. Such public hearing shall be held at the next regularly scheduled
meeting of the Town that is scheduled at a time that is no less than ten (10) business days
15
therefrom. The Town shall notify the Grantee in writing of the time and place of such
meeting and provide the Grantee with a reasonable opportunity to be heard.
12.4. Enforcement. Subject to applicable federal and state law, in the event the
Town, after such public hearing, determines that the Grantee is in default of any
provision of the Franchise, the Town may:
12.4.1. seek specific performance of any provision that reasonably lends
itself to such remedy as an alternative to damages, or seek other equitable relief; or
12.4.2. in the case of a substantial default of a material provision of the
Franchise, declare the Franchise to be revoked in accordance with the following:
(i) The Town shall give written notice to the Grantee of its
intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee,
including one or more instances of substantial noncompliance with a material provision
of the Franchise. The notice shall set forth with specificity the exact nature of the
noncompliance. The Grantee shall have ninety (90) days from the receipt of such notice
to object in writing and to state its reasons for such objection. In the event the Town has
not received a response from the Grantee or upon receipt of the response does not agree
with the Grantee's proposed remedy, it may then seek termination of the Franchise at a
public hearing. The Town shall cause to be served upon the Grantee, at least ten (10)
days prior to such public hearing, a written notice specifying the time and place of such
hearing and stating its intent to request termination of the Franchise.
(ii) At the designated hearing, the Town shall give the Grantee
an opportunity to state its position on the matter, present evidence and question
witnesses, after which it shall determine whether or not the Franchise shall be revoked.
The public hearing shall be on the record and a written transcript shall be made available
to the Grantee within ten (10) business days. The decision of the Town shall be in
writing and shall be delivered to the Grantee by certified mail. The Grantee may appeal
such determination to an appropriate court, which shall have the power to review the
decision of the Town "de novo" and to modify or reverse such decision as justice may
require. Such appeal to the appropriate court must be taken within sixty (60) days of the
issuance of the determination of the Town.
12.5. Technical Violation. The Town agrees that it is not its intention to subject
the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called
"technical" breach(es) or violation(s) of the Franchise, which shall include, but not be
limited, to the following:
12.5.1. in instances or for matters where a violation or a breach of the
Franchise by the Grantee was good faith error that resulted in no or minimal negative
impact on the Customers within the Franchise Area; or
12.5.2. where there existed circumstances reasonably beyond the control
of the Grantee and which precipitated a violation by the Grantee of the Franchise, or
which were deemed to have prevented the Grantee from complying with a term or
condition of the Franchise.
SECTION 13 - Miscellaneous Provisions
13.1. Force Majeure. The Grantee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or
penalty relating to noncompliance or default (including termination, cancellation or
revocation of the Franchise), where such noncompliance or alleged defaults occurred or
were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or
snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure
of utility service necessary to operate the Cable System, governmental, administrative or
judicial order or regulation or other event that is reasonably beyond the Grantee's ability
to anticipate or control. This provision also covers work delays caused by waiting for
utility providers to service or monitor their own utility poles on which the Grantee's cable
or equipment is attached, as well as unavailability of materials or qualified labor to
perform the work necessary.
13.2. Notice. All notices shall be in writing and shall be sufficiently given and
served upon the other parry by hand delivery, first class mail, registered or certified,
return receipt requested, postage prepaid, or by reputable overnight courier service and
addressed as follows:
To the Town:
Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Attn.: City Manager
To the Grantee:
Comcast of California/Ohio/Pennsylvania/Utah/Washington, Inc.
1205 Chrysler Drive
Menlo Park, CA 94025
Attn: Government Relations Director
with a copy to:
Comcast Cable Communications, Inc.
P. O. Box 5147
San Ramon, CA 94583
Attn.: Government Relations Department
17
13.3. Entire Franchise. This Franchise, including all Exhibits, embodies the
entire understanding and agreement of the Town and the Grantee with respect to the
subject matter hereof and supersedes all prior understandings, agreements and
communications, whether written or oral.
13.4. Severability. If any section, subsection, sentence, clause, phrase, or other
portion of this Franchise is, for any reason, declared invalid, in whole or in part, by any
court, agency, commission, legislative body, or other authority of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent portion. Such
declaration shall not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
13.5. Governing Law. This Franchise shall be deemed to be executed in the
State of California, and shall be governed in all respects, including validity, interpretation
and effect, and construed in accordance with, the laws of the State of California, as
applicable to contracts entered into and performed entirely within the State.
13.6. Modification. No provision of this Franchise shall be amended or
otherwise modified, in whole or in part, except by an instrument, in writing, duly
executed by the Town and the Grantee, which amendment shall be authorized on behalf
of the Town through the adoption of an appropriate resolution or order by the Town, as
required by applicable law.
13.7. No Third -Party Beneficiaries. Nothing in this Franchise is or was
intended to confer third -party beneficiary status on any member of the public to enforce
the terms of this Franchise.
13.8. No Waiver of Rights. Nothing in this Franchise shall be construed as a
waiver of any rights, substantive or procedural, Grantee may have under Federal or state
law unless such waiver is expressly stated herein.
IN WITNESS WHEREOF, this Franchise has been executed by the duly authorized
representatives of the parties as set forth below, as of the date set forth below:
Attest:
PCler
Town of Los Altos Hills:
By:
Nam"O'Malley
Titl
18
or
Attest:
Comcast of California/ Ohio/ Pennsylvania/
Utah/Washingtori, Inc.
By:
Name.
Title:
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Wlij -c]5.I��mi..
State of California
ss.
County of On& 7h.
On before me,
.e Name and Tale of Officer (e.g., "Jane Doe, Notary Public")
personally appeared R4< iermanc)
NameJa'jof Signer,(<
MITI! GIVENS -RUSSELL
Commission # 1499716
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Notary Public • CaNfomla
Contra costa County
Comm. Expires Jul 10, 2008
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❑ proved to me on the basis of satisfactory e ' nce
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to the within–Mstrument and ackn dged to me that
he/she/they execute ame in his/her/their
authorized capacity(i an t by his/her/their
signature(s) on . instrument the p on(s), or the
entity upo ehalf of which the perso ) acted,
exec the instrument.
WITNESS my han d official sea
Place Notary Seal Above
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
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02004 National Notary Association • 9350 De Soto Ave., P.O. 13=24[m • Chatsworth, CA 91313-2402 Item No. 5907 Reorder. Call Toll -Free 1-600-676-6627
C®MCAST
Mitzi Givens -Russell
Government Affairs Manager
3055 Comcast Place
Livermore, CA 94551
Phone: 925-424-0207
Email: mitzi_givens-russell@cable.comcast.com
j
CABLE SYSTEM REGULATORY ORDINANCE
TOWN OF LOS ALTOS HILLS, CALIFORNIA
SECTION1....................................................................................................... 1
SECTION2....................................................................................................... 1
SECTION3. INTENT....................................................................................... 2
3.1. Authority.......................................................................................... 2
3.2 Findings........................................................................................... 2
SECTION4. SHORT TITLE............................................................................. 3
SECTION5. DEFINITIONS..............................................................................4
SECTION 6. FRANCHISE TERMS AND CONDITIONS..................................10
6.1. Franchise Purposes........................................................................10
6.2. Franchise Required........................................................................ 10
6.3. Term of the Franchise.................................................................... 11
6.4. Franchise Territory.........................................................................11
6.5. Federal or State Jurisdiction........................................................... 11
6.6. Applicable Law, Police Power.........................................................11
6.7. Franchise Non-Transferable...........................................................12
6.8. Geographical Coverage..................................................................17
6.9. Nonexclusive Franchise..................................................................17
6.10. Multiple Franchises.......................................................................17
6.11. Franchise Modification.................................................................. 18
SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL .......................... 19
7.1. Filing of Applications.......................................................................19
7.2. Applications - Contents...................................................................19
7.3. Consideration of Initial Applications ................................................ 22
7.4. Franchise Renewal......................................................................... 22
SECTION 8. MINIMUM CONSUMER PROTECTION
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS .............. 36
9.1. Franchise Fee................................................................................. 36
9.2. Security...........................................................................................37
SECTION 10. CONSTRUCTION REQUIREMENTS........................................39
10.1. System Construction.................................................................... 39
10.2. Mulitiple Franchises......................................................................44
SECTION11. STANDARDS............................................................................. 45
11.1. Applicable Standards....................................................................45
11.2. Non -Compliance with Standards .................................................. 45
AND SERVICE STANDARDS......................................................
23
8.1.
Operational Standards....................................................................23
8.2.
Service Standards..........................................................................26
8.3.
Billing and Information Standards ...................................................
27
8.4.
Verification of Compliance with Standards .....................................
31
8.5.
Subscriber Complaints and Disputes ..............................................
32
8.6.
Truth in Advertising.........................................................................
33
8.7.
Other Requirements.......................................................................
34
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS .............. 36
9.1. Franchise Fee................................................................................. 36
9.2. Security...........................................................................................37
SECTION 10. CONSTRUCTION REQUIREMENTS........................................39
10.1. System Construction.................................................................... 39
10.2. Mulitiple Franchises......................................................................44
SECTION11. STANDARDS............................................................................. 45
11.1. Applicable Standards....................................................................45
11.2. Non -Compliance with Standards .................................................. 45
11.3. Costs of Technical Assistance...................................................... 45
SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS ......46
12.1. Hold Harmless.............................................................................. 46
12.2. Insurance...................................................................................... 46
SECTION 13. RECORDS AND REPORTS ...................................................... 49
13.1. Records Required.........................................................................49
13.2. Reports......................................................................................... 50
13.3. Opinion Survey............................................................................. 54
SECTION 14. REVIEW OF SYSTEM PERFORMANCE .................................. 55
14.1. Biannual Review........................................................................... 55
SECTION 15. FRANCHISE VIOLATIONS....................................................... 57
15.1. Remedies for Violations ................................. ............................. 57
15.2. Procedure for Remedying Franchise Violations ............................ 58
15.3. Grantor's Power to Revoke........................................................... 60
15.4. Appeal of Council Finding............................................................. 62
SECTION 16. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM... 63
SECTION 17. ABANDONMENT OR REMOVAL
OF FRANCHISE PROPERTY...................................................64
17.1. Abandonment or Removal............................................................ 64
17.2. Restoration by Grantor: Reimbursement of Costs ....................... 65
17.3. Extended Operation and Continuity of Services ........................... 66
17.4. Receivership and Foreclosure...................................................... 66
SECTION 18. GRANTOR AND SUBSCRIBER RIGHTS ................................. 68
18.1. Reservation of Grantor Rights ...................................................... 68
18.2. Waiver.......................................................................................... 68
18.3. Rights of Individuals..................................................................... 69
SECTION 19. SEPARABILITY.........................................................................71
ORDINANCE NO. 435
THE TOWN COUNCIL OF THE TOWN OF LOS ALTOS HILLS DOES
ORDAIN AS FOLLOWS:
SECTION 1.
That existing Ordinance No. 323 shall apply to any Cable System
Franchise in force prior to the effective date of this Ordinance.
SECTION 2.
That this Ordinance No. 435 is hereby enacted to apply to any Cable
System Franchise granted or renewed subsequent to the effective date of this
Ordinance.
SECTION 3. INTENT
3.1. Authority
The Town of Los Altos Hills, pursuant to Applicable Law, is authorized to
grant one or more non-exclusive franchises to construct, operate, maintain and
reconstruct Cable Systems within the Town limits.
3.2 Findings
The Town Council finds that the development of Cable Systems has the
potential of having great benefit and impact upon the residents of the Town.
