Ordinance 0930 ~ ~
ORDINANCE N0. 930
AN ORDINANCE OF THE CITY OF CUPERTINO ADDING
A NEW CNAPTER 6.28 TO THE CUPERTINO MUNI-
CIPAL CODE, PROVIDINC FOR THE GRANTING OF
FRANCHISES FOR COl~ff~iiJNITY A27TENNA TELEVISION
SYSTEMS, AND THE TERMS AND CONDITIONS FOR
~ THE OPERATION OF THE SAME WITHIN TkiE BOUN-
DARIES OF TtiE CITY
~ THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:
1. Amendment: Chapter 6.28 ie hezeby added to the Cupertino Municipal Code
to read as followe: '
Chapter 6.28
FRANCHISES POR COMMUNITY ANTENNA TL~LEVISION SYSTEMS
Sectiona:
6.28.010 Definitions.
6.28.020 Reserved.
6.28.030 Franchiae to Operate.
6.28.040 Uses Permitted by Grantee.
6.28.045 Regulations of Ratea and Servicea.
6.28.050 Duration of Franchise.
6.28.060 Terms of Acquisitions.
6.28.070 Pranchiae Paymenta.
b.28.080 Limitations of Franchise.
6.28.090 Righte Reserved To The City.
6.28.100 Permits, Inatallation and Service.
6.28.110 Location of Property of Grantee.
6.28.120 Removal and Abandonment of Property of Crantee.
6.28.130 Changea Required by Public Improvementa.
6.28.140 Failure to Perform Street Work.
6.28.150 Faithful Performance Bond. '
6.28.160 Indemnification of City.
6.28.170 Inspection of Property and Recorde.
6.28.180 Operational Standards.
6.28.190 Hiscellaneoua Provisions.
6.28.200 Use of Utility Poles b Facilities: Agreement.
6.28.210 Application for Franchisea.
6.28.220 Franchise Renewal.
6.28.230 Acceptance and Effective Date of Franchise.
6.28.240 Violationa-Penalty.
6.28.245 Repair Service and Subacriber Complaints.
6.28.246 Inadequate Service Remedies.
6.28.247 Supervision of CATV Franchises.
6.28.250 Severability
' 6.28.260 Arbitration
6.28.270 Existing Franchises.
6.28.010 Definitions. For the purposes of this Ordinance, the
following terms, phrase:c, worda, abbreviatio~s, and [heir derivationa
shall have the meaning given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural
number include the singular number, and words in the eingular number include
the plural number. .
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A. "City" shall raean ti~e Ci[y of Cuper[ino, a municipal corpora-
tton of tl~e State of California, in its present incorpora[ed form or in any
later reorganized, consolidated, ~nlarged or reincorpora[ed form.
8. "Council" sliull mean the present governing body of the City
or nny future board constit~ting the legislative body of the City.
C. "Franchise" shall mean and include any authorization granted
hereunder in terms of a franchise, privilege, permit, license or othe n~rise
to conatruct, operate and maintain a CATV system in tl~e City. My such
suthorization, in Whatever term granted, shnll be in lieu of any license
or permit required for the privilege of transacting and carrying on a
i businesa within the City in accordaace with the provisions of Title S of
the Cupertino Municipal Code.
D. "Crantee" shall ~an the peraon, firm or corporation to whom
of which a franchise, as hereinabove defined, is granted by the Council under
thie Ordinance, and [he lawful succesaor, transferee or assignee of eaid
peraon, firm or corporation.
C. "Street" ahall mean the surface of and the space above and
below any public atreet, road, highway, freeway, lane, path, alley, cour[.
sidewalk, parkway, or drive, nov or hereafter existing as such within the
Ci[y.
F. "Property of Grantee" st~all mean all property owned, installed
or used by a grantee in the conduct of a CATV bueiness in the City under the
authority of a franchiae granted pursuant to this Ordinance.
G. "CATV" shall mean a co~unity antenna televiaion syatem as
i~ereinafter defined.
H. "Community Antenna Television Syatem" ehall mean a system of
nntenna, coaxial cable, vires, wave guides, or other conductora. equipment
or facilities designed, construc[ed or used for the purpose of providing any
eignal which is not ptohibited by state or federal law. Such term shall not
include (1) any such facility that aerves fewer than fifty (50) subscribers,
or, (2) any such facility that serves only the reaidents of one or more
apartment dwellings under couunon ownership, control of management, and com-
mercial establishments located on the premiaes of such an apartment house.
I. "Subscriber" ahall mean any person or entity receiving for
any purpoae the CATV service of a grantee.
J. "Basic Service Groas Receip[s" shall mean any and all com-
pensation and other consideration in any form wl~atever and any contributing
grant or subaidy received directly or indirectly by a grar.tee from sub-
ecribera or uaers in payment for television or FTl radio signals or aervice
received Within the City, determined on an annual basis.
• Basic aervice Groas Receipts ehall not include any taxea on
services furnished by the grantee impused directly on any au6scriber or
user by any ci[y, etate or otl~er governmental unit and collected by the
grantee for auch governmental unit.
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K. "Additional Service Net Receipts" stiall mean tl~at portion
of gross annual recelpts attributable to any services other than those of
providing television or FM radio signals or service to subscribers witl~ln
Che Cupertino clty limits. Such op[ional services include, but are not .
limited to, education; traffic control; audience rating; communi[y alert;
electronic banking; mail and/oz nevapaper; lease channels; data tranamiesion;
and subscriher aecurity.
6.28.020 Reserved.
, 6.28.030 Franchiae To Operate. A non-excluaive fra~chiae to
conatruct. operate and maintain a CATV system within all or any portion of
the CS[y may be granted by the Council to any person, firm or corporation,
whettier operating under an existing franchiae or not, alio or wf~ich offera
to furnish and provide such syetem under a~d pureuant to the terma and
proviaions of this Chapter.
No pravieion of Chis Chapter may be deemed or construed as requiring
the granting of.a franchise when in the opinion of the Council it ia in the
puUlic intereat to reatrict the number of granteea to one or more.
6.28.040 Uses Permitted By Grantee. My franchise granted pursuant
to the provisione of this Chapter shall authorize and permit the grantee to
engage in the businesa of operating and providing a CATV system in the City,
nnd for that putpose to erect, lnstall, construct, repair, replace, reconatruct,
maintain and retain in, on, over, under, upon, across and along any public
street, such polea, wires. cable, conductors, ducts, conduit, vaults, man-
holes, amplifiera, appliances, attachmenta, and other property as may be nec-
essaty and appurtenant to the CATV system; and in addition, so to use, operate,
and provide similar facilitiea or properties rented or leased from other
persons, firms, or corporations, including bu[ not limited to any public
utility or other grantee franchised or permitted to do businese in the City.
6.28.045 ReAUlationa of Rates and Services.
The City Council shall have the pover and right at all times for
the duration of the francliise granted by thia chapter to require grantee
to conform to reasonable rules and regulationa now or hereafter adopted
by the C3ty Council, including the power to regulate aed eatablish
reasonable rates and charges by grantee for services rendered under
this chapter.
Unless o[hervise directed by Council, future rate increases ehall
be based on the following criteria:
a. Baefc rates. The initial rates for basic CATV service, in-
atallation and connection charges sl~all not exceed the rates set forth
in the franchiae application or those otherwise approved by City Council
action. Basic ae.rvice ratea and chargea sliall not be inereased until
the Cable System is completed and an increase authorized by Council.
~ Such authorization may be granted by the Council under the procedurea
atated in b. or c. below.
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b. Annual Rate Adjustment hfethod. The lnitlal rates shall be
adJusted after the Cable System is completed, effective Octaber 1 of
the yeur said system is completed, and shall 6e adjusted for five (5)
succesaive years thereafter, Uased.upon [he Conaumer Price Index
(Urbun Wage Earnera) or'subaequent replactng index prepared by tl~e
Bureau of Labor Sta[istica of the United Statea Depar[ment of Labor,
relating to all itema, Seriea A, for the San Francisco-0akland metro-
politan area (1967=100) (herein the "CPI"), in accordance vith the
following formula:
(1) The grantee shall submit to Lhe city by September 1
of each year a report of the moat recent CPI information for the
twelve (12) month period preceding the report.
(2) The number of pointa of increase or decrease in the
CPI for said [welve (12) month period, divided by tlie index base of
one hundred (100) ahall be used as the total annual percentage increase
in the CPI.
(3) The grantee may request and the City ahall thereon grant
an annual rate adjuatment in the amounta requested by grantee, pravided
tttat :
(a) The amount of auch annual rate ad~uatment divided
by the current subacriber rates shall not exceed aeventy-five percent
(75X) of the total annual percentage increase in the CPI as determined
under subparagraph (2) above, and
(b) The grantee providea Che city with vritten financial
s[ateme~ts shoving that the rate adjuatmen[ is ,justified by increased
expenaes incurred by the grantee in ttie operation of its Cable Syatem.
