HomeMy WebLinkAboutCentury Mendocino Cable Television, Inc. DBA Adelphia Cable Communications 2005-04-20o OLYZ,6 s
AN AGREEMENT BETWEEN THE CITY OF UKIAH AND
ADELPHIA GRANTING NONEXCLUSIVE RIGHTS TO
CONSTRUCT AND TO OPERATE A CABLE SYSTEM IN THE
CITY OF UKIAH AND SETTING FORTH TERMS AND
CONDITIONS RELATING TO THE EXERCISE OF THOSE
RIGHTS.
TABLE OF CONTENTS
Page
1.
PARTIES; NOTICES; RIGHTS AND AUTHORITY GRANTED....................................3
1.1.
Parties to the Agreement..........................................................................................3
1.2.
Representatives of the Parties and Service of Notices.............................................3
1.3.
Definitions................................................................................................................4
1.4.
Conflicts...................................................................................................................4
1.5.
Grant........................................................................................................................4
1.6.
Acceptance Required...............................................................................................4
1.7.
Duration...................................................................................................................4
1.8.
Agreement Not Exclusive.........................................................................................4
1.9.
Scope of the Agreement...........................................................................................4
2.
GENERAL REQUIREMENTS...........................................................................................6
2.1.
Governing Requirements.........................................................................................6
2.2.
Fee on Gross Annual Revenue.................................................................................6
2.3.
Payment to Grantor..................................................................................................8
2.4.
Insurance Requirements...........................................................................................8
2.5.
Security for Grantee's Performance.........................................................................9
2.6
Fair Employment Practices....................................................................................11
3.
RIGHTS RESERVED TO THE GRANTOR....................................................................11
3.1.
Reservation............................................................................................................11
3.2.
Delegation of Powers.............................................................................................11
3.3.
Right to Inspect Construction................................................................................12
3.4.
Right to Require Removal of Property..................................................................12
3.5.
Right of Intervention..............................................................................................12
3.6.
Option to Acquire the Cable System and Infrastructure........................................12
4.
SYSTEM
CONSTRUCTION AND SPECIAL SERVICES.............................................12
4.1.
System Construction..............................................................................................12
4.2.
Notices Relating to System Construction..............................................................12
4.3.
Services for Public, Educational and Community Facilities..................................13
4.4.
Emergency Alert Capability...................................................................................13
4.5.
Parental Control Devices.......................................................................................14
4.6.
Technical Standards...............................................................................................14
4.7.
No Offset Against Fees..........................................................................................15
5.
SERVICES, PROGRAMMING, AND CONSUMER PROTECTION STANDARDS....
15
5.1.
Rates and Charges for Services and Equipment....................................................15
5.2.
Consumer Protection and Service Standards.........................................................15
5.3.
Broad Categories of Cable Services.......................................................................15
5.4.
Subscriber Surveys.................................................................................................16
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Page
6. SUPPORT OF LOCAL CABLE USAGE AND TECHNOLOGICAL
INFRASTRUCTURE............................................................................................16
7.1.
System Construction and Extension......................................................................16
7.2.
Construction Components and Techniques...........................................................17
7.3.
Technical and Performance Standards...................................................................18
7.4.
Construction Codes................................................................................................18
7.5.
Construction Default..............................................................................................18
7.6.
Vacation or Abandonment.....................................................................................18
7.7.
Abandonment in Place...........................................................................................18
7.8.
Removal of System Facilities................................................................................18
7.9.
Movement of Facilities..........................................................................................19
7.10.
Undergrounding of Cable....................................................................................19
7.11.
Facility Agreements.............................................................................................19
7.12.
Repair of Streets and Public Ways.......................................................................19
7.13.
Erection of Poles Prohibited................................................................................19
7.14.
Reservation of Street Rights................................................................................20
7.15.
Miscellaneous Design and Construction Requirements......................................20
8. COMPLIANCE AUDITS AND TECHNICAL DATA.....................................................22
8.1.
Compliance, Performance Audits, and future PEG support ..................................22
8.2.
System Testing and Technical Data.......................................................................23
8.3.
Emergency Repair Capability................................................................................24
9. REVOCATION, TERMINATION, OR FORFEITURE...................................................24
9.1. Revocation.............................................................................................................24
9.2. Grounds for Revocation, Termination, or Forfeiture.............................................24
9.3. Removal of Property..............................................................................................25
10. RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT; EXPERTS .....................25
10.1.
Grantee to Provide Records.................................................................................25
10.2.
Records................................................................................................................25
10.3.
Maintenance and Inspection of Records..............................................................26
10.4.
Reports of Financial and Operating Activity.......................................................26
10.5.
Performance Tests and Compliance Reports.......................................................27
10.6.
Additional Reports...............................................................................................27
10.7.
Communications with Regulatory Agencies.......................................................27
10.8.
Inspection of Facilities.........................................................................................27
10.9.
Right to Audit......................................................................................................28
10.10.
Retention of Experts............................................................................................28
11. ENFORCEMENT PROCEDURES...................................................................................29
11.1. Notice and Hearing upon Grantee's Default........................................................29
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11.2.
Delegation............................................................................................................29
11.3.
Stop Work Notice................................................................................................30
11.4.
Authorized Fines, Penalties, and Other Sanctions...............................................30
12. CONTINUITY OF CABLE SYSTEM SERVICES..........................................................31
12.1.
Continuity of Service...........................................................................................31
12.2.
Operation and Management by Grantor...............................................................31
13. MISCELLANEOUS PROVISIONS..................................................................................32
13.1.
Assignment, Transfer, Sale, and Change of Control...........................................32
13.2.
Force Majeure......................................................................................................33
13.3.
Possessory Interest...............................................................................................34
13.4.
Indemnification....................................................................................................34
13.5.
Bankruptcy of Grantee.........................................................................................34
13.7.
Resolution of Disputes.........................................................................................34
13.8.
Waiver by Grantor...............................................................................................35
13.9.
Severability..........................................................................................................35
13.10.
Amendments........................................................................................................35
13.11.
Binding Upon Successors....................................................................................35
13.12.
Counterpart Execution.........................................................................................35
13.13.
Applicable Law....................................................................................................35
14. DEFINITIONS...................................................................................................................36
15. AUTHORITY AND EFFECTIVE DATE.........................................................................41
15.1. Authority..............................................................................................................41
15.2. Effective Date......................................................................................................41
EXHIBIT A ARTICLE 2 OF THE CITY OF UKIAH MUNICIPAL CODE AS
ADOPTED AND IN EFFECT ON THE EFFECTIVE DATE OF
THE AGREEMENT
EXHIBIT B OWNERSHIP
EXHIBIT C CHANNEL CAPACITY/SYSTEM CHARACTERISTICS
EXHIBIT D CABLE SYSTEM SERVICES FOR PUBLIC, EDUCATIONAL AND
COMMUNITY FACILITIES
EXHIBIT E SUPPORT OF LOCAL CABLE USAGE
EXHIBIT F GRANTOR'S UNDERGROUND CONSTRUCTION REQUIREMENTS
(,*(,t. ,1Vd o C1a.o a
CABLE FRANCHISE AGREEMENT
This Cable Franchise Agreement ("Agreement") is entered into this _O dayo f
200kat Ukiah, California, by the City of Ukiah, a political subdivision of the State
of California ("Grantor"), and Century Mendocino Cable Television, Inc. d/b/a Adelphia Cable
Communications ("Grantee" and/or "Adelphia").
RECITALS
WHEREAS, under applicable laws, the City of Ukiah ("City") has the authority to regulate
the use of Streets, public rights-of-way (Public Rights -of -Way), and other City property, and to grant
access thereto upon certain terms and conditions; and
WHEREAS, the City wishes to promote the availability of high quality and diverse Cable
Services to City residents, businesses, the City, and other public institutions; to promote the
availability of diverse information resources to the community, including through the development of
advanced Cable Systems that can support public, educational, and governmental programming; to
promote competitive Cable Services and rates; to take advantage of technologies to provide for more
open government; to enhance educational opportunities throughout the community and provide
opportunities for building a stronger community; and to allow flexibility to respond to changes in
technology, Subscriber interests, and competitive factors within the cable television industry that will
positively affect the health, welfare, and well-being of the community; and
WHEREAS, the City is authorized by federal, state and local law to manage the use of Public
Rights -of -Way and to Franchise Operators of Cable Systems which use such Public Rights -of -Way;
and
WHEREAS, Adelphia is currently operating a cable system within the City pursuant to a
Franchise Agreement initially entered into with Group W Cable, Inc. on December 6, 1985; and
WHEREAS, the Franchise Agreement was transferred to Century Communications and later
transferred to Adelphia; and
WHEREAS, the term of the Franchise Agreement expired on December 6, 2000 and
Adelphia has been operating on a month to month basis since that time; and
WHEREAS, in June 2002, Adelphia filed for creditor protection under section 365 of the
Bankruptcy Code, Chapter 11 U.S.C. § 365. and is a debtor in possession of the cable system while
in reorganization; and
WHEREAS, the City is authorized to grant, renew and deny Franchises for the installation,
operation and maintenance of Cable Systems within the City's boundaries by virtue of federal and
state statutes, by the City's police powers, by its authority over its Public Rights -of -Way and by other
lawful City powers and authority; and
WHEREAS, Adelphia has requested a renewal of its Cable Franchise and has proposed to
operate a state-of-the-art telecommunications system and to provide advanced telecommunications
services to the City, its residents and Subscribers; and
WHEREAS, the City, in conjunction with the California cities of Fort Bragg and Willits and
the California County of Mendocino (the "Consortium"), undertook a review of Cable Service in the
City, including but not limited to a review of Adelphia's proposed facilities design, the present and
future cable -related community needs of the City, and Adelphia's ability to carry out its
commitments and its overall financial, legal and technical qualifications to hold a City Franchise;
and
WHEREAS, the City has conducted a public hearing and hereby finds that it would serve
the public interest to grant the Franchise renewal subject to the terms and conditions set forth in
this Agreement and in the City Code Article 2. In connection with Adelphia's request to
construct and to operate a Cable System, Adelphia has offered to (i) provide certain services to
the Grantor, including public, educational, and governmental access channels (PEG); and (ii) pay
to the Grantor a percentage of the revenues that it receives from the provision of Cable System
services to its subscribers in the City; and
WHEREAS, the City, in conjunction with the other members of the Consortium;
negotiated the terms of this Agreement with Adelphia, in accordance with applicable law; and
WHEREAS, the City negotiated this Agreement with Adelphia in conjunction with the
other members of the Consortium, and, therefore, there are direct and indirect references to the
other members of the Consortium contained in this Agreement; and
WHEREAS, Grantee has agreed to comply with the provisions of this Agreement and
Article 2 of Chapter 11 of Division 1 of the City of Ukiah Municipal Code, commencing with
Section 1878 as it now exists ("Article 2"). A copy of Article 2 is attached as Exhibit A and is
incorporated by this reference; and
WHEREAS, Grantor's City Council has reviewed the present and future cable -related
needs of the City and its residents, and Adelphia's financial, legal, and technical qualifications to
perform its obligations under this Agreement, and has determined following a noticed public
hearing that the public interest would be served by authorizing Adelphia to construct and operate
a Cable System subject to the terms of this Agreement and the provisions of Article 2.
NOW, THEREFORE, in accordance with the provisions of Article 2 and this
Agreement, Grantor grants to the Grantee, and Grantee accepts from the Grantor, nonexclusive
rights to construct and to operate a Cable System.
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PARTIES; NOTICES; RIGHTS AND AUTHORITY GRANTED.
1.1. Parties to the Agreement.
(a) Grantor: The City of Ukiah, a political subdivision of the State of
California, having its principal office at 300 Seminary Avenue, Ukiah, CA 95482.
(b) Grantee: Century Mendocino Cable Television, Inc. d/b/a Adelphia Cable
Communications, whose ownership interests are set forth in the attached Exhibit B incorporated
herein by this reference, and having an office at 5619 DTC Parkway, Greenwood Village, CO
80111.
1.2. Representatives of the Parties and Service of Notices.
The representatives of the parties who are primarily responsible for the
administration of this Agreement, and to whom notices, requests, demands and other
communications must be given, are as follows:
(a) Notices, requests, demands, and other communications to be given by
either party must be in writing and may be effected by personal delivery, by overnight courier, by
first class mail, or by certified mail, return receipt requested.
(b) If the name or title of the principal representative or other recipients
designated to receive the notices, requests, demands, and other communications, or the address of
those persons, is changed, written notice must be given at least five (5) working days before the
Effective Date of that change.
(c) The principal representative of the Grantor is:
Office of the City Manager
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
(d) The principal representative of the Grantee is:
General Manager
Adelphia Cable Communications
1060 North State Street
Ukiah, CA 95482
and to:
Adelphia Communications Corp.
Attn: Legal Department
1125 Kelly Johnson Blvd., Suite 300
Colorado Springs, CO 80920
1.3. Definitions. Unless otherwise defined, or unless the use or context clearly
requires a different definition, the words, terms, and phrases and their derivations, as used in this
Agreement, have the meanings set forth below in Section 14.
1.4. Conflicts. If there is any conflict or inconsistency between the provisions of this
Agreement and the provisions of Article 2, the provisions of this Agreement will control.
1.5. Grant. This Agreement confers upon the Grantee the authority, right, and
privilege to construct, operate, and maintain a Cable System in the "designated service area,"
which is defined as the incorporated territory of the City of Ukiah as existing on the Effective
Date of this Agreement, and any additional territory that may be added to the designated service
area during the term of this Agreement. Grantee's construction of the Cable System within the
designated service area will be in compliance with the provisions of Section 7 of this Agreement.
1.6. Acceptance Required. ired. This Agreement will commence on the Effective Date of
the Resolution authorizing this Agreement as defined in Subsection 15.2., or on the date
specified as the Effective Date in that Resolution. On or prior to its Effective Date, Grantee must
file with the City Manager a written acceptance of the Resolution approving this Agreement.
1.7. Duration. The term of this Agreement is fifteen (15) years from the Effective Date
as specified in Subsection 1.6. Any renewal of the Agreement will be in accordance with then
applicable law.
1.8. Agreement Not Exclusive. The rights granted by this Agreement may not be
construed to limit in any manner the right of Grantor, through its authorized officers and in
accordance with applicable law, to grant to other individuals or entities, by franchise, permit,
license, or otherwise, any rights, privileges or authority similar to or different from the rights,
privileges and authority set forth herein, in the streets, public ways, public places, or other
property that the Grantee is entitled to occupy; provided, however, that those additional grants
will not operate to revoke, terminate, or modify any rights granted to Grantee by this Agreement.
1.9. Scope of the Agreement.
(a) Subject to Grantee's compliance with Grantor's permit procedures
applicable to construction, encroachments, excavations, and pole attachments, Grantee is
authorized and obligated to construct, reconstruct, operate, and maintain its Cable System within
11
the public streets and rights-of-way. Grantee agrees to operate the Cable System within the
specifications attached Exhibit C.
(b) The authority granted by this Agreement includes the privilege to use the
Grantee's Cable System in the designated service area for the provision of both cable and any
other service authorized by law.
(c) Grantor reserves all rights it now has or subsequently acquires with
respect to the future authorization and regulation of non -video services, including, but not limited
to, the right to impose reasonable terms and conditions in addition to or different from those set
forth in this Agreement with respect to the provision of any non -video services, and to charge a
fee or other form of consideration or compensation on those non -video services in lieu of that
specified herein; provided that those terms and conditions and that fee or other form of
consideration or compensation must not be in conflict with federal and state law applicable to
non -video services; and provided further, that the Grantor and Grantee will negotiate in good
faith an agreement as to those terms and conditions and that fee or other form of consideration or
compensation. Grantee reserves all rights it now has or may subsequently acquire with respect to
the provision of non -video services and does not waive any rights it may have to provide those
services.
(d) Grantor acknowledges that Grantee, upon the initial activation of its
Cable System, intends to offer to its subscribers various residential communications services,
including certain non -video services that, upon the Effective Date of this Agreement, are not
subject to regulation by Grantor. Before offering or distributing on a commercial basis any new
non -video services to subscribers within the designated service area, Grantee will, as an
accommodation to Grantor, use all reasonable efforts to provide advance written notice to
Grantor of its intent to offer or distribute such non -video services and a description of those
services. Such notice by itself confers no jurisdiction or authority upon Grantor to regulate non -
video services.
(e) In approving this renewal and grant of Franchise, Grantor reserves any
rights it may have to impose lawful conditions regarding access by third parties to Grantee's
Cable System for the delivery of Internet access service, and Grantor's approval of the renewal
and grant shall not be deemed to have waived any such rights it may have to impose such lawful
conditions at a later date, regardless of whether an assignment, transfer of control or renewal is
pending at that time. Grantee likewise does not waive any right it may have with respect to the
imposition of such a condition. Prior to the enactment or enforcement of any such requirement,
Grantee shall be provided with reasonable notice, an opportunity to be heard, and an opportunity
to present evidence on any findings made or required to be made with respect to such a
requirement.
(f) Grantor and Grantee expressly reserve the right to seek a judicial
determination as to whether any particular service offered by Grantee on its system constitutes
cable service for purposes of this Agreement.
1.10. Renewal Application Fee. County may establish a franchise renewal application
fee as may be permitted by state and federal law. Said fee shall not exceed $7,500.00. The
$7,500.00 renewal application fee may be adjusted based upon increases in the cost of living
index for the Mendocino County area,.
2. GENERAL REQUIREMENTS.
2.1. Governing Requirements. Grantee must comply with all provisions of this
Agreement, the provisions of Article 2 as it exists on the Effective Date of this Agreement
(except as it may be inconsistent with this Agreement), and all other applicable laws, ordinances,
and regulations.
2.2. Fee on Gross Annual Revenue.
(a) As compensation for the rights granted by this Agreement, and in
consideration for Grantor's authorization to use its streets and public ways for the construction,
operation, and maintenance of Grantee's Cable System, the Grantee will pay to the Grantor a fee
of five percent (5%) of its gross annual revenue, as defined in Section 14 of this Agreement,
received by Grantee from the operation of the Cable System in the Grantee's designated service
area. Grantor acknowledges that, during the term of this Agreement, Grantee may offer to its
subscribers, at a discounted rate, a bundled or combined package of services consisting of video
services, which are subject to the fee referenced above in paragraph (a), and other services that
are not subject to that fee. With regard to such bundled or combined services, the following
provisions are applicable:
1. During the term of this Agreement, if Grantee, or any of its
affiliates, bundles or combines the sale of some or all of its video services with non -video
services, and it becomes necessary to separately compute the amount of gross annual revenue
attributable to video services in order to determine the amount of fees or PEG access support fees
that are payable to the Grantor, then the following methodology will be applied: Grantee must
calculate and report gross annual revenue, the fees thereon, and any applicable PEG access
support fees, based upon proportionality, i.e., the amount of gross revenue to be attributed to
each of such services must be in the same proportion that the price of each service, as determined
on a stand-alone basis, bears to the aggregate of the stand-alone prices for those services when
purchased on an unbundled basis.
2. Grantee will not structure the pricing of any bundled or combined
services so as to intentionally or unreasonably cause a reduction in the gross annual revenue
against which franchise fees or other proportionately -derived taxes, surcharges, or fees may be
imposed by the Grantor.
3. If Grantor reasonably believes that Grantee has unlawfully,
inequitably, or contrary to this Subsection 2.2(a)1 allocated gross annual revenue between video
6
services and non -video services in calculating franchise fee payments, then the parties will meet
upon advance notice from the Grantor to discuss the allocation methodology. If the parties
cannot resolve the dispute within a reasonable period of time, then the parties will submit the
matter to a mutually approved third party for mediation. The cost of the mediation will be shared
equally by the parties. If the mediation is not successful, or if the parties cannot mutually agree
upon a mediator, then either party may file an action in a court of competent jurisdiction or
pursue any other remedies available under the law or this Agreement.
4. In recognition of the regulatory uncertainties that exist on the
Effective Date of this Agreement with regard to bundled services that are offered at a discount,
the parties reserve all rights, claims, defenses, and remedies they may have relating to Grantor's
authority to impose and to enforce requirements concerning the revenue allocation methodology
to be applied in calculating franchise fee payments on gross annual revenue that is derived from
the sale to subscribers of video services and non -video services in a discounted package.
(b) The fee specified above in paragraph (a) must be computed and paid by
Grantee to Grantor's Finance Department not later than forty five (45) days after the end of each
calendar quarter. The payment must be accompanied by a report that contains the following
information relating to the preceding calendar quarter:
1. The total gross revenue collected by Grantee, and an itemization
of the various categories of gross revenue collected during that calendar quarter.
2. The methodology used by Grantee in determining any proration
of revenues, such as those derived from advertising sales and home shopping commissions,
among Grantor and other local franchising authorities that are within the regional cluster.
3. The percentage of subscribers within the designated service area
as compared to the total number of subscribers in the regional cluster that includes Grantee's
franchise service area and such related information concerning those subscribers as may be
required by Grantor to verify and validate Grantee's calculations as to the proration of revenues,
such as those derived from advertising sales and home shopping commissions, among Grantor
and other local franchising authorities served by the Grantee.
(c) If the payment of any fee on Grantee's gross annual revenue, or any
recomputed amount of such fee, is not made on or before the dates specified in Subsections 2.2
or 2.3, Grantee must pay to Grantor as additional compensation an interest charge, computed
from the applicable due date, at a rate equal to eight percent (8%) percent per annum.
(d) In addition to the interest charge on a late payment that is imposed in
accordance with paragraph (c) above, if a payment continues to be delinquent for a period of ten
(10) days following expiration of the time for cure of this default, as specified in Subsection
11.1(a), Grantor may treat that delay as a material breach, subject to all applicable provisions of
Subsection 9.2 (a) and Section 11 of this Agreement.
7
(e) Grantee acknowledges its obligation to pay the fee specified above in
paragraph (a), which is the maximum percentage amount authorized by 47 U.S.C. §573 (c)(2)(B)
of the Cable Communications Policy Act of 1984, as amended. If Congress, the FCC, or a court
of competent jurisdiction alters this fee requirement in a manner that materially changes the
benefits or obligations of either party, then the parties agree to comply with the requirements of
such applicable law.
(f) Grantee may pass through franchise fees to cable subscribers in
accordance with federal law.
2.3. Payment to Grantor.
(a) No acceptance of any payment by Grantor may be construed as an accord
that the amount is in fact the correct amount, nor may acceptance of payment be construed as a
release of any claim the Grantor may have against Grantee for any additional sums payable under
the provisions of this Agreement.
(b) All amounts paid are subject to independent audit and recomputation by
Grantor, as provided for in Subsection 10.9.
2.4. Insurance Requirements.
(a) Upon the Effective Date of this Agreement, Grantee, at its sole cost and
expense, must obtain and maintain for the full term of this Agreement, all of the following
insurance coverages:
1. Types of Insurance and Minimum Limits. The coverages
required below may be satisfied by any combination of primary liability and excess liability
policies.
A. Workers' Compensation and Employer's Liability Insurance
in conformance with the laws of the State of California
B. Grantee's vehicles, including owned, leased, or hired
vehicles, must each be covered with Automobile Liability Insurance in the minimum amount of
$2,000,000 combined single limit per accident for bodily injury and property damage.
C. Grantee must obtain and maintain Comprehensive or
Commercial General Liability Insurance coverage in the aggregate annual amount of $3,000,000
combined single limit, including bodily injury, personal injury, and broad form property damage.
This insurance coverage must include, without limitation, contractual liability coverage adequate
to meet the Grantee's indemnification obligations under this Agreement.
2. All required Automobile Liability Insurance and Comprehensive
or Commercial General Liability Insurance policies must contain an endorsement in substance as
follows:
"The City of Ukiah is added as an additional insured as respects the
operations of the named insured under the Cable System Franchise
Agreement entered into by the City and the named insured."
3. The insurance required of Grantee under this franchise is primary,
and no insurance held by Grantor may be called upon to contribute to a loss under this coverage.
4. All insurance policies must provide that, in the event of material
change, reduction, cancellation, or non -renewal by the insurance carrier for any reason, not less
than thirty (3 0) days' written notice will be given to Grantor by registered or certified mail of
such intent to cancel, materially change, reduce, or not renew the coverage. An authorized agent
of the insurance carrier must provide to the Grantor, on such schedule as is requested by the
Grantor, a certification that all insurance premiums have been paid and all coverages are in force.
If for any reason Grantee fails to obtain or keep any of the insurance in force, Grantor may (but
is not required to) obtain that insurance. In that event, Grantee must promptly reimburse Grantor
its premium costs, plus one percent (1%) monthly interest thereon until paid.
5. All insurance must be obtained from companies that are
authorized to transact business in California and that have a rating of A- or better in Best's
Insurance Guide.
6. Any deductibles or self-insured retentions are subject to the
Grantor's prior approval, which approval will not be unreasonably withheld.
(b) Prior to the Effective Date of this Agreement, Grantee must provide to
Grantor written insurance binders, statements of property coverage, certificates of insurance, or
certified copies of policies evidencing the required coverage as specified by Grantor.
2.5. Security for Grantee's Performance.
(a) Security for Grantee's Performance of Construction Obligations. If
Grantee commences new system construction such that more that twenty-five percent (25%) of
its plant is upgraded or replaced, on or before the date the Grantee commences construction,
Grantee must provide to Grantor a construction bond in the amount of $500,000. The
construction bond will guarantee the Grantee's faithful performance of its obligations under this
Agreement. Prior to construction, Grantee will prepay or make a deposit towards the cost of
Grantor's inspection fees and administrative costs. The construction bond will guarantee
emergency repairs to public improvements that may be damaged in the course of Grantee's
construction of the Cable System, and will guarantee that, upon any abandonment or other
permanent cessation or termination of the work relating to the construction of Grantee's Cable
System, the Grantor's streets, highways, and public rights-of-way will be restored to the
condition existing prior to Grantee's construction work, and the facilities of the Cable System
will either be removed or abandoned in place, as may be directed by the Grantor's principal
representative.
(b) Upon completion of the construction to the satisfaction of Grantor, the
Construction bond may be released. Upon completion of the construction Grantee will provide
the Grantor written notice. Within thirty (30) days of such notice, Grantor will release the
construction bond obligation from Grantee.
(c) Security Fund for Correcting Matters of Non -Compliance Defective Work
and Other Obligations. Within sixty (60) days after the Effective Date of this Agreement, Grantee
must provide to Grantor a security fund to guarantee the Grantee's performance of its obligations
under this Agreement. The security fund shall consist of a $30,000 irrevocable, replenishable
letter of credit to the order of Grantor and a $100,000 performance bond. The security fund shall
apply to Grantee's operations throughout the jurisdiction of Grantor. The security fund is subject
to and must comply with the following requirements:
1. The irrevocable, replenishable letter of credit and the performance
bond shall be in a form approved by Grantor's County Attorney. The letter of credit and
performance bond shall be maintained in the required amount throughout the term of this
Agreement.
2. The security fund will be available to Grantor to satisfy any and all
claims, penalties, liens, fees, payments, costs, damages, or taxes due Grantor from Grantee that
arise by reason of the construction, reconstruction, operation, or maintenance of the cable system.
Grantor may elect whether to make a demand on the letter of credit or a claim against the
performance bond, or both.
3. After the procedural requirements specified in Section 11 of this
Agreement have been satisfied, if Grantee fails or refuses to pay to Grantor any amounts due
under the terms and provisions of this Agreement, Grantor may draw against the letter of credit
or claim against the performance bond on the unpaid amount plus accrued interest by making a
demand in the form required by the letter of credit or performance bond. After the Grantor has
made such a demand, Grantor must give written notice to Grantee of the amount, date, and the
basis for the claim within five (5) days of malting such demand.
4. Provided that Grantor follows the procedures for drawing down on
the letter of credit or claiming against the performance bond, Grantee shall not initiate litigation
to prevent or impair Grantor from assessing the security fund. Grantee's remedy, in the event
Grantee believes any assessment against the security fund is improper, shall be through a legal
action against Grantor after the security fund has been drawn upon by Grantor. In the event
Grantor's action is found improper by a court of competent jurisdiction, Grantee shall be entitled
to a refund of the monies withdrawn from the letter of credit or paid from the performance bond
plus interest from the date of withdrawal or payment.
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5. Unless Grantee has initiated litigation against Grantor that the
Grantor's assessment against the security fund has been improper, Grantee shall replenish the
letter of credit and/or performance bond to the amount required in this Agreement within sixty
days (60) days of receipt of written notice from Grantor to Grantee that an amount has been
withdrawn from the letter of credit by Grantor or paid from the performance bond.
