Ordinance 2065CITY OF ALAMEDA ORDINANCE NO. 2065
New Series
AN ORDINANCE OF THE CITY OF ALAMEDA RELATING TO
THE CONSTRUCTION, OPERATION, REGULATION AND
CONTROL OF CABLE COMMUNICATIONS SYSTEMS WITHIN
THE CITY'S TERRITORIAL LIMITS AND REPEALING
ORDINANCE NO. 2043 N.S. RELATING TO CABLE COM-
MUNICATIONS SYSTEMS
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ALAMEDA
that:
Section 1 . Short Title This Ordinance shall be known
and may be cited as the "Alameda Cable Communications Ordinance."
Section 2. Definitions Unless it is apparent from
the context that t has a different meaning, each of the following
words and phrases has the meaning herein stated wherever it is
used in this franchise. When not inconsistent with the context,
words used in the plural number include the singular number, and
words in the singular include the plural number.
2.1 APPLICANT: Any person or corporation submitting an
application for a cable communications franchise.
2.2 BASIC SERVICE: That service regularly provided to all
subscribers at a basic monthly rate including, but not limited to,
the retransmission of local and distant broadcast television
signals, non - premium satellite services, automated services,.local
origination and access services.
2.3 CABLE COMMUNICATIONS SYSTEM OR CATV SYSTEM: A system
employing antennae, microwave, wire, wave - guides, coaxial cables,
or other conductors, equipment or facilities, designed, constructed
or used for the purpose of:
2.3.1 collecting and amplifying local and distant
broadcast television or radio signals and distributing
and transmitting them;
2.3.2 transmitting original cablecast programming
not received through television broadcast signals;
2.3.3 transmitting television pictures, film and
video -tape programs, not received through broadcast
television signals, whether or not encoded or processed
to permit reception by only selected receivers;
2.3.4 transmitting and receiving all other signals:
digital, voice, audio - visual, or other forms of electronic
or electrical signals.
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2.4 CHANNEL: A six megahertz (MHz) frequency band, which
is capable of carrying either one standard audio /video television
signal, or a number of audio, digital or other non -video signals.
2.5 CITY: The City of Alameda, a municipal corporation of
the State of California, in its present incorporated form or in
any later reorganized, consolidated enlarged or reincorporated
form as designated by the City Charter.
2.6 CITY COUNCIL: The legislative body of the City of
Alameda.
2.7 CITY MANAGER: The City Manager of the City of Alameda.
2.8 COMMUNITY ACCESS CHANNEL or ACCESS CHANNEL: Any channel
or portion of a channel utilized for programming on a non - profit
basis.
2.9 EDUCATIONAL CHANNEL: Any channel or portion of a
channel on which educational institutions are the only designated
programmers.
2.10 ENTERTAINMENT SERVICES: Television services Provided
on a one -way non - interactive basis including but not limited to
broadcast channels, local origination channels, pay channels or
any other channels supplied to subscribers at a basic or premium
charge where the content of the transmitted signals is uniform to
all subscribers or individual classes of subscribers and program
selection is accomplished by operation of a tuner or converter
under the sole control of the subscriber.
2.11 FEDERAL COMMUNICATIONS COMMISSION or FCC: The present
federal agency of that name as constituted by the Communications
Act of 1934, or any successor agency created by the United States
Congress.
2.12 FRANCHISE or FRANCHISE AGREEMENT: Any authorization
granted hereunder in terms of a franchise, privilege, permit or
license to construct, operate and maintain a cable television
system within the City of Alameda. 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.
2.13 FRANCHISE PROPERTY: All property retained by the
Grantee in, along and across streets under authority of a fran-
chise or business license.
2.14 GOVERNMENT CHANNEL: Means any channel or portion
thereof dedicated to the use of the municipal agencies.
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2.15 GRANTEE: A person or corporation to whom a franchise
or business license is granted by the Council, or any person or
corporation to which it may thereafter be lawfully transferred
and which has filed with the Council an acceptance and bond or
deposit referred to in Sections 3.4 and 12.4 hereof.
2.16 GRANTOR: The City of Alameda acting through its City
Council.
2.17 GROSS REVENUES: Any and all compensation in whatever
form, directly or indirectly received by Grantee, from the source
specified, not including any taxes on services furnished by the
Grantee, which taxes are imposed directly on a subscriber or user
by a City, County, State or other governmental unit, and collected
by the Grantee for such entity.
2.18 INSTITUTION: A building or buildings where service may
be utilized in connection with a business, trade, profession,
public agency or service, school, or non - profit organization.
2.19 INSTITUTIONAL SERVICES: Services delivered on the
institutional subscriber network.
2.20 INSTITUTIONAL NETWORK: A cable communications network
designed principally for the provision of non - entertainment
interactive services to businesses, schools, public agencies or
other non - profit agencies for use in connection with the on -going
operations of such institutions.
2.21 INSTITUTIONAL SUBSCRIBER: A place of business, public
agency, school or non - profit corporation receiving institutional
services on the institutional subscriber network.
2.22 INTERACTIVE SERVICES: Services provided to subscribers
where the subscriber either (a) both receives information consist-
ing of either television or other signals and transmits signals
generated by the subscriber or equipment under his control for the
purpose of selecting what information shall be transmitted to the
subscriber or for any other purpose; or (b) transmits signals to
any other location for any purpose.
2.23 LEASED ACCESS CHANNEL: Any channel or portion of a
channel available for programming for a fee or charge by persons
or entities other than the Grantee.
2.24 LOCAL ORIGINATION CHANNEL: Any channel or portion of
a channel where the Grantee is the only designated programmer,
and which is utilized to provide television programs to subscribers.
2.25 NON BASIC SERVICE: Any communications service in addi-
tion to regular subscriber services including,but not limited to,
access channel carriage including origination programming, pay
television, burglar alarm service, fire alarm service, data
transmission, facsimile service, home shopping service, etc.
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2.26 PAY CHANNEL OR PREMIUM CHANNEL: A channel on which
television signals are delivered to subscribers for a special
charge fee or charge to subscribers over and above the regular
charges for basic subscriber service, on a per program, per
channel, or other subscription basis.
2.27 PERSON or PERSONS: Any corporation, partnership,
proprietorship, individual or organization authorized to do
business in the State of California.
2.28 PREMIUM SERVICE: Pay - per - program, pay - per - channel, or
subscription service, i.e., delivered to subscribers for a fee
or charge over and above the regular charges for basis service.
2.29 PUBLIC ACCESS CHANNEL: Any channel or portion of a
channel where any member of the general public may be a programmer
on a first -come, first - served basis, subject to appropriate rules
formulated by the City and /or franchisee.
2.30 RESIDENTIAL SERVICES: Services delivered on the
residential subscriber network.
2.31 RESIDENTIAL SUBSCRIBER: A subscriber who receives
residential services on the residential subscriber network.
2.32 RESIDENTIAL NETWORK: A cable communications network
designed principally for the delivery of entertainment, community
access or interactive services to individual dwelling units.
2.33 STREETS, PUBLIC WAYS or RIGHT -OF -WAYS: The surface
of and the space above and below any public street, avenue, road,
highway, freeway, boulevard, lane, concourse, driveway, bridge,
tunnel, park, parkway, sidewalk, waterway, dock, pier, alley,
court, right -of -way, public utility easement, or any other public
place, ground or water, now or hereafter existing as such within
the Franchise Area.
2.34 SUBSCRIBER: Any person or institution that elects to
subscribe to'," for any purpose, a service provided by the Grantee
by means of or in connection with the cable communications system
whether or not a fee is paid for such service.
2.35 TAPPING: The observing of a communications signal
exchange where the observer is neither of the communicating
parties, whether the exchange is observed by visual or electronic
means, for any purpose whatsoever.
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Section 3 Franchise Grant
3.1 AUTHORITY TO GRANT FRANCHISES OR BUSINESS LICENSES FOR
CABLE TELEVISION: It shall be unlawful to commence or engage in
the construction, operation or maintenance of a cable communica-
tions system without a franchise issued under this Ordinance.
The City Council may, by ordinance, award a franchise to construct,
operate and maintain a cable communications system within all or
any portion of the City to any person, whether operating under an
existing franchise or not, who makes application for authority to
furnish a cable communications system which complies with the
terms and conditions of this Ordinance. Provided, that this
section shall not be deemed to require the grant of a franchise
to any particular person or to prohibit the City Council from
restricting the number of Grantees should it determine such a
restriction would be in the public interest. Any franchise or
business license for the construction, maintenance and operation
of cable television systems using the public streets, utility
easements, other public rights of way or places shall conform to
the provisions of this Ordinance.
3.2 INCORPORATION BY REFERENCE:
(A) The provisions of this Ordinance shall be incor-
porated by reference in any franchise agreement or license
approved hereunder.
(B) The provisions of any proposal submitted and
accepted by the City shall be incorporated by reference in any
applicable franchise or license.
3.3 NATURE AND EXTENT OF THE GRANT: Any franchise granted
hereunder by the City shall authorize the Grantee, subject to the
provisions herein contained,
(A) To engage in the business of operating and provid-
ing cable communication service and the distribution and sale of
such service to subscribers within the City of Alameda;
(B) To erect, install, construct, repair, replace,
reconstruct, maintain and retain in, on, over, under, upon, across
and along any street, such poles, wires, cable, conductors, ducts,
conduit, vaults, manholes, antennae, amplifiers, and appliances,
attachments, supporting structures, and other property as may be
necessary and appurtenant to the cable communications system; and,
in addition, so to use, operate, and provide similar facilities,
or properties rented or leased from other persons, firms or cor-
porations, including but not limited to any public utility or
other Grantee franchised or permitted to do business in the City
of Alameda.
(C) To maintain and operate said franchise properties
for the origination, collection, transmission, amplification,
distribution and reception of electrical or radiant energy.
Page 5
3.4 DURATION OF GRANT:
(A) A franchise shall be effective on the 31st day
after approval of the franchise agreement or license, provided
that the Grantee has filed, within twenty (20) days after such
effective date, a written instrument, addressed to the Council,
accepting a franchise or license and agreeing to comply with all
of the provisions hereof.
(B) A franchise or license shall expire fifteen (15)
years after acceptance thereof unless sooner terminated by
ordinance.
(C) The City Council may terminate any franchise
granted pursuant to the provisions of this Ordinance in the event
of the willful failure, refusal or neglect by Grantee to do or
comply with any material requirement or limitation contained in
this Ordinance, or any other applicable rule or regulation of
the Council or City Manager validly adopted pursuant to this
Ordinance.
(1) The City Manager may make written demand
that the Grantee comply with any such requirement, limi-
tation, term, condition, rule or regulation. If the
failure, refusal or neglect continues after notice for
an unreasonable period of time, determined as such by the
City Manager, following such written demand, the City
Manager may place his request for termination of the
franchise upon the next regular Council meeting agenda.
The City Manager shall cause to be served upon such
Grantee, at least thirty (30) days prior to the date of
such Council meeting, a written notice of his intent to
request such termination, and the time and place of the
meeting.
