HomeMy WebLinkAboutORD 3744.OINANCE NO. 3744 • ORIGINAL
ORDINANCE OF THE COUNCIL OF THE ClTY OF PALO ALTO
·APPROVING AND AUTHORIZING THE AWARD OF A FRANCHISE
TO CENTURY FEDERAL, INC., PURSUANT TO AN ORDER OF
THE UNITED STATES DISTRICT COURT, NORTHERN OISTHICT
OF CALIFORNIA
WHEREAS, the City of Palo Alto is a party defendant in a
lawsuit entitled Centur Federal, Inc., v. C1t of Palo Alto,
al., now pending in the Un1ted States Federal 01str1ct Court
the Northern District of California; and
et
or
WHEREAS, the City is required by an order of said court to
introduce and adopt an ordinance g~anting a cable television
franchise to Century Federal, Inc.,
NOW, THEREFORE, the Council of the City of Palo Alto does
hereby ORDAIN AS follows:
SECTION 1 --DEFINED TERMS
Unless the context clearly indicates that a different meaning
is intended:
1.1 ~Access Channel" means a Channel on the Subscriber
System which the company shall make available to the Community
Access Organization, without charge or for a nominal charge, as
provided in this Agreement.
1.2 "Affiliated Person" means each Person who falls into
one or more of the following Cc;ltegories: (i) each person having,
directly or indirectly, Control or a Controlling Interest in the
Company; (ii) each person in which the C011pany has~ directly or
indirettly, Control o~ a Controlling interest~ (iii) each officer,
director, general partner, joint venturer or joint venture
partner, of the Company: and (iv) each Person, directly o~
indirectly, c'ont~olling, controlled by, or otherwise related to
the Company by common ownership, cosaon aanageaent, or ca..on
Control: providecj that, •Affiliated Person" ~ha.ll .i.n no event aean
the City, the Joint Powers, the CoiUlunity Ac.c~ss Otganization~ any
educational institutipn acting in its capacity as such~ for
public, educational, or charitable purposes, or any creditor of
the Company solely by virtue of its status as a creditor and which
is not otherwise an Affiliated Person by reason of owrlir.g a
Control! ing interest in, being owned by,. or bein9 under COIIRlCHl
ownership, common management, or common Control with, the
Company. ·
1.3 "Ordinance" means this Ordinance, together with the
Appendices attached hereto.
1.4 "Audio Channelw means a band of frequencies on the
System which is capable of cat'rying one FM audio Signal.
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1. 5 "Basic Service" means any Service for other than an
Enhanced S~rvice which includes the retransmission of local
television broadcast signals and which is distributed over the
Subscriber System.
1.6 "Broadband Commurdcations Facility• means a cable
system, any facility dperating by means of coaxial cable, optical
fiber, br ~~her transmission lines or forms of transmission, and
associated equipment and devices located above, below, on, in, or
along the Streets, the primary function of which is to receive
through any means, including, without limitation, coaxial cable,
optical fiber, antenna, or satellite or micro~ave transmission 1
and to distribute to subscribers or other Persons the Signals of
one or more broadcast television or radio stations or of other
sources of video, audio, voice~ or. data Signals. Said facilit)'
may also be one which, subject to all applicable laws, distributes
to, from, or among subsc~ibers or other Persons such other video,
audio, voice, or data Signals as may originate within the Service
Area or elsewhere.
1.7 "Cable Act" means the Cable Communic~tions Policy Act of
1984, 0 ub. L. No. 98-549, 98 Stat. 2779.
1.8 "Channel" means a band of frequencies in the
electromagnetic spectrum, or any other means of transmission
(including, without limitation, optical fibers or any oth~r means
now available or that may become available), which is capable of
carrying a video Signal, an audio Signal, a voice Signal, or a
data Signal, provided that the spectrum capacity of each such
Channel and the technical specifications of each such Signal shall
be as defLned in Appendix A io this Ordinance.
1.9 "Channel Number" means the position on a television
receiver, converter, or other device which i9 selected to receive
a specific Channel or Service.
1. 10 "City" :neans the City of Palo Alto, ca 1 i fornia or, as
appropriate in the case of specific pr6visions of this Ordinance,
any board, bureau, authority, agency, com•ission, dearpt•ent of,
or any other entity of or acting on behalf of, the City of Palo
Alto, or any officer, official, employee, or agent thereof, its or
his or her designee, or any successor thereto.
1.11 "City Attorney" mea~s the City Attorney of the City Qf
Palo Alto, his dr her designee, or any successor thereto.
1.12 "City Auditor• means the Auditor of the City of Palo
Alto, his or her designee, or any successor thereto.
1.13 "City Clerk" means the City Clerk of the City of Palo
Alto, his or her desigtee, or any successor thereto.
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Ll4 "City Council" means the City Council of the city of
Palo Alto, California, its designee, or any successor thereto.
1.15 "City Manager• means the City Manager of the City of
Palo Alto, ··lis or her designee, or any successor thereto.
1.16 "Community Access •.)rganization" or "CAO" means the
non-profit entity to be established pursuant to the Joint Powers
Agreement and operated as provided in Appendix E to this
Ordinance.
1~17 "Company" means Century Federal, Inc., hereinafte~
"Century", or any lawful successor, transferee, or assignee of
Century ..
1.18 "Company Channel" means a Channel on which the Company
determines the specific Services to be distributed. ACompany
Channel" shall not include any Leased Channel, Access Ch~nnel,
Government Channel, or other Channel which is otherwise required
for use by federal law or regulation.
1.19 "Control" or "Controlling Interest" means actual
working control in whatever manner exercised. A rebuttable
presumption of the existence of control or of a controlling
interest shall arise from the beneficial ownership, directly or
indirectly, by any Person or group of Persons acting in concert of
ten percent (10%) or more of any Person {which Person or Group of
Persons is hereinafter referred to as wcontrolling Person•).
"Control" pr HCcntrolling Interest~ as used herein may be held
simultaneously by more than one (1) Person or group of Persons.
1. 20 • Data Channel• means, with respect to each data Service
distributed over the System, the amount of frequency bandwith
created by assigning selective data interface adapters oc other
devices to the cable{s) in order to provide said Service.
1.21 "Director of Finance" means the Director of Finance of
the City of Palo Alto, his or her designee, or any successor
thereto.
1. 22 • Enhanced Service" means a':y service or package of
Services distributed over the Subscriber System for which there is
a per Channel, per unit 1 or tJer package charge and each
Interactive Service.
1.23 "FCC" means the Federal Communications Commission, its
designe~, or any successor thereto.
1.24 nGovernment Channel" means a Channel on the Sut~criber
System which the Company shall make available to the city, without
charge, as provided in this Ordinance.