6. Within sixty (60) days after expiration of the term of the
Franchise, Grantee will be entitled to a release of the letter of credit and performance bond
provided, however, that Grantee is not then in default of its obligations under this Agreement.
7. The rights reserved to Grantor with respect to the security fund are
in addition to all other rights of Grantor pursuant to this Agreement. Grantor's exercise of rights
with respect to the security fund will not constitute an election of remedies or a waiver of any
other rights Grantor may have under this Agreement or any applicable law.
(d) Adjustments.
1. Fifth Anniversary. Upon written request from the Grantor within
ninety (90) days of the fifth anniversary of this Agreement, Grantee shall increase the amount of
the Letter of Credit by $10,000, malting the total amount of the Letter of Credit equal to $40,000.
Grantee shall have sixty (60) days from receipt of such written request to implement this
increase.
2. Tenth Anniversary. Upon written request from the Grantor within
ninety (90) days of the tenth anniversary of this Agreement, Grantee shall increase the amount of
the Letter of Credit by an additional $10,000 making the total amount of the Letter of Credit
equal to $50,000. Grantee shall have sixty (60) days from receipt of such written request to
implement this increase.
2.6. Fair Employment Practices.
(a) During the term of this Agreement, Grantee must comply with all
applicable federal, state, and local laws and regulations relating to fair employment practices.
(b) Grantee represents that, during the term of this Agreement, Grantee and
any parties with whom it may contract will adhere to equal opportunity employment practices to
ensure that applicants and employees are treated equally and are not discriminated against
because of their race, religious creed, color, national origin, ancestry, handicap, sex, sexual
orientation, or age. Grantee further represents that it will not maintain any segregated facilities.
RIGHTS RESERVED TO THE GRANTOR.
3.1. Reservation. Grantor reserves every right it may have in relation to its power of
eminent domain over Grantee's contractual rights and property.
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3.2. Delegation of Powers. Unless otherwise provided in this Agreement, and except
with regard to the grant, transfer, termination, revocation, or forfeiture of the Agreement, any
right or power in, or duty retained by or imposed upon Grantor, or any officer, employee,
department, commission, or board of Grantor, may be delegated by Grantor to any officer,
employee, department or board of Grantor, or to such other person or entity as Grantor may
designate to act on its behalf.
3.3. Right to Inspect Construction. The Grantor has the right to inspect all
construction, installation, or other work performed by Grantee in connection with the Agreement,
and to make such tests as may be necessary to ensure compliance with the terms of this
Agreement, so long as that inspection and testing does not unreasonably interfere with Grantee's
operations.
3.4. Right to Require Removal of Property. Consistent with applicable law, at the
expiration of the term of the Agreement, or upon its lawful revocation or termination, the Grantor
has the right to require the Grantee to remove, within a reasonable period of time that will not be
less than one hundred eighty (180) days, and at Grantee's expense, all portions of its Cable
System and any other property from all streets and public rights-of-way within the designated
service area.
3.5. Right of Intervention. Grantor has the right to intervene in any suit, proceeding,
or other judicial or administrative proceeding in which the Grantee is a party and in which the
Grantor has any material interest.
3.6. Option to Acquire the Cable System and Infrastructure. Grantee agrees to
comply with the requirements of Section 627 of the Cable Act.
4. SYSTEM CONSTRUCTION AND SPECIAL SERVICES.
4.1. System Construction. Grantor acknowledges that the Grantee's system was
recently rebuilt to the standards described in Exhibit G. These provisions shall be the minimum
standards that apply to any subsequent reconstruction of Grantee's system.
4.2. Notices Relating to System Construction.
(a) Notices to Local Newspaper. If requested by Grantor, Grantee must
publish a notice in a newspaper of general circulation before commencing construction of any
phase of the Cable System that would affect more than twenty five percent (25%) of its
subscribers. The notice must be published not less than thirty (3 0) days prior to construction.
The notice must provide a general summary of the proposed construction, and a telephone
number that the public may call for additional information.
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(b) Other Notices.
1. Grantee will provide to Grantor at least forty five (45) days prior
written notice before commencing construction of any phase of the Cable System.
2. At least forty eight (48) hours prior to the scheduled construction
date, Grantee must provide additional notice to residents within the proposed construction area
by the use of door hangers that set forth a general description of the construction project, the
anticipated dates of construction, and a telephone number for the Grantee that a resident may call
with any questions or concerns. If driveways are to be blocked, additional notice must be given
by Grantee to affected residents, as required by Subsection 7.15(g), which notice must specify the
dates that access will be blocked.
4.3. Services for Public, Educational and Community Facilities.
(a) Grantee will install, maintain, and repair, without charge, ata point of
demarcation to be specified by Grantor, one cable drop at each of the public, educational and
community facilities identified in Exhibit D.
(b) Grantee will provide, without charge, extended basic analog cable service
to one outlet at each of the public, educational and community facilities identified in Exhibit D.
The parties agree that reasonable substitutions of locations identified in Exhibit D may be
required from time -to -time, and those substitutions may be negotiated in a manner that is
mutually beneficial to the parties.
(c) Upon Grantor's written request, Grantee will also install additional drops
and outlets for video services at specified public, educational and community administrative
facilities. Grantor will pay Grantee for such additional drops and outlets at Grantee's cost for
labor and materials.
(d) Grantor will inform Grantee of the construction of new public,
educational, and community facilities so that exterior and interior connections and cable drops
can be installed by Grantee at the time of construction in order to minimize costs. One cable
drop will be installed by Grantee without cost to Grantor, provided that the new facility requires
no more than a standard 150 -foot aerial drop line from the main feeder line. Grantor will pay
Grantee for additional drops, connections, outlets, and construction costs at such new facilities at
Grantee's cost for labor and materials.
4.4. Emergency Alert Capability.
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(a) In constructing the Cable System, Grantee must comply with all FCC
rules and regulations relating to the national Emergency Alert System ("EAS"). To the extent
that it is technically feasible and authorized by law, Grantee will provide the system with
emergency override capability to enable Grantor's public safety personnel and designated public
officials to cablecast emergency messages by interrupting and overriding the audio signals of all
cable channels using remote coded -access activation devices at one or more sites to be mutually
agreed upon by the parties. Equipment providing for this emergency override capability will be
installed by Grantee at these sites, at no expense to Grantor.
(b) In the event of any conflict between the federally -mandated Emergency
Alert System ("EAS") and the requirements of Grantor's emergency override system, the
federally -mandated EAS will have priority.
4.5. Parental Control Devices.
(a) Grantee must provide subscribers upon request with a "trap," "lockbox,"
digital code, or similar parental control device that enables a subscriber to block the reception of
video and audio signals from selected channels on the Cable System, including any premium or
pay-per-view channel that is scrambled.
(b) No additional, continuing charge for the use of any such parental control
device may be imposed by Grantee if that device is incorporated into equipment, such as a
decoder, for which a subscriber is already paying a charge.
(c) Upon request, Grantee must provide to subscribers written instructions
on the methods by which selected channels on the Cable System may be restricted or blocked.
4.6. Technical Standards.
(a) The FCC Rules and Regulations, including Part 76, Subpart K (Technical
Standards), and any amendments or supplements thereto, will apply to the Grantee's operations to
the extent permitted by applicable law.
(b) The Grantor's obligations relating to the provision of emergency power
for the Cable System include the following:
1. Grantee must provide standby emergency power equipment for its
headend and for its fiber optic equipment transmitters and receivers, regardless of whether that
fiber optic equipment is located at the headend or in the trunk or distribution system of the
Grantee's plant.
2. Grantee's obligation to provide a standby emergency power
supply includes the installation of equipment that cuts in automatically during a utility power
failure and reverts automatically to commercial power when it is restored. Backup power
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supplies and associated equipment must be tested on a regular basis. Test results must be
recorded in logs that are available upon request for inspection by the Grantor.
3. All standby emergency power equipment will be installed,
activated, and maintained by the Grantee at its sole expense and, during a commercial power
interruption, must be capable, at a minimum, of powering the Cable System as follows: for plant
amplifiers, not less than one and one-half (1 '/2) hours; for nodes, a period of time that is
consistent with acceptable industry standards; and for headend and hub, twelve (12) hours.
4. When one or more commercial power outages exceed a
cumulative total of twenty four (24) or more hours during any twelve (12) month period in areas
other than those where power is not available to residential subscribers, Grantee and Grantor may
confer for the purpose of determining whether there is a need to develop a plan to reduce outage
time below twenty four (24) hours.
(c) The Cable System must be designed, installed, and operated to comply
with the following general requirements:
1. Twenty four (24) hour daily operation.
2. Avoid causing interference with the reception of off -the -air
signals by non -subscribers.
3. Operate in a wide range of outdoor temperatures that typically
occur within the designated service area.
4. Assure that all subscribers will receive standard color and
monochrome signals on the FCC -designated Class 1 channels without noticeable picture
degradation or visible evidence of color distortion, or other forms of interference that may be
attributable to deficiencies in the Cable System.
4.7. No Offset Against Fees. In accepting this Agreement, Grantee acknowledges
that the costs of the commitments specified in this Section 4 will not be offset against any fees
payable by Grantee to Grantor during the term of this Agreement.
5. SERVICES PROGRAMMING AND CONSUMER PROTECTION STANDARDS.
5.1. Rates and Charges for Services and Equipment. Grantor reserves the right to
regulate Grantee's rates and charges for cable services and equipment in the manner and to the
extent permitted by law now or in the future.
5.2. Low Income persons have special needs. The Grantor reserves its rights to require
special discounts for qualified low income person consistent with state and federal law.
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5.3. Consumer Protection and Service Standards. Except as otherwise expressly
provided in this Agreement, Grantee must comply with the requirements of Subsections
1.11.2.1902 to 1.11.2.1907 and all applicable state and federal laws; and regulations relating to
consumer protection and service standards that are referenced. In the event of any conflict
between local, state and federal requirements, the strictest standards shall apply.
5.4. Broad Categories of Cable Services.
(a) Grantee must provide, at a minimum, the following broad categories of
programming: local broadcast stations; news and weather; music; financial and business
programming; cultural programming; contemporary movies; general entertainment; sports
programming; ; PEG access channel programming; family programming (including health and
religious programming) and children's programming.
(b) If any broad category of programming listed above in paragraph (a)
becomes unavailable, or cannot be provided by Grantee under existing FCC regulations, then
Grantee must provide, to the extent feasible, reasonably comparable programming.
6. SUPPORT OF LOCAL CABLE USAGE AND TECHNOLOGICAL
INFRASTRUCTURE.
(a) The obligations of the Grantee that relate to the support of local cable
usage, including the provision of adequate public, educational, and governmental access channel
capacity, facilities, and financial support, are set forth in the attached Exhibits D and E. Grantee
acknowledges that the costs of the commitments specified in Exhibit D and E will not be offset
against any fees payable by Grantee to Grantor during the term of this Agreement.
(b) Any pass-through to subscribers of costs incurred by Grantee in
performing its obligations under Exhibit D and E must be in accordance with all applicable
regulations, formulas, and requirements of the FCC.
7. DESIGN AND CONSTRUCTION.
7.1. System Construction and Extension.
(a) The Cable System must be operated in accordance with Exhibits C, and all
other applicable provisions of this Agreement.
(b) Throughout the designated service area, Grantee is obligated to design and
to construct its Cable System in order to pass every single-family dwelling unit, multiple -
dwelling unit, hospital, rest -home, boarding house, school, and governmental building, subject to
the following requirements and exceptions:
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1. Grantee must make its Cable System services available to
residential dwelling units in all residential areas; provided, however, that Grantee's extension of
its Cable System to residential dwelling units in residential areas that are annexed to the City
after the Effective Date of this Agreement will be subject to the line -extension requirements set
forth below in Subsection 7.1(b)2.
2. Where residential dwelling units (or any other structure referenced
in Subsection 7.1(b) above) are located in an area that does not meet the density requirement of at
least thirty (3 0) homes per cable mile, Grantee is not obligated to provide service. However,
Grantee must provide, upon the written request of a prospective subscriber desiring service, an
estimate of the costs of extending service. These costs will be apportioned as follows: If there
are ten (10) residential dwelling units per cable mile, then Grantee's share will equal 10/30 or
one-third (1/3) of the construction costs. These line -extension requirements will also apply to a
portion of a cable mile that meets proportionate density requirements. Thus, if there are fifteen
(15) residential dwelling units per one-half mile, then Grantee must construct its Cable System
plant without requiring a capital contribution from prospective subscribers. Grantee may require
an advance payment or an assurance of payment satisfactory to Grantee. If the area later achieves
the density required for mandatory extensions of service, the amounts paid will be deemed to be
consideration for early extension.
3. Subject to the exceptions set forth below in Subsection 7.1(b)4,
Grantee must extend and make its Cable System services available to owners or occupants of all
residential dwellings who request connection, at the standard connection charge, if that
connection requires no more than a standard 150 -foot aerial drop line from the main feeder line.
If a connection requires more than a standard 150 -foot aerial drop line, or an underground service
connection, the prospective residential subscriber must be given the option of paying the
incremental cost for that installation.
4. If additional territory is annexed to the County after the Effective
Date of this Agreement, and an incumbent cable operator is then serving that annexed territory,
then Grantee may, but is not required to, overbuild in order to provide Cable System services to
residential dwelling units in that territory.
(c) Grantor may require Grantee to extend and make its Cable System services
available to commercial, industrial, and other nonresidential zones within the designated service
area subject to the density requirements stated above.
(d) Service to prospective subscribers residing in multiple -dwelling units need
only be provided if, after evaluating the terms and conditions for access that may be imposed by
an owner or manager of such multiple -dwelling units, the Grantee determines that those terms
and conditions are reasonably acceptable; provided, however, that Grantee will use all reasonable
diligence to negotiate agreements with owners or managers of multiple -dwelling units to provide
Cable System service.
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7.2. Construction Components and Techniques. Construction components and
techniques must comply with the terms of this Agreement and all applicable statutes, ordinances,
regulations, and pole attachment agreements that relate to the management and use of the public
rights-of-way.
7.3. Technical and Performance Standards. Grantee must construct, reconstruct,
install, operate, and maintain its Cable System in a manner consistent with all applicable federal,
state, and local laws and ordinances, FCC technical standards, and the additional standards and
requirements that are set forth in Exhibit F of this Agreement.
7.4. Construction Codes. The Grantee must strictly adhere to all building and zoning
codes now or hereafter in force and must obtain all necessary permits, which permits will be
processed in a timely manner and will not be unreasonably delayed or denied. The Grantee will
make every reasonable effort to arrange its lines, cables, and other appurtenances, on both public
and private property, in such a manner as to minimize interference with the use of that property
by any person. In the event of such interference, the Grantor may require the removal or
relocation of the Grantee's lines, cables, and appurtenances from the property in question.
Grantee must give at least forty eight (48) hours advance notice to all property owners prior to
installing any additional above -ground or underground structures upon easements located on
private property. Grantor will not modify its construction requirements subsequent to the
completion of construction so as to require reconstruction or retrofit unless the public health and
safety so requires.
7.5. Construction Default. Upon the failure, refusal or neglect of Grantee to
undertake or complete any phase of construction, repair, relocation or other necessary work as
required by this Agreement, thereby creating an adverse impact upon the public health, welfare or
safety, Grantor may (but is not required to) cause that work to be completed, in whole or in part,
and upon so doing will submit to Grantee an itemized statement of costs. Grantee will be given
reasonable advance notice of Grantor's intent to exercise this power, and fifteen (15) days to cure
the default, unless a different period for cure is specified in Exhibit F. Grantee must, within
thirty (30) days of billing, pay to Grantor the actual costs incurred.
7.6. Vacation or Abandonment. If any street, alley, public highway, or portion
thereof used by the Grantee is vacated by the Grantor, or its use is discontinued by the Grantor,
then upon reasonable notice the Grantee may be required to remove its facilities, unless
otherwise specifically authorized, or unless easements for Cable System facilities have
previously been reserved. Following that removal, Grantee must restore, repair, or reconstruct
the area in accordance with the requirements of Exhibit F. Upon any failure, neglect, or refusal
of the Grantee, after thirty (30) days' notice by the Grantor, to do such work, Grantor may cause it
to be done, and within thirty (30) days of billing, Grantee must pay to Grantor the actual costs
incurred.
7.7. Abandonment in Place. Grantor may, upon written application by Grantee,
approve the abandonment in place by Grantee of any property, under such terms and conditions
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as Grantor may approve. Upon Grantor -approved abandonment in place of any property, Grantee
must cause to be executed, acknowledged, and delivered to Grantor such instruments as Grantor
may prescribe and approve in order to transfer and convey ownership of that property to Grantor.
7.8. Removal of System Facilities. If Grantee's plant is deactivated for a continuous
period of thirty (30) days, (except for reasons beyond Grantee's control), and without prior
written notice to and approval by Grantor, then Grantee must, at Grantor's option and demand,
and at the sole expense of Grantee, remove all of Grantee's property from any streets or other
public rights-of-way in accordance with Subsection 9.3. Grantee must promptly restore the
streets or other public areas from which its property has been removed, including aerial trunk and
feeder lines, in accordance with the requirements of Exhibit F.
7.9. Movement of Facilities. If Grantor determines it is necessary to move or to
relocate any of the Grantee's property because of a conflict with a public project, Grantee, upon
reasonable notice, must move, at the expense of Grantee, its property in order to facilitate that
public project. No such movement or relocation maybe deemed a taking of Grantee's property.
7.10. Undergrounding of Cable. Cables must be installed underground at Grantee's
cost where all existing utilities are already underground or all new utilities are being installed
underground in the area in accordance with the Grantor's adopted undergrounding policy.
Previously installed aerial cable will be installed underground at Grantee's pro rata cost in concert
with other utilities when aerial facilities are required to be placed underground
pursuant to a policy or program by Grantor to underground existing overhead wires, or as
otherwise may be required by law.
7.11. Facility Agreements. This Agreement does not relieve Grantee of any
obligations to obtain pole or conduit space from Grantor, any utility company, or others
maintaining utilities in Grantor's streets.
7.12. Repair of Streets and Public Ways. All disturbance or damage to streets and
public ways, and to improvements located within those streets and public ways, caused by the
Grantee or its contractors during the construction, operation, or maintenance of the Cable
System, must be restored at Grantee's expense, within the time frame specified by Grantor, and in
accordance with all applicable requirements of Exhibit F.
7.13. Erection of Poles Prohibited.
(a) Grantee may not erect any pole on or along any street or public way
where there is an existing aerial utility system. If additional poles in an existing aerial route are
required, Grantee must negotiate with the appropriate public utility, including the Grantor if
applicable, for their installation. Any such installation requires the advance written approval of
the Grantor.
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(b) Subject to applicable federal and state law, the Grantee must negotiate
the lease of pole space and facilities from the existing pole owners for all aerial construction,
under mutually acceptable terms and conditions. No pole line may be extended solely for the
purpose of accommodating Grantee's facilities. Line extensions beyond any existing pole line
must be underground where practical.
7.14. Reservation of Street Rights. Nothing in this Agreement precludes the Grantor
from constructing, repairing, or altering any public work or improvement. That work will be
done, insofar as practicable, in such manner as not to unnecessarily obstruct, injure, or prevent
the use and operation of any property of Grantee. If, however, any property of Grantee interferes
with the construction, maintenance, or repair of any public improvement, that property must be
removed or replaced in such manner as may be directed by Grantor so as not to interfere with the
public work or improvement, and that removal or replacement will be at the expense of the
Grantee. Grantor will give Grantee sixty (60) days prior written notice of any public work or
improvement that may require the removal or replacement of Grantee's property; provided,
however, that if the public work or improvement is necessitated by an emergency situation,
notice will be given as far in advance as is reasonably feasible under the circumstances.
7.15. Miscellaneous Design and Construction Requirements.
(a) Underground Installation of Conduit and Other Facilities. All
underground installation by Grantee of conduit and other facilities related to its system must be
in compliance with the Grantor's requirements, standards, and specifications that are set forth in
Exhibit F.
(b) New Development -Underground Utilityreas. Where new construction
or property development occurs, and utilities are to be placed underground, Grantor will use its
best efforts to require the developer or property owner to give reasonable notice to Grantee of
that new construction or development. Grantee may be involved in all design aspects of the new
construction or development that relate to the infrastructure required for Cable System service,
including the provision of specifications and engineering assistance prior to construction. The
costs of easements, trenching, and construction of the conduits required to bring Cable System
service to the new construction or development will be borne by the Grantee, the developer, or
the property owner, as may be agreed upon between them. Grantee will be notified of any date
on which the installation of conduit, pedestals, vaults, or laterals will be available for Grantee's
inspection. Grantee will bear all costs of installing cable, amplifiers, and other equipment
required to construct and operate the Cable System.
(c) Antennas and Towers. Antenna supporting structures, including towers,
that are owned by or operated for Grantee must comply with all applicable electrical codes and
FCC specifications, and must be erected, illuminated, painted, and maintained in accordance with
all applicable rules and regulations of the Federal Aviation Administration, as well as local
ordinances and regulations that require the Grantor's approval of the siting of towers or other
support structures within the County.
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(d) Tree Trimming. Grantee is authorized (but not required) to engage a
licensed tree service contractor to trim trees on public property, at its own expense, as may be
necessary to protect its wires, facilities, and equipment, subject to the direction and supervision
of the Grantor. Trimming trees on private property that is not subject to a public easement
requires the written consent of the property owner or occupant. Each licensed tree service
contractor proposed to be engaged by Grantee must be in possession of a valid City business
license.
(e) Mitigation of Adverse Visual Impacts. Grantee must take all reasonable
measures, at its expense, to mitigate the adverse visual impacts of all power pedestals and flush -
mounted equipment in accordance with the same standards and regulations that are prescribed by
the City Engineer or other City designee and imposed by the Grantor upon the incumbent Cable
System operator and upon public utilities. These measures may include, without limitation,
(i) the installation of landscaping to minimize public view of any authorized above -surface
power pedestals; (ii) the maintenance of the equipment in good condition, including compliance
with Grantor's ordinances requiring graffiti removal; and (iii) the placement of overhead drops as
close as possible to other utility drops, consistent with all applicable electrical codes. Ongoing
maintenance of any landscaping required to mitigate adverse visual impacts is the responsibility
of the property owner or the Grantee under Grantee's easement agreements. Grantee must
regularly inspect all above -grade facilities located in the public rights-of-way and must complete
any required maintenance or repairs within thirty (30) days after any such inspection. Grantee
must respond within seven (7) days to requests or complaints received from the Grantor or
members of the public relating to the repair, replacement, or cleanliness of above -grade facilities.
(f) Use of Chalk -Based Paints. Grantee must use only chalk -based paints to
mark public rights-of-way in connection with the construction or maintenance of the Cable
System. All paint marks remaining after Grantee's cleanup following the completion of
construction or maintenance work must be removed by Grantee by means of sand -blasting,
chemicals, or high-pressure water within thirty (30) days following receipt of Grantor's written
notice requesting such removal.
(g) Vehicle Access to Private Property. If an owner's vehicle access to
private property is anticipated to be precluded for more than three hours during any construction,
operation, or maintenance of the Grantee's Cable System, then Grantee must give at least twenty-
four (24) hours prior written notice to the owner.
(h) Location of Utilities. Grantee must verify the location of all existing
utilities to ensure that they are not damaged during construction or maintenance of the Cable
System. Grantee must be a member of Underground Service Alert and must contact that entity
48 hours in advance of any underground construction in order to ensure that utilities are not
damaged. Grantee is solely responsible for the replacement or repair of any utilities that are
damaged by Grantee or its agents during construction or maintenance activities.
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(i) "As -Built" Construction Drawings. Following Grantee's construction of
any new built portion of the Cable System, Grantee's updated "as -built" map will be available for
review by Grantor at Grantee's local office during normal business hours.
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COMPLIANCE AUDITS AND TECHNICAL DATA.
8.1. Compliance Performance Audits and future PEG support modifications.
(a) Grantor may, at its option, and upon reasonable advance notice, require
that compliance audits of the Cable System be conducted annually by an independent technical.
consultant selected and employed by Grantor, and at Grantor's expense, to verify that the system
complies with all technical standards and other specifications of this Agreement. Grantee must
be provided an opportunity to be present during any compliance audit, and the Grantor must
deliver a copy of the test results to Grantee. If the test results demonstrate that Grantee has
materially failed to comply with required technical standards, the cost of the compliance audit
will be borne by Grantee.
(b) Within ninety (90) days after the third, seventh, and, if applicable, the
twelfth, anniversary dates of this Agreement, and at any other time, upon Grantor's request,
Grantor and Grantee will meet to review the performance of the Cable System. This review may
include consideration of the following:
1. The test results relating to Grantee's compliance with technical
standards and specifications.
2. The reports required by this Agreement that relate to subscriber
complaints received by the Grantee concerning technical problems or service -related issues.
3. The types and quality of services provided by Grantee, and the
extent to which the Grantee's then -existing bandwidth is adequate to accommodate those services
without degradation or loss of quality and to accommodate the anticipated demand for channel
capacity on the Cable System by unaffiliated video programming providers.
4. Reports submitted by Grantee or any other person that address
Grantee's compliance with the provisions of this Agreement.
5. Changes in Cable System technology and services, including but
not limited to a comparison of the Grantee's technology and services with those of any other
franchised multi -channel video programming provider then operating in the City, and an
evaluation of established, operating state-of-the-art technology in comparable communities and
the economic and technical feasibility of providing interactive, addressable, and other new
services.
6. Changes in state and federal laws and regulations that affect the
operation of the Cable System.
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An assessment of the PEG access and community connectivity
needs of the Grantor that are reasonably anticipated to exist.
(c) Within thirty (30) days after the conclusion of a system performance
review meeting, Grantor may issue findings with respect to system compliance as required under
this Agreement. If noncompliance with required performance standards is identified, Grantor
may direct Grantee to correct the noncompliance within a reasonable period of time.
(d) Participation by Grantor and Grantee in this system performance and
compliance review process does not impose upon Grantee any obligation not imposed by federal
or state law, and neither Grantor nor Grantee waive any rights they may have under applicable
federal or state law.
(e) In addition to the meetings provided for under Subsection 8.1(b) above,
and upon Grantor's reasonable request, Grantee will meet with Grantor's representatives to
discuss the extent to which the technology and services of the Cable System are comparable to
established, operating state-of-the-art technology in franchised multichannel video programming
systems serving comparable communities such as Santa Rosa, CA or other similar communities
in California or adjacent states, it being understood by the parties that Grantee will provide to
subscribers in the designated service area a level of overall service that is comparable, on
average, to the services provided by multichannel video programming system operators that are
then operating in similar communities in California or adjacent states. Nothing in this
Agreement, however, may be deemed to require that Grantee provide a service where it is not
technically or economically feasible to do so. Topics for discussion at these meetings may also
include, without limitation, the future use of interactive services, the sharing of local production
facilities with other jurisdictions, and the provision of additional capacity for public, educational,
or governmental access channels.
8.2. System Testing and Technical Data.
(a) Grantee must conduct performance testing of its Cable System,
including its signal quality, in accordance with FCC rules and regulations. Upon Grantor's
request, those test results will be provided to Grantor by Grantee.
(b) During the phased construction of the Cable System, Grantee will
incorporate test equipment wherever feasible in order to continuously monitor the system for
outages and signal quality.
(c) Upon Grantor's request, Grantee will provide to Grantor access to copies
of "as -built" system drawings and technical documentation as specified in Subsection 7.15(i).
Grantor may not disclose this information to third parties without the Grantee's prior written
approval.
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(d) Grantee must maintain at its local office specified in Subsection 1.2(b) a
file of all documents that are required by the FCC or other governmental agencies to be made
available for public inspection during normal business hours and upon reasonable advance
notice. Grantee may charge a reasonable fee for any copies of documents that may be requested.
8.3. Emergency Repair Ca ap bility. It is Grantee's responsibility to ensure that its
personnel are qualified to make repairs, that they are available at all reasonable times, and that
they are supplied with keys, equipment location instructions, and technical information necessary
to begin repairs upon notification of the need to maintain or restore continuous service to the
Cable System.
9. REVOCATION, TERMINATION, OR FORFEITURE.
9.1. Revocation. Consistent with applicable law, and in addition to all rights and
remedies provided elsewhere in this Agreement, Grantor reserves the right to revoke, terminate,
or declare a forfeiture of this Agreement, subject to the procedural guidelines set forth in Section
11 of this Agreement, if the Grantee, whether willfully or negligently, violates any material
provision of this Agreement and, following notice, thereafter fails to correct or remedy that
violation in accordance with the terms of this Agreement.