(4) The annual rate adjustment requested by the grantee ahall
automatically become effective ninety (90) days after submisaion of
grantee's application therefor, unleas the Council makea prior written
findings tha[:
(a) Cran[ee's expenses have increased in a lesser per-
centage amount than the increase in CPI, or
(b) Grantee's net profit has increased in a greater
percentage amount than the increase in the CPI, or
(c) Grantee has not adequately served or aervices the
aubscribers in the city, or ia in material breach of thia chapter or ita
franchise, or
(d) Grantee has not provided sufficient financial in-
formation upon vhich the city can make the findings set out in aubsectiona
(3)(a) and (b) above, and city identifies tne additional information
~ necessary to make such findinga.
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c. Uirec[ Application Me[hod. Basic service rates and charges
si~all no[ Ue increased, except under subsection b. above or upon approval
of [he Council in accordance witii the provisions of this section as a
legislative nct.
(1) Any applicntion by the Grnntee for u rate increase h~ere-
under shall be accompanied and aupported by the folloving information:
(a) Copies of audited financial reporta and income state-
ments for at least the preceding three (3) final yeare. If the grantee
' fs a aubaidiary of anoti~er firm. eimilar financial data ahall be furnished
for the parent corporation.
(b) An ltemization of capital aeaete, both tangible and
intangible, including purchase datea and coate, the accoUnting basia for
depreciation and the depreciation schedule. If intangible asaeta auch
as goodwill are being amortized, the amortization period ehall be atated.
(c) A detailed breakdovn of operating, marketing and
general and administrative coats by category for each of the three (3)
preceding years.
(d) The number of aubscribers for basic CATV service
and pay-TV service for each of the three (3) preceding yeara.
(e) The number of cable plant-miles and dwelling unita
pasaed by the cable plant for each of the three (3) preceding yeara.
(f) A statement as to any allocation of funda to parent
company overhead or operating costs, and the basis for such allocation.
(2) Upon receipt of a rate increase request, accompanied by
all of the suppor[ing information of (1) above, it ahall be the obliga-
tlon of the Council to act upon this request critliin a period of 90 days
from tlie da[e upon which all supposting material has been made available
in adequate form. Prior to taking action on the requeat, at least one
noticed public hearing shall be held upon the rate request.
, The Council ahall approve, partially approve or diaapprove
any increase of ratea or rates for additional servicea on the baeis of
the following conaiderations:
(a) Performance of the grantee in abiding by the itema
of the chapter and franchise.
(b) Value of the service or aervicea provided.
(c) Ratea for comparable service or aervices in aurrounding
communities.
(d) Quality of service.
(e) Efficiency of grantee management.
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(f) Revenues and profits from all services offered.
(g) Depreciated original cost of tlie cable plan[ and
associated equipment. All intangiUle asaets for which costs have no[
actually been expended, such as tt~e value of the franchise, goodwill,
and tt~e value of [he going concern, ahall not be amortized as an expense,
i artd a return ehall not be paid on uny of these values. Actual coete,
i auch as the purchase of a syatem above net book value, may be amortized
~ over a period of not less than twenty (20) yeara, but [lie unamortized
I portion shall not be included in any rate base or rate of re~arn calcu-
lationa.
(h) A fair rute of return on grantee's investment com-
pared to inveatments having corresponding riak.
The decision of tlie Council approvin~ or disapproving
ti~e rate requeat ehall be accompanied by findings indicating the baeis
for ti~e decieion.
(3) In the event a rate increase is granted ae requested, [he
grantee sliall refrain from applying for further increases for a period
of eigiiteen (18) montl~s from tlie date of the prior filing. If tiie rate
requeat ia denied, or a lesser increase tiian requeated is approved, the
grantee si~all refrain from applying for further i~creasea for a period
of twelve (12) months from the date of the prior filing.
6.28.050 Duration of Prancl~ise. A franciiiae granted by the Council
under this Chnpter ahall be for a term of fifteen yeare (15) following tlie
date of acceptance of auch franchiae by ti~e grantee or the renewal thereof.
In tlie event that the grantee l~as failed to comply vith any signifi-
cant provision of tliis Ordinance, or has, by act or omission, violated any
tetm or condition of any francliise or permlt isaued hereunder, any auch
francliise may be terminated in accordance with the provisions of t}?is aection.
Prior to sucii termination, City muat give notice to grantee that auch con-
dition of noncompliance muat be cured within aixty (60) days, wiiich period
may be ex[ended for one additional 60-day period. In the even[ that said
noncompliance is not remedied witliin tiie aforesaid notice period, City ahall
l~old a public hearing at wiiich findinga sl~all be made and said frnnciiiae may
be con[inued, terminated, or continued sub~ect to performance of euch con-
ditions as the City Council may provide.
6.28.060 Terms of Acquisition. The facilities, righta, and equip-
ment comprising the CATV system of any grantee, or any material part thereof,
may be purchased by the City upon the termination or expiration of any fran-
ciiise granted purs~ant [o thie Cl~apter, according to the folloving terms and
conditions to be included in suci~ franchiae:
A. City sliall be granted a righ[ of firet refusal, vt~ereby it
may elect to purchase all or any part of said CATV ays[em, at a cost to City
' equal to any bona fide purcliase offer made by a third party to the grantee.
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B. Said grantee shall notify the Ci[y within ten (10) days
in writing, oE any bona E1de purchnse offer made b~ a third party. Thereupon,
the City shall hnve one hundred twenty (120} days wi[hin w~hicl~ to elect
to purchase that pnrt of the CATV syatem described in said offer. Within
such period grantee shall not remove, destroy, tranafer, replnce or render
inoperative any materlal part of the system so described.
6.28.070 Franchise Paymenta., Any grantee granted a franchise under
this Chapter shall pay to the City, during the life of such franchise, a
sum equal to three percent (3X) unnually of the Basic Service Grasa Receipts
of the grantee, together with a sum equal to [hree percent (3X) annually
~ of the additlonal aervice net receipte of the grnntee. Such payment by
I [he gruntee [o the City shall be made annually. or as otherwise provided
[n the grantee~s franchise by delivery of the same to the City Clerk. The
said payment shnll be in lieu of any business 1lcense tax as proviJed
for in Title 5 of thie Co3e.
The grantee shall file with the City, within thirty (30) days
after the expirncion of the operator's fiscal year or portion thereof
durin~ which such franchise is in force, a financial stateraent to include
balance sheet and proEit/loss statement prepared by a certified public
accountant, or person otherwise satisfactoty to tlie Council, showing in
de[ail the groea and net receipts as defined herein, of grantee during the
preceding calendnz year or portion thereof. It shall be the duty of the
qrantee to pay to the City, within fifteen (15) days after the time for filing
such statemente, the sum hereinabove prescribed or any unpaid b~lnnce thereof
for the calendar year or portion thereof covered by such statements.
The City shall have tlie right to inspect the audit the grantee's
fiscal records. If any independent audit of the grantee's recorda directed
by the City ahows a franchiae fee error in excesa of five percent (SX)
in the C1ty~s favor, the grantee shall assume all reasonable costs for said
audit. No acceptance of any paymen[ shall be construed as a release or as
an accord and sntisfaction of any claim the City may have for further additional
aums paynble under this section for the perEormance of any other obligation
hereunder. ~
If any payment is not made vithin the time limits above described,
iC is imposed upon the grantee a penalty in the amount of lOX per month
on the unpaid balance until said amount is paid. In addition to any other
remedy provided.in [his ordinance [o inaure payment of said aums, the City
ahall have the right to bring a civil action ngainst the grantee for'collec-
tion of said suma.
6.28.080 Limitatione of Franchise.
A. No privilege or exemption shall be gra~ted or conferred
• by any fcanchiae granted under thia Chapter except those specifically prea-
cribed herein.
S. Any privilege claimed under any such frnnchise by the grantee
in any street or o[her public property shall be subordinate to any prior
lawful occupancy of the stree[s or o[her puhlic property, and shall be
superior to subsequent conflicting claims to such occupancy made by any
agency not acquiring such rights 6y lawful exercise of the pa,rer of eminent
domain.
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C. Any such franchise shall be a privilege [o be held in personal
trust by the original grantee. It cannot in any event be sold, transferred,
leased, assigned or dlsposed of, in whole or in part, etther by forc:ed
or involuntary sale, or by voluntary sale, merger, consolidation or othen+ise,
without the prior consent of the Council expressed by reaolu[ion, ttnd then
~ only under such conditione as may therein be prescrihed. Any aucl~ trnnafer
or assignment stiall be made only by an instrumen[ in vriting, a duly execu[ed
i copy of vhich shall be filed in the office of the City Clerk wiehln thirty
~ (30) duys aftec any such transfer of assignment. The said consent of the
Council may not be unreaeonubly wi[hheld; provided, however, the propoaed
assignee must ehow financial responsibili[y and mus[ agree [o comply with
all provisions of this Chap[er and provided, further, that no euch consent
slinll be required for a tranaFer in trust, mortgage or other hypothecation
as a whole. to aecure an indebtednesa.
