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ORDINANCE NO. 323
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LOS ALTOS
HILLS PROVIDING FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES
OR PRIVILEGES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF
CABLE COMMUNICATION, OR CABLE TELEVISION SYSTEMS, AND FURTHER
PROVIDING FOR THE CONTINUING REGULATION AND ADMINISTRATION OF
THESE FRANCHISES AND THE ACTIVITIES RELATIVE: TO THEM
THE CITY COUNCIL OF THE CITY OF LOS" ALTOS HILLS DOES ORDAIN AS
FOLLOWS:
SECTION
1:
INTENT
SECTION
2z
SHORT TITLE
SECTION
3.
DEFINITIONS
SECTION
4:
GRANT OF FRANCHISE
SECTION
5.
REGULATION OF FRANCHISE
SECTION
G:
GENERAL FINANCIAL AND INSURANCE PROVISIONS
SECTION
7:
DESIGN AND CONSTRUCTION PROVISIONS
SECTION
S:
SERVICE PROVISIONS
SECTION
9:
OPERATION AND MAINTENANCE
SECTION
IO:
RIGHTS RESERVED TO THE GRANTOR
SECTION
11:
RIGHTS RESERVED TO THE GRANTEE
SECTION
18:
FRANCHISE VIOLATIONS
SECTION
13:
REPORTS
SECTION
14:
MISCELLANEOUS PROVISIONS
SECTION
15:
FRANCHISE AP'P'LICATIONS
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S'EC'TION 1. INTENT
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The City of Los Altos Hills finds that the development of
cable television and communications systems has the potential of
having great benefit and impact upon the people of Los Altos
Hilas. because of the complex and rapidly changing technology
associated with cable television, the City further finds that
the public convenience, safety and general welfare can best be
served by establishing regulatory powers which should be vested
in the City or such persons as the City shall designate. It is
the intent of this ordinance and subsequent amendments to
provide for and specify the means to attain the best possible
public interest and public purpose in these matters and any
franchise issued pursuant to this ordinance shall be deemed to
include this finding as an integral part thereof.
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9ECTION___----- 9HORT TITLE
This ordinance shall be known and may be cited as the "City
of Los Altos Hills Cable Television Franchise Ordinance."
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SECTION _3_DEFINITIONS
For the purpose of this ordinance the following terms,
phrases, wards and their derivations shall have the meaning
given herein. When not inconsistent with the 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. The word "shall" is mandatory and
"may" is permissive. Wands not defined shall be given their
common and ordinary meaning.
3.1 _Add it icnal_Si_ibscri ber_Service_ means any service
not included in "Basic Subscriber Television Service", or "Basic
Subscriber Radio Service" or "Institutional Service", including,
but not limited to, pay-cable.
3.2 "Rgencv_S�abscri ber_ means a subscriber who receives
a service in a government or public agency, school, or
non-profit corporation.
3. "Basic-Subscriber_Radio_Serv_ice_ means the provision
to all subscribers of such audio programs as the retransmission
of broadcast FM radia signals, the retransmission of shortwave,
weather-, news, time and other similar audio information and the
transmission of cablecast audio signals all provided to
subscribers at a monthly rate.
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3.4 _Basic_Subscriber_l"elev_ision_Serv_ice" means the
total of all of the following:
(a) The transmission to all subscribers of all
broadcast television charnel signals authorized or permitted by
the FCC and provided for in a franchise agreement.
(b) The provision to all subscribers of
rion-broadcast open -channel signals, originating from sources
outside the Cable Communications System.
(c) The cablecasting to all subscribers of Local
Origination programming and Public, Educational and Government
Access Programming.
(tl) The transmission to all subscribers of all
other cablecasting open -channel signals.
Basic Subscriber Television Service may be offered to
subscribers in one or more tiers or combination of programs.
3.5 "Broadcast -Signal" means a television or radio
signal that is transmitted over the air to a wide geographic
audience and is received by a Cable Communications System
off -the -air or by microwave.
3.5a "Cable -Act" means the Cable Communications Policy
Act of 1984 and any amendments thereto.
3.6 "Cab le-L"omnv_in i cat i ons_Systenr_ or "System_, also
referred to as "Cable_Telev_isic�n_System", "CATV_System", or
"6r[adcast _Ccrnm unicat ions Network_, means a system of antennas,
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cables, amplifiers, towers, microwave links, cablecasting
studios, and other conductors, converters, equipment or
facilities, designed and constructed for the primary purpose of
distributing video programming to home subscribers, and the
secondary purpose of producing, receiving, amplifying, storing,
processing, or distributing audio, video, digital, or other
forms of electronic or electrical signals.
3.7 __Cablecast_Signal" means a nonbroadcast signal that
originates within the facilities of the Cable Communications
System.
3.8 "Cable mile" means a linear mile of strand -bearing
cable as measured or. the street or easement from pole to pole or
pedestal to pedestal.
3.9 "Channel_ means a six (6) Megahertz (MHz) frequency
band, which is capable of carrying either one (1) standard
televison or video signal, a number• of audio, digital or other
non -video signals, or some combination of such signals.
3.10 _Class_ IV Channel" means a signaling path provided
by a Cable Comrnurii cat ions System to transmit signals of any type
from a subscriber terminal to another point in the cable
television system.
3.11 _Closed_ Circuit_ or• _Institutiorial_Serv_ice_ means
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such video, audio, data and other services provided to
institutional users on an individual requirement, private
channel basis. These may include, but not be limited to,
two-way video, audio or digital signals among institutions, or
from institutions to residential subscribers.
3.12 _Comrnence_Construct ion" means that time and date
when construction of the Cable Communications System is
considered to have commenced, which shall be when the first
strand or cable is connected to a utility pole, or the first
undergrounding of cables is initiated, after preliminary
engineering (strand mapping) and after all necessary permits and
authorizations have been obtained.
3.13 _Commence_Operation" rneans that time and date when
operation of the Cable Communications System is considered tin
have commenced which shall be when sufficient distribution
facilities have beer, installed so as to permit the offering of
full service to at least ten percent (10X) of the dwelling units
located within the service area.
3.14 "Commercial -Subscriber" means a subscriber who
receives a service in a place of business, where the service may
be utilized in connection with a business, trade, or profession.
3.15 "Converter" means an electronic device which
converts signal carrier's from one form to another.
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3.16 "Council" means the governing body of the City of
Los Altos Hills.
3.17 "Educatior�al_Channel_r or _Educational_ Access_
Channel_ means any channel where educational institutions are
the primary designated programmers.
3. is _FCC_ means the Federal Communications Commission
and any legally appointed or elected sucessor.
3.19 _Franchise_ mears the nonexclusive rights granted
pursuant t, this ordinance to construct and oper•ate a Cable
Communications System along the public way within all or a
specified area in the City. Any such authorization, in whatever
form granted, shall not mean and include any license or permit
required for the privilege of transacting and carrying on a
business within the City as required by other ordinances and
laws of this City.
1.20 "Franchise A reement" means a franchise award
ordinance, or a contractual agreement, containing the specific
provisions of the franchise granted, including referenced
specifications, franchise applications, franchise requirements,
ordinances and other related materials.
3.81 _Franchise_Fee_ means the fee paid by the Grantee to
the Grantor- in consideration of the use of the public streets
and rights-of-way.
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3.22 "Government -Channel" or _GOVernnlent_Access_�_.'hannel"
means any channel where local government agencies are the
primary designated programmers.
3.23 "Grantee_ means any "person" receiving a franchise
pursuant to this ordinance and under the granting franchise
ordinance, and its lawfi.tl successor, transferee or assignee.
3.24 "Grantor" or "City" means the City of Los Altos
Hills as represented by the City CoLincil or any delegate acting
within the scope of its j_rrisdiction.
3.25 "Gryss_Annual_Rev_en_ies" means the annual gross
revenues received by the Grantee from all sources of operations
of the Cable Communications System franchised in accordance with
the provisions of this ordinance, except that any sales, excise
or other taxes collected for direct pass --through to local, state
or federal government shall not be included.
3.26 "Initial_S'erv_ice_Area" means the area of the City
which will receive service initially, as set forth in the
franchise agreement.
3.27 "Installation" means the connection of the system
from feeder cable to subscribers' terminals, and the provision
of service.
3.28 "Leased -Channel" or "Leased Access Channel" means
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any channel or^ portiom of a channel available f_m lease and
Programming by persons or- entities other- than the Grantee.
3.29 "Local Or i giriat ion_Channel" means any channel where
the Grantee is the primary designated progr,ammer•, and provides
video prograrns to subscribers.
3.30 "Monitoring" means observing a communication signal,
or the absence of a signal, where the observer, is neither the
slabscr•iber^ nor the progr-amrner-, whether- the signal is observed by
visual or electronic means, fort- any puv-pose whatsoever-.
Provided, monitoring shall not include systemwide,
nonindividually addressed sweeps of the system for' purposes of
verifying system integrity, controlling return paths
transmissions, Or billing for' pay services.
3. 31 "Nonbroadcast_Signal" means a signal that is
transmitted by a Cable Communications System and that is not
involved in or, over -the --air br•oadcast tr^ansmission path.
3.32 "Open_Channel" means any channel that can be
received by all subscribers, without the necessity for- special
equipment.
3.33 "p'ay_Cabl e" or' "F'ay_Teleyisign" means the delivery
to subscribers, over the Cable Communications System, of
television signals for- a fee or r-harge to siubscribers over and
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above the charge for Basic Subscriber Servicer or, a per program,
pet, channel, or other subscription basis.
3.34 "penetration" means the result expressed in
percentage obtained by dividing the total number of potential
subscribers in the franchise area into the number of subscribers
receiving service.
3.35 "person" means an individual, partnership,
association, organization, corporation or any lawful successor,
transferee or assignee of said individual, partnership,
association, organization or Corporation.
3.36 "private Channel", or "Closed Circrxit Channel" means
any channel which is available only to subscribers who are
provided with special converter, or terminal equipment to receive
signals on that channel.
3.37 "programmer" means a person or, entity who or which
produces or otherwise provides program material or information
for transmission by video, al.idio, digital, or other signals,
either live or from recorded tapes or other storage media, to
subscribers, by means of the Cable Communications System.
3.38 "Public Recess Channel", or "Communit Rocess
Channel" means any channel where any member of the general
Public or any noncommercial organization may be a programmer,
without charge, on a first --come, first-served, nondiscriminatory
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basis, in accordance with the terrns of the franchise agreement.
3.39 "Reasonable Notice" shall be written notice
addressed to the Grantee at its principal office or such other
office as the Grantee has designated to the Grantor as the
address to which notice should be transmitted to it, which
notice shall be certified and postmarked not less than four, (4)
days prior to that day in which the party giving such notice
shall commence any action which requires the giving of notice.
In computing said four (4) days, Saturdays, Sundays and holidays
recognized by the Grantor shall be excluded.
3.40 "Resident" means any person residing in the City as
otherwise defined by applicable law.
3.41 "Residential Subscriber" means i subscriber who
received a service in an individual dwel:(ing unit, where the
service is not to be utilized in connection with a business,
trade, or profession.
3.42 "Sale" shall include any sale, exchange, barter or
offer for sale.
3.43 "School" means any educational institution including
primary and secondary schools, colleges and universities, both
public and private.
3.44 "Section" means any section, subsection, or
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provision of this franchise ordinance.
3.45 "Service -Area" means the entire geographic area
within the franchise territory.
3.4E "State" means the State of California.
3.47 "Street" shall include each of the following which
have been dedicated to the public_ or hereafter dedicated to the
public and maintained under pUblic authority or by others and
located within the City limits: streets, roadways, highways,
avenues, lanes, alleys, sidewalks, easements, rights-of-way and
similar- public property and areas that the Grantor shall permit
to be included within the definition of street from time to
time.