(2) The Council shall consider the request of
the City Manager and shall hear any persons 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 Council shall direct
the Grantee to comply within such time and manner and
upon such terms and conditions as are reasonable.
(4) If the Council shall determine such failure,
refusal or neglect by the Grantee was without just cause,
then the Council may, by ordinance, declare that the
franchise with such Grantee shall be terminated and for-
feited, Grantee shall be required to sell all interests,
and title in all of its plant and system operated under
the franchise including any rights under the unexpired
portion of the franchise.
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(D) In the event of termination, the City may purchase,
or require any successor Grantee to purchase, Grantee's facilities
at a cost not to exceed its then fair market value, with a reduc-
tion for uncompensated damages incurred by the City in connection
with Grantee's operation. In order to determine the fair market
value of Grantee's system as specified above, the following pro-
cedure will be followed.
(1) Grantee and the purchaser each shall select
one qualified appraiser experienced in the evaluation of
cable communications systems.
(2) The two selected appraisers shall select
a third appraiser. The three appraisers shall be employed
to determine the fair market value of Grantee's system.
The fair evaluation shall be the average of the three
evaluations of the appraisers. The appraisers shall be
directed to reach their determination within thirty (30)
days. Grantee and the purchaser shall each pay fifty
percent (50 %) of the costs of employing such appraisers.
(3) Upon determination of the fair market
value, and upon payment of such sum by the purchaser,
Grantee shall transfer all rights, titles, and interests
in the subject property to the purchaser within thirty
(30) days.
(4) The term "fair market value" shall not include
the value of the rights granted pursuant to a franchise.
(E) Nothing herein shall be deemed or construed to
impair or affect, in any way or to any extent, the right of the
City to acquire the property of the Grantee through the exercise
of the right of eminent domain, nor any other of the rights of
the City under the franchise or any other provision of law.
(F) In the event of any holding over after expiration
or other termination of any franchise granted hereunder, without
the prior consent of the City, expressed by resolution, the
Grantee shall pay to the City, reasonable compensation and
damages, of not less than one hundred percent (100 %) of its
gross revenue derived from all sources within the City during
said period.
3.5 PURCHASE UPON DURATION OF GRANT
(A) Upon thirty (30) days notice prior to the expiration
of a franchise City may purchase the franchise property by a tender
within ninety (90) days after the expiration of the franchise. Said
notice shall extend the franchise for the tender period.
(B) The compensation shall be determined pursuant to
Section 3.4(D).
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Section 4 Construction of Franchise
4.1 INTERPRETATION: Unless otherwise specifically prescribed
herein the following provisions shall govern the interpretation
and construction of a franchise:
(A) Time is of the essence. The Grantee shall not be
relieved of its obligation to promptly comply with any provision
hereof, or the ordinance granting the franchise, by any failure
of the City to enforce prompt compliance with the same or any
other provision.
(B) Any right or power conferred, or duty imposed upon
any officer, employee, department, or board of the City, is sub-
ject to transfer by operation of law to any other officer, employee,
department or board of the City.
(C) The Grantee shall have no recourse whatsoever
against the City for any loss, costs, expense or damage, arising
out of any provision or requirement of a franchise or the enforce-
ment thereof.
(D) A franchise does not relieve the Grantee of any
requirement of the City Charter or of any ordinance, rule, regula-
tion, or specification of the City, including, but not limited to
any requirement relating to street work, street excavation permits,
or the use, removal or relocation of property in streets.
(E) The granting of a franchise or any of the provisions
contained herein shall not be construed to prevent the City from
granting any identical or similar franchise to any person or
corporation other than the Grantee.
4.2 LIMITATIONS UPON GRANT:
(A) No privilege or exemption is granted or conferred
by a franchise except those specifically prescribed herein.
(B) Any privilege claimed under a franchise by the
Grantee in any street shall be subordinate to any prior lawful
occupancy of the street. The City reserves the right to reason-
ably designate where a Grantee's facilities are to be placed
within the public ways.
(C) A franchise is a privilege to be held in personal
trust by the original Grantee. It cannot in any event be trans-
ferred in part, and it is not to be sold, transferred, leased,
assigned, or disposed of as a whole, either by forced sale,
merger, consolidation, or otherwise, without prior consent of the
City expressed by ordinance, and then only under such conditions
as may be therein Prescribed; provided, however, that no such
consent shall be required for any transfer in trust, mortgage, or
other hypothecation, as a whole, to secure an indebtedness.
Page 8
(D) The Grantee shall at all times comply with all
applicable present and future rules of the Federal Communications
Commission.
(E) A Grantee shall, at all times during the life of
its franchise, be subject to the lawful exercise of the City's
police power and such reasonable regulations as the City Council
may subsequently promulgate thereunder.
(F) Nothing contained in this Ordinance shall be
deemed to prohibit in any way the right of the City to levy
non - discriminatory occupational license taxes on any activity
conducted by Grantee.
(G) Nothing contained in this Ordinance shall be
deemed to prohibit in any way the right of the City to provide,
for consideration, rights or privileges in addition to those set
forth in Section 3.3.
(H) Any franchise granted shall not relieve the
Grantee of any obligations involved in obtaining pole or conduit
space from any department of the City, utility company, or from
others maintaining utilities in the public ways.
(I) Whenever in the judgment of the Grantor it is
deemed impracticable to permit erection of poles or construction
of underground conduit system by any other utility which may at
the time have authority to construct or maintain a conduit or
poles in street area, the Grantor may require the Grantee herein
to afford to such utility the right to use such of the poles or
facilities of the Grantee as the Grantor finds practicable in
common with the Grantee, both parties sharing the costs incident
thereto and under such rules and regulations as they may agree
upon, but in case they fail to agree within a reasonable time,
then upon such terms, conditions and regulations governing the
same as the Grantor may determine to be just and reasonable.
(J) Any franchise granted shall be in lieu of any and
all other conflicting rights, privileges, powers, immunities, and
authorities owned, possessed, controlled, or exercisable by
Grantee, or any successor to any interest of Grantee, of or per-
taining to the construction, operation or maintenance of any
cable communications system in the City; and the acceptance of any
franchise shall operate as between Grantee and the City, as an
abandonment of any and all of such rights, privileges, powers,
immunities, and authorities within the City to the effect that,
as between Grantee and the City, and all construction, operation
and maintenance by any Grantee of any cable communications system
in the City shall be, and shall be deemed and construed in all
instances and respects to be, under and pursuant to said fran-
chise, and not under or pursuant to any other right, privilege,
power, immunity or authority whatsoever.
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(K): No - franchise shall authorize use of any public
property other than public right -of -way and public utility
easements owned by the City, unless such franchise or subsequent
Resolution of the Council expressly authorizes such other public
property.
(L) No franchise granted shall ever be given any value
by any Court or other authority, public or private, in any pro-
ceeding of any nature or character, wherein or whereby the City
shall be a party or affected therein, or thereby.
(M) Grantee shall be subject to all provisions of the
other;' ordinances, rules, regulations, and specifications of the
City heretofore or hereafter adopted, including but not limited to
those pertaining to works and activities in, on, over, under, and
about public right -of- ways.
(N) Any privilege claimed, under any such franchise
granted, in any public right -of -way or other public property shall
be subordinate to the public use and any other lawful use thereof.
(0) Grantee shall be subject to the provisions of
general laws of Alameda County and the State of California or as
hereafter amended, when applicable to the exercise of any privi-
lege contained in any franchise granted pursuant to this Ordinance,
including but not limited to those pertaining to works and acti-
vities in an about State Highways.
(P) Grantee shall be prohibited from directly or
indirectly doing any of the following:
(1) imposing a fee or charge for any service or
repair to subscriber -owned receiving or transmitting devices
except for the connection of its service or for the deter-
mination by Grantee of the quality of signal reception and/
or transmission;
(2) soliciting, referring, or causing or permit-
ting the solicitation or referral of any subscriber to
persons engaged in any business herein prohibited to be
engaged in by Grantee;
(3) providing information concerning the viewing
patterns of identifiable individual subscribers to any
person, group or organization for any purpose.
(Q) If the Federal Communications Commission or the
Public Utilities Commission of the State of California or any
other Federal or State body or agency shall now or hereafter exer-
cise any paramount jurisdiction over the subject matter of any
franchise granted, then to the extent such jurisdiction shall
preempt or preclude the exercise of like jurisdiction by the City,
the jurisdiction of the City shall cease and no longer exist.
Page 10
(R) The preemption or preclusion of the exercise by the
City of any of its police power shall not diminish, impair, or
affect any other contractual benefit to the City of Grantee nor
any other contractual obligation of the Grantee under any franchise
granted.
(S) Any and all minimum standards governing the opera-
tion of Grantee and any and all maximum rates, ratios, and charges
specified in any franchise granted, existing now and at any time
in the future, including such time as any paramount jurisdiction
shall preempt or preclude that of the City, and any and all rights,
powers, privileges, and authorities of the City to determine,
establish, or fix anv of the same, are each and all hereby
declared by the City and by any Grantee accepting any franchise
to be contractual in nature and to be for the benefit of the City.
(T) The form of the Grantee's contract with the sub-
scriber shall also be subject to approval of the City.
(U) It is not necessarily the City's intention to
prohibit the erection or controlled use of individual television
antennaes, and no one is or will be required to receive cable
communications service or connect with a cable communications
system.
(V) Should the Grantee ever fail to pay any sum of
money to the City owing to the City under provisions of this
Ordinance, or the franchise ordinance, when such sum becomes due
and payable, Grantee shall pay interest to the City on the
delinquent sum, until it is fully paid at two (2) interest points
above the prime rate of interest charged in the San Francisco
Bay area as calculated by the City.
(W) A franchise to proceed with construction or opera-
tion of a cable communications system shall not be construed as
any limitation upon the right of the City to grant to other
persons or corporations, rights, privileges or authority similar
to or different from the rights of authority set forth herein or
the franchise document itself, in the same or other street,
alleys, public highways, public places, or other public right -of-
ways by agreement, franchise, permit or otherwise.
(X) Nothing in this Ordinance shall be construed or
prohibit any person from constructing or operating any private
non - commercial satellite receiving station to the extent per-
mitted by City, County, State and Federal law.
4.3 RIGHTS RESERVED TO CITY: There is hereby provided and
reserved to the City every right and power which is required to
be herein reserved or provided by any provision of the Charter of
the City or its ordinances, as amended, and the Grantee by its
acceptance of a franchise agrees to be bound thereby and to comply
with any action or requirement of the City in its exercise of any
such right or power.
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(A) Neither the granting of a franchise nor any provi-
sion hereof shall constitute a waiver or bar to the exercise of
any governmental right or power of the City, including regulation
of subscription rates as permitted by law.