9.2. Grounds for Revocation, Termination, or Forfeiture. Where the Grantee's
violation is determined to constitute any of the following, each of which is deemed to be a
material provision of this Agreement, the Grantor may revoke, terminate, or declare a forfeiture
of this Agreement and all rights and privileges associated with it.
(a) Grantee's failure to pay delinquent fees for a period of ten (10) days
following expiration of the time specified for cure of this default, as provided for in
Subsection 11. l (a), unless Grantee is in good faith contesting that payment in a court or
governmental agency of competent jurisdiction.
(b) Grantee's failure to provide or to maintain the insurance coverage in the
amounts specified in Subsection 2.4.
(c) Grantee's failure to provide or to maintain the performance bond and
letter of credit specified in Subsection 2.5.
(d) Grantee's failure to honor its indemnification obligations as specified in
Subsection 13.4.
(e) Grantee's failure to receive and maintain all required approvals from the
Federal Communications Commission in connection with its operation of the Cable System,
unless Grantee is in good faith contesting that failure in a court or governmental agency of
competent jurisdiction.
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(f) Grantee's material violation of any final order or ruling of any regulatory
body having jurisdiction over the Grantee relative to the Cable System services authorized by this
Agreement, unless that order or ruling is in good faith being contested by the Grantee before the
regulatory body or in a court of competent jurisdiction.
(g) Grantee's willful attempt to evade compliance with any provisions of this
Agreement or Article 2, or to practice any fraud or deceit upon the Grantor or upon existing or
prospective subscribers.
(h) Grantee's wrongful cessation of Cable System services to its subscribers
for reasons within Grantee's control; provided that Grantee will not be determined to be at fault
under any provision of this Agreement in any case where the performance of that provision is
excused or excusable under Subsection 13.2.
(i) Grantee's persistent failure or refusal to remedy violations, defaults,
breaches, or incidents of noncompliance for which lesser penalties have previously been
imposed, unless Grantee is then contesting the same in good faith in a court or governmental
agency of competent jurisdiction.
0) Grantee's falsification of information set forth in any report required to
be submitted to Grantor under this Agreement.
9.3. Removal of Property. Upon any termination, revocation, or forfeiture of this
Agreement prior to completion of construction of the entire Cable System, Grantee may be
required to remove its structures and property from the Grantor's streets and to restore those
streets to their prior condition within a reasonable period of time specified by Grantor, but not
less than one hundred eighty (180) days Upon Grantee's failure to do so, in addition to any other
remedies available to Grantor, the Grantor may perform the work and collect all costs, including
direct and indirect costs, from the Grantee. At Grantor's discretion, the cost of that work may be
placed as a lien upon all plant, property, or other assets of the Grantee or a claim may be asserted
against the performance bond referenced in Subsection 2.5(a).
10. RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT• EXPERTS.
10.1. Grantee to Provide Records. All reports and records required under this Section
10 must be furnished at the sole expense of Grantee.
10.2. Records. Grantee must maintain and make available for inspection and copying
during normal business hours, and upon reasonable notice, a separate and complete set of
business records that are reasonably related to Grantee's performance of this Agreement or
Grantor's regulatory functions. Grantee need not maintain all such records at the office specified
in Subsection 1.2(b), but will make them available for inspection at that location unless alternate
arrangements are agreed upon by Grantor and Grantee.
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10.3. Maintenance and Inspection of Records. Grantee must maintain accurate books
and records, in conformity with generally accepted accounting principles. Grantor, upon
reasonable notice, has the right to inspect those books and records of all maps, financial,
statements, service complaint logs, performance test results, and other like materials which are
reasonably necessary to monitor compliance with the terms of this Agreement. Grantor may
receive copies to the extent that information is reasonably related to the scope of the Grantor's
rights under this Agreement or Grantor's regulatory functions. For the purpose of this Section
10.3, the term "proprietary information" means any written information or data that the Grantee
is required under this Agreement to submit to the Grantor, or to make available for inspection by
the Grantor, which enables the Grantor to perform its regulatory functions relating to the
Grantee's provision of cable services, and which, if disclosed to other persons, would result in
unfair competitive disadvantage to the Grantee. Grantor will cooperate with Grantee in an effort
to preserve and to protect, to the maximum extent authorized by law, the privileged and
confidential nature of all proprietary information that, at the time it is submitted to or inspected
by Grantor, is clearly identified by Grantee as being "proprietary, privileged, and confidential." If
Grantor receives a request under the California Public Records Act (California Government Code
Sections 6250 et seq.), or under any legal process that may require disclosure of Grantee's
information, data, or documents that have been identified as "proprietary, privileged, and
confidential," then Grantor will: (i) give Grantee prompt written notice of that request; and (ii)
use all reasonable efforts to defer disclosure until Grantee determines to waive compliance with
the provisions of this Section 10, or to seek an appropriate protective order, or to pursue such
other legal remedies as may be necessary to protect the privileged and confidential nature of
Grantee's proprietary information. This Section 10.3 is in all respects subject to the California
Public
Records Act, which will supersede the provisions of this section in the event of any conflict.
10.4. Reports of Financial and Operating Activity.
(a) Not later than one hundred twenty (120) days after the close of each
fiscal year of Grantee during the term of this Agreement, Grantee must submit to the Grantor a
financial report, verified by a designated financial representative of Grantee, that sets forth the
gross annual revenue from all sources within the designated service area, the annual gross
subscriber revenues derived from each tier of service in the designated service area, the total
amount and basis for the computation of the annual fees paid to Grantor, and such other relevant
facts as may reasonably be required by Grantor to verify the accuracy of the payment of fees on
gross annual revenue. To the extent authorized by law, Grantor will protect the confidentiality of
information contained in Grantee's business records that are deemed by Grantee to be proprietary,
except as may be ordered by a court of competent jurisdiction after reasonable written notice to
Grantee. Grantee will retain for at least four (4) years documents that serve as the basis for this
financial report.
(b) During the term of this Agreement, and upon Grantor's request, Grantee
must submit reports concerning any or all of the following operational matters:
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1. A summary of Grantee's activities within the designated service
area including, but not limited to, services added or discontinued, changes in technology, and the
number of new installations.
2. A current list of Grantee's officers, directors, and other principals.
3. A summary of outage records and routine service -related calls
received from subscribers for installation and service. If Grantee's collection and tabulation of
subscribers' service calls and complaints covers a geographic area that is more extensive than the
designated service area, then Grantee must use its best efforts to estimate the number of those
service calls and complaints originating in the designated service area and must inform the
Grantor of the methodology used in making those estimates.
4. A summary of subscriber complaints that were referred to
Grantee by the Grantor, including the date of referral, the nature of the complaint, and the
corrective action taken.
5. A description of the nature and purpose of any new construction
that is anticipated to commence within the following two (2) years.
6. A summary of Grantee's compliance with the Consumer
Protection Standards that are referenced in Exhibit E.
10.5. Performance Tests and Compliance Reports. Upon Grantor's request, and not
more than once annually, Grantee must provide a written report of any required FCC tests that
have been conducted. In addition, Grantee must provide reports of any tests and compliance
procedures required by this Agreement not later than thirty (30) days after the completion of
those tests and compliance procedures.
10.6. Additional Reports. The Grantee must prepare and submit to the Grantor in
writing, at the times and in the form reasonably prescribed by Grantor, all additional reports that
may reasonably be required with respect to Grantee's compliance with the provisions of this
Agreement. Grantor will cooperate with Grantee and will accept existing reports that contain
substantially similar information meeting this requirement.
10.7. Communications with Regulatory Agencies. Copies of all nonroutine and
material communications between the Grantee and the Federal Communications Commission, or
any other agency having jurisdiction in respect to any matters directly affecting the Cable System
operations authorized by this Agreement, must be submitted to the Grantor within ten (10) days
after their receipt or submittal by Grantee.
10.8. Inspection of Facilities. Upon reasonable notice, and during normal business
hours, Grantee must permit inspection by any duly authorized representative of Grantor of all
facilities located within the designated service area as well as Grantee's headend, which may be
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located outside the designated service area. Grantee may appoint one or more representatives to
accompany Grantor's representatives on any such inspection.
10.9. Right to Audit.
(a) In addition to all other inspection rights under this Agreement, upon
thirty (30) days prior written notice, Grantor has the right to inspect and audit, during normal
business hours, documents pertaining to the Grantee's operations in the designated service area
that are reasonably necessary to the Grantor's enforcement of its rights under this Agreement.
Those documents will be made available at the Grantee's local office unless Grantor and Grantee
agree otherwise. To the extent authorized by law, information derived from any records
identified by Grantee as being proprietary will be held in confidence by Grantor, except as may
be ordered by a court of competent jurisdiction after reasonable written notice to Grantee.
(b) Any audit conducted by Grantor under this subsection will be conducted
at the sole expense of Grantor, not more frequently than once in any 12 -month period. Grantor
will prepare a written report containing its findings, a copy of which will be mailed to the
Grantee for its review. Grantee must reimburse Grantor for the expense of any such audit if, as
the result of that audit, it is determined that there is a shortfall of more than four percent (4%) in
the amount of fees on gross annual revenue or other payments that have been made or will be
made by Grantee to Grantor under the terms of this Agreement. That reimbursement must be
made by Grantee within thirty (30) days of written notice from the Grantor. There shall be an
accord and satisfaction with respect to any payment not subject to audit within thirty six (36)
months following the close of the fiscal year to which such payment relates.
(c) In the event that Grantee claims to have overpaid by more than five
percent (5%) the amount of franchise fee actually due during any given quarter, it shall file an
application with the City within twelve (12) months following the close of the fiscal year to
which such quarterly payment relates. The failure to timely and properly make such claim as
required herein shall constitute a waiver by Grantee of any right to such claimed overpayment,
whether by refund, offset, credit or any other accommodation. All such applications shall state
the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient
documentation to allow the City to verify Grantee's claim. Upon request by the City, Grantee
shall provide any further information that is deemed by the City to be relevant to said claim. All
such applications shall be considered by the City Council, and the City Council's decision with
respect to such applications shall be final.
10.10. Retention of Experts.
When deemed to be necessary for the exercise of its rights under this Agreement, Grantor
has the right to retain technical experts and other consultants to ensure compliance with and
enforcement of the provisions of this Agreement. Except as provided elsewhere in this
Agreement, the Grantor will bear the cost of retaining those experts.
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11. ENFORCEMENT PROCEDURES.
11.1. Notice and Hearing upon Grantee's Default.
(a) Unless otherwise provided in this Agreement, prior to formal
consideration by Grantor of any termination, revocation, or forfeiture of this Agreement, or the
imposition of any fine, penalty or administrative remedy available to Grantor, including
liquidated damages, attributable to Grantee's failure to comply with any material provision of this
Agreement, Grantor must make written demand on Grantee with at least thirty (30) days notice to
correct the alleged default. Grantor and Grantee will expeditiously meet to discuss the alleged
default, at which time Grantee must indicate, in writing, the period of time reasonably required to
cure the default. Giving due consideration to Grantee's request, Grantor will at that meeting, or
within three (3) days thereafter, state in writing the reasonable period of time Grantor will allow
Grantee to resolve the problem. During this time period for cure, but in no event less than ten
(10) days before the final date for correction, Grantee may request additional time to correct the
problem, and Grantor will grant that request if Grantor reasonably determines that such
additional time is necessary due to delays beyond Grantee's control. If the default continues for a
period of ten (10) days after the deadline for correction, including any authorized extension of
time, a hearing before the Board of Supervisors will be scheduled by Grantor with regard to
termination, revocation, or forfeiture of this Agreement, or the imposition of any other fine,
penalty, or administrative remedy, subject to the provisions specified below. No changes
(b) Grantor will provide to Grantee written notice of the hearing, including
the grounds for the proposed action, not less than ten (10) days before the hearing. That written
notice will also describe the procedures to be followed by the City Council to determine whether
cause exists for termination, revocation, forfeiture, or the imposition of fines, penalties, or
remedies. At a minimum, those procedures will afford the Grantee adequate notice and a fair
opportunity for full participation, including the right to introduce evidence, to require the
production of evidence, to question and to cross-examine witnesses, and to obtain a transcript of
the proceeding at Grantee's expense. At the hearing, the City Council will hear Grantee, and any
other person interested in the matter, and will determine, at that or at any continued hearing, an
appropriate course of action for enforcement of the Agreement. All decisions of the City Council
will be in writing and will include findings of fact. A copy of the decision will be transmitted to
the Grantee. The decision of the City Council will be final and dispositive but without prejudice
to Grantee's right to pursue any remedies provided by state or federal law.
11.2. Delegation. The proposed imposition of remedies, such as liquidated damages
or monetary penalties, that do not involve termination, revocation, or forfeiture of the Agreement
may, at Grantor's option, be determined by an officer, employee, or agency of the Grantor to
which it may delegate these administrative decisions, subject to the procedural rules contained in
this section, and subject to Grantee's right to appeal to the City Council. The City Council must
approve any such proposed imposition of remedies before they become effective.
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11.3. Stop Work Notice. If any phased construction work is performed by or on
behalf of Grantee in a manner that does not comply with the provisions of this Agreement, the
Grantor's Public Works Director, or any other designee of the Grantor's, may order the work to be
stopped. That order to stop work may be made by written notice and served upon any person
engaged in or responsible for the construction, with a copy served within one working day upon
the Grantee's principal representative designated in Subsection 1.2. No work that is stopped may
be resumed until authorized by the Public Works Director or other designated representative of
the Grantor. Grantor will have no liability for any revenues that may be lost by Grantee as a
consequence of any stop work notice that is issued by Grantor.
11.4. Authorized Fines, Penalties and Other Sanctions
(a) Grantor may impose fines, penalties, and other sanctions as set forth in
this Subsection 11.4 for defaults under, or incidents of noncompliance with, the provisions of this
Agreement. Grantor must first give Grantee written notice of the alleged default or incident of
noncompliance in accordance with Subsection 11.1(a) and an opportunity to correct the problem.
(b) Following the expiration of any specified period within which Grantee
has failed to cure a default or an incident of noncompliance as directed, the following fines,
penalties, and other sanctions may be imposed by Grantor after the hearing required under either
Subsections 11.1 or 11.2:
1. For Grantee's failure to comply in any material respect with any
of the design and construction standards set forth in Section 7 of this Agreement, a penalty not to
exceed $500 may be imposed for each day that the incident of noncompliance has not been
remedied by the Grantee.
2. For Grantee's failure to comply in any material respect with the
periodic performance testing requirements set forth in paragraph (a) of Subsection 8.2 of this
Agreement, and failure to meet FCC signal quality standards for PEG access channels as required
at Exhibit E subsection A(1)(5) of this Agreement, a penalty not to exceed $500 may be imposed
for each day that the incident of noncompliance has not been remedied by the Grantee.
3. For Grantee's failure, in any material respect, to maintain or to
provide any books, records, reports, or other documents in the manner and at the time specified
in this Agreement, a penalty not to exceed $500 may be imposed for each day that the incident of
noncompliance has not been remedied by the Grantee.
4. For Grantee's material breach of the Consumer Protection and
Service Standards that are referenced in Exhibit E to this Agreement, except where the breach is
not within the Grantee's reasonable control, a penalty not to exceed $200 may be imposed for
each day that the incident of noncompliance has not been remedied by the Grantee.
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5. For any other default or incident of noncompliance that is
material and that is not specified in this Subsection 11.4, a maximum penalty not to exceed per
$350 may be imposed upon Grantee by Grantor for each day that the default or incident of
noncompliance has not been remedied by the Grantee.
6. If any amounts become due under this section, Grantor must
first make a demand for payment to Grantee before seeking payment under the Letter of Credit or
performance bond. If Grantee does not make payment within thirty (30) days of written receipt
of a request from Grantor, Grantor may make a demand on the Letter of Credit and/or the
performance bond.
12. CONTINUITY OF CABLE SYSTEM SERVICES.
12.1. Continuity of Service. The parties acknowledge that it is the right of all
subscribers to receive all services authorized by this Agreement so long as they honor their
financial and other obligations to the Grantee. During Grantee's phased reconstruction of the
Cable System, and upon any future sale of the system, Grantee must use commercially reasonable
efforts to provide continuous service to subscribers. In the event of purchase by Grantor, or a
change of operator, Grantee will cooperate with Grantor or the new operator to operate the
system for an interim period in order to maintain continuity of service to all subscribers. If
Grantee intentionally abandons all services on a system -wide basis for seventy-two (72)
continuous hours or if this Agreement is revoked by Grantor, then Grantor may, by resolution,
assume operation of the Cable System on an interim basis for the purpose of maintaining
continuity of service. Grantor's operation of the system may continue until the circumstances that
resulted in the cessation of cable services are resolved to Grantor's satisfaction. Grantor is
entitled to receive all revenues and is responsible for all obligations and liabilities during any
period in which it operates the system.
12.2. Operation and Management by Grantor.
(a) During any period when the Cable System is being operated by Grantor
under Subsection 12.1 above, Grantor will attempt to minimize the disruption of operations in a
manner consistent with the maintenance of continuing service to subscribers. Notwithstanding
the foregoing, Grantor may make any changes in any aspect of operations that, in Grantor's sole
judgment, are required for the preservation of quality and continuity of service. During that
period, Grantor will also maintain to the best of its ability the system's records, physical plant,
financial integrity, funds, and other elements normally involved in operations.
(b) Upon assuming operation of the Cable System, Grantor may appoint a
manager to act for it in conducting the system's affairs. That manager will have such authority as
may be delegated by Grantor and will be solely responsible to Grantor for management of the
system. Grantee must reimburse Grantor for all reasonable costs, in excess of system revenues
retained by Grantor that are incurred during Grantor's operation of the system during the term of
this Agreement.
Kya
13. MISCELLANEOUS PROVISIONS.
13.1. Assignment, Transfer, Sale, and Change of Control.
(a) Consummation of the following transactions related to this Agreement,
or involving the Grantee under this Agreement, requires the prior written consent of the Grantor's
City Council expressed by ordinance or resolution, which consent will not be unreasonably
withheld, and then only under such conditions as may lawfully be prescribed:
(1) The sale, transfer, lease, assignment, or other disposition of the
rights granted by this Agreement, in whole or in part, whether voluntary or involuntary; provided,
however, that such consent is not required for a transfer in trust, mortgage, or other
hypothecation for the purpose of securing an indebtedness of the Grantee relating to the
construction, reconstruction, operation, or maintenance of the Cable System. A transfer,
assignment, or other disposition of this Agreement may be made only by an instrument in
writing, a duly executed copy of which must be filed in the office of the City Clerk within ten
(10) days after the consummation of that transfer, assignment, or other disposition.
(2) Any merger, consolidation, reorganization, business
combination, or other transaction that affects twenty five percent (25%) or more of the ownership
interests in the Grantee, or in any parent company of the Grantee, and changes control of the
Grantee. As used herein, "control" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of the Grantee. A duly executed copy of
any written instrument evidencing the closing and consummation of any such transaction must be
filed in the office of the City Clerk within ten (10) days after the closing and consummation of
that transaction.
(b) In determining whether it will consent to any transfer, assignment, or
other disposition of the Agreement, or to any transaction affecting the control of the Grantee, the
Grantor may evaluate the financial, technical, and legal qualifications of the proposed transferee
or controlling person. Grantee must ensure that the proposed transferee or controlling person
submits an application, in the form required by Section 1878(C), or by any applicable federal
law, prior to the closing date of the proposed transaction. After considering the financial,
technical, and legal qualifications of the proposed transferee or controlling person, the City
Council may, by resolution, authorize the proposed transaction, subject to such conditions as may
be lawfully imposed in order to protect the public interest. Grantor's consent to any such
transaction may not be unreasonably denied or delayed.
(c) Grantee and its proposed transferee or controlling person are jointly and
severally responsible for reimbursement to the Grantor of certain costs and expenses, not to
33
exceed $2,500, reasonably incurred in evaluating and processing the application related to the
proposed transaction. These costs and expenses may include, as may be determined by the
Grantor to be reasonably necessary, the following: costs of administrative review; financial,
legal and technical evaluation of the proposed transferee; costs for technical experts and
consultants; notice and publication costs; and document preparation expenses. The costs and
expenses shall be paid in the form of an application fee in the amount of $2,500, which will be
deemed to be a deposit for Grantee's reimbursement of costs and expenses to be incurred by
Grantor. The $2,500 application fee shall be made by certified or cashier's check made payable
to the Grantor and shall be submitted by Grantee to Grantor within thirty (30) days of filing an
FCC Form 394 or related change of control or transfer of ownership form. An application will
be considered incomplete without receipt of said deposit. Grantee agrees to reimburse Grantor
for additional reasonable costs in processing and analyzing the application up a maximum
reimbursement of $5,000. If the Grantor's actual costs in processing and analyzing the
application are less than the amount of the deposit, any remaining funds from the deposit shall be
refunded to the applicant within sixty (60) days after final approval or denial of their application.
Grantee's reimbursement of costs and expenses will be made not later than 30 days after receipt
from Grantor of an itemized statement setting forth those costs and expenses.
(d) Any application processing or analysis costs are exclusive of Grantee's
obligation to pay other costs and fees required by this chapter, the franchise agreement or the
franchise, including without limitation construction inspection fees, permit fees, and franchise
fees.
(e) The requirements of this Subsection 13.1 do not apply to the
restructuring of debt or to the transfer of ownership interests between existing equity owners of
any of the entities identified in the attached Exhibit B; provided, however, that the Grantee must
provide to Grantor not less than thirty (30) days prior written notice of that proposed transaction
and must represent that such transaction will have no foreseeable effect on the management and
operation of the Grantee's Cable System in the designated service area. In addition, the
requirements of this Subsection 13.1 shall not apply to transfers that occur purely as a result of
Grantee's reorganization under Title 11 of the United States Bankruptcy Code and that are
approved by the Bankruptcy Court.
13.2. Force Majeure.
(a) If Grantee's performance of any of the terms, conditions, obligations, or
requirements of this Agreement is prevented or impaired by any cause or event beyond its
reasonable control and not reasonably foreseeable, that inability to perform will be deemed to be
excused, and no penalties or sanctions will be imposed. Those causes beyond Grantee's
reasonable control and not reasonably foreseeable include, but are not limited to, acts of God,
civil emergencies, labor unrest, strikes, inability to obtain access to an individual's property, and
inability of the Grantee to secure all necessary authorizations or permits to use necessary poles or
conduits so long as Grantee exercises due diligence to obtain those authorizations or permits in a
timely manner.
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(b) Where any cause or event is beyond Grantee's reasonable control and is
not reasonably foreseeable, and that cause or event only partially affects Grantee's ability to
perform, Grantee must perform to the maximum extent possible. In that event, Grantee must
give written notice to the Grantor of any such cause or event within ten (10) business days after
Grantee has learned or should have learned of its occurrence.
(c) Except as may be otherwise provided in paragraphs (a) and (b) above,
Grantee's compliance with the terms, conditions, obligations, and requirements of this Agreement
will not be excused on the basis of increases in the cost of performance, changes in economic
circumstances, or nonperformance by an employee, agent, or contractor of the Grantee.
13.3. Possessory Interest. By accepting this Agreement, Grantee acknowledges
notice was given to Grantee, as required by California Revenue and Taxation Code Section
107.6, that use or occupancy of any public property under the authority set forth in this
Agreement may create a possessory interest that may be subject to the payment of property taxes
levied upon that interest.
13.4. Indemnification. Except to the extent that they result from the intentional or
gross negligent conduct of Grantor, or Grantor's agents, representatives, or employees, Grantee
will indemnify, defend, and hold harmless the Grantor, its officers, agents and employees, from
any liability, claims, damages, costs, or expenses, including reasonable attorney's fees, arising out
of or attributable to the exercise or enjoyment of the rights granted by this Agreement. Grantee,
at its sole cost and expense, and upon demand of Grantor, will appear in and defend all suits,
actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or
otherwise, instituted by third persons or duly constituted authorities, against or affecting Grantor,
its officers, agents, or employees, and arising out of or pertaining to the exercise of rights
conferred by this Agreement within the designated service area, and injury to persons or damages
to property proximately caused by any conduct undertaken by the Grantee, its agents, employees,
or subcontractors, by reason of the Agreement.
13.5. Bankruptcy of Grantee. Grantee acknowledges that Grantor has the right to
fully avail itself of any rights it may have under the Bankruptcy Code. Grantor does not waive
any of those rights by entering into this agreement with Grantee.
13.6. Conflict of Interest. The parties agree that, to their knowledge, no member of
the Board of Supervisors, nor any other officer or employee of Grantor, has any interest, whether
contractual, non -contractual, financial or otherwise in this Agreement, or in other business of the
Grantee, and that if any such interest comes to the knowledge of either party at any time, a full
and complete disclosure of that information will be made in writing to the other party, even if
that interest would not be considered a conflict of interest under applicable laws. Grantee
covenants that it has, at the time of execution of this Agreement, no interest, and that it will not
acquire any interest in the future, direct or indirect, that would conflict in any manner with the
performance of its obligations under this Agreement. Grantee further covenants that, in the
performance of its obligations, no person having any such interest will be engaged or employed.
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13.7. Resolution of Disputes.
(a) Disputes regarding the interpretation or application of any provisions of
this Agreement will, to the extent reasonably feasible, be resolved through good faith
negotiations between the parties.
(b) If any action at law or in equity is brought to enforce or interpret any
provisions of this Agreement, that action must be initiated in the state courts located within
Mendocino County, State of California or in the federal courts located in the Northern District of
California, regardless of any other possible jurisdiction or venue. In addition, the prevailing
party in any such action is entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief that may be sought and awarded.
13.8. Waiver by Grantor. The Grantor has the right to waive any provisions of this
Agreement that apply to the Grantee's obligations, except those required by federal or state laws
or regulations, if the Grantor determines (i) that it is in the public interest to do so, and (ii) that
the enforcement of such provision will impose an undue hardship on the Grantee or its
subscribers. To be effective, a waiver must be in writing and signed by a duly authorized
representative of the Grantor.
13.9. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions will not be
affected unless their enforcement under the circumstances would be unreasonable, inequitable, or
would otherwise frustrate the purposes of this Agreement.
13.10. Amendments. This Agreement supersedes all prior proposals, agreements and
understandings between the parties and may not be modified or terminated orally. No
modification, termination or attempted waiver of any of its provisions will be binding unless in
writing and signed by the party against whom the same is sought to be enforced.
13.11. Binding Upon Successors. This Agreement is binding upon and inures to the
benefit of each of the parties and to their respective transferees, successors and assigns.
13.12. Counterpart Execution. This Agreement may be executed in multiple
counterparts, each of which is deemed to be an original and all of which constitute one and the
same instrument.
13.13. Applicable Law. This Agreement and the transactions contemplated by it are
to be construed in accordance with and governed by the applicable laws of the State of California
and of the United States.
36
14. DEFINITIONS
a. Defined Terms. For the purposes of this Agreement, the following
words, terms, phrases, and their derivations have the meanings set forth below. When not
inconsistent with the context, words used in the present tense include the future tense, and words
in the singular number include the plural number.
"Affiliate" has the same meaning as is set forth in 47 C.F.R. §76.100(g), which
is a part of the FCC regulations relating to Cable Systems.
"Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the
lowest service tier that includes the retransmission of local television broadcast signals, including
those of public, educational, and governmental access channels
"1984 Cable Act" means the Cable Communications Policy Act of 1984.
"1992 Cable Act" means the Cable System Consumer Protection and
Competition Act of 1992.
"Cable Act" means the 1984 Cable Act as amended by the 1992 Cable Act and
by the Telecommunications Act of 1996.
"Cable Service" means the one-way transmission to subscribers of video
programming, or other programming services, and subscriber interaction, if any, that is required
for the selection or use of that video programming or other programming service. For the
purposes of this definition, "video programming" means programming provided by, or generally
considered comparable to programming provided by, a television broadcast station; and "other
programming service" means information that a cable system operator makes available to all
subscribers generally.
"Cable System" means a facility consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that is designed to provide cable
service, which includes video programming and which is provided to multiple subscribers within
the community, provided that the FCC has certified that such system complies with its
regulations as set forth in 47 C.F.R. §76.1500 et M.
"Cable System Operator" or "CATV O erator" means any person or group of
persons who provides cable service over a Cable System and directly or through one or more
affiliates owns a significant interest in that Cable System, or otherwise controls or is responsible
for the management and operation of that Cable System.
"Community Channel" means any channel that is set aside for use by the
Grantor, or by Grantor -authorized organizations or groups that are based in the designated
service area or that are sponsored or funded by the Grantor, for the purpose of cablecasting
37
noncommercial programming that is determined by the Grantor to be of community -wide
interest.