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1.25 "Gross Revenue• means all revenue, as determined in
accordance with generall~ accepted accounting principles, which is
actually received directlyor indirectly, by the Company and by
each Affiliated Person from or in connection with the distribution
of any service over the System or the provision of any Service
Related Activity in connection with the system. Gross Revenue
shall also include the gross revenue of any other Person which is
actually received directly or indirectly from or in connection
with the dist.r.:-ibution of any Service over the System or the
provision of any Service R~lated Activity to the extent that said
revenue is actLlally recei ~,. ,· l, through any means which is intended
to have the effect of avoid~ng the payment of compensation that
would otherwise be paid to the City for the franchise granted
herein as reasonably determined by the City Auditor. Gross
Revenue shall also include installation charges whether or not
attributable to the cost of equipment, excluding refundable
converter deposits, which bear interest. Gross Revenue, for
purposes of Section 10.1 and Section 10.1.5 hereof, shall not
include: (i) the revenue of any Person, including without
limitation a supplier of p~ogramming to the Company, to the extent
that said revenue is also included in Gross Revenue of the
Company; (ii) the revenue of the Company or any other Person
which is actually received directly from the sale of any
merchandise or services (other than the Services) through any
Service distributed over the System; (iii) taxes imposed by law on
Subscribers which the Company is obligated to collect and pay in
full to the applicable taxing authorities, including, without
limitation, sales taxes and use taxes; (iv) subject to Section
10.1 .05 hereof, amounts .collected by the Company from Subscribers
on behalf of Leased or Access Channel programmers, other than
Affiliated Persons, to the extent that said amounts are passed on
by the Company to said programmers; (v) the revenue of any
Affili~ted Person which represents 'standard and reasonable amounts
paid by the Company to said Affiliated Person for ordinary and
necessary business. expenses of the Company, including, without
limitation, professional ,service fees and insuranc~ premiums; (vi)
any investment income ear: ned by the Company; ( v 1 i j that prot ion of
the fee paid by the Company to an Affiliated Person ~hich exceeds
the revenue of the Company from said Servicei (viii) refunds or
credits given to Subscribers, except for refunds or cr~dits due to
interruptions in Service or as otherwise required by this
Ordinance, {ix) bad debts attributable to S~bscribers which are
deducted from Company income in accordance with generally accepted
accounting principles; (x) the value of barter transactions which
in the aggr·egate in al'~J twelve ( 12) month period are de minimis in
relation to the Gross Revenue for such period1 or (xi) all
revenues derived from subscribers located outside the Service
Area ..
1.26 ~Institutional ~able• means the cable(a) or bandwidth
on a cable provided pursuant to Section 4.5 hereof and Appendix F
to this O:dinance, a·portion of which the Company shall make
• available, without charge, to the City and to other governmental
and educational institutions~
1.27 "Interactive Service" means any Service which involves
the transmission of Signals to and from any Subscriber or other
Person on the System.
1.aa "Join; Operating Agree~ent• means the Joint Powers
Operating Agreement to be entered into by the Joint Powers, which
governs the relationship between the City and the-Joint Powers
with respect to the City's administration, oversight, and
regulation of the franchise granted to the Company pursuant to
this Ordinance.
1.29 "Joint Powers" rne~ns the local governments which are
parties to the Joint Powers Agreement and which will be partties
to the Joint Operating Agreement, i.e., the City, The Town of
Atherton, the City of East Palo Alto, the City of Menlo Park, the
County of San Mateo, and the County of Santa Clara. "Joint
Powers" may also refer to any one of the foregoing local
governments, as the context may require.
1 .30 "Joint Powers Agreement" means the Joi.nt Exercise of
Powers Agreement dated July 26, 1983, by and between the Joint
Powers, pursuant to which the City is authorized to: {i)
administer a franchising process leading to the award of one or
more cable television franchises to private companies to serve all
of the residents~ ~usinesses, and institutions located within the
Service Area; and (ii) oversee and regulate the franchise(s)
awarded.
1.31 "Leased Channel" means a Channel on the Subscriber
System to or on whjch the Company shall, pursuant to Section 3.7
of this Ordinance, provide open, widespread, and equal access to
all Persons unaffiliated with the Company within the meaning of
the Cable Act, including Persons who desire to use said Channel
for commercial'pUrposes, in a manner which enables and encourages
competiti:on·in the delivery of services, as provided in this
Ordinance •
. 1.32 "May• is permissive.
1.33 •Mayor" means the Mayor of the city, his or her
designee, or any successor to the present Mayor.
1.34 "Person" shall mean any individ~al, or any association,
firm, partnership, joint venture, corporation, or other legally
recognized entity, whether for-profit or not-for-profit, but shall
not mean the Joint Powers.
1.35 •Residential Dwelling Unit" shall mean a home, mobile
home, condominium, apartment~ co-operative unit, and any other
individual dwelling unit lawfully occupied for residential
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purposes or as defined in title lR of the Palo Alto Municipal Code
or a municipal or county code of the jurisdiction in which such
dwelling unit is located.
lo36 "Residential Subscriber" means a Subscriber who law
fully receives any Service on the Subscriber System in a Residen
tial Dwelling Unit which is located ~ithin the_Service Area:
except to the extent that said Services are used by 'said Subscri
ber in connec~ion with a trade, business, or prof~ssion.
1.37 "School~ means any institution of the Palo Alto Unified
School District, any duly accredited non-public school, any duly
accredited day care center, any duly accredited college or univer
sity, and any other public or non-public duly accredited educa
tional facility or institution located in the Service Area so
designated '-.y the City Manager.
1.38 "Service" means any Basic Service, any Enhanced Ser
vice, or any other service, whether or not originated by the
Company, which is offered to any Subscriber in conjunction with,
or which is distributed over, the System.
1.39 "Service Area" means the area, as set forth in the map
at Exhibit 1 to this Ordinance, the original of which is on file
with the City and is incorporated herein by this reference, com
prised of the Town of Atherton, the City of East Palo Alto, the
City of Menlo Park, The City of Palo Alto, various unincorporated
areas of the county of San Mateo, and unincorporated areas of the
County of Santa Clara comprising Stanford university. The service
Area may be extended from time to time by the Joint Powers to
include ~reas within the spheres of influence of the Joint Powers
as shown on the map attached as Exhibit 1 to this Ordinance, which
spheres of influence are annexed by the Joint Powers on terms con
sistent with Exhibit 1 to this Ordinance.
1.40 "Service Related Activity" means any activity or func
tion associ~ted with the production or distribution of any Service
over the System, including, without limitation, use of studio or
other facilities or equipment, billing, audience promotion, or
installation or lease of equipment.
1.41 "Shall" and "Will" are mandatory, not merely direc
tive.