Because of the complex and rapidly changing technology associated with Cable
Systems, the Town Council further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which
should be vested in the Town or such Persons as the Town may designate. It is
the intent of this Ordinance and subsequent amendments to provide for and
specify the means to attain the best possible Cable Service to the public and any
Franchises issued pursuant to this Ordinance shall be deemed to include this as
an integral finding thereof. It is the further intent of this Ordinance to establish
regulatory provisions that permit the Town to regulate Cable System Franchises
to the extent permitted by Applicable Law, including but not limited to the Federal
Cable Communications Policy Act of 1984, the Federal Cable Television
Consumer Protection and Competition Act of 1992, the Federal
Telecommunications Act of 1996 as amended or hereafter amended, applicable
Federal Communications Commission regulations and applicable California law.
2
SECTION 4. SHORT TITLE
This Ordinance shall constitute the "Cable System Regulatory Ordinance"
of the Town of Los Altos Hills and may be referred to as such.
SECTION 5. DEFINITIONS
For the purposes of this Ordinance, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used in the
present tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number. Words not
defined shall be given their common and ordinary meaning.
5.1. "Applicable Law" means all lawfully enacted Federal, State and Town
laws, ordinances, codes, rules, regulations, orders and any amendments or
successors thereto.
5.2. "Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals.
5.3. "Cable Operator" means any Person or group of Persons who:
(a) provides Cable Service over a Cable System and directly or
through one (1) or more affiliates owns a significant interest in such Cable
System; or
(b) otherwise controls or is responsible for, through any arrangement,
the management and operation of such Cable System.
5.4. "Cable Service" means:
(a) The one-way transmission to Subscribers of
(1) video programming; or
(2) other programming service; and
4
(b) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
5.5. "Cable System" or "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,
but such term does not include:
(a) a facility that serves only to retransmit television signals of one (1)
or more television broadcast stations;
(b) a facility that serves Subscribers without using any Public Rights -of -
Way;
(c) a facility of a common carrier which is subject, in whole or in part, to
the provisions of Title II of the Communications Act of 1934, as amended, except
that such facility shall be considered a Cable System (other than for the purposes
of 47 U.S.C. 541) to the extent such facility is used in the transmission of video
programming directly to Subscribers; unless the extent of such use is solely to
provide interactive on -demand services;
(d) an open video system that complies with Title VI of the
Communications Act of 1934 (47 U.S.C. 573) as amended; or
(e) any facilities of any electric utility used solely for operating its
electric utility system.
5.6. "Channel" or "Cable Channel" means a portion of the electromagnetic
frequency spectrum which is used in a Cable System which is capable of
5
delivering a television channel as defined by the Federal Communications
Commission.
5.7. "Council" or "Town Council" means the Town Council of the Town of
Los Altos Hills.
5.8. "Franchise" means an initial authorization, or renewal thereof, issued
by the Council, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise, which
authorizes the construction or operation of a Cable System. Any such
authorization, in whatever form granted, shall not supersede the requirement to
obtain any license or permit required for the privilege of transacting business
within the Town as required by the other ordinances and laws of the Town.
5.9. "Franchise Agreement" means a franchise grant ordinance or a
contractual agreement, containing the specific provisions of the Franchise
granted, including references, specifications, requirements and other related
matters.
5.10. "Franchise Fee" means any fee or assessment of any kind imposed
by the Town on a Grantee as compensation for the Grantee's use of the Public
Rights -of -Way. The term "Franchise Fee" does not include:
(a) any tax, fee or assessment of general applicability (including any
such tax, fee, or assessment imposed on both utilities and Cable Operators or
their services, but not including a tax, fee or assessment which is unduly
discriminatory against Cable Operators or Cable Subscribers);
(b) capital costs which are required by the Franchise to be incurred by
Grantee for Public, Educational, or Governmental Access Facilities;
n.
(c) requirements or charges incidental to the awarding or enforcing of
the Franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
-(d) any fee imposed under Title 17, United States Code.
5.11. "Grantee" means any "Person" receiving a Franchise pursuant to
this Ordinance and under the granting Franchise ordinance or agreement, and its
lawful successor, transferee or assignee.
5.12. "Grantor" or "Town" means the Town of Los Altos Hills as
represented by the Council or such representative as the Council may designate
to act on cable matters on its behalf.
5.13. "Gross Annual Cable Service Revenues" means the annual gross
revenues received directly or indirectly by a Grantee or any affiliate of Grantee
from the operation of the Cable System to provide Cable Service within the
Service Area utilizing the Public Rights -of -Way for which a Franchise is required.
Gross Annual Cable Service Revenues shall include, but not be limited to,
Subscriber revenue, equipment charges, late fees, advertising revenue, home
shopping revenue, launch and promotional fees, Franchise Fee revenue and
imputed revenue derived from trades and barters equivalent to the full value of
goods and services provided by Grantee. Gross Annual Cable Service
Revenues shall not include refundable deposits, rebates or credits, unrecovered
bad debt, or any sales, excise or other taxes or charges imposed externally to
the Franchise, and collected for direct pass-through to local, State or Federal
government.
7
5.14. "Installation" means the connection of the System to Subscribers'
terminals, and the provision of service.
5.15. "Normal Operating Conditions" means those service conditions
which are within the control of Grantee. Those conditions which are not within the
control of the Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or unusual
weather conditions. Those conditions which are ordinarily within the control of the
cable operator include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and
maintenance or upgrade of the Cable System.
5.16. "Person" means an individual, partnership, association, joint stock
company, trust, corporation, proprietorship or governmental entity.
5.17. "Public Educational or Government Access Facilities" or "PEG
Access Facilities" means the total of the following:
(a) Channel capacity designated for public, educational, or government
use; and
(b) facilities and equipment for the use of such Channel capacity.
5.18. "Section" means any section, subsection or provision of this
Ordinance.
5.19. "Service Area" or "Franchise Area" means the entire geographic
area within the municipal boundaries of the Town as it is now constituted or may
in the future be constituted, unless otherwise specified in the Franchise.
9
5.20. "Service Tier" means a category of Cable Service or other services
provided by a Cable Operator and for which a separate rate is charged.
5.21. "State" means the State of California.
5.22. "Street" or "Public Way" or "Public Rights -of -Way" means each of
the following which have been dedicated to the public or are hereafter dedicated
to the public and maintained under public authority or by others and located
within the Service Area: streets, roadways, highways, avenues, lanes, alleys,
sidewalks, easements, rights-of-way and similar public property.
5.23. "Subscriber" or "Customer" or "Consumer" means any Person who
or which elects to subscribe to, for any purpose, Cable Service provided by the
Grantee by means of or in connection with the Cable System, and who pays the
charges therefor.
5.24. "Town Manager" means the Town Manager of the Town of Los
Altos Hills, or his or her designee.
SECTION 6. FRANCHISE TERMS AND CONDITIONS
6.1. Franchise Purposes
A Franchise granted by the Town under the provisions of this Ordinance
shall encompass the following purposes:
(a) To permit the Grantee to engage in the business of providing Cable
Service to Subscribers within the designated Service Area.
(b) To permit the Grantee to erect, install, construct, repair, rebuild,
reconstruct, replace, maintain, and retain, cable lines, related electronic
equipment, supporting structures, appurtenances, and other property in
connection with the operation of the Cable System in, on, over, under, upon,
along and across streets or other public places within the designated Service
Area.
(c) To permit the Grantee to maintain and operate said Franchise
properties for the origination, reception, transmission, amplification, and
distribution of television and radio signals and for the delivery of Cable Services.
(d) To set forth the obligations of the Grantee under the Franchise.
6.2. Franchise Required
After the effective date of this Ordinance, it shall be unlawful for any
Person to construct, install or operate a Cable System in the Town within any
Public Way without a properly granted Franchise awarded pursuant to the
provisions of this Ordinance. Any person who violates this Section shall be
deemed guilty of a misdemeanor and, upon conviction thereof, shall be
10
punishable by a fine of not more than Five Thousand Dollars ($5,000), or by
imprisonment in the County Jail, or both such fine and imprisonment.
6.3. Term of the Franchise
(a) A Franchise granted hereunder shall be for a term established in
the Franchise Agreement, commencing on the Grantor's adoption of an
ordinance or resolution authorizing the Franchise.
(b) A Franchise granted hereunder may be renewed upon application
by the Grantee pursuant to the provisions of Applicable Law.
6.4. Franchise Territory
Any Franchise shall be valid within all the municipal limits of the Town, and
within any area added to the Town during the term of the Franchise, unless
otherwise specified in the Franchise Agreement.
6.5. Federal or State Jurisdiction
This Ordinance shall be construed in a manner consistent with all
Applicable Law, and shall apply to all Franchises granted or renewed after the
effective date of this Ordinance to the extent permitted by Applicable Law.
6.6. Applicable Law Police Power
(a) Except as specified in any Franchise, the Grantee shall be subject
to all Applicable Law.
(b) The Town retains every power and right that the Town has under
Applicable Law.
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(c) Nothing in any Franchise shall be deemed to waive any of the
Town's governmental rights or police powers.
(d) The Town Manager may adjust, settle or compromise any
controversy involving performance or charges arising from a Grantee's
operations. The Town Council may accept, reject or modify the Town Manager's
decision and may adjust, settle or compromise any controversy or cancel any
charge arising from a Grantee's operations.
6.7. Franchise Non -Transferable
(a) Grantee shall not sell, transfer, lease, assign or dispose of, in whole
or in part, either by forced or involuntary sale, or by ordinary sale, contract,
consolidation or otherwise (collectively "Transfer"), the Franchise or any of the
rights or privileges therein granted, without the prior written consent of the
Council. Any attempt to sell, transfer, lease, assign or otherwise dispose of the
Franchise without the consent of the Council shall be null and void. The granting
of a security interest in any Grantee assets, or any mortgage or other
hypothecation or by assignment of any right, title or interest in the Cable System,
or use of the Cable System as collateral in order to secure indebtedness, shall
not be considered a Transfer for the purposes of this Section. The granting of
consent for a Transfer in one instance will not render unnecessary approval of
any subsequent transfer.
(b) The requirements of Subsection (a) shall apply to any change in
control of Grantee. The word "control" as used herein includes majority
ownership, and actual working control in whatever manner exercised. In the
event that Grantee is a corporation, prior consent of the Council shall be required
where ownership or control of more than twenty percent (20%) of the ownership
IFS
or voting stock of the Grantee, or Grantee's immediate, intermediate or ultimate
parent is acquired by a Person or group of Persons acting in concert, none of
whom own or control the voting stock of the Grantee as of the effective date of
the Franchise, singularly or collectively.
(c) Grantee shall notify Grantor in writing of any foreclosure or any
other judicial sale of all or a substantial part of the Franchise property of the
Grantee or upon the termination of any lease or interest covering all or a
substantial part of said Franchise property. Such notification shall be considered
by Grantor as notice that a change in control or ownership of the Franchise has
taken place and the provisions under this Section governing the consent of
Grantor to such change in control or ownership shall apply.
(d) Grantee shall promptly notify Grantor of any proposed Transfer. If
any Transfer should take place without prior notice to Grantor, Grantee shall
promptly notify Grantor that such a Transfer has occurred. At least one hundred
twenty (120) calendar days before the contemplated effective date of a Transfer,
Grantee will submit to Grantor an application (hereinafter "Application") for
approving the Transfer. Such Application will provide complete information on
the proposed transaction, including details on the legal, financial, technical and
other qualifications of the transferee.
(e) The following information must be included in the Application,
provided that Grantee is not required to duplicate information that it submits to
Grantor to comply with its obligations under Applicable Law. No Application shall
be considered complete until all required information is received by the Grantor.