"Coin Taint" means a billing dispute in which a subscriber notifies Grantee of
an outage or degradation in picture quality that is not corrected following the initial telephone or
service call, as well as any other communication from a subscriber that relates to the operation of
the Cable System, whether or not it involves a billing dispute.
"Control" or "Controlling Interest" means actual working control in whatever
manner exercised, including, without limitation, working control through ownership,
management, or debt instruments, as the case may be, of the Cable System of the Grantee.
"Designated Service Area" or "Service Area" means that territory within the
County of Mendocino that is specifically described in the Agreement.
"Drop" means the cable and related equipment connecting the Cable System's
plant to equipment at the premises of a subscriber or the facilities of the Grantor.
"Education Channel" means any channel where nonprofit educational
institutions are the primary designated programmers.
"FCC" means the Federal Communications Commission or its designated
representatives.
"Franchise" means a written undertaking of the Grantor that authorizes the
incumbent Cable System operator to use the Grantor's streets and public ways for the purpose of
installing, operating and maintaining a Cable System to provide cable service.
"Government Channel" means any channel where a local government agency is
the primary designated programmer, and the programming is informational programming
regarding government activities and services.
"Grantee" means Century Mendocino Cable Television, Inc. d/b/a Adelphia
Cable Communications, and the lawful successors, transferees, or assignees of that entity.
"Grantor" means the City of Ukiah, acting by and through its elected governing
body, or such representative as the governing body may designate to act on cable matters in its
behalf.
"Gross Annual Revenue" means all revenue and other consideration of any
kind, as determined in accordance with generally accepted accounting principles, that is received
by Grantee or its affiliates from the provision of cable service over the Cable System within the
designated service area. Such revenue and other consideration include, without limitation, the
following:
38
(i) Fees received from residential and commercial subscribers to any tier
of Cable Service and for all video programming services.
(ii) Fees received for installation, reconnection, downgrade, upgrade, and
similar services.
(iii) Late fees and interest collected on delinquent subscriber fees or
charges.
(iv) Fees paid for channels that are designated for commercial use.
(v) Fees paid in connection with the rental, lease, or sale of converters,
remote controls, and other equipment.
(vi) Leased or access channel revenues received in connection with the
distribution of any Cable Service.
(vii) All bad debts that are recovered.
(viii) All revenue that is received by Grantee, or its subsidiaries or affiliates,
from the conduct of any service -related activity directly involving the
video portion of the Cable System, including without limitation
revenues derived from advertising sales, the sale of products or
services on home shopping channels, and the sale of program guides.
(ix) The fair market value of any nonmonetary consideration received by
Grantee in any transaction with another person, such as a barter
transaction, but not less than the customary prices paid in connection
with equivalent transactions.
(x) All carriage revenues received from unaffiliated video programming
providers.
(xi) A franchise fee if itemized and added to the bill.
The term "gross annual revenue" does not include the following:
(i) Refundable deposits, rebates, or credits.
(ii) Bad debt that is unrecovered or unrecoverable.
(iii) Taxes imposed by law on subscribers that Grantee is obligated to
collect on behalf of any governmental agency.
(iv) Revenues collected by unaffiliated video programming providers.
(v) PEG fees paid to the City per subscriber as a part of this agreement.
39
(vi) Advertising commissions paid to advertisers provided they are not
wholly owned subsidiaries of Grantee.
(vii) Programming Launch Fees and Marketing Support where eligible fees
include instances where Grantee has been reimbursed for the
Marketing costs associated with the launch and promotion of services
offered. This is not meant to include incentive fees for carriage, contra
expense, barters, or other instances where GAAP would require
treatment as revenue.
"Headend" means that central portion of the Cable System where signals are
introduced into and received from the balance of the system.
"Hub" means a secondary signal processing location where the signals
generated at the primary headend are combined with locally -generated signals for distribution to
subscribers in the community.
"Incumbent Cable System Operator" means any person who, in accordance
with a franchise authorized by the Grantor, is providing cable service over a cable system.
"Monitoring" or "Taping" means observing or receiving a signal, where the
observer is neither the sending nor receiving party and is not authorized by the sending or
receiving party to observe that signal, whether the signal is observed or received by visual,
electronic, or any other means.
"Node" means a location in a hybrid fiber optic/coaxial cable system where
light signals are converted into electrical signals in the downstream direction, and electrical
signals are converted into light signals in the upstream direction.
"Pay Cable," "Pay Service," "Premium Service" or Tqv Television" means
signals for which there is a fee or charge to users over and above the charge for basic service,
including any tiers of service; provided, however, the sale or lease of studio facilities, equipment,
or tapes to local users are not deemed to be pay or premium services.
"PEG Access Channels" means the channels that have been reserved by the
incumbent Cable System operator for public, educational, or governmental use.
"Person" means any individual, corporation, partnership, proprietorship, or
organization authorized to do business in the State of California.
"Plant" means the transmitting medium and related equipment that transmits
signals between the headend and subscribers, excluding drops.
40
"Pole Attachment Agreement" or "Attachment Agreement" means any
agreement with the Grantor, with any other governmental entity, or with any public utility
relating to the Grantee's use of utility poles, ducts, or conduits.
"Program" or "Programming" means the information content of a signal and
the act or process of creating that content, whether that content is intended to be pictures and
sound, sound only, or any other form of information.
"Programmer" means any person who provides program material or
information for transmission by means of a Cable System.
"Property of Grantee" means all property owned or leased by Grantee within
the designated service area in the conduct of its Cable System business under an agreement.
"Public Channel," or "Public Access Channel," means any channel for which
members of the public or community organizations may provide non -advertiser supported
programming.
"Regional Cluster" means the separate franchises serving Grantor, the county
of Mendocino and the cities of Fort Bragg and Willits.
"Residential Dwelling Unit" or "Dwelling Unit" means a home, mobile home,
condominium, apartment, cooperative unit, and any other individual dwelling unit.
"Service Tier" or "Tier" means a category of cable service or other services
provided by the CATV operator and for which a separate rate is charged by the CATV operator,
other than per -channel or per -event programming or packages of per -channel or per -event
programming.
"Shared Channel" means any channel carrying video programming that is
selected by more than one video programming provider and is offered to subscribers.
"Streets" means the surface of, and the space above and below, any public
street, sidewalk, alley, or other public way or right-of-way of any type.
"Subscriber" means any person electing to subscribe to, for any purpose, a
service provided by Grantee by means of or in connection with its Cable System.
"Video Programming Provider" means any person or group of persons who
has the right under the copyright laws to select and to contract for the carriage of specific video
programming on a Cable System.
b. Terms Not Defined. Words, terms, or phrases not defined above in
paragraph (a) shall first have the meaning as defined in the Cable Act, and next in Article 2, and
next the special meanings attributable to their use in any industry, business, trade, or profession
41
where they commonly carry special meanings. If those special meanings are not common, they
will be defined as set forth in commonly used and accepted dictionaries of the English language.
15. AUTHORITY AND EFFECTIVE DATE.
15.1. Authority. The persons signing below represent that they have the requisite
authority to bind the entities on whose behalf they are signing.
15.2. Effective Date This Agreement will become effective as of -az-B-o.?the
date the Resolution is adopted. It is the intention of the parties that the Grantee will first execute
this Agreement and then submit it to the Grantor. The City Clerk will insert the Effective Date in
all counterparts of this Agreement, attest to their execution by a duly authorized officer of the
Grantor, and transmit one or more fully executed counterparts to the Grantee.
TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this
Agreement to be executed by its duly authorized representative as of the date set forth below the
authorized signature.
CITY OF
ATTEST:
((ee
City Clerk
I P", FVAA10;i
vm��FANZ-A "�W
CENT DOCINO CABLE TELEVISION, INC., a Delaware corporation
By.
Title: Thomas J. Larsen
Regional Vi, - ar -,f-Law & Public Pdicv
Date: (� 5
APPROVED AS TO FORM:
42
Corporate Counsel
43
EXHIBIT A
ARTICLE 2, CHAPTER 11, DIVISION 1 OF
THE CITY OF THE UKIAH MUNICIPAL
CODE AS ADOPTED AND IN EFFECT ON
THE EFFECTIVE DATE OF THE
AGREEMENT
1 Attached hereto is Article 2, Chapter 11, Division 1 of the Ukiah Municipal Codee
2. Subject to modifications contained within this agreement and/or additional standards
established herein, the following sections of Article 2 of the Ukiah Municipal Code shall not
apply to this Agreement:
Section 1878. Transfers and Assignments
Section 1884. Franchise Application Processing Costs
A-1
ORDINANCE NO. 1048
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF UKIAH, AMENDING IN ITS ENTIRETY
CHAPTER 11, ARTICLE 2 OF THE CITY OF UKIAH
MUNICIPAL CODE, REGULATING CABLE, VIDEO,
AND TELECOMMUNICATIONS SERVICE
THE CITY OF UKIAH DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1.
Chapter 11, Article 2 of the City of Ukiah Municipal Code is
hereby amended to read as follows:
CHAPTER 11, ARTICLE 2 CABLE TELEVISION SYSTEMS
General Provisions
1870
Short title
1871
Authority
1872
Definitions
Procedures for Granting, Renewing, Transferring, and Acquiring
Television Franchises
1873
A Franchise is required to operate a Cable System
1874
The City may grant a Cable Franchise
1875
Franchise duration and renewal
1876
Limitations of Franchise
1877
Rights reserved to the City
1878
Transfers and assignments
1879
Franchise Area; annexations
1880
Application for Franchises; contents of application
1881
Selection of Grantee
1882
Franchise renewal
1883
Multiple Franchises
737846.1 1
1884 Franchise application processing costs
1885 Franchise fee
1886 Contents of cable television Franchise
1887 Breach of Franchise; grounds for assessment of penalties and
Franchise revocation
1888 Procedure for adjudication of breaches of the Franchise
1889 City Council hearing procedures
1890 Hearing officer procedures
1891 Penalties for breach of the Franchise
1892 Alternative remedies
1893 Removal and abandonment; purchase of system
1894 Receivership and foreclosure
Design and Construction
1895 Undergrounding
1896 Use of poles
1897 Construction standards
1898 Approvals
1899 Submission of drawings
1900 Relocation of facilities and equipment
1901 Maintenance
Minimum Customer Service Standards
1902 Subscriber service standards
1903 Identification required
1904 Notification to Subscribers
1905 Verification of Subscriber service standards
1906 Subscriber complaints
737846.1 2
1884 Franchise application processing costs
1885 Franchise fee
1886 Contents of cable television Franchise
1887 Breach of Franchise; grounds for assessment of penalties and
Franchise revocation
1888 Procedure for adjudication of breaches of the Franchise
1889 City Council hearing procedures
1890 Hearing officer procedures
1891 Penalties for breach of the Franchise
1892 Alternative remedies
1893 Removal and abandonment; purchase of system
1894 Receivership and foreclosure
Design and Construction
1895 Undergrounding
1896 Use of poles
1897 Construction standards
1898 Approvals
1899 Submission of drawings
1900 Relocation of facilities and equipment
1901 Maintenance
Minimum Customer Service Standards
1902 Subscriber service standards
1903 Identification required
1904 Notification to Subscribers
1905 Verification of Subscriber service standards
1906 Subscriber complaints
737846.1 2
1907
Compatibility with consumer electronics equipment
Rates
1908
Rate regulation
1909
Billing procedures
1910
Refunds
1911
Notice of rate increases
1912
Non-discrimination and customer privacy
1913
Written or oral notice to enter property
1914
Notice regarding channel scrambling
Service Provisions
1915
Tenant rights
1916
Continuity of service mandatory
Open Video Systems
1917
Applicability
1918
Application required
1919
Review of application
1920
Agreement required
Other Video and Telecommunications Services and Systems
1921
Other multichannel video programming distributors
1922
Video providers -registration; customer service standards
1923
Telecommunications service provided by telephone corporations
737846.1 3
GENERAL PROVISIONS
§ 1870 SHORT TITLE.
This title is known and may be cited as the "Cable, Video, and
Telecommunications Service Providers Ordinance" of the City of Ukiah.
§ 1871 AUTHORITY
This chapter is enacted by the City of Ukiah pursuant to the Cable Act, the City's
police powers, its powers and rights to control the use of the Public Right -of -Way, within
the City, and all other applicable laws.
§ 1872 DEFINITIONS.
For the purposes of this chapter, the following terms, phrases, words, and
abbreviations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future tense, and words in singular
number include the plural number. Words not defined by this section shall be given the
meaning set forth in the Cable Act, and if not defined therein, their common and ordinary
meaning.
ACCESS, PEG ACCESS OR PEG USE. Refers to the availability or use of a
Cable System or Open Video System for public, educational or government use
(including Institutional Network use) by public or private agencies, institutions,
organizations, groups, and individuals, including but not limited to Grantor and its
designated Access providers, to acquire, create, and distribute programming not under
Grantee's editorial control, including but limited to the following:
Public Access or Public Use where members of the general public are the
primary or designated programmers or users having editorial control over their
programming.
2. Educational Access or Educational Use where educational institutions are the
primary or designated programmers or users having editorial control over their
programming.
3. Government Access or Government Use where Grantor or other governmental
institutions designated by Grantor are the primary or designated programmers
having editorial control over their programming.
AFFILIATE. Any Person directly or indirectly Controlling, Controlled by, or
under common Control of Grantee.
CABLE ACT. The Cable Communications Policy Act of 1984 (47 USCS 521 et
seq., as amended by the Cable Television Consumer Protection and Competition Act of
1992 (Public Law No. 102-3 85) and the Telecommunications Act of 1996 (Public Law
No. 104-104) as hereinafter may be amended.
737846.1 4
CABLE SERVICE. Constitutes the following: (A) the one-way transmission to
Subscribers of (i) video programming, or (ii) other programming service, and (B)
Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service, as hereinafter may be amended.
CABLE SYSTEM OR SYSTEM. Grantee's facilities, consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide video programming and which is provided to
multiple Subscribers within the City. Such term does not include:
1. A facility that serves solely to retransmit the television signals of one or
more television broadcast stations; or
2. A facility that serves Subscribers without using any Public Right -of -Way;
or
3. A facility of a common carrier which is subject, in whole or in part, to the
provisions of Subchapter II of Chapter 5 of Title 47 of the United States
Code, except that such facility shall be considered a Cable System (other
than for purposes of 47 USC 541(c)) to the extent such facility is used in
the transmission of video programming directly to Subscribers, unless the
extent of such use is solely to provide interactive on -demand services; or if
such facility is used to provide Cable Service, whether on a common
carrier or non -common carrier basis, directly to customers; or
4. An Open Video System, as defined below, that complies with 47 USC
Section 573; or
5. Any facilities of any electric utility used solely for operating its electric
utility systems.
CITY. The City of Ukiah.
CITY MANAGER. The City Manager of the City of Ukiah, or his or her
designee.
COMMUNICATIONS ACT. The Communications Act of 1934 (48 Stat. 1064,
15 USCS § 21; 47 USCS §§ 35, 151--155, 201--221, 301--329, 401-416, 501--505, 601-
-609 (as subsequently amended and as hereinafter may be amended).
COMPLETE SYSTEM CONSTRUCTION. The point in time when all
transmission equipment, facilities, and construction work is installed and completed, and
when all appropriate tests have been completed such that applicable performance
standards pertaining to or dependant upon such construction is verified. The term
Complete System Construction does not include marketing and installation of Subscriber
service.
737846.1
CONTROL (ING/ED). The possession, directly or indirectly, of the power to
direct, or to cause the direction of, the management and policies of a specified Person,
whether through the ownership of voting securities, by contract or otherwise.
DISTRIBUTION FACILITY/(IES). Cable equipment which is not specific to a
Subscriber, including trunk and distribution lines, but excluding drop lines to specific
locations.
DROP LINES. The cable and related equipment connecting the Cable System's
plant to equipment at the Subscriber's premises.
EDUCATIONAL ACCESS CHANNEL. A channel on the Cable System which
designates educational institutions as the primary providers of non-commercial
programming.
FCC. The Federal Communications Commission.
FRANCHISE. The right to construct, operate and maintain a Cable System using
the City's streets and rights-of-way pursuant to the terms and conditions of this chapter
and other relevant provisions of the Municipal Code, the Franchise Agreement, any
Resolution approving the transfer of the Franchise, and any agreement between the City
and Grantee relating to the operation of the Cable System.
FRANCHISE AGREEMENT. An agreement granting a Franchise pursuant to the
terms of the agreement and this chapter. Any conflict between the terms of this chapter
and the Franchise Agreement shall be resolved in favor of the Franchise Agreement.
FRANCHISE AREA. The geographic area within the City designated in a
franchise where Grantee may operate a Cable System, as defined in the Franchise
Agreement.
GOVERNMENT ACCESS CHANNEL. A channel on the Cable System which is
provided by Grantee to Grantor and other governmental institutions designated by
Grantor on which non-commercial informational programming regarding government
activities and programs may be presented.
GRANTEE. Any Person to whom a valid Franchise is granted by the City under
this chapter, and the lawful successor, transferee or assignee of such Person.
GROSS REVENUES. Any and all revenue which is received, whether directly or
indirectly, by Grantee, from or in connection with the provision of Cable Services over
the subject Cable System, or any part of such system. Such revenue shall include but not
be limited to the following:
a) Any and all fees charged to Subscribers for Cable Services including
without limitation fees for any and all basic service, optional service, tier
service, audio service, commercial service, premium service, pay
73 7846.1 6
television service, pay-per-view service and related per -event service, or
for the distribution of any other Cable Services over the Cable System;
b) Any and all fees charged to Subscribers for installation, disconnection,
reconnection, change in service, and similar fees;
C) Any and all fees charged to Subscribers for converters, remote controls or
other equipment leased, rented or sold to Subscribers in connection with
the delivery of Cable Services;
d) Any and all fees charged to Subscribers for service charges and/or late
fees attributable to delinquent accounts;
e) Any and all revenue collected by Grantee from its Subscribers for direct
payment to a third party as a cost of doing business (including without
limitation possessory interest tax, copyright fees, program license fees and
Subscriber payments for PEG access);
f) Any and all revenue received from Cable Services related activities
including without limitation any and all revenue received from leased
access programmers and other users, or the use, license or lease of studio
rental and production equipment, or the sale, exchange or cablecast of any
programming developed on or for community service channels or
institutional users, or the sale of advertising or the lease of channel
capacity on a Cable System, without deduction for any commission paid to
an advertising agency in connection with the sale of advertising on a Cable
System. Any and all revenue of any Person which is derived directly or
indirectly from or in connection with the provision of Cable Services over
the Cable System, including but not limited to revenue or compensation
which is paid by any of the following: (i) the Subscribers or users of such
Cable System, or (ii) the advertisers on such Cable System, or (iii) any
other party; and is paid to any of the following: (i) the suppliers of
programming on such Cable System, or (ii) home shopping services in
connection with the sales of products or services derived from
programming transmitted over such Cable System, to the extent such
revenue represents payment, in whole or in part, for the use of a channel
on the system; or (iii) leased access programmers for programming
transmitted over such Cable System; and
g) Refundable deposits that are not returned to Subscribers following
termination of service.
h) Gross revenues shall include revenue derived from subscriptions to Cable
Information Services as defined by the Communications Act provided
over the Cable System in the Franchise Area should a final determination
by Congress, a court of competent jurisdiction, or the FCC which
classifies Cable Information Service, or any other service offered by
Grantee, as a Cable Services (as that term is defined in the Cable Act)
beginning on the effective date of the final determination.
73 7846.1 7
Gross Revenues shall not include any tax of general applicability imposed
upon Grantee by the city, state, federal or any other governmental entity
and required to be collected by Grantee and passed through to the taxing
entity, provided such taxes are identified as a separate line item on
Subscriber statements. The Franchise fee shall be included in Gross
Revenues.
In computing Gross Revenues from sources other than Subscribers,
including but not limited to revenue from the sale of advertising, lists of
the names and addresses of Grantee's Subscribers, home shopping
services, guide sales, or the lease of channel capacity over its Cable
System, which revenue is attributable both to the operation of Grantee's
Cable System inside the City and in areas outside the City, the aggregate
revenue received by Grantee from such other sources shall first be
multiplied by a fraction, the numerator of which shall be the number of
Grantee's Subscribers in the City as of the last day of the relevant billing
period and the denominator of which shall be the number of Subscribers
within all relevant areas served by Grantee for that specific service as of
the last day of such period, and then assessed for Franchise fees.
Gross Revenues shall include revenue received by any entity other than
the Grantee where necessary to prevent evasion or avoidance of the
obligation under this Agreement to pay the Franchise fees.
MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR or VIDEO
PROGRAMMING DISTRIBUTOR. A Person such as, but not limited to, a Cable
System operator, an Open Video System Operator, as defined below, a multichannel
multipoint distribution service, a direct broadcast satellite service, or a television receive -
only satellite program distributor, who makes available multiple channels of video
programming for purchase by Subscribers or customers.
OPEN VIDEO SYSTEM. A facility consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that is designed to provide
Cable Services, including video programming, and that is provided to multiple
Subscribers within the City, provided that the FCC has certified that such system
complies with 47 CFR 0 1500 et seq., entitled "Open Video Systems."
OPEN VIDEO SYSTEM OPERATOR. Any Person or group of Persons who
provides Cable Services over an Open Video System and directly or through one or more
Affiliates owns a significant interest in that Open Video System, or otherwise controls or
is responsible for the management and operation of that Open Video System.
NORMAL OPERATING CONDITIONS. Service conditions that are within the
control of Grantee. Those conditions that are ordinarily within the control of Grantee
include, but are not limited to, special promotions, rate increases, regular peals or
seasonal demand periods, and scheduled maintenance or upgrade of the Cable System.
Those conditions that are not in control of Grantee include, but are not limited to, natural
73 7846.1
disasters, civil disturbances, power outages, telephone network outages, and severe or
unusual weather conditions.
PERSON. Any individual, corporation, partnership, proprietorship, or other
organization authorized to do business in the State of California.
PUBLIC ACCESS CHANNEL: A channel on the Cable System which is
provided by Grantee for non-commercial programming produced by members of the
public or a nonprofit corporation formed by the City to operate and manage such a
channel.
PUBLIC RIGHT(S)-OF-WAY. Any of the following that are controlled, used or
dedicated for use by the public and located within the City's jurisdictional limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, rights of way and similar public
property within which Grantee may place its facilities for operating a Cable System.
SERVICE INTERRUPTION. The loss or impairment of the Cable Services on
one or more channels or frequency bands of the Cable System used in connection with
the provision of Cable Services to any Subscriber.
SUBSCRIBER. Any Person who pays for Cable Services provided by Grantee by
means of the Cable System.
VIDEO PROVIDER: Any person, company, or service that provides one or more
channels of video programming to a residence, including a home, condominium,
apartment, or mobile -home, where some fee is paid for that service, whether directly or
as included in dues or rental charges, and whether or not public rights-of-way are used in
the delivery of that video programming. A "Video Provider" includes, without
limitation, providers of cable television service, master antenna television, satellite
master antenna television, direct broadcast satellite, multipoint distribution services, and
other providers of video programming, whatever their technology.
PROCEDURES FOR GRANTING, RENEWING, TRANSFERRING, AND
ACQUIRING CABLE TELEVISION FRANCHISES
§ 1873 A FRANCHISE IS REQUIRED TO OPERATE A CABLE SYSTEM.
(A) It shall be unlawful for any Person to establish, operate or carry on the
business of distributing to any Persons in the City any Cable Service, by means of a
Cable System, unless a Franchise therefore is first obtained pursuant to the provisions of
this chapter, and unless such Franchise is in full force and effect.
(B) 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, any equipment or facilities for
distributing any Cable Services, by means of a Cable System, unless a Franchise
737846.1 9
authorizing such use of such street or property or area has first been obtained pursuant to
the provisions of this chapter, and unless such Franchise is in full force and effect.
(C) It shall be unlawful for any Person to make any unauthorized connection,
whether physically, electronically, acoustically, inductively or otherwise, with any part of
a Franchised Cable System within this City for the purpose of enabling him or herself or
others to receive any Cable Services carried on a Cable System, without the permission
of Grantee.
(D) It shall be unlawful for any Person, without the consent of Grantee, to
willfully tamper with, remove, or injure any cables, wires, or equipment used in
conjunction with a Cable System.
(E) This section shall be construed to require a Franchise in every instance,
except to the extent that such requirement is preempted by state or federal law.
§ 1874 THE CITY MAY GRANT A CABLE FRANCHISE.
The City may grant a Franchise to any Person, whether operating pursuant to an
existing Franchise or not, who offers to provide a Cable System pursuant to the terms and
provisions of this chapter. The Franchise shall be subject to all ordinances and
regulations of general application now in effect or subsequently enacted, including,
without limitation, those concerning encroachment permits, business licenses, zoning,
and building.
§ 1875 FRANCHISE DURATION AND RENEWAL.
(A) The term of the Franchise or any Franchise renewal shall be established in
the Franchise Agreement.
(B) A Franchise may be renewed by the City upon application of Grantee
pursuant to procedures established by the City, subject to applicable federal and state law.
In the event the City does not establish such renewal procedures, the Franchise renewal
procedures set forth in the Cable Act shall apply.
§ 1876 LIMITATIONS OF FRANCHISE.
(A) Any Franchise granted under this chapter shall be nonexclusive and for the
term specified by the Franchise Agreement.
(B) No privilege or exemption shall be granted or conferred by any Franchise
granted under this chapter except those specifically presented herein.
(C) The grant of a Franchise, right, or license to use Public Right -of -Way for
purposes of providing Cable Service shall not be construed as a right or license to use
such Public Right -of -Way for any other purpose.
73 7846.1 10
(D) Any privilege claimed by Grantee under a Franchise in a Public Right -of -
Way or any other public property shall be subordinate to any prior or subsequent lawful
occupancy or use thereof, or easement therein, by the City or other government entity.
(E) A Franchise granted hereunder shall not relieve Grantee of any obligation
related to obtaining pole space from any department of the City, utility company, or from
others maintaining poles in the Public Right -of -Way.
(F) Any right or power in, or duty imposed upon any officer, employee,
department, or board of the City shall be subject to transfer by the City to any other
officer, employee, department, or board of the City.
§ 1877 RIGHTS RESERVED TO THE CITY.
(A) Subject to those restrictions, if any, that are mandated by state or federal
law, neither the granting of any Franchise nor any of the provisions of this chapter shall
be construed to prevent the City from granting additional Franchises.
(B) Grantee, by its acceptance of any Franchise, agrees to be bound by all
ordinances and regulations of general application now in effect or subsequently enacted
(including without limitation those that concern encroachment permits, business licenses,
zoning and building) and to comply with any action or requirements of the City in its
exercise of such rights or power; provided, however, that such ordinances and regulations
shall not materially affect Grantee's rights or obligations under the Franchise.
(C) Neither the granting of any Franchise, nor any of the provisions of this
chapter, shall constitute a waiver or bar to the exercise of any governmental right or
power of the City.
(D) This chapter shall not be construed to impair or affect, in any way, the
right of the City to acquire the property of Grantee through the exercise of the power of
eminent domain, in accordance with applicable law.
(E) The City Council may do all things which are necessary in the exercise of
its jurisdiction under this chapter and may determine any question of fact which may
arise during the existence of any Franchise granted under this chapter.
§ 1878 TRANSFERS AND ASSIGNMENTS.
(A) No Franchise shall be transferred, sold or assigned, nor shall any of the
rights, privileges, interests or property related to the Franchise be transferred, sold,
hypothecated or assigned, either in whole or in part, directly or indirectly, voluntarily or
involuntarily, to any Person without the prior consent of the City granted by resolution of
the City Council. The granting of a security interest in any assets of the Grantee, or any
mortgage or other hypothecation, will not be deemed a transfer for the purposes of this
section.
737846.1 11
(B) Transfer of a Franchise includes but is not limited to any transaction in
which control of the Franchise is transferred from one Person or group of Persons to
another Person or group of Persons, or ownership or other interest in Grantee or its Cable
System is transferred from one Person or group of Persons to another Person or group of
Persons, or the rights and obligations held by Grantee under the Franchise Agreement are
transferred or assigned to another Person or group of Persons. In addition, a transfer of
the Franchise shall be deemed to have occurred upon the transfer on a cumulative basis of
ownership or control of 20% of (1) the voting interest of Grantee, or (2) the Person
exercising management authority over Grantee.
(C) Grantee shall promptly notify the City in writing of a proposed transfer
and shall file with the City Manager an application requesting approval of the proposed
transfer ("Transfer Application"). The Transfer Application shall meet the requirements
of § 1880 (with the transferee being the applicant), and shall provide complete
information on the proposed transaction, including a copy of the bona fide offer, and
details on the legal, financial, technical and other qualifications of the transferee.