1.42 "Signal" means any transmission of radio frequency
energy or of optical information.
1.43 "S·tate" means the State of C~lifornia, or any
department, agency, official, or employee thereof.
1.44 "State-of-the-Art" means that level of technical
performance or capacity, service, plant or other equipment,
production or other facilities, or construction techniques which
has been developed and demonstrated to be workable and
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term of this franchise~
1.45 •street(s)" means the surface of, as well as the sp~ces
above and below, any and all streets, avenues, highways,
boulevards, concourses, driveways, bridges, tunnels, parks,
parkways, waterways, and public giounds or waters within the
Service Area, including any easemants owned by the Joint Powers in
any of the above areas or on the surface of, including the spaces
above and below, any other public or private area within the
Service Area.
1.46 •subscriber" means any Person lawfully receiving any
Service.
1 .47 "Subscriber System" means that portion of the System
whose primary purpose is to provide video programming Se~vices to
Residential Subscribers.
1.48 "System" means the Broadband Communications Facility
which is to be constructedt operated, and maintained by the
Company pursuant to this Agreement, including, without limitation,
all rights thereto, and all real and all tangible and intangible
personal property comprising said Facility.
1.49 "Video Channel" means a Channel on the System which is
capable of carrying one (1} video Signal.
1.50 flVoice Channel" means a band of frequencies which is
capable of carrying one or more voice Signals.
SECTION 2 GRANT OF AUTHORITY
2. 1 A (Added) Except as modified by Order of any feder~l
court having jurisdiction, or any amendment hereof by the Council,
this Ordinance shall be deeroed to have originated as a result of
the franchising proceB$'and R~quest for Proposals issued by City
for the construction and operation of a Broadband Communications
Facility and Cable System within the jurisdiction of the City of
Palo Alto and to the extent authorized by the Joint Powers
Agreement, the Service Area.
2.1 As of the effective date of t.his Ordinance,
. (i) there is in effect the Joint Powers
Agreement, pursuant to which the City is authorized to administer
a franchising process for the Service Araa and to administer and
oversee the franchise(s} awarded for the Service Area, and (ii)
the Joint Powers intend to enter into a Joint Operating Agreement,
which will govern the relationship between the Joint Powers and
the City with respect to the City's administration, oversight, and
regulation of the franchise granted to the Company pursuant to
this Ordinance. All references in this Ordinance to the City, the
City Council, the City Manager, the City Attorney, and the City
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Auditor a.re intended to mean the City, the City Council, the City
Manager, the City Attorney and the city Auditor acting on behalf
of the Joint Powers, pursuant to the Joint Powers Agreement and
the joint Operating Agreement.. In addition, the City and the
Co•pany acknowledge and agree that, as the Joint Operating Agree
•ent will provide: (i) the City, in certain circumstan~es, may
delegate to, or exercise jointly with, one or more of the Joint,
Powers, the authority of the City under this Ordinance: (ii) the
City may permit one or more of the Joint Powers to exercise,
either alone or jointly with the City, the rights of the City un
der this A9reement; and (iii) the protections afforded by the City
in this Agreement shall include protection of the Joint Powers to
the same extent as the City,
2.2 This Ordinance shall take effect on the thirty-first ddy
after its adoption, and shall be deemed to have granted a fran
chise to Century on that date suject to Century's acceptance
thereof and performance thereaftec.
2.3 (THERE IS NO SECTION WITH THIS NUMBER.)
2.4 Commencement~ Term, and
Renewal of Franchise
2.4.01 To the fullest extent permitted under the Joint
Powers Agreement, the City hereby grants the Company a nonexclu
sive franchise for the occupation and use of the Streets within
the Service Area for the construction, operation, maintenance,
repair, and removal of the System in accordance with the pro
visions of this Ordinance. No privilege or power of eminent
doaa in is bestowed on the Company by this grant of ·authority.
This Ordinance may be amended from time to time as may be per
•itted by law: the franchise granted hereby shall be deemed
amended accordingly.
2.4.02 The franchise shall remain in effect for a term
of fifteen ( 15) years, unless sooner revoked, which period !,of time
is herein referred to as •the initial term of the ftanchise." The
franchise shall be revoked .automatically upon any repeal of this
Ordinance by the City, or upon a determination in the lawsuit .
entitled Century Federal, Inc. v. Citf of Palo Alto, et al., that
the CoA1pany 1s c1vil rights were not v1olated by the city or the
Joint Powers in its Franchising process under the Joint Powers
Agree11ent.
2.4.03 Subject to Section lSc hereof and Section 626 of
the Cable Act, the C:i~y reserves the right to grant or refuse to
gcant any renewal of ~he franchise following the initial term of
the ft'anchise and to condition any such renewal upon the Company's
ag~ae•ent to comply fully with this Ordinance and all amendments
or other 110difications hereto, Nothing in this Ordinance shall be
construed'as creating or recognizing any presumption in favor of a
renewa 1 of this franchise ..
2.4.04 In the event that: (i) pursuant to Section 19
hereof and Section 6~6 of the· cable .a.ct, the City does not grant a
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renewal of the franchise at the expiration of the initial term of
the franchise at the expiration of the initial term of the
franchise, or (ii) this Ordinance is terminated prior to the
e~pi~ation of the initial term of the franchise, thereby revoking
the franchise, then the term of the franchise shall expire, all
rigt-~ts of the Co•pany in the franchise shall cease, and the rights
of the City and the Company to the System, or any part thereof,
shall be deterMined as provided in Section 17.5 hereof.
2.5 Conditions and Limitations
on Franchise
2.5.01 Nothing in this Ordinance shall affect the right
of the City to g~ant to any Person a franchise, consent, or other
right to occupy and use the Streets, or any part thereof, for the
construction, operation, or maintenance of all or any part of a
Broadband Communications Facility within the Service Area.
2.5~02 In the event the City grants to any other person
a franchise, consent, or other right to occupy or use the Streets,
or any part thereof, for the construction, operation, o~
maintenance of all or any part of a Broadband Communications
Facility within the Service Area, the City shall, at the Company•s
'o~~ritten request, make a good faith effort to insert t.he following
language into any such franchise, consent, or other document
creating such right to occupy and use the Streets or any part
thereof:
!Grantee) agrees that it shall not move,
daaage, penetrate, replace, or il~terrupt any·
portion of the Broadband Communicativ~~
Fac i 1 i ty owned by [the Company] without the
prior written consent of [the Company].
[Grantee] shall indemnify {the Company]
against any damages or expenses incurred by
(the COmpany} as a result of any such
re~val, da•age, penetration, replacement,
or interruption of the services of [the
Coapany] caused by [Gran t~e 1.
