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CC Ordinance 1633ORDINANCE NO. 1633 AN ORDINANCE OF THE CITY OF CAMPBELL RENEWING AND EXTENDING THE NONEXCLUSIVE CABLE TELEVISION FRANCHISE OF GILL INDUSTRIES, INC., DBA GILLCABLE, AS GRANTED TO ITS PREDECESSOR IN INTEREST BY ORDINANCE NO. 567 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAMPBELL: SECTION 1. That, subject to the provisions of this Ordinance, the provisions of the Campbell Municipal Code, and the provisions of State and Federal law, the City of Campbell (hereinafter "Grantor") does hereby renew the non-exclusive franchise of Gill Industries, Inc., dba Gillcable (hereafter "Grantee") to operate and carry on within the City of Campbell the business of distributing television signals and radio signals by means of a cable television system. SECTION 2. Citation of Ordinance This ordinance may be cited as the "Gillcable Franchise Ordinance." SECTION 3. Rules of Construction This ordinance shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this ordinance, the following provisions shall govern its interpretation and construction: (a) Time is of the essence of this ordinance. Grantee shall not be relieved of its obligation to comply promptly with any provision of this ordinance by any failure of Grantor to enforce prompt compliance with any of its provisions. (b) Any right or power conferred, or duty imposed upon any officer, employee, department or Commission of Grantor is subject to transfer by operation of law to any other officer, employee, department or Commission of Grantor. (c) This ordinance shall not be construed to limit or restrict the otherwise lawful exercise of the police power by the Grantor. In particular, this ordinance does not relieve Grantee of the obligation to comply with any lawful exercise of Grantor's regulatory authority, including, but not limited to, any requirement relating to street work, street excavation permits, undergrounding of utility facilities, including cable communications facilities, or the use, removal or relocation of property in the streets. (d) Provisions of this ordinance shall be construed in accordance with Chapter 5.20 of the Campbell Municipal Code, hereafter Chapter 5.20. To the extent that the provisions of this Ordinance and the provisions of Chapter 5.20 conflict, the terms and provisions of this granting Ordinance shall control. SECTION 4. Purpose and Intent It is the purpose and intent of this ordinance to approve the extension and renewal of Grantee's nonexclusive franchise to engage in the business of operating a Cable Communication System (hereafter "cable system") in the City upon terms and conditions of Chapter 5.20. SECTION 5. Conditions Precedent (a) This ordinance shall become effective on the thirty-first (31st) day after passage of this ordinance provided that, prior to such date, Grantee has 1) filed with the City Clerk a written instrument, in a form satisfactory to the City Attorney, addressed to the Grantor accepting the extension and renewal of franchise as required by Section 5.20.220; 2) filed with the City Clerk a corporate surety bond or other mutually acceptable security in the principle sum of Fifty Thousand Dollars ($50,000.00) as required by Section 5.20.130; and 3) presented evidence to the City Clerk, satisfactory to the City Attorney, of the insurance required under Section 5.20.140. (b) Grantee shall have made the reimbursement of expenses provided for in Section 5.20.180 which amount shall not exceed Four Thousand Dollars ($4,000). SECTION 6. System Expansion (a) Grantee shall provide cable television service to all dwelling units located within the franchise area. Grantee shall proceed to construct facilities to serve those areas of the City not presently served, until all areas of the franchise area are served. (1) Within 24 months of the effective date of this Ordinance, Grantee shall complete construction of new cable television facilities to all previously unserved areas within the franchise area. (2) New dwelling units constructed after the effective date of this ordinance will be served on a basis to be mutually agreed by the parties. (b) Grantee shall complete construction and offer service to all dwelling units, including apartments, condominiums and mobile home parks in the City without regard to the number or percentage of potential subscribers in the particular buildings. Provided, however, that nothing in this section shall require Grantee to install service facilities or otherwise make service available if: (1) An owner, manager, lessee, principal occupant, or other person or entity with apparent authority over a given dwelling unit (or group of dwelling units) or building refuses to allow access upon reasonable terms or otherwise indicates a desire not to be served; (2) A building is already served or under contract to be served by another multi -channel television service or other form of subscription television service. (3) The cost of installing service facilities for a given dwelling unit (or group of dwelling units), not located within the City limits at the time of contract execution, exceeds $400 per unit. (4) In any case where grantee is not required to install service facilities due to excessive cost as defined in subparagraph (3) above, service facilities shall nonetheless be provided by grantee if the person or entity with apparent authority over the dwelling unit (or group of dwelling units) involved in a given case agees in writing to pay all costs associated with installing service facilities which exceed $400 per dwelling unit. SECTION 7. Educational and Public Access Channels (a) Grantee shall disseminate in the City of Campbell all signals carried to other areas of Santa Clara County on educational and public access channels; (b) Grantee will provide channel capacity for a community access channel; (c) Grantee will provide productions facilities and equipment to individuals and groups for the purpose of producing programming for the community access channel. Grantee shall develop such rules, regulations and schedules to regulate such community use. Grantee's rules, regulations, and schedules shall include a provision for giving notice of such rules, regulations and schedules