D. Time shall be of the easence of any such franchide granted
hereunder. The grantee shrtll not be relieved of his obligation to comply
promptly wlth any of the provisiona of [his Chapter or by any failure of the
City to enforce prompt compliance; provided, however, that acts of God, labor
strikes, unavailability of materials and other events beyond gran[ee's con[rol
shall excuse grantee's failure promptly to perform.
E. Any right or pover in, or duty impressed upon any officer,
employee, department, or board of the City ahall be subject to transfer by
the City to any other officer, employee, department, or board of the City.
F. City ahall not be liable for any amounta of consequential,
special, or exemplary damages, cos[ or expense not directly arising from
any provision, requirement or enforcement of this Chapter or of any franchiae
granted hereuader.
G. The grantee ahall be subject to all requirementa of the
Cupertino Municipal Code, rules, regulatione and specificationa heretofore
or hereafter enacted or estnblished.
H. Any such franchise gran[ed shall not relieve the grantee
of any obligatio~ involved in obtaining pole space from any department of ,
the City, utility company, or from othera maintaining poles in streeta.
I. Any franchiae granted pursuant ta this Chapter ahall be non-
exclusive.
Sale, tranafer, leasing or assignment of a CATV franchise ahall
not be permitted until such time the franchise has comple[ed all agreed
sys[em construction and the system is supplying the proposed level of service
to paying subscribera in said frunchise service areas.
6.28.090 Rights Reserved To The CitY.
~ A. Nothing herein shall be construed to impair or affect, in
any way, the right of the City to acquire the property of the grantee,
either through the exercise of the right of eminen[ domain or by purchase
pursuant Co the provisions of ~6.28.060 herein, the price of which shall
not include any amoun[ for the franchise itaelf or for any of the rights nr
privileges granted, and nothing herein con[ained ehall be construed to modify
or abridge, [he City's right of eminent domain.
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8. There is hereby reserved to [he Clty every right an~ power
which is required to be herein reserved or provlded by uny legislative enact-
ment of [tie City, nnd tlie grantee~ by its acceptance of any franc}~ise, agrees
[o be bound thereby and to comply wl[h any action or requlrements of the City
in its exercise of such rights or pouer, here[ofore or hereafter enacted
or eatublished.
C. Neither the grunting oE any franchise hereunder nor any of
tlie provisions contained herein shall be construed to prevent [he City from
granting any identical, or similar franchise to any other peraon. firm or
corporation, within all or any portion of the City.
D. There is hereby reserved to the City the prn+er to reasonably
umend any sec[ion or part of this Chapter so as to require additional or
sreater standards of construction, operation, main[enance of o[herwise,
on the part of the grantee.
E. Neither the granting of any franchise nor any proviaion hereof
shall constitute a waiver of bar to the exerciae of any governmental right
or power of the City.
F. The City Hanager is hereby suthorized und empowered to adjust,
settle, or compromise any controversy or charge arising from the operations
of any grantee under this Chapter, on behalf of the Ci[y, in the best intereat
of the public. Either the grantee or any member of [he public who may be
dissa[iafied vith [he decision of the City Manager may appeal the matter
to the Council for hearing and determination. The Council may accept. reject,
or modify the deciaion of the Ci[y Manager and [he Council may adjust, ae[tle
or compromise any controversy or cancel any charge ariaing from the opera-
tions of any grantee or from any provision of this Chapter.
6.28.100 Permita Installation and Service.
A. Within thirty (30) days after acceptance of any franchise
[he grantee shall apply for and diligently pursue all necesaary permita
and authorizations vhich are required in the conduc[ of its business,
including, hut not limited to, any utility ,joint use a[tachmen[ agreemente,
microwave carrier licenses, and any other permits, licensea and authori-
zations to be granted by duly constituted regulatory agencies having juris-
dic[ion over the opera[ion of CATV systems, or their associated signal trans-
mission facili[ies.
B. ldithin ninety (90) days after obtaining all necessary permits.
licenses and authorizations, necessary materials, contractors, easements and
clearances, grantee shall commence construction and inatallation of the
CA'N syatem.
C. Within ninety (90) days after the commencement of conatruct-
tion and installation of the system, granCee shall proceed to render service
' to subscribers, and the completion of the construction and installation shall
be pursued with reasonable diligence thereaFter, so that service to all
areas deaignated on the map accompanying ttie upplication for franchise,
shall be provided.
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U. Failure on the part of the grantee to commence and dlligently
pursue each of the foregoing requirements, [o substantially comple[e the
system, substantial comple[ion being herein defined a5 when full CATV servLce
ie available to 95X or more of all dc+elling units exlsting wltliin t~~e reyuircd
service area ae of the date of franchise avard, and to complete encl~ of the
matters set forth herein, shull be grounda for npplication of penaltiea or
[ermination of such franchise, under and pursuant to the terms of Section 6.28.050
I~ereof; provided, however, that the Cauncil in its Jiecre[ion may extend
the [ime for the commencement and completion of construction and installa-
tion for additional periods in the event the grnntee, acting in good fai[h,
experiences delays by reason of circuastances beyond his control.
E. 8y acceptance of the franchiee granted hereunder, grantee
agrees that failure to comply vith any time requirements referred to in sub-
sectiona (A), (B) and (C) of thie aection, or as extended by the City Council,
will result in damnge to the City, and that it is and vill be impracticnble
to determine the actual amount of auch damage in the event of delay; and
grantee therefore agrees [hat. in addition to any other damage suffered by
City, he will pay to the City the eum of five hundced dollars ($500.00) per
day for each and every day's delay beyond the time prescribed, plus authorized
extensions thereof, for the completion of any of the acta required to be done
~ by this section.
F. Grantee is required to extend system service to newly developed
or annexed areas of the City where housing density exceeds 40 homes per street
mile vithin six months of said development completion or annexation unless
• a justified different time period ia authocized by the City Mangger.
6.28.110 Loca[ion of Property of Grantee.
Any instailation which serves more thun fifty (50) units muat
have a frunchise to operate. A developer vith fifty (50) units or more hae
two options, (1) He may chooae to acquire service from a CATV franchise holder.
(2) He may choose to apply foc his own nonexclusive franchiae. The City
requires a franchise fee from any holdez of a franchise, b~sed upon his groes
receipts. The fact that there may not be a separate charge for use of the
system by cus[omers is i~aterial. The installation of auch a system is
costly and fees would he based upon such cos[s.
A. Any polea, wires, cable lioes, conduits, or other proper[1es
of the grantee ta be constructed or installed in atreets, shall be so con-
etructed or installed only at auch locations and in such manner as shall
be npproved hy the Director of Public Works acting in the exercise of his
reasonable diacretion. Such approval ahall not be needed aherever the property
oE the gran[ee is to be attached to, constructed, or installed on exiating
neriel public utility property or easemente.
B. The City ehall notify the grantee hereunder of nny planned
relocation of public streets or public rights-of-way in advance of said
' relocntion; and, whenever posaible, in advance of any nttachmenta to construc-
tion oz installation in said public streets or public righta-of-Way.
C. In those areas and portiona of tlie City where the trans-
mission or distribution Facilities of bo[h the public utility providing
telephone service and those of the u[ility providing electric service are
underground or hereafter may be placed underground, [hen the grantee ahall
likewise construct, operate and main[ain all of its transmission and
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distribution facilit[es underground. For the purposes of this subsection,
°underground" shall include a partial underground system, e.g. streamltning.
Amplifiers in grantee's tranamission and distribution lines may 6e in appropriate
enclosures upon the aurface of the ground as approved by [he Director o£
Public Works.
6.28.120 Removal and Abandonment of Proper[y of Gran[ee.
A. In the event that the use of any part of [he CATV ays[em
i excluding aervice drops is diacontinued for any reason for a continuous period
~ of tvelve (12) mon[ha, or in the event such system or property has been
' instelled in uny etreet or public place withou[ complying wlth the require-
ments of grantee's franchise or this Chapter, or the franchise has been termin-
ated, cancelled ar hae expixed, the grantee shall promptly, upon being
given thirty (30) days notice, remove from the atreets or public places nll
such property and poles of auch syetem other than uny which the pirector
of Public Works may permit to be abAndoned in place. In the event of auch
removal, the grantee shall promptly zestore the street or other area from
which such property hns been removed to a condition satisfactory to the
Director of Public Works.
B. Any property of [he grantee remaining in place one hundred
eighty (180) days after the termination or expiration of the franchise shall
be considered permanently abandoned. The Director of Public Works may
extend auch time not to exceed an additional thirty (30) days.