(1) All information and forms required under Applicable Law,
including Federal Communication Commission Form 394 or equivalent;
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(2) All information required in this Section for Franchise grants,
renewals, modifications or Transfers;
(3) A detailed statement of the corporate or other business
entity organization and management structure of the proposed transferee,
together with an explanation of how decisions regarding the Cable System will be
made if the proposed transaction is approved;
(4) Any contracts or other documents that relate to the proposed
transaction, including all documents, schedules, exhibits or the like referred to
therein;
(5) Any shareholder reports or filings with the Securities and
Exchange Commission that discuss the transaction;
(6) Complete information regarding any potential impact of the
Transfer on Subscriber rates and services;
(7) A brief summary of the proposed transferee's plans for at
least the next five (5) years regarding line extension, plant and equipment
upgrades, channel capacity, expansion or elimination of services and any other
changes affecting or enhancing the performance of the Cable System; and
(8) Legal, technical and financial qualifications of the
prospective transferee.
(f) Grantor may require Grantee, or any prospective transferee, to
provide additional information as it may deem necessary to determine whether
the Transfer is in the public interest and should be approved, denied or
conditioned. Grantee and any prospective transferees shall assist Grantor in any
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such inquiry and provide information requested. Failure to do so may result in
the request for Transfer being denied.
(g) In determining whether to grant, deny or grant subject to conditions
an application for a Transfer of a Franchise, Grantor's consideration may include,
but is not necessarily limited to:
(1) The legal, financial and technical qualifications of the
transferee to operate the Cable System;
services;
(2) Any potential impact of the Transfer on Subscriber rates or
(3) Whether the incumbent Grantee is in compliance with its
Franchise and Applicable Law and, if not, the proposed transferee's commitment
to cure such non-compliance;
(4) Whether the transferee owns or controls any other Cable
System in the Service Area and whether operation by the transferee may
eliminate or reduce competition in the delivery of the Cable Service in the Service
Area; and
(5) Whether operation by the transferee or approval of the
Transfer would adversely affect Subscribers, the public or Grantor's interest in
the Cable Franchise or Applicable Law.
(h) Any Transfer without Grantor's prior written approval is ineffective,
and will make a Franchise subject to revocation and to any other remedies
available under the Franchise or Applicable Law, except where a request for
15
approval or sale is subject to a deadline for action under 47 U.S.C. 537 and
Grantor fails to act by the time required under 47 U.S.C. 537.
(i) Grantor will not approve a Transfer request unless the transferee
agrees in writing that it will abide by and accept all terms of the Cable Franchise
Grant and Applicable Law and that the transferee will assume the obligations,
liabilities and responsibility for all acts and omissions of the previous Grantee
under the Franchise grant and Applicable Law for all purposes, including
renewal, unless Grantor, in its sole discretion, expressly waives this requirement
in whole or in part.
(j) Any financial institution having a pledge of the Grantee or its assets
for the advancement of money for the construction and/or operation of the
Franchise shall have the right to notify the Grantor that it or its designee
satisfactory to the Grantor shall take control of and operate the Cable System, in
the event of a Grantee default of its financial obligations. Further, said financial
institution shall also agree in writing to continue Cable Service and comply with
all Franchise requirements during the term the financial institution exercises
control over the System.
(k) Any submission of an application for transfer of a Franchise shall
be accompanied by a nonrefundable Franchise processing fee in the amount of
Three Thousand Dollars ($3,000). Upon transfer, Grantee shall reimburse
Grantor for Grantor's processing and review expenses in connection with the
transfer of the Franchise including without limitation, costs of administrative
review, financial, legal and technical evaluation of the proposed transferee,
consultants (including technical and legal experts and all costs incurred by such
experts), notice and publication costs and document preparation expenses. Any
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such reimbursement shall not be charged against any Franchise Fee due to
Grantor during the term of the Franchise.
6.8. Geographical Coverage
(a) Grantee shall design, construct and maintain the Cable System to
have the capability to pass every residential dwelling unit in the Service Area,
subject to any Service Area line extension requirements of the Franchise
Agreement.
(b) After service has been established by activating trunk and/or
distribution cables for any Service Area, Grantee shall provide service to any
requesting Subscriber within that Service Area within thirty (30) days from the
date of request, provided that the Grantee is able to secure all rights-of-way,
permits and landlord agreements necessary to extend service to such Subscriber
within such thirty (30) day period on reasonable terms and conditions.
6.9. Nonexclusive Franchise
Any Franchise granted pursuant to this Ordinance shall be nonexclusive.
The Grantor specifically reserves the right to grant, at any time, such additional
Franchises for a Cable System, as it deems appropriate, subject to Applicable
Law.
6.10. Multiple Franchises
(a) Grantor may grant any number of Franchises subject to Applicable
Law. Grantor may limit the number of Franchises granted, based upon, but not
necessarily limited to, the requirements of Applicable Law and specific local
considerations, such as:
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(1) The capacity of the Public Rights -of -Way to accommodate
multiple cables in addition to the cables, conduits and pipes of the utility
Systems, such as electrical power, telephone, gas and sewerage.
(2) The benefits that may accrue to Subscribers as a result of
Cable System competition, such as lower rates and improved service.
(3) The disadvantages that may result from Cable System
competition, such as the requirement for multiple pedestals on residents'
property, and the disruption arising from numerous excavations of the Public
Rights -of -Way.
(b) Grantor may require that any new entrant, non -incumbent Grantee
be responsible for its own underground trenching and the costs associated
therewith, if, in Grantor's opinion, the Public Rights -of -Way in any particular area
cannot feasibly accommodate additional cables.
6.11. Franchise Modification
The Grantee may be required to pay any costs incurred by the Grantor in
processing a Grantee request for Franchise modification. Upon written request
from the Grantee, the Grantor shall provide Grantee with an estimate of the total
processing costs prior to entering into the review of the request. Such costs shall
be paid by the Grantee prior to final consideration of the request by the Grantor.
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SECTION 7. FRANCHISE APPLICATIONS AND RENEWAL
7.1. Filing of Applications
Any Person desiring an initial Franchise for a Cable System shall file an
application with the Town. A nonrefundable initial application fee established by
the Town shall accompany the initial Franchise application to cover all validly
documented costs associated with processing and reviewing the application,
including without limitation costs of administrative review, financial, legal and
technical evaluation of the applicant, notice and publication requirements with
respect to the consideration of the application and document preparation
expenses. In the event such validly documented costs exceed the application
fee, the selected applicant(s) shall pay the difference to the Town within thirty
(30) days following receipt of an itemized statement of such costs.
7.2. Applications - Contents
An application for an initial Franchise for a Cable System shall contain,
where applicable:
(a) The names and addresses of Persons authorized to act on behalf
of the Applicant with respect to the Application;
(b) The name and address of the applicant and identification of
applicant's ownership and control, including the names and addresses of the ten
(10) largest holders of an ownership interest in the applicant and all Persons in
the applicant's direct ownership chain; the names and addresses of all Persons
owning ten percent (10%) or more in the applicant and in Persons in the
applicant's direct ownership chain; the Persons controlling the applicant and
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Persons in the applicant's direct ownership chain; and all of applicant's officers
and directors and Persons in the applicant's direct ownership chain;
(c) A demonstration of the applicant's technical ability to construct
and/or operate the proposed Cable System, including identification of key
personnel;
(d) A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed Cable System;
(e) A statement prepared by an independent certified public accountant
or independent financial institution regarding the applicant's financial ability to
complete the construction and operation of its proposed Cable System;
(f) A description of the applicant's prior experience in Cable System
ownership, construction, and operation;
(g) Identification of California cities and counties where the applicant or
its principals own, or have an interest in, a Cable Franchise. If an applicant does
not have a Cable Franchise in California, it will provide the information for its
operations in other States;
(h) Identification of the area of the Town to be served by the proposed
Cable System, including a description of the boundaries of the proposed Service
Area;
(i) A detailed description of the physical facilities proposed, including
Channel capacity, technical design, performance characteristics, headend, and
PEG Access facilities;
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(j) A plan for constructing the proposed Cable System, including
estimated plant mileage and location; proposed construction schedule; a
description, where appropriate, of how services will be converted from existing
facilities to new facilities;
(k) The proposed initial rate structure, including projected charges for
each Service Tier, installation, converters, and all other proposed equipment or
services;
(I) A demonstration of how the applicant will meet the community's
future cable -related needs and interests, including descriptions of the capacity,
facilities, and support for public, educational, and governmental use of the Cable
System (including institutional networks);
(m) Pro forma financial projections for the proposed Cable Franchise
term, including a statement of projected income and a schedule of planned
capital additions, with all significant assumptions explained in notes or supporting
schedules;
(n) If the applicant proposes to provide Cable Service to an area
already served by an existing Franchisee, the ability of Public Rights -of -Way and
other property that would be used by the applicant to accommodate an additional
System;
(o) Any other information as may be necessary to demonstrate
compliance with the. requirements of Applicable Law; and
(p) An affidavit or declaration of the applicant or its authorized officer
certifying the truth and accuracy of the information in the application,
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acknowledging the enforceability of application commitments, and certifying that
the Application meets all requirements of Applicable Law.
7.3. Consideration of Initial Applications
(a) Upon receipt of any application for an initial Franchise, the Town
Manager shall prepare a report and make recommendations respecting such
application to the Council.
(b) A public hearing shall be set prior to any initial Franchise grant, at a
time and date approved by the Council. Within sixty (60) days after the close of
the hearing, the Council shall make a decision based upon the evidence received
at the hearing as to whether or not the initial Franchise(s) should be granted,
and, if granted, subject to what conditions. The Council may grant one (1) or
more Franchises, or may decline to grant any Franchise.
7.4. Franchise Renewal
Franchise renewals shall be in accordance with Applicable Law. Grantor
and Grantee, by mutual consent, may enter into renewal negotiations at any time
during the term of the Franchise.
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SECTION 8. MINIMUM CONSUMER PROTECTION AND SERVICE STANDARDS
8.1. Operational Standards
(a) Except as otherwise provided in the Franchise Agreement, Grantee
shall meet or exceed the following Consumer protection and service standards
under Normal Operating Conditions:
(1) Sufficient toll-free telephone line capacity during normal
business hours to assure that telephone answer time by a Customer service
representative, including wait time, shall not exceed thirty (30) seconds; and
callers needing to be transferred shall not be required to wait more than thirty
(30) seconds before being connected to a service representative. Under Normal
Operating Conditions, a caller shall receive a busy signal less than three percent
(3%) of the time.
(2) Emergency toll free telephone line capacity on a twenty-four
(24) hour basis, including weekends and holidays. After normal business hours,
the telephone calls may be answered by a service or an automated response
system, including an answering machine and calls received after normal
business hours by such service or automated response system must be
responded to by a trained company representative by the next business day.
During periods when an answering device, including, but not limited to voice -mail,
is used, Grantee shall provide personnel who shall contact the answering device
or machine, at a minimum, every four (4) hours to check on requests for service
or complaints.
(3) A business and service and payment office conveniently
located to Subscribers open during normal business hours where Grantee
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provides adequate staffing to accept Subscriber payments and the return or
exchange of Subscriber equipment. "Conveniently located" shall either be within
the Town, or at such different location as may be detailed in Grantee's Franchise
Agreement. Normal business hours shall include some evening hours, at least
one (1) night per week, and/or some weekend hours. The Grantee may petition
the Grantor to reduce its business hours if the extended hours are not justified by
Subscriber demand, and Grantor may not unreasonably deny the petition.
(4) An emergency System maintenance and repair staff,
capable of responding to and repairing major System malfunction on a twenty-
four (24) hour per day basis.
(5) An installation staff, capable of installing service to any
Subscriber requiring a Standard Installation within seven (7) days after receipt of
a request, in all areas where trunk and feeder cable have been activated.
"Standard Installations" shall be those that are located up to one hundred twenty-
five (125) feet from the existing distribution System, unless otherwise defined in
any Franchise Agreement.