3.48 "S_ibsriber" means any person, firm, corporation, or
other entity who or which elects to subscribe to, for arty
purpose, a service provided by the Grantee by means of cr in
connection with the Cable Communications System.
3.49 Subst art iallv_C�_mpl eted" means that s,.ifficient
distribution facilities have been installed by the Grantee so as
to permit the offering of full network service to at least
ninety percent (90%) of the potential subscribers in the service
area.
3.50 "Tapeing" means observing a two-way communications
signal exchange, where the observer is neither of comrni.irricating
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parties, whether the exchange is observed by visual or
electronic means, for any purpose whatsoever.
.3.51 "year" rneans the remaining portion of 19134.
Thereafter, "year" rneans a full calendar, year.
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SECTION 4. GRANT OF FRANCHISE
4.1 Grant. In the event that Grantor shall grant to
the Grantee a nonexclusive, revocable franchise to construct,
operate, maintain, and reconstruct a Cable Cornmuri i cat ions System
within the franchise area, said franchise shall constitute beth
a right and an obligation to provide the services of a Cable
Communications System as required by the provisions of this
ordinance and the franchise agreement. The franchise agreement
shall include those previsions of the Grantee"s "Application for -
Franchise" that are finally negotiated and accepted by the
Grantor and Grantee.
Any franchise granted sunder the terms and conditions
contained herein shall be consistent with general law and/or
statutory requirements, which are incorporated by this reference
as if fully set forth herein. In the evert of conflict between
the terms and conditions of the franchise and the 'terms and
conditions ori which the Grantor can grant a franchise, the
general law and/or statutory requirements, shall, without
exception, control.
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In the event this ordinance is in conflict with the
provisions of the franchise agreement, the franchise agreement
shall control.
Any franchise granted is hereby made subject to the general
ordinance provisions now in effect or- hereafter- made effective.
Nothing in the franchise shall be decried to waive the
requirements of the various codes and ordinances of the Grantor
regarding permits, fees to be paid or mariner of construction.
4.2 Franchise_Territ�_ry. The Granto, may grant a
franchise for all or any defined portion of the City. The
service area shall be the entire territory defined in the
franchise agreement. 'rhe initial service area shall be that
portion of the franchise territory scheduled to receive initial
service, as stated in the franchise agreement.
4.3 Use_]f_Public__S'treets_and_Ways. For the purpose of
operating and maintaining a Cable Comnu.rriication> System in the
franchise area, and subject to the provisions of Section 7.10
herein, the Grantee may erect, install, construct, repair,
replace, reconstruct, and retain in, or,, over, under, upon,
ar_ross, and along the public streets and ways within the
franchise territory such wires, cables, corductOrs, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments, and other property and equipment as are necessary
and appurtenant to the operation of the Cable Communications
System. Prior to con, --,t ruct ion or alteration, however, the
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Grantee shall in each ease file plans with the appropriate
Grantor agencies and local ,utility companies, Arid receive
written, approval before preceeding.
4.4 Durat ior,. The terra -if any franchise and all
rights, priviledges, obligations and restrictions pertaining
thereto shall be fifteem (1.5) years from the effective date of
the franchise or as otherwise specified in the franchise
agreement unless terminated sooner as hereinafter provided. The
effective date of the franchise shall be the date of execution
of the franchise agreement by beth Grantor and Grantee.
4.5 Franchise_ Nonexclusive. The franchise granted
herein is nonexclusive. The Granter specifically reserves the
right to grant, at any time, s,xch additional franchises for a
Cable Communications System as it deems appropriate.
4.6 Transfer _,_f_Owr,ershig_or^_Cpntrol
(a) Transfer_of_Franchise. Any franchise granted
hereunder shall be a privilege to be held for the benefit of the
public. Said franchise cannot in any event be sold,
transferred, leased, assigned or disposed of, including but not
limited to, by forced or voluntary sale, merger, consolidati,.ory
receivership, or other, means without the prior consent of the
Grantor, and then only under such c,-,nditior,s as the Grantor may
establish. Such consent as req,.iired by the Grantor shall,
however, not be ,ur,reasonabl.y withheld.
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(b) Ownersh_p_Or_Oontrol.. The Grantee shall
promptly notify the Granter of any proposed change in, or
transfer of, or acquisiticr, by any other party of, control of
the Grantee. The word "control" as used herein is not limited
to major- stockholders but includes actual working control in
whatever manner exercised. A rebuttable presumption that a
transfer- of control has occurred shall arise upon the
acquisition or transfer by any persor, or group of persons of ten
percent (10%) of the voting shares of the Grantee. Every
change, transfer, or acquisition of coritrc,l of the Grantee shall
make the franchise subject to cancellation unless and until the
Grantor shall have consented thereto, which consent will riot be
unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer, or acquisition of
control, the Grantor pray inquire into the qualifications ..f the
prospective controlling party, and the Grantee shall assist the
Granter in any such inquiry.
In seeking the Granter's consent to any change in ownership
or, control, the Grantee shall have the responsibility:
(1) To show to the satisfaction of the
Grantor whether the proposed purchaser, transferee, .-Dr assignee
(the "proposed transferee"), which in the case of a corporation,
shall include all officers, direct-irs, employees and all persons
having a legal or- equitable interest in five percent (SX) .+r
more of its voting stock., or- arty of the proposed transferee's
principals:
a. Has ever beer. convicted or- held
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liable for acts involving rn,%ral turpitude including, but not
limited to any violation of Federal, Stater or local law or
regulations, or is presently under or, indictment, investigation
or complaint charging such acts;
b. Has ever had a judgernent in an
action For fraud, deceit or ru.srepresentatiori entered against
it, her, hire, or them by any court of competent jurisdiction; or
C. Has pending any legal claire,
lawsuit or administrative pre-ceeding ari=sing out of or i.riv,ilving
a cable system.
(2) To establish, to the satisfaction of the
Grantor, the financial solvency of the proposed transferee by
submitting all current 'Financial data for- the proposed
transferee which the Grantee was required to submit in its
franchise application, and such ether data as the Grantor, reay
request. Financial statements shall be audited, certified and
qualified by ars independent Certified Public Accountant.
(3) Ti, establish to the satisfaction of the
Grantor that the financial arid technical capability of the
pr, -,posed transferee is such as shall enable it to maintain and
operate the cable system for the remaining term of the franchise
under the existing franchise terms.
(c) The Grantor agrees that any financial
institution having a pledge of the franchise -r its assets for,
the advancement of money for the construction and/or, operation
of the franchise shall have the right to notify the Granter that
it or its desigr.ee satisfactory to the Grantor will take conte—I
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and _operate the Cable Televi.sion System, in the event cif a
Grantee default in its financial obligati -ins. Further, said
financial institution shall also submit a plan for such
operation that will insure continued service and compliance with
all franchise requirements during the term the financial
institution exercises control over the system. The financial
institution shall not exercise control over the system for a
period exceeding one (1.) year unless extended by the Grantor- in
its discretion and during said period of time it shall have the
eight t,j petition the Grantor to transfer franchise to another
Grantee. If the Grantor finds that such transfer after
considering the legal, financial, character, technical and other
public interest qualities c:,f the applic:frit are satisfactory, the
Girantor will transfer and assign the eights and obligations of
such franchise as in the public interest. The consent of the
Grantor to such transfer shall not be unreasoriably withheld.
(d) The consent or approval of the Grantor- to any
transfer of the Grantee shall not constitute a waiver or release
of the eights of the Grantor in and to the streets, and any
transfer shall by its terms, be expressly subordinate to the
terms and conditions of this franchise.
(e) In the absence of oxtraordinary circumstances,
the Grantor, will not approve any transfer or assignment of the-
franchise
hefr•anc_hise prior, to substantial completion of construction of the
proposed system.
(f) In no event shall a transfer of ownership or
control be approved without the successor- in interest assuming
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in writing in form satisfactory to the Town the franchise
agreement and all obligations thereunder.
4.7 Franchise_RLnewal. 4 --thing in any franchise
agreement shall require renewal by the Grantor after the teem of
the franchise has expired, noir shall renewal be presumed as a
matter of vested interest.
( a ) Franchise renewal shall be in accordance with
applicable law. In the absence of state or federal applicable
law to the contrary, the provisions of (b) and (c) below shall
apply.
(b) Term. The r•errewal term of arry franchise
shall not be greater than the initial terra.
(c) Renewal _Procedure.
(1) Not .later than eighteen (10) nor earlier
than twenty-four (24) rooriths prior to the expiration oaf any
franchise, a Grantee may Submit an application for renewal of
such franchise, on forms approved by the Gr^antor, with a
nonrefundable application fee established by the Grantor in an
ari.�unt riot to exceed the reascinable cost of processing the
application. The application shall set forth in detail the
franchisee's legal, r_haracter, financial and other pertinent
qualifications sufficient to make a determi.ration to renew on^
terminate such franchise.
(2) The applicati-nn when filed c,hell be
available for public inspection at places designated by the
Grantor. No later than ninety (90) days after filing, a public
hearing shall be held on the applicatir%ri. P deciui,--n shall be
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made by the Grantor not later than ninety (90) days after such
hearing based upon the application, the hearing, the Grantee's
recc.r^d of compliance with the franchise requirements, its recc,rd
of satisfactory service, and the terms and conditicrrs proposed
for the franchise renewal period.
(3) Based or, the above criteria, Granter may
decide to renew the franchise under appropriate terms and
conditiorre, or, not to renew the franchise.
(4) If Grarrtor"s decision is not t.o renew
the franchise, Grantor may initiate public solicitation for
applications for a new franchise. The original Grantee shall
not be precluded from submitting such an application.
(5) In any renewal or public solicitation,
the Grantor may require additional services, sys'tern upgrade or
any ether- conditi,ns ib deems feasible and appropriate in the
light of the state of art of the cable communications industry
at that time.
4.51 Police Powers.. In accepting a franchise, the
Grantee acknowledges that its rights hereunder are subject to
the police power of the Grant.:, to adopt and enforce general
ordinances necessary to the safety and welfare of the public;
and it agrees to comply with all applicable general laws and
ordinances enacted by the Grantor pursuant to snch power.
Any conflict between the provision,of this ordinance and
any other present or fUture Iawf1ll exercise of the Grantorrs
police powers shall be re=,olved in fav r of the latter, except
that any such exercise that is not of general application in the
jurisdiction or applies exclusively to any Grantee or Cable
Communications System which contiins provisioris incrmsistent
with this franchise shall prevail only if utpon sLich exerciser
the Grantor finds any emergency exists constituting a danger to
health, safety, property or general welfare or such exercise is
mandated by law.
4.9 J--ranchise-Fee
(a) Anrn_ia I Franch i. se Payments. R Grantee of a
franchise herelinder• shall pay to the Grantor an armial fee in an
arnount as designated in the franchise agreement. Such payment
shall be in addition to any ether and commence as of the
effective date of the franchise. In the evens: of a displate, the
Grantor, if it so requests shall be furnished i statement,
either- audited by a Certified Public Rccw_intant, or certi.fi.ed by
a financial officer of Grantee, reflecting the total amounts of
annual gross revenues and all payments, deductions and
computations for the period covered by the payment,
(b) Rcceet ance_by_Grant�_r_. Nn acceptance of any
payment by the Grantor shall be construed as a release or as an
accord ar�d satisfaction of any claire 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.
(c) Fail'aret n_Ma ke_Re1uired_F'aymer�t. In the
event that any franchise payment o.r rec.�rnprrbed .arn„unt is not
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made on or before the dates specified herein, Grantee shall pay
as additional compensation:
(ll An interest charge, c,wnputed frcjrn such
due date, at the annual rate equal to the conrrnerr.ial prime
interest rate ire effect upen-, the due date.