C. Any property oE the grantee to be abundoned in pluce shnll
be abandoned in such manner as the Director of Public Worka shall preacribe,
foiloving wri[[en notice to City of grantee's intention to abandon said
property, or following wri[ten notice by City of the expiration af [he time
periods stated in B. above. Upon permanent abandonment of the property
of the grantee in place, [he property ehall become that of the City, and
the grantee ahall submit to the Director of Public Works an instrument
in writing. to be approved by the City Attorney, transferring to the City
the ovnerahip of such property.
6.28.130 Changes Required by Public Improvements.
The grantee shall, at its expense, protec[, support, temporarily
disconnect, relocate in the same atreet or other public place, or remove
from the atreet or other public place, any property of the grantee when
required by the Direetor of Pu611c [iorks by reason of tr.affic conditiona, public
safety, street vacation, freeway and atreet conatruction, change or establiah-
ment of street grade, inatallation of sewers, draina, vater pipes, pover
lines, signal lines, and tracks or any other type of structure of improve-
ments by public agencies; provided, however, that the grantee shall in all
such casea have the privileges and be subjec[ to the obligationa to abandon
any property of the grantee in place. Any relocation of grantee's facilities
, necesaitated by actions other than those atated above shall be at the expense
of the pereons responsible therefor.
6.28.140 FaLlure to Perform Street Work. Upon failure of the
grantee to commence, puraue, or complete any vork required by law or by the
provisions of this Ch~pter or by i[s franchise to be done in any street
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or other public place, following notice and request for such performance, within
the time prescribed, nnd to the eatisEnction of the Director of Public Works,
[he llirector of Public Wocka may, at hta option, cause such work Co be done
and the grantee c~hall pay [o [he City Che cost thereof in tt~e itemiced
amounts reported by the Director of Public Works to the grantee within
thirty (30) days after receipt of such itemized report. If repayment
is not made withln thirty (30) days, the cash bond or line of credit required
herein may be used for this purpoaes.
The grantee mus[ poat a cash bond or letter of credlt paynble on
demand to the City, Erom a federal or Sta[e of California bank or savinge and
loan uasoclation in the name of the City of Cupertino in the nmount of
$50,000 for use 6y the City [o repair, replace or restore atreets or other
public fecllitiea damaged by the grantee's vork. The City shall have the
right to withdraw sufficient funds for auch repairs following fifteen (15)
j duys written notice to the grantee that auch repaira are neceasary and the
! grantee fails to perform neceasary repair, replacement or restorntion. Upon
sucli withdravals, said cash bond ahall be ceplenished by the grantee to ita
full original amount. Interest from cash bond shall be reaerved to [he grantee,
on terms nnd conditiona approved by the City Manager. The above street repair
bond or letter of credit may be withdrawn by the grantee and substituted by a
$5,000 cash bond or letter of credit, payable on demand to the City, upon sub-
stantial completion of the CATV system.
6.28.150 Falthful Performance Bond.
A. The grantee shall, concurrently with the filing of an acceptance
of award of any frnnchiae granted under this Chapter. file vith the City Clerk,
nnd at all timea theceafter maintain in full force and effect for the [erm of
such franchise or any reneval thereof, at grantee's sole expenae, a corparute
surety bond in a company and in a form approved by the City Attorney, in
the amount of Fifteen Thousand ($15,000) Dollara, renewuble annually, and
conditioned upon the faithEul performance of grantee, and upon the further
condition that io the event grantee ahali fail to comply with any one or
more of [he provisions of thia Chapter, or of any frunchise issued to the
grantee hereunder, there shall be recoverable jointly and aevernlly from the
principal and surety of such bond any damages or loss suffered by the City
as a reault thereof, including the full amoun[ of any compensation, indemni-
fication, or cost of removal or abandonment of any property of the grantee
as preacribed hereby which may be in default, plus a reasonable allowance
for attorney's fees and costs, up to the full amount of the bond; suid
condition to be u con[inuing obligation for [he dura[ion of auch fra~chise
and any renewal thereof and thereafter until the grantee has liquidated
all acceptance of said franchise or renewal by the grantee or from ita
exercise of any privilege therein granted. The bond ahall provide that [hirty
(30) days prior written notice of intention not to renew, cancellation, or
material change, be given to the City.
6. Neither the provisiona of this section, nor any bond accepted
by the City pursuant hereto, nor any damagea recovered by the City thereunder,
~ shall be construed to excuse faithful perfonnance by the grantee or limit
the liability of the grantee under any franchiae issued hereunder or for
damages, either to [he full amount of the bond or otherwise.
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6.28.160 Indemnification of City.
A. The gran[ee shnll, by accep[ance of any franchise hereunder
agree to indemnify and save harmlesa [he City, its officera and employeee
from and against any and all claims, demanda, actiona, aulta, and proceedinga
by othera, against all liability to others, including but not limited to
any liability for damages by reason of or ariaing out of uny violution
of pzoprietary or copyright interests, and againat any loas, cost, expenae
and damagea reaulting therefrom, including reasonable a[torney's fees, arising
out of the exercise or enjoyment of its franchise irrespective of the
amount of the comprehensive liability insurance policy required hereunder.
B. The grantee shall, concurren[ly with the filing of an acceptanc~
of awurd of any franchise granted under this Chapter, furnish to the City
and file with the City Clerk, and at all times during the existence of any
franchise granted hereunder, maintain in full force and effect, at its own
' cost and expenae, n general comprehensive liability insurance policy, in
protection of the City, ita officere, boards, cwomiasiona, agents and employees
in a company approved by the City Manager and a form satisfac[ory to the City
Attorney, protecting the City and ull persons against liability for loss
or damage for personal injury, death and property damage, occasioned by
the operations of grantee under such franchise, with minimum liability limits
of Three Hundred Thousand ($300,000) Dollars for personal in~ury or death
of any one person and One Million ($1,000,000) Dollars for personal injury
or death of two or more persons in any one occurrence, and 'Iwro Hundred
Thousand ($200,000) Dollars for damage to property reaulting from any one
occurrence.
C. The policies mentioned in the foregoing paragraph ehall name
[he Ci[y, its officers, boards, coimnissioos, age~ts and employeea, as addi-
tionally insured and stiall contain a provision that a written notice of
cancellation or reuuction in coverage of said policy shali be delivered to
the City ten (10) daya in advance of the effective date thereof; if such
insurance is provided Uy a policy which also covera grantee or any other entity
or person other than those above named, then such policy shall contain the
atandard croea-liability endoraement.
6.28.170 Inspection of Proper[Y and Records.
A. Upon written requeat and during normal business houra, the
grantee ehall permit any duly authorized representative of the City to
examine all property of the grantee, together with any appurtenant property
of the grnntee aituated within or without the City, and to examine and
transcribe any and all maps a~d other records kept or maintained by the grantee
or under its control which deal with the operations, affairs, transactions.
or property of the grantee wi[h respect to ite franchise. If any auch tmps
or records are no[ kept in the City, or upon reasonabie request made avail-
able in the City, and if the Council shall determine that an examination
• thereof ia necessary or approprinte, then all travel and maintenance ex-
pense neceasarily incurred in making such exami~ation shall be paid by the
grantee. Crantee shall provide to the City Engineer annually a curtent map
indicating the exis[ing diatrict system and location of i[a facilities and
equipment, which map shall be revised and updated at least once each calendar
year.
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8. Tt~e grantee shall prepare and furnish [o the Director of
Public Works and the City Manager ut ttie times and in the form preacribed
by ei[her of said officera, such reports with respect [o its operaGions.
nffairs, transactions or property, as may be reasonably necessary or appro-
priate to the performance of any of [he rights, functions or duties of the
City or any of ita officers in connection with the franchise.
The gruntee shall ut all times maintain at its locnl office for
public inspection a file contuining copiea of all reports required by Federal
Co~mnunications (FCC) Rulea and Regulatione, Part 76, Subpart N(General
Operating Requirements) as the eame now exiat or may hereafter be changed
or amended.
The grantee ahall submit copies of all reports required by Fedcral
Communicationa Conmiission (FCC Rulea and Regulations Part 76, Subpnrt 1 Porma
and Reporta) as the eame now exist or ~ay hereafter be changed or amended
including, but not limited to, FCC Form 325, FCC Form 326, FCC Fortu 326-A
and FCC Form 395. Said documentation must be submitted to the City Manager
concurrent wi[h aubmittal to the PCC, unlesa said requirement ie wuived
from [ime to time by the City Manager.
The grantee shall give formal notice to the City that it has filed
a signal registration atatement or aubsequen[ly required equivalent regis-
tration or application with the Federal Communicatiorts Commission, (FCC).
Within ten (10) calendar days after filing such a statement wi[h the FCC,
tl~e grantee shall file two (2) copies of ite atatemen[ with the City Manager
unlesa said requirement is waived from time to time by the City Manager.