(B) Nothing herein and /or in the franchise shall be
deemed or construed to impair or affect, in any way, to any extent,
the right of the City to acquire the property of the Grantee,
either by purchase or through the exercise of the right of eminent
domain, at a fair and just value, which shall not include any
amount for the franchise itself or for any of the rights or
privileges granted thereby, and nothing herein contained shall be
construed to contract away or to modify or abridge, whether for
a term or in perpetuity, the City's right of eminent domain.
(C) There shall be reserved to the City every right and
power which is required to be reserved or provided by law, and the
Grantee, by its acceptance of the franchise, agrees to be bound
thereby and to comply with any action or agreements of the City
in its exercise of such rights of power, theretofore, or thereafter
enacted or established.
(D) Neither the granting of the franchise nor any pro-
vision thereof shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
(E) The City hereby reserves to itself the right to
intervene in any suit, action, or proceeding involved any provi-
sion of this Ordinance and /or Grantee's franchise. The Council
may do all things which are necessary and convenient in the
exercise of its jurisdiction under this Ordinance and /or Grantee's
franchise, and may determine any question of fact which may arise
during the existence of any franchise granted. The City Manager
and the City Attorney, with the approval of the City Council, are
hereby authorized and empowered to adjust, settle, or compromise
any controversy or charge arising from the operations of any Grantee
under the franchise, either on behalf of the City, the Grantee, or
any subscriber, in the best interest of the public.
(F) The City at its option, when for sufficient cause
as deemed by the City Manager, may require that the annual proof -
of- performance test, addressed in Section 6 of this Ordinance,
be conducted or observed by a qualified member of the City's
staff or its designated representatives. The City reserves the
right to have the measurements, associated with City observed
performance tests, conducted at City selected test points and
to a greater number of test points than the minimum required by
Section 76.601, FCC Rules.
(G) Any delegable right, power, or duty of the Council,
the City or any officials of the City may be transferred or
delegated to an appropriate officer, employee, or department of
the City.
Page 12
(H) Tht City reserves the right to negotiate other
reasonable technical and operational performance standards for
aystem franchises granted pursuant to this Ordinance. Grantee
ahall have the duty to negotiate in good faith with the City.
(I) The City reserves the right to enact reasonable
regulations pertaining to franchise granted pursuant to this
Ordinance which may include, but is not limited to:
(1) construction and use of poles;
(2) use of poles and conduits by City;
(3) common user;
(4) filing of pole user agreement;
(5) reservation of street rights;
(6) restoration of streets;
(7) movement of facilities; and
(8) trimming of trees.
(J) The City reserves the right to further regulate
the conduct of the Grantee in regard to the privacy and property
rights of private citizens. Such regulations may include but are
not limited to the security of all records maintained by the
Grantee containing privacy sensitive information, personnel
practices relating to such records and any other matters related
to privacy and individual rights.
(K) The City reserves the right to establish a cable
communications regulatory and advisory commission to assist the
Council in regulating cable activity in the City of Alameda. The
members and duties of any such commission, if any, shall be
established by the Council.
(L) Should the State of California, or any agency of
the Federal Government or agency thereof subsequently require the
Grantee to act in a manner which is inconsistent with any provi-
sions of this Ordinance, Franchise Ordinance or associated
Resolutions and Orders, the Grantee shall so notify the City.
Upon receipt of such notification, the City shall determine if
a material provision of the franchise is affected. Upon such
determination, the City shall have the right to modify or amend
any of the sections of the franchise to such reasonable extent
as may be necessary to carry out the full intent and purpose of
this Ordinance or the Franchise Ordinance. In the event that
the City determines that substantial and material compliance with
the original proposed terms of the franchise has been frustrated
by such State or Federal requirement, Grantee shall renegotiate
in good faith with City a new franchise agreement. The City
may terminate the franchise in the event that it determines that
no satisfactory new franchise agreement can be reached.
Page 13
(M) No Grantee nor any major stockholder of a Grantee
shall directly or indirectly with the City use the position as
cable Grantee to gain a competitive advantage in the business of
selling, leasing, renting, servicing or repairing radio or tele-
vision sets or other receivers or parts thereof, or data access
and transfer equipment,which make use of entertainment and
information signals, provided that nothing therein shall prevent
Grantee from making modifications to the tuner input circuit of
the subscribers' communications transmitters and /or receivers,
and the fine tuning of the customers' operating controls only, to
ensure proper operation under conditions of cable connection at
the time of installation,or in repairing receivers and other
equipment belonging to other cable system operators for use in
the conduct of their businesses.
(N) The City shall have the right, free of charge, of
installing, maintaining and operating upon antenna towers and
poles, or in underground ducts of the Grantee, antenna, amplifiers,
coaxial cable, wire, fixtures and appurtenances necessary for a
City communication system; provided such equipment is installed,
maintained and operated so as not to interfere with property or
operations of the Grantee, and that the Grantee shall not be
responsible for any damage without his fault resulting to the
signs, wires, cables or property of the City from such use by
the City.
(0) The Grantee shall manage all of its operations in
accordance with a policy of totally open books and records. The
City shall have the right to inspect at any time during normal
business hours, at the local and parent corporation offices of
the Grantee, all books, records, maps, plans, income tax returns,
financial statements, service complaint logs, performance test
results and other like materials of the Grantee which relate to
the operation of the Grantee. Access to the aforementioned
records shall not be denied by the Grantee on the basis that said
records contain "proprietary" information.
(P) Copies of all petitions, applications, communica-
tions, and reports submitted by the Grantee to the Federal Commu-
nications Commission,Securities and Exchange Commission, or any
other Federal and State regulatory commission or agency having
jurisdiction in respect to any matters affecting cable communica-
tions operations authorized pursuant to the franchise, shall also
be submitted simultaneously to the Grantor. Copies of responses
or any other communications from the regulatory agencies to the
Grantee shall likewise be furnished simultaneously to the Grantor.
(Q) Any intra -state interconnection of interactive
services between the system operated by Grantee and any other
system shall be subject to the regulatory authority of the City.
(R) The reservation of any particular right shall not
be construed to limit the promulgation of other reasonable rules
and regulations.
Page 14
Section 5 Franchising Proceedures
5.1 FRANCHISE APPLICATION:
(A) This Ordinance itself grants no authority to
operate a cable communications system to any person(s). Such
grants are only made by the adoption of a separate ordinance
awarding a specific franchise to an applicant who has complied
with the provisions of this Ordinance.
(B) Each application for a franchise to construct,
operate, or maintain any cable communications system(s) in this
City shall be filed with the City Clerk and shall contain ox
be accompanied by the following, as a minimum:
(1) the name, address, and telephone number
of the applicant;
(2) a detailed statement of the corporate or
other business entity organization of the applicant,
including but not limited to, the following and to
whatever extent required by the City.
(i) the names, residence and business
addresses of all officers, directors and associates
of the applicant.
(ii) the names, residence and business
addresses of all officers, persons and entities
having, controlling, or being entitled to have or
control of 1% or more of the ownership of the
applicant and the respective ownership share of
each such person or entity.
(iii) the names and addresses of any parent
or subsidiary of the applicant, namely, any other
business entity owning or controlling applicant in
whole or in part or owned and controlled in whole or
in part by the applicant, and a statement describing
the nature of any such parent or subsidiary business
entity, including but not limited to cable television
systems owned or controlled by the applicant, its
parent and subsidiary and the areas served thereby.
(iv) a detailed description of all previous
experience of the applicant in providing cable tele-
vision communications system sevice and in related
or similar fields.
(v) a detailed and complete financial
statement of the applicant.
(vi) a statement identifying, by place and
date, any and all cable television franchises awarded
to the applicant, or its parent or subsidiary; the
Page 15
status of said franchises with respect to completion
thereof; the total cost of completion of such systems;
and the amount of applicant's and its parent's or
subsidiary's resources committed to the completion
thereof.
(3) a thorough, detailed description of the
proposed cable communications system and plan of operation
of the applicant which shall include, but not be limited
to, the following:
(i) a detailed map indicating all areas
proposed to be served, and a proposed time schedule
for the installation of all equipment necessary to
become operational throughout the entire area to be
served.
(ii) a detailed, informative and referenced
statement describing the actual equipment and opera-
tional standards proposed by the applicant. In no
event shall said operational and performance standards
be less than those adopted by the Rules and Regulations
of the Federal Communications Commission (contained in
Title 47, Subpart R, Sections 76.601 et. seg. 9), and
as augmented herein and modified by the franchise
awarded.
(iii) a detailed estimate of the cost of
constructing the applicant's proposed system.
(iv) a copy of the form of any agreement,
undertaking or other instrument proposed to be entered
into between the applicant and any subscriber.
(v) a detailed statement setting forth in
its entirety any and all agreements and undertakings,
whether formal or informal, written, oral, or implied,
existing or proposed to exist between the applicant
and any person, firm or corporation which materially
relate or pertain to or depend upon the application
and the granting of the franchise.
(vi) a statement or schedule setting forth
all proposed classifications of rates and charges to
be made against subscribers and all rates and charges
as to each of said classifications, including install-
ation charges and service charges.
(4) a copy of any agreement existing between the
applicant and any public utility subject to regulation by
the California Public Utilities Commission providing for
the use of any facilities of the public utility, including
but not limited to poles, lines or conduits, within the City
and /or adjacent areas.
Page 16
t�.) any other aetails, statements, inrormation
or references pertinent to the subject matter of such appli-
cation which shall be required or requested by the Council,
or by any provision of any other ordinance of the City.
(6) an application fee in a sum to be set by the
City which shall be in the form of cash, certified or
cashier's check, money order, to pay the costs of studying,
investigating, and otherwise processing such application,
and which shall be in consideration thereof and not returnable
or refundable in whole or in part, except to the extent that
such fee exceeds the actual costs incurred by the City in
studying, investigating and otherwise processing the applica-
tion; provided, that any applicant who shall deliver to the
City Recorder a written withdrawal of or cancellation of any
application following the day such application is received
by the City Recorder, shall be entitled to have returned and
refunded the sum of 50% of the fee less any actual costs or
expenses incurred by the City by reason of such applications.
(C) The Council may, by advertisement or otherwise,
solicit for any other applications for cable communications system
franchises, and may determine and fix any date upon or after which
the same shall be received by the City, or the date before which
the same shall not be received, and may make any other determina-
tions and specify any other times, terms, conditions or limitations
respecting the soliciting, calling for, making and receiving of
such applications.
(D) Upon receipt of any application for franchise, the
Council shall refer the same to the City Manager or Cable Advisory
Committee, if such exists, who shall prepare a report and make
recommendations respecting such application, and cause the same to
be completed and filed with the Council within one hundred and
twenty (120 days.
(E) In making any determinations hereunder as to any
application the Council shall give due consideration to the
character and quality of the service proposed, rates to sub -
scriber,income to the City, experience, character, background,
and financial responsibility of any applicant, and its management
and owners, technical and performance quality of equipment,
willingness and ability to meet construction and physical require-
ments, and to abide by policy conditions, franchise limitations
and requirements, and any other consideration deemed pertinent
by the Council for safeguarding the interest of the City and the
public. The Council, in its discretion, shall determine the
award of any franchise on the basis of such considerations and
without competitive bidding.