(D) In making a determination on whether to approve the Transfer
Application, the City Council shall consider the legal, financial, technical and other
qualifications of the transferee to operate the system, whether the incumbent Cable
System operator is in compliance with its Franchise Agreement and this chapter and, if
not, the candidate transferee's commitment and plan to cure such noncompliance, whether
operation by the transferee would adversely affect Cable Services to Subscribers or
otherwise be contrary to the public interest, and such other criteria provided for by
applicable state and federal law.
(E) A Transfer Application shall not be granted unless the proposed transferee
agrees in writing that it will abide by and accept all terms of this chapter, the Franchise
Agreement, and such other agreements, regulations or restrictions that pertain to the
Franchise, assume the obligations and liabilities of the previous Grantee under the
Franchise, and assume such other conditions as may be prescribed by the City Council
resolution approving the transfer.
(F) Approval by the City of a Transfer Application does not constitute a
waiver or release of any of the rights of the City under this chapter or a Franchise
Agreement, whether arising before or after the date of the transfer.
§ 1879 FRANCHISE AREA; ANNEXATIONS.
(A) The Franchise Area shall be established by the Franchise Agreement.
(B) Territory annexed to the City ("Annexed Territory") which is not within
the Franchise Area of an existing Franchise may be added to Grantee's Franchise
pursuant to City Council resolution.
(C) All rights acquired under a Franchise or license granted by a public entity
other than the City ("Foreign Franchise") shall terminate by operation of law as to
Annexed Territory where Grantee of such Franchise or license has not commenced
737846.1 12
installation of a Cable System in the annexed territory before the date such annexation
becomes effective. Where feasible, City shall provide notice to the holder of a Foreign
Franchise of the City's intent to annex territory that may result in a termination under this
section. Failure to provide such notice shall not affect the termination of the Foreign
Franchise.
(D) Where Grantee of a Foreign Franchise has commenced installation of a
Cable System in annexed territory on or before the date such annexation becomes
effective, Grantee may continue to provide Cable Services to the annexed territory for the
balance of the initial term of said Franchise (exclusive of any renewal or extension not
granted by the City), subject to the terms and conditions then in effect under such
Franchise, and the timely payment to the City of all Franchise fees paid in connection
with such service (or such other fees imposed by the City up to the maximum permitted
by law).
§ 1880 APPLICATION FOR FRANCHISES; CONTENTS OF APPLICATION.
(A) Applications for the grant of a new Franchise may be submitted by any
Person pursuant to the requirements of this chapter. The City may, by advertisement or
any other means, solicit applications for a new Franchise pursuant to a request for
proposal ("RFP").
(B) An application for a new Franchise to construct, operate, or maintain any
Cable System in the City shall be filed with the office of the City Clerk and shall be on
forms prescribed by the City. The City reserves the right to waive all application
formalities where the City determines that the best interests of the City would be served
by such waiver. The City may, at its sole discretion, request new or additional proposals.
(C) Unless waived in writing by the City, all applications for a Franchise shall
at the minimum contain the following:
1) The name, address, and telephone number of the applicant;
2) A detailed statement of the corporation or business entity
organization of the applicant, including but not limited to, the
following:
a) The names, residence and business addresses of all officers
and directors of the applicant;
b) The names, residence and business address of all officers,
Persons and entities having an ownership interest of 5% or
more in the applicant and the respective ownership share of
each such officer, Person or entity;
c) The names and address of any parent or subsidiary of the
applicant, namely, any other business entity owning or
controlling applicant in whole or in part or owned or
737846.1 13
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 Systems owned or controlled by the applicant, its
parent and subsidiary and the areas served thereby;
d) A detailed description of all previous experience of the
applicant in providing Cable Service or other similar or
related communications services;
e) A detailed and complete financial statement of the
applicant, certified by an independent certified public
accountant, for the fiscal year preceding the date of the
application. The City may require a statement from an
independent certified public accountant or a recognized
lending institution, certifying that the applicant has
available sufficient financial resources to construct and
operate the proposed Cable System in the City;
f) A detailed financial plan (pro forma) for the operation of
the proposed Cable System, during the term of the
proposed Franchise, in the format required by the City; and
g) A description of any other Cable System Franchise(s)
awarded to the applicant, its parent or subsidiary, including
the place and term of these Franchises; the status of their
completion, the total cost of completion of each Cable
System; and the amount of applicant's and its parent's or
subsidiary's resources committed to the completion of these
Cable Systems;
3) A detailed description of the proposed plan of operation of the
applicant which shall include, but not be limited to, the following:
a) A detailed map indicating all areas proposed to be served,
and a proposed time schedule for the construction of the
Cable System and the installation of all equipment
necessary to become operational throughout the entire area
to be serviced;
b) A statement or schedule setting forth all proposed
classifications of rates and charges to be made against
Subscribers, including installation charges and other
service charges;
c) A detailed statement describing the actual equipment and
operational standards proposed by the applicant;
737846.1 14
d) A copy of the form of any agreement, undertaking, or other
instrument proposed to be entered into between the
applicant and any Subscriber; and
e) A detailed statement describing any existing or proposed
agreements and undertakings between the applicant and
any Person, which materially relates to the application and
the granting of the Franchise;
4) A detailed description of the applicant's plan to provide Public,
Educational and Government Access Channel capacity services,
facilities and equipment;
5) A detailed description of the applicant's plans to address the
institutional network needs of the City
6) A copy of any agreement covering the Franchise area, if existing
between the applicant and the local telephone and/or electric
utilities providing for the use of any facilities of the utility
including but not limited to poles, lines or conduits; and
7) Any other details, statements, or information pertinent to the
subject matter of such application which shall be required or
requested by the City.
§ 1881 SELECTION OF GRANTEE.
(A) The City may make such investigations as it deems necessary to determine
the ability of an applicant to satisfactorily perform its obligations under a Franchise. The
applicant shall timely furnish to the City all such information and data as the City may
request. Failure to provide any such information shall constitute sufficient grounds for
rejection of any application.
(B) Upon receipt of a complete application, with all information required by
the City, and after the City staff completes its investigation and review of the application,
the City Manager shall prepare a report and make recommendations to the City Council
concerning the application.
(C) The City Council shall hold a noticed public hearing on the application.
Written notice shall be given at least ten (10) days prior to the hearing on the application.
Within sixty (60) days after the close of the hearing, unless an extension of time is
mutually agreed upon by the City and the applicant, the Council shall make a decision as
to whether the Franchise should be granted, and if granted, subject to what conditions.
The Council may grant one or more Franchises, or may decline to grant any Franchise.
(D) In making its determination as to whether to grant an application for a new
Franchise, the City may consider any and all factors which affect the interests of the
community including, but not limited to, the quality of the Cable Service proposed, the
737846.1 15
areas to be served, the rates to be charged, the amount of Franchise fee to be generated,
the experience, character, background, performance history and financial responsibility of
an applicant (and its management and owners), the technical performance and quality of
equipment, the applicant's willingness and ability to meet construction requirements and
all other limitations and requirements pertaining to the Franchise, and all other matters
deemed pertinent by the City for protecting the interests of the City and the public.
(E) Any decision of the City Council concerning the granting or denial of a
Franchise pursuant to this chapter shall be final.
§ 1882 FRANCHISE RENEWAL.
Franchise renewals shall be processed and reviewed in accordance with then
applicable law. The City and Grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the Franchise.
§ 1883 MULTIPLE FRANCHISES.
(A) The City may in its sole discretion limit the number of Franchises granted
at any one time based upon its consideration of all appropriate criteria which shall include
but not be limited to the following:
(1) The capability of the Public Rights -of -Way to accommodate the
facilities of any proposed additional Cable Systems.
(2) The advantages and disadvantages that may result from additional
Cable System competition.
(B) The City may require that any Grantee be responsible for its own
underground trenching and any associated costs if, in the City's opinion, the Public
Rights -of -Way in any area do not feasibly and reasonably accommodate the additional
cables, machinery, equipment, or other items contemplated in connection with the
construction, maintenance and operation of a proposed new Cable System. In addition,
Grantee shall comply with applicable federal and state laws regarding pole attachments.
§ 1884 FRANCHISE APPLICATION PROCESSING COSTS.
(A) In connection with any application for a new Franchise, a Franchise
renewal, or a Franchise transfer, each applicant shall pay a filing fee equal to the
estimated costs determined by the City in processing and analyzing the application. Such
costs shall include all administrative, consultant, noticing and document preparation
expenses. No application shall be considered without payment of such fee. If the City's
actual costs in processing and reviewing the application are less than the amount of the
fee, any remaining funds from the fee shall be refunded to the applicant within 60 days
after final approval or denial of their application. In the event that the deposit is less than
73 7846.1 16
the City's actual costs, Grantee shall pay such additional costs to the City within 30 days
after written notice from the City that such additional payment is required.
(B) Any application fees are exclusive of Grantee's obligation to pay other
costs and fees required by this chapter, the Franchise Agreement or the Franchise,
including without limitation construction inspection fees, permit fees, and Franchise fees.
§ 1885 FRANCHISE FEE.
(A) As compensation for any Franchise granted, and in consideration of
permission to use the Public Right -of -Way in the operation of its Cable System, and
because the City will incur. costs (other than application fees) in regulating and
administering the Franchise, Grantee shall pay to the City a Franchise fee in the amount
equal to five percent of Grantee's Gross Revenues, or such other amount as the City
Council may set by resolution or specify in the Franchise Agreement.
(B) The Franchise fee assessed shall be paid quarterly, to be received by the
City Treasurer not later than 45 days after the close of each quarter of Grantee's fiscal
year.
(C) On a quarterly basis, Grantee shall provide the City a complete and
accurate statement verified by a financial officer of Grantee indicating Gross Revenues
for the past quarter, listing every revenue source, and depicting gross revenue
computations.
(D) On an annual basis, Grantee shall file a complete and accurate statement
certified by Grantee's chief financial officer, indicating all Gross Revenues for said year,
listing every revenue source, and depicting gross revenue computations. If the City has
any concerns or objections relating to .such report, the City shall have 60 days to notify
Grantee and request additional information. Grantee shall have 60 days to provide
additional information to resolve any concerns or objections to the City's satisfaction.
Thereafter, the City may, at its sole discretion, request that such statement be certified by
an independent certified public accountant, at Grantee's sole cost; provided, however, that
any such request shall be made within 60 days after Grantee's response is received.
(E) At any time during the term of a Franchise, the City shall have the right to
conduct, or require Grantee to obtain, an independent audit by certified public
accountants of any and all records of Grantee that are related to Gross Revenue reports or
computations. Grantee shall pay the costs of such audit not more frequently than once
every five years or upon a proposed transfer or change of control of the Franchise.
Grantee shall cooperate with any such audit making readily available any and all
information requested by the City. The certified public accountants shall be required to
certify in the audit that the Grantee is in compliance with this chapter and the Franchise
Agreement. Grantee shall maintain in a readily accessible place all such records for a
minimum of four years after any payment period that such record pertains to. This right
shall be in addition to City's right to conduct any other audit.
737846.1 17
(F) In the event that any Franchise fee payment is not paid by the due date,
interest shall be charged monthly at a monthly rate of one and one-half percent. In
addition, if any Franchise fee is not paid in full within 15 days after receipt of notice from
the City as to the delinquency of such payment, a late fee in amount of five percent of the
delinquent amount shall be assessed.
(G) In the event Grantee claims to have overpaid by more than five percent the
amount of Franchise fee actually due during any given quarter, it shall file an application
with the City within one year after said payment was made. The failure to timely and
properly make such claim shall constitute a waiver by Grantee of any right to such
claimed overpayment, whether by refund, offset, credit or any other accommodation. All
such applications shall state the amount of claimed overpayment, the reason for the
claimed overpayment, and sufficient documentation to allow the City to verify Grantee's
claim. Upon request by the City, Grantee shall provide any further information that is
deemed relevant by the City. All such applications shall be considered by the City
Council, and the City Council's decision with respect to such applications shall be final.
§ 1886 CONTENTS OF CABLE TELEVISION FRANCHISE
(A) The terms and provisions of a Franchise Agreement for the operation of a
Cable System may include, without limitation, the following subject matters:
1. The nature, scope, geographical area, and duration of the
Franchise.
2. The applicable Franchise fee to be paid to the City, including the
percentage amount, the method of computation, and the time for payment.
3. Requirements relating to compliance with and implementation of
state and federal laws and regulations pertaining to the operation of the Cable System.
4. Requirements relating to the construction, upgrade, or rebuild of the
Cable System, as well as the provision of special services, such as outlets for public
buildings, emergency alert capability, and parental control devices.
5. Requirements relating to the maintenance of a performance bond, a
security fund, a letter of credit, or similar assurances to secure the performance of the
Grantee's obligations under the Franchise Agreement.
6. Requirements relating to liability insurance, workers'
compensation insurance, and indemnification.
7. Additional requirements relating to consumer protection and
customer service standards, including the resolution of Subscriber complaints and
disputes and the protection of Subscribers' privacy rights.
8. Requirements relating to the Grantee's support of local cable
usage, including the provision of Public, Educational, and Government Access Channels,
737846.1 18
the coverage of public meetings and special events, and financial or technical support for
Public, Education, and Governmental Access uses.
9. Requirements relating to construction, operation, and maintenance
of the Cable System within the Public Rights -of -Way, including compliance with all
applicable building codes and permit requirements, the abandonment, removal, or
relocation of facilities, and compliance with FCC technical standards.
10. Requirements relating to recordkeeping, accounting procedures,
reporting, periodic audits, and performance reviews, and the inspection of Grantee's
books and records.
11. Acts or omissions constituting material breaches of or defaults
under the Franchise Agreement, and the applicable penalties or remedies for those
breaches or defaults, including fines, penalties, liquidated damages, suspension,
revocation and termination.
12. Requirements relating to the sale, assignment, or other transfer or
change in control of the Franchise.
13. The Grantee's obligation to maintain continuity of service and to
authorize, under certain specified circumstances, the City's operation and management of
the Cable System.
14. Such additional requirements, conditions, policies, and procedures
as may be mutually agreed upon by the parties to the Franchise Agreement and that will,
in the judgment of the City, best serve the public interest and protect the public health,
welfare, and safety.
§ 1887 BREACH OF FRANCHISE; GROUNDS FOR ASSESSMENT OF
PENALTIES AND FRANCHISE REVOCATION.
(A) In addition to all other rights and powers retained by the City under this
chapter or otherwise, the City reserves the right to terminate any Franchise and all rights
and privileges of Grantee, or assess damages or penalties against Grantee, in the event of
any material breach of its terms and conditions. A material breach by Grantee shall
include, but not be limited to the following:
(1) Violation of any material provision of this chapter, the Franchise
Agreement or any material rule, order, regulation or directive issued in connection with
the Franchise;
(2) Evasion of any material provision of this chapter or the Franchise
Agreement, or the practice of fraud or deceit upon the City or its Subscribers and
customers;
(3) Material misrepresentation of fact in an application for a new
Franchise, renewal or transfer of a Franchise, whether by act or omission;
737846.1 19
(4) Failure to pay any Franchise fee when said payment is due;
(5) Failure to restore Cable Service after 72 consecutive hours of
interrupted Cable Service, except in the event that the City approves in writing a longer
period of interruption after malting a determination that there exists just cause for such
longer period of interruption;
(6) Failure to provide at least 80% of subscribed Cable Services over
the Cable System for a period of five days, except in the event that the City approves in
writing a longer period of interruption after making a determination that there exists just
cause for such longer period of interruption;
(7) Failure to substantially meet customer service standards
established in the Franchise over any consecutive three-month period of time;
(8) Failure to initiate or Complete System Construction, or
reconstruction within the time set forth in the Franchise, unless the City Council
expressly approves the delay by motion or resolution, due to the occurrence of conditions
beyond Grantee's control;
(9) Failure to provide or maintain in full force and effect at all times
any insurance coverage, letter of credit or bonds required by the Franchise Agreement;
(10) Violation of orders or rulings of any regulatory body having
jurisdiction over Grantee relating to the Franchise;
(11) Failure to provide, upon written request, data, documents, reports
or information; and
(12) Failure to pay debts and obligations as they mature in accordance
with normal business practices; assignment of Grantee or its assets for the benefit of its
creditors; dissolution, liquidation or ceasing to conduct business; application by Grantee
for (or consent by Grantee to) the appointment of a receiver, trustee, liquidator; or the
filing of a bankruptcy petition by Grantee to the extent permitted by federal law or the
sale of all or substantially all of Grantee's assets.
§ 1888 PROCEDURE FOR ADJUDICATION OF BREACHES OF THE
FRANCHISE.
(A) Prior to imposing any liquidated damages, sanction or penalty upon
Grantee, including termination of the Franchise, the City Manager, shall demand in
writing that Grantee cure such breach within a specified period, which period shall not be
less than 30 days following notification. However, only 15 days notice shall be required
in the case of failure to pay monies due. In addition, the City may, in an emergency,
prescribe a notice less than 30 days consistent with the nature of the emergency. An
737846.1 20
emergency under this subsection (A) means an occurrence or condition that creates an
actual or imminent danger to life or property.
(B) Should Grantee fail to provide sufficient written proof within the specified
cure period that corrective action has been taken, or that corrective action is being
actively and expeditiously pursued by Grantee, then the City Manager may, in his or her
sole discretion, elect to either place the issue of termination or other penalty before the
City Council pursuant to § 1889 of this Ordinance or refer the matter to an appropriate
hearing officer for his or her determination pursuant to § 1890.
§ 1889 CITY COUNCIL HEARING PROCEDURES.
(A) The City Council may hold a public hearing to determine whether Grantee
materially breached the Franchise and the appropriate penalty to be imposed, if any, as a
result of such breach. The City shall cause to be served upon Grantee, at least ten days
prior to the date of such hearing, written notice of any intent to terminate the Franchise
and the time and place of the hearing. Grantee may appear at such hearing and present
such evidence, orally or in writing, that it deems relevant and appropriate to the Council's
deliberations. Based on the evidence presented at the hearing, the City Council shall
determine in its discretion whether or not a material breach occurred and whether to
terminate the Franchise or take other appropriate action.
(B) Should the City Council find that there has been a material breach of the
Franchise, but that termination of the Franchise is inappropriate, then the Council may
assess and levy or impose such other relief as the Council deems appropriate.
(C) The City shall cause Grantee to be served with written notice of any action
taken by the City Council following such public hearing. The decision of the City
Council as to such matters shall be final, but may be challenged by Grantee in a court of
competent jurisdiction.
(D) Nothing herein is intended to limit the City Council's right to make other
determinations which are reasonably related to the Franchise, or to seek any other
appropriate relief to which the City may be entitled, at law or equity, as a result of any
breach by Grantee of its obligations under the Franchise.
§ 1890 HEARING OFFICER PROCEDURES.
(A) The City Manager may, at his or her sole discretion, refer to a hearing
officer any controversy or claim arising out of or relating to the Franchise or its existence,
construction, interpretation, performance, enforcement, operation, breach, continuance or
termination. Such hearing proceedings shall be initiated by the City Manager by written
notice to Grantee.
(B) Within 90 days of referral of a controversy or claim, the hearing officer
shall commence a hearing unless the parties and the hearing officer otherwise agree in
writing.
737846.1 21
(C) The hearing officer shall be vested with quasi-judicial authority, and shall
be authorized to (i) order Grantee to undertake remedial action to cure any breach of its
obligations under its Franchise, (ii) assess liquidated damages and/or levy a penalty upon
Grantee in accordance with the terms of this chapter and the Franchise Agreement, (iii)
determine that Grantee has not violated any of its obligations under its Franchise and/or
(iv) terminate the Franchise. The hearing officer shall make findings in support of his or
her determinations which must be supported by substantial evidence.
(D) Except as may be apportioned between the parties by the hearing officer in
his or her discretion, each party shall bear one-half of the fees and expenses of the
hearing officer. Each party shall bear its own witness and attorneys' fees or other
expenses.
(E) Failure of Grantee to fully and promptly comply with an order of a hearing
officer shall be deemed a material breach of the Franchise.
(F) The decision of the hearing officer shall be final and subject to judicial
review pursuant to California Code of Civil Procedure Section 1094.5.
§ 1891 PENALTIES FOR BREACH OF THE FRANCHISE.
The City Council or hearing officer may impose the following penalties for any
breach of the Franchise, including any breach of Subscriber service standards:
(A) Up to $1,000 for each day of each material breach, or such other amount
provided in the Franchise Agreement.
(B) For a second material breach of the same nature occurring within 12
months where a fine or penalty was previously assessed, up to twice the maximum
penalty allowed for the first such breach.
(C) For a third or further material breach of the same nature occurring within
12 months of the first such breach, where a fine or penalty was previously assessed, up to
four times the maximum penalty allowed for the first such breach.
§ 1892 ALTERNATIVE REMEDIES.
The remedies provided in this chapter are cumulative and in addition to all other
rights the City may have at law or equity or under the Franchise Agreement, including
but not limited to liquidated damages, which remedies may be exercised at any time. In
no event shall the amount of any bond or letter of credit be construed to limit Grantee's
liability for damages.
§ 1893 REMOVAL AND ABANDONMENT; PURCHASE OF SYSTEM.
(A) Subject to applicable law, in the event that a Franchise is terminated,
revoked, or is not renewed upon expiration, then Grantee shall, upon demand of the City,
and at its sole expense, promptly remove all or any portion of its Cable System. In
737846.1 22
removing its Cable System, Grantee shall restore all streets to the City's standard
specifications and repair any damage to utilities or other infrastructure caused by such
removal. The liability, indemnity, insurance, security fund and bonds required under the
Franchise shall continue in full force and effect until such removal is accepted as
complete by the City.
(B) Subject to applicable law, in the event that a Franchise is not renewed and
the City acquires ownership of a Cable System or effects a transfer of ownership of a
Cable System to another Person, any such acquisition or transfer shall be at fair market
value, determined on the basis of the Cable System valued as a going concern, but with
no value allocated to the Franchise itself. If a Franchise is revoked for cause and the City
acquires ownership of the Cable System or effects a transfer of ownership of the Cable
System to another Person, any such acquisition or transfer shall he at an equitable price.
The value of a Cable System (fair market value or equitable price) shall be determined by
an appraisal committee consisting of three disinterested appraisers. The City and Grantee
shall each select one appraiser, and the two selected appraisers shall agree upon and
appoint a third appraiser.
(C) If a Grantee's plant, or a portion thereof, is deactivated for a continuous
period of 30 days, (except for reasons beyond the Grantee's control), and without prior
written notice to and approval by City, then the Grantee must, at City's option and
demand, and at the sole expense of the Grantee, promptly remove all of the Grantee's
property from any streets or other Public Rights -of -Way. The Grantee must promptly
restore the streets or other public areas from which its property, including Distribution
Facilities, has been removed to the condition existing prior to the Grantee's use.
(D) City may, upon written application by a Grantee, approve the
abandonment in place by a Grantee of any property, under such terms and conditions as
City may approve. Upon City -approved abandonment in place of any property, the
Grantee must cause to be executed such instruments as the City may prescribe in order to
transfer and convey ownership of the abandoned property to the City.
§ 1894 RECEIVERSHIP AND FORECLOSURE.
(A) Subject to applicable provisions of the United States Bankruptcy Code,
any Franchise shall, at the option of the City, cease and terminate 120 days after the
appointment of a receiver or trustee to take over and conduct the business of Grantee
whether in a receivership, reorganization, bankruptcy or other action or proceeding unless
such receivership or trusteeship shall have been vacated prior to the expiration of said
120 days, or unless:
(1) Such receiver or trustee shall have, within 120 days after his or her
election or appointment, fully complied with all terms of the Franchise and remedied all
breaches of the Franchise or provided a plan for the remedy of such breaches which is
approved in writing by the City; and,
737846.1 23
(2) Such receiver or trustee shall, within said 120 days, execute an
agreement duly approved by the Court having jurisdiction, under which such receiver or
trustee agrees to be bound by each and every term, provision and limitation of the
Franchise.
(B) Upon the foreclosure or other judicial sale of all or a substantial part of a
Cable System, Grantee shall notify the City of such fact, and such notification shall be
treated as a notification that a change in ownership of Grantee has taken place and the
provisions of this chapter governing such changes shall apply.
DESIGN AND CONSTRUCTION
§ 1895 UNDERGROUNDING.
(A) At no time shall Grantee place cable underground without appropriate
conduit.
(B) The Cable System shall be placed underground in all portions of the
Franchise area where either telephone or electric lines are underground. Whenever the
poles on which the Cable System is constructed are eliminated, Grantee shall
concurrently replace its aerial facilities with underground facilities. At no time shall the
Cable System be the only aerial facility in any given area.
(C) Where the Cable System is installed underground, line extenders,
amplifiers, taps, power supplies, traps and related electronic equipment and components
may be placed in appropriate housings above the surface of the ground to the extent that
the method employed is compliant with any and all applicable City, state, federal or other
regulations, and consistent with any other generally applicable guidelines, policies or
procedures which may from time to time be adopted by the City or other applicable
government agency. Grantee shall provide a procedure for undergrounding taps and
pedestals, the cost of which the Subscriber will bear, and relocating the taps and pedestals
within the technical constraints of the Cable System.
§ 1896 USE OF POLES.
Grantee shall be authorized to utilize existing poles, conduit, and other facilities
of a public utility, but shall not be authorized to construct or install any new, different, or
additional poles in any City streets without prior written approval by the City.
§ 1897 CONSTRUCTION STANDARDS.
Grantee shall install and maintain its wires, cables, fixtures, and other equipment
in accordance with applicable California Public Utilities Commission pole attachment
standards, electrical codes and industry standards of the Cable television industry
generally applicable to the type of Cable System which Grantee has constructed, owns or
operates any applicable pole agreements, and all Franchise Agreement requirements.
Grantee shall adhere to all building and zoning regulations currently in force or hereafter
enacted. Grantee shall repair and restore any cuts and/or trenching in the roadway or
737846.1 24
sidewalks to City standards. Grantee shall locate and maintain its lines, cables, and other
appurtenances, on public property, in such a manner as to cause no unreasonable
interference with the use of such public property by any Person.
§ 1898 APPROVALS.
The City Engineer shall be authorized to approve the location and method of
construction of all underground facilities and equipment located on Public Right -of -Ways
(including any above -grade portion of such facilities and equipment). The City Engineer
also shall approve the location and installation of all new aerial facilities. All
construction shall be subject to City permit and inspection fees as may be required by
other applicable laws or regulations.
§ 1899 SUBMISSION OF DRAWINGS.
Grantee shall file with the City "as -built" drawings of the entire Cable System,
excluding technical specifications. Additionally, within 30 days after completion of any
material modification of the Cable System (e.g., a system rebuild or Distribution Facility
replacement), Grantee shall file with the City "as -built" drawings, excluding technical
specifications, of the modified Cable System. The City may require that the "as -built"
drawings be submitted in an electronic format specified by the City.
§ 1900 RELOCATION OF FACILITIES AND EQUIPMENT.
(A) Grantee shall remove or relocate at its sole cost any facilities installed,
used or maintained in connection with the Franchise if and when such removal or
relocation is made necessary by any project. For purposes of this section, the word
`project' means any change of grade, alignment or width of any public street, way, alley
or place, including but not limited to, the construction of any subway or viaduct, that the
City may initiate, either by or through itself or any redevelopment agency, community
facility district, assessment district, undergrounding district, reimbursement agreement or
generally applicable impact fee program.
(B) In the event that such removal or relocation is required, Grantee shall
commence physical fieldwork on the removal or relocation on or before 120 days after
written notice of such requirement is provided by the City Manager. If, despite its
reasonable efforts, Grantee is unable to commence removal or relocation within such
period, Grantee shall provide the City Manager with written notice explaining in detail
the reasons for the delay and a date certain upon which such removal or relocation is
expected to commence. Grantee shall diligently proceed and promptly complete all such
removal or relocation after it is commenced.
§ 1901 MAINTENANCE.
Should Grantee fail, refuse or neglect to properly perform any maintenance or
construction work required by the Franchise following due notice from the City and a
reasonable opportunity to cure as provided for under this chapter, or should Grantee fail
to commence performance of such work within the required period of time, or fail to
737846.1 25
diligently proceed and promptly complete such work thereafter, the City Manager may,
upon five days prior written notice to Grantee (except in cases of emergency), cause such
work or other act to be completed in whole or in part by the City forces or others, and
upon so doing shall submit to Grantee an itemized statement of the costs thereof. Grantee
shall pay to the City the entire amount due, without offset or deduction, within thirty (30)
days from the date of such statement.