In addition to the filing requirementa of this section, copies
of all petitions, applications, reporta and communications oE all types
submitted by grantee to the Federal Communicationa Commission. Securities
und Exchange Co~nissiort, California Public Utilities Co~nisslon, or any other
Federal or S[a[e regulatory commission or agency having jurisdiction over
any matter affecting operation of grantee's Cable System shall be submitted
simultaneously to the City by delivery to the City Clerk who ahall advise
interested Ci[y departmenta of auch filing,
6.28.180 Operational Standards.
p. System Functional Perforuance Requirements
a. Aa a minimum, the Cnble Syatem permitted to be installed and operated
hereunder shall:
(1) De operationally capable of relnying to all subscriber tecminals
those local "must carry" television and rndio broadcas[ signals for the
carriage of which the grantce ia herenfter authorized by the Federal
Communications Commisaion if auch authorization is required.
(2) Be constructed vith the capacity for two-way, nonvoice return
communication. Any applicant, to operate a system, must include a provision
permitting immediate implementation of the two-aay capabili[y. Such appli-
cant shall include a description of u fcasible plun to implement this capn-
bili[y in the future. The grantee shall provide nonvoice return communication
when the Council so directs or when the same is economically feasible.
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(3) Have a minimum capacity uf thirty-five (35) television channels
and twenty (20) FM channels Co all subscribers, expressly providing to all
subscribers any required convertere, cable selection svitch(es) or otl~er
devices required for [he subscriber to receive all carried standard channels.
(4) Provide at leaet one (1) channel witho~t charge for use as
public accesa channel. As a minimum, [he public access chunnel capabllities
ehull include a timebase corrected videotape playback capability (3/4"-U
casaette or other approved format).
(5) Provide a public information channel for utilization by the
City at its diacretion by a Ciry appointed designee. Thia channel ahull
employ a colorized alphanumeric character generator vith control keyboard
and local dieplay to be located at the direction of the City.
b. Cran[ee shail:
(1) Operate the Cable System authorized by this chnpter twenGy-
four (24) hours per day, seven (7) days per week.
(2) Maintain an office in the service area, ~.+hich office ahall be
open during all the usual businesa houcs, have a local telephone number listed
in [he directories of the Pacific Telephone and Telegraph Company for Cupertino
extended areas, and be so operated that complaints and reques[s for repairs
or service may be received at any time day or night, seven (7) days a week.
c. The cable television system permitted to be inatalled and operated
hereunder may also engage in the businesa of:
(1) Transmitting ariginal cablecast programming no[ received
through television broadcaet signale;
(2} Transmitting television pictures, film and videotape programs
not received [hrough broadcasi televisio~ signals, whether or not encoded
or processed to permit reception hy only selected receivere or eubscribere;
(3) Tsanamitting and receiving all other signals: digital, voice
and video.
d. The grantee ahall provide one (1) subscriber connection.vithout
cost and, as designated by the Council, vhen the system paeses vithin five
hundred (500) feet of the lot line or boundary of any of the following
facilities:
(1) Public schools and co~uni[y colleges within the City.
(2) Buildings owned and controlled by the City used for publlc
purposes and not for residential use (fire and police sta[ione included).
' e. When aervice is ai[hin one thousand (1,000) feet of the lot line
or boundary of City Nall, the grantee shall provide both one subscriber
connection and an orlgination connection capability at said facility.
Said origination capability shall be limited to:
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(1) Installation of a television modulator or equivalent device
capahle of nccepting standard audio and video input signals for trans-
mission puzposes.
(2) The necessary cnble dis[ribution aystem upstream or equlvalent
device cnpable of accepting standard sudio and video input signals for trans-
misalon purposea.
(3) The necessaty systems headend equipment required to distribute
live or recorded programming originating from City tiall to all subecribera.
(4) Any other electronic equipment or eignal transmisaion items
required to permit televising of Cupertino City Council meetinge.
f. In preparing the Cable Syatem design, the grantee ahall reaerve
SMHz of downetream syatem bandwidth and SMNz of upstream system bandsridth
exclusively for the use of the City. Said reaerved syatem spectrum space
~ shall be employed at a time to be determined by the City for data transmiasion
i purposes. As directed by [he City Manager, the grantee shall activate any
upstream transmission capability [o satisfy the City's communications require-
menta in said reserved apectrum apace.
g. It shall be [he policy of the City liberally to amend this
franchise, upon application of the grantee, when necessary to enable the
grantee to take advantage of any developmente in the field of tranamission
of communication signals which vill afford i[ an opportunity more effectively, ,
efficiently, or economicully to serve ita cuatomer; provided, however, that
this section shall not be construed to require the Ci[y to make any amend-
ment or to prohibit it from unilaterally changing its policy stnted herein.
B• Technical performance standards
The Cable Syetem shall be designed, installed, maintained and tested
in accordance with best CATV industry practice and, as a minimum, ahall
conform vith the technical performance atandarda contained herein. In addition,
should the Federal Communications Co~maission (FCC) or other State or Federal
authority havin& jurisdiction impoae legally applicable CATV system technical
perFormance standards either outaide the scope of the technical performance
standards containeJ herein, or requiring a htgher level of Cable System per-
formance, those standarda are hereby incorporated herein by reference.
If, for any reason, [he referenced FCC or other technical standards
shull become reduced in their relative scope or service level, the more
stringen[ standards herein shall remain in effect.
a. Performance of the Cable System as measured at any subacriber
terminal with matched 75 ohm termination shall be as follows:
(1) The frequency boundaries of cable television channels delivered
• to subacriber terminals shall conform to thoae aet forth in FCC 73.603(a)
or subsequent FCC standard.
(2) If no frequency converter is supplied to the subacriber, the
visual carrier frequency shall be maintained 1.25 241zt KNz above the lower
frequency boundury of [he cable [elevision channel. If a frequency converter
is supplied to the subscriber by the cable television system, the following
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requirement shall be applied at the interface betveen Nie converter und the
subacriber's terminal equipment: when the visual carrier at the output of
tt~e converter has been tuned to a frequency 1.25Mklz above [lie lower frequency
boundary of a cable television channel rrith the converter stabilized nt nn
ambient temperature between 20°C and 25°C, the frequency of the viaunl
carrier shall not vary caore and ±250 kHz for a period of at least three (3)
hours, during which period the ambient temperature may vary ±5°C a6out the
initial ambient temperature.
(3) The aural center frequency oE the aurul carrier ehall be
i 4.5 M}lz± 1 kAz above the frequency of the viaual carrier.
(4) The visual signal level acroas a 75 ohm terminating impedance
as viewed from aubecriber terminals shall not be less than 1.000 microvolte
(0 dBmV) at each aubacribers outlet.
(5) The viaual signal level on each channel ehall be maintained
within:
(a) 3 decibels of the visual signal level of any visual
carrier aithin 6 MHz nominal frequency separation, and
(b) 12 decibels of the visual signal level on any other channel,
and
_ (c) A maximum level such that aignal level degradation due
to overload in the subscriber's receiver does not occur, and
(d) 12 decibels over any twenty-four (24) hour period.
(6) Tlie rms voltage of the aurul signal shall be maintained between
13 and 17 decibels below the associated visual signal level.
(7) The peak-to-peak variation in visual signal level caused
by undesired low frequency disturbances (hum or repetitive transients)
generated vithin the system, or by inadeyuate low frequency response, ahall
not exceed two'percent (2X) of the visual signal level.
(8) The amplitude characteristic shall be vithin a range ± 2
declbels from 0.75 MHz to S.0 MHz above the lower boundary frequency of the
cable television channel, referenced to the average of the highest and lowest
amplitudes within these frequency boundaries.
(9) The ratio of visual signal level to syatem noiae shall be
not less than 42 decibels.
(10) The ratio of visual signal level [o any undesired co-channel
television aignal operating on proper offset asaignment ahall be not leas
• than 36 decibels.
(11) The ratio of visual signal level to the rms amplitude of any
cohezent diaturbances such as in[ermodulation products or discrete-Erequency
interfering signals not operating on proper offaet assignments shall no[
be less than 46 decibels.
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(12) T'he terminal ieola[ion provided each subscriUer shall be
not less than 18 decibels but, in any event, shall be sufficient [o prevent
reFlections caused by open-circuited or short-circuited subacriber terminala
from producing visible picture impairments at any other subacriber terminal.
, (13) As an excep[ion [o the generul provision reyuiring measure-
I ments to be mnde at aubscriber terminals, and without regard to the clase
of cable television channel involved, rndiation from a cable television shall
6e measured in accordance ~ith procedures outlined in FCC regulationa,
and shall be limited as followa:
. Radiation Limit Distance
Frequenciea (microvolts/meter) feet
Up [o and including 15 100
54 Mkiz
Over 54 up to and 20 10
including 216 Mtiz
Over 216 MHz 15 100
(14) The Cable System ahall be rated for continuoua twenty-four
(24) hour per day operation.