(F) If the Council, after public hearing, shall
determine to reject such application, such determination shall
be final and conclusive, and the same shall be deemed rejected.
Page 17
(G) If the Council shall determine to further consider
the application, the following shall be done:
(1) the Council shall decide and specify the
terms and conditions of any franchise to be granted
hereunder and as herein provided.
(2) the Council shall give notice of its
intention to consider the granting of such a franchise,
stating the name of the proposed Grantee, and that
copies of the proposed franchise may be obtained at the
office of the City Recorder, fixing and setting forth a
time and public place certain when and where interested
parties may inspect all the bona fide applications,
fixing and setting forth a day, hour, and place certain
when and where any persons having any interest therein
or objection to the granting thereof may file written
protests and appear before the Council and be heard,
and directing the City Recorder to publish notice of
said resolution's adoption at least once within ten (10)
days of the passage thereof in a newspaper of general
circulation within the City.
(H) At the time set for the hearing, or at any adjourn-
ment thereof, the Council shall proceed to hear all written
protests. Thereafter, the Council shall make one of the following
determinations:
(1) that such franchise be denied; or
(2) that such franchise be granted upon such
conditions as the Council deems appropriate, which
conditions may include, on a not to exceed basis, where
in accordance with appliable FCC regulations and State
laws:
(i) charges for installation;
(ii) subscriber rates;
(iii) service rates for separate classifi-
cations of service such as additional connections.
(I) If the Council shall determine that a franchise
be denied, such determination shall be expressed by Resolution;
if the Council shall determine that franchise be granted, such
determination shall be expressed by Ordinance granting a franchise
to the applicant. The action of the Council shall be final and
conclusive.
(J) The Grantee shall pay to the City a sum of money
sufficient to reimburse it for all expenses incurred by the pro-
visions of this Ordinance, beyond those defrayed by application
fees. Such payment shall be made within thirty (30) days after
the City furnishes the Grantee with a written statement of such
expenses.
Page 18
5.2 REPLACEMENT FRANCHISE:
(A) The service provided by the Grantee under a
franchise may be required to continue uninterrupted beyond the
expiration or cancellation of a franchise. To assure continued
service to the subscribers, application for a replacement fran-
chise shall be submitted at least twelve (12) months prior to
the expiration date thereof. If the Grantee fails to make said
application, the City may commence procedures for the issuance
of another franchise(s).
(B) Any franchise may be renewed for a term not to
exceed fifteen (15) years, at any time prior to the expiration
of the same. An application therefore shall be submitted to the
City Manager containing the following information:
(1) the information required pursuant to
Section 5 (B) (1) and (2) hereof;
(2) a map of the area proposed to be included
in the franchise service area;
(3) a schedule of rates and charges proposed;
(4) a narrative and /or pictorial description
of the facilities in place, and a narrative description
of proposed additions and /or replacements thereto, if any.
(C) Upon receipt of such an application the City Manager,
or Cable Advisory Committee, if such exists, shall review the same
and forward to the City Council a report containing the recommen-
dation as to whether the renewal franchise should be granted or not.
Upon receipt of such a report, the City Council shall conduct a
public hearing, noticed as is provided in Subsection 5.1 (G) (2)
hereof. At the time of such hearing, or continuance thereof, the
City Council shall, based upon the application, report, and rele-
vant evidence received, determine whether the public interest,
convenience and necessity require the issuance of such franchise.
If the City Council determines to deny the application for renewal,
it shall do so by Resolution. If it determines that the said
franchise should be granted, if shall do so in the manner provided
in Subsection 5.1 (H) (2) hereof. In the event of non - renewal
or termination of a franchise, the City may purchase, or require
any successor Grantee to purchase, Grantee's facilities at a cost
not to exceed its then fair market value, with a reduction for any
uncompensated damages incurred by the City in connection with the
Grantee's operation. If such fair market value cannot be agreed
upon by the parties, it shall be determined by a three - member
Arbitration Panel, in accordance with the arbitration process
specified in Subsection 3.4 (D) of this Ordinance. The parties
shall divide expenses of arbitration evenly among themselves.
Page 19
5.3 FRANCHISE ACCEPTANCE:
(A) No franchise granted under this Ordinance shall
become effective for any purpose unless and until written
acceptance thereof shall have been filed with the City Recorder.
Written acceptance, which shall be in the form and substance
approved by the City Attorney, shall also be and operate as an
acceptance of each and every term and condition and limitation
contained in this Ordinance, and in such franchise, or otherwise
specified as herein and therein provided.
(B) The written acceptance shall be filed by the
Grantee within twenty (20) days after the effective date of the
ordinance granting such franchise, in the event this day falls
on a non - working day, then the next business day will suffice.
(C) In default of the filing of such written acceptance
as herein required, the Grantee shall be deemed to have rejected
and repudiated the franchise. Thereafter, the acceptance of the
Grantee shall not be received nor filed by the City Recorder.
The Grantee shall have no rights, remedies, or redress in the
premises, unless and until the Council, by Resolution, shall
determine that such acceptance be received or filed, and then
upon such terms and conditions as the Council may impose.
(D) In any case, and in any instance, all rights,
remedies and redress in these premises which may or shall be
available to the City, shall at all times be available to the
City, and shall be preserved and maintained and shall continuously
exist in and to the City, and shall not be in any manner or means
modified, abridged, altered, restricted, or impaired by reason
of any of these premises, or otherwise.
(E) Any franchise granted and accepted under this
Ordinance shall be in lieu of any and all other conflicting
rights, privileges, powers, immunities, and authorities owned,
possessed, controlled, or exercisable by the Grantee, of or
pertaining to the construction, operation, or maintenance of
any cable communications system(s) in the City.
5.4 FRANCHISE TRANSFER OR ASSIGNMENT:
(A) Any such franchise shall be a privilege to be
held in personal trust by the Grantee. The franchise shall not
be sublet or assigned, nor shall any of the rights or privileges
therein granted or authorized be leased, assigned, mortgaged,
sold, transferred, or disposed of, either in whole or in part,
either by forced or involuntary sale, or by voluntary sale, mer-
ger, consolidation or otherwise, nor shall title thereto, either
legal or equitable, or any right, interest or property therein,
pass to or vest in any person(s), except the Grantee, either by
act of the Grantee or by operation of law, without the consent
of the City expressed by Ordinance.
Page 20
(B) The Grantee shall promptly notify the City of any
proposed change in, or transfer of, or acquisition by, any other
party of control of the Grantee with respect to which the consent
of the Grantor is required, pursuant to Subsection 5.4 (A) above.
Such change of control shall make this franchise subject to revoca-
tion unless and until the City Council shall have consented thereto.
(C) Consent of the City Council shall not be granted
until it has examined the proposed assignee's legal, financial,
technical, character and other qualifications to construct,
operate and maintain a cable communications system in the City
and has afforded all interested parties notice and an opportunity
to be heard on the question. The Grantee shall assist the City
in any such examination.
(D) The said consent of the Council may not be unrea-
sonably refused; provided,however, the proposed assignee must
show financial responsibility as determined by the Council and
must agree to comply with all provisions of the franchise and of
this Ordinance; and provided, further, that no such consent shall
be required for a transfer in trust, mortgage, or other hypothe-
cation, in whole or in part, to secure an indebtedness, except
that when such hypothecation shall exceed 50% of the market value
of the property used by the Grantee in the conduct of the cable
communications system, prior consent of the Council shall be
required for such a transfer. Such consent shall not be withheld
unreasonably.
(E) In the event that Grantee is a corporation, prior
approval of the City Council, shall be required where 'there is an
actual change in control or where ownership of more than 50% of
the voting stock of Grantee is acquired by a person or group of
persons acting in concert, none of whom already own 50% or more
of the voting stock, singly or collectively. Any such acquisition
occurring without prior approval of the City Council shall con-
stitute a failure to comply with a provision of this Ordinance
within the meaning of Subsection 3.4 (C).
(F) Any such transfer or assignment shall be made
only by an instrument in writing, which shall include an accep-
tance of all terms and conditions of the franchise by transfer
of a duly executed copy of which shall be filed with the City
Recorder within 30 days after any such transfer or assignment.
Page 21
Section 6 Systems Design, Construction and Technical
Performance Standards
(A) Standards of cable communications system(s) con-
struction, safety, and operation will meet, but not limited to,
the following referenced specifications, unless exception is
agreed upon between the City and the Grantee.
(1) applicable City, County, State and National/
Federal codes and ordinances as they apply to the construc-
tion of buildings, tower structures, and cable system
installation;
(2) applicable utility joint attachment practices;
(3) National Electrical Safety Code, NFPA No. 70;
(4) local utility code requirements;
(5) local right -of -way procedures.
(B) The overall system(s) will be designed and con-
structed to meet all FCC technical performance specifications and
standards over a temperature range of 1 50 degrees F from the mean
temperature of the Alameda area, and to function throughout all
environmental extremes expected.
(C) The forward portion of any cable communications
system shall be capable of initial activation of a minimum carriage
of 54 Class I television channels, the full FM broadcast band, and
Pilot Carriers or other such auxiliary signals as required for
system control.
(D) The combined forward trunk and distribution system
will deliver signals to each and every subscriber's receiver that
will meet or exceed the franchise ordinance specifications at the
mean system temperature ± 50 degrees F, unless otherwise indicated.
This shall include the effects of drop cables, interior splits,
and any terminal equipment such as descramblers and set top
converters.
(E) The reverse portion of the residential system shall
be capable of initial activation of a minimum of 5 to 30 MHz in
bandwidth, with return signals from each subscriber and institu-
tional (including all schools) signal source to the extreme end
of any area in compliance with the specifications set forth in the
franchise ordinance.
(1) where applicable, the end of the system
specifications shall include the effects of any signal
reprocessing equipment necessary to achieve forward
transmission.
Page 22
(2) for Class I signals, the signal delivered
to the subscribers' TV receiver, after being transmitted
to the headend, processed and retransmitted down a forward
channel shall meet the specifications of the franchise
ordinance.
(F) All cable communications systems authorized to be
constructed and operated pursuant to this Ordinance, shall be,
insofar as financially and technically feasible, be compatible one
with another. Signal specifications compliance determination for
forward, and /or institutional channels interchanged between other
cable communication systems and a Grantee's system are to be
determined by applying the combined contribution of distortion of
all pertinent components of the worst case (temperature and
location) signal path. The combined contribution shall meet or
exceed the specified technical specifications at the termination
of the worst case signal path the channel could encounter. At
the interconnect point the party delivering a channel or channels
will provide signals, transported either in the forward or reverse
system to the interconnect point, that meet or exceed the fran-
chise ordinance specifications at the mean system temperature
i 50 degrees F. The signals are to be in compliance as stated at
a point which best represents the most direct signal path between
the party providing the signal and the party receiving the signal.
Only one such interconnect point is to be specified for all signal
exchanges.