to the public. The grantor, or a designated representative, may review such rules and regulations, submit any suggestions or comments deemed appropriate to the grantee, and the grantee shall evaluate said suggestions and comments in good faith for possible implementation. (d) Grantee shall exercise no editorial control over the editorial content of any programming on the community, educational or municipal access channels, except that Grantee is not prohibited by the terms of this extension and renewal from refusing to transmit any obscene or otherwise illegal material, or any material the transmission of which would subject Grantee to civil or criminal liability. (e) If Grantee provides any education access channels on a tier of service other than the basic tier, then Grantee shall provide upon request a converter necessary to allow any basic subscriber to view such educational access channels without a monthly charge. Grantee may require a refundable deposit for such converter. (f) Grantee may utilize educational and public access channels for alternate programming during periods when the channels are not in use for educational and public access programming. SECTION 8. service to Schools and Public Buildings (a) Grantee shall provide one drop and one outlet at no cost for installation, maintenance and basic service to all municipal buildings and public schools. Grantee shall provide a maximum of eight drops and outlets at no cost for installation, maintenance and basic service at the Campbell Community Center. Grantee shall notify eligible organizations of the availability of this service within thirty days of the effective date of this ordinance. Some portions of basic service may be withheld if not allowed by copyright or contractual obligations of grantee to its suppliers. (b) Grantee shall provide equipment and technical assistance necessary to televise live public meetings, and to originate programming from the City Hall facility, upon request of the City Council or City Manager. Operating personnel will not be provided by grantee. (c) Grantee shall provide two-way data service upon request by the City Manager, between two designated locations in the City Hall complex, (70 N. First Street) and each of the following locations: Fire Station Headquarters, 123 Union Avenue Fire Station #2, 485 W. Sunnyoaks Historical Museum, 51 Central Avenue Community Center, 1 W. Campbell Avenue Service Center, 290 S. Dillon Avenue Grantee will provide a modem and one connection point at each of the designated locations. Grantee shall not be required to make two-way service available as provided for in this section if the provision of such service by Grantee is determined to be contrary to state or federal law, or if such service is determined to be subject to state PUC regulation. SECTION 9. Maps of Installed Facilities (a) Grantee shall maintain, on its premises, an accurate set of maps showing all cable television equipment installed in the streets, alleys and public places of the City. Such plans shall be made available for inspection by City officials on request to Drafting/Design Department during normal business hours (8:30 a.m. through 4:40 p.m., Monday through Friday). (b) Grantee shall also furnish to Grantor copies of cable locator books as they are periodically revised. These documents will be accompanied by a disclaimer recommending direct contact with Grantee for the most current information on cable television equipment locations. (c) Grantee and Grantor shall actively cooperate with other users of the public right-of-way to prevent accidental damage from occurring as a result of subsequent construction. SECTION 10. Provision of Reports (a) Grantee shall, upon request, prepare and furnish to the City Manager at the times and in the form and content prescribed by said officer, such reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the franchise. (b) Grantee shall prepare and furnish to the City Manager an annual financial report. (c) Grantee shall provide information requested and shall cooperate with any city -initiated financial and/or performance audit. SECTION 11. System Outage and Subscriber Complaint Service; Notices to Subscribers (a) Grantee will maintain a subscriber complaint service operated from Grantee's main office, and qualified technicians will be permanent members of Grantee's staff. A (f) The service standards listed in this section are meant as guidelines and should be adhered to in at least eighty per cent (80%) of cases under normal conditions. Neither isolated cases of non-conformance nor failure to meet these standards during extreme conditions shall constitute violations of the terms of this extension and renewal. SECTION 12. Term The term of this franchise extension and renewal shall expire on January 1, 2001. SECTION 13. Franchise Fees Grantee shall pay to Grantor an annual franchise fee, at such times and in such manner specified by Chapter 5 of the Campbell Municipal Code, according to the following schedule: (a) Grantee shall pay a franchise fee of five per cent (5%) of gross revenues, as defined in subsection (b) of this section, from the effective date of this Ordinance. (b) Subject to the limitations set forth in section 5.20.010 of the Campbell Municipal Code, and for the purpose of this section, "gross revenues" shall mean any and all compensation in any form, directly or indirectly recovered by Grantee from any subscriber for cable television service in the City of Campbell, excluding installation fees, line extension fees, and advertising revenues. Gross revenues shall not include any taxes on services furnished by the grantee imposed directly on any user or subscriber by any city, state or other governmental unit. (c) In addition to franchise fees collected through subsection (a) of this section, an annual fee of $7,500 will be remitted in four equal installments on a quarterly basis, in lieu of 5% of grantee revenues specifically excluded in subsection (b) of this section. Should this section be found unenforceable, subsection (b) of this section will be modified to include all revenues received directly or indirectly through Campbell subscribers, and a pro rata share of all other revenues of the grantee. (d) Franchise