(15) The FM signal level acroae a 75 ohm terminating impedance
as viewed from subscriher's terminala shall be not leas than 100 microvolts+
(-20dBmV) or greater than the highest permitted channel b aural eignal level.
(16) The FM aignal level on each channel shall be maintained
within:
(a) 3 decibels oE the Ft~i signai level of any FM signal on
an adjacent (up to 400 kHz spacing) channel. and
(b) 6 decibels of the FM signal level of any other FM aignal
carried on [he system.
(17) The Cable System shall, as a minimum, be opera[ional in
full compliance xith the applicable specifications contained herein, over
the radio frequency spectrum from 50 to a[ least 300 lAlz inclusive. Further,
the sys[em shall be designed such that thirty-five (35) channel opera[ion
1s possible from the outset utilizing the 50 to 300 MHz spectrum.
(18) The Cable Syatem shall, as a minimum, be capable of operating
in full compliance with the applicable specifications herein, a return signal
capacity in all portione of the system, over the frequency range of S to 30
MHz inclusive.
(19} The grantee shall, at all times during the term of franchise,
properly install and maintain adequate shielding, filtering and grounding
at affected inatalla[ions wichin the Cable System to eliminate aystem inter-
£erence from local radio/television broadcast stations, co~mnercial, governmen[
and aeronaut3cal radio stations and/or from fundamen[al frequency overload
caused by amateur radio or citizen's radio service transmissions which are
in compliance with [he applicable Federal Communications Commission regu-
lations.
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b. Nonbroadcast signals carried on the Cable Sys[em shall meet the
following minimum baseband requirementa. The ItF modulated signals nsaociated
with these baseband aignals ahall meet all requirementa of aubaection (n)
above.
(1) Overull baseband syatem video frequency reaponae shall be t2
decibela over a DC to 4.2 MHz bandwidth.
(2) Baseband video tilt shall not exceed two percent (2X) as measured
a[ the vertical or horizontal rate.
I
(3) Overall baseband system video signnl-to-noiae ratio shall be
uot less than 42 decibels ovet a DC to 4.2 Mliz bandwidth.
(4) Video synchronizing wave form shull comply with the folloaing
applicable standard (lateat edition or ita equivalent):
(a) 2:1 Interlace monochrome - EIA RS -330.
(b) Full Interlace monochrome - EIA RS -170.
(c) Color - FCC 73.699 Figure 6.
(5) Where applicable, minimum televieion camera (live and film)
performance shall be:
(a) Resolution (luminnnce) - 250 linea center (vertical);
400 lines center, 250 linea corners (horizontal).
(b) Scan 1lnearity - two percent (2X) maximum error (horizontal
and vertical).
(c) Registration (color only) - cwo tenths percent (O.ZZ') in
centered circle of 0.8 picture height; four tenths percent (0.4X) overall.
(d) Video til[ - two percent (2X) maximum, horizontal rate.
(6) Overall audio syatem frequency response shall 6e ±2 decibels
over the frequency range 50 [0 10,000 Hz.
(7} Overnll audio sys[em signal-[o-nolse ratio shail be not less
than 50 decibels over the frequency range 50 to 10,000 Hz.
(8) Overall audio system hnrmonic distortion ahall not exceed
two percen[ (2x) at any frequency range 50 to 10,000 Hz.
c. Any local origination etudio provided by the grantee,shall meet the
, following minimum requirements:
(1) 400 aquare feet (net) apace minimum.
(2) 12-foot ceiling height minimum.
(3) 3200 degree K tungsten halogen professional TV production
lighting system (200 footcandies minimum capabili[y).
- 19 -
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(4) Acoustical noise level under normal studio operating condi[iony
not [o exceed NC 30 (actual).
(5) Adequate air conditioning for studio and control room.
(6) Minimum camplement of production equipment to include the follawing
or approved equivalent:
(a) 1t+o (2) atudio cameras.
(b) At leuat two (2) color vldeo tape recordera with inaett/
~ asaemble editor and capstan servo.
~
(c) At least one (1) digital video time base corrector for
use with the color video tupe recorders during both edi[ing and on-cable
playback.
(d) Video production svitching capability wi[h 1lmited special
effecta.
(e) Video picture and waveform monitoring equipment.
(f) Audio mixing and monitoring capabillty.
d. On the last regular working day of each of the first three (3)
operating quartere of each year, the grantee shall submit to the City Manager
system performance data taken within the previoua seven (7) days. Measure-
ments for eaid datn shall be taken at the same test points selected to satiafy
subaectlon (e} of this section during the last annual syatem performance
test that data has been submitted to the City. Quarterly cest datu shall
be limited [o:
(1) Visaal eignal level fot all channels carried.
(2) Viaual signal-to-noise measurements on one active lowband and
one active highband VHF channel.
(3) Visual hum modulation on one channel or pilot carrier.
Quarterly tests shall be performed on a scheduled basis. A rep-
resentative of the City ahall be permitted to accompnay the grantee during
quar[erly measurement activities. The grantee shall not be permitted [o make
any system adjustments during quarterly measurement activities vlthout noting
such adjustments on the test data form.
e. The grantee ahall, during the last month of the fourth operating
quarter of each year, perform annual Cable System performance testa.
~ (1) Such tests shall be in full compliance with FCC regulations.,
(2) Such testa shall be independently witnessed and che resultant
data analyzed by a repreaentative of the Ci[y if directed by [he City Hanager.
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(3) All necessary teat ins[rumenta[ion shall be suppli.ed by thc
grantee.• A current certificate of calibration by an independent calibration
labocatory shall be supplied for each test ins[rument. All costa for inetru-
mentntion and calibration shall be borne by the grantee.
(4) Measurement locationa for system compliance with aubsecti~n
(a) of [his section, except those requirements regarding [wenty-four (24)
I hour vieual signal ampli[ude and channel amplitude churacteriatlca, ahall
include:
(a) End of each system ma,jor trunk, and
(b), End of each system trunk branch aix (6) or more trunk
amplifiers deep to a maximum of eigh[ (8) locations.
Actual [est locations shall be selected to measure performnnce
oE the system in the frunchise area and ahall be (or as cloaely as poaeible
simulate) actual subscriber locations.
(5) Measurements regarding twenty-four (24) hour visual signal
level and channel amplitude characteris[ic shall be made as required by
the FCC.
(6) Measurements for syatem compliance with subsection (b) of thls
section shall be made vhere practical on all origination equipment employed
in the system.
(7) Meusurement techniques shall be either (i) those suggested
by the PCC (76.609) or (11) those mutually developed by the grantee and the
City and agreed to in vriting prior to system teating. If agreement cannot
be reached, the City shall prescri6e acceptable methoda of ineasurement.
(8) Concurrent vith annual performance tests, the City representa-
tive shall inspec[ all system headend facilities and outside plant for ad-
herence to best industry inatallation, worlananship aad safety practice.
f. The grantee shall maintain the syat~n so it consistently operates
within the substantial compliance of the technical standarda herein; substantial
compliance being defined as ninety-five percent (95X) of the channels
received shall meet all applicable [echnical standards simultaneously at [he
time of ineasurement. Por the purpoae of compliance percentage determination,
[he £!I aignal band shall be considered equal to one televieion channel.
g. SysCem maps and layout. The grantee shall have at all times
up-[o-date route maps of auitable acale ahowing all transmitting and receiving
pickup locations and the location of all amplifiers and trunk and distribution
lines in the Cable System. Linea to individual home and business outlets
, aithin the public right-of-way shall be shorm. Maps ahall be annotuted so
that n failure or malfunction in the [ranamission lines and assorted equip-
ment can be evaluated in tertns of aervice area receiving less than full service.
The scale of the maps shall be sufficient to clenrly ahow details to include
horizontal and vertical dimensions and in no event less than 1 inch = 200 feet.
Crantee shall provide City current copies of said m~pa. At the beginning
oF construc[ion and every six (6) rtronths after, grnntee shall indica[e to
[he City its plans for installation and engineexing durinb the next six (6)
mon[hs.
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i r
All dravings showing underground cable lnstalln[ion shall be certified
as accurute as-built cecorda by the granCee. At any time during the term
of any cable TV franchise [he grantee shall have a designated employee oE
represen[ative available [o respond to inquiries regarding the location of
underground system cabling and to interpret Cnble System drawings as may be
zequired by the City.
h. System construction and equipment standards. The Cable System
shall be installed nnd maintained in accordance with atandard good engineering
practicea and ahall conForm ahen applicable vith the National Electrical
Safety Code; Rulea for Overhend Line Construction (General Order No. 95)
of the California Public Utilities Commission; Rulea for Underground Conatruc-
tion of Linea (Ceneral Order No. 128); the California Administrative Code,
Title 24, Part 3; the City of Cupertino Municipal Code; Federal Comnunicationa
' Co~muission Rules and Regulations Parts 15, 73, 74, 76 and nev parts as they
may apply and ANSI standnrd Y32.21 (lateat edition).