MINIMUM CUSTOMER SERVICE STANDARDS
§ 1902 SUBSCRIBER SERVICE STANDARDS.
Grantee shall comply with the FCC customer service standards set forth at Section
76.309 of Title 47 of the Code of Federal Regulations, and such additional standards that
may be imposed by ordinance or the Franchise Agreement, and each of the following
requirements:
(A) The Grantee shall maintain a local, toll-free or collect call telephone
access line ("Access Line") which will be available to its Subscribers 24 -hours a day,
seven -days a week;
(B) Trained, knowledgeable and qualified customer service representatives
will be available to respond to customer telephone inquiries during normal business
hours. Normal business hours shall be a minimum of 59 hours weekly, from 7:00 a.m. to
6:00 p.m., Monday through Friday, and at least four additional hours one evening per
week or on Saturdays (or such other times as are approved in writing by the City
Manager);
(C) During non -business hours, the Access Line may be answered by a service
or an automated response system, including an answering machine. Inquiries received
during such hours must be responded to by a trained company representative during the
next business day;
(D) A business and service office located within the City shall be open
Monday through Friday from 7:00 a.m. to 6:00 p.m., and adequately staffed to accept
Subscriber payments and respond to service requests and complaints. Additionally,
Grantee will staff the business and service office at least four additional hours one
evening per week or on Saturdays. Other locations and hours are permissible if approved
in writing by the City Manager;
(E) Telephone answer time by Grantee's customer service representatives,
including waiting time, shall not exceed 30 seconds after a connection is made, and a
busy signal shall not be obtained more than three percent of the time. If the call needs to
be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no
less than 90% of the time under Normal Operating Conditions, measured on a quarterly
basis.
737846.1 26
(F) Grantee shall provide and maintain an emergency system maintenance and
repair staff, capable of responding to and repairing major system malfunctions on a 24-
hour basis;
(G) Grantee shall render efficient service, make repairs promptly, and interrupt
service only for good cause and for the shortest time possible. Scheduled interruptions
insofar as possible, shall be preceded by notice and shall occur during periods of
minimum use of the system, preferably between midnight and 6:00 a.m.;
(H) Under Normal Operating Conditions, Grantee shall respond to the
following Subscriber complaints or requests for service, within the time frame specified
below, no less than 95% of the time (measured on a quarterly basis):
(1) System Outages: Within two (2) hours, including weekend days,
of receiving Subscriber calls reporting a System outage which, by number of calls,
identify a Cable System outage of sound or picture of one (1) or more channels, or a loss
of any other Cable Service, affecting five (5%) percent or more of the Subscribers of the
Cable System.
(2) Service interruptions: within 24 hours, excluding Sundays and
holidays, after the interruption becomes known.
(3) Inferior reception quality: within 48 hours after receiving a request
for service identifying a problem concerning picture or sound quality.
(I) Grantee shall be deemed to have responded to a request for service under
the provisions of this section when a technician arrives at the service location, if
necessary, or otherwise begins work on the problem. In the case of a Subscriber not
being home when the technician arrives, response shall be deemed to have taken place if
the technician leaves written notification of arrival.
(J) The appointment window alternatives for installations, service calls, and
other installation activities offered to a Subscriber will be either a specific time or, at a
maximum, a four (4) hour time block during normal business hours. A Grantee may
schedule service calls and other installation activities outside of normal business hours or
outside the parameters of response time outlined above for the express convenience of the
Subscriber. Further, the following additional requirements shall apply to service
appointments:
(1) A Grantee shall, in accordance with Section 1722 (b) of the
California Civil Code, inform Subscribers of their right to service connection or repair
within a four (4) hour period, if the presence of the Subscriber is required, by offering the
four (4) hour period at the time the Subscriber calls for service connection or repair.
Grantee also agrees to notify all Subscribers by mail of their rights under Section 1722(b)
at least annually during each year of the Franchise.
(2) If the service connection or repair is not commenced within the
specified four-hour period, except for delays caused by unforeseen or unavoidable
737846.1 27
occurrences beyond the control of a Grantee, the Subscriber shall receive one month of
free service at the service level subscribed to by the affected Subscriber.
(K) Standard installations will be performed within seven (7) business days
after an order has been placed. Standard installations are those that are located up to one
hundred fifty (150) feet from the existing distribution system.
(1) If the Grantee cannot perform the standard installation within
seven (7) business days of request by a Subscriber, the Subscriber shall receive one
month of free service at the service tier subscribed to by the affected Subscriber.
(2) In the event that any services to any Subscriber are interrupted for
forty-eight or more hours in any seven-day period, except for acts of God or other
circumstances beyond Grantee's control and outside the Cable System, and except in
circumstances for which the prior approval of the interruption is obtained from the City
Manager, Grantee shall provide a twenty percent rebate of the monthly fees to affected
Subscribers.
(L) Grantee shall have equipment and perform surveys to measure compliance
with the telephone answering standards set forth in this section. The results of the
surveys shall be submitted to the City quarterly. After one year of submitting telephone -
answering surveys to the City, Grantee may request that it be relieved of the requirement
of submitting such surveys. The City Manager may relieve Grantee of the survey
requirement if he or she finds, based on the surveys and the level of customer complaints,
that Grantee is in full compliance with telephone answering standards. City reserves the
right to reinstitute the survey reporting requirement if the City receives three complaints
in any twelve-month period of Grantee failing to meet these telephone answering
standards.
§ 1903 IDENTIFICATION REQUIRED.
All personnel, agents and representatives of Grantee who have contact with
Subscribers and/or the public, including subcontractors, shall wear photo identification
badges. Upon request by the City, Grantee shall provide a list of current employees,
contractors, and subcontractors performing work in the City.
§ 1904 NOTIFICATION TO SUBSCRIBERS.
Grantee shall provide written information on each of the following areas at the
time of installation of service, and at least annually, to all Subscribers and at any time
upon request by any resident of the City:
(A) Products and services offered;
(B) Prices and options for programming services and conditions of
subscription to programming and other services;
(C) Installation and service maintenance policies;
737846.1 28
(D) Instructions on how to use the Cable Service;
(E) Cable channel positions and identification;
(F) Customer service telephone number and office hours;
(G) Billing and complaint procedures, including how to resolve Subscriber
billing disputes;
(H) Credit procedures;
(I) Employee identifications;
(J) Service call response time scheduling;
(K) Time allowed to pay outstanding bills;
(L) Grounds for termination of service;
(M) Steps Grantee must take before disconnecting or terminating service, and
the steps necessary to have service reconnected after involuntary termination;
(N) The Subscriber's right to speak with a supervisor and, if none is then
available, that a supervisor shall return the Subscriber's call within one working day;
(0) The appropriate regulatory authority with whom to register a complaint,
including any rate complaint, and how to contact such authority.
(P) Instructions on the channel compatibility problems that occur when using
a set-top channel converter to view scrambled or encrypted programming, including that
Subscribers may not be able to use special features and functions of their TV receivers
and videocassette recorders.
(Q) Instructions regarding the availability of remote control equipment from
other sources, such as retail outlets, and a list of the models of remote control units
currently available from retailers that are compatible with Grantee's converters.
§ 1905 VERIFICATION OF SUBSCRIBER SERVICE STANDARDS.
(A) Grantee shall demonstrate compliance within the City with all of the
standards contained in (or referenced by) § 1902 by providing quarterly customer service
reports to the City, unless otherwise provided by its Franchise Agreement. The reports
shall provide the following information:
(1) Volume of telephone calls received by the customer service
department.
(2) Percentage of time trunk lines were busy, and the abandonment
rate.
737846.1 29
calls. (3) Average time to complete out -of -service calls, and all other service
(4) Average time to complete new installations.
(5) Detailed customer complaint and outage reports.
(B) Grantee shall maintain a written log or an equivalent stored in computer
memory and capable of access and reproduction, for three years indicating the time and
date of all Service Interruptions, requests for Cable Service or repairs, and responses to
request for Cable Service or repairs.
§ 1906 SUBSCRIBER COMPLAINTS.
(A) Grantee's complaint handling procedures shall be designed to accomplish
the following:
(1) Receive and acknowledge any complaint made in person or by
telephone within fifteen minutes, regardless of the time the complaint is made.
(2) Acknowledge any complaint received by mail within three
business day of the date such complaint is received.
(3) Complaints not resolved within twenty-four hours of receipt shall
be listed in a log of "Delayed Action on Complaints" which shall give the detailed
reasons for non -resolution within the twenty -four-hour period.
(4) Provide the complainant access to the Grantee's management or
supervisory personnel on a basis convenient to the complainant in the event resolution is
not immediately obtained by Grantee's personnel normally assigned to handling
complaints.
(5) Provide complete information to the complainant regarding his or
her ability to take the complaint to the grantor's representative if it is not resolved by the
Grantee.
(B) Grantee shall establish procedures for receiving, acting upon and resolving
Subscriber complaints and shall submit such procedures to the City Manager for review
and approval. The Grantee shall furnish a notice of such procedures to each Subscriber at
the time of initial subscription to the system.
(C) Grantee shall maintain a written record, or "log" listing date and time of
customer complaints, identifying the Subscriber and describing the nature of the
complaints and when and what action was taken by the Grantee in response thereto; such
record shall be kept at Grantee's local office, reflecting the operations to date for a period
of at least three years, and shall be available for inspection during regular business hours
without further notice or demand by the City Manager.
73 7846.1 30
(D) As Subscribers are connected or reconnected to the Cable System, the
Grantee shall, by appropriate means such as a card or brochure, furnish information
concerning the procedures for making inquiries or complaints, including the name,
address and local telephone number of Grantee's employee or agent to whom such
inquiries or complaints are to be addressed and furnish information concerning the City
office responsible for administration of the Franchise with the address and telephone
number of the office.
(E) Grantee shall provide written notice to each Subscriber at intervals not to
exceed one year of the procedure for reporting and resolving Subscriber complaints,
including the Subscriber's right to complain in writing to the City of Grantee's failure to
resolve a service complaint. The proper address of the City and Grantee to which
complaints may be directed shall be included in said notice.
§ 1907 COMPATIBILITY WITH CONSUMER ELECTRONICS EQUIPMENT.
(A) The Grantee shall not scramble or otherwise encrypt signals carried on the
basic service tier. Requests for waivers of this prohibition must demonstrate either a
substantial problem with theft of basic tier service or a strong need to scramble basic
signals for other reasons.
(B) The Grantee shall comply with equipment compatibility rules and
commercial availability of navigation equipment rules of the FCC.
(C) The Grantee shall offer Subscribers the option to receive an A/B switch at
the time of initial Cable Service installation atld shall provide Subscribers with written
information as to how to use such a switch. The Grantee may charge a reasonable price
for said switch. Upon Subscriber request, the Grantee shall provide an A/B switch after
the initial installation of Cable Service. If the Subscriber requests installation of such a
switch (to receive broadcast television without Cable hookup), the Grantee may charge
reasonable fees for such installation and equipment.
RATES
§ 1908 RATE REGULATION.
The City may regulate a Grantee's rates, charges, and prices to the maximum
extent permitted by law now or at a future time.
(A) Filing of Rates and Charges. Throughout the term of any Franchise
Agreement entered into pursuant to this chapter, Grantee shall maintain on file with the
City a complete schedule of all rates and charges related to providing Cable Services
under the Franchise, in a form satisfactory to the City.
(B) Changes in Rates and Charges. Grantee shall provide written notice to the
City and Subscribers at least thirty (30) days in advance of any proposed changed s in
rates and charges within the control of Grantee. Such notice shall be provided in the
Subscriber's bill.
737846.1 31
(C) Regulation of Equipment for Hearing -Impaired. To the extent authorized
by law, the City reserves the right to require and regulate the installation or rental of
equipment which facilitates the reception of Cable Service by hearing impaired
individuals.
§ 1909 BILLING PROCEDURES.
Billing procedures shall be as follows:
(A) Bills will be clear, concise, and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during the
billing period, including:
(1) A list of each service or package received for that billing period;
(2) The rate or charge for each service or package received;
(3) The period of time over which said services are billed;
(4) The total charges due for the monthly period, separate from any
previous balance due;
(5) Credits posted during the month;
i. Credits for service will be issued no later than the
Subscriber's next billing cycle following the determination that a credit is warranted.
(6) A specific date by which payment is required; and
(7) The customer service telephone number to which billing inquiries
or complaints can be directed.
(B) A Grantee's first billing statement after a new installation or service
change shall be prorated as appropriate and shall reflect any security deposit.
(C) A Grantee's billing statement must show a specific payment due date, and
no late payment fee may be imposed on a Subscriber earlier than thirty (30) calendar days
from the due date on the billing statement. Any balance not received within thirty (30)
calendar days of the due date may be assessed a late fee consistent with this Chapter.
Any late fee assessed must appear on the following month's billing statement.
(D) A Grantee must notify the Subscriber that he or she can remit payment in
Person at the Grantee's office located in or near the City and inform the Subscriber of the
address of that office.
(E) Every customer who pays his or her bill directly shall have at least fifteen
(15) days from the date of the bill for services is mailed to pay the listed charges.
73 7846.1 32
Customer payments shall be posted promptly. The Grantee shall not terminate any
residential service for nonpayment of a delinquent account without fifteen (15) days prior
written notice. Such notice shall not be mailed until after the sixteenth (16th) day from
the time the bill for services was mailed to the customer. The Grantee may not assess a
late charge earlier than the twenty-second (22nd) day from the time the bill for services
has been mailed.
(F) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(G) At the time of the initial complaint, Grantee shall provide written or verbal
notice to customers that in the event of a billing dispute, the Grantee, upon resolution of
the dispute when Grantee is at fault, shall waive a late fee.
(H) Subscribers shall not be charged a late fee or otherwise penalized for any
failure by the Grantee, its employees, or contractors, including failure to timely or
correctly bill the Subscriber, or failure to properly credit the Subscribers for a payment
made in a timely manner.
(I) Every notice of termination of service shall include: name and address of
Subscriber whose account is delinquent; the amount of the delinquency; the date by
which payment is required in order to avoid termination of service; the telephone number
of the Grantee for additional information and/or to handle complaints or initiate an
investigation concerning service and charges in question.
(J) Service may only be terminated on days and at times in which the
Subscriber can reach a Customer Service Representative of the Grantee either in Person
or by telephone.
(K) The Grantee shall afford each Subscriber of the Cable System with a right
to rescind the Subscriber's ordering of service within three (3) days after ordering,
provided that such right of rescission shall end upon activation of the service ordered.
(L) The Grantee will not pass-through Franchise fees to Subscribers which
exceed 5.25% of the amount shown on the bill for Cable Services and equipment.
(M) The Grantee shall assess any late fees in accordance with California law.
In no event shall a late fee exceed the maximum amount permissible under California
law.
(N) Any Franchise Agreement entered into pursuant to this chapter may
contain provisions for a discount on basic and Cable programming tiers or any other
Cable Services for Persons with specific income and disability qualifications.
(0) Grantee will set rates for equipment deposits no higher than the actual
replacement value of the equipment for which the deposit is applied. Equipment deposits
shall be promptly returned to Subscribers upon the return in good working condition to
the Grantee of the equipment for which said deposit was required.
737846.1 33
§ 1910 REFUNDS.
(A) Refund checks will be issued promptly, but no later than either:
(1) the Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
(2) in cases involving the return of the equipment supplied by the
Grantee if service is terminated for any reason, by the Subscriber's next billing cycle
following resolution of the request or thirty (30) days, whichever is earlier.
(B) If the Grantee does not mail a check for a refund to any Subscriber
disconnecting service with an outstanding credit within the next billing cycle or thirty
days, whichever is earlier, the Subscriber may request and is entitled to receive a ten
dollar ($10.00) payment.
§ 1911 NOTICE OF RATE INCREASES.
Grantee shall provide written notice to the City and Subscribers at least 30 days in
advance of the implementation of changes in any of its rates and charges which are not
subject to regulation by the City.
§ 1912 NON-DISCRIMINATION AND CUSTOMER PRIVACY.
(A) Service Availability.
No Person, firm or corporation in the existing service area of a Grantee shall be
arbitrarily refused service; provided, however, that the Grantee shall not be required to
provide service to any Subscriber who does not pay the applicable connection fee or
monthly service charge hereby authorized.
A Grantee shall not deny any Cable Service or otherwise discriminate against
Subscribers or others on the basis of race, color, religion, national origin, sex, age or
sexual preference. A Grantee shall strictly adhere to the equal employment opportunity
requirements of federal, state or local governments and shall comply with all applicable
laws and executive and administrative orders relating to non-discrimination.
A Grantee may not require the subscription to any tier other than the basic service
tier as a condition of access to video programming offered on a per channel or per
program basis. A Grantee may not discriminate between Subscribers to the basic service
tier and other Subscribers with regard to the rates charged for video programming offered
on a per channel or per program basis.
A Grantee will abide by all customer privacy requirements of federal and State
law. At least annually, a Grantee shall provide notice in the form of a separate, written
statement to each Subscriber, which clearly and conspicuously informs the Subscriber of -
737846.1
£
737846.1 34
(i) the nature of personally identifiable information
collected or to be collected with respect to the
Subscriber and the nature of the use of such
information;
(ii) the nature, frequency and purpose of any disclosure,
which may be made of such information, including
the identification of the types of Persons to whom
the disclosure may be made;
(iii) the period during which such information will be
maintained by the Grantee;
(iv) the times and place at which the Subscriber may
have access to such information in accordance with
federal and State law; and
(v) the limitations provided in federal and State law with
respect to the collection and disclosure of
information by a Grantee and the right of the
Subscriber under law.
(B) Data Collection.
A Grantee's data collection and dissemination practices regarding Subscribers
shall be in compliance with the Cable Act (including Section 63 1) and this Chapter.
(C) Revealing Subscriber Preferences.
(i) A Grantee shall not reveal individual Subscriber preferences,
viewing habits, beliefs, philosophy, creeds or religious beliefs to any third Person, firm,
agency, governmental unit or investigating agency without court authority or prior
written consent of the Subscriber.
(ii) Such written consent, if given, shall be limited to a period of time
not to exceed one (1) year or a term agreed upon by the Grantee and Subscriber.
(iii) A Grantee shall not condition the delivery or receipt of Cable
Services to any Subscriber on any such consent.
(iv) Such a Subscriber may revoke without penalty or cost any consent
previously made by delivering to the Grantee in writing a substantial indication of his
intent to so revoke.
(D) Revealing Subscriber Lists.
A Grantee shall not reveal, or sell, or permit the release or sale of its Subscriber
list without the prior affirmative written consent of each Subscriber, provided that the
737846.1 35
Grantee may use its Subscriber list as necessary for the construction, marketing, and
maintenance of the Grantee's services and facilities authorized by its Franchise, and the
related billing of Subscribers for Cable Services. Consistent with applicable law, City
may use Grantee's Subscribers list for the purpose of communication with Subscribers in
connection with matters relating to operation, management, and maintenance of the Cable
System.
(E) Other Persons Affected.
This Section shall apply to all of the following as well as to any Grantee:
(i) Officers, directors, employees and agents of the Grantee;
(ii) General and limited partners of the Grantee;
(iii) Any Person or combination of Persons owning holding or
Controlling five percent (5%) or more of any corporate stock or other ownership interest
of the Grantee;
(iv) Any affiliated or subsidiary entity owned or Controlled by the
Grantee, or in which any officer, director, stockholder, general or limited partner or
Person or group of Persons owning, holding or Controlling any ownership interest in the
Grantee, shall own, hold or Control five percent (5%) or more of any corporate stock or
other ownership interest;
(v) Any Person, firm or corporation acting or serving in the capability
of holding or Controlling company of the Grantee.
§ 1913 WRITTEN OR ORAL NOTICE TO ENTER PROPERTY.
Under Normal Operating Conditions, Grantee shall provide written or oral notice,
in light of circumstances, prior to entering any private property.
§ 1914 NOTICE REGARDING CHANNEL SCRAMBLING.
Subscribers shall be given at least thirty (30) days written notice of any
scrambling of a channel, and any de -scrambling of a channel(s) containing R-rated or
stronger programming. Subscribers do not need to be notified of blackout periods
required of the Grantee by programmers.
§ 1915 TENANT RIGHTS.
It is the City's intent that tenants not be discriminated against in the ability to
subscribe to Cable Services. Grantee shall be required to provide service to tenants in
individual units of a multiple housing facility with all services offered to other dwelling
units within the Franchise Area, so long as the owner of the facility consents in writing, if
requested by Grantee, to the following:
737846.1 36
(A) Grantee's providing the service to units of the facility on such terms and
conditions as are reasonable, provided that (i) the owner of the facility shall not seek to
charge Grantee any fee or consideration for access to the facility or for the right of
providing Cable Service to the dwelling units within the facility, (ii) Grantee shall not
seek to charge the owner of the facility any fee or consideration for installing such
service other than its actual costs as provided for herein, and (iii) such terms and
conditions shall be in compliance with applicable law;
(B) Reasonable access to the premises by Grantee for installation,
maintenance, and inspection of the system on the premises;
(C) Reasonable conditions promulgated by Grantee to protect Grantee's
equipment and to encourage widespread use of the system;
(D) The owner shall not discriminate in rental charges, or otherwise, between
tenants who receive Cable Service and those who do not; and
(E) The owner shall provide all easements, rights-of-way, and other rights of
access deemed reasonably necessary or appropriate by Grantee for purposes of providing
Cable television service to the facility.
§ 1916 CONTINUITY OF SERVICE MANDATORY.
(A) Subscribers shall have the right to continue to receive service so long as
their financial and other obligations to Grantee are honored. Grantee shall at all times,
and under all conditions, to the greatest extent economically and technically possible,
maintain continuity of service. In the event of an assignment of the Cable System, the
assignor shall cooperate with the City and the assignee in order to maintain continuity of
service to all Subscribers.
(B) In the event Grantee willfully fails to operate the Cable System for a
period of five consecutive days without prior approval of the City, the City may, in its
sole discretion, elect to operate the Cable System or designate an operator until Grantee
restores service under conditions acceptable to the City, or until the City selects a
permanent operator. During the entire period while the City operates the Cable System
on behalf of Grantee, or causes another party to do so, the City shall be entitled to collect
any and all revenues from the operation of the Cable System, and Grantee shall reimburse
the City for all reasonable costs or damages in excess of the revenues collected by the
City that are caused by Grantee's failure to perform.
OPEN VIDEO SYSTEMS
§ 1917 APPLICABILITY.
The provisions of this chapter apply to an Open Video System Operator that
intends to deliver video programming to consumers in the City over an Open Video
System.
737846.1 37
§ 1918 APPLICATION REQUIRED
A. Before commencing the delivery of video programming services to
consumers in the City over an Open Video System, the Open Video System Operator
must file an application with the City. That application must include or be accompanied
by the following, as applicable:
1. The identity of the applicant, including all Affiliates of the
Applicant.
2. Copies of FCC Form 1275, all "Notices of Intent" filed under 47
CFR 0 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the
applicant to operate an Open Video System in accordance with Section 653(a)(1) of the
Communications Act and the FCC's rules.
The area or areas of the City that the applicant desires to serve.
4. A description of the Open Video System services that will be
offered by the applicant over its existing or proposed facilities.
5. A description of the transmission medium that will be used by the
applicant to deliver the Open Video System services.
6. Information in sufficient detail to establish the applicant's technical
qualifications, experience, and expertise regarding the ownership and operation of the
Open Video System described in the application.
7. Financial statements prepared in accordance with generally
accepted accounting principles that demonstrate the applicant's financial ability to:
a. Construct, operate, maintain and remove any new physical
plant that is proposed to be constructed in the City.
b. Comply with the City's Public, Educational, and
Government Access Channel requirements as specified below in Section 1920 B(4).
C. Comply with the City's requirement that gross revenue fees
be paid in the sum of 5 percent (5%), as specified below in Section 1920 (13)(2).
8. An accurate map showing the location of any existing
telecommunications facilities in the City that the applicant intends to use, to purchase, or
to lease.
9. If the applicant's operation of the Open Video System will require
the construction of new physical plant in the City, the following additional information
must be provided:
73 7846.1 38
a. A preliminary construction schedule and completion dates.
b. Preliminary engineering plans, specifications, and a
network map of any new facilities to be constructed in the City, in sufficient detail to
identify:
(i) The location and route requested for the applicant's
proposed facilities.
(ii) The locations, if any, for interconnection with the
facilities of other telecommunications service providers.
(iii) The specific structures, improvements, facilities,
and obstructions, if any, that the applicant proposes to remove or relocate on a temporary
or permanent basis.
C. The applicant's statement that, in constructing any new
physical plant, the applicant will comply with all applicable ordinances, rules, and
regulations of the City, including the payment of all required permit and processing fees.
10. The information and documentation that is required to be
submitted to the City by a Video Provider, as specified below in paragraph (B) of
Section 1922.
Such additional information as may be requested by the City
Manager.
12. A nonrefundable filing fee in an amount established by resolution
of the City Council.
B. If any item of information specified above in paragraph (A) is determined
under paramount federal or state law to be unlawful, the City Manager is authorized to
waive the requirement that such information be included in the application.
§ 1919 REVIEW OF APPLICATION.
Within 30 days after receipt of an application filed under Section 1918 that is
deemed to be complete, the City Manager will give written notice to the applicant of the
City's intent to negotiate an agreement setting forth the terms and conditions under which
the operation of the proposed Open Video System will be authorized by the City. The
commencement of those negotiations will be on a date that is mutually acceptable to the
City and to the applicant.
§ 1920 AGREEMENT REQUIRED.
737846.1 39
A. No video programming services may be provided in the City by an Open
Video System operator unless the operator and the City have executed a written
agreement, which may be designated as a Franchise, setting forth the terms and
conditions under which the operation of the proposed Open Video System will be
authorized by the City.
B. The agreement between the City and the Open Video System operator
may contain terms and conditions that relate to the following subject matters, to the
extent that such terms, conditions, and subject matters are not preempted by federal
statute or regulations:
1. The nature, scope, and duration of the agreement, including
provisions for its renewal or extension.
2. The obligation of the Open Video System operator to pay to the
City, at specified times, fees on the gross revenue received by the operator, as authorized
by 47 CFR 0 76.1511, in accordance with the following standards and procedures:
a. The amount of the fees on the gross revenue will be five
percent (5%), and will be paid in lieu of the Franchise fees authorized under Section 622
of the Communications Act.
b. The term "OVS Gross Revenue" means (i) all gross
revenue received by an Open Video System operator or its Affiliates, including all
revenue received from Subscribers and all carriage revenue received from unaffiliated
video programming providers; and (ii) all advertising revenue received by the operator or
its Affiliates in connection with the provision of video programming, where such revenue
is included in the calculation of the cable Franchise fee paid to the City by the Franchised
cable operator. The term "OVS Gross Revenue" does not include revenue, such as
Subscriber or advertising revenue, collected by unaffiliated video programming
providers.
3. The obligation of the Open Video System operator to comply with
requirements relating to information collection and recordkeeping, accounting
procedures, reporting, periodic audits, and inspection of records in order to ensure the
accuracy of the fees on the OVS Gross Revenue that are required to be paid as specified
above in paragraph (13)(2).
4. The obligation of the Open Video System operator to meet the
City's requirements with respect to Public, Educational, and Governmental Access
Channel capacity, services, facilities, and equipment, as provided for in 47 CFR
0 76.1505. In this regard, the following standards and procedures are applicable:
a. The Open Video System operator is subject to the same
Public, Educational, and Governmental Access Channel requirements that apply within
the cable television Franchise service area with which its system overlaps.
737846.1 40
b. The Open Video System operator must ensure that all
Subscribers receive all Public, Educational, and Government Access Channels within the
Franchise service area in which the City's Subscribers are located.
C. The Open Video System operator may negotiate with the
City to establish the operator's obligations with respect to Public, Educational, and
Government Access Channel capacity, services, facilities, and equipment. These
negotiations may include the City's Franchised cable operator if the City, the Open Video
System operator, and the Franchised cable operator so desire.
d. If the Open Video System operator and the City are unable
to reach an agreement regarding the operator's obligations with respect to Public,
Educational, and Government Access channel capacity, services, facilities, and
equipment within the City's jurisdiction, then the following obligations will be imposed:
(i) The Open Video System operator must satisfy the
same Public, Educational, and Government Access Channel obligations as the City's
Franchised cable operator by providing the same amount of channel capacity for public,
educational, and governmental access and by matching the City's Franchised cable
operator's annual financial contributions in support of Public, Educational, and
Government Access services, facilities, and equipment that are actually used by the City.