(6) Grantee shall schedule, within a specified four (4) hour time
period during normal business hours, all appointments with Subscribers for
installation of service, service calls and other activities at the Subscriber location.
Grantee may schedule installation and service calls outside of normal business
hours for the express convenience of the Customer. Grantee shall not cancel an
appointment with a Customer after the close of business on the business day
prior to the scheduled appointment. If a Grantee representative is running late
for an appointment with a Customer and will not be able to keep the appointment
as scheduled, the Customer shall be contacted and the appointment
24
rescheduled, as necessary, at a time which is mutually agreeable to the Grantee
and the Customer.
(b) Under Normal Operating Conditions, the standards of paragraphs
(a)(1) -(a)(2) above shall be met not less than ninety percent (90%) of the time
measured on a quarterly basis. For the purposes of this Section, "quarterly" shall
mean any consecutive three (3) calendar month period and is not necessarily
coincident with a calendar quarter. The standards of paragraphs (a)(4)-(6) above
shall be met not less than ninety-five percent (95%) of the time measured on a
quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure to comply.
(d) The Grantee shall offer and fully describe to those wishing to
become a Subscriber and existing Subscribers who have experienced a missed
appointment (where the missed appointment was not the Subscriber's fault) that
the potential or existing Subscriber may choose from at least the following
options:
(1) Installation or service call free of charge, if the appointment
was for an installation or service call for which a fee was to be charged;
(2) An opportunity to elect remedies under California Civil Code
Section 1722, if applicable.
W
8.2. Service Standards
(a) Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
Scheduled interruptions, insofar as possible, shall be preceded by notice and
shall occur during a period of minimum use of the Cable System, preferably
between one A.M. (1:00 A.M.) and five A.M. (5:00 A.M.) local time.
(b) The Grantee shall maintain a repair force of technicians normally
capable of responding to Subscriber requests for service within the following time
frames:
(1) For a System outage: Within two (2) hours, including
weekends, of receiving Subscriber calls or requests for service which by number
identify a system outage of sound or picture of one (1) or more channels,
affecting at least ten percent (10%) of the Subscribers of the System.
(2) For an isolated outage: Within twenty-four (24) hours,
including weekends, of receiving requests for service identifying an isolated
outage of sound or picture for one (1) or more channels that affects five (5) or
more Subscribers. On weekends, an outage affecting fewer than five (5)
Subscribers shall result in a service call no later than the next business day.
(3) For inferior signal quality: Within two (2) business days of
receiving a request for service identifying a problem concerning picture or sound
quality.
(c) Grantee shall be deemed to have responded to a request for
service under the provisions of this Section when a technician arrives at the
service location and begins work on the problem. In the case of a Subscriber not
26
being home when the technician arrives, the technician shall leave written
notification of arrival.
(d) Grantee shall not charge for the repair or replacement of defective
or malfunctioning equipment provided by Grantee to Subscribers, unless the
defect was caused by the Subscriber, or the equipment owned by the Subscriber
requires repair or replacement.
(e) With regard to Subscribers with mobility -limiting disabilities, upon
Subscriber request, each Grantee shall arrange for pickup and/or replacement of
converters or other Grantee equipment at the Subscriber's address or by a
satisfactory equivalent (such as providing postage -prepaid mailer).
(f) Unless excused, Grantee shall determine the nature of the problem
resulting in a request for service within two (2) business days of beginning work
and resolve all Cable System related problems within five (5) business days
unless technically infeasible.
8.3. Billing and Information Standards
(a) A Franchisee's billing Statement must be clear, concise, and
understandable; must itemize each category of service and equipment provided
to the Subscriber; and must state clearly the charges therefor.
(b) A Grantee's billing statement must show a specific payment due
date not earlier than the later of:
mailed; or
(1) Fifteen (15) days after the date the billing statement is
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(2) The tenth (10th) day of the service period for which the bill is
rendered.
(c) A late fee or administrative fee (collectively referred to below as a
"late fee") may not be imposed for payments earlier than twenty-seven (27) days
after the due date specified in the bill.
(1) A late fee may not be imposed unless the Subscriber is
provided written notice at least ten (10) days before the date the fee is imposed
that a fee will be imposed, the date the fee will be imposed and the amount of the
fee that will be imposed if the delinquency is not paid. A late fee may not be
imposed unless the outstanding balance exceeds Ten Dollars ($10.00).
(2) Subscribers shall not be charged a late fee or otherwise
penalized for any failure by a Grantee, including failure to timely or correctly bill
the Subscriber, or failure to properly credit the Subscriber for a payment timely
made. Payments shall be considered timely if received by the due date.
(3) A Grantee's bill must permit a Subscriber to remit payment
by mail or in person at the Grantee's local office.
(d) In case of a billing dispute, the Grantee shall respond to a written
complaint from a Subscriber within thirty (30) days. Pending resolution of the
billing dispute, Grantee shall exercise care to ensure that no termination or late
charge notices are issued for the disputed portions of the bill.
(e) Grantee shall provide pro rata credits or refunds automatically to
Subscribers whose service has been interrupted for two (2) or more hours if the
interruption was not caused by the Subscriber, and Grantee knows or should
have known of such interruption.
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Credits or refunds shall automatically be provided by Grantee on a pro
rata basis to any Subscriber(s) affected by interruption(s) of service for more than
three (3) hours due to actions or outages under the control of the Grantee,
exclusive of scheduled repairs, maintenance or Franchise -required construction
that Grantee has provided advance written notice of to Subscribers. In cases
where advance written notice is provided to Subscribers, the time period detailed
in said notice shall not exceed six (6) hours in any twenty-four (24) hour period.
In cases where said notice has been given to Subscribers and the service
interruption exceeds the period detailed in said notice, the provisions of this
Section shall apply.
In the event Grantee has improperly or inadvertently disconnected Cable
Services to a Subscriber, Grantee shall provide for restoration without charge to
Subscriber as soon as possible, but no later than within two (2) days of discovery
of disconnection. Grantee shall credit or provide refunds to any Subscriber
improperly or inadvertently disconnected from receiving Cable Services for the
period of time without Cable Service.
All credits or refunds for service shall be issued no later than the
Customer's next billing cycle following the determination that a credit is
warranted. For Subscribers terminating service, refunds shall be issued
promptly, but no later than thirty (30) days after the return of any Grantee -
supplied equipment.
(f) Grantee shall provide written information on each of the following
areas (i) at the time of the installation of service, (ii) at least annually to all
Subscribers, and (iii) at any time upon request:
(1) Products and services offered; and
29
(2) Prices and options for programming services and conditions
of subscription to programming and other services; and
and
(3) Installation and service maintenance policies; and
(4) Instructions on how to use the Cable Service; and
(5) Channel positions of programming carried on the System;
(6) Billing and complaint procedures, including the time to pay
outstanding bills, the grounds for termination of service, the process for resolving
billing disputes, and the address and telephone number of the Grantor office
designated for dealing with cable -related issues.
(g) Upon the initial provision of Cable Service to any Subscriber,
Grantee shall pro rate the first invoice for Cable Service to reflect, to the extent
appropriate, any partial billing period due to the introduction of Service at a time
other than the initiation of a billing cycle.
(h) Upon the initial provision of Cable Service to any Subscriber,
Grantee shall provide a written notice to the Subscriber containing substantially
the following information:
"Subscriber understands that the Company uses public rights-of-
way and other facilities of the Town of Los Altos Hills in providing
service and that this continued use cannot be guaranteed.
Subscriber agrees not to make any claims against the Town of Los
Altos Hills or its officers or employees in the event that such use is
30
denied for any reason, and Company is unable, in its discretion, to
provide service over alternate routes."
(i) Subscribers and Grantor shall be notified of any changes in rates,
programming services or channel positions as soon as possible in writing and in
accordance with Applicable Law. Notice must be given to Subscribers and
Grantor a minimum of thirty (30) days in advance of such changes if the change
is within the control of the Grantee. In addition, Grantee shall notify Subscribers
and Grantor thirty (30) days in advance of any significant changes in the
information required in paragraph 8.3(f) above.
8.4. Verification of Compliance with Standards
(a) Upon ten (10) days prior written notice, Grantee shall respond to a
request for information made by Grantor regarding Grantee's compliance with
any or all of the standards required in Sections 8.1, 8.2 and 8.3 above. Grantee
shall provide sufficient documentation to permit Grantor to -verify Grantee's
compliance.
(b) A repeated and verifiable pattern of non-compliance with the
consumer protection standards of Sections 8.1 through 8.3 above, after
Grantee's receipt of due notice and not less than a thirty (30) day opportunity to
cure, may be deemed a material breach of the Franchise Agreement.
(c) The Grantor, pursuant to Section 8.1(c) of this Ordinance, may
require Grantee to acquire equipment to determine compliance with the
telephone answering standards of this Section 8. Should Grantee have its own
telephone equipment which can report on telephone line(s) usage, the Grantee,
upon written request from the Grantor, shall submit such report from its own
31
system in order to verify compliance with the telephone answering standards of
this Section 8.
(d) Grantee shall take necessary steps to ensure that adequate
telephone lines and/or staffing are available to permit Grantee to satisfy its
obligations under this Ordinance and the Franchise. Consideration shall be given
for periods of promotional activities or outages. The monthly billing period shall
be considered as a normal, daily activity for purposes of determining the
availability of adequate telephone lines and/or staffing.
8.5. Subscriber Complaints and Disputes
(a) Grantee shall establish written procedures for receiving, acting
upon and resolving Subscriber complaints without intervention by the Grantor.
The written procedures shall prescribe the manner in which a Subscriber may
submit a complaint either orally or in writing specifying the Subscriber's grounds
for dissatisfaction. Grantee shall file a copy of these procedures with Grantor.
The written procedures shall include a requirement that Grantee respond to any
written complaint from a Subscriber within thirty (30) days of receipt.
(b) Upon prior written request, Grantor shall have the right to review
Grantee's response to any Subscriber complaints in order to determine Grantee's
compliance with the Franchise requirements, subject to the Subscriber's right to
privacy.
(c) Subject to Applicable Law, it shall be the right of all Subscribers to
continue receiving Cable Service insofar as their financial and other obligations to
the Grantee are honored. In the event that the Grantee elects to rebuild, modify,
or sell the System, or the Grantor gives notice of intent to terminate or not to
32
renew the Franchise, the Grantee shall act so as to ensure that all Subscribers
receive Cable Service so long as the Franchise remains in force.
(d) In the event of a change of control of Grantee, or in the event a new
operator acquires the System, the original Grantee shall cooperate with the
Grantor, new Grantee or operator in maintaining continuity of service to all
Subscribers. During such period, Grantee shall be entitled to the revenues for
any period during which it operates the System.
(e) Grantee response to Subscriber complaints, as well as complaints
made by Subscribers to Grantor and provided by Grantor to Grantee, shall be
initiated within one (1) business day of receipt by Grantor. The resolution of
Subscriber complaints shall be effected by Grantee not later than three (3)
business days after receipt of the complaint, or a longer period if such complaint
cannot reasonably be resolved within three (3) business days. Should a Grantee
supervisor not be available when requested by a Subscriber, a supervisor shall
respond to the Subscriber's complaint at the earliest possible time, and in no
event later than the end of the next business day. For complaints received by
Grantor and provided by Grantor to Grantee, Grantee shall notify Grantor of
Grantee's progress in responding to, and resolving, said complaints.
8.6. Truth in Advertising
(a) Each Grantee shall take appropriate steps to ensure that all written
Franchisee promotional materials, announcements, and advertising of Cable
Service to Subscribers and the general public, where price information is listed in
any manner, clearly and accurately discloses price terms. In the case of
telephone orders, a Grantee will take appropriate steps to ensure that price terms
33
are clearly and accurately disclosed to potential Customers in advance of taking
the order.