6.28.190 Miacellaneous Provisions.
A. When not otherwise prescribed herein, all mattera herein
required to be filed with the City shall be filed vith the City Clerk.
B. The grantee shall assume [he folloving costs associated vith
gran[ing a franchise and verifying acceptable initial Cable System performance.
1. Costs of publications of this franchise as such publication
is required by law.
2. Costs aseociated r,ith the City employing an independeat
consultant to assist the City in any negotiationa requlred [o grant a
francMse.
3. Costs of an independent engineering firm to review the design,
spot examine [he ins[allation and witness the initial proof of performance
testing of [he system as a verification of the gran[ee's adherence to the
terms and conditions of the franchise. If said proof of perFormance tes[s
show [hat the Cable Television Syatem is significantly below the performance
s[andards outlined in grantee's proposal and elsewhere in this franchiae, the
City shall give notice thereof to grantee and grantee shall have thirty (30)
days to correct said deficiency. If grantee faila to correc[ said deficiency
within this time, the Ci[y may requeat mutually agreed upon independent
engineers to demonstrate, at grantee's cost, the appropriate correction to the
grantee. Grantee shall then have sixty (60) days or other approved reasonable
time required, [o correct the deficiency. If the deficiency still has not
been corrected, the City ahall tfave the option to terminate this franchise
sub,ject to the City's rights, requirements and restrictions regarding the
termination of this franchise atated elsevhere within.
• C. No person, firm or corporation in the existing aervice area
of the grantee ahall be arbitrarily refused service; provided, however, that
the grantee shall not be required to provide service to any subscriber
who does not pay the applicable connection fee or monthly service charge.
The Grantee shail provide free service [o schools, City Hall, and [he Library
provided tha[ such locations are passed by transmission cable maintained for
the service of paying subacribers. An installa[ion charge based on [he
cost of materials, labor, and easemen[s will be charged in [he event [hat
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service to such public buildings requLres the ins[allation of undergra~ind
cable or n service connection cable greater thnn one hundred f~f[y (150)
feet in leng[h.
6.28.200 Use of Utility Poles 6 Facilities: Agreement.
When any portion of the CATV syatem is to be installed on public
utility poles and facilities, certified copies of the agreemente for auch
joint uae of poles and facilitiea ahall be filed with the City Clerk
upon request by City.
6.28.210 Application For Franchise.
I
' A. Application for a franchise hereunder sha12 be in writing,
ahall be filed vith the City Clerk, and ahall contain the following information:
(1) Tha name and address of the applicnnt. If the applicant
is a partnership, the nume and addresa of each partner shall also be aet
for[h. If the applicant is a corporation, the application ahall also state
the names and addresses oE its directors, main offices, major s[ockholders
and aesociates, and the names and addreasea of patent and subsidiary companies.
(2) A sta[ement and description of the CATV aystem proposed
to be construc[ed, installed, maintained or operated by the applicant; the
proposed location of auch system and ita varioua components; the manner
in vhich applicant proposea to construct, install, maintain and operate
the same; and, particularly, the extent and manner in which exiating or future
poles or other facilities of other public utilities Will be ueed for such
system.
(3) A descrip[ion, in detall, of the public streeta, public
places and proposed public streets within which applicant proposes or seeks
authority to construct, install or mnintain uny CATV equipment or facilities
proposed to be constructed~ installed or maintained therein; and the proposed
specific location thereof.
A map specificully showing and delineating the proposed
service area or areas within which applicant propoaes to provide CATV aervicea
and for which a fzanchise is requested.
(5} A statement or schedule in a form approved by the City
Manager of proposed rates and charges to subacribere for installation and
services, and a copy of proposed service agreement between the grantee and
its subaeribers shall accompany the application. For unusual circumstances,
auch as undergroand cable required, or more than one hundred fifty (150}
feet is distance from cnble to connection of aervice to subscribers, an
additional installa[ion charge over that normally charged for installation
as apecified in the applicant's proposal may be charged, with easementa
• to be supplied by subscribers. For remote, relatively inaccessible sub-
scribera within the City, service may be made available on the basis of
coat of materials, labor, and easementa if required by the grantee.
(6) A copy of uny contract, if existing, between the applicant
and any public utility providing for the use of facilities of such public
utility, such as poles, lines, or conduits.
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(7) A statement setting forth all agreenents and un~erstandings,
whethcr writ[en, oral or implied, existing between the applicant and any
person. firm or carpora[ion with respect to thc propoaed franchise or [he
proposed CATV operation. If a franchise is gran[ed to a person, firm or
corporation posing as a front or ae the representative of ttno[her person,
firm or corporation, and such information is not diaclosed in the original
application. such franchise ahall be deemed void and of no force and effect
whatsoever.
(8) A financial s[a[ement prepared by a certified public
accountant, or peraon otherwlse satiafactory to the Council, ehowing appli-
cant's flnancial sta[us and his financial ability to complete the construc-
I tion and inatallation of the propoaed CATV syatem.
(9) The Council may a[ any time demand, und applicant ehall
provide, such supplementary, addi[ional or other information ae the Council
may deem reasonably necessary [o determine whether the requested franchise
should be gran[ed.
B. Upon consideration of any such application, Che Council
may refuse to grant the requested franchise or the Council may by reaolution
gran[ a franchise for a CATV system to any such applicant as may appear from
said applica[ion to be in its opinion best qualified to render proper
and efflcient CATV service to television viewers and subscribers in the
City. The Council's decision in the matter ahall be final. If favorably
considered, the application submit[ed shall conatitute and form part of the
franchiae as granted.
C. Any franchise granted pursuant to this Chapter ahall include
the following condition:
"The CATV system herein franchised shall be used and operated
solely and exclusively for the purpose expresaly authorized by Ordinance
of the City of Cupertino and no other purpose whataoever."
Inclusion of the foregoing sta[ement in any such franchise
shall not be deemed to limi[ the authority of the City to include any other
reasonable condition, limitation or restriction which it may deem neceasary
to impose in connection vith such franchise, purauant to the authority con-
ferred by this Ordinance.
6.28.220 Franchise Renewal. Any franchise granted under this
Ordinnnce is renewable at the application of the grnntee, in the same manner
and upon the same terms and conditions as required herein for obtaining
the original f.ranchise, except those which are by their terms expreasly
inapplicable; provided, however, that the Council may at ita option waive
compliance with any or all of the requirements of Section 6.28.210 hereof.
, 6.28.230 Acceptance and Effective Da[e of Franchise.
A. No franchise granted pursuant to the provisions of this
Ordinance shall become effective unless and un[il the ordinnnce granting
same has become effective and, in addition, unless and un[11 all things
required in this Section and Sections 6.28.140 and 6.28.150 hereoF are done
and completed, all of such [hings being hereby declared [o be conditions
precedent to [he effectiveness of any such franchise Sran[ed hereunder. In
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the event of any of such things are not done and completed in the time and
mznner required, the Council may declare [he franchise null and void.
B. Wi[hin tventy-flve (25) days ?fter [he effective da[e af [he rea-
olution nvarding n franchise, or within auch extended period of time as
the Council in its discretion may authorize, the grantee shall file with
the City Clerk his writ[en accep[ance, in form sntisfactory to the City
Attorney, of the franchisa, together with tlie bond and insurnnce policies
requized by Section 6.28.140 and 6.28.150 hereof, reapectively. and hia
ugreement to be bound by and co comply with and to do all things required of
him by the provisions of this Ordinance and'the franchise. Such acceptance
and agreement ahull be ucknowledged by the grantee before a notary public,
' and sliall in form and content be eatisfactory to and approved by the City
Attorney.
6.28.240 Violations-PenaltY.
A. From and after the effective date of thia Chupter. it ahall
be unlawful for any person to establieh, operate or to carry on the bustness
oE diatributing to any persons in this City any television signals or radio
signals by means oE a CATV syatem unless a franchlae therefor has first
been obtained pursuant to the provisions of this Chapter, and unleea such
franchise is in full force and effect.
B. From and after the effective date of this Chapter, it ahall
be unlawful for any person to construct, install or maintain within any
. public stree[ in the City, or within any other public property of the City,
or within any privately-owned area within the City which has not yet become
u public street but ia designated or delineated as a proposed pubiic atreet
on any tentative subdivision map approved by [he City, any equipment or
facilitiea for distributing any television eignuls or radio signals through
a CATV system, unlesa a franchlse authorizing such use of auch street or
property or area has firat been obtained purauant to the provisiona of this
Chapter, and unleas such frnnchiae is in full force and effect.