(G) A comprehensive routine preventative maintenance
program shall be developed, effected and maintained for each
system by the respective Grantee to ensure continued top quality
cable communications operating standards in consonance with FCC
Part 76 and the technical specifications stipulated in the fran-
chise ordinance.
(H) No newly constructed system services shall be
offered for sale prior to proof -of- performance testing in accord-
ance with FCC Part 76.601 and technical specifications and
standards listed in the Franchise Agreement: This initial proof -
of- performance testing, and annual proof -of- performance testing,
may be conducted by the City, or its designated representative,
at the City's option, when for sufficient cause as deemed by the
Council, or its designated representative. The City reserves
the right to have the measurements, associated with City observed
performance tests, conducted at City selected test points and to
a greater number of test points than the minimum required by
Sub -Part 76.601, FCC Rules. Additionally, the Grantee shall
reimburse the City for all expenses incurred by it in connection
with the City conducting or observing the annual performance
tests, when the results of those tests are deemed by the City to
fall below a 90% level of compliance with the technical standards
set forth in FCC Part 76 and in the Franchise Agreement.
Page 23
(I) Grantee's proof -of- performance testing procedures
must be approved by the City for implementation prior to the
initial proof -of- performance testing addressed in Paragraph (H)
immediately above. The results of proof -of- performance tests
shall be retained for at least 5 years and available for inspec-
tion by the City.
(J) All system antennaes and mounts shall be designed,
installed and constructed to withstand 100 MPH winds.
(K) All underground cable should be flooded and be
armour -clad cable and /or installed in conduit unless specifically
exempted by the City Director of Public Works, on a case by case
basis.
(L) Residential and institutional drop cables should
be a double shielded type and fitted with sealed hex crimp ring
high integrity connectors.
(M) Polyethelene jacketed cable should be used in any
and all areas of the plant where airborne heavy chemical particles
can be expected.
(N) Grantee's corrective maintenance program shall
render efficient corrective service, make repairs promptly, and
interrupt service only for good cause and for the shortest time
possible. Such interruptions shall be proceeded by notice and
shall occur during a period of minimum use of the system. A
written log shall be maintained of all service interruptions.
The log shall reflect the date, time, duration, and reason for
each service interruption. The record of the log shall be kept
on file for a minimum of three years.
Page 24
Section 7 Street Work, Permits and Construction
7.1 PERMITS:
(A) Within thirty (30) days after acceptance of fran-
chise, the Grantee shall proceed with due diligence to obtain
all necessary permits and authorizations which are required in
the conduct of its business, including, but not limited to, any
utility joint use attachment agreements, encroachment permits,
micro -wave carrier licenses, and any other permits, licenses and
authorizations to be granted by duly constituted regulatory agencies
having jurisdiction over the operation of cable television/
communications systems, or associated micro -wave transmission
facilities.
(B) In connection with Subsection 7.1 (A) above,
copies of all petitions, applications and communications sub-
mitted by the Grantee to the Federal Communications Commission,
Securities and Exchanges Commission, or any other Federal or
State regulatory commission or agency having jurisdiction in
respect to any matters affecting Grantee's cable communications
operations, shall also be submitted simultaneously to the City
Manager.
7.2 GENERAL CONSTRUCTION:
(A) Within sixty (60) days after obtaining all
necessary permits, licenses and authorizations, including right
of access to poles and conduits, Grantee shall commence construc-
tion and installation of the cable communications system.
(B) Within one hundred eighty (180) days after the
commencement of construction and installation of the system,
Grantee shall proceed to render service to subscribers, and the
completion of the installation and construction shall be pursued
with reasonable diligence thereafter, so that service to all of
the areas designated and scheduled on the map and plan of con-
struction made part of the franchise shall be provided as set
forth therein.
(C) Failure on the part of the Grantee to commence
and diligently pursue each of the foregoing requirements and to
complete each of the matters set forth herein, shall be grounds
for termination of such franchise, By Resolution and Order,
the Council, in its discretion, may extend the time for the
commencement and completion of installation and construction for
additional periods in the event the Grantee, acting in good
faith, experiences delays by reason of circumstances beyond his
control.
(D) The City shall have the right, free of charge, to
make additional use, for any public or municipaL purpose, whether
governmental or proprietory, of any poles, conduits, or other
similar facilities erected, controlled, or maintained exclusively
by or for Grantee in any street, provided such ase by City does
not interfere with the use by Grantee.
Page 25
(E) Grantee shall utilize existing poles, conduits,
and other facilities whenever possible, and shall not construct
or install any new, different, or additional poles, conduits, or
other facilities whether on public property or on privately -
owned property unless and until first securing the written
approval of the City Director of Public Works.
(F) In all sections of the City where wires, cables
and other system appurtenances are mounted above ground, every
reasonable effort shall be made to minimize obstruction of the
view of residents, and every reasonable effort shall be made to
preclude an unsightly system installation.
7.3 UNDERGROUND FACILITIES:
(A) Unless otherwise authorized by the Council, in
those areas and portions of the City where the transmission and /or
distribution facilities of the public utility providing telephone
service, and those of the utility providing electric service, are
underground or hereafter may be placed underground, or are to be
placed underground by a builder, developer or subdivider as part
of a development or subdivision, then the Grantee shall likewise
construct, operate and maintain all of its transmission and
distribution facilities underground to the maximum extent that
existing technology reasonably permits the Grantee to do so.
(B) In new developments or subdivisions the builder,
developer or subdivider shall be responsible for the performance
of all necessary trenching and backfilling of main line and
service trenches, including furnishing of any imported backfill
material required. The Grantee will be responsible for the
conduct of the engineering and labor to put the cable conduit in
the trench. All conduit so installed shall become the property
of the City, and Grantee shall execute an instrument of convey-
ance to the City. Pre- wiring of new dwellings while under con-
struction shall be mandatory. The Grantee will be responsible
for pulling in the cable, and providing the plant electronics
and drops to individual homes, after occupancy.
(C) In those areas and portions of the City hereto-
fore designated by the City as local improvement districts and
where utility service facilities are currently located under-
ground, the Grantee shall be responsible for the undergrounding
of cable facilities including the performance of all necessary
trenching and backfilling of main line and service trenches,
and the furnishing of any imported backfill material required.
(D) Previously installed aerial cable shall be under -
grounded in concert, and on a.cost- sharing basis, with other
utilities pursuant to the general ordinances of the City or
applicable State law, or in the event such action shall be taken
by all other utilities on a voluntary basis.
Page 26
(E) Subject to approvalloy the council, inciaental
appurtenances such as amplifier boxes and pedestal mounted
terminal boxes may be placed above ground, but shall be of such
size and design and shall be so located as not to be unsightly
or hazardous to the public.
7.4 SYSTEM EXTENSION:
(A) Grantee shall extend residential and institutional
(the latter as required by City) service into every new subdivi-
sion and /or development and /or newly incorporated /annexed area.
Those new areas having more dwelling units per strand mile of
plant than the number stipulated in the franchise ordinance, shall
receive residential service for the normal installation fee.
The capacity to provide cable communications service shall be
available to newly constructed structures on the date of first
occupancy. Actual installation of service may be delayed up to
60 days from first occupancy or until after final grading,
whichever is first. In those areas where the number of dwelling
units per strand mile is less than the number stipulated in the
franchise ordinance. Grantee will provide residential cable
service on a pro -rata sharing of the installation costs with the
potential subscriber(s). Grantee will bear its pro -rata share
of the then current mile of plant construction cost based on a
multiple of the actual number of potential subscribers per mile
divided by the number of dwellings per mile stipulated in the
franchise ordinance.
(B) The remaining construction cost will be borne on
a pro -rated basis by each applicant committing to service within
the extension area. Mileage will be measured from the nearest
point on the nearest trunk line. Example: If it requires one
mile of plant extension at $10,000 per mile of construction to
serve twenty potential subscribers, and if the franchise
stipulated dwellings per mile were 24, Grantee would pay $10,000
x 20 . 24, or $8,333, as its share of the extension cost. The
remaining $1,667 cost would be divided equally among the twenty
potential subscribers or each would pay a $84 installation fee
assuming all twenty become subscribers. The above formula applies
to individual installation distances, as stipulated in the fran-
chise ordinance, or less. For distances in excess of the
stipulated distance, there may be an additional charge for that
distance in excess.
7.5 CONDITIONS ON STREET OCCUPANCY:
(A) Any pavements, sidewalks, curbing or other paved
area taken up or any excavations made by a Grantee shall be done
under permits issued for the work by the proper officials of
the City, and under their supervision and direction, and shall
be done in such manner as to give the least inconvenience to the
inhabitants of the City. A Grantee shall, at its own cost and
expense, and in a manner approved by the proper City officials,
replace and restore any such payments, sidewalks, curbing or
Page 27
otner paved areas in as good a condition as before the work
involving such disturbance was done, and shall also make and
keep full and complete plats, maps and records showing the exact
locations of its facilities located within the public streets,
ways and easements of the City. These maps shall be available
for inspection at any time during business hours by City
officials.
(B) A Grantee shall, on the request of any person
holding a building moving permit issued by the City, temporarily
raise or lower its wires to permit the moving of buildings. The
expense of such temporary removal or raising or lowering of
wires shall be paid by the person requesting same, and the
Grantee shall have the authority to require such payment in
advance. The Grantee shall be given not less than 48 hours'
advance notice to arrange for such temporary wire changes.
(C) A Grantee shall have authority to trim the trees
upon and overhanging the public streets so as to prevent the
branches of such trees from coming in contact with the wires and
cables of the Grantee, under the same rules and regulations
applied to public utilities within the City, except that, at the
option of the Council, such trimming may be done by it or under
its supervision and direction at the expense of the Grantee.
7.6 STREET WORK:
(A) Upon any failure of the Grantee to commence, pursue
or complete any work required by it by law or by the provisions
of a franchise to be done in any street, the Council, at its
option and according to law, may cause such work to be done and
the Grantee shall pay to the City the cost thereof in the itemized
amounts reported by the Council to the Grantee, within thirty (30)
days after receipt of such itemized report.
(B) In the event that:
(1) any part of such system has been installed
in any street or other area without complying with the
requirements hereof and /or the franchise ordinance; or
(2) the use of any part of the system of Grantee
is discontinued for any reason for a continuous period of
thirty (30) days, without prior written notice to and
approval by the City; or
(3) any franchise shall be terminated, can-
celled or shall expire, then the Grantee shall, at the
option of the City, and at the expense of Grantee and at
no expense to the City, and upon demand of the City,
promptly remove from any streets or other area all property
of Grantee, and Grantee shall promptly restore the street
or other area from which such property has been removed
to such condition as the City Director of Public Works
shall approve.