2.5.03 Nothing in this Ordinance shall abrogate the
right of the City to perform any public work or public improvement
of any description, including, without limitation, all work
authorized by applicable law. In the event that the System
interferes vith the construction, operation, maintenance, or
repair of any such public work or public improvement, the Company,
after reasonable notice from tr.e City, shall, at its own cost and
expense, proaptly protect, alter, or relocate the System, or any
part thereof, as directed by the City~ In the event th~t the
Co11pany refuses or neglects to· so protect, &1 ter, or relocate all
or part of the System, the City shall have the right in connection
with the perforaance of such public work or public improvement to
break through, re111ove, alter, or relocate all or any part of the
Syste• without any liability to the Company except for the City's
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willful eisconduct and the Co1.1pany shall pro~aptly pay to the City
the costs incurred by such breaking throughi removal, alteration,
or relocation.
2. 5 .. 04 Nothing in this O!t'dinance shall be constn1ed as
a waiver of any code or ordinance of the City or the Joint Powers
or of the City's eight to require the Coa.pany or any Person
utilizing th9 Systee to secure all appropriate permits or
authorizations for such use. The City shall use reasonable
efforts to expedite the Company's application for all permits or
authorizations necessary to install, operate, maintain, and repair
the Syste~r~ and shall coopecate with the Company in causing the
Joint Powers to use reasonable efforts to expedite the Company's
application for said per~its or authorizations.
2.5.05 Nothing in this Ordinance shall be construed as
a ~aiver or release of the rights of the City or the Joint Powers
in and to the Streets.. In the event that all or any part of any
Street within the Service Area is vacated, eliminated,
discontinued, or closed, all rights and privileges granted
pursuant to this Ordinance with respect to said Street, or any
part thereof so vacated, eliminated, discontinued, or closed,
shall cease upon the date of the adoption of the plat vacating,
eliminating, discontinuing, or closing said Street 1 provided that,
the rights and privileges granted hereunder shall not
automatically cease if such rights and privileges do not interfere
ilfith the purpose of such vacation, elimination, discontinuance, or
closing of such Street.
2.5.06 The Co•pany shall comply with: (i) all
applicable laws and all require.ents of the State, the ~CC, and
any other feaeral or State agency or authority of competent
jurisdiction, and (ii) all local laws, rules, regulations, and all
orders o~ other directives of the City issued pursuant to this
Ordinance.
2.5.07 The Co•pany shall: {i) co•ply with all
pro? is ions hereof and all aRtandaents and other modi fica.tions to
this Ordi.nance.
2 .. 5 .. 08 ('mERE IS NO SECTION WITH THIS NUMBER.)
2. 5.·09 ( Add~d) With respect to any other franchise now
or hereafter granted by City or any utility now or hereafter
operating, the Co•pany will cooperate and coordinate with any and
all other franchisees or utilities in installing, operating a:nd
uintaining its Syste• in such ..anner as to not unreasonably ·
interfel'e with or da•age other systelf!s or unreasonably burden or.
disrupt the public rights of w$y.. The Co~apany shall bear a pro
rata share (based on the nuaber of franchises or utilities·
affected) of the cost of a •ediator or arbitrato~ approved by'the
City to resolve construction or.coorcdination disputes, which
mediator or arbitrator will be retained in the discretion of
City, whenever City cietermines that such dispute would otherwise
cause delay to installation 6rconstruction of the System or
additional burdens or disruptions to the public or public rights
of way. -·
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• • SECTION 3 --SERVICE OBLIGATIONS
3.1 To the .uxi11ua extent per•itted by federal statute or
regulation, the Co111pany shall c:onstru~t, operate •. and maintain the
Systea as a State-of-the-Art Broadband ComMunications Facility
offering the full ra~ge of Services, facilities, and equip•ent
that can be aade available through such a Faqility, as provided in ·
Appendix A, to this Ordinance, or-Fcc· Report and Order Docket
85-39, whichever is .;~llow~d by the cable Act.
3 .. 2 Throughout the ter• of this franchis~ 1 the Company shall
proaptly furnish, .aintain, and, e3tcept as pr,.,vided in the second
sentence of Section 9.2.04 hereof, continue to offer all Services
distributed over the System to any Person lawfully occupying a
Residential Dwelling Unit and, subject to the provisions of
Appendix B to this O~dinance, any other Person within the Service
Area, upon request and payment of all applicable charges, as set
fot"th in disclosures . ., f charges l'l'kl.de to the City pursuant t.o this
Ordinance, provided that such request is not inconsistent with the
terms, conditions, and schedule foe construction, as provided in
this Ordinance, and provided further that the Company is able to
obtain access to each Person's premises in order to furnish,
maintain, and continue to offer Service to said Person. The
Company shall not abandon the Syste~, in whole or in a not
insubstantial part, without the prior written approval of the City
Council. The inability of the Co•pany to obtain or continue to
obtain access to any Residential Dwelling Unit located on a
premises which contains ~ore than four Res identia 1 Dwelling Units
upon terms and conditions reasonably acceptable to the Company and
subsequent f&ilu~e to provide or to continue to provide service to
such Residential Dwelling Unit shall not be deemed to be an
abandon•ent of the System.
3.3 The Co•pany shall offer to all Subscribers Services
within broad 'categories of video pr:ogram111ing services.
3.4 The Co•pany shall offer on the Subscriber: Syste• a full
range of Audio and othe( Sefvices.
3. 5 The Co•pany shall, either dir9ctly or through the lease
of Channels on the Sy:ste11, offer ~rvices within broa.d categories
of video progra••ing and other set'vices to ensure that the. mix,
quality, and level of Serv i.ces provided by the coapany or similar
franchisees in the Service Area shall be ma.intained throughout the
term of th~ franchise.
3.6 The Co11pany, itself or t~rough thi~d p.arties~ shall
offer on the Subscriber Syste•, the Institutional Cable, o~ bqth,
a full range of other services designed to satisfy· the needs, for
the services aade available through Broadband Communications
Facilities, of business and co.aercial entities in the Service
Area, and residents and non-profit entities in the Service Area
for specialized data Services, consistent with Sectibns 3.1 and
3.2 hereof. As provided in this Ordinance, said Services shall
include the capacity to provide one ... way, two-way, interactive, and
rnachine-to~uchine transfer of audio, vid~o, voice, and data
Signals both within the Syste• and to and from sources outside the
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system through the interconnection of the Syste~, consistent with
all applicable laws.