(c) n sum of money equal to five percent
(BX) cf the amount due in order to defray th-,se additir,nal
expenses and c�-sts incurred by the Grantor by reason of
delipuerit payment.
(d) Payment due. the Granter under this provision
shall be computed quarterly, fin^ the preceding Grantee fiscal
quart er. Each payment shall be accornparried by a brief report
showing the basis for the ccanp_itation and such other relevant
facts as may be required by the Grantor.
(e) Follcjwinq the issuarice and acceptance of the
franchise, the Grantee shall initiate franchise fee payments t..
the Gr•aritor at the minimum rate specified in the franchise
agreement. These initial payments shall be credited against
payment; due in later years -,f the franchise in as couch as they
exceed the actual 'Franchise payments due during any year.
4. 1.0 Fi-rfeiturL or Revocation
(a) Grounds for- Re voc at ior�. The Granter ree:erve�
the right to revoke arty frarichi.se granted hereunder and re,'auirid
all rights and privileges associated with the 'Franchise in the
following cirournstarfces, each r_�f which =_:hall represent a default
and breach under this rdi.riance and the franchise grant:
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(1) If the Grantee should default in the
performance of any of its material obligatio.r�s under this
ordinance or sunder such documents, agreements and other- terms
and previsions entered intoe by and between the Grantor, and the
Grantee.
(c) If the Grantee should fail toy provide or
maintain in full force and effect, the liability and
indernnifir_ation coverages or- the security fund or- bonds as
r-equir-od herein.
(3) IF any cour•'k of coanpetent jurisdi.ctio-rq
or arty federal or state regulatory bo-dy by rules, decisi-ins or
other action clot erre i ries that any rnater-ial provisi.on of the
fr-anch .ise docuunerits, including this ordinance, is inval.i.d or•
unenforceable prior- to the Loriencenrcrit of system construction.
(4) If the Grantee shn,tld willfully violate
any orders cn^ r,ulir�g5 of any r-egj.tlatory body having jut-isdicti.,-,n
aver- the Grantee relative to- this franchise ur�l.ess such order's
ort- rulings are being contested by the Grantee in a tour-t oaf
competent juv-isdictien.
(5) If the Grantee coasee to- providc.
services fen^ any r-eason within the of the Grantee o+ver
the Cable C..unrouni.cations System. The Grantee r,hall rj..-,t be
declared at fault or- be subject to any sanctic,ri�incic.*r- a-,y
provision of this ordinance in any case in which per-for-mance of
any such prevision is prevented for reav,ons> beyond the G'rantee's
control. R fault shall riot deemed to be beyond the Grantee's
control if cornrnitted by a cert-porat ion or, --ther- business eriti.ty
in which the Grantee holds a controlling interest, whether held
directly or indirectly.
(6) If the Grantee attempts to evade any of
the provisions of this ordinance or, the franchise agreement or
practices any fraud or deceit upon the Grantor.
(7) If the Grantee's construction schedule
is delayed fort^ more than six (6) months beyond the schedule
contained in the franchise agreement and Grantor, finds that the
delay was riot excusable.
(8) If the Grantee becomes insolvent, unable
or unwilling to pay its debts, or is adjudged a bankrupt.
(b) procedure Prior to Revocation
(ll The Grantor may make written demand that
the Grantee do so comply with any such requirement, limitation,
terrn,r_ondition, rule or regulation or correct any action deemed
cause for revocation. If the failure, refusal or- neglect of the
Grantee continues for a period of thirty (30) days following
such written demand, the Grantor may place its request for
termination of the franchise upon a regular Grantor meeting
agenda. The Grantor shall cause notice to be served upon such
Grantee, at least ten (10) days prior to the date of such
meeting, a written notice of this intent to request such
termination, and the time and place of the meeting, notice of
which shall be published at least ounce, tern (10) days before
such meeting in a newspaper of general circulation within the
franchise area.
(2) The Grantor shall hear any persons
26
interested therein, and shall determine, in its discretion,
whether or not any failure, refusal or neglect by the Grantee
was with ,just cause.
(3) If such failure, refusal or neglect by
the Grantee was with ,just cause, the Grantor shall direct the
Grantee to comply within such time and manner and upon such
terms and conditions as are reasonable.
(4) If the Grantor shall determine such
failure, refusal or neglect by the Grantee was without just
cause, then the Grantor may, by resolution, declare that the
franchise of such Grantee shall be terminated and security fund
and bonds forfeited unless there be compliance by the Grantee
within such period as the Grantor may fix.
4.11 Procedures _in_ the _Event _of_Termination_or•_Expiration
(a) Disposition_ of Facilities. In the event a
franchise expires, is revoked, or otherwise terminated, the
Grantor may order the removal of the system facilities from the
franchise area within a reasonable period of time as determined
by the Grantor or require the original Grantee to maintain and
operate its network until a subsequent Grantee is selected and a
subsequent or modified cable system becomes operational.
(b) Rest orat ion_of_Propert y. In removing its
plant, structures and equipment, the Grantee shall refill, at
its own expense, any excavation that shall be made by it and
shall all public ways and places in as good condition as that
prevailing prior to the Grantor's removal of its equipment and
27
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appliances without affecting the electrical or, telephone cable
wires, or attachments. The Grantor shall inspect and approve
the condition of the public ways and public places; and cables,
wires, attachments and poles after removal. The liability,
indemnity and insurance, and the security fund and bonds
provided therein shall continue in full force and effect during
the period of removal and until full compliance by the Grantee
with the terms and conditions of this Section.
(c) Restoration_by_Orantori_Reinrbursement of
Costs. In the event of a failure by the Grantee to complete
any work required by Subsection (a) above and/or Subsection (b)
above, or any other^ work required by the Grantor is law or
ordinance within the time as may be established and to the
satisfaction of the Grantor, the Grantor may cause such work to
be done and the Grantee shall reimburse the Grantor the cost
thereof within thirty (30) days after the receipt of an itemized
list of such costs or the Grantor may recover such costs through
the security fund or bonds provided by Grantee. The Grantor
shall be permitted to seek legal and equitable relief to enforce
the provisions of this section.
(d) Extend,ed_Gperation. Upon either the
expiration or revocation of a franchise, the Grantor may require
the Grantee to continue to operate the Cable Communications
System for a defined period of time not to exceed twenty-four
(24) months from the date of such expiration or revocation. The
Grantee shall, as trustee for its successor in interest,
continue to operate the Cable Communications System under the
28
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terms and conditions of this ordinance and the franchise
agreement and to provide the regular subscriber service and any
and all of the services that may be provided at that time. The
Granton, shall be permitted to seek legal and equitable relief to
enforce the provisions of this Section.
(e) Grantor's_Right_Not_effected. The
termination and forfeiture of any franchise shall in no way
affect any of the rights of the Grantor under, the franchise or
any provision of law.
4.12 Receiv_ershie_and_Forecicsure
(a) Any franchise herein granted shall, at the
option of the Grantor, cease and terminate one hundred twenty
(12C)) days after the appointment of a receiver or receivers or
trustee or trustees to take over- and conduct the business of the
Grantee whether in a receivership, reorganization, bankruptcy or
other action or proceeding unless such receivership or
trusteeship shall have been vacated prior to the expiration of
said one hundred twenty (120) days, or unless:
(1) Such receivers or, trustees shall have,
within one hundred twenty (120) days after their election or
appointment, fully complied with all the terms and provisions of
this ordinance and the franchise granted pursuant hereto, and
the receivers or trustees within said one hundred twenty (120)
days shall have remedied all defaults under the franchise; and
(2:) Such receivers or trustees shall, within
said one hundred twenty (120) days, execute an agreement duly
29
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approved by the Court having jurisdiction in the premises,
whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the
franchise herein granted.
(b) In the case of a foreclosure or other judicial
sale of the plant, property and equipment of the Grantee, or any
part thereof, including or excluding this franchise, the Grantor
may serve notice of termination upon the Grantee and the
successful bidder at such sale, in which event the franchise
herein granted and all rights and privileges of the Grantee
her•eUnder shall cease and terminate thirty (30) days after
service of such notice, unless:
(1) The Grantor shall have approved the
transfer of this franchise, as and in the mariner in this
ordinance provided, and
(c) Such successful bidder shall have
covenanted and agreed with the Grantor to assume and be bound by
all the terms and conditions of this franchise.
4.13 Franchise_Reguired. No Cable Communications System
shall be allowed to occupy or use the streets in the franchise
territory or be allowed to operate without a franchise in
accordance with the provisions of this ordinance.
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SECTION _S______ REGULATION OF FRANCHISE
5.1 Regulatery_A_i_tthority. The Grantor shall exercise
appropriate regulatory authority sunder the provisions of this
ordinance and applicable law. If the franchise area served by
this Cable Communications System also serves other contiguous or -
neighboring communities, Grantor may, at its sole option,
participate in a ,joint regulatory agency, with delegated
responsibility in the area of cable and related communications.
5.2 Regulatory_Resp._nsibility. The Grantor, acting
alone or acting .jointly with other Grantors, may exercise or
delegate the following responsibility:
(a) Adminstering and enforcing the provisions of
the Cable Communicatiors System franchise(s).
(b) Coordination of the operation of government
and educational channels.
(c) providing technical, programming and
operational support to public agency users, such as government
departments, schools and health care institutions.
(d) Establishing procedures and standards for use
of channels dedicated to public use and sharing of public
facilities, if provided for in any franchise agreement.
(e) planning expansion and growth of public
benefit cable services.
(f) Analyzing the possibility of integrating cable
31
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J
communications with other local, state or national
telecommunications networks.
(g) Formulating and recommending long-range
telecommunications policy.
5.3 P_iblic_Usage_of_the_Systeryr. If so specified in the
franchise agreement, the Grantor, may utilize a portion of the
Cable Communications System capacity, and associated facilities
and resources, to develop and provide cable services that will
be in the public interest. In furtherance of this purpose, the
Grantor may establish a commission, public corporation, or other
entity to receive and allocate facilities, support funds and
ether considerations provided by the Grantee, and/or others.
Such a public corporation, if established, may be delegated the
following responsibilities:
(a) Receive and utilize or reallocate for
utilization, channel capacity, facilities, funding and other -
support provided specifically for public usage of the Cable
Communications System.
(b) Review the status and progress of each service
developed for public benefit.
(c) Reallocate resources on a periodic basis to
conform with changing priorities and public needs.
(d) Report to the Grantor annually on the
utilization of resources, the new public services developed and
the benefits achieved for the City and its residents.
32
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5.4 Reserv_ati]n_by_Grantor. The Grantor reserves the
right, at its discretion, from time to timer to determine if the
entity described in Section 5.3 above is performing its purposes
in a manner satisfactory to the Grantor, and if it is not, the
Grantor may receive and reallocate all or, a portion of the
channel capacity, operations appropriation, and capital
appropriation, including any facilities and equipment purchased
previously with such appropriation, to another entity. R new
entity shall. be required to comply in all respects with the
legal responsibilities described in Section 5.3.
5.5 Initial Rates. The Grantee shall establish initial
rates that roust be applied fairly and uniformly to all
subscribers in the franchise area for its services.
5.6 Rat e_Change_Preced_tre.
(a) If applicable law permits Grantor regulation
of rates, and if the franchise agreement establishes rate
regulation requirements, then the procedures specified in (b)
through (j) below shall apply.
(b) Within ninety (90) days of the filing of a
petition for rate change, the Grantor shall hold an appropriate
public hearing to consider the proposed rate change, at which
hearing all persons desiring to be heard, including the Grantee,
shall be heard on any matter, including but not limited to, the
Performance of its franchise, the Grantee's services, and
proposed new rates.