For in-kind contributions, such as cameras or production studios, the Open Video System
operator may satisfy its statutory obligation by negotiating mutually agreeable terms with
the City's Franchised cable operator, so that public, educational, and governmental access
services to the City are improved or increased. If such terms cannot be agreed upon, the
Open Video System operator must pay to the City the monetary equivalent of the
Franchised cable operator's depreciated in-kind contribution, or, in the case of facilities,
the annual amortization value. Any matching contributions provided by the Open Video
System operator must be used to fund activities arising under Section 611 of the
Communications Act.
(ii) The City will impose upon the Open Video System
operator the same rules and procedures that it imposes upon the Franchised cable
operator with regard to the Open Video System operator's use of channel capacity
designated for Public, Educational, and Government Access Channel use when that
capacity is not being used for such purposes.
e. The City's Franchised cable operator is required under
federal law to permit the Open Video System operator to connect with its Public,
Educational, and Government Access Channel feeds. The Open Video System operator
and the Franchised cable operator may decide how to accomplish this connection, taking
into consideration the physical and technical characteristics of the cable and the Open
Video Systems involved. If the Franchised cable operator and the Open Video System
operator cannot agree on how to accomplish the connection, the City has the right to
73 7846.1 41
decide. The City may require that the connection occur on City -owned property or on
Public Rights -of -Way.
f. All costs of connection to the Franchised cable operator's
Public, Educational, and Government Access Channel feed must be borne by the Open
Video System operator. These costs will be counted towards the Open Video System
operator's matching financial contributions set forth above in subparagraph (d)(i).
g. The City will not impose upon the Open Video System
operator any Public, Educational, or Government Access Channel obligations that are
greater than those imposed upon the Franchised cable operator.
h. If there is no existing Franchised cable operator, the
provisions of 47 CFR 0 76.1505(d)(6) will be applicable in determining the obligations of
the Open Video System operator.
L The Open Video System operator must adjust its system to
comply with new Public, Education, and Access Channel obligations imposed on the
City's Franchised cable operator following a renewal of the cable television Franchise;
provided, however, that the Open Video System operator will not be required to displace
other programmers using its Open Video System to accommodate Public, Educational,
and Government Access Channels. The Open Video System operator must comply with
such new Public, Educational, and Government Access Channel obligations whenever
additional capacity is or becomes available, whether it is due to increased channel
capacity or to decreased demand for channel capacity.
5. If the City and the Open Video System operator cannot agree on
the application of the FCC's rules regarding the Open Video System operator's
obligations to provide Public, Educational, and Government Access Channel under the
provisions of subsection (4) set forth above, then either party may file a complaint with
the FCC in accordance with the dispute resolution procedures set forth in 47 CFR
0 76.1514. No agreement will be executed by the City until the dispute has been finally
resolved.
6. If the Open Video System operator intends to maintain an
institutional network, as defined in Section 611(f) of the Communications Act, the City
will require that Educational and Government Access Channels be designated on that
institutional network to the same extent that those channels are designated on the
institutional network of the City's Franchised cable operator. In addition, to the extent
authorized by federal law, the Open Video System operator may be required by the City
to satisfy the same financial obligations and other requirements that are imposed upon the
Franchised cable operator to support data -transmission and related services that are
provided by the institutional network.
73 7846.1 42
7. The authority of an Open Video System provider to exercise
editorial control over any Public, Educational, or Government use of channel capacity
will be restricted in accordance with the provisions of 47 CFR 0 76.1505(f).
8. The obligation of the Open Video System operator to comply with
all applicable federal, state, and local statutes, ordinances, and regulations relating to
customer service standards, including the Cable Television and Video Customer Service
and Information Act (Government Code 00 53054, et sec .), the Video Customer Service
Act (Government Code 00 53088, et M.), and Section 18.04.050 of Chapter 18.04 of this
title.
9. If a new physical plant is proposed to be constructed within the
City, the obligation of the Open Video System operator to comply with the following
rights-of-way use and management responsibilities that are also imposed by the City
upon other telecommunications service providers in a nondiscriminatory and
competitively neutral manner:
a. Compliance with all applicable City codes, including
applications for excavation, encroachment, and construction permits and the payment of
all required permit and inspection fees.
b. The coordination of construction activities.
C. Compliance with established standards and procedures for
constructing lines across private property.
d. Compliance with all applicable insurance and
indemnification requirements.
e. The repair and resurfacing of construction -damaged streets.
f. Compliance with all public safety requirements that are
applicable to telecommunications service providers using public property or Public
Rights -of -Way.
10. Acts or omissions constituting breaches or defaults of the
agreement, and the applicable penalties, liquidated damages, and other remedies,
including fines or the suspension, revocation, or termination of the agreement.
Requirements relating to the sale, assignment, or transfer of the
Open Video System.
12. Requirements relating to the Open Video System operator's
compliance with and implementation of state and federal laws, rules, and regulations
pertaining to the operation of the Open Video System.
737846.1 43
13. Such additional requirements, conditions, terms, policies, and
procedures as may be mutually agreed upon by the City and the Open Video System
operator and that will, in the judgment of the City Council, best serve the public interest
and protect the public health, welfare, and safety.
OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND
SYSTEMS
§ 1921 OTHER MULTICHANNEL VIDEO PROGRAMMING
DISTRIBUTORS.
A. The term "Cable System," does not include a facility that serves
Subscribers without using any Public Rights -of -Way. Consequently, the categories of
Multichannel Video Programming Distributors identified below are not deemed to be
"Cable Systems" and are therefore exempt from the City's Franchise requirements and
from certain other local regulatory provisions authorized by federal law, provided that
their distribution or transmission facilities do not involve the use of the City's Public
Rights -of -Way.
B. Multichannel multipoint distribution service ("MMDS"), also
known as "wireless cable," which typically involves the transmission by an FCC -licensed
operator of numerous broadcast stations from a central location using line -of -sight
technology.
C. Local multipoint distribution service ("LMDS"), another form of
over -the -air wireless video service for which licenses are auctioned by the FCC, and
which offers video programming, telephone, and data networking services.
D. Direct broadcast satellite ("DBS"), also referred to as "direct -to -
home satellite services," which involves the distribution or broadcasting of programming
or services by satellite directly to the Subscriber's premises without the use of ground
receiving or distribution equipment, except at the Subscriber's premises or in the uplink
process to the satellite. Local regulation of direct -to -home satellite services is further
proscribed by the following federal statutory provisions:
1. 47 U.S.C. § 303(v) confers upon the FCC exclusive
jurisdiction to regulate the provision of direct -to -home satellite services.
2. Section 602 of the Communications Act states that a
provider of direct -to -home satellite service is exempt from the collection or remittance, or
both, of any tax or fee imposed by any local taxing jurisdiction on direct -to -home satellite
service. The terms "tax" and "fee" are defined by federal statute to mean any local sales
tax, local use tax, local intangible tax, local income tax, business license tax, utility tax,
privilege tax, gross receipts tax, excise tax, Franchise fees, local telecommunications tax,
or any other tax, license, or fee that is imposed for the privilege of doing business,
regulating, or raising revenue for a local taxing jurisdiction.
737846.1 44
§ 1922 VIDEO PROVIDERS — REGISTRATION; CUSTOMER SERVICE
STANDARDS.
A. Unless the customer protection and customer service obligations of
a Video Provider are specified in a Franchise, with the City, a Video Provider must
comply with all applicable provisions of the following state statutes:
1. The Cable Television and Video Customer Service and
Information Act (Government Code §§ 53054, et seq.).
§§ 53088, et seq.).
2. The Video Customer Service Act (Government Code
B. All Video Providers that are operating in the City on the effective
date of this title, or that intend to operate in the City after the effective date of this title,
and are not required under applicable law to operate under a Franchise, license, lease, or
similar written agreement with the City, must register with the City. The registration
form must include or be accompanied by the following:
1. The Video Provider's name, address, and local telephone
numbers.
2. The names of the officers of the Video Provider.
3. A copy of the Video Provider's written policies and
procedures relating to customer service standards and the handling of customer
complaints, as required by California Government Code §§ 53054, et SeMc . These
customer service standards must include, without limitation, standards regarding the
following:
a. Installation, disconnection, service and repair
obligations, employee identification, and service call response time and scheduling.
b. Customer telephone and office hours.
C. Procedures for billing, charges, refunds, and credits.
d. Procedures for termination of service.
e. Notice of the deletion of a programming service, the
changing of channel assignments, or an increase in rates.
f. Complaint procedures and procedures for bill
dispute resolution.
737846.1 45
g. The Video Provider's written acknowledgement of
its obligation under California Government Code §53055.1 to provide to new customers a
notice describing the customer service standards specified above in subparagraphs (a)
through (f) at the time of installation or when service is initiated. The notice must also
include, in addition to all of the information described above in subparagraphs (a)
through (f), all of the following:
(i) A listing of the services offered by the
Video Provider that clearly describes all levels of service and the rates for each level of
service.
(ii) The telephone number or numbers through
which customers may subscribe to, change, or terminate service, request customer
service, or seek general or billing information.
(iii) A description of the rights and remedies that
the Video Provider may make available to its customers if the Video Provider does not
materially meet its customer service standards.
h. The Video Provider's written
commitment to distribute annually to its employees and customers, and to the City, a
notice describing the customer service standards specified above in subparagraphs (a)
through (f). This annual notice must include the report of the Video Provider on its
performance in meeting its customer service standards, as required by California
Government Code § 53055.2.
4. Unless a Video Provider is exempt under federal law from
its payment, a registration fee in an amount established by resolution of the City Council
to cover the reasonable costs incurred by the City in reviewing and processing the
registration form.
5. In addition to the registration fee specified above in
subsection (4), the written commitment of the Video Provider to pay to the City, when
due, all costs and expenses reasonably incurred by the City in resolving any disputes
between the Video Provider and its Subscribers, which dispute resolution is mandated by
California Government Code § 53088.2(o).
C. The customer service obligations imposed upon Video Providers
by the Video Customer Service Act California Government Code §§53088 et seq.)
consist of the following:
1. Every Video Provider must render reasonably efficient
service, make repairs promptly, and interrupt service only as necessary.
737846.1 46
2. All Video Provider personnel contacting Subscribers or
potential Subscribers outside the office of the provider must be clearly identified as
associated with the Video Provider.
3. At the time of installation, and annually thereafter, all
Video Providers must provide to all customers a written notice of the programming
offered, the prices for that programming, the provider's installation and customer service
policies, and the name, address, and telephone number of the City's office that is
designated for receiving complaints.
4. All Video Providers must have knowledgeable, qualified
company representatives available to respond to customer telephone inquiries Monday
through Friday, excluding holidays, during normal business hours.
5. All Video Providers must provide to customers a toll-free
or local telephone number for installation, service, and complaint calls. These calls must
be answered promptly by the Video Providers.
6. All Video Providers must render bills that are accurate and
understandable.
7. All Video Providers must respond promptly to a complete
outage in a customer's service. The response must occur within 24 hours of the reporting
of such outage to the provider, except in those situations beyond the reasonable control of
the Video Provider. A Video Provider will be deemed to respond to a complete outage
when a company representative arrives at the outage location within 24 hours and begins
to resolve the problem.
8. All Video Providers must provide a minimum of 30 days'
written notice before increasing rates or deleting channels. All Video Providers must
make every reasonable effort to submit the notice to the City in advance of the
distribution to customers. The 30 -day notice is waived if the increases in rates or deletion
of channels are outside the control of the Video Provider. In those cases, the Video
Provider must make reasonable efforts to provide customers with as much notice as
possible.
9. Every Video Provider must allow every residential
customer who pays his or her bill directly to the Video Provider at least 15 days from the
date the bill for services is mailed to the customer, to pay the listed charges unless
otherwise agreed to pursuant to a residential rental agreement establishing tenancy.
Customer payments must be posted promptly. No Video Provider may terminate
residential service for nonpayment of a delinquent account unless the Video Provider
furnishes notice of the delinquency and impending termination at least 15 days prior to
the proposed termination. The notice must be mailed, postage prepaid, to the customer to
whom the service is billed. Notice must not be mailed until the 16th day after the date
the bill for services was mailed to the customer. The notice of delinquency and
737846.1 47
impending termination may be part of a billing statement. No Video Provider may assess
a late fee any earlier than the 22nd day after the bill for service has been mailed.
10. Every notice of termination of service pursuant to the
preceding subsection 9 must include all of the following information:
a. The name and address of the customer whose
account is delinquent.
b. The amount of the delinquency.
C. The date by which payment is required in order to
avoid termination of service.
d. The telephone number of a representative of the
Video Provider who can provide additional information and handle complaints or initiate
an investigation concerning the service and charges in question.
Service may only be terminated on days in which the customer
can reach a representative of the Video Provider either in Person or by telephone.
Any service terminated without good cause must be
restored without charge for the service restoration. Good cause includes, but is not
limited to, failure to pay, payment by check for which there are insufficient funds, theft of
service, abuse of equipment or system personnel, or other similar Subscriber actions.
12. All Video Providers must issue requested refund checks
promptly, but no later than 45 days following the resolution of any dispute, and following
the return of the equipment supplied by the Video Provider, if service is terminated.
13. All Video Providers must issue security or customer
deposit refund checks promptly, but no later than 45 days following the termination of
service, less any deductions permitted bylaw.
14. Video providers must not disclose the name and address of
a Subscriber for commercial gain to be used in mailing lists or for other commercial
purposes not reasonably related to the conduct of the businesses of the Video Providers or
their Affiliates, unless the Video Providers have provided to the Subscriber a notice,
separate or included in any other customer notice, that clearly and conspicuously
describes the Subscriber's ability to prohibit the disclosure. Video providers must
provide an address and telephone number for a local Subscriber to use without toll charge
to prevent disclosure of the Subscriber's name and address.
D. As authorized by California Government Code §53088(q), the
following schedule of penalties is adopted. These penalties may be imposed for the
material breach by a Video Provider of the consumer protection and service standards
737846.1 48
that are set forth above in paragraph (C), provided that the breach is within the reasonable
control of the Video Provider. These penalties are in addition to any other remedies
authorized by this chapter or by any other law, and the City has discretion to elect the
remedy that it will apply. The imposition of penalties authorized by this paragraph (D)
will not prevent the City or any other affected party from exercising any other remedy to
the extent permitted by law, including but not limited to any judicial remedy as provided
below by subsection (2).
1. Schedule of Penalties.
a. For a first material breach: the maximum penalty is
$200 for each day of material breach, but not to exceed a cumulative total of $600 for
each occurrence of material breach, irrespective of the number of customers affected.
b. For a second material breach of the same nature for
which a monetary penalty was previously assessed within the preceding 12 -month period:
the maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 for each
occurrence of the material breach, irrespective of the number of customers affected.
C. For a third or further material breach of the same
nature for which a monetary penalty was previously assessed within the preceding 12 -
month period: the maximum penalty is $1,000 per day, not to exceed a cumulative total
of $3,000 for each occurrence of the material breach, irrespective of the number of
customers affected.
d. For the failure of a Video Provider to distribute the
annual notice required by California Government Code 53055.1: the maximum penalty is
$500 for each year in which the notice is not distributed as required by state statute.
e. The maximum penalties referenced above may be
increased by any additional amount authorized by state law.
2. Judicial Remedies Not Affected.
The imposition of penalties in accordance with the
provisions of subsection (1) above does not preclude any affected party from pursuing
any judicial remedy that is available to that party.
Administration, Notice, and Appeal.
a. The City Manager or the City Manager's designee is
authorized to administer this paragraph (D). Decisions by the City Manager to assess
penalties against a Video Provider must be in writing and must contain findings
supporting the decisions. Decisions by the City Manager are final, unless appealed to the
City Council.
737846.1 49
b. If the Video Provider or any interested Person is
aggrieved by a decision of the City Manager, the aggrieved party may, within 10 days of
the written decision, appeal that decision in writing to the City Council. The appeal letter
must be accompanied by the fee established by the City Council for processing the
appeal. The City Council may affirm, modify, or reverse the decision of the City
Manager.
C. The imposition of monetary penalties under
subsection (1) above is subject to the following requirements and limitations:
(i) The City must give the Video Provider
written notice of any alleged material breach and must allow the Video Provider at least
30 days from receipt of that notice to remedy the breach.
(ii) For the purpose of assessing monetary
penalties, a material breach will be deemed to have occurred for each day, following the
expiration of the period for cure specified in subparagraph (i) above, that the material
breach has not been remedied by the Video Provider, irrespective of the number of
customers affected.
§ 1923 TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE
CORPORATIONS.
A. The City Council finds and determines as follows:
1. The federal Telecommunications Act of 1996 preempts and
declares invalid all state rules that restrict entry or limit competition in both local and
long-distance telephone service.
2. The California Public Utilities Commission ("CPUC") is
primarily responsible for the implementation of local telephone competition, and it issues
certificates of public convenience and necessity to new entrants that are qualified to
provide competitive local telephone exchange services and related telecommunications
service, whether using their own facilities or the facilities or services provided by other
authorized telephone corporations.
3. Section 234(a) of the California Public Utilities Code
defines a "telephone corporation" as "every corporation or person owning, controlling,
operating, or managing any telephone line for compensation within this state."
4. Section 616 of the California Public Utilities Code provides
that a telephone corporation "may condemn any property necessary for the construction
and maintenance of its telephone line."
5. Section 2902 of the California Public Utilities Code
authorizes municipal corporations to retain their powers of control to supervise and
737846.1 50
regulate the relationships between a public utility and the general public in matters
affecting the health, convenience, and safety of the general public, including matters such
as the use and repair of public streets by any public utility and the location of the poles,
wires, mains, or conduits of any public utility on, under, or above any public streets.
6. Section 7901 of the California Public Utilities Code
authorizes telephone and telegraph corporations to construct telephone or telegraph lines
along and upon any public road or highway, along or across any of the waters or lands
within this state, and to erect poles, posts, piers, or abutments for supporting the
insulators, wires, and other necessary fixtures of their lines, in such manner and at such
points as not to incommode the public use of the road or highway or interrupt the
navigation of the waters.
7. Section 7901.1 of the California Public Utilities Code
confirms the right of municipalities to exercise reasonable control as to the time, place,
and manner in which roads, highways, and waterways are accessed, which control must
be applied to all entities in an equivalent manner, and may involve the imposition of fees.
8. Section 50030 of the California Government Code provides
that any permit fee imposed by a city for the placement, installation, repair, or upgrading
of telecommunications facilities, such as lines, poles, or antennas, by a telephone
corporation that has obtained all required authorizations from the CPUC and the FCC to
provide telecommunications services, must not exceed the reasonable costs of providing
the service for which the fee is charged, and must not be levied for general revenue
purposes.
B. In recognition of and in compliance with the statutory
authorizations and requirements set forth above in paragraph A, the following regulatory
provisions are applicable to a telephone corporation that desires to provide
telecommunications service by means of facilities that are proposed to be constructed
within the City's Public Rights -of -Way:
1. The telephone corporation must apply for and obtain, as
may be applicable, an excavation permit, an encroachment permit, or a building permit
("Ministerial Permit.")
2. In addition to the information required by this Code in
connection with an application for a Ministerial Permit, a telephone corporation must
submit to the City the following supplemental information:
a. A copy of the certificate of public convenience and
necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that
authorizes the applicant to provide the telecommunications service for which the facilities
are proposed to be constructed in the City's Public Rights -of -Way.
737846.1 51
b. If the applicant has obtained from the CPUC a
certificate of public convenience to operate as a "competitive local carrier," the following
additional requirements are applicable:
(i) As required by Decision No. 95-12-057 of
the CPUC, the applicant must establish that it has filed with the City in a timely manner a
quarterly report that describes the type of construction and the location of each
construction project proposed to be undertaken in the City during the calendar quarter in
which the application is filed, which information is sufficient to enable the City to
coordinate multiple projects, as may be necessary.
(ii) If the applicant's proposed construction
project will extend beyond the utility rights-of-way into undisturbed areas or other rights-
of-way, the applicant must establish that it has filed a petition with the CPUC to amend
its certificate of public convenience and necessity and that the proposed construction
project has been subjected to a full-scale environmental analysis by the CPUC, as
required by Decision No. 95-12-057 of the CPUC.
(iii) The applicant must inform the City whether
its proposed construction project will be subject to any of the mitigation measures
specified in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for
Local Exchange Communication Service throughout California"] or to the Mitigation
Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The
City's issuance of a Ministerial Permit will be conditioned upon the applicant's
compliance with all applicable mitigation measures and monitoring requirements
imposed by the CPUC upon telephone corporations that are designated as "competitive
local carriers."
C. In recognition of the fact that numerous excavations in the Public
Rights -of -Way diminish the useful life of the surface pavement, and for the purpose of
mitigating the adverse impacts of numerous excavations on the quality and longevity of
public street maintenance within the City, the following policies and procedures are
adopted:
1. The City Manager is directed to ensure that all public
utilities, including telephone corporations, comply with all local design, construction,
maintenance and safety standards that are contained within, or are related to, a Ministerial
Permit that authorizes the construction of facilities within the Public Rights -of -Way.
2. The City Manager is directed to coordinate the construction
and installation of facilities by public utilities, including telephone corporations, in order
to minimize the number of excavations in the Public Rights -of -Way. In this regard,
based upon projected plans for street construction or renovation projects, the City
Manager is authorized to establish on a quarterly basis one or more construction time
periods or "windows" for the installation of facilities within the Public Rights -of -Way.
Telephone corporations and other public utilities that submit applications for Ministerial
737846.1 52
Permits to construct facilities after a predetermined date may be required to delay such
construction until the next quarterly "window" that is established by the City.
SECTION 2. The City Council hereby declares that the provisions of this
Ordinance are severable and if for any reason a court of competent jurisdiction shall hold
any sentence, paragraph or section of this Ordinance to be invalid, such decision shall not
affect the validity of the remaining parts of this Ordinance.
Introduced by title only on August 20, 2003, by the following roll call vote:
AYES: Councilmembers Rodin, Andersen, Smith, Baldwin, and Mayor Larson
NOES: None
ABSENT: None
Adopted on September 3, 2003 by the following roll call vote:
AYES: Councilmembers Rodin, Andersen, Smith, Baldwin, and Mayor Larson
NOES: None
ABSENT: None
Eric Larson, Mayor
ATTEST:
Marie Ulvila, City Clerk
737846.1 53
EXHIBIT B
COMMON OWNERSHIP
ACC Cable Communications FL -VA, LLC
ACC Cable Holdings VA, Inc.
ACC Holdings II, LLC
ACC Investment Holdings, Inc.
ACC Operations, Inc.
ACC Telecommunications Holdings, LLC
ACC Telecommunications, LLC
ACC Telecommunications of Virginia, LLC
ACC-AMN Holdings, LLC
Adelphia Acquisition Subsidiary, Inc.
Adelphia Arizona, Inc.
Adelphia Blairsville, LLC
Adelphia Cable Partners, LP
Adelphia Cablevision Associates, LP
Adelphia Cablevision Corp.
Adelphia Cablevision of Boca Raton, LLC
Adelphia Cablevision of Fontana, LLC
Adelphia Cablevision of Inland Empire, LLC
Adelphia Cablevision of New York, Inc.
Adelphia Cablevision of Newport Beach, LLC
Adelphia Cablevision of Orange County II, LLC
Adelphia Cablevision of Orange County, LLC
Adelphia Cablevision of San Bernardino, LLC
Adelphia Cablevision of Santa Ana, LLC
Adelphia Cablevision of Seal Beach, LLC
Adelphia Cablevision of Simi Valley, LLC
Adelphia Cablevision of the Kennebunks, LLC
Adelphia Cablevision of West Palm Beach III, LLC
Adelphia Cablevision of West Palm Beach IV, LLC
Adelphia Cablevision of West Palm Beach V, LLC
Adelphia Cablevision, LLC
Adelphia California Cablevision, LLC
Adelphia Central Pennsylvania, LLC
Adelphia Cleveland, LLC
Adelphia Communications Corporation
Adelphia Communications International, Inc.
Adelphia Communications of California II, LLC
Adelphia Communications of California III, LLC
Adelphia Communications of California, LLC
Adelphia Company of Western Connecticut
Adelphia General Holdings III, Inc.
Adelphia GP Holdings, LLC
Adelphia GS Cable, LLC
Adelphia Harbor Center Holdings, LLC
Adelphia Holdings 2001, LLC
Adelphia International II, LLC
Adelphia International III, LLC
Adelphia Mobile Phones, Inc.
Adelphia of the Midwest, Inc.
Adelphia Pinellas County, LLC
Adelphia Prestige Cablevision, LLC
Adelphia Telecommunications of Florida, Inc.
Adelphia Telecommunications, Inc.
Adelphia Wellsville, LLC
Adelphia Western New York Holdings, LLC
Arahova Communications, Inc.
Arahova Holdings, LLC
Badger Holding Corporation
Better TV, Inc. of Bennington
Blacksburg/Salem Cablevision, Inc.
Brazas Communications, Inc.
Buenavision Telecommunications, Inc.
Cable Sentry Corporation
California Ad Sales, LLC
CCC -III, Inc.
CCC -Indiana, Inc.
CCH Indiana, LP
CDA Cable, Inc.
Century Advertising, Inc.
Century Alabama Corp.
Century Alabama Holding Corp.
Century Australia Communications Corp.
Century Berkshire Cable Corp.
Century Cable Holding Corp.
Century Cable Holdings, LLC
Century Cable Management Corporation
Century Cable of Southern California
Century Cablevision Holdings, LLC
Century Carolina Corp.
Century Colorado Springs Corp.
Century Colorado Springs Partnership
Century Cullman Corp.
Century Enterprise Cable Corp.
Century Exchange, LLC
Century Federal, Inc.
Century Granite Cable Television Corp.
Century Huntington Company
Century Indiana Corp.
Century Investment Holding Corp.
Century Investors, Inc.
Century Island Associates, Inc.
Century Island Cable Television Corp.
Century Kansas Cable Television Corp.
Century Lykens Cable Corp.
Century Mendocino Cable Television Inc.
Century Mississippi Corp.
Century Mountain Corp.
Century New Mexico Cable Television
Century Norwich Corp.
Century Ohio Cable Television Corp.
Century Oregon Cable Corp.
Century Pacific Cable TV Inc.
Century Programming, Inc.
Century Realty Corp.
Century Shasta Cable Television Corp.
Century Southwest Colorado Cable Television Corp.
Century Telecommunications, Inc.
Century Trinidad Cable Television Corp.
Century Virginia Corp.
Century Voice and Data Communications, Inc.
Century Warrick Cable Corp.
Century Washington Cable Television, Inc.
Century Wyoming Cable Television Corp.
Century -ML Cable Corporation
Century -ML Cable Venture
Century -TCI California Communications, LP
Century -TCI California, LP
Century -TCI Holdings, LLC
Chelsea Communications, Inc.
Chelsea Communications, LLC
Chestnut Street Services, LLC
Clear Cablevision, Inc.
CMA Cablevision Associates VII, LP
CMA Cablevision Associates XI, LP
Coral Security, Inc.
Cowlitz Cablevision, Inc.
CP -MDU I LLC
CP -MDU II LLC
E. & E. Cable Service, Inc.
Eastern Virginia Cablevision Holdings, LLC
Eastern Virginia Cablevision, LP
Empire Sports Network, LP
FAE Cable Management Corp.
FOP Indiana, LP
FrontierVision Access Partners, LLC
FrontierVision Cable New England, Inc.
FrontierVision Capital Corporation
FrontierVision Holdings Capital Corporation
FrontierVision Holdings Capital II Corporation
FrontierVision Holdings, LLC
FrontierVision Holdings, LP
FrontierVision Operating Partners, LLC
FrontierVision Operating Partners, LP
FrontierVision Partners, LP
Ft. Myers Acquisition Limited Partnership
Ft. Myers Cablevision, LLC
Genesis Cable Communications Subsidiary, LLC
Global Acquisition Partners, LP
Global Cablevision II, LLC
Grafton Cable Company
GS Cable, LLC
GS Telecommunications, LLC
Harron Cablevision of New Hampshire, Inc.
Huntington CATV, Inc.
Imperial Valley Cablevision, Inc.
Kalamazoo County Cablevision, Inc.
Key Biscayne Cablevision
Kootenai Cable, Inc.
Lake Champlain Cable Television Corporation
Leadership Acquisition Limited Partnership
Louisa Cablevision, Inc.
Manchester Cablevision, Inc.
Martha's Vineyard Cablevision, LP
Mercury Communications, Inc.
Mickelson Media of Florida, Inc.
Mickelson Media, Inc.
Montgomery Cablevision, Inc.
Monument Colorado Cablevision, Inc.
Mountain Cable Communications Corporation
Mountain Cable Company, LP
Mt. Lebanon Cablevision, Inc.