Page 28
7.7 CHANGES REQUIRED BY PUBLIC IMPROVEMENT:
The Grantee at his expense shall protect, support,
temporarily disconnect, relocate, or remove any property of
Grantee when required by the Council by reason of traffic con-
ditions, public safety, street vacation, freeway or street
construction; change or establishment of street grade, installa-
tion of sewers, drains, waterpipes, power line, signal line,
transportation facilities, tracks, or any other types of
structure or improvements by governmental agencies whether
acting in a governmental or proprietary capacity, or any other
structure of public improvement, including but not limited to
movement of buildings, urban renewal and redevelopment, and any
general program under which the City shall undertake to cause
all such properties to be located beneath the surface of the
ground; provided that Grantee shall in all cases have the
privileges and be under the obligations as to the abandonment
of franchise property in place which are provided in Section 7.8
hereof.
7.8 REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY:
(A) In the event the use of any franchise property is
permanently discontinued, or no franchise has been obtained
therefore, upon expiration of or within 12 months after any
termination of a franchise, the Grantee shall promptly remove
from the streets all property involved, other than any the Council
may,at its sole option, permit to be abandoned in place.
(B) A permit to abandon in place must first be obtained
from the City Director of Public Works, Nothing hereunder shall
be deemed a taking of the property of Grantee, and Grantee shall
be entitled to no surcharge by reason of anything hereunder.
(C) Franchise property to be abandoned in place shall
be abandoned in such manner as the Council shall prescribe.
Upon abandonment of any franchise property in place, the Grantee
shall submit to the Council an instrument, satisfactory to the
City Attorney, transferring to the City the ownership of such
property.
7.9 EXISTING CONDUIT:
(A) Grantee shall purchase the few miles of conduit
and appurtenances as presently exist under the Bay Farm Island
streets suitable and available for Grantee's cable television
purposes. Said conduit and appurtenances shall at such time
become the property of the City and Grantee shall execute an
instrument of conveyance to the City.
(B) Grantee shall not be required to pay more for any
purchase under Subsection (A) immediately above, than the sub -
divider's construction cost plus the legal rate of interest.
Page 29
(C) In the event Grantee is precluded by non - financial
circumstances beyond its control from the purchase(s) required
by Subsection (A) above, Grantee shall lease existing conduit,
at reasonable rates. If that is also not possible, Grantee may
install its own underground cable and conduit.
(D) City will lease back to Grantee all cable conveyed
to it by Grantee for a sum agreed upon and prescribed by the
franchise agreement. Such payment shall be in addition to pay-
ment under Section 12.1 hereof.
7.10 CITY ASSISTANCE: Grantee may employ the services of
Grantor, or its agencies, in the construction, maintenance or
administration of the facilities established hereunder. Con-
tracts for such services shall include overhead costs.
Page 30
Section 8 System Maintenance
Throughout the life of a Grantee's franchise, and in
addition to other service regulations adopted by the Council,
and excepting circumstances beyond Grantee's control, such as
Acts of God, riots and civil disturbances, and in providing the
fore -going services, a Grantee shall:
(A) Maintain all parts of its system in good condition
and in accordance with standards generally observed by the cable
television industry. The system must serve individual residents,
but also serve as a broad based communications source for City
Government, other public facilities including hospitals, public
libraries, and schools, industrial and commercial business users.
(B) Retain sufficient employees to provide safe,
adequate and prompt service for all such residential subscribers,
institutional facilities and business users.
(C) Limit system failures to minimum time duration
by locating and correcting malfunctioning as promptly as is
reasonably possible, irrespective of holidays or other non -
business hours.
Page 31
Section 9 Safety Requirements
A Grantee shall_ at all times:
(A) Install and maintain its wires, cables, fixtures
and other equipment in accordance with the requirements of the
City Building Code and Electrical Safety Ordinances, and in
such manner that they will not interfere with any installations
of the City.
(B) Keep and maintain in a safe, suitable, substantial
condition, and in good order and repair, all its structures,
lines, equipment, and connections in, over, under, and upon the
streets, sidewalks, alleys, and public ways or places of the
City wherever situated or located.
Page 32
Section IU operation ana service
10.1 SERVICE AREA: Grantee's system design and construc-
tion shall be such that service shall be made available to all
residential units within the Grantee's service area, as defined
in the franchise, for the normal installation fee, with the
exception that in those locations where the dwelling units per
strand mile of system plant are less than the dwellings per
mile figure stipulated in the franchise ordinance, Grantee shall
provide cable service on a pro -rata sharing of the installation
costs with the potential subscribers. The pro -rata sharing of
those costs will be in accordance with the formulation set forth
in Section 7.4 hereof.
10.2 ESTABLISHMENT OF SERVICE: Subject to such regula-
tions as may be adopted by the Council, the Grantee shall install
cable television service to all persons making a timely and
bona fide request for such service at any location within the
service area.
After the Grantee shall have established service
pursuant to a franchise in any area of the City, such service
shall not be suspended or abandoned unless such suspension or
abandonment be authorized or ordered by the Council.
10.3 BASIC SERVICE: A cable communications system, to be
installed and operated pursuant to this Ordinance and a franchise
granted hereunder shall:
(A) Be operationally capable of relaying to subscriber
terminals those television and radio broadcast signals for the
carriage of what the Grantee is now or therafter,authorized by
the Federal Communications Commission; and
(B) Distribute color television signals which it
received in color; and
(C) Provide, as a minimum, channel capacity and basic
equipment for program production in cablecasting for educational,
public, and government access uses.
(D) Have a minimum capacity of 54 downstream video
channels.
(E) Have two -way (bidirectional) activated capacity
upon initial activation of system, or at such time as may be
extended by the Council.
10.4 NON -BASIC SERVICE: The cable communications system
permitted to be installed and operated pursuant to this Ordinance
may also engage in the business of:
(A) Transmitting original cablecast programming not
received through television broadcast signals;
Page 33
(B) Transmitting any additional broadcast signals
permitted by the Federal Communications Commission.
(C) Transmitting television pictures, film and
video -tape programs, not received through broadcast television
signals, whether or not encoded or processed to permit reception
by only selected receivers or subscribers.
(D) Transmitting and receiving all other signals;
digital, voice and audio - visual, etc.
(E) Transmit, on a non - discriminatory basis and for
a reasonable rate, burglar, fire, or other non - broadcast services
which customers request from persons supplying those services.
10.5 LOCAL ORIGINATION AND ACCESS
(A) Grantee shall provide and maintain at least one
Local Origination and Access Studio within the service area.
Location of the studio to be approved by the Council or its
designated representative.
(B) Grantee shall provide, install and maintain a
Local Origination and Access Audio /Video System at their Local
Origination and Access Studio. The System shall contain a
complement of compatible equipment as specified in the franchise
ordinance,all of which will be of broadcast or top level indus-
trial quality.
(C) The Grantee shall make studio and portable audio -
video equipment available to residents in accordance with a
Grantee developed and City approved studio and equipment opera-
tions /usage plan, and provisions set forth in the franchise
ordinance.
(D) Grantee shall provide portapak equipment for remot
public productions and locally- originated programming.
(E) Grantee shall provide community access channels
for use by City residents, including channels for government
and education access. Also, community access on a first -come,
first -serve basis, and leased access. Until there is demand
for full channel -time use, such may be combined on one or more
channels. Additional access channels will be activated when
any of the channels stipulated are in use during 80% of the
weekdays (Monday through Friday) for 80% of the time during any
consecutive three (3) hour period for six (6) consecutive weeks.
(F) Grantee will actively promote production assis-
tance to facilitate use of these community access channels.
Grantee shall maintain sufficient dedicated studio staff to
fully support active local origination and access activities.
The staff, upon reasonable notice, shall provide training and
Page 34
tecnnicai assistance in the use or the stuaio ana portanie
equipment. This training and assistance shall, at a minimum,
be available at the Local Origination and Access Studio and
made available upon request at public schools.
(G) Grantee shall maintain all studio equipment,
including portable equipment, in a fully operational status on
a continuous basis, and to technical standards requisite for
quality performance.
10.6 MUNICIPAL SERVICES:
(A) With respect to local government access, the
Grantee shall provide, at the request of the Council, and upon
City reimbursement of Grantee's actual production costs in
excess of five (5) hours a week, use of Grantee's studio, equip-
ment and technical services for production of live and video-
taped municipal programs, subject to scheduling requirements
of the Grantee.
(B) With respect to the basic television service, the
Grantee shall provide a drop and all basic subscriber services,
without cost, when the system passes such facilities and as
designated by the Council, to:
(1) public schools and community colleges
within the City, and
(2) buildings owned and controlled by the
City, used for public purposes and not for residential
use.
10.7 PUBLIC BENEFIT SERVICES: At such time as the Council
determines it to be in the public interest, the Grantee may be
required, without increasing subscription rates, to provide:
(A) Connection to municipal video production studios;
(B) Connection to education facilities;
(C) Connection to public health facilities;
(D) Interconnection with other communications
systems;
(E) Program origination, including children and
senior citizen programs.
(F) Interconnection between municipal and /or educa-
tional facilities.
10.8 INTERCONNECTION: The Grantee will be required to
provide interconnection to City franchisees and other nearby
cable television systems at the time and to the extent and in
the manner specified by the Council, after the Council has
Page 35
conducted public hearings on the manner to determine the need
and viability of an interconnect system. Costs of said inter-
connections shall not be passed on to subscribers without
permission of the Council.
10.9 EMERGENCY SERVICE:
(A) The Grantee shall design and construct the system
to provide for a restricted audio override of all audio channels
during emergencies. If video override is also provided, the
system shall include a character generator capability for
delivery of emergency messages to the communicatively handicapped.
The audio override shall include a squeal alert tone to precede
the verbal and video messages. The design of the Emergency Alert
system is to be submitted to the City Manager for approval prior
to construction.
(B) Emergency power sources shall be provided by
Grantee at the head -end, network distribution center, satellite
earth station, processing hubs, and other system locations as
may be necessary to guarantee that in the event of a power failure
on any part of the system, service will be maintained on the rest
of the system.
10.10 SUBSCRIBER SERVICE: It shall be the right of all
subscribers to receive all available services insofar as their
financial and other obligations to the Grantee are honored.
Neither the City nor the Grantee shall, as to rates, charges,
service, service facilities, rules, regulations, or in any other
respect, make or grant any preference or advantage to any person,
nor subject any person to prejudice or disadvantage, Subject to
such regulations as may be adapted by the Council pursuant
hereto, the Grantee shall:
(A) Maintain a high standard of courtesy in customer
relations at all times.
(B) Maintain a log showing the date, approximate
time and duration, type and probable cause of all headend, trunk
or distribution line service interruptions and /or failures due
to causes other than routine testing or maintenance; such log
shall be subject to review by the Council.
(C) Maintain a conveniently located business office
and service center within the service area with toll free tele-
phone numbers so that subscribers may report service outages
or deficiencies at any time. The office shall maintain an
adequate staff such that subscribers may transact all necessary
business, including payment of bills, during regular business
hours.
(D) Keep a written record of all complaints showing
as a minimum the date, subscriber's name and address, nature of
complaint, and action taken by the Grantee.
Page 36
(E) Restore any interruption in service as expedi-
tiously as possible, and in accordance with the Franchise
Agreement. Corrective maintenance for institutional services
will be in accord with contract terms between the Grantee and
the subscriber.