(b) Each Grantee will maintain a file available for public inspection
containing all notices provided to Subscribers under these Customer service
standards, as well as all promotional offers made to Subscribers. The notices
and offers will be kept in the file for at least one (1) year from the date of such
notice or promotional offer.
8.7. Other Requirements
(a) In the event Grantee fails to operate the System for seven (7)
consecutive days other than for reasons beyond the control of Grantee, without
prior approval or subsequent excuse of the Grantor, the Grantor may, at its sole
option, operate the System or designate an operator until such time as Grantee
restores service under conditions acceptable to the Grantor or a permanent
operator is selected. If the Grantor should fulfill this obligation for the Grantee,
then during such period as the Grantor fulfills such obligation, the Grantor shall
be entitled to collect all revenues from the System, and the Grantee shall
reimburse the Grantor for all costs or damages in excess of the revenues
collected by Grantor that are the result of Grantee's failure to perform.
(b) All officers, agents or employees of Grantee or its contractors or
subcontractors who, in the normal course of work come into contact with
members of the public or who require entry onto Subscribers' premises shall
carry a photo -identification card in a form approved by Grantor. Grantee shall
account for all identification cards at all times. Every vehicle of the Grantee or its
major subcontractors shall be clearly identified as working for Grantee.
34
(c) Additional service standards and standards governing Consumer
protection and response by Grantee to Subscriber complaints not otherwise
provided for in this Ordinance may be established in the Franchise Agreement or
by separate ordinance as permitted by Applicable Law.
35
SECTION 9. FRANCHISE FEE AND FINANCIAL REQUIREMENTS
9.1. Franchise Fee
(a) Following the issuance and acceptance of the Franchise, the
Grantee shall pay to the Grantor a Franchise Fee on Gross Annual Cable
Service Revenues in the amount and at the times set forth in the Franchise
Agreement.
(b) The Grantor, on an annual basis, shall be furnished a statement
within one hundred twenty (120) days of the close of the calendar year, either
audited and certified by an independent certified public accountant or certified by
an officer or authorized financial representative of the Grantee, reflecting the total
amounts of gross revenues and all payments, deductions and computations for
the period covered by the payment. Upon thirty (30) days prior written notice,
Grantor shall have the right to conduct an independent financial audit of
Grantee's Gross Annual Cable Service Revenue and Franchise Fee records, and
if such audit indicates a Franchise Fee underpayment of two percent (2%) or
more, the Grantee shall assume all documented costs of such audit.
(c) Except as otherwise provided by Applicable Law, no acceptance of
any payment by the Grantor shall be construed as a release or as an accord and
satisfaction of any claim the Grantor may have for further or additional sums
payable as a Franchise Fee under this Ordinance or for the performance of any
other obligation of the Grantee.
(d) In the event that any Franchise Fee payment or payment of any
adjustment to any Franchise Fee is not made on or before the dates specified in
the Franchise Agreement, unless otherwise excused, Grantee shall pay:
36
(1) an interest charge, computed from such due date, at an
annual rate equal to the prevailing commercial prime interest rate in effect upon
the due date, plus one (1) percentage point ; and
(2) if the payment is late by thirty (30) days or more, a sum of
money equal to five percent (5%) of the amount due in order to defray those
additional expenses and costs incurred by the Grantor due to Grantee's
delinquent payment.
(e) Franchise fee payments shall be made in accordance with the
schedule indicated in the Franchise Agreement.
9.2. Security
(a) Grantor may require Grantee to provide security, in an amount and
form established in the Franchise Agreement. The amount of the security shall
be established based on the extent of the Grantee's obligations under the terms
of the Franchise.
(b) The security shall be available to Grantor to satisfy all claims, liens
and/or taxes due Grantor from Grantee which arise by reason of construction,
operation, or maintenance of the System, and to satisfy any actual or liquidated
damages arising out of a material breach of the Franchise Agreement, subject to
the procedures and amounts designated in the Franchise Agreement.
(c) If the security is drawn upon by Grantor in accordance with the
procedures established in this Ordinance and the Franchise Agreement, Grantee
shall cause the security to be replenished to the original amount no later than
thirty (30) days after receiving written confirmation from the issuer where such
37
security is maintained that Grantor has made a draw against the security. Failure
to replenish the security shall be deemed a material breach of the Franchise.
38
SECTION 10. CONSTRUCTION REQUIREMENTS
10.1. System Construction
(a) Grantee shall not construct any Cable System facilities until
Grantee has secured the necessary permits from Grantor, or other responsible
public agencies. The Grantee shall be subject to all permit and bonding
requirements applicable to contractors working within the Public Rights -of -Way.
No provision of this Ordinance or the Franchise Agreement shall be deemed a
waiver of the obligation of a Grantee to pay Grantor for the issuance of a permit.
(b) In those areas of the Town where transmission lines or distribution
facilities of all public utilities providing telephone and electric power service are
underground, the Grantee likewise shall construct, operate and maintain its
transmission and distribution facilities underground.
(c) In those areas of the Town where the Grantee's cables are located
on the above -ground transmission or distribution facilities of the public and/or
municipal utility providing telephone or electric power service, and in the event
that the facilities of both the telephone and electric power utilities subsequently
are placed underground, then the Grantee likewise shall reconstruct, operate and
maintain its transmission and distribution facilities underground, at Grantee's
cost, which cost may be recoverable by Grantee as part of Grantee's rate base,
but not as a charge to any individual Subscriber or group of Subscribers. Certain
of Grantee's equipment, such as pedestals, amplifiers and power supplies, which
normally are placed above ground, may continue to remain in above -ground
enclosures, unless otherwise provided for by Applicable Law or in the Franchise
Agreement.
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(d) Any changes in or extensions of any poles, anchors, wires, cables,
conduits, vaults, laterals or other fixtures and equipment (herein referred to as
"Structures"), or the construction of any additional Structures, in, upon, along,
across, under or over the Streets, alleys and Public Ways shall be made under
the direction of the Town Engineer or a designee, who shall, if the proposed
change, extension or construction conforms to the provisions hereof, issue
written permits therefor. The height above public thoroughfares of all aerial wires
shall conform to the requirements of the California regulatory body having
jurisdiction thereof.
(1) All transmission and distribution structures, lines and
equipment erected by the Grantee shall be located so as not to interfere with the
proper use of the Public Rights -of -Way, and to cause minimum interference with
the rights or reasonable convenience of property owners who adjoin any of the
said Public Rights -of -Way, and not to materially interfere with existing public and
municipal utility installations.
(2) In the event that any property or improvement of the Grantor
in the Public Rights -of -Way is disturbed or damaged by the Grantee or any of its
contractors, agents or employees in connection with undertaking any and all
work pursuant to the rights granted to the Grantee pursuant to this Ordinance
and the Franchise Agreement, the Grantee shall promptly, at the Grantee's sole
cost and expense, restore to the Grantor's satisfaction said property or
improvement which was so disturbed or damaged. If such property or
improvement shall within two (2) years (or in the case of street improvement, until
the street is resurfaced if resurfaced prior to the expiration of the two (2) years) of
the date the restoration was completed, become uneven, unsettled or otherwise
require additional restorative work, repair or replacement because of the initial
disturbance or damage to the property by the Grantee, then the Grantee, as soon
as reasonably possible, shall, promptly upon receipt of written notice from the
Grantor and at the Grantee's sole cost and expense, restore to the Grantor's
satisfaction said property or improvement which was disturbed or damaged. Any
such restoration by the Grantee shall be made in accordance with such materials
and specifications as may, from time to time, be established by the Grantor.
(3) Prior to commencing any work on the System in the Public
Rights -of -Way, the Grantee shall obtain any and all permits, licenses and
authorizations lawfully required for such work. If emergency work on the System
in the Public Right -of -Way is required, the Grantee shall with all due diligence,
seek to obtain any and all such required permits, licenses and authorizations
within three (3) working days after commencing such emergency work. Prior to
performing any work in the Public Right -of -Way, Grantee shall give appropriate
notice to the "Underground Service Alert" ("USA"), or any similar type service
provider as designated by the Grantor.
(4) There shall be no unreasonable or unnecessary obstruction
of the Public Rights -of -Way by the Grantee in connection with any of the work
provided for herein. The Grantee shall maintain any barriers, signs and warning
signals during any work performed on or about the Public Rights -of -Way or
adjacent thereto as may be necessary to reasonably avoid injury or damage to
life and property.
(5) If the Town Manager determines that the Grantee has
created an unsafe condition in the Public Right -of -Way or adjacent thereto, the
Town shall have the authority to issue a work stoppage order restricting any work
by Grantee in the Public Rights -of -Way until the unsafe condition has been
41
corrected to the Town's reasonable satisfaction. In cases where unsafe
conditions are found by the Town, the Grantor shall correct the condition as soon
as possible unless otherwise permitted by the Town.
(6) If the Grantor lawfully elects to alter or change the grade or
location of any Public Right -of -Way, the Grantee shall, upon reasonable notice
by the Grantor, and in a timely manner, remove, relay and relocate its poles,
wires, cables, underground conduits, manholes and other fixtures at it own
expense provided that Grantee shall be entitled to share in any Grantor -provided
funds or reimbursements provided to utilities or other users of the Public Rights -
of -Way for such location.
(7) The Grantee shall not place poles, conduits or other fixtures
above or below ground where the same will interfere with any gas, electric,
telephone fixtures, water hydrants or other utility, and all such poles, conduits or
other fixtures placed in any street shall be so placed as to comply with all
ordinances of the Grantor.
(8) In accordance with Applicable Law, the Grantee or any utility
user of the Public Rights -of -Way may be required by the Grantor to permit joint
use of poles located in the Public Rights -of -Way, insofar as such joint use may
be reasonably practicable and upon payment of a reasonable rental fee for such
usage. In the absence of agreement regarding such joint use, each party shall
be entitled to exercise any rights and defenses provided by Applicable Law.
(9) The Grantee, on request of any Person holding a moving
permit issued by the Grantor, shall temporarily raise or lower its wires or fixtures
to permit the moving of buildings. The expense of such temporary raising or
lowering of wires or fixtures shall be paid by the Person requesting the same,
42
and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not less than five (5) business days prior written
notice to arrange for the temporary wire or equipment changes.
(10) Subject to provisions of Town Code, the Grantee shall have
the authority to trim any trees or other natural growth overhanging the Public
Rights -of -Way so as to prevent the branches of such trees or other natural
growth from coming in contact with the Grantee's wires, cables and other
equipment. The Grantor may require all trimming of trees and natural growth to
be done under its supervision and direction, at the expense of the Grantee.
(11) Grantee shall be subject to any and all requirements
established by the Grantor with regard to the placement and screening of
facilities and equipment located in the Public Rights -of -Way. Such requirements
may include, but not be limited to, use of landscaping to screen pedestals and
cabinets and requiring that construction be flush with the natural grade of the
surrounding area.
(12) Grantee shall use only chalk -based paints to mark the Public
Rights -of -Way in connection with the construction or maintenance of the Cable
System. All paint marks remaining after Grantee's clean-up following the
completion of the construction or maintenance work must be removed by
Grantee by means of sand blasting, chemicals, water or high-pressure water
within thirty (30) days following receipt by Grantee of Grantor's written notice
requiring such removal.
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10.2. Mulitiple Franchises
If the Grantor authorizes or permits another Cable System to operate
within the municipal limits of the Town, Grantee shall cooperate with such
franchisee to the extent necessary in the event that the installation of such new
Cable system requires the strengthening of poles, replacing poles, rearranging
attachments, placing underground facilities incident to the construction of an
additional Cable System in the Franchise Area. The cost of the construction and
installation of the new entrant Cable System shall, however, be borne by the new
cable franchisee.