33
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(c) Upon notice of any public hearing as provided
above, the Grantee shall noti'Fy its subscribers of the time,
place and subject matter of the public hearing by announcement
on at least two (2) channels of its system between the hours of
7c00 p.m. and 9:00 p.m., for at least five (5) consecutive days
prior to the hearing. (d) Within ninety (9U) days after said
hearing, the Grantor shall render a written decision on the
Grantee's petition, either accepting, rejecting, modifying or
deferring the same and reciting the basis of its decision. The
Grantor shall consider, but not be limited to the following
factors in approving or disapproving the petition:
(1) Grantee's substantial fulfillment of all
material requirements of the franchise.
(2) Quality of service, as indicated by the
number and type of service complaints, Grantee's response to
complaints, and the result of periodic system performance tests
and the annual reviews specified in Section 5.7.
(3) Prevailing rates for comparable services
in other, cable systems of similar size and complexity.
(4) Rate of return on Grantee's equity, as
compared to businesses of equivalent risk. For the purposes of
this ordinance, the rate of return on equity shall be defined as
the net, after-tax profit divided by the equity por'bion of
Grantee's investment assets. The investment shall tie defined as
the cumulative cost of tangible assets such as plant, property
and equipment, less the cumulative depreciation charges, plus
the working capital, which shall be defined as equivalent to
34
4
three (3) months total operating expenses.
The rate of return shall he calculated on a cumulative basis
for all system revenues and costs including services such as
pay-cable that may be exempt from local rate regulation. Upon
request of Grantor, Grantee shall promptly provide, from the
Grantee, its parent company and any subsidiary company, all
information as shall be reasonably necessary to determine system
revenues and cost=_:.
(5) Performance of Grantee in introducing
new services and expanding the cable system's capability, as
compared to other systems of similar size and complexity, and as
evaluated by the system and services review specified in Section
5.8.
(E) Tax benefits received by Grantee, its
partners or shareholders, as the result of their investment in
the systern.
(7) Cash flow derived frorn system
ser•v i c_es. The Grantor shall not consider any valuation based
upon the franchise or the Grantee's go.%dwill and these items of
value shall neither be arnortized as an expense nor shall a
return be paid on there.
(e) If the Grantor fails to render a written
decision either accepting, rejecting, modifying or deferring
Grantee's petition within one hundred eighty (180) days of the
Grantee's petition pursuant to this Section the Grantee shall
thereafter be entitled to put its proposed new rates into
effect.
35
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(f) The Grantee's petition for a rate increase
shall include, but not be limited to, the following financial
reports, which shall reflect the operations of the systern:
(1) Balance Sheet
(c) Income Statement
(3) Statement of Sources and Applications of
Funds
(4) Detailed Supporting Schedules of
Expenses, Income, Assets, Depreciation and other items as may be
required.
(5) Staternent of Cvrrent and Projected
Subscribers and Penetration.
The Grantee's accounting records applicable to the system
shall be available for inspection by the Grantor at all
reasonable times. The Grantor shall have access to records of
financial transactions for the purpose of verifying burden rates
or other indirect costs prorated to the operation. The
documents listed above shall include sufficient detail and/or-
footnotes as may be necessary to provide the Grantor with the
information needed to make ac.urate determinations as to the
financial condition of the system. All financial statements
shall be certified as accurate by a certified public accountant
or an officer of Grantee.
(g) Schedule -of -Rates. The Grantee shall
maintain and file with the Grants, a complete schedule of
36
subscriber, rates including all fees and charges; for services not
subject to regulation or approval by the Granter.
(h) Disconnections. There =shall be no charge for
disconnection from the system. However, if a subscriber has
failed to pay properly due monthly fees or if a subscriber
disconnects, the Grantee may require, it,, addition to full
payment of any deliquent fees, a reasoriable fee for
reconnection.
(i) Ngo Considerat i�on_Eeycn_id Schedule. The
Grantee shall receive no consideration whatsoever for, or in
connection with its provision of service to its subscribers
other than as set forth in this Section or as filed with and/or
approved by the Grantor.
(')) Submission_ of Rate_Increase_Reguests.
Grantee shall not submit a reqUelst for rate increase earlier -
than twelve (12) months after prior request.
5.7 Annual Review_ of Performance. At Grantors sole
option, within ninety (90) days of the first anniversary of the
effective date of each franchise, and each year thereafter,
throughout the terra of the franchise, the Graritr_,r and Grantee
shall meet publicly to review the performance, and quality of
service of the cable communications sy=stem. The reports
required in Section 9 regarding subscriber complai.rits, the
records of perforrnarice tests and the opiricin survey report shall
be utilized as the basis for, review. In addition, any
subscriber may submit complaints during the review meetings,
7
either, orally or in writing, and these shall be condsidered.
( a ) Within thirty (30) days after the conclusion
of the system perfon-mance review meetings, Grantor, shall issue
findings with respect to the adequacy of system performance and
quality of ser -vice. If inadequacies it -e found, Grantor shall
direct Grantee to corr-ect the inadequacies within a r-easoriabie
period of time.
(b) Failure of Graritee, after- due notice, to
correct the inadequacies shall be considered a material breach
of the franchise, and Grantor may, at its sole discretion,
exercise any remedy within the scope of this ordinance
considered appropriate.
5.6 System antl_Ser-vice_Review. To pr-ovide for -
technological, economic, and regulator -y changes in the state of
the art of cable cornnurn i cat ions, to facilitate r-enewal
procedures, to promote the maximum degree of flexibility in the
cable system, and to achieve a continuing, iclvericed modern
system, the Grantor and the Grar�tee shall comply with the
following system and services review provisions:
(a) At Grantor's sole option, the Grantor and
Grantee shall hold a System and Ser -vire Review Session on c.r-
about the third anniversary date of the 'Franchise agreement.
Subsequent System Review Sessions shall be scheduled by the
Grantor- each three (3) years 'thereafter-.
(b) Sixty (00) days pr-ior, to the scheduled System
and Services Review Session, Grantee shall submit a report to
38
Grantor based upon available trade publication information,
indicating the following:
(1) All cable systern services that are being
provided on an operational basis, excluding tests and
demonstrations, to c.i'bies in the United States comparable to the
City of Los Altos Hills, that are not pr,�.vi.ded to the Grantor.
(c) A plan for prevision of such services,
or, Justification indicating why such services are not feasible
for the franchise area.
(c) Topics for discussion and review at the Systern
and Services Review Session shall include but shall nat be
limited toy services provided free or- discounted services,
application of new technol, �gies, systern performance, subscriber
complaints, user complaints, rights of privacy, amendments to
the franchise, under•grourding processes, developments in the
law, and regUlatory constraints.
(d) Either the Grantor or- the Grantee may select
additional topics for discussion at any Review Session.
(e) Not later than sixty (Eh) days after the
conclusion of each System and Services Review Session, Grantor
shall issue findings, including specifically a listing of any
cable services not then being provided to the Grantor that are
considered technically and economically feasible. Granter may
request Grantee to provide such services within a reasonable
time, under reasonable rates and conditions.
5.9 Access channe l_Maria geriten t..
39
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(a) Intent. It is the intent c -f the Grantor to
insure that access and community channels provided for in any
franchise agreement, shall be managed in the best public
interest, so that programming on such charnels will be free of
censorship, open to all residents, and available for- all form=s
c.f public expressions, community infcrt-rnation and debate of
public_ issues. Pursuant to these objectives, the Grantor may
delegate the responsibility for access channel management to a
nonprofit entity which may include, but not be limited to, any
of the following:
(i) A nonprofit public corporation.
(2) An access management commission car
committee, appointed by Grantor, and representing a broad
spectrum of the community.
(3) An established nonprofit entity with
special cablecasting capability, such as a lor_al. or regional
community college.
(b) Fur�ct ions. The entity designated to manage
the access channels shall have the following functions:
(1) Responsibility for program production
for- and management of the Public Access Channel and all other
channels as may in the franchise agreement be designated for
cornnnanity-based progr•amrning. Cornrnunity channels may include
Government and Educational Access channels, is designated in the
franchise agreement.
(2) To assure that the Public Acces<_; and
Community charnels are made available to all residents of the
40
franchise area or, a nondiscriminatory, first-come first --served
basis. (31) To assure that no censorship or Control
over program rorter�t of the PLrblic Access and Community
r_hannel(s) exist, except as necessary to conply with FCC
prohibition of material that is obscer�e, or contains commercial
advertising, or Conducts lottery.
(4) To devise, establish, and administer all
rules, regulations and procedures pertaining to the use and
scheduling of the PUblic Access and Community channels.
(:i) Public inspection of the log of
producers, which shall be retained by the access management
entity for a period of two (2) years.
(E) Procedures by which indlVidusIs or
groups who violate any rule may be prevented from further accesss
to the channel.
(7) Free Use of -auch reasonable amounts of
channel time, cablecasting facilities, and techni.r_il support as
are provided for in the agreement between the Access Channel
Manager and the Grantee.
(d) flccess_Chgnnel_Manager•_Reegrt s._t g_Grarit or.
-rhe access management entity shall provide a report to the
Grantor, at least annually, indicating achievements iri
commiariity-based programming and cervi Ces.
41
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SECTION -6 ------ GENIERALFINANCIAL AND 11VSORANCE PROVISIONS
6.1 Constrict i _n Band.
(a) Within thirty (30) days after the granting of
a franchise and prier, to the commencement of any construction
work by the Grantee, the Grantee shall file with the Grantor- a
construction bend in the amount sper_ified in the franchise
agreement in favor of the Grantor, and any ether person who may
claim damages as a result -,f the breach of any duty by the
Grantee assured by such bond.
(b) Such bond as contemplated herein shall be in
the form approved by the Grantor and shall, among other, matters,
carver the cost of removal of any properties installed by the
Grantee in the event said Grantee shall defa�rlt in the
performance of its franchise obligatiori.
(c) In no event shall the auto_int of said borid be
constructed to limit the liability of the Grantee for, damages.
(d) Granter, it its !sole -option, may waive this
requirement, permit consolidation of the construction bond with
the performance bond and securi.ty fund specified, respectively
in Section 6.c: and 6.3.
6.2 Performance Bend.
(a) In addition to the construction bend set forth
above, the Grantee shall., at least thirty (30) days prier to the
commencement of operation -i, file with the Grantor a per•forrnanCe
y. c
�w d
bond in the arnount specified in the franchise agreement in favor
otf the Grantor and arty other person who may be entitled to
damages as a result of arty occurance in the operation cr
terrniriation of the Cable Comm_in i cat iotas System operated underthe
franchise agreement, and including the payments required to be
made to the Grantor hereunder.
(b) Such bond as cariternp l at ed herein shall be in
the form approved by the Grantor and shall among other ratters
cover- the cost of removal of arty properties installed by the
Grantee in the event said Grantee shall. defacilt in the
performance of its franchise obligation„
(c) In no event shall the amount orf said bend be
coristr!ied to limit the liability of the Grantee for clarnages.
6.3 S'ecur i t y_[uritl.
(a) Within thirty (.30) days after the effective
date otf the franchise, the Grantee shall. deposit into a dark
accocirit, established by the Grantor and maintain on clepotsit
through the term of this franchise, the si_un specified in the
franchise agreement, as security for the faithful performance by
it of all the protvisions of the franchise, and compliance with
all orders, permits and directions of arty agency of the Grantor
having jurisdiction over its acts or defaults under this
ordinance, and the payment by the Grantee of arry claims, liens
and taxes due the Grantor which arise by rcasa on -i of the
construction, operation or rnairitenance cif the system.
the security fund may be assessed by the Graritor• for
43
purposes including, but not limited to, the f�'l. lowi.ng:
(1) Failur-e of Grantee to pay Grantor- suras
due under the terms of the fi'anchise.
(FJ) Reirlb-n-sement of costs borne by the
Grantor• to correct fr•ar,chise violations not cor•r•ected by
Grariteey after• due notice.