(F) Before providing cable television service to any
subscriber, the Grantee shall provide a written notice to the
subscriber substantially as follows:
"Subscriber is hereby notified that in providing cable
television /communications service the Grantee is making
use of public rights -of -way within the City of Alameda,
and that the continued use of such rights -of -way is in
no way guaranteed. In the event the continued use of
such rights -of -way is denied to Grantee for any reason,
Grantee will make every reasonable effort to provide
service over alternate routes. By accepting cable
television /communications service, subscriber agrees he
will make no claim nor undertake any action against the
City, its officers, or its employees if the service to
be provided hereunder, is interrupted or discontinued."
(G) There shall be no charges for service calls to
subscribers' homes except as provided by the Agreement.
(H) In the event that the Grantee elects to rebuild,
modify, or sell the system, or the City revokes or fails to
renew the franchise, the Grantee shall do everything in its
power to ensure that all subscribers receive continuous, un-
interrupted service regardless of the circumstances during the
life -time of the franchise. In the event of a system purchase
by the City, or change of Grantee, the current Grantee shall
cooperate with the City to operate the system for a temporary
period, in maintaining continuity of service to all subscribers.
(I) Upon termination of service to any subscriber,
a Grantee shall promptly remove all its facilities and equipment
from the premises of such subscriber upon his request.
10.11 SUBSCRIBERS PRIVACY:
(A) The monitoring of any subscriber terminal without
specific written authorization of the subscriber is prohibited.
Grantee shall be responsible for the protection of subscriber
privacy, prohibiting the tapping and /or monitoring of cable, line,
signal input device, or subscriber outlet or receiver for any
purpose whatsoever, except Grantee may conduct tests of the
functioning of the system where necessary in order to ensure
proper maintenance of the system and to collect performance data
for agencies regulating the quality of signals. Where critical
information requires private communication, electronic signal
scrambling techniques must be used.
Page 37
(B) Listings of subscribers' names and addresses may
not be sold or otherwise released for any purpose, nor any
list which identifies, by name, subscriber viewing habits, to
any person, agency, entity, for any purpose whatsoever, without
specific written authorization of the individual subscriber.
(C) The Grantee and the City shall maintain constant
vigilance with regard to possible abuses of the right of privacy
or other human rights of any subscriber, programmer, or general
citizen resulting from any device or signal associated with the
cable communications system. The Grantee shall not place in any
private residence any equipment capable of two -way communications
without the written consent of the residents, and will not utilize
the two -way communications capability of the system for subscriber
surveillance of any kind without the written consent of the sub-
scriber.
(D) No cable, line, wire, amplifier, converter, or other
piece of equipment owned by the Grantee shall be attached to any
residence or other property by the Grantee without first securing
the written permission of the owner or responsible occupant of
any property involved. If such permission is later revoked whether
by the original or a subsequent owner or responsible occupant, the
Grantee shall remove forthwith all of its equipment and promptly
restore the property to as near to its original condition as
possible.
(E) No polls or other two -way responses of subscribers
shall be conducted unless the program of which the poll is a part
shall contain an explicit disclosure of the nature, purpose and
prospective use of the results of the poll. No commercial or
other use of information of subscriber viewing habits or patterns
may be made and no release of such information shall be permitted
without prior consent of the Council or pursuant to rules and
regulations duly adopted by the City.
Page 38
Section 11 Rates and Charges
Except when and as preempted by FCC Regulations and
State laws, the following procedures apply to the rates and
charges associated with the providing of services under this
Ordinance and any franchise issued hereunder.
(A) The Grantee shall charge its subscribers and
users rates and charges approved by the Council, and no change
in rates and charges may be made without the prior approval
of the Council expressed by resolution.
(B) Should the Grantee desire to change its rates
and charges, it shall file a petition with the Council at
least ninety (90) days prior to the proposed date of change.
The petition shall detail the proposed changes and set forth
the reason changes are desired. The petition shall include
system historical financial data (balance sheets and detailed
profit and loss statements) for the period since commencement
of system operations of the previous five (5) years, whichever
is the lesser.
(C) Council determination of proper rates and charges
shall be based on factors considered important by Council, which
shall include, but not limited to: The quality of signal delivered
to subscribers, the quality of service provided to subscribers,
channel capacity, number and quality of programming sources, and
underlying economics of the system (system cash flow, Grantee
return on investment, etc.). In this regard, the City reserves
the right to inspect all of the Grantee's property and records in
adjudging the merits of a request for a change in rates and /or
charges.
(.D) In connection with any proposed increase in any
rate or charge, the City may direct an authorized representative
to conduct a hearing on the matter. If so directed, the repre-
sentative shall set the day, hour, and place certain when and
where any person having any interest therein may appear and be
heard. This hearing should normally be conducted within sixty
(60) days from date of receipt of petition. The notice of a
public hearing on the matter should be published at least ten
(10) days before the date of the hearing in a newspaper of general
circulation within the City.
(E) At the time set for such hearing, or any adjourn-
ment thereof, the representative shall hear the matter. Following
the close of such hearing, the representative shall prepare and
file with the Council a report of the hearing, and his recommenda-
tions and the reasons therefore. After receipt of the representa-
tive's report, the Council shall determine whether to adopt the
report or to hold a further hearing. If the Council elects to
adopt the recommendations of the representative, it shall do so by
Resolution. If it elects to conduct a hearing thereon, it shall
Page 39
adopt a Resolution to do so, describing and stating the proposed
change in rates or charges; fixing and setting forth a day, hour,
and place certain when and where any person having any interest
herein may appear before the Council and be heard. Such resolution
shall direct the City Manager to publish notice of the resolution's
adoption at least once within ten (10) days of the passage thereof
in a newspaper of general circulation within the City. The City
Manager also shall cause notice of intent of such resolution to be
mailed to the Grantee at least ten (10) days prior to the date
specified for hearing thereon. At the time set for such hearing,
or at any adjournment thereof, the Council shall hear and decide
the matter.
(F) No rate established shall afford any undue prefer-
ence or advantage among subscribers, but separate rates may be
established for separate classes of subscribers and installation
charges may reflect the increased cost of providing service to
isolated or sparsely populated areas.
(G) The Council may set rates and charges hereunder
upon a determination that rates and charges levied by grantee
are unreasonable or inequitable.
Page 40
Section 12 Compensations and Guarantee to the City
12.1 FRANCHISE FEE:
(A) In consideration of the granting and exercise of
a franchise to construct and operate a cable communications system
in the City, the Grantee shall pay to the City during the life of
the franchise, a franchise fee equivalent to a percentage, as
stipulated in the franchise ordinance, of the Grantee's gross
revenues including, but not limited to , Basic Service Revenues,
Non -Basic Revenues, Advertising Revenues, Lease Revenues, and Data
Transfer Revenues, for the purpose of defraying administrative
expenses associated with the conduct and performance of the City's
authority, responsibilities, and police power in the promotion of
safety, convenience, comfort, prosperity, and general welfare of
the citizens of the City, and in consideration of the City's
granting and Grantee's exercising a franchise to use the streets,
as defined in Section 2 herein.
(B) The percentage payments shall be made in the manner,
amounts and at times directed in the franchise ordinance.
(C) Each payment shall be accompanied by a statement, in
duplicate, verified by the Grantee or by a general officer or
other duly authorized representative of the Grantee, showing in
such form and details as the Council may require from time to time
the facts material to a determination of the amount due.
(D) The City or its representative shall have the right
to inspect the Grantee's records to determine if proper payments
have been made to the City. The cost of such audits shall be
borne by Grantee if the same results in increasing, by more than
2%, the Grantee's annual payment to the City.
(E) No acceptance of any payment shall be construed as
a release or as an accord and satisfaction of any claim the City
may have for further or additional sums payable under this Ordinance,
or the Franchise Ordinance or associated Resolution or Ordinance
for the performance of any other obligation thereunder.
(F) The payment made to the City by the Grantee pursuant
to this section for any calendar year shall be in lieu of any
license fee or business tax, prescribed by the City for the same
period, but only to the extent of such payment.
(G) At the discretion of the Council, a percentage or
portion of the fee payments may be ear - marked to assist in the
funding of certain non -basic service, e.g., public and educational
access, etc.
Page 41
12.2 PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE:
Grantee shall at all times maintain in full force and
effect a policy of insurance in such form as the City may require,
executed by an insurance company authorized to write the required
insurance and approved by the Insurance Commissioner of the State
of California, insuring the payment of any sums which the Grantee,
or City, its officers, boards, commissioners, agents and employees
may become obligated to pay by reason of any liability imposed
upon them by law for damages because of bodily injury or death,
or injury to or destruction of property that may result to any
person or property arising out of the construction, operation or
maintenance of any facilities pursuant to a franchise. The sums,
payment of which shall be so insured, shall not be less than
$2,000,000 combined single limits including bodily injury liability
and property damage liability. Such policy of insurance shall
be filed with the Council, in duplicate, and approved as required
by City ordinance.
12.3 WORKMAN'S COMPENSATION INSURANCE:
Upon being granted a franchise, and upon the filing of
the acceptance required under Section 5 hereof, the Grantee shall
file with the City Recorder and shall thereafter, during the entire
term of such franchise, maintain in full force and effect Workers
Compensation Insurance coverage in at least the minimum amounts
required by law. If a Grantee fails to obtain or maintain such
required insurance coverage, the City, may without notice to Grantee,
obtain, at Grantee's sole expense, such coverage, or forthwith
terminate, without prior notice, the franchise as granted.
12.4 FAITHFUL PERFORMANCE BOND:
(A) The Grantee shall, at his sole expense, at the time
of acceptance of a franchise, file with the City, and, unless
otherwise authorized by Council, at all times thereafter maintain
in full force and effect, an acceptable corporate surety bond, in
duplicate, in the amount of $300,000, effective for the entire
term of a franchise, and conditioned that in the event the Grantee
shall fail to comply with any one or more of the provisions of a
franchise, then there shall be recoverable jointly and severally
from the principal and surety of such bond, any damages suffered
by the City as a result thereof, including the full amount of any
compensation, indemnification, or cost of removal or abandonment
of property as prescribed by Section 12.1, 12.5 or 7.8, hereof
which may be in default, up to the full amount of the bond; said
condition to be a continuing obligation for the duration of a
franchise and thereafter until the Grantee has liquidated all of
its obligations with the City that may have arisen from the acceptance
of a franchise by the Grantee or from its exercise of any privilege
herein granted.
Page 42
(S) Neitner the provisions or tnis section, any Dona
accepted by the City pursuant thereto, nor any damages recovered
by the City thereunder shall be construed to excuse faithful
performance by the Grantee or to limit the liability of the Grantee
under a franchise or for damages, either to the full amount of the
bond or otherwise.
(C) If, at any time during the term of a franchise,
the condition of the corporate surety shall change in such a manner
as to render the bond unsatisfactory to the City, the Grantee
shall replace such Bond by a Bond of like amount and similarly
conditioned, issued by a corporate surety satisfactory to the City.