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SECTION 11. STANDARDS
11.1. Applicable Standards
(a) The Grantee shall construct, install, operate and maintain its Cable
System in a manner consistent with Applicable Law, construction standards,
governmental requirements, FCC technical standards, and any detailed
standards set forth in its Franchise Agreement. In addition, the Grantee shall
provide to the Grantor, upon written request, a written report of the results of the
Grantee's periodic proof of performance tests conducted pursuant to FCC
standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the
Grantee shall make and submit such proof of performance tests and reports in
response to a written request from the Grantor. Such report shall be submitted to
the Grantor within thirty (30) days of issuance of the Grantor request.
11.2. Non -Compliance with Standards
Repeated and verified failure to maintain specified technical standards
shall constitute a material breach of the Franchise.
11.3. Costs of Technical Assistance
If the Grantor determines through the use of an independent third party
that Grantee's Cable System does not comply with any material Franchise -
imposed technical requirements, the Grantee shall pay the costs incurred by the
Grantor for obtaining any technical assistance deemed necessary by the Grantor
to determine said compliance. Any such payment by Grantee shall not be
credited against any Franchise Fees due to the Grantor.
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SECTION 12. INDEMNIFICATION AND INSURANCE REQUIREMENTS
12.1. Hold Harmless
Grantee shall indemnify, defend and hold Grantor, its officers, agents and
employees harmless from any liability, claims, damages, costs or expenses, to
the extent provided in the Franchise Agreement.
12.2. Insurance
(a) On or before commencement of Franchise operations, the Grantee
shall furnish to Grantor Certificates of Insurance for liability, Workers'
Compensation and property insurance from appropriately qualified insurance
companies, which shall be "admitted" in the State of California. The Certificates
of Insurance shall provide that the insurance is in force and will not be cancelled
or modified without thirty (30) days prior written notice to Grantor. The
Certificates of Insurance shall be in a form satisfactory to Grantor. The Grantee
shall maintain at its cost throughout the term of the Franchise, the insurance
required herein and in any Franchise Agreement.
(b) The policy of liability insurance shall:
(1) Name Grantor, its officers, agents and employees as
additional insured;
(2) Indemnify all liability for personal and bodily injury, death and
damage to property arising from activities conducted and premises used
pursuant to this Ordinance by providing coverage therefor, including but not
limited to:
Negligent acts or omissions of Grantee, and its
agents, servants and employees, committed in the
conduct of Franchise operations, and/or
- Use of motor vehicles;
(3) Provide a combined single limit for comprehensive general
liability and comprehensive automobile liability insurance in the amount provided
for in the Franchise Agreement.
(c) The policy of Workers' Compensation Insurance shall comply with
the laws of the State of California.
(d) The policy of property insurance shall provide fire insurance with
extended coverage on the Franchise property used by Grantee in the conduct of
Franchise operations in an amount adequate to enable Grantee to resume
Franchise operations following the occurrence of any risk covered by this
insurance.
The Certificates of Insurance shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and the
date upon which it will expire;
(3) The names of the primary insureds and any additional
insured required by the Franchise Agreement;
(4) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
47
(6) The amount or limit of coverage provided by the insurance.
(7) Any cancellation provisions.
If the Certificates of Insurance do not provide all of the above information,
Grantor reserves the right to inspect the relevant insurance policies.
(e) The commencement of Franchise operations shall not begin until
Grantee has complied with the aforementioned provisions of this Section.
(f) In the event Grantee fails to maintain any of the above-described
policies in full force and effect, Grantor shall, upon forty-eight (48) hours notice to
Grantee, have the right to procure the required insurance and recover the cost
thereof from Grantee. Grantor shall also have the right to suspend the Franchise
during any period that Grantee fails to maintain said policies in full force and
effect.
E11
SECTION 13. RECORDS AND REPORTS
13.1. Records Required
(a) Grantee shall at all times maintain:
(1) A written or computer -stored record of all service calls and
interruptions or degradation of service experienced for the preceding two (2)
years, provided that such complaints result in or require a service call, subject to
the Subscriber's right of privacy.
(2) A full and complete set of plans and record drawings
showing the locations of the Cable System installed or in use in the Town,
exclusive of Subscriber service drops and equipment provided in Subscriber's
homes.
(3) If requested by Grantor, a summary of service calls,
identifying the number, general nature and disposition of such calls, on a monthly
basis. A summary of such service calls shall be submitted to the Grantor within
thirty (30) days following any written request by Grantor, in a form acceptable to
the Grantor.
(4) If requested by Grantor, a complaint record which shall
contain a semi-annual (through June 30th and December 31s) breakdown
indicating the total number of complaints received for the preceding reporting
period, and shall indicate the classifications of complaints as follows:
construction, billing, Customer relations/service and miscellaneous.
(5) A full and complete record of rates for programming
services, equipment, installations and other Subscriber charges. This
49
information shall include, but not be limited to, rates for the Basic Service Tier,
Tiers of service beyond the Basic Tier, premium service, pay-per-view services,
late fees, additional outlets, converters, remote controls and any charges for
installation or service at the Subscriber premises.
(b) The Grantor may impose requests for additional information,
records and documents from Grantee, provided they relate to the scope of the
Town's rights under this Ordinance or the Grantee's Franchise Agreement.
(c) Upon reasonable notice, and during normal business hours,
Grantee shall permit examination by any duly authorized representative of the
Grantor of all:
(1) Franchise property and facilities, together with any
appurtenant property and facilities of Grantee situated within the Service Area;
and
(2) all records relating to the Franchise, provided they are
necessary to enable the Grantor to carry out its regulatory responsibilities under
this Ordinance or the Franchise Agreement. Grantee shall have the right to be
present at any such examination. Information that a Grantee may consider to be
confidential or proprietary shall be provided in accordance with the procedures of
Section 13.2(d) herein.
13.2. Reports
(a) Within ninety (90) days after the end of the calendar year, Grantee
shall submit a written report to Grantor with respect to the preceding calendar
year in a form approved by Grantor, including, but not limited to, the following
information:
50
(1) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System,
including but not limited to, services begun or discontinued during the reporting
year;
directors;
(2) A list of Grantee's officers and members of its board of
(3) A list of stockholders or other equity investors holding ten
percent (10%) or more of the voting interest in Grantee;
(4) An indication of any residences in Grantee's Service Area
where service is not available, and a schedule for providing service;
(5) Information as to
(i) the number of homes passed;
(ii) total Subscribers; and
(iii) the number of Basic and Pay Subscribers.
(6) A full and complete set of maps showing the locations of the
Cable System installed or in use in the Town, exclusive of Subscriber service
drops and equipment provided in Subscriber's homes. It is the intent of this
Section that the Grantor have a complete set of trunk and feeder maps. After the
initial submission of a complete set of drawings, the Grantee may satisfy the
provisions of this Section by providing updated portions of those sections of the
drawings which have changed.
51
(7) Any other information relevant to Franchise regulation which
the Grantor shall request, and which is relevant to Grantor's regulatory
responsibilities.
(b) The Grantor may impose requests for additional reports,
information, records and documents from Grantee, provided they relate to the
scope of the Town's rights under this Ordinance or the Grantee's Franchise
Agreement.
(c) Upon request, Grantee shall submit to Grantor copies of all
pleadings, applications and reports submitted by Grantee to any Federal, State
or local court, regulatory agency, or other governmental body as well as copies of
all decisions issued in response to such pleadings, applications and reports,
which are non -routine in nature and which will materially affect its Cable System
within the Franchise Area.
(d) Information otherwise confidential by law and so designated by
Grantee, which is submitted to Grantor, shall be retained in confidence by
Grantor and its authorized agents and shall not be made available for public
inspection. Notwithstanding the foregoing, Grantee shall have no obligation to
provide copies of documents to Grantor which contain trade secrets of Grantee
or which are otherwise of a confidential or proprietary nature to Grantee unless it
receives satisfactory assurances from Grantor, as expressed in a written
confidentiality agreement, that such information can and will be held in strictest
confidence and protected by the Grantor. To the extent possible, Grantee may
provide Grantor with summaries of any required documents or copies thereof
with trade secrets and proprietary matters deleted therefrom. The burden of
52
proof shall be on Grantee to establish the confidential nature of any information
submitted, to the reasonable satisfaction of the Grantor.
(e) If Grantee is publicly held, a copy of each Grantee's annual and
other periodic reports and those of its parent, shall be submitted to Grantor within
forty-five (45) days of the publication of such reports.
(f) Upon Grantor's request, but no more than annually, Grantee shall
submit to Grantor a privacy report indicating the degree of compliance with the
provisions contained in Section 18.3(c), (d) and (f) herein and all steps taken to
assure that the privacy rights of individuals have been protected.
(g) All reports required under this Ordinance, except those required by
law to be kept confidential, shall be available for public inspection in the Grantor's
offices during normal business hours.
(h) All reports and records required to be delivered to Grantor under
this Ordinance shall be furnished at the sole expense of Grantee, except as
otherwise provided in the Franchise Agreement.
(i) The willful refusal, failure, or willful negligence of Grantee to file any
of the reports required as and when due under this Ordinance, may be deemed a
material breach of the Franchise Agreement if such reports are not provided to
Grantor within thirty (30) days after written request therefor, and may subject the
Grantee to all remedies, legal or equitable, which are available to Grantor under
this Ordinance or the Franchise Agreement.
(j) Any materially false or misleading statement or representation
made knowingly and willfully by the Grantee in any report required under this
Ordinance or under the Franchise Agreement may be deemed a material breach
53
of the Franchise and may subject Grantee to all remedies, legal or equitable,
which are available to Grantor.
13.3. Opinion Survey
Upon written request of the Grantor, but not more than once every two (2)
years, the Grantee shall conduct a Subscriber satisfaction survey pertaining to
quality of service, which may be transmitted to Subscribers. The survey shall be
designed to be returned to the Grantor and shall be subject to Grantor's prior
review and approval, said approval to be in writing. The cost of such survey shall
be borne by the Grantor, said costs to be agreed to by Grantor and Grantee prior
to transmittal to Subscribers.
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SECTION 14. REVIEW OF SYSTEM PERFORMANCE
14.1. Biannual Review
(a) Throughout the term of the Franchise, but not more frequently than
once in any two (2) calendar year period, if requested by prior written notice from
the Grantor, Grantor and Grantee shall meet to review System performance and
quality of service. The various reports required pursuant to this Ordinance,
results of technical performance tests, the record of Subscriber complaints and
Grantee's response to those complaints, and the information acquired in any
Subscriber surveys, shall be utilized as the basis for review. In addition, any
Subscriber may submit comments or complaints during the review meetings,
either orally or in writing, and these shall be considered. Within thirty (30) days
after the conclusion of such a review meeting, Grantor may issue findings with
respect to the Cable System's Franchise compliance. Within thirty (30) days of
the issuance of such findings, the Grantee shall provide the Grantor with
Grantee's written response to the findings.
(b) If Grantor determines that Grantee is not in compliance with the
requirements of this Ordinance or the Grantee's Franchise Agreement, Grantor
shall provide Grantee, in the form of written findings, the specific details of each
alleged noncompliance. Grantor may then direct Grantee to correct the areas of
noncompliance within a reasonable period of time. Failure of the Grantee, after
due notice, to:
(1) correct the area(s) of noncompliance within the period
specified therefor; or
55
(2) commence compliance within such period and diligently
achieve compliance thereafter; or
(3) demonstrate that the allegations of noncompliance are
incorrect;
shall be considered a material breach of the Franchise, and Grantor may
exercise any remedy within the scope of this Ordinance and the Franchise
Agreement considered appropriate under the circumstances.