(3) Monetary rernedies or, damages assessed
against Grantee due to default or violation of fr•anc_hise
r-equirements.
(b) At Grantor's _pole option, Some por-tion of the
security f,_n•,d may be provided in the acceptable form of an
irrevocable letter• of credit, in lie,., of a cash deposit.
(c) Within thirty (30) days after, notice to it
that any arnount has beer, withdrawn by the Granton, frorn the
Security fund pursuant to Subsection (a) of this Section, the
Grantee shall deposit a Burn of money sufficient to restore such
secs,-ity fund to the ov,iginal arm_,,.rnt.
(d) If the Grantee fails, after ter, (10) days
notice to pay to the Gr•ar,t r,r any franchise fee or• taxes due and
unpaid; or•, fails to pay to the Grantor• within, such ter, (10)
days, any darnages, costs or expenses which the Grantor- shall be
compelled to pay by reas,in of any act or default of the G'-r•antee
in connection with this fr-anr_hiseq or, fails, after• thi.r•ty (30)
days notice of such failure by the Gr•ar,t�o- to comply with any
pn,vi„ion -f the franchise which 'hhc_ Grantor- reasonably
determines earl be rernedied by an expenditure of the =.;ec,.o•ity,
the Granter may immediately withdraw the im.—tr,t thereof, with
44
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interest and any penal't ies, from the security fund. Upon such
withdrawal, the Grantor shall notify the Grantee of the amount
and date thereof.
(e) The security furd deposited pursuant to this
Section shall become the property of the Grantor in the event
that the franchise is revoked for cause by reason of the default
of the Grantee in accordance with the procedures of Section 4. 10
above. The Grantee, however, shall he entitled to the return of
such security fund, or portion thereof, as remains on deposit no
later than ninety (90) days after the expiration ofthe term of
the franchise, provided that there is there ro outstanding
default on the part of the Grantee.
(f) The rights reserved tc the Grantor with
respect to the security fund are in addition to all other rights
of the Granter whetl'rer reserved by this co-ntr'act Or authorized
by law, and no action, proceeding ar exercise of a right with
respect to such security furid shill. affect any other right the
Grantor may have.
G.4 Inderan i f i cat ion.
(a) The Grantee shall by acceptance of the
franchise ,granted herein indemnify, defend and hold harmlLsi the
Grantor, its officers, boards, communications, agents;, and
emp7._.yees from arry and all claims, suits, judgments for- damages
in any way arising oi_,t ,of or thrni.igh Or alleged to arise "A of
or thrni.,gh:
(1) The act of the Grantor in granting this
4
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franchise; and
(c:) The acts or ommissi,rns of Grantee, its
servants, employees, or agents.
(b) In the event any sLich claims shall arise, the
Granter- shall tender the defer�se thereof to the Grantee
provided, however, that the Grantor in its sole discretion stay
participate in the defense of such claims at its expense.
S.5 Insurance.
(a) The Grantee shall maintain throughout the terra
of the franchise insurance in am,i_rnts at least as follows:
(i)W�_rker-'s_Cornperisat ion_Insi_o^ance. In
such coverage as may be required by the worker's compensation
insurance and safety laws of the State of CalifOnnia.
(c) C_rrnCir_ehensiv_e_Gener__t)._Liability.
Comprehensive general liability insurance, including, but not
limited tu, coverage for b,c].ly injury and property damage shall
be maintained at the sum(s) specified in the franchise
agreement.
(G) C_rnprehens i.v_e_R_it ornob i l e__L i a b i l i ty.
Comprehensive autornbobile ).viability including, but not limited
to, non-,-wnership and hired car coverage as well as owred
vehicles with c,ver•age for bodily injury and property damage
shall be maintained at the sum(s) specified in the franr_hise
agreement.
4G
(b)
The Grantee shall furnish the Granter with
copies
of
such
ins,urarice policies and certificates of insLv-ance.
4G
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(c) Such insurance pol iciecs provided for herein
shall name the Grant,,m, its of'F ic-ersr boards, commisssions,
agerfts, and employees as additi:n-ial insured and shall contain
the following endorsemen L':
"It is hereby understood and agreed that this insurance
policy may not be r_ancelled by the. =.surety or the intention n,t
to renew be stated by the surety until thirty (30) days after
receipt by the City by registered mail writter, notice of such
Intention to cance:I cn'• not renew."
(d) The minimum amounts set forth in the franchise
agreement for' such insurance shall nuA be construed to limit the
liability of the Grantee to the Grantor under- the franchise
issued hereunder to the amount,: -,f sr.ich i.ns-_mance.
SECTION_7_,___DESIGN_RND_CCNSTRUCTION PRDVISIGNS
7.1 Syst em_De_;ign. l"he Cable C.,mmuriicaticn-is System
shall be constructed in accordance with the design requirements
contained in the franchise agreement.
7.2 Geogr•aphical_Cg_verage. The Grantee c -;hall desi.gri
and o--nstruct the Cable System in _.uch .x warn r- as to have the
everitlusl capability to pass by everysingle --family dwelling
unit, nn.iltple-family dwelli.rig unity school Arid public agency
within the area of the franchise. Service shall be provided to
47
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subscriber's in accordance with the schedules and line exter�'iIon
policies specified in the franchise agreement. Cable system
construction and prevision of service shall he
nondiscr-iminatory, and shall net delay err defer service t., arry
e,,ticm of the franchise area on the yrec i_nds -'F c -Icor, -I
preference.
7.3 Cablecasting_[aeil.itiec. The Grantee shall provide
cablecas'ting facilities in accordance with the requirements cif
the franchise agreement.
7.4 Systern_Constr__ict i.an_Schcd_ile.
(a) The Grantee shall comply with the r-equirenrents
of the system schedule contained in the franchise
agreement..
(b) The Grantee shall prcrv:icle a detailecl
c,rstriuctiori plan indicating progress schedule, area
constriuvt:ion maps, test plan, and projected dates for offering
service.. In addition, the Grantee shall .ipdate thi=., information
c-., a monthly [basis, showing =.:'.pccificslly whether schedules are
being ,net and the reasons for arry delay.
7.5 Remedies for_Delay_in_G]i_�str_�act i�_rr. The Grantor
may at its sole option, apply arry .::r all orf the fallowing
remedies in connectior: with delays it cyst, -n _ri��strirti.cn:
(a) Berl iuctic.r in the d,I of the franehi=_se. .en
a m_n^.t h -for ---month basis for each rnnnth cif delay exceeding six
110
(6) months.
(b) Forfeiture of c:nstr-.lotion bonds and/or
assessment of monetary damages up to the maximum limit specified
in the fr-archise, agreement, levied against the security fi.ind for
delays exceeding orie (1) year.
(c) Terrninat i.or. of the frarrc'_hiae within One (1)
year after award of the frarichi.se if the Grantee has failed Lo
initiate system c,nstructiun.
(d) Terrlllnatic�ri of the franchise for other delays
exceeding (16) months.
Ary remedies applied shall be in accordance with the
procedures contained In Section 12.
7.G ProvibiOn__,f Set -vice. After service has been
established by activating trunk cable far any area, the Grantee
shall prc,vide service to arry requesting siulm,scriber• within that
area within sixty (GO) clays frc,m the crate of request.
7..7 Undergrgunding_ef_Cable. The undergrounding cf
cable is enc, -UT -aged. In arry event, cables shall be installed
undergr-%urid at Grantee's cost where all existing utilities are
already undergr.,,mc . previously installed aerial cable shall be
underground or relocated it, concert with ether utilities, when
such r:ether• utilities may r_..I'.V:art frcmr LA2ri,;r1 t- underground
c,-nstruct i, n.
7.. f] New_Devel._�ment _Llndei_•gr _ending. In rases of new
49
V
construction or property development where Mi.li.ties are to be
placed mderground, Lyon request by the Grantee, the developer
-'r property owner shill give Gbantee reasorjable notice of the=
particular date on which open trenching will be available W-
G^antee95 installation of conduit, pedestal=s sand/or vaults, and
laterak; to be provided at Grantee's expense. Grantee shall
also provide specifications as needed for- trenching.
Costs of trenching and easements required to bring service
to the devel-pmerit shall be borne by the developer or property
owner; except that if Grantee fails to install its conduit,
pedestals and/or vaults, and later -gals within five (5) working
days of the date the trenches; are available, as designated in
the notice given by the developer- .-h- IDc,-perty owner, then should
the trenches be r.l. coned after the five (5) dory perimd, the crest
of new trencnirig is to be dorne by Grantee.
7.9 Ur�tlei_-grni_u_itl atMul Y.iele=Dwell. i. rrg_Uni.ts. In cases
of multiple dwelling units serviced by aerial utilities, Gran'tcce
shall make every effort to minimize the number of individi.ral
aerial drop cables giving preference to undergrounding of
riultiple drop cables bet Weer, tlhc pole and the dwelling xnit.
The burden of proof shall be Lyon the Grintee to demonstrate why
undergrsainding of drop cables is trrhri rally m, econam tally
unfeasible.
7.10 St reet_Ocr__upancY
in Grantee shall utilize existing poles, conduit;
50
and ether facia.ities whenever possible, and shall net construct
cr ir�.atall any new, different, or additional poles, rrn•id i.tits, nr•
:ether- facilities whether sr,, p.tblic property or on
privately -owned property until the written approval c -f the
Grantor is obtained. However, '.0 location of any pcele or wire
holding structure of the Grantee =shall be a vested intorn -.==.;t and
such pr:+les or structures shall be removed or roodi fied by the
Grantee at its awn expense whenever the Graritcr• deterrnirres that
the p_tblic convenience would be enhariced thereby.
(b) Grantee shall rj�tify the Grarit,ar at bast teri
(10) days prior to the iritention c,f the Grantee to ccernrrierice arty
construction ir, any streets. The Grantor shall co-operate with
the Grantee in granting any permits required, providing or. such
grant and vsubsequer,t by the Gra'r�tee shall nct
uriduly inter,fer e wi.'t Ih the us;e of such streets and that proposed
construction shallbe dorie ir, ace-,rdance with the pertinent
pr•rwirai�.�ns of the ordinances of the Grantor.
(r) All trar�smie:'�sion lines, equipment and
struct-.,res =.:hall be s�, instal Led and located as to cause minimum
interference with the right and reesonabl.e_ c�-.nver�ience of
pr,. -,party owners and at all times, e;hall be kept and mairitairied
in a safe, adegi-tate and suhsU.ritial condition, ,and in rde,
and repair. 'Thu Grantee .hall, at all tunas., omplc,y r_.rdi.ne.ry
stare and shall inatal.l and mai.'ntai.n :tri use commonly ,ac -c opted
methods, and devices f --r• preventing fat leu^ee; and accidents which
,are likely to cause damage, injuries.;, it luisances to the
Public. sui.table barricade-, flags, lights, flares or• -cher
�r V
devices shall he ,_mLei at such !times and places as are reasonably
required for- the safety 'If all members of the public. Any poles
or ,:ether• fixtures placed ire arry p'_ihl:ic way by the Grarrtee s:henll
be placed jr, such a manner as n,A to irrterfers with the usual
travel on such public way..
(d) Grantee shall, at its awn experse, and in a
manner approved by the Grantor, restore to Granter standards and
specificaticrs any damage or dist!rrh,.anc_e caMed to the public
rights; of way as a result Of its operat urns or construction Or
its behalf.
(e) Whenever, jr, case -,f fire -,r other disaster,
A becomes necessary in the judgement of the Grantor to remove
any of the Grantee's facilities, no charge ;hall be rmsde by Me
Grantee against: the Grant'!." fcm restorat :iom, and rr_•pa r.
(f) Grantee shall have the authc,rity tc, trim trees
on public property at its own expense as may be necessary to
protect its wires ar,d facilities, subject to the supervision and
direction of the Grantor. Trimming of trees on private property
shall require written carr=sent of the property owner.