3.7 Leased services
3.7.01 The Subscribe~ System shall contain initially at
least eight (8) Leased Channels, including 4C(:ess to the upstrea•
capacity spec.ified in Appendix A to this Ordin.~nce, which nu.ber
has been <;lerived by applying the foraula contained in Section 612
of the Cable Act to the capacity of the syste•. The L~ased
Channels shall be distributed at Channel Nuebers to be selected by
the Company. If, during the initial term of the franchise, the
number of Leased Channels to be supplied by the Company pursuant
to Section 612 of the Cable Act incraases from the number of
Leased Channels specified in this Section 3.7.01, then the Company
shall comply with the requirements of said Section 612. If
Section 612 of the Cable Act is amended such th~t it ( i) ceases to
apply to the Company or the System, or (ii) permits the Company to
offer fewer Leased Channels than are currently required under
Section 612, then the Company shall not offer fe1,11er teased
Channels than the number contained in this Ordinance which is the
number of leased channels required to l~ supplied by the Company
pursuant to Section 612, without the prior agreement of the City.
3.7.02 Subject to Section 612 of the Cable Act and
other applicable law, the Leased Channels shall at all times be
available for programming and other Services by Persons other than
the Company and Affiliated Persons at negotiated terms and
conditions, in accordance with disclosures of rates n.:ade to the
City, the rules to be established pursuant to the plan required by
Section 3.7.04 hereof. Neither the Co•pany nor any Affiliated
Person shall distribute any Service ovet" any LeaS4ld Channels,
except as provided in Section 612(b)(4) of the cable Act.
3.7.03 At reasonable times du~ing which each Leased
Channel is being used, in. whole -or: in part, .fo~ the distribution
of any Service by the Co.apany of an Affiliated Person, the CO•pany
shall cause a notice to appear on said Channel advising all.
Persons that said Channel is available f'oc-lease and $pecifying
whom should be contacted in o~der to lease said Channel.
3. 7. 04 The Leased Chat ... tels shall be ad•inistered by the
Company in a manner which aakes possible co11peti tion in the
delivery of services and diversity of progra••ing and info,;taation.
sour~es. At such ti~te as the City reasonably deter•ines that
becaiJse. of a~ndments to the Cable Act the City shoulp take
additional responsibilities for: the ad•inistration of Leased
Channels,·· the City may t:'equire the Co•pany to develop a plan for
the administration of said Channels. Said plan shall:
{i) Be subsitted to the Ci.ty Manager within three
(3) months after it is. requested and shall take effect one (1)
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month thereafter unless the City Manager notifies the Co•pany, in
writing, that he does not ~easonably concur in said planJ
(ii) Be updated fro• ti•e. to tiiM as re.asonably
necessary, and no material JtOdific6tion thlfreto shall beco•e
effective if the City Manager notifies the Co•pany, in writing,
within one (1) month after receipt of said IIOdiflcation that he
does not approve said modification;
(iii) Describe the details for ensuring that the
Company will make available the Leased Channels to all Persons,
or, upon request of any Person, ti~e seg•en ts of ~:.·easonable
duration on the Leased Channels, on a first-comei first-secved
basis and on such other terms and conditions which shall not
di scr imina te between comparable uses ·'lnd :Jsers of the Leased
Channels, provided that the Company may negotiate or establish
different rates or terms for different types of uses o~ categories
of users t
{iv) Set forth the rules, in accordance with the
prov1s1ons of this Agreement, gov~rning the application for,
availability of, and use of Leased Channel time and Service
Related Activities by Leased Channel users: and
(v} Specify the agree•ent which the Co~pany shall
require each Leased Channel user to execute in order to provide
that Leased Channel users comply with the va~ious provisions of
this Agreement which govern the obligations of COmpany in
connection with the distribution of any Service over the Syste~,
including,· without limitation, the require•ents of Section 5 .. 1,
9.1, 9.2, 10.1.05, and 16 hereof.
3 .. 7.05 In the event that aendaents to Section 612 of
the cable ·Act or other provision of federal lav allow an increase
in Leased Channel capacity, and in order to ensure that,
throughout t.he term of this f·ranchise, there shall be a sufficient
number of Leased Channels to satisfy the de.and fo~ such Channels
by Persons other than the Company and Affiliated Persons, at any
time following the third (3rd1 year of the initial ter~ of this
franchise, upon a determination by the City Manager and the
Company that the existing Leased Channels are being substantially
utilized and that a substantial and de.anstrated need exists for
one (1) or more additional Leased Channel(s), then the Co•pany
shall 13upp~y up to two (2) additional Leased Channel(s} without
decreasing the number of Government or Access Channels, as · ·.·
prom_ptly as. possible·; but in no event later than six ( 6) 110nths
after said determination. If consistent with applicable law,
following the initial term of the fr:.anchise, the City Manager NY
request the Company to supply Leased Channels in addition to those
required by this Section 3.7 by requesting the Coapany to inc['ease
the number or capacity of Channels or cables on the Subscriber
System.
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-·3. 8 Competi ti~n
3.8.01 The Company shall not enter. into any ~gr:eeaent
or take any other action which: ( l) prohibits it fro• offering
competitive Services or (ii) may prohibit any other operator of a
Broadb~nd Communications Fac i.l ity fr~nchi.~ed by the City fro•
distributing any Service over such_other aroadbaod co .. unications
Facility. The exercise by the C'ompat')y of the rights granted in
this Agreement shall not consitute action by the COIIP<'O)'
prohibited by this Section 3.8.01.
:3.8.02 If, at any tim:~, a court of compete1t
jurisdiction determines that the dist~ibution of any Service by
the Company or any Affiliated Pe~son has tended to ccoate a
monopoly ot.· to restrain trade, lhen the City Council may issue a
directive to correct such conditions consistent ~ith the
determination of the court.
3.8~03 (THERE IS NO SECTION WITH THIS NUMBER.)
3.9 Continuin9 Obli2atioE
3.9.01 Throughout the term of this franchise, the
Company shall: ( i} maintain and upgrade the se.t'vices distributed
over the system and the technical performance qf the system so a:s
to keep pace with developments in the State-of-the-Art of
BC'oadband Communications Facility technolo9y, to the e>:tent the
Company and the City reasonably mutually determine that it is
economically viable and feasible to do so, and (ii) either oo its
own initiative or at the request of the City Manager, ~rticipate
in or undertake experiments, tests, and other activities to
enhance and advance the State.-of-the-Art of Broadband
Communications Facility technology, to ths-. extent the Coapany and
the City reasonably mutually deter!lline that it is eeono•ieally
viable and feasible to do so1 ::,nd provided that, such experi•ents,
tests, and other activities are technil.::ally' $oun(l and undertaken
in response to a mutually defined market de.and. The City Council
may, at any time, conduct a public hearing to determine whether
the Company ha.s complied fully with thi$, ~1 igation, and uy, as a
result of such hearing, take approptiate action to ~nsure
compliance with this obligation1 provided that, th~ Company· shall
be given reasonable written notice of non-co•pliance with this
obligation and'a reasonable period of ti•e within which to cure
such non-compliance. ·
3.9~0.~ (THERE IS NO SECTION WITH THIS NUMBER.)