Multi -Channel TV Cable Company
National Cable Acquisition Associates, LP
Olympus Cable Holdings, LLC
Olympus Capital Corporation
Olympus Communications Holdings, LLC
Olympus Communications, LP
Olympus Subsidiary, LLC
Owensboro Indiana, LP
Owensboro on the Air, Inc.
Owensboro -Brunswick, Inc.
Page Time, Inc.
Palm Beach Group Cable Joint Venture
Palm Beach Group Cable, Inc.
Paragon Cable Television, Inc.
Paragon Cablevision Construction Corporation
Paragon Cablevision Management Corporation
Parnassos Communications, LP
Parnassos Holdings, LLC
Parnassos, LP
Pericles Communications Corporation
Pullman TV Cable Co., Inc.
RentaVision of Brunswick, Inc.
Richmond Cable Television Corporation
Rigpal Communications, Inc.
Robinson/Plum Cablevision, LP
S/T Cable Corporation
Sabres, Inc.
Scranton Cablevision, Inc.
Sentinel Communications of Muncie, Indiana, Inc.
Southeast Florida Cable, Inc.
Southwest Colorado Cable, Inc.
Southwest Virginia Cable, Inc.
Star Cable Inc.
Starpoint Limited Partnership
SVHH Cable Acquisition, LP
SVHH Holdings, LLC
Tele -Media Company of Hopewell -Prince George
Tele -Media Company of Tri -States, LP
Tele -Media Investment Partnership, LP
Telesat Acquisition Limited Partnership
Telesat Acquisition, LLC
The Golf Club at Wending Creek Farms, LLC
The Main InternetWorks, Inc.
The Westover TV Cable Co. Incorporated
Three Rivers Cable Associates, LP
Timotheos Communications, LP
TMC Holdings Corporation
TMC Holdings, LLC
Tri -States, LLC
UCA, LLC
Upper St. Clair Cablevision, Inc.
US Tele -Media Investment Company
Valley Video, Inc.
Van Buren County Cablevision, Inc.
Warrick Cablevision, Inc.
Warrick Indiana, LP
Wellsville Cablevision, LLC
West Boca Acquisition Limited Partnership
Western NY Cablevision, LP
Westview Security, Inc.
Wilderness Cable Company
Young's Cable TV Corp
Yuma Cablevision, Inc.
EXHIBIT C
MENDOCINO COUNTY CHANNEL CAPACITY/SYSTEM CHARACTERISTICS
Century Mendocino Cable Television, Inc. operates a state-of-the-art broadband network
designed to meet the telecommunications needs of City of Ukiah and Mendocino County
residents for the foreseeable future. Following is a general description to the system, though it is
understood that some technical specifications may change throughout the course of the franchise.
The 860 MHz hybrid fiber -coaxial (HFC) network encompasses 436.08 miles of plant of
which 337.38 are overhead and 98.7 is underground. The system extends fiber optics lines from
the system headend to nodes throughout the County. At each node, the signals enter our coaxial
network for transmission to the home.
The system is capable of providing hundreds of channels using both analog and digital
formats. Each analog video channel requires 6 MHz, however using digital compression
Adelphia can provide 10-14 Digital Cable channels in 6MHz spectrum.
The HFC system is two-way capable allowing for high-speed Internet service and
"impulse" ordering of pay per view services. It is built, able to accommodate future services
including telephony and video -on -demand. High-speed data (HSD) services use the "DOCSIS"
industry standard, enabling customers to purchase any DOCSIS compatible cable modem. In
addition, if a customer were to move they would be able to use the same modem in their new
location, provided the cable system uses the DOCKS standard.
The City of Ukiah and Mendocino County system is built using a "node plus two"
architecture, which is the standard for Adelphia Communications. This type of network design
limits the number of amplifiers located between the fiber node and a customer's home. The
benefit of this type of architecture is the placement of fiber optic cable deeper into the system,
resulting in fewer homes per node and greater capacity to meet the individual needs of customers.
Each node is designed to serve approximately 125-150 homes.
All nodes have standby power capability for use during commercial power interruptions.
The headend has standby power capable of providing twenty four (24) hours of power during any
periods of commercial power interruptions.
The system forward bandwidth is 54 to 862 MHz. The reverse bandwidth is 5 to 40 MHz.
C-1
EXHIBIT D
CABLE SYSTEM SERVICES FOR PUBLIC
EDUCATIONAL, AND COMMUNITY FACILITIES
Grantee agrees to provide basic cable service to the following locations:
Location
Address
Status
Remarks
Fort Bragg Town Hall
363 North Main Street
Existing
Fort Bragg PD
250 Cypress Street
Existing
Fort Bragg City Hall
416 North Franklin
Existing
MCCET Studio
at Ft. Bragg High School
300 Dana
Existing
Fort Bragg Fire Det
141 North Main Street
Existing
Fort Bragg Library
499 East Laurel
New
Mendocino High School
(2 ROP Buildings &
Performing Arts Building)
10700 Ford
Existing
Mendocino Performing
Arts
Existing
Mendocino Coast District
Hospital
700 River Drive
Existing
Mendocino Recreation
Center
School St (Mendocino)
New
Caspar Community Center
14990 Caspar Road
New
*See note below
Detrich Education Center
208 Dana St.
Existing
College of the Redwoods
1211 De Mar Dr.
Existing
Corner of Lincoln and
Not yet constructed,
MCRPD Aquatic Center
Willow Streets
New
future activation
111 and 125 East
Willits City Hall and
Commercial
Justice Center
(contiguous buildings)
Existing
Willits Community
Television
85 East Commercial
Existing
Willits HS
299N. Main St.
Existing
400 East Commercial
Willits Museum
St.
New
*See note below
Ukiah City Hall and annex
300 Seminary Avenue
Existing
Ukiah HS
1000 Low Gap Road
Existing
School District to
provide necessary
conduit, Adelphia
New Grace Hudson
1600 South State
responsible for
Campus
New
additional costs.
Mendocino County Office
2240 Eastside Road
of Ed.
Talmage
Existing
Mendocino Community
1000 Hensley Creek
New
D-1
College (Ukiah)
Rd.
County Supervisor
501 Low Gap Rd,
Chambers
Ukiah
Existing
County Administrative
Center, Office of
Emergency Services
175 S. School
Existing
30400 Albion Ridge
Albion School
Rd.
New
*See note below
College of the Redwoods
1211 Del Mar Dr.
New
*See note below
Ukiah Conference Center
200 S. School
New
*See note below
Mendocino Community
College (Willits)
11 Main Street
New
*See note below
*Note: If a location noted above requires no more than a standard 150 -foot aerial drop line from
the main feeder line, Adelphia shall pay the entire cost of construction necessary to connect that
location to Adelphia's Cable System. If a location noted above requires more than a standard
150 -foot aerial drop line from the main feeder line, then Adelphia agrees to assume the first
$2500 worth of construction costs related to connecting that location to Adelphia's Cable
System. Any costs over and above the $2500 limit per location shall be the responsibility of the
particular location. With respect to locations requiring more than a standard 150 -aerial drop line
from the main feeder line, Adelphia shall not be required to provide basic cable service to any
location that will not agree to assume construction costs over and above the $2500 limit.
D-2
EXHIBIT E
SUPPORT OF LOCAL CABLE USAGE
I. PEG ACCESS CHANNELS.
A. Channel Capacity and Use
1. Within six (6) months following the effective date of this Agreement,
Grantee will make available to Grantor three analog channels for exclusive use by Grantor in
support of community television (PEG), of which one is currently channel 3 and shall remain
channel 3 throughout the term of this Agreement.
2. Use of the PEG access channels will be under the exclusive control of the
Grantor, or its designee and subject to such rules and regulations as the Grantor may establish in
accordance with federal law. In this regard, Grantor reserves the right to delegate the operation
and management of any current or future PEG access channel to such individuals or entities as it
may select, all of whom must comply with federal, state, and local laws and regulations relating
to the operations of that channel.
3. All PEG access channels will be positioned on the lowest priced basic
service tiers and will be fully accessible to subscribers, consistent with FCC regulations. Grantee
agrees that channels 3, 64 and 65 shall be reserved for use as the PEG access channels.
4. Grantee will not change the positioning of Grantor's PEG access channels
without ninety (90) days prior written notice to Grantor, where such change is within the
Grantee's control. Where such change is not within the Grantee's control, Grantee will give
Grantor as much prior written notice as is reasonably possible. Grantee must reimburse Grantor
for all costs (up to a total of $3,000.00 each) reasonably incurred as a consequence of any such
change in channel position, including costs of notices to subscribers and modifications to
descriptive literature.
5. Grantee will ensure that the signal quality for all PEG access channel
cablecasting complies with all applicable FCC technical standards. Failure to comply to these
standards will result in liquidated damages pursuant to Subsection 11.4(b)(2).
6. Upon Grantor's request, but no more than once per year, Grantee will
disseminate to subscribers information related to PEG access programming on Grantee's
electronic program guide channel. In addition, Grantee will, upon request of Grantor,
disseminate such information as an insert in subscriber bills once annually. The costs related to
the dissemination of this information shall be borne by the Grantee.
E-1
7. Except to the extent authorized by federal law, Grantee will not exercise
any editorial control over the public, educational, or governmental use of channel capacity that is
made available to Grantor under the provisions of this Exhibit D and E.
8. Grantee is not responsible for any costs, in excess of those costs outlined
in this agreement, associated with the maintenance of Grantor's PEG equipment or operations.
B. Restrictions.
1. Grantor agrees not to use its designated public, educational, or
governmental access channels to provide commercial services that may compete directly with
services provided by Grantee.
C. Digital PEG Access Channels.
I . The parties acknowledge that Grantee may in the future use video
compression technology in order to transmit PEG access video programming in a digital format
to subscribers. Until such time as Grantee has converted all analog video programming to
digital, consistent with federal law, Grantee must make PEG access channels available to both its
analog and digital customers.
2. When Grantee has converted all video programming, both commercial and
non-commercial, from analog to digital, then Grantee shall provide Grantor one (1) additional
channel for PEG access programming (for a total of four (4) channels).
D. Use of Fallow PEG Channels.
1. Grantee agrees not to request use of the two of the three initial channels
described in subsection A.1. However, if the third or subsequent access channel becomes
programmed for less than four (4) hours per day for six (6) days per week for a continuous period
of not less than twelve (12) consecutive weeks, the City may permit the Grantee to utilize unused
channel capacity on that channel under the following conditions:
2. Any request from the Grantee to use any fallow capacity designated for
PEG Access must be submitted in writing to the City Council at least one hundred twenty (120)
days prior to desired utilization date.
3. The City Council shall approve the petition from the Grantee to use fallow
channel capacity if it finds that: (i) the utilization of the channel is as represented; (ii) the
Grantee has not acted in violation of any of the provisions of the Franchise regarding utilization
of the channel. After approval, the Grantee may continue to utilize the channel for any other
purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG
purposes pursuant to the provisions hereof; and (iii) rules are pre -scribed by the City in
E-2
determining the rules the Grantee must follow in returning to the City channels loaned to the
Grantee under this section.
4. City agrees to give Grantee one hundred twenty (120) days notice when
requesting that a channel be returned.
E. Definitions.
1. For the purpose of this section, the following terms have the following
meanings:
a) Locally Produced means programming produced in either County
of Mendocino or in any incorporated area that is shared between participating PEG organizations
with the County.
b) Original Programming means programming in its initial, first or
second repeat cablecast on the cable system.
C) Locally Scheduled means that the scheduling, selection, or
playback of original programming on a per -program basis is determined in consultation with, or
in accordance with the operating procedures of, the designated access provider or, with respect to
programming received from an interconnection, the provider transmitting the programming over
the interconnection. Carriage on any public access channel of all or a substantial portion of any
non -local programming that duplicates programming carried by Grantee as a part of its basic or
expanded basic cable services will not be considered to be Locally Scheduled.
F. Live Cablecastina Capabilities
1. Grantee will provide fiber and/or coaxial return capability for live
origination of community programming from the following buildings:
E-3
Location
Status
Remarks
Fort Bragg Town Hall
Existing
Fort Bragg PD
New
*See note below
Fort Bragg City Hall
Existing
Fort Bragg HS
Existing
MCRPD Aquatic Center
N/A
Not yet constructed, future
activation
Mendocino HS
Existing
Caspar Community Center
New
*See note below
Mendocino Coast District Hospital
N/A
*See note below
Detrich Education Center
Existing
Mendocino Recreation Center
N/A
*See note below
Existing, but may require
College of the Redwoods
Existing
activation of additional
buildings
*See note below
Willits City Hall
Existing
Willits Community Television
Existing
Ukiah City Hall
Existing
Mendocino Community College
Existing
(Ukiah)
County Supervisor Chambers
New
County Office of Emergency
Existing
Services
Mendocino Community College
New
*See note below
(Willits)
Willits High School
New
*See note below
Ukiah Conference Center
New
*See note below
Grace Hudson Campus
New
*See note below
Cotton Auditorium
New
*See note below
*Note: With respect to the locations noted above, Adelphia agrees to assume the first $2500
worth of construction costs related to providing each of these locations with fiber and/or coaxial
return capability for live origination of community programming. Any costs over and above the
$2500 limit per location shall be the responsibility of the particular location. Adelphia shall not
be required to provide fiber or coaxial return capability for live origination of community
programming to any location that will not agree to assume construction costs over and above the
$2500 limit.
E-4
2. In order to accommodate the future needs of the City and upon Grantor's
written request, Grantee shall agree to provide fiber and/or coaxial return capability for live
origination of community programming from up to 5 additional public, educational and/or
community administrative facilities identified by Grantor (the "Future Locations"). With respect
to the Future Locations, Adelphia agrees to assume the first $2500 worth of construction costs
related to providing each of these locations with fiber and/or coaxial return capability for live
origination of community programming. Any costs over and above the $2500 limit per location
shall be the responsibility of the particular location. Adelphia shall not be required to provide
fiber or coaxial return capability for live origination of community programming to any Future
Location that will not agree to assume construction costs over and above the $2500 limit.
3. If not already provided, Grantee agrees, within six (6) months of receiving
a request from the City, to connect the PEG studio identified by the City to the headend located
within the designated PEG studio's service area via dedicated fiber. City agrees to consult with
Adelphia during the selection process of any future PEG studio locations in an effort to minimize
construction costs associated with connecting future PEG studio(s) to the appropriate headend
via fiber.
4. Grantee agrees within six months of the effective date of the Franchise
Agreement to provide necessary fiber transmission equipment to provide video and audio signals
directly from the County's Information Services (IS) on South School St. to Grantee's headend
for originating local programming onto the Ukiah and surrounding Mendocino County area. The
County's IS Department will serve as the central control center for all three Ukiah Valley PEG
channels.
5. In the event that Grantee ever interconnects the headends located in the
areas of Fort Bragg, Ukiah and Willits via fiber or some alternative method (e.g. over the air
frequency), Grantee agrees to also interconnect the PEG facilities serving the County, Fort Bragg,
Ukiah and Willits.
6. Within twenty-four (24) months of the effective date of this agreement,
Grantee agrees to provide and maintain equipment necessary to transmit live origination of
community programming (i.e. modulators, lasers, etc.) at each live cablecasting location
identified in section F(1) of Exhibit F. In addition, Grantee agrees to provide and maintain
equipment at its headend necessary to receive (and retransmit over its Cable System) live
origination of community programming (i.e. demodulators, receivers, etc.) Grantor agrees to
reimburse Grantee for any loss of said equipment due to Grantor's negligence. The equipment
required to be maintained and provided by Grantee under this section shall not be taken into
account when calculating the $2500 construction limit described above in Section F.
7. Grantee agrees to maintain for the term of this Franchise Agreement these
dedicated return lines for the purpose of connecting the aforementioned live origination locations
with the company's related headends.
E-5
8. Grantee also agrees to assist the respective IT or IS staff of Grantor for the
purpose of coordinating interconnecting PEG facilities to existing facilities of the Grantor's
networks or those of the Grantee that are being provided under separate fiber lease agreements.
G. Grants for PEG Access Production and Programming �Equipment.
1. Within sixty (60) days after the effective date of this Agreement, Grantee
will pay to Grantor a capital grant in the amount of $200,000 prorated on a per subscriber basis
among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits. Within sixty
(60) days after the 1 st and 2nd anniversary of the Effective Date of this Agreement, Grantee will
pay to Grantor capital grants in the amount of $200,000 respectively prorated on a per subscriber
basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits. Within
sixty (60) days after the 5th and 7th anniversaries of the Effective Date of this Agreement,
Grantee will pay additional capital grants to Grantor in the following amounts subject to the
following conditions:
a) $100,000 prorated on a per subscriber basis among the County of
Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to Grantor showing that
Grantor or the PEG organization responsible for managing the PEG channels has cablecast an
average of at least ten (10) hours of original community oriented programming per week during
the prior six month period.
b) $50,000 prorated on a per subscriber basis among the County of
Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to such four public agencies
collectively collecting during the prior twelve (12) months the signatures of 400 cable
subscribers who state that they find value in the programming shown on the PEG channels.
C) $50,000 prorated on a per subscriber basis among the County of
Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to such four public agencies
collectively collecting in years 4, 5 and 6 and years 7, 8 and 9 respectively at least $25,000 in
cash or verifiable in-kind contributions for the support of PEG programming from sponsorships,
tape sales, or other fundraising methods. Any income derived from the lease or sublease of any
PEG studios or facilities shall not be considered as cash or in-kind contributions for the support
of PEG.
2. Grantee will pay an additional grant to Grantor during years 10 to 15 of
this Agreement in the amount of $0.25 (as adjusted by the increase in the applicable Consumer
Price Index for Mendocino County from the Effective Date of this Agreement) per subscriber per
month for every subscriber of record in the entire Mendocino County service area (including the
incorporated cities) that exceed the number of subscribers existing on the January 1, 2005
(12,638 subscribers countywide, number includes equivalent basic units), prorated on a per
subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and
Willits. Payments of these additional grants will occur quarterly consistent with the scheduling
of franchise fee payments.
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II. PROGRAMMING OPERATIONS FUNDRAISING BILL STUFFERS.
A. Upon Grantor's request, Grantee will insert once a year at a mutually agreed upon
time a bill insert consisting of a pledge card that seeks pledges of money in support of PEG
programming. The pledge form shall be approved by Grantor and shall direct that the form be
returned to Grantor or the PEG organization designated by Grantor. The pledge form must allow
subscribers to designate a method of donation such as by check, automatic bank charges, debit
card or credit card. All costs related to printing and mailing of the bill insert to the subscriber
will be borne by Grantee. In addition, Grantee will run spot ads promoting this PEG fundraising
effort on all the cable channels it normally runs local advertisements at the time the pledge cards
are sent to subscribers. Said spot ads will run at least 14 consecutive days coinciding with the
mailing, with no less than 500, 30 second spots, run hourly between the hours of 6am and l Opm.
Grantor will produce and provide the copy of the spot ad, but all other costs of airing these ads
shall be borne by Grantee. The spot ad should indicate that it is a public service announcement
from Adelphia.
In addition, Grantee will run 100 spot ads each month on all the cable channels it
normally runs local advertisements. These spot ads will be to promote public awareness of PEG
programming and services. Said monthly spot ads will run hourly and be spaced evenly between
the hours of 6am and l Opm. Grantor will produce and provide the copy of the spot ad, but all
other costs of airing these ads shall be borne by Grantee. The spot ad should indicate that it is a
public service announcement from Adelphia.
III. OPTIONAL ANNUAL PEG OPERATIONS PAYMENT.
A. Upon the written request of Grantor, Grantee will allocate a sum of money designated
by Grantor to be paid annually (but not to exceed the 5% franchise fee) for the operation of the PEG
channels. Such amount shall be paid at the time the franchise fees are paid by Grantee for the first
quarter of each year of the Franchise Term. Grantor agrees that Grantee may deduct this payment
from the franchise fees due.
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EXHIBIT F
GRANTOR'S UNDERGROUND CONSTRUCTION REQUIREMENTS
I. INSTALLATIONS IN PARKWAYS.
A. All conduit installations in parkways must have a minimum cover of eighteen (18)
inches below the finish grade.
B. All existing improvements in parkways, including landscaping and sprinklers,
must be protected from damage, or, if damaged, restored to pre -construction conditions. All
repairs and replacements must be made in-kind.
C. All service boxes and vaults must be set to finish grade on six (6) inches of one -
inch crushed rock.
D. No access to new service boxes or vaults may be located within the sidewalk,
wheelchair ramps, or drive apron areas unless authorized by the City Engineer.
II. INSTALLATIONS IN ROADWAYS
A. Conduit may be installed at locations shown on plans submitted by Grantee after
approval by the City Engineer. If a location is available, the preferred alignment is two feet from
the outer edge of an existing gutter. Where it cannot be located on the preferred alignment, the
location must be approved by the City Engineer. Removal and replacement of all damaged
pavement between the trench and the edge of existing roadway pavement is required on all
streets. The edge of the trench must be a minimum of one foot from the edge of the gutter.
Exceptions to this requirement must be approved by the City Engineer.
B. Concrete pavement serving as bus pads, spandrels, cross gutters, or local
depressions may not be cut. At these locations, the conduit must be bored or jacked.
C. It is mandatory to maintain a straight alignment. Routing of conduit at bus pads,
and any other protrusions beyond the gutter edge, must be approved by the City Engineer. Some
installations may require locations in the parkway. Locations directly above or in conflict with
existing utilities are not permitted, unless approved by an agreement with the affected utility.
D. Open -cut transverse trenches are not allowed within streets, except at
intersections, unless otherwise provided. To serve customers on the other side of a street, a
parallel line on the opposite side of the street must be installed. An alternative to this procedure
is mid -block crossings installed by jacking or boring conduit under the street. If the conduit is to
be jacked under the street, Grantee must abide by the following guidelines unless otherwise
directed by the City Engineer:
1. Crossings must be at least 150 feet apart.
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2. Jacking pits must be in the parkway adjacent to the main cable trench.
3. Written approval must be obtained from the City prior to any jacking or
boring operations.
E. Conduit must be installed at a consistent depth throughout a block with a
minimum cover (below the established edge of the gutter) of thirty (30) inches in all streets and
alleys.
III. ABOVE -GROUND SERVICE BOXES OR VAULTS.
A. Above -ground service boxes or vaults are not permitted in the public rights-of-
way without prior consideration of the need, which consideration will include industry technical
standards, the safety and aesthetics of the placement, and the cost of below -ground alternatives.
Grantee will flush mount all facilities where current technology enables Grantee to do so. When
it is not possible to underground a facility entirely, Grantee will evaluate options for placing as
much of the facility below ground as possible.
B. Above -ground service boxes or vaults may not be installed without the prior
approval of the appropriate City department, which approval shall not be unreasonably withheld.
If existing landscaping and irrigation are disturbed during the construction process, landscaping
and irrigation requirements may be imposed by the appropriate City department. Grantee will
coordinate the siting and choice of pedestal materials with the appropriate City department(s) and
with residents adjacent to proposed above -ground service boxes and other facilities.
C. Above -ground facilities shall be constructed so as to connect and lock to some
form of concrete footing, except if the above -ground facility is manufactured pre -formed vault
that does not require a concrete footing.
D. Grantee will minimize the negative impacts of above -ground facilities on
aesthetics, public convenience, and public safety to the extent reasonably feasible, through such
means as creative siting and landscaping, placement of facilities on private property, and partial
undergrounding.
E. Above -ground service boxes or vaults must be properly maintained for safety,
public convenience, and aesthetic reasons in accordance with the following procedures:
1. Safety repairs, including graffiti removal, must be completed within
24 hours after discovery of the need for such repairs by the Grantee's personnel or notification
from the City Engineer or other designated representative of the Grantor.
2. Grantee must provide routine maintenance (e.g., painting, leveling, service
box replacement, fastening to base) within ten (10) working days after the discovery of the need
for such maintenance by Grantee's personnel or notification from a resident, the City Engineer,
or other designated representative of the Grantor.
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3. Grantee must replace above -ground service boxes or vaults if routine or
emergency maintenance is not sufficient to return the facility to a safe and aesthetically
acceptable condition as determined by the City Engineer.
4. Grantee must patrol all areas of the designated service area having above-
ground service boxes or vaults on a regular basis, at intervals not in excess of three months, to
inspect for damage and to determine the need for any required maintenance.
F. Based on advances in technology related to pedestal housings, Grantor and
Grantee will meet periodically to discuss potential locations where above -ground service boxes
or vaults can be eliminated, or converted to flush -mounted enclosures, without compromising the
technical operation, reliability, and economic viability of the Cable System. Grantee will place
existing or proposed above -ground facilities below ground, as may be required of all other
similarly -situated occupants of the Grantor's rights-of-way.
IV. PERMITS
A. All work within the public rights-of-way must be conducted under a permit from
the Public Works Department. Grantee must comply with all City excavation policies and
procedures.
B. An excavation permit must be obtained for each increment of work, and
inspection must be requested at least twenty four (24) hours prior to any excavation. All
inspection costs will be charged directly to the Grantee. Grantor will include all inspection costs
with permit fees charged to Grantee. Note: Agencies should check how this conforms to current
practices.
C. Detailed plans for all work must be submitted to and approved by the appropriate
City department prior to issuance of any permits. Complete detailed plans shall clearly indicate
the horizontal alignment of the facilities. Plans must clearly show streets, property lines, curbs,
centerlines, and existing utilities.
D. Above -ground power pedestals must be clearly delineated on the plans at the time
they are submitted for review. Review and permitting for power pedestals will be conducted by
the appropriate City department. All power pedestals and related connections must comply with
the City of Ukiah Municipal Code and all other applicable laws and regulations.
V. PRE -CONSTRUCTION
A. A pre -j ob meeting must be scheduled prior to start of work at each permitted
location as determined by the City Inspector. Representatives of the Grantee, including its
contractors, and of the appropriate City department, must be included in these pre job meetings.
Grantee must call for inspection at least twenty four (24) hours before starting any work
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B. Telephonic notices must be provided to the Underground Service Alert (USA) at
least two (2) working days prior to starting work on any permitted project. Grantee must have an
approved permit from the appropriate City department before contacting USA.
C. All utility services must be marked prior to excavation using chalk -based paint
["AERVOE" brand available from Surveyor's Services at (714) 546-0606)] with a visibility life
not to exceed three (3) weeks.
D. Affected residents must be notified by the Grantee in writing not less than ninety
six (96) hours prior to excavation on their streets. This written notification must be approved in
advance by the City Inspector. This paragraph does not apply in the case of emergencies.
VI. CONSTRUCTION
A. Compliance is required at all times with all provisions of the latest edition of the
Work Area Traffic Control Handbook (WATCH), all applicable portions of the City of Ukiah
Municipal Code, and the latest edition of the "Standard Specification for Public Works
Construction - Green Book," including any supplements.
B. Unless otherwise approved in advance by the City Engineer, no excavations may
be made by Grantee anywhere in the City between November 15 and January 3 of each year
within public rights-of-way.
C. Open -trench protection, and noise and dust curtailment methods, acceptable to the
City Inspector, must be provided.
D. Pavement cuts and restoration must conform to City of Ukiah Standard for asphalt
and concrete pavement restoration.
E. All trenching activity that is commenced each day in the street must be backfilled
to a depth specified by the City Inspector at the end of the day; final resurfacing must -be
completed within five (5) working days on all streets and alleys. Final roadway clean-up must be
completed within five (5) days following resurfacing. Final clean-up of vault installations and
other work behind the curb must be completed within ten (10) days following roadway
resurfacing.
F. Grantee, or its contractor, must designate a project superintendent to handle field
operations.
G. If utility services must be exposed, the trench must be hand -excavated to the
service line after saw -cutting pavement, or, in the alternative, a vacuum truck may be used
subject to approval by the appropriate authorizing department.
H. Residents must be notified immediately of any damage affecting their property,
and repairs must be promptly made.
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VII. MISCELLANEOUS
A. Where field conditions are such that these Underground Construction
Requirements are conflicting or apparently prevent progress, all work will cease until modified
specifications are approved in writing by the City Engineer.
B. Grantee will participate in all meetings convened by Grantor for the purpose of
identifying, scheduling, and coordinating excavation work in the public rights-of-way, provided
said public rights of way are located in Grantee's existing or proposed service area.
C. The security deposit referenced in Subsection 2.5(a) of the Agreement will be
available during the entire period of construction to secure Grantee's obligation to correct any
defective work in the public rights-of-way that is discovered.
D. If there is any conflict or inconsistency between the provisions of this Exhibit F
and the provisions of the Agreement to which this Exhibit F is attached, then the provisions of
this Exhibit F will have precedence and will control.
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