CO The Grantee at its expense shall protect,
suppco-t, temporarily di.Sronnert, relOCata, or renrnve any
property -f Grantee when, ir, the op i' n•, of the the
is re:,quz red by reason of traffic conditions, public safety,
street vacation, freeway or street construction, r_har,ge o,
establishment of street grade, insta.11atian of =sewers, drairsc:,
waterpipes, pc,wer line, ssi.gnal line, tranaporrtaticrr, facil.i.Li.es,
tracks, crr any other types of structure or {:public inrprovemorA,
Sa
including but not limited to rmvemen Y. of buildings,
redevel,oprnerrtr -,,r- arry general program '.under- which the Grantor
shall. crndcr•take to aw:::e •any esud; propwqW5 to be Knated
beneath the surface of the gr',cu'.dl hiothing hereunder shall be
decried a t1king of the property of Grantee ar'd Grantee ='shall be
entitled On no surcharge by reason of anything hereunder.
(h) Up,n fai.l.uro of Grantee to cornrnencer pursue,
or cc,mpiete any work required by law car by the provisi.orr_: ':'f
this orrdinance to, be dome in w,q stre_etr wihtin the tire
prescribed and On the satisfactior' of the Grarhorr, the Grantor
n_,.yr at i. ption, cause ouch w wk to be done and the Grantee
s>nali pay to the Grantor the st thcrr'•ec,f in the itcmiZed
arno"As reported by the Grant's to -Grantee within, thirty (3))
days after receipt of s'.¢-1-' itom zed r'epo'rt.
(i) The Grantee shall make no paving clats or curb
cuts unless absolutely necessary, and only after written
permission has been jiver, by the Grantor.
(j) Grantor reserves the right to r-eyrii.re c= uit
for '_rderground cabling as determined ny the Superintendent of
Streets.
7.'.i G'_r'ist r'_ct i.on_and--_e_hi_i=S31 __t ar'd ai_•d
(a) C_n_i=._t r•_ict ion_Rt ar'dards_..
(1) C'_mplia�_'ce=_wl th_`__g F_t Y_�=des. All
Construction practices shall be acce,rdanc,e with all applicable
sections of the (]ccup.at l'::nal Gifety and Health net of 1970 and
any arnendrnents thereto as wel). as all state and local codes
13
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where applicable.
(J) Compliance_with_Clccti_•ical_C�-�d_s. rlLI
installation .::,f electronic equiprnerit shall be of perrmarrent
nature, durable and installed in accordance with the pr,,visions
..f the National Electric Code and Naticm',al Electrical safety
C -,de as amended.
(3) Ant.errnas and lowers, pot L-'nna
sr-�pportirrg strr.u_t,ares (towers) shallbe de=signed for the proper
loading a speci'Fied in h37.r ckr-rr,ic_- Irdustry R.S.
,_._�'--R =epeci ficat ions.
(4) C,-Imgl iar'�cs_with_Av_iat ir_n_Reg,_iii_&meT,ts.
Rnterrria _upperti.r,y s'truc'ture= -s (towers) shall be painted,
lighted, erected and maintained in accordance, with all
applicable ruler, and regr_ilati-,ns -,f the Federal nviati-.n
pdmiristratian ar,d all other applicable skate or aoc_al codes and
regulations.
(S) Conetrrurtior, St:aridards ar,d
Reg_Lirerlerts. R11 of the Grantee' plant and equiprner,t,
including bort rot limited to the ar,tenn,, site, heacl-end and
d str•ibr-,t i -n system t?rwer•5, h i!ae c .rrr',ectior,, st'ruct rra=s,
poles, wire, cable, c -,axial cable, fixtures and app,urteriances
shall be irrcatalled, located, erected, c,-nstruted,
rec-,rrstrr_tcted, replaced, romc,ved, repnii,ed, maintained arrd
operated ir. accr.,rdance with g�:,„d er,ginecr ng practices,
performed by experience rnair,terrar,cc and ccrc tr-uct i.c-n per s-.rare=a
. as riot 1 - coda ger cr i torfero with the Grant, -,r
may diem prc,per t.,., make, or to ir�terfer•e it any manner with 'the
'54
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rights ,M any pr,-perty owner, ,_r to unnecessarily hinder ra•
obstruct pedestrian or veh ic,_r 1 :,r traffic.
( G ) G_ifet yyN_ii_.;ar,cex_Reg_iirerner',t The
Grantee shall at all times employ ord awry care and shall
inetall. and maintain in use cornmcnl.y accepted methods and
devices preventing failcre:' rmd accrdent•s which are lHimly to
cause damage, in_ywy or nui.sar�e, to the public.
(b) Technical Standards. The Cable
Commurii.cations System shall sheet all t'echriical and performance
standards contained in the franchise agreement.
(r) T__t ar,tl_Cornp l.iance F'r gcedpare. "rhe Girantee shall
submit, within twelve (12) month,:; after the effective slate ,,f
the franehiee agreement, a drAvilml _est plan demrMang the
methods and schedules for testing the Cable C r;,mmuilcations
System an an ongoing basis to deterrni.n(e compliance with the
pr•ovi"'_—'ns of the franchise= agreement.
The tests shall be witnessed by repr•e_sentatives of the
G'.ranbs4 and written test reports eshal.l be submitted to the
War,tor. If more than one U.) of the Iar_at wais tested fail to
meet the performance standards, the Grantee shall be requwed to
'.riicatc whst corrective nma"ra.::: have been taker, and the
Est i-. to st •.--hall be repeated f r the location- A sEcxr,d
failure may •u=;ult, at the r. option, in remedies in
accordance with the previsions :;f the frjanchise agreement.
(d) _Qegial_tes-t ,. At any time after r_ornmer'icmmerit of
service to s�-rbesr"ribers the Gr"A,r may require addi'ti.onal tests,
fun or partial repeat teats, different best amend,"mmn o,
55
1�4r J
tests i. rnvr.,'1vi.ng
a specific >'.rbscrihc, " a
term nal..
Req ic=stm Do—
rh Gadd i. n -,al
tests will he made on the
ba Ps of
complaints
recieved ar other
evidence i.nd i. c it A. r,g cr.
,ars'e's,, l v ed
"Or�tr•:wer•sry
or significant
noncompliance, and such
testes shall
am l.i.rn i.ted to
the partir.ular
matter in mor,'tr•,�versy.
The Grantor
shall
endeavor to =so
arrange its rVqWsts for
such special
tests „_: am
to minimize harcbahip
or ir,c, rc,ver',ience to
Grantee c^
to the
subscriber.
7.12 Reeawide ar,t ercrn^r,cct i�:;•r
(a) Irrt ;rcrorn_,ect i_r,_Regia i'_ecJ. The Grantee shall
intercrorrnect public usage rzhnnnulx; :.�i the c.ubscr ber• and
insti.t,atic+nal. networks ,,.,f the Cable Communications System with
any or all other cable systew6 ir, adjacent areas, upon the
directive of the Grantor. I nter•corn-,ewth mr of systems shall
permit interactive trear,sm scion and reception of program
material, and May be dcme by direct cable ten -,nett iory r11lCrowaveo
link, satellite or other appropriate method.
(b) Ir,t erc�_r,r,ecl: �_n_['r__ed_u_e. IJpnri receiving
the dir•cctive of the Grant , to intarcinra7t, the Gr a'tce <ih,a1l.
immediately initiate negotiat ins with the ether afrccted system
or syoterns. The cost shall he borne by both Grantee•a, in the
preps-r-ti,,n if number of channels, received to total nuriber o:
channel. trar,aniitted and received, !hider the .ar;c;wnption that
bc.efi.'ts aecr--ue pr,mari.ly thrr,!igh receipt of additi.or,al.
charrc'ak s.
In the case of i egicm,al or state –widen i. rrt W.rcorn-,ect iory the
Sr
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5arnc I:rrinci plc shall. apply.
(c:) B lief.. The Grantee rn,ry be granted reason,-
,able extensions of time to irrt erconnec;t ar the Grarrtcn^ nray
rre:,cind its +rder- to ir�terc)wwct upon pw"ticn by the Grantee
to the Grantor. The Granb.:rr may gram said requemt if it finds
that the Grantee has negotiated in good faith and has failed Un
r:,btain an approvalfrom the system or systems ofthee poposed
irtcrczwc_:..Fiorq o, that Me col OF tha i rtorcc,nnertion wo!,ld
cause an wawm nnabl.e or !u -rr:c 2intable irrc::rev e Jr, sib •cri bcr
rat as
to) G_�_ger�at i_r�_Regui. r•ed. The Grantee s,halI
c perate with any ruin-C=r-cf i.'t: int eon- rinec l; i.rr. cerporat or,,
regl0i"al nterronnecti.,-r, ;-:utl-lority or• city, Coltnty, state and
fedel-al regulatory agencyb which way be hen••eafter- established
f_, the p, p:nse of reyKatingr fi.rrarieirig, ci therwi,e providing
for the interconnection e'F raj)l.e sy Oerma beyond the be:,y,,7arles
of the franchise tcrri.l:ory.
(e) Snit: i.al_"tech r�ical Reg�airement _',_t __f-1ss_ire
i__�t �ar•�_Int ercorrnect _ignr,_Cabab l A ty.
(1) All Cable cornSystem
receiving franchises On operate within the territory
.:.h all !r e the =_',arae frequency al.loczt i n'.: for c- �rnnionl.y pr-�vided
te., vi ai<r WiglalS SO far as is OWLTI Wallly and ec comically
feasible.
57
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SECTION -B ------ SERVICE -PROVISIONS
8.1 Serv_ices_to be_Prov_ided. The Grantee shall
provider as a minimum, the services listed in the franchise
agreement. Services shall not be reduced without prior approval
of Grantor.
B.d Easic_Subscriber,_Televisicn_Servlce_(BSTS). The
"Basic Subscriber Television Service" shall be provided to all
subscribers at the established BSTS monthly subscription rates.
8.3 Basic_Subscriber_Radio_Serv_ice_(BSRS). The "Basic
Subscriber Radio Service" shall be provided to all subscribers
at the established BSRS monthly subscription rates.
8.4 Institutional_Ser_vice_(IS). If specified in the
franchise agreement, the "Institutional Service" shall include
the provision of transmission and/or reception services to
institutional users, on a leased channel basis at established IS
rates. Services may include the distribution of video or
non -video signals.
8.5 Additional -Subscriber -Services. "Additional
Subscriber Services", not included in the BSTS and BS'RS services
Specified above, may be provided, either within the basic
subscription rates, or on a premium basis, subject to applicable
FCC regulations.
GE
err �
8.6 Local-Origination_Channel(s). If specified in the
franchise agreement, the Grantee shall operate the cablecasting
studios on a high-quality, professional basis for the purpose of
providing cablecast programming responsive to local needs and
interests. The emphasis for the Local Origination Chanriel(s)
shall be on providing programming that is unavailable to viewers
on broadcast television channels.
8.7 Gov-ernment_Access_Channel(s). The Grantee shall
provide the number of channels specified in the franchise
agreement, including all necessary interface equipment and
cabling to permit operation, for the use of the Grantor at no
charge to the Grantor. The Grantee shall make every effort to
provide advice and technical expertise to aid in the utilization
of these channels.
8.8 Educational Access Channel(s). The Grantee shall
provide the number of channels specified in the franchise
agreement including all necessary interface equipment and
cabling to permit operation, for the use of the local
educational institutions at no charge. The Grantee shall make
every effort to provide advice and technical expertise to aid in
the utilization of these channels.
8.9 Universal -Connection. The Grantor may require that
all dwelling units within the franchise area shall
be connected physically to the cable system by the Grantee by
means of drop cables terminating at each dwelling unit, whether
or not the dwelling unit's occupants desire to subscribe to
59
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cable service. The cost and charges shall be determined by the
Grantor at the time such connection is required. Grantee shall
be entitled to recover the incremental cost of providing a
universal connection, without penalty to existing subscribers
and services.