3.10 Neither the City, the Co11•uni ty Access O"ganiza
tion, nor any other government-created entity shall engage in any
program censorship or other control of the content of the pro
gramming on the System,· except as otherwise required or peraitted
by law, provided that, (i) the City may exercise editorial control
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over programmin-g o-n the Government Channels, and ( ii) the
Community Accees Organization {the "CAo•) may exercise editorial
control oveL~ programming on those portions of Access Channel ti.ae
which may be programmed in whole or iri part by the CAO.
SECTION 4 PUBLIC SERVICES
4~1 The Company shall, as provided in this Section 4 and
Appendices E and F of this Ordinance, make available to the City,
a variety of facilities and equipment for the creation, develop
ment, and use of Government Channels, Access Channels, and the
Institutional cable. The requirements of this Subsection for
facilities and equipment may be satisfied by the Company's inde
pendently providing the facilities and equipment specified, or
doing so by ente~ing into a written agreement with one or more
other f~anchissees in the Service Area jointly to furnish a single
set of such facilities and equipment. Such agreement shall be
approved by the City in o~der to so satisfy the requirements on
this Subsection. All such Channels, facilities, and equipment
provided by the Company shall be held by tbe City for the benefit
of all subscribers to the System and the public, and, as may be
appropriate in some cases, the Company. Said Channels, services,
facilities, and equipment may be design~ted for specific initial
uses in this Ordinance; however, the City Council reserves the
right, subject to the p~ovisions of this Ordinance, to alter,
without prior consultation with the Company, any or all such
initial designations for non-profit access and institutional uses
consistent with this Ordinance and all applicable laws.
4.2 Government Channels
4.2.01 The Company shall initially supply to the City,
without charge, a minimum of: (i) two (2) activated Video
Channels on the Subscriber System which the City •ay elect to use,
iln whole or in part, for video, audio, or data Services, and (ii)
access to the upstream capacity specified in Appendi~ A to this
Ordinance. Said Channels shall be the Govern~tent Channels and
shall be used by the Joint Powers. All Governaent Channels
supplied porsuant to this Section 4 shall be distributed at
Chaimel Numbers to be fixed by the Company, in c-onsultation, vith
the City Manager. The City Manager may, at any time, direct that
any one ( 1) or more of the Govet:nment Channels be allocated to
Basic Services, ar,d, as appropriate in accordance with this
Section 4, Enhanced Services.
4 .• 2.02 The Government Channels may be used by the City
for any lawful, non-profit governmental purpose. The City and the
Company may jointly agr:ee on terms upon which a Government Channel
may be offered or used for Leased Access purposes in the event
either the City 6r the Company deems offering such Channel
capacity for such commercial purposes desirable.
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4~2.03 ~xcept as provided in Section 4.2.02 hereof, the
Company s!'lall not prohibit-or limit any Service or category of
Services distribut•d over the Government Channels, which is
consistei'lt with this Section 4 and the technical characteristics
of the ~ystem, as provided in Appendix A to this Ordinance. . .
4.2.04 Subject to the second sentence of this section
4.2.04, ~t ariy time followirtg Ehe fifth (5th) ye~r of the initial
term of .the franchiser upon a determination by the City Manager
and the Company that then existing Government Channels are being
substantially utilized and that a substantial and demonstrated
need exists for one (1) or more additional Government Channels,
then the Company shall supply such additional Government Channels,
without decreasing the number of Leased or Access Channels, as
promptly as possible, but in no event later than six (6) months
after said determination. During the initial term of the
fran~hise, the Company shall not be obligated to provide to the
CitJ a total of more than three (3) activated Video Channels as
GoYernment Channels, pro\rided that, in order to provide Channel
capacity for use by the City in addition to ~aid three (3) Video
Channels, the Company shall, upon request of the City Manager,
permit the City to lease from the Company, for noncommercial
purposes, any one (1) or more of the Lease Channels, or portion
thereof, at a rate not to exceed one-half (1/2) of the lowest then
prevailing commercial rate charged by the Company for any
comparable Lease Channel, or portion thereof, excluding charges
for experimental or start-up Services; as soon as said Leased
Channel(s), or portion(s) thereof, become(s) available.
4.2.05 (THERE IS NO SECTION WITH THIS NUMBER.)
4.2.06 In the event the City or the CAO desires that
Channel capacity, facilititas, .services, or equipment be. prov1ded
to commercial users (including municipal utilities) of the city or
the CAO, the Company shall be compensated for the value thereof at
rates to be agreed upon between the appi'opria te parties (the
Company and the City, or the Company and the CAO) in their sole
discretion. Such compensation l1iay take the form of a trade or
exchange of services as the parties may agree.
4.3 Access Channels
4. 3. 0.1 As part of the Basic Services on the Subscriber
System, the Company shall initially supply to the City·, without
charge: (i) ~ minimum of three (3) activated Video Ch•nn~ls,
which the City or the CAO may elect to use, in whole <•i ;,;,. part,
for video, audio, or data Services, and (ii) access to the
upstream capacity specified in Appendix A to this Ordinance. Said
Channels shall be the Access chantiels and shall be dedicated to
public, educational, and other institu~i9nal use. All Access
Channels supplied pursuant_to this Section 4.3 ~hall be
distributed at Channel Numbers to be selected by the Company.
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4. 3. 02 ·rt)e Access Channels shall -be placed unde_r, the
jurisdiction of the CAO, to be established pursuant to the Joint
Powers·Agreement and operated and designated. as provided in
Appendix E to, this Ordinance. .Said Access Channels shall be used
for pub~ic, educational, or charitable purposes, and fo~ any other
pucpose agreed to between the Company ~nd the CAO, including any
dther Service· for which a per-program or per·-Channel charge is
imposed by the CAO. ·
4.3.03 The Company agrees to supply and make available
to the CAO designated in writing by the City, which designation
may be changed from time to time, without charge or for a nominal
fee, either by itself or by ag~eement in writing with any other
franchisee of City, all of the equipment and facilities as
provided in Appendix E to this Ordinance. The Company shall
retain title to such equipment and facilities and shall have the
right to substitute equivalent facilities and equipment from time
to time, subject ot the CA0 1 s approval.