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SECTION 15. FRANCHISE VIOLATIONS
15.1. Remedies for Violations
If Grantee fails to perform in a timely manner any material obligation
required by this Ordinance or a Franchise granted hereunder, following written
notice from the Grantor and an opportunity to cure such nonperformance in
accordance with the provisions of Section 15 of this Ordinance, Grantor may at
its option and in its sole discretion:
(a) Cure the violation and recover the actual cost thereof from the
security fund established in the Franchise Agreement, unless Grantor, in its sole
discretion, has provided Grantee with additional time to effectuate a cure.
(b) Assess against Grantee liquidated damages in an amount set forth
in the Franchise Agreement for any such violations if such violation is not cured,
or if Grantee has not commenced a cure, on a schedule acceptable to Grantor.
Such assessment may be withdrawn from the security fund, and shall not
constitute a waiver by Grantor of any other right or remedy it may have under the
Franchise or Applicable Law, including without limitation, its right to recover from
Grantee such additional damages, losses, costs and expenses, including actual
attorney's fees, as may have been suffered or incurred by Grantor by reason of
or arising out of such material breach of the Franchise.
(1) Within three (3) days of a withdrawal from the security fund,
Grantor will mail, by certified mail, return receipt requested, written notification of
the amount, date and purpose of such withdrawal to Grantee.
(2) If at the time of Grantor's withdrawal, the amounts available
are insufficient to provide the total payment toward which the withdrawal is
57
directed, the balance of such payment will continue as Grantee's obligation to
Grantor until it is paid.
(3) Not later than thirty (30) days after receipt of notification to
Grantee by certified mail, return receipt requested, of a withdrawal from the
security fund, Grantee will deliver to Grantor for deposit in the security fund an
amount equal to the amount so withdrawn.
(4) Failure to make timely delivery of such amount to Grantor or
to restore the letter of credit will constitute a material violation of the Cable
Franchise.
15.2. Procedure for Remedying Franchise Violations
Prior to imposing any remedy or other sanction against Grantee specified
in this Ordinance, Grantor shall give Grantee notice and opportunity to be heard
on the matter, in accordance with the following procedures:
(a) The Town Manager shall first notify Grantee of the alleged violation
in writing by personal delivery or registered or certified mail, and demand
correction, or evidence of non -violation, within a reasonable time, which shall not
be less than thirty (30) calendar days. If Grantee fails to:
(1) correct the alleged violation within the time prescribed; or
(2) commence correction of the alleged violation within the time
prescribed and diligently remedy such alleged violation thereafter; or
(3) provide evidence that there is no violation,
58
the Town Manager shall then give, by personal delivery or registered or certified
mail written notice of not less than fifteen (15) days of a hearing. Said notice
shall set forth in detail each of the violations alleged to have occurred.
(b) Subsequent to the hearing, the Town Manager shall hear and
consider all other relevant evidence, and thereafter render findings and its
decision.
(c) If the Town Manager finds that
(1) the Grantee has corrected the alleged violation; or
(2) the Grantee has diligently commenced correction of such
alleged violation after notice thereof and is diligently proceeding to fully remedy
such alleged violation; or
(3) no material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall be
imposed.
(d) If the Town Manager finds that a material violation exists and that
Grantee:
(1) has not corrected the same in a satisfactory manner; or
(2) has not diligently commenced correction of such violation
after notice thereof and is not diligently proceeding to fully remedy such violation;
then the Town Manager may impose one (1) or more of the remedies provided in
this Ordinance and the Franchise Agreement as the Town Manager, in his or her
discretion, deems appropriate under the circumstances.
.*1
(e) Grantee may appeal any findings of the Town Manager to the
Council. The Council shall schedule a hearing on the issue within thirty (30) days
of receipt by the Town Manager of Grantee's appeal. The hearing will provide
Grantee with the full opportunity to participate and present evidence.
15.3. Grantor's Power to Revoke
(a) Grantor may revoke any Franchise granted pursuant to this
Ordinance and rescind all rights and privileges associated with it in the following
circumstances, each of which shall represent a default by Grantee and a material
breach under the Franchise:
(1) If Grantee fails to perform any of its material obligations
under this Ordinance or the Franchise Agreement and continues such failure to
perform after receipt of due notice and a reasonable opportunity to cure;
(2) If Grantee fails to provide or maintain in full force and effect
the insurance coverage or security fund as required in the Franchise Agreement;
(3) If Grantee violates any order or ruling of any regulatory body
having jurisdiction over the Grantee relative to the Grantee's Franchise, unless
such order or ruling is being contested by Grantee in good faith in an appropriate
proceeding;
(4) If Grantee knowingly practices any material fraud or deceit
upon Grantor;
(5) If Grantee becomes insolvent, unable or unwilling to pay its
debts, or enters into bankruptcy dissolution.
.E
(b) After completing the procedures set forth in Section 15.2 above, the
Grantor shall cause to be served on Grantee written notice of Grantor's intent to
revoke Grantee's Franchise. Such notice shall be served on Grantee at least
thirty (30) days prior to the date of the hearing on the issue. The notice shall
contain the time and place of the hearing and shall be published at least once in
a newspaper of general circulation within the Franchise area ten (10) days prior
to the hearing date.
(c) The Council shall hear any Person(s) interested in the revocation
and within ninety (90) days after the date of the hearing shall make its
determination whether the Grantee has committed a material breach of the
Franchise.
(d) If the Grantor determines that the Grantee has committed a
material breach, then the Grantor may:
(1) Declare the Franchise revoked and any security fund and
bonds forfeited; or
(2) If the material breach is curable by the Grantee, direct the
Grantee to take appropriate remedial action within the time and manner and
under the terms and conditions specified by the Grantor.
The termination and forfeiture of the Grantee's Franchise shall in no way
affect any right of Grantor to pursue any remedy under the Franchise or any
provision of law.
61
15.4. Appeal of Council Finding
The Grantee may appeal any Council finding made pursuant to Sections
15.2 and 15.3 to an appropriate court of jurisdiction. Any such appeal must be
taken by the Grantee within sixty (60) days of the issuance of the Council's
written decision.
IM
SECTION 16 FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM
In the event Grantee's performance of any of the terms, conditions or
obligations required by this Ordinance or a Franchise granted hereunder is
prevented by a cause or event not within Grantee's control, such inability to
perform shall be deemed excused and no penalties or sanctions shall be
imposed as a result thereof; provided, however, that such inability to perform
shall not relieve a Grantee from the obligations imposed by Section 8.3.(e)
pertaining to refunds and credits for interruptions in service. For the purpose of
this Section, causes or events not within the control of Grantee shall include
without limitation acts of God, war, strikes, sabotage, riots or civil disturbances,
labor disputes, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods,
earthquakes, landslides, and fires, but shall not include financial inability of the
Grantee to perform or failure of the Grantee to obtain any necessary permits or
licenses from other governmental agencies or the right to use the facilities of any
public utility where such failure is due solely to the acts or omissions of Grantee,
or the failure of the Grantee to secure supplies, services or equipment necessary
for the installation, operation, maintenance or repair of the Cable System where
the Grantee has failed to exercise reasonable diligence to secure such supplies,
services or equipment.
W
SECTION 17. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY
17.1. Abandonment or Removal
(a) If the Grantee discontinues the use of any of its property within the
Public Rights -of -Way for a continuous period of six (6) months, such property
shall be deemed to have been abandoned by Grantee. Any part of the Cable
System that is parallel or redundant to other parts of the System and is intended
for use only when needed as a backup for the System or a part thereof, shall not
be deemed to have been abandoned because of its lack of use.
(b) Grantor, upon such reasonable terms as Grantor may lawfully
impose, may give Grantee permission to abandon, without removing, any System
facility or equipment laid, directly constructed, operated or maintained under the
Franchise. Unless such permission is granted or unless otherwise provided in
this Ordinance, the Grantee shall remove all abandoned above -ground facilities
and equipment upon receipt of written notice from Grantor and shall restore to
Grantor's satisfaction any affected Public Right -of -Way. In removing its plant,
structures and equipment, Grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all Public Rights -of -Way in as good
condition as that prevailing prior to such removal without materially interfering
with any electrical or telephone cable or other utility wires, poles, or attachments.
Grantor shall have the right to inspect and approve the condition of the Public
Rights -of -Way, cables, wires, attachments and poles prior to and after removal.
The liability, indemnity and insurance provisions of this Ordinance and the
security fund as provided herein shall continue in full force and effect during the
period of removal and until full compliance by Grantee with the terms and
conditions of this Section 17.1.
64
(c) Upon the approved abandonment of any Franchise property, the
Grantee, if required by the Grantor, shall submit to the Grantor an instrument,
satisfactory in form to the Grantor, transferring to the Grantor the ownership of
the abandoned Franchise property.
(d) At the expiration, without renewal or extension, of the term for
which the Franchise is granted, or upon its revocation, as provided herein, the
Grantor shall have the right to require Grantee to remove, at its own expense, all
above -ground portions of the Cable System from all streets and public ways
within the Service Area within a reasonable period of time, which shall not be less
than one hundred eighty (180) days.
(e) Notwithstanding anything to the contrary set forth in this Ordinance,
the Grantee may abandon any underground Franchise property in place so long
as it does not materially interfere with the use of the Public Rights -of -Way in
which such property is located or with the use thereof by any public utility or other
Franchise holder.
17.2. Restoration by Grantor: Reimbursement of Costs
Upon written notice and upon the failure of the Grantee to commence,
pursue or complete any work to be done in any Public Right -of -Way required by
law or by the provisions of this Ordinance or the Franchise Agreement, within the
time prescribed and to the satisfaction of the Grantor, the Grantor may cause the
work to be commenced and/or completed. The Grantor shall provide to the
Grantee an itemized work order setting forth in detail the exact nature of the work
completed and the supplies used in such work. The Grantee shall pay to the
Grantor the costs for such work no later than thirty (30) days after receipt of the
itemized work order.
65
17 .3. Extended Operation and Continuity of Services.
Upon expiration or revocation of the Franchise, the Grantor shall have the
discretion to permit Grantee to continue to operate the Cable System for an
extended period of time. Grantee shall continue to operate the System under the
terms and conditions of this Ordinance as of the effective date of the Franchise
and the Franchise, as existed immediately prior to said expiration or revocation,
and to provide the regular Subscriber service and any and all of the services that
may be provided at that time. It shall be the right of all Subscribers to continue to
receive all available services provided that financial and other obligations to
Grantee are honored. The Grantee shall use reasonable efforts to provide
continuous, uninterrupted service to its Subscribers, including operation of the
System during transition periods following Franchise expiration or termination.
17.4. Receivership and Foreclosure
(a) At the option of the Grantor and subject to Applicable Law, a
Franchise granted hereunder may be revoked one hundred twenty (120) days
after appointment of a receiver(s) or trustee(s) to take over and conduct the
business of Grantee, whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) the receivership or trusteeship shall have been vacated
within said one hundred twenty (120) days; or
(2) such receivers or trustees within said one hundred twenty
(120) days shall have remedied all the defaults under the Franchise or provided a
plan for the remedy of such defaults which is satisfactory to the Grantor; or
(3) such receivers or trustees shall, within said one hundred
twenty (120) days, have executed an agreement duly approved by the court
having jurisdiction whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the Franchise.
(b) In the case of a foreclosure or other judicial sale of the Cable
System, in whole or in part, the Grantor may serve notice of revocation upon
Grantee and the successful bidder at such sale, and all rights and privileges of
the Grantee hereunder shall be revoked thirty (30) days after service of such
notice, unless:
(1) Grantor shall have approved the transfer of the Franchise, in
the manner provided by law; and
(2) the successful bidder shall have covenanted and agreed with
Grantor to assume and be bound by all terms and conditions of the Franchise.