60
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SECTION_9OPERATION_AND_MAINTENANCE
M
9.1 Opgn_Eooks_and_Records. The Grantor shall have the
right to inspect at any time during normal business hours, all
books, records, maps, plans, financial statements, service
complaint logs, performance test results and other like
materials of the Grantee which relate to the operation of the
franchise and are maintained at the office within the franchise
territory.
If any of such books or records are not kept in the local
office, or upon reasonable request made available in the
Grantor, and if the Grantor shall determine that an examination
of such records is necessary ar• appropriate to the performance
of arty of Grantor's duties, then all travel and maintenance
expense necessarily incurred in making such examination shall be
paid by Grantee.
9.2 Records_Reguired.
(a) In any event the Grantee shall at all times
maintain:
(1) R record of all complaints received and
interruptions or degradation of service experienced for the
preceding three (3) years.
(e) R full and complete set of plans,
records and "as -built" maps showing the exact location of all
Cable Communi cations System equipment installed or in use in the
franchise territory, exclusive of subscriber service drops.
61
9.3 Maintenance_and_Comglaints.
(a) If specified in the franchise agreement, the
Grantee shall maintain an office in the franchise territory
which shall be open during all usual business hours, have
publicly listed toll-free telephone, and be so operated to
receive subscriber complaints and requests for repairs or
adjustments on a twenty-four (24) hour a day basis. A written
log shall be maintained listing all complaints and their
disposition.
(b) The Grantee shall render efficient service,
make repairs promptly, and interrupt service only for good cause
and for the shortest time possible. Such interruptions, insofar
as possible, shall be preceded by notice and shall occur during
period of minimum use of the system. A written log shall be
maintained for• all service interruptions.
(c) The Grantee shall maintain a repair force of
technicians capable of responding to subscr^iber• complaints or
requests for service within twenty-four (24) hours after receipt
of the complaint or request. No charge shall be made to the
subscriber for this service.
(d) The Grantee shall furnish each subscriber at
the time service is installed, written instructions that clearly
set forth procedures, furnish information concerning the
procedures for making inquiries or complaints, including the
name, address and local telephone number of the employee or
employees ar agent to whom such inquiries or complaints are to
62
be addressed, and furnish information concerning the Grantor
office responsible for administration of the franchise with the
address and telephone number of the office.
9.4 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 or sex. Grantee shall comply at all times with all
other applicable federal, state and local laws and regulations,
and all executive and administrative orders relating to
non-discrimination which are hereby incorporated and made part
of this ordinance by reference.
(b) Grantee shall strictly adhere to the equal
employment opportunity requirements of the FCC, state and local
regulations, and as amended from time to time.
(c) No signals of a Class IV cable communications
channel shall be transmitted from a subscriber terminal for
purposes of monitoring individual viewing patterns or practices
without the express written permission of the subscriber. The
request for such permission shall be contained in a separate
document with a prominent statement that the subscriber is
authorizing the permission in full knowledge of its provision.
Such written permission shall be for a limited period of time
not to exceed one (1) year, which shall be renewable at the
option of the subscriber. No penalty shall be invoked for a
subscriber's failure to provide or renew such an authorization.
63
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The authorization shall be revokable at any time by the
subscriber without penalty of any kind whatsoever. Such
authorization is required for each type or classification of
Class IV cable television activity planned; provided however,
that the Grantee shall be entitled to conduct systemwide or
individually addressed "sweeps" for the purpose of verifying
systemintegrity, controlling return -path transmission, or
billing for pay services.
(d) Except for billing and subscription purposes,
the Grantee, or any of its agents or employees, shall not,
without the specific written authorization of the subscriber
involved, sell, or otherwise make available to any party:
(1) Lists of the names and addresses of such
subscribers, or
(2) Any list which identifies the viewing
habits of individual subscribers.
(e) Fairness_ of Accessibility. The entire system
of the Grantee shall be operated in a manner consistent with the
principle of fairness and equal accessibility of its facilities,
equipment, channels, studios and other entities having a
legitimate use for the network; and no one shall be arbitrarily
excluded from its use; allocation of use of said facilities
shall be made according to the rules or decisions of the Grantee
and any regulatory agencies effecting the same.
64
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9.5 Continuity_gf_Serv_ice_Mandatory
(a) It shall be the right of all subscribers to
continue receiving service insofar as their financial and other
obligations to the Grantee are honored. In the event that the
Grantee elects to overbuild, rebuild, modify, or sell the
system, or the Grantor gives notice of intent to terminate or
fails to renew this franchise, the Grantee shall act so as to
ensure that all subscribers receive continuous, uninterrupted
service regardless of the circumstances. In the event of a
change of franchises, or in the event a new operator acquires
the system, the Grantee shall cooperate with the Grantor, new
franchises or operator in maintaining continuity of services to
all subscribers. During such period, Grantee shall be entitled
to the revenues for, any period during which it operates the
system, and shall be entitled to reasonable costs for its
services when it no longer operates the system.
(b) In the event Grantee fails to operate the
system for seven (7) consecutive days without prior approval of
the Grantor or without just cause, the Grantor may, at its
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
is required to fulfill this obligation for the Grantee, the
Grantee shall reimburse the Grantor for all reasonable costs or
damages in excess of revenues from the system received by the
Grantor that are the result of the Grantee's failure to perform.
65
9.6 Grantee_ Rules_and_Reg ulatiorjs. The Grantee shall
have the authority to pornulgate such rules, regulations, terms
and conditions governing the conduct of its business as shall be
reasonably necessary to enable the Grantee to exercise its
rights and perforin its obligations under this franchise, and to
assure an uninterrupted service to each and all of its
customers. provided, however, that such rules, regulations,
terms and conditions shall not be in conflict with the
provisions hereof or applicable state and federal laws, rules
and regulations.
9.7 Tenant_Rights. Grantee shall be required to
provide service to tenants with all services offered to other
dwelling units within the franchise area, so long as the owner,
of the facility consents in writing, if requested by Grantee, to
the following:
(a) To Grantee's providing of the service to units
of the facility;
(b) To reasonable conditions and times for
installation, maintenance, and inspection of the system on the
facility premises;
(c) To reasonable conditions promulgated by
Grantee to protect Grantee's equipment and to encourage
widespread use of the system; and
(d) To not discriminate in rental charges, or
otherwise, between tenants who receive cable service and those
who do not.
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SECTION 10. ..... RIGHTS_RESERVED_TO_THE_GRANTOR
10.1 Right_to_Purchase_the_System. The Grantor may in
any lawful manner and upon the payment of a fait, valuation
lawfully ascertain, purchase, condemn, acquire, take over and
hold the property and plant of the Grantee in whole or in part;
if such purchase or taking over be upon revocation of the
franchise or at the expiration of the term of the franchise such
valuation shall not include any sum for the value of the
franchise or grant under which such plant and property is being
operated.
10.2 Right_of_Insgection_of_ Records. There shall be
kept in the Grantor's office a separate record for the
franchise, which record shall show the things hereafter set
forth. The Grantee shall provide such information in such form
as may be required by the Grantor for said records.
(a) The true and entire cost of construction
equipment, of maintenance and of the administration and
operation thereof; the amount of stock issued, if any; the
amount of cash paid in, the number of par value of shares, the
amount and character of indebtedness, if any; the rate of
taxes, the dividends declared; the character and amount of all
fixed charges; the allowance, if any, for interest, for wear
and tear or depreciation; all amounts and sources of income.
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(b) The amount collected annually from the Grantor
treasury and the character and extent of the service rendered
therefor to the Grantor. (c) The amount collected annually
from other users of service and the character and extent of the
service rendered therfor to them.
The books of records kept by the Grantor shall be open to
public examination at any time during the business hours of the
Grantor's office. The information, in addition to any further•
data which may be required by the Grantor, shall be furnished by
the Grantee to the Grantor upon request, and at the Grantee's
own cost and expense.
The Grantor shall have the right to inspect all books,
records, maps, plans, income tax returns, financial statements,
and other like material of the Grantee at any time during normal
business hours.
10.3 Right_of_lnseection of Construction. The Grantor
shall have the right to inspect all construction or installation
work performed subject to the provisions of the franchise and to
make such tests as it shall find necessary to ensure compliance
with the terms of this franchise and other• pertinent provisions
of law.
10.4 Right_ of Intervention. The Grantor shall have the
right of intervention in any suit or proceeding to which the
Grantee is party, and the Grantee shall riot oppose such
intervention by the Grantor.
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Right_to_Reguire_Removal _of _Property. At the
expiration of the term for which the franchise is granted, or
upon its revocation or expiration, as provided for herein, the
Grantor shall have the right to require the Grantee to remove,
at its own expense, all portions of the Cable Communications
System from all streets and public ways within the franchise
area.
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SECTION .1,l�----- KlGHTS~RLSLKVED~TO.THE_GRANTEE
11.1 RiQht-of~Grantee. In any material dispute' the
Grantee may pursue such other remedies as are available,
including the bringing of action in any court of competent
Jurisdiction.
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SECTION 12. FRANCHISE_VIOLATIONS
Id.1 Remedies_ for Franchise_ Violations. If the Grantee
fails to perform any obligation under the franchise, or fails to
do so in a timely manner, the Grantor may at its option, and in
its sole discretion;
(a) Assess against the Grantee monetary damages up
to the limits established in the franchise agreement for
material franchise violations, which the Grantee hereby agrees
to pay, said assessment to be levied against the security fund,
hereinabove provided, and collected by Grantor immediately upon
said assessment. Grantor and Grantee agree that the amount of
such assessment shall be deemed, without proof, to represent
liquidation of damages actually sustained by Grantor by reason
of Grantee's failure to perform. Such assessment shall not
constitute a waiver by the Grantor of any other right or remedy
it may have under the franchise or under applicable law,
including without limitation, its right to recover from Grantee
such additional damages, losses, costs and expenses, including
actual attorney fees, as may have been suffered or incurred by
Grantor by reason of or arising out of such breach of the
franchise. This provision for assessment of damages is intended
by the parties to be seperate and apart from Grantor's right to
enforce the provisions of the construction and performance bonds
provided for in Section 6, and is intended to provide
compensation to Grantor for actual damages.
`v 4
(b) For violations considered by Grantor to have
materially degraded the quality of service, order and direct
Grantee to issue rebates or reduce its rates and/or charges to
subscribers, in an amount solely determined by Grantor to
provide monetary relief substantially equal to the reduced
quality of service resulting from Grantee's failure to perform.
(c) Require Grantee to cure all defaults and
breaches of its obligations hereunder before Grantee is entitled
to increase any rate or charge to subscribers hereunder.
(d) Terminate the franchise, for any of the causes
stated in Section 4., above.
(e) No remedy shall be imposed by Grantor against
Grantee for any violation of this franchise without Grantee
being afforded due process of law.
Grantor may, in its sole judgement and discretion, impose
any or all of the above enumerated measures against Grantee,
which shall be in addition to any and all other legal or
equitable remedies it has under this franchise or under any
applicable law.
12.2 Procedure_ for_Remedying_Franchise Violations. In
the event that the Grantor determines that the Grantee has
violated any provision of the franchise, any rule or regulation
promulgated pursuant hereto or any applicable federal, state, or
local law, the Grantor may make a written demand on the Grantee
that it remedy such violation. If the violation, breach,
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failure, refusal, or neglect is not remedied to the satisfaction
of the Grantor• within thirty (30) days following such demand,
the Grantor shall determine whether or not such violation,
breach, failure, refusal, or neglect by the Grantee was
excusable or inexcusable, in accordance with the following
procedures:
(a) A public hearing shall be held and the Grantee
shall be provided with an opportunity to be heard upon thirty
(30) days written notice to the Grantee of the time and place of
the hearing provided and the allegations of franchise
violations.