4.3.04 Rules and regulations shall be adopted by the
CAO, in consultation with the City, to govern the use of Access
Channel time, equipment, facilities, and other services to ensure
that said time, equipment, facilities, and other. servi,~es are
available ~.:m a fair, open, and nondiscriminatory basis. said
rules and regulations shall also provide for the CAO to receive,
pursuant to a pre-development agreement negotiated between the
Company and the CAO, an appropriate portion of the financial
benefits, if ·any, received by the Company or any Affiliated Person
in connection with the use in any other Broadband Communications
~acility of any access or local origination programming or
services developed by or on behalf of the .CAO or by the Company in
cooperation with the CAO, pursuant to s•id agreement, for use on
the System. The Company shall not prohibit or limit any service
or class of services distributed over the Access Channels to the
exten~ that said service or class of services is consistent with
the purposes set forth in Section 4.3.02 •
. 4.3.05 Rules and regulations shall al~o be adopted by
the CAO and the company jointly to govern the use of that.portion
of the Institutional Cable to be made available for educational
uses, as specified in Appendix F to this Ordinance. Said rules
shall ensure that the Institutional Cable is available to
educational instit~tions on a fair, open and nondiscriminatory
basis.
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4. 3. 06 Subject to the second sentence of this Section
4.3.06, at any time following the fifth (5~h) year of the initial
term of the franchise, upon a determination by· the City Manager
and the Company that then existing Access Channels are being
substantially utilized and that • substantial and demonstrated
need exists for Access Channels in ~ddition to the three (3)
Access Channels supplied pursuant to Section 4. 3. 01 hereof, thsn
the Company shall supply such addi tiona! Access Channels, without
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decreasing the number of Leased or Government Channels, as
promptly as possible, but in no event later than six (6) months
a.fter said determination. During the initial term of the
franchise, the Company shall not be obligated to provide a total
of more than five (5) activated Video Ch~nnels as Access
Channels.
4.4 Fallow Time on Government
and Access Channels -.;.;;.. __ _
If there is any ~1used time on any Government or Access
Channel and the Company or .1ny Affiliated Person desires t(.)
distribute any Service over said Channel(a) during said unused
time, then the Company or the Affiliated Person shall so notify in
writing the City Manager, in the case of any Government Channel,
or the CAO, in the case of any Access Channel~ Said notice shall
demonstrate that there then exists no demand by any other Person,
including the CAO in the case of an Access Channel or the Joint
Pow~rs in the use of a Government Channel, for the unused time.
The Company or. the Af f i 1 ia ted Person may commence the dis tri bu tion
of the Service over the Channel(s) at the end of the fifteenth
(15th) day following receipt of said notice by the City Manager or
the CA0 unless the City Manager or the C~O notifies the Company,
in writing, that ~e or it does not consent to the use of the
Government or Access Channel(s) by the Company or any Affiliated
Person which consent shall not be unreasonably withheld. The City
manager or the CAOf as applicable, shall specify in writing and in
reasonable detail his or its reasons for denying such use. In the
event that the City Manager or the CAO authorizes the Company or
any Affiliated Person to utilize any Government or Access .~
Channel(s), the Company or the Affiliated Person so authorized
shal.l promptly relinquish such use upon receipt of a request by
the Ci t,y Manager, in the case of any Government Channel, or the
CAO, in the case of any Access channel, but in any event such use
shall be relinquished not later than ninety {90) days after
receipt by the Company of such request. At all times during which
each.Government or Access Channel is not being used for the
distribution of any Service, and at reasonable times during which
ea~h Government·or Access Channel is being used for the
distribution of any Service by the Company or an Affiliated
Person, th~ C~mpany shall cause a notice, in the form to be
developed in consultation with the City Manger and the CAO, to
appear on the System, advising all Persons that said Channel is,
as applicable, a Government or Access Chc-nnel available for use in
accordarice with this Section 4.
4.5 i~stitutional Cable
4.5.01 As provided in Appendices A and F to this
Ordinance, the Company shall: ( i) construct, and thereafter
throughou~ the term of this Agreement, ~perate and maintain a
fully two-way cable that is midsplit or supersplit, and (ii) in
connection with said cable, provide services, equipment,
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facilities, and support to the City for ~ducational and
governmental uses. Said cable shall be capable of providing
one-way, t~o-way, interactive, ~nd machine-to~machine transfer of
audio, video, voice, and data Signals within said cable and to and
from sources outside the System, through the interconnection of
the System as provided in this Ordinance~ The following is a
list, by way of example, but not limitation, bf the types of
services which said cable shall have the capability of providigg:
two-way videoconferencfng; high speed data transfer1 access to
in forma tiona.l services; medical information interchange; facsimile
reproduction: and energy management. A portion of the capacity of
said cable shall be made available for use by the City and by
other governmental and educational institutionsq as provided in
Appendix F to this Ordinance.
4.5o02 The cable or the bandwidth, as the case may be,
supplied pursuant to Section 4.5.01 hereof shall be the
Institutional Cable and that portion of the Institutional Cable so
designated in Appendix F of this Ordinance shall be available for
use by the City and by other governmental and educational
institutions. The City may utilize said portion of the
Institutional Cable to provide the City with the means to develop
and distribute governmental ~ervices to the public over the
Subscriber System, to develop plans for, test, and implement the
us~ of Broadband Communications l~acilities, including the System,
as an integral part of gove.rnmental operations, and for any other
la~ful, governmentai purpose~ p~ovided that, such use shall not
impose technical interference with the operation and physical uses
of the Institutional cable by the Company and that such testing
shall only occur with the prior written consent of the Company.
The use of the Institutional Cable by educational institutions
shall be in accordance with the rules established by the CAO
pursuant to Section 4.3.05 to this Ordinance and.shall be limited
to publici educational, or charitable ptirposes. Neither the City
nor such institutions may sublease capacity on the Institutional
r~ble to commercial entities.
4.5.03 If there is unused capac.lty on that portion of
the Institutional Cable which is available for use by the City and
. by other governmental and educational institutions, then the .
Company may petition the City Manager for consent to utilize said
unused capa6ity on a temporary basis, which consent may not be
unreasonably withhe.ld. If the City Manager authorizes said use
by the Company or any Affiliat•d Person, then, upon notice to the
Company by the City Manager, the Company shall promptly, but in no
event late:r than one hundred fifty ( 150) days after receipt of
said notice from the City Manager, cease its use of said capacity
and return said capacity for use by the Ci~y and by other
governmental and educational institutions. Within two (2) years
from the effective date of this Ordinance, the City shall
promulgate reasonable rules, regulations and procedures for use of
unused capacity pursuant to this Section 4.5.03i which shall be
consistent with this Ordinance.
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4.5.04 (THERE IS NO SECTION WITH THIS NUMBER.)
4.6 Other Public Services
4.6.01 The Company shall take affir~ative steps to
ensure •aximum practicable availability of 'the Services and
facilities of the· $ystem by handicapped person~. ,Within twelve
(12) JROnths after the effective date of this Ordinance, the
C011pany shall submit to the City Man<:lger a plan demonstrating how
the Company intends to ensure the availability of its Services and
faciliti~s to handicapped persons. Said plan shall include, at a
1ninimum1 specific programming and facility access proposals. Said
plan shall be updated from time to time as necessary.