C. It ahall be unlaWful for any persona, firm or corporntion
to make any unauthorized connection, whe[her phyaically, electrically,
acoustically, ihductively or otherwise~ with any part of a franchised CATV
system within this City for the purpose of taking or receiving televiaion
signals, radio aignals, pic[ures, programs, ar sound.
D. It ahali be unlawful for any person, firm or corporation to
monitor privaCe co~unica[ions on a cable system leased channel or
to monitor any return direction (upstream) communica[ions without the
written approval of the franchisee and the aseocia[ed subacriber(s).
E. It shall be unlawful for any person, vithout the consent of
the owner, to wilfully tamper with, remave or in~ure any cubles, wires or
equipment used for distribution of television signals, radio signals, picturea,
• programa, or sound.
F. Viola[ions of any proviaion of this Chap[er shall be deemed
nn infraction punishable ~s provided in Chapter 1.12 of this Code.
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6.28.245 Repair service and subscrlber complaints
The operntor shall:
a. Render efficient service. making repaira promptly and interruptiog
service only for good cause and for tlie shorteat time poasible; such inter-
ruptions insofar ps possi6le shull be preceded by notice given to aubscribera
twenty-four (24) houra in advance and shall occur during perioda of minimum
use of the system.
b. Limit eystem failures to minimum time duration by locating and
correcting malfunctions promptly but, in no event, any longer than twenty-
four (24) houre af[er occurrence, if reasonably posaible, irzeapective of
holidays or other nonbusinesa hours. No charge shall be made to the sub-
scriber for this aervice.
c. Establiah procedures for receiving, acting upon and resolving sub-
scriber complain[s to the satisfaction of the City Nanager. The grantee
shall furniah notice of auch procedurea to each subacriber at the time of
' initial subscription to the sys[em.
d. Maintain a retrievable record, or "log" liating date and time oE
customer complaints, identifying the aubacriber and deacribing the nature
of the complaints and when and what action was taken by [he gca~tee in response
[hereto; auch record shall be kept at grnntee's local office, reflecting the
. opera[ions to date for a period of at least three (3) years, and ehall be
available for inspection during regular buainess hours without further notice
or demand by the City Manager.
In the event that a customer complaint is not resolved to the mutual
sutiafac[ion of the customer and the grantee, either the customer or the
grantee may requeat that the matter be presented to the City Manager for
a hearing and resolution.
When there have been'similar complaints made or where there exiats
other evidence which, in the judgment of the City Manager casts doubt on the •
reliability or i7uality of cable service, the City Manager shall have the right
and authority to compel the grantee to test, analyze, and report on the
performance of that part of the syatem involved in the problem. Such test
or teats shall be made and the reporta of such test or testa ahall be
delivered to the City no later than fourteen (14) days after the City Manager
formally makes auch a requeat of the grantee. Such report ahall include
the folloWing information: the nature of the complaint which precipitated
the apecial tests; what ayatem component was [ested; the equipment used and
procedurea employed if complainta vere resolved. Any other information
pertinent to the special teat ehall also be recorded.
The City's rights under thia provision ahall be limited to requiring
. tests, analyses, and reporta covering apeeific aub~ecta and characteristica
based on said complaints or other evidence, when and under such circum-
stancea as the City has reasonable grounde to believe that the complaints
or other evidence require that tests be performed to pro[ect the public against
subs[andard cable service.
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6.28.246 Inadequate service remedies
a. In the event and upon notice to the City that its service to any
group of five (5) or more subacribera aerved by a common diatribution
feed is interrupted for forty-eight (48) or more consecu[ive hours, except
for acta of Cod, acts beyond the con[rol of the grantee, and except in cir-
cumstances for which the prior upproval of the interruption is obtained from
the City Nanager, grantee shall pay a fine to the City as a duly levied
penalty in the amount of Five Hundred Dollars ($500) per day. The City
Manager shall rule to the applicnbility of said penalty with appeal by the
grantee avallnble via the City Council.
b. In the event that the sys[em fails [o meet the requirements of
subatantlal technicul compliance for u full three (3) month period, grantee
~ shall pay a fine to the City as duly levied penalty in the amount of One
Hundred Dollars ($100) per day until u level af substantial compliance
with the technical standarda herein this ordinance is demonatrated by the
gran[ee. The Ci[y Manager ahall notify the grantee during the first month
of [he three (3) month period that the system has failed to meet performance
standards.
6.28.247 Supervision of CATV franchises
a. In order to serve and maintain the City's continuing regulatory
jurisdiction,and supervision over the operation of outstanding CATV franchises,
' the City Manager shall have general supervisory authority over all outstanding
CATV franchiaes, including, without limitation. authority:
(1} To make recommendution to the Council on standards and guide-
lines for the governing of CATV franchises and for amendmenta on thia chapter.
(2) To make written recooonendations to the Council concerning
the disposition of specific applications for [he granting or reneval of CATV
franchises, each such recommendation to be accompanied by a aummary of the
documents and other evidence considered and of the reasons for the recommendation.
(3) To muke written recownendations to the Council on applicationa
for subscriber rate adjustemente according to procedures prescribed herein.
(4~ To resolve subscriber complaints vhich have not been resolved
by otherwise prescri6ed procedurea.
(5) To participate in any duly authorized ci[izene cable communica-
[ions advisory board.
(6) To review and audit all reports and other material required
to be aubmitted to the City by a CATV grantee and all records and other
muterial required to be maintained and kept available by a CATV grantee,
to revieir a CATV grantee's operating rulea and subscriber service contracta.
(7) To conduct, or have conducted, performance evaluations of CATV
systema.
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(8) 1•nltiate investlgattons and ma~ ~propriate recommenda-
[ions to a CATV gran[ee and to the Gouncil as to T(ie gran[ee's performance
undcr [he franchise.
h. The Council hereby delegate~ to the City Manager all neceasary
nnd proper powers to carry out his prescri6ed duties and reaponaibilitics
under this chapter. The City Manager ehall have no powera, dutiea or rca-
poneibilities with respect to the censorship of program cantent, whether
as to off-air broadcast carriage or locally originated programming.
6.28.250 Severab111ty. If any aection, subsection, aentence,
clauae or phrase of this Chap[er is for any renaon held illegal. invalid
or unconatitutional by the decision of any court of competent jurisdiction,
• such decision shall not affect the valldity of the remaining portions
hereof. The Council hereby declares [hat it would have passed this Chapter
and each section, subsection, sentence, ciause, and phrase hereof, irrespective
of the fact thnt any one or more sections, subsections, sentencea, clauses,
or phrases be declared illegal, invalid or unconstitutional. The invalidity
' of any por[ion of thia Chapter ehall not abate, reduce or otherwiae affect
any consideration or other obligation required of the grantee of any franchise
granted hereunder.
6.28.260 Arbitration. In the event that any proviaion of this
Chapter or of any franchise granted hereunder may be held to bz invalid
or unenforceable by a court of competent jurisdiction, the City Council
may find and declaze that such provision constitutea an essentlal considera-
tion material to the gran[ of said franchise. In such event the Ci[y Council
or grantee shall forr~ard to the o[her party a vri[ten request [ha[ substitu[e
or alternative provisions be eatablished in lieu of any provisions thus
invalida[ed. Establishment of said alternative provieiona shail be by binding
arbitration conducted purauant to and governed by the proviaions of the California
Arbitra[ion Act, Sections 1280-1294.2 of the California Code of Civil Pro-
cedure. The alternative proviaion so established shall be binding and con-
clusive on the parties to said franchise, and shall be considered in effect
' and enforceable as though a paz[ Qf Xhe original ordinance or franchise
from the date the original provision was declared invalid.
6.28.070 Existinq Franchiaes. No provision of [hie Ordinance
shall affect the existing rights of franchises under franchises issued prior
to the effective date of this Ordinance by any jurisdiction. Any renewal
of franchises.currently existing within all or any portion of the City of
Cupertino shall be made in compliance vith Section 6.28.210, Chapter 6.28
of the Cupertino Hunicipal Code.
iNTRODUCED at a regular meeting of the City Council this Zna day of
Seotember , 1980, and ENACTED at a reRular meeting of the City
Council this 15th day of September ~ 1980 by the followinq vote:
I
Vo[e Members of the City Council
AYES: P1un8Y, Sparke, Rogers
NOES: None
` ABSENT: Gatto
ABSTAIN: None .
ATTEST: AYPROVED:
~
~ ~ ~ ~ , _
f.T Cv f,lnrk - i „r t~.. „ r•,.,..
~ ~
Vote: Members of the City Council:
~'Ayes: Jackson, 0'Keefe, Rogere, Sparks, Meyers
~voes: None
' Absent: None
~ Abstain: None
ATTEST: APPROVED:
io'u,~C.G p--S,~. ~ l~, w
C y Cler Mayor, C ty o Cupe no
,
,
;
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