67
SECTION 18. GRANTOR AND SUBSCRIBER RIGHTS
18.1. Reservation of Grantor Rights
(a) In addition to any rights specifically reserved to the Grantor by this
Ordinance, the Grantor reserves to itself every right and power which is required
to be reserved by a provision of Applicable Law or under the Franchise.
(b) Any right or power in, or duty retained or imposed upon Grantor, or
any commission, officer, employee, department or board of Grantor; may be
delegated by Grantor, or to such other person or entity as Grantor may designate
to act on its behalf.
18.2. Waiver
(a) The Grantor shall have the right to waive any provision of the
Franchise imposing an obligation on Grantee, except those required by
Applicable Law, if the Grantor determines (1) that it is in the public interest to do
so, or (2) that the enforcement of such provision will impose an undue hardship
on the Grantee or on the Subscribers. To be effective, such waiver shall be
evidenced by a statement in writing signed by a duly authorized representative of
the Grantor. Waiver of any provision in one (1) instance shall not be deemed a
waiver of such provision subsequent to such instance nor be deemed a waiver of
any other provision of the Franchise unless the statement so recites.
(b) The Grantee shall not be excused from complying with any of the
requirements of this Ordinance or the Franchise Agreement by any failure of the
Grantor on any one or more occasions to require or seek compliance with any
such terms or conditions.
18.3. Rights of Individuals
(a) Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, channel users, or general citizens on the basis
of race, color, religion, national origin, age, sex, handicap, marital status or other
protected classes. Grantee shall comply at all times with all other Applicable Law
relating to nondiscrimination.
However, nothing in this Ordinance or the Franchise shall limit the right of
the Grantee to deny service to any household or individual who has a negative
credit or service history with the Grantee, which may include non-payment of bills
or theft or damage to Grantee's equipment, or who has threatened or assaulted
employees of the Grantee in the course of their employment. In cases of bad or
negative credit, Grantee may require the payment of a deposit.
(b) Grantee shall adhere to the applicable equal employment
opportunity requirements of Applicable Law, as now written or as amended from
time to time.
(c) Without a lawful court order or applicable valid legal authority,
neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's
consent, tap, or arrange for the tapping, of any cable, line, signal input device, or
Subscriber outlet or receiver for any purpose except routine maintenance of the
System, detection of unauthorized service, polling with audience participation, or
audience viewing surveys to support advertising research regarding viewers
where individual viewing behavior cannot be identified.
(d) In the conduct of providing its Cable Services or in pursuit of any
collateral commercial enterprise resulting therefrom, Grantee shall take steps to
prevent the invasion of a Subscriber's or general citizen's right of privacy or other
personal rights through the use of the System as such rights are delineated or
defined by Applicable Law. The Grantee shall not without lawful court order or
other applicable valid legal authority utilize the System's interactive two-way
equipment or capability, if such equipment or capability exists, for unauthorized
personal surveillance of any Subscriber or general citizen.
(e) No cable line, wire amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises,
other than in appropriate easements, without first securing any required consent.
If a Subscriber requests service, permission to install upon Subscriber's property
shall be deemed granted.
(f) Grantee shall comply with Applicable Law regarding Subscriber
privacy including, but not limited to, Section 631 of the Cable Act (47 U.S.C.
551).
70
SECTION 19. SEPARABILITY
If any provision of this Ordinance is held by any court or by any Federal or
State agency of competent jurisdiction, to be invalid as conflicting with any
Applicable Law now or hereafter in effect, or is held by such court or agency to
be modified in any way in order to conform to the requirements of Applicable
Law, such provision shall be considered a separate, distinct, and independent
part of this Ordinance, and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event that Applicable Law is
subsequently repealed, rescinded, amended or otherwise changed, so that the
provision thereof which had previously been held invalid or modified is no longer
in conflict with Applicable Law, said provision shall thereupon return to full force
and effect and shall thereafter be binding on Grantor and Grantee, provided that
Grantor shall give Grantee thirty (30) days written notice of such change before
requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
71
Effective Date; Posting. This ordinance shall become effective thirty (30) days after the
date of its adoption and shall be posted within the Town of Los Altos Hills in three (3)
public places.
INTRODUCED: ..-June 2, 2004
PASSED: June 16, 2004
AYES: Mayor Mike O'Malley, Mayor Pro Tem Breene Kerr, .
Councilmember Emily Cheng, Councilmember Bob Fenwick,
NOES: Councilmember Dean Warshawsky
None
ABSENT:None
ABSTENTIONS: None
ATTEST:
City Clerk
AP OV D S TO FORM:
City Attom
72
S' M M O N S FOR COURT USE ONLY
(CITAu,ON JUDICIAL) (SOLO PARA USO DE LA CORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
STATE BOARD OF EQUALIZATION, an agency of the State of
California; COUNTY OF ALAMEDA, a political subdivision of
the State of California; COUNTY OF CONTRA COSTA, a
political subdivision of the State of California; (cont.
YOU ARE BEING SUED BY PLAINTIFF: Attachment A)
(LO ESTA DEMANDANDO EL DEMANDANTE):
COMCAST PHONE OF CALIFORNIA, LLC, a California limited
liability company
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a
copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the
court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more
Information at the California Courts Online Self -Help Center(www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse
nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may
lose the case by default, and your wages, money, and property may be taken without further warning from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an
attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services
program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California
Courts Online Self -Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association.
Tlene 30 WAS DE CALENDARIO despu6s de quo le entreguen esta cltacl6n y papeles legales para presentar una respuesta por escrito
on esta Corte y hacer que se entregue Una copla al demandante. Una Carta o Una Ilamada telef6nica no to protegen. Su respuesta por
escrito tiene que estar en formato legal correcto s/ desea que procesen su caso en la Corte. Es posible que haya un formulario que usted
pueda usar para su respuesta. Puede encontrar estos formularios de la corte y m6s Informacl6n one/ Centro de Ayuda de las Cortes de
California (www.courtinfo,ca.govlselfhelplespanol�, en la biblloteca de leyes de su condado o en la Corte que le puede mas cerca. Si no
puede pagar la cuota de presentaci6n, pida al secretarlo de la Corte que le de un formulario de exenci6n de pago de cuotas. Si no presenta
su respuesta a tiempo, puede perder el case per incumplimlento y la Corte le podra quitar su sueldo, dinero y blenes sin mas advertencia.
Hay otros requisitos legales. Es recomendable que liame a un abogado Inmediatamente. S/ no Conoco a un abogado,' puede llamar a un
serviclo de remisl6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisites para obtener servic/os
legales gratultos de un programa de servlcios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucroen el sitio web de
California Legal Services, (www.lawhelpcallfornia.org), en el Centro de Ayuda de /as Cortes de California,
(www.courtinfo.ca.govlselfhelplespanoo o ponlendose en contacto con la corte o e/ Co/eg/o de abogados locales.
The name and address of the court is: CASE NUMBER:
(El nombre y direcci6n de la corte es): (Numero def caso): 1 -51-86
ALAMEDA COUNTY SUPERIOR COURT
1225 Fallon Street
Oakland, CA 94612
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:
(EI nombre, la direcci6n y el n6mero de telefono del abogado del demandante, o del demandante que no tiene abogado, es):
PAUL M. GORDON (SBN 76577) (510) 625-7777
GORDON & GODDARD LLP
469 Ninth Street, Suite 200, Oakland, CA 94607 `� a v
DATE: ARTHUR_ siw Clerk, by Deputy
Fecha 4'�P''e( :!; v: r �1':,)�{.. EXECUTIVE OFFICui/C�"";:
( ) (Secretario) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form POS -090).)
(Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS -010)).
NOTICE TO THE PERSON SERVED: You are served
(SEAL] 1. as an individual defendant.
2. 0 as the person sued under the fictitious name of (specify):
Form Adopted for Mandatory Use
Judicial Council of Califernia
SUNI.100 (Rev. January 1, 20041
3, ® on behalf of (specify): All defendants
under: CCP 416.10 (corporation) CCP 416.60 (minor)
0 CCP 416.20 (defunct corporation) CCP 416.70 (conservatee)
�] CCP 416.40 (association or partnership) CCP 416.90 (authorized person)
® other (specify): Revenue &.:Taxation Cade section 5148(c)
4. = by personal delivery on (date):
Page 1 of 1
T' H O M S O N Code of Civil Procedure §§ 412.20. 465
SUMMONS 3# -
WEST
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PAUL M. GORDON (State Bar No. 765
GORDON & GODDARD LLP
469 Ninth Street, Suite 200 77CE1Vt—w1)
Oakland, California 94607: 1;
Tel.: (510) 625-7777 MAY 3 2004
Fax: (510) 625-7770
Attorneys for Plaintiff ,by CHIEF COUNRL urrl6t APR n 200
y �T�IT B(1RRQ Qt nI IAi 17pT i It OF THE SUPERIOR COURT
Comcast Phone of California, LLC` R
P -y Margaret J. Dawrie
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
COMCAST PHONE OF CALIFORNIA,
LLC, a California limited liability company,
Plaintiff,
vs.
STATE BOARD OF EQUALIZATION, an
agency of the State of California; COUNTY
OF ALAMEDA, a political subdivision of the
State of California; COUNTY OF CONTRA
COSTA, a political subdivision of the State of
California; COUNTY OF LOS ANGELES, a
political subdivision of the State of California;
COUNTY OF MARIN, apolitical subdivision
of the State of California; COUNTY OF
MONTEREY, a political subdivision of the
State of California; COUNTY OF ORANGE,
a political subdivision of the State of
California; COUNTY OF SAN FRANCISCO,
a political subdivision of the State of
California; COUNTY OF SAN MATEO, a
political subdivision of the State of California;
COUNTY OF SANTA CLARA, a political
subdivision of the State of California; and
COUNTY OF SONOMA, a political
subdivision of the State of California,
Defendants.
Case NoR G n 4 15 1 8 6 2
COMPLAINT TO RECOVER TAXES
(REVENUE AND TAXATION CODE
SECTION 5148)
1'
COMPLAINT TO RECOVER TAXES
1 $258,800,000 for plaintiffs property. The SBE affirmed this unitary value notwithstanding the
2 irrefutable fact that the fair market value of the subject property was, due to economic
3 obsolescence and other factors, substantially less than that figure.
4
20. On or about April 7, 2004, the SBE served plaintiffs representative with a copy of
5
the SBE's written Findings and Decision, whereby the SBE approved the findings and its decision
6
7 rendered November 18, 2003.
g 21. Comcast has paid the taxes levied by reason of the SBE's illegal and erroneous
9 assessment.
10 FIRST CAUSE OF ACTION
11 (For Refund of Taxes Paid)
12 22. Plaintiff realleges as if set forth in full herein the allegations of paragraphs 1
13 through 21 hereinabove.
14 23. The SBE's decision denying the relief sought in Comcast's petition for
15
reassessment was arbitrary, illegal and erroneous.
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24. Pursuant to section 5170 of the Revenue and Taxation Code, plaintiff is entitled to
17
18 a trial de novo regarding the valuation of its unitary property for 2003.
19 25. Comcast is entitled to a refund of the taxes illegally levied against and paid by it
20 pursuant to the SBE's excessive assessment.
21 WHEREFORE, Plaintiff prays judgment as follows:
22 1 That the Court determine the 2003 value of Comcast's unitary property, and order
23
a refund to Comcast of taxes paid pursuant to the SBE's excessive and erroneous assessrlent of
24
Comcast's state -assessed property;
25
26 2. For Comcast's reasonable attorneys' fees and costs incurred herein; and
27 3. For such other and further relief as the Court deems just and proper.
28
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COMPLAINT TO RECOVER TAXES
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Dated: April �0 , 2004
GORDON & GODDARD LLP
B
Paul M. Gordon
Attorneys for Plaintiff
Comcast Phone of California, LLC
6
COMPLAINT TO RECOVER TAXES