In the event the Grantee's obligations under a franchise shall so
warrant, the Council, from time to time, may authorize or require
appropriate adjustments in the amount of the Bond.
12.5 SECURITY FUND:
(A) Within thirty (30) days after the effective date
of a franchise, the Grantee shall deposit into an insured account,
established by the City, and maintain on deposit throughout the
term of the franchise, the sum of Twenty Five Thousand Dollars
($25,000) as security for the faithful performance by it of all
the provisions of the franchise, and compliance with all orders,
permits and directions of any agency of the City having jurisdiction
over its acts or defaults under the franchise, and the payment by
the Grantee of any claims, liens, payments and taxes due the City
which arise by reason of the construction, operation or maintenance
of the system. The Grantee shall have the right to earn interest
on funds deposited in the Security Fund.
(B) Within thirty (30) days after notice to it that any
amount has been withdrawn by the City from the security fund
pursuant to Subdivision (A) of this Section, the Grantee shall
deposit a sum of money sufficient to restore such security fund
to the original amount.
(C) If the Grantee fails, after ten (10) days notice to
pay to the City any taxes or payments due and unpaid; or, fails to
repay to the City, within such ten (10) days, any damages, costs
or expenses which the City shall be compelled to pay by reason of
any act or default of the Grantee in connection with a franchise;
or fails after thirty (30) days notice of such failure by the City
to comply with any provision of the franchise which the City
reasonably determines can be remedied by an expenditure of the
security, the City may immediately withdraw the amount thereof,
with interest and any penalties, from the security fund. Upon such
withdrawal, the City shall notify the Grantee of the amount and
date thereof.
Page 43
(D) The security fund deposited pursuant to this
Section shall become the property of the City in the event that
a franchise is cancelled by reason of the default of the Grantee
or revoked for cause. The Grantee, however, shall be entitled
to the return of such security fund, or portion thereof, as remains
on deposit at the expiration of the term of the franchise, or upon
termination of the franchise at an earlier date, provided that
there is then no outstanding default on the part of the Grantee.
(E) The City may, at its sole discretion, upon Grantee's
successful completion of system construction, reduce the security
fund to a lesser required amount as set forth in the Franchise
Agreement, and refund the difference to Grantee.
(F) The rights reserved to the City with respect to the
security fund are in addition to all other rights of the City
whether reserved by a franchise or authorized by law, and no
action, proceeding or exercise of a right with respect to such
security fund shall affect any other right the City may have.
12.6 INDEMNIFICATION TO CITY:
(A) By accepting a franchise, each Grantee shall be deemed
to have agreed to indemnify and hold harmless the City /Bureau of
Electricity, its officers, boards, commissions, agents, consultants,
and /or employees against and from any and all claims, demands, causes
of actions, actions, suits, proceedings, damages (including but
not limited to, damages to City property and damages arising out
of copyright infringements, and damages arising out of any
failure by Grantee to secure consents from the owners, authorized
distributors or licensees of programs to be delivered by Grantee's
cable communications system)., costs or liabilities (including
costs of the City with respect to its employees), of every kind
and nature whatsoever, including but not limited to damages for
injury or death or damage to person or property, and regardless
of the merit of any of the same, and against all liability to
others, and against any loss, cost, and expense resulting or
arising out of any of the same, including any attorney fees,
accountant fees, expert witness or consultant fees, court costs,
per diem expense, traveling and transportation expense, or other
costs or expense arising out of or pertaining to the exercise or
the enjoyment of any franchise hereunder by Grantee, or the
granting thereof by the City, irrespective of the amount of the
bond designated in Section 12.4 hereof.
(B) The Grantee shall at the sole risk and expense of
Grantee, upon demand of the City, made by and through the City
Attorney, appear in and defend any and all suits, actions, or
other legal proceedings, whether judicial, quasi - judicial, admin-
istrative, legislative, or otherwise brought or instituted or had
by third persons or duly constituted authorities, against or
affecting the City, its officers, commissions, agents, consultants,
Page 44
or employees, and arising out of or pertaining to the exercise or
the enjoyment of such franchise, or the granting thereof by the
City.
(1) alternatively, in the discretion of the
Council, the City may, on behalf of itself, and /or
any of its officers, agents, consultants, or employees,
elect to employ, at Grantee's expense, attorneys to
appear and defend such actions.
(2) the Grantee shall pay and satisfy and
shall cause to be paid and satisfied any judgment, decree,
order, directive, or demand rendered, made or issued
against Grantee, the City, its officers, boards, commis-
sions, agents, consultants, or employees in any of these
premises; and such indemnity shall exist and continue
without reference to or limitation by the amount of any
bond, policy of insurance, security deposit, undertaking
or other assurance required hereunder, or otherwise; pro-
vided, that neither Grantee nor City shall make or enter
into any compromise or settlement of any claim, demand,
cause of action, action, suit or other proceedings,
without first obtaining the written consent of the other.
Page 45
Section 13 Equal Opportunity Employment and Affirmative
Action Plan.
(A) In the carrying out of the construction, maintenance
and operation of the cable television system, the Grantee shall
not discriminate against any employee or applicant for employment
because of race, creed, color, sex, or national origin.
(B) The Grantee shall take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, creed, color, sex, or
national origin. Such action shall include, but not be limited
to, the following: employment upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination,
rate of pay or other form of compensation, and selection for train-
ing, including apprenticeship.
(C) The Grantee shall post in conspicuous places
available to employees and applicants for employment, notices
setting forth the provisions of this non - discriminating clause.
(D) The Grantee shall, in all solicitations or adver-
tisements for employees placed by or on behalf of the Grantee
state that all qualified applicants will receive compensation for
employment without regard to race, creed, color, sex, or national
origin.
(.E) The Grantee shall incorporate the foregoing require-
ments in all of its contracts for work relative to construction,
maintenance and operation of the cable television system, other
than contracts for standard commercial supplies or raw materials,
and shall require all of its contractors for such work to incor-
porate such requirements in all subcontracts for such work.
Page 46
Section 14 Adoption of Rules and Regulations
(A) At any time, the Council may adopt reasonable
rules, regulations and standards governing the operation of cable
communications systems in the City, consistent with the provisions
of this Ordinance, and the Franchise Ordinance. Such rules,
regulations and standards shall apply to and shall govern the
operations of the Grantee of any cable communications franchise,
and are expressly declared to be a part of any such franchise.
(B) Prior to adopting any such rule, regulation, or
standard, the Council shall conduct a duly noticed hearing thereon.
At the time set for such hearing, or at any adjournment thereof,
the Council shall proceed to hear any relevant evidence relating
to the matter. Thereafter, the Council, by Resolution, may adopt,
amend or modify such rules and regulations.
(C) The standards adopted may govern the engineering,
construction, installation, service, and maintenance of all cable
communications systems in the City, including but not limited to
standards governing carrier levels, signal -to -noise ratios, hum
modulation, distortion levels, channel interactions and inter -
reactions, and composite beat levels.
Page 47
Section 15 Amendment of This Ordinance and the
Franchise Ordinance
The Council shall amend this Ordinance and any franchise
issued thereunder, upon its own motion or the application of a
Grantee whenever amendment is necessary to enable a Grantee to
utilize new developments in television or radio signal transmission
which would improve and update cable communications service in the
City, or to comply with any modifications in the Rules of the FCC.
Amendments to Section 76.31 of the FCC Rules will be incorporated
into this Ordinance within one year of their adoption or at the
time of franchise renewal, whichever comes first. No amendment
shall be adopted except after full, open public hearing affording
due process, and no amendment substantially amending the existing
rights and obligations of the Grantee shall be adopted without
Grantee's consent.
Page 48
Section 16 Violations
(A) It shall be unlawful for any person to construct,
install or maintain within any public right -of -way 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 a
public right -of -way but is designated or delineated as a proposed
public right -of -way on any tentative subdivision map approved by
the City, and equipment or facilities for distributing any tele-
vision signals or radio signals through a cable communications
system, unless a franchise authorizing such use of such street or
property or area has first been obtained pursuant to the provisions
of this ordinance, and unless such franchise is in full force and
effect.
(B) It shall be unlawful for any person, firm or
corporation to make or use any unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise
with any part of any cable communications system within this City
for the purpose of enabling himself or others to receive or use
any television signal, radio signal, picture, program, sound,
information, or other system service without payment to the owner
of said system.
(C) It shall be unlawful for any person, without the
consent of the Grantee, to willfully tamper with, remove or injure
any cables, wires or equipment used for distribution of television
signals, radio signals, pictures, programs, sound, information,
data, or other system service.
rage v7
Section 17 Fines and Penalties The City may levy fines
and other penalties for failure to comply with the provisions
of this Ordinance and the Franchise Agreement, not to exceed
those limits set forth in the Franchise Agreement.
Page 50
Section 18 . Serverability If any section, subsection,
sentence, clause or phrase of this Ordinance is for any reason
held illegal, invalid or unconstitutional by the decision of
any court of competent jurisdiction, such decision shall not affect
the validity of the remaining portion hereof. The Council hereby
declares that it would have approved this Ordinance and each
section, subsection, sentence, clause or phrase hereof, irrespective
of the fact that any one of more sections, subsections, sentences,
clauses or phrased he declared illegal, invalid or unconstitutional.
The invalidity of any portion of this Ordinance shall not abate,
reduce or otherwise affect any consideration or other obligation
required of the Grantee of any franchise granted hereunder.
Page 51
Section 19 . No tices . Every direction, notice, or order
to be served upon a Grantee shall be sent to the local office
described in Section 10.9(C) of this Ordinance. Every notice
to be served upon the City shall be delivered, or sent by certified
mail, to the City Manager at: City Hall, City of Alameda, Santa
Clara at Oak Street, Alameda, California, 99501. The delivery of
such be deemed to have been at time of receipt.
Page 52
Section 20 . Effective Date The City Clerk shall cause
this Ordinance to be published in the manner prescribed by law.
This Ordinance shall be in full force and effect from and after
the expiration of thirty (30) days from the date of its final
passage.
Section 21 . Upon the effective date of this Ordinance,
City of Alameda Ordinance No. 2043 N.S. relating to the construc-
tion, operation, regulation and control of Cable Television
Systems within the City's territorial limits shall be fully and
completely repealed.
L H�
PASSED AND APPROVED this J J day of ZLQ " l , 1981.
(n 0 _
ro �
MAYOR THE CITY OF ALAMEDA
j
O U
L
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S
ATTEST:
11t,
City Clerk
Page 53
I, the undersigned, hereuy certify that the foregoing Ordinance
was duly and regularly adopted and passed by the Council of the
City of Alameda in regular meeting assembled on the 4th day of August, 1981,
by the following vote to wit:
AYES: Councilmen Gorman, Sherratt, Stone, and vresiaent torica - 4.
NOES: None.
ABSENT:Councilman Diament - 1.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
official seal of said City this 5th day of August, 1981.
5"
City Cl the pity o Al ameda