fee payments shall be made quarterly. Within 30 days from and after the end of each quarter of each calendar year, the grantee shall pay to the City the franchise fee for the immediately preceding quarter year. (e) Each payment shall be accompanied by a statement verified by grantee or by a general officer or other duly authorized representative of the grantee, showing in such form and detail as the City Manager may require, that facts material to a determination of the amount due. (f) In the event that discrepancies are found by the City in the amount of payment rendered, payment of the delinquent portion will be rendered by grantee within 10 days of receipt of notice, and will include 12% annual interest from the original due date. SECTION 14. Review Sessions To provide for periodic review and revision of the cable system, grantor and grantee shall comply with the following system and services review provisions: (a) At grantor's option, grantor shall schedule a system and services review session at any time after the third anniversary date of the franchise agreement. yearly thereafter. Such notification shall include: Grantee's telephone number for requesting service, hours and conditions of service, and procedure for registering complaints for unsatisfactory service. Grantee shall also annually notify subscribers of Grantee's policy regarding Senior Citizen discounts for basic service. The notification provisions contained in this section can be satisfied by billing inserts. (c) Grantee shall maintain a data base or "log," listing date of consumer complaints, identifying the subscriber and describing the nature of the complaint, and when and what action was taken by the Grantee in response thereto. This log shall be kept at Grantee's system office for the term of this extension and renewal, and shall be available for inspection by the City Manager or any other duly authorized representative of the City during regular business hours without further notice. (d) In the event of service interruption of more than 24 consecutive hours, and of which Gillcable has knowledge, Grantee shall credit the subscriber's account on a pro rata basis as an offset to the monthly billing charge. Grantee shall, at the request of the subscriber, credit the subscriber's account for the full period of outages of less than twenty-four (24) hours. The subscriber must allow, within a reasonable time, the service technicians access to the problem if located on the subscriber's property, or forfeit any claim for refund due for service outage. (e) Grantee will not be responsible for problems created by subscribers for problems caused by subscriber -owned equipment. (b) Routine handling of customer service requests will be the responsibility of local staff as follows: (1) call involving loss of reception on all channels will be dispatched to the field within twenty-four (24) hours via two-way radio. If the loss of reception on all channels affects five (5) or more customers, at any time of the day or night, repairs will be commenced promptly and pursued diligently. Total loss of reception involving less than five (5) customers will be corrected on the same day received, if so requested by subscriber, except if reported after 2:00 p.m., in which case correction may be postponed to the following day. The majority of all outages (total loss of reception on all channels) will be corrected in four (4) to eight (8) hours or less. (2) The majority of calls involving degraded reception or single outage will be handled on the same business day if received prior to 2:00 p.m. In all cases, such service calls will be handled no later than the following day. (3) Requests for repairs made after hours or on weekends shall be answered by an answering service or staff. Outage calls affecting five (5) or more subscribers will be referred promptly to the standby technician for resolution in accordance with subparagraph (b)(1) of this paragraph. Calls involving degraded service will be reported by the answering service the next day. The staff will call the customer to schedule service calls in accordance with subparagraph (2) above. (4) Customers shall be notified by Grantee of Service and Complaint policy at the time of initial installation and at least (b) Ninety (90) days prior to the scheduled review session, grantor shall notify grantee of the issues it wishes to discuss at the session, and shall specify any questions of particular concern it may have. (c) Sixty (60) days prior to the scheduled review session, grantee shall provide written responses to the questions specified by grantor. Grantee may select and report on any additional topics for discussion at such session. (d) Any scheduled review session may be opened to the general public. (e) The franchise or renewed franchise granted under the provisions of this chapter may thereupon be amended by mutual consent of the grantor and the grantee. If, after any review meeting, grantor and grantee agree that a given service is technically and economically feasible, then grantee shall use its best efforts to provide such service. SECTION 15. Severability 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 portions hereof, Grantor hereby declares that it would have passed this Ordinance irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be 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 Grantee by the franchise granted hereunder. SECTION 16. Notices Every direction, notice or order to be served upon Grantee shall be sent by certified mail to the local office. Every office to be served upon Grantor shall be delivered, or sent by certified mail to the City Clerk. SECTION 17 Effective Date This ordinance shall be in force and take effect thirty-one (31) days from and after the date of its final adoption, providing the Grantee has complied with the provisions of Section 5(a) of this extension and renewal ordinance. PASSED FOR PUBLICATION OF TITLE this 17th day of FEBRUARY , 1987, by the following vote: AYES: Councilmembers: Kotowski, Podgorsek, Watson, Ashworth, Doetsch NOES: Councilmembers: None ABSENT: Councilmembers: None R41plC Doe�sch, Sr., Mayor ATTEST: d Barbara Olsasky, City Cle (3R-obert Hosfeldt, �redent Gill Industries, Inc.