(b) If, after notice is given and, at the
Grantee's option, a full public proceeding is held, the Grantor
determines that such violation, breach, failure, refusal, or
neglect by the Grantee was excusable, the Grantor shall direct
the Grantee to correct or remedy the same within such additional
time, in such manner and upon such terms and conditions as the
Grantor may direct.
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GECTION_13._____ REPORTG
P
13.1 Annual_Reeorts. At the request of Grantor, within
sixty (60) days after the close of Grantees fiscal year the
Grantee shall submit a written annual report, in an form
approved by the Grantor, including, but not limited to, the
following information:
(a) R summary of the previous year's (or, in the
case of the initial report 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,
and the number of subscribers for each class of service;
(b) A financial statement, audited by, and
independent Certified Public Accountant, or certified by an
officer of the Grantee, including a statement of income,
revenues, operating expenses, value of plant, annual capital
expenditures, depreciation with an attached depreciation
schedule, interest paid, taxes paid, balance sheets, and a
statement of sources and application of funds;
(c) A current statement of costs of construction
by component categories;
(d) A projected income statement and statement of
projected construction for the next two (2) years;
(e) A list of Grantee's officers, members of its
board of directors, and other principals of Grantee;
(f) A list of stockholders or other equity
investors holding give percent (SX) or more of the voting
interest in the Grantee; and
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(g) To the extent that money, other than profits,
is paid to a parent, subsidiar•y, or other person affiliated with
the Grantee, the amounts of such payments.
13.2 plant_Surv_ey_Regort. At the request of the
Grantor, Grantee shall submit to the Grantor an annual plant
survey report which shall be complete survey of the Grantee's
plant and a full report thereon. Said report shall include, but
not be limited to, a description and "as -built" maps of the
portions of the franchise area that have been cabled and have
all services available, and appropriate engineering evaluation
including suitable electronic measurements conducted in
sufficient detail to enable the Grantor to ascertain that the
service requirements and technical standards of the FCC and/or
the franchise are achieved and maintained. At Grantor's
request, but no more than once per three (3) years, the Grantee
and the Grantor shall agree upon the appointment of a qualified
independent engineer to evaluate and verify the technical
performance of the Cable System. The cost of such evaluation
shall be borne equally by the Grantee and the Grantor.
13.3 Coeies_of_Federal ._and _State_Rep2rts. The Grantee
shall submit to the Grantor copies of all pleadings,
applications, reports, communications and documents of any
kind,submitted by the Grantee to, as well as copies of all
decisions, correspondence and actions by, any federal, state and
local courts, regulatory agencies and other government bodies
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relating to its cable television operations within the franchise
area. Grantee shall submit such documents to the Grantor
simultaneously with their submission to such courts, agencies
and bodies; and within five (5) days after their receipt from
such courts, agencies and bodies. The Grantee hereby waives any
right to claim corifidential, privileged or proprietary rights to
such documents unless such confidential rights are confidential
by law or by the practices of Federal or State agencies.
However, proprietary data exempt from public disclosure shall be
retained in confidence by the Grantor and its authorized agents
and shall not be made available for public inspection.
13.4 public_Reggrts. A copy of each of Grantee's annual
and other periodic public reports and those of its parent,
subsidiary and affiliated corporations and other entities, as
the Grantor requests and is reasonably appropriate, shall be
submitted to the Grantor within five (5) days of its issuance.
13.5 Complaint_File_and_Regorts. An accurate and
comprehensive file shall be kept by the Grantee of any and all
complaints regarding the cable system. A procedure shall be
established by the Grantee by the time of installation of the
cable system to remedy complaints quickly and reasonable to the
satisfaction of the Grantor. Complete records of
Grantee' sact ions in response to all complaints shall be kept.
These files and records shall remain open to the public during
normal business hours.
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(b) The results of an annual opinion postcard
survey report which identifies satisfaction of dissatisfaction
among subscribers with cable communications services offered by
the Grantee shall be submitted to the Grantor no later than two
("c') months after the end of Grantee's fiscal year. The surveys
required to make said report shall be in a format approved by
the Grantor and may be in a form that cars be transmitted to
subscribers with one (1) or more bills for service.
13.6 Miscellaneous_Reports. Grantee shall submit to the
Grantor such other information or reports in such forms and at
such times as the Grantor may reasonably request or require.
13.7 Inspection_ of Facilities. The Grantee shall allow
the Grantor to make inspections of any of the Grantee's
facilities and equipment at any time upon reasonable notices or,
in case of emergency, upon demand without prior notices to allow
Grantee to verify the accuracy of any submitted report.
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(a) P summary of
complaints,
identifying the
number and nature of complaints
and their
dispositions in a form
approved
by the Grantors shall
be completed for each month and
submitted
to the Grantor by the
tenth day
of the succeeding
month.
(b) The results of an annual opinion postcard
survey report which identifies satisfaction of dissatisfaction
among subscribers with cable communications services offered by
the Grantee shall be submitted to the Grantor no later than two
("c') months after the end of Grantee's fiscal year. The surveys
required to make said report shall be in a format approved by
the Grantor and may be in a form that cars be transmitted to
subscribers with one (1) or more bills for service.
13.6 Miscellaneous_Reports. Grantee shall submit to the
Grantor such other information or reports in such forms and at
such times as the Grantor may reasonably request or require.
13.7 Inspection_ of Facilities. The Grantee shall allow
the Grantor to make inspections of any of the Grantee's
facilities and equipment at any time upon reasonable notices or,
in case of emergency, upon demand without prior notices to allow
Grantee to verify the accuracy of any submitted report.
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13.8 Failure_to_Reeort. The refusal, failure, or
reglect of the Grantee to file any of the reports required, or
such other reports as the Grantor reasonably may request, shall
be deemed a material breach of the franchise, and shall subject
the Grantee to all remedies, legal or equitable, which are
available to the Grantor under the franchise or otherwise.
13.9 False_ Statements. Any materially false or
misleading statement or representation made knowingly by the
Grantee in any report required under the franchise shall be
deemed a material breach of the franchise and shall subject the
Grantee to all remedies, legal or equitable, which are available
to the Grantor under the franchise or otherwise.
13.10
Cost_of_Reeorts.
All reports and records
required
under this
or any other Section
shall be furnished at
the sole
expense of
the Grantee.
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SECTION_14______MISCELLANEOUS_,PROVISIONS
11
14.1 Compliance_ with State_ and Federal_ Laws.
Notwithstanding any other provisions of this franchise to the
contrary, the Grantee shall at all times comply with all laws
and regulations of the state and federal government or any
administrative agencies therof. provided, however, if any such
state or federal law or regulation shall require the Grantee to
perform any service, or shall permit the Grantee to perform any
service, or shall prohibit the Grantee from performing any
service, in conflict with the terms of this franchise or of any
law or regulation of the Grantor, then as soon as possible
following knowledge thereof, the Grantee shall notify the
Grantor of the point of conflict believed to exist between such
regulation or law and the laws or regulations of the Grantor or
this franchise.
14.2 Separability_Nor�_Material_Prov_isions. If any
provision of this ordinance or any related agreements is held by
any court or by any federal, state, or local agency of competent
jurisdiction to be invalid as conflicting with any federal,
state, or local law, rule or regulation 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 any such law,
rule or regulation, and if said provision is considered
79
nonmaterial by the Granton, said 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 such law, rule
or regulation is subsequently repealed, rescinded, amended or
otherwise changed, so that the provision hereof or thereof which
had been held invalid or modified is no longer in conflict with
the law, rules or regulations then in effect, said provision
shall thereupon return to full force and effect and shall
thereafter be binding on the parties hereto, provided that the
Grantor shall give the Grantee thirty (30) days written notice
of such change before requiring compliance with said provision.
14.3 Separability=Material_Pro_visions. If any material
section of this ordinance, as determined by the Grantor, is held
to be invalid or preempted by federal, state or county
regulations or laws, the Grantor shall negotiate with Grantee
appropriate modifications to the franchise to provide reasonable
relief from such invalidity or preemption, including the payment
of liquidated damages. If the parties are unable to reach
agreement on such modifications, then the dispute shall be
submitted to a mutually agreeable arbitrator, in accordance with
state law, who shall determine what modifications and/or
liquidated damages are appropriate. The arbitrator's decisior,
shall be binding on the parties, provided, that no decision of
the arbitrator shall require the Grantor or Grantee to be in
violation of any federal or state law or regulation.
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14.4 Notices. Grantee shall maintain throughout the
term of the franchise, art address for service of notices by
mail. Grantee shall also maintain within the franchise area, a
local office as defined in the franchise agreement and a local
telephone number for the conduct of matters related to this
franchise during normal business hours.
14.5 Caeticns. The captions to sections throughout this
ordinance are intended solely to facilitate reading and
reference. Such captions shall not affect the meaning or
interpretation of this ordinance.
14.6 No_Recourse_Rgainst_the_Grantor. The Grantee shall
have no recourse whatsoever against the Grantor or its
officials, boards, commissions, agents, or employees for any
loss, costs, expense, or damage arising out of any provision or
requirements of the franchise or because of the enforcement of
the franchise.
14.7 Nenenforcefnent_by_the_Grantor. The Grantee shall
riot be relieved ofits obligation to comply with any of the
provisions of this ordinance by reason of any failure of the
Grantor to enforce prompt compliance.
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14.8 Theft_of_Serv_ices_and_Tampering
(a) No person, whether or, not a Subscriber to the
cable system may intentionally or knowingly damage or cause to
be damaged any wire, cable, conduit, equipment or apparatus of
Grantee, or commit any act with intent to cause such damage, or
to tap, tamper with or otherwise connect any wire or device to a
wire, cable, conduit, equipment and apparatus, or appurtenances
of Grantee with the intent to obtain a signal or impulse from
the Cable Communications System without authorization from or
compensation to the Grantee, or to obtain cable television or
other communications service with intent to cheat or defraud
Grantee of any lawful charge to which it is entitled.
(b) Any person convicted of violating any
provision of this Section is subject to a fine of not more than
Five Hundred Dollars ($500.00) for each offense. Each day's
violation of this Section shall be considered a separate
offense.
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SECTION i_______FRANCHISE_APGLICATICNS
15.1 Franchise__Apglications. Applicants for a franchise
Shall submit to the Grantor written applications utilizing the
standardized format provided by the Grantor, at the time and
place designated by the Grantor, for accepting applications, and
including the designated application fee.
1"..2 For either a new
franchise award or a franchise renewal, costs to be borne by
Grantee shall include, but shall not be limited to, all costs of
publications of notices prior to any public meeting provided for
pursuant to a franchise, development and publication of relevant
ordinances and franchise agreement, fees, and any cost not
covered by the application fees, incurred by the Grantor in its
study, preparation of proposal solicitation documents,
evaluation of all applications, including, but riot limited to
consultant and attorney fees and Grantor staff time.
63
SECTION 16, EFFECTIVE DATE. POSTING.
This Ordinance shall be in full force and effect thirty (30) days from
and after its adoption, and shall be posted within the Town of Los Altos
Hills in three (3) public places.
The within Ordinance was introduced at a regular meeting of the City
Council of the Town of Los Altos Hills held this 15th day of June ,
1988, and was thereafter passed and enacted at a regular meeting of the
City Council of the Town of Los Altos Hills this 21st day of June
1988, by the following roll call vote:
AYES. Councilmember.
NOES. Councilmember
ABSENT. Councilmember.
ABSTAIN. Councilmember:
ATTEST.
CITY CL K
Mayor Tryon and Councilmembers Casey and Johnson
CouncilnE bens Siegel and van Taelen
R=-
-- MAYOR