4.6.02 (THERE IS NO SECTION WITH THIS NUMBER.)
4.6.03 The Company shallr upon request of any
Residential Subscriber, provide to said Subscriber (by sale or
lease) a device by which said Subscriber can prohibit viewing of a
particular Service during periods selected by that Subscriber, as
further provided in Appendix A to this Ordinance.
4.6.04 In the event of an emergency, as reasonably
determined by the Mayor or City Manager, either of them may order
that Signals being distributed over the System shall be
interrupted for the delivery of appropriate messages or other
Signals as may be necessitated by such emergency. The procedures
for, and the equipment and facilities necessary to accomplish,
said emergency override shall promptly be established by the City
and the Company and, when so established, shall be set forth in
Appendix H to this Ordinance. Such procedures, equipment and
facilities shall be available to the other Joint Powers.
4.6.05 (THERE IS NO SECTION WITH THIS NUMBER.)
SEC':['ION 5 FEES AND CHARGES
5.1 No fee, charge, deposit, OL" asaociated term or condition
shall be isnposed by the Company or any Affiliated Person for any
Service unless it is disclosed in writing to the City as the same
may be amended from time to time by the Company. The fees,
char9es, deposits, and assoc.iated terms and conditions for Basic
Services, Enhanced Services, .and Service Related Activities, shall
be disclosed to the City, not regulated. All such fees, charges,
deposits, and associated terms and condi.tions shall be
nondiscriminatory, provided that this requirement shall not
prevent: ( i) the use of sales prom'vtions, other special
discounts, waiver of charges, reduced charges, or chariges in
associated terms and conditions to identifiable classes of
Subscribers~ (ii) the negotiation of bulk rates, discounts,
reduced charges, or changes in associated terms and conditions for
the provision of Services, and (iii) the ~fferirig of specialized
Services at negotiated rates1 provided that, the Company shall
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ensure that no Re~idential Subscriber is charged any fee, charge,
or deposit in excess of those set forth in its disclosures to the
City as they ~ay be a~ended from time to time by th~ Company.
5.2 Except as provided in the disclosures filed by the
Co•pany pursuant to Section 5.1, which may be amended from time to·
ti-e by the Co•pany, the OlrRpaqy. shall not impose -any fee or
charge on any Residential Subscriber for: ( i) any servi.ce call to
said Residential Subscriber's permises to perform any repair or
11a in tena.nce work, except .any such work. which was necessitated by a
negligent or wrongful act of said Subscriber~ or (ii} the
disconnection of all Services to a Subscriber, provided that the
Co~pany may impose appropriate charges if, at the time of
disconnection, some or all of the Company's equipment is not
ret\.trned to the Company or the Subscriber has not paid all
outstanding fees and charges due to the Company.
5.3 Within at least five (5) working days prioc to the
effective date of any change in any rate, charge, deposit, or
associated term or condition set forth in prior disclosures to
City, the Cvrnpany shall: {i) submit a revised disclosure in
writing to the City Manager together with a description of the
proposed change and (ii) provide a written notice of such proposed
change to each affected Subscriber and other Person utilizing the
affected Service~
5.4 The City and the Joint Powers intend to regulate rates
for cable Service to the fullest extent permitted by law.
Notwithstanding anything in this Ordinance to the contrary,in the
event that the Cable Act is amended or restrictions on the
authority of the city and/or the Joint Po~ers to regulate rates
are otherwise cemoved or lessened, the City and the Joint Powers
each intend to and !My.,-at their discreticn, rtagulat.e rates to the
fullest extent of theic regulatory authority under federal, State
and local laws.
SECTION 6 --CONSTRUCTION .. AND
TECHNICAL REQUIREMENTS
6.1 Forthwith after the effective date of this Ordinance,
the CoMpany shall begin to pursue diligently the receipt of all
necess4ry operating authorizations and. permits and, thereafter,
shall diliger&tly and continuously construct the System throughout
the Service Area in an orderly manner in accordance with the
construction standards, terms, and schedule, as .provided in
Appendix B to this Agreel!'lent, except as may be delayed by causes
described in Section 20~7 hereof.
6.2 All work involved in the construction, operation,
aaintenance, repair, and re~tova 1 .of the System shall be performed -
in a safe, thorough~ and workmanlike manner using materials of
good and durable quality with due regard for the aestheti---:s of the
Service Area. In installing and constructing its System, Company
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shall coordinate and cooperate ~ith any other City franchisee or:
public or aunieipal utility both overhead and underground in order
to •ini~ize disruptio~ to and interference with public rights of
vay. The CO~pany uy install the System using existing aerial
facilitie3 throughout the Service Area 1 except that the Company
shall install the Syste• in underground facilities in th~se areas
of the Service Area where all of the public util.ity facilities are
underground, or where an Underground Utility District has been
established pursuant to Chapter 12.16 of the Palo Alto Municipal
Code or any sielllilar provision of the code of a jurisdiction which
:. s ,;, nteJWber of the Joint Powers and in accordance with other
!tpplicable law. If,. subsequent to construction of any part of the
System, all public utility facilities in any area are placed
underground, the City may require the Company, at the Company's
own cost and expense, to move that portion of the System located
in said area(s) to the same or simila~ underground facilities on
the same basis as the City requires public utilities to so move.
The Company shall coi'Qp.>ensate the City for the use of any poles,
ducts or conduits controlled exclusively by the City's municipal
utility for insta1l<:!tion of the Company's cables on terms and
conditions and at r-ates determined by the City Council which shall
be compar-able to the terms, conditions, and rates available or
charged to the Compan~· by utility companies in the remainder of
th-e Service Area~ sue h pa \'1nents shall not be cons ide red a part of
or chargeable against the compensation to be paid to the City by
the Corapany pursuant to Section 10.1 of this Agreement.
6.3 If, at any time it is determined by any authority of
competent jurisdiction that any part of the System, including,
vithout li~itation, any means used to distribute Signals over or
within the Syste•, is har•ful to the health or safety of any
Person, then the Co•pany shall, at its own cost and expense,
pro•ptly corcect all 3uch conditiOfi$J provided that, in the event
the Cot:apan}• reasonably deteraaines that compliance with this
section 6.3 is not econo•ically feasible, the Company may, by
delivery of thirty ( 30) days' prior written notice to the City,
ter•inate this franchise and cease operation of the System. If
the Co•pany ter•inates this franchise as provided in this section
6.3, tne Co•pany shall coaply with Section 17.5.05 hereof.
6. 4 To the extent that construction of the System cannot be
accomplished expeditiously 1 in accordance with a schedule for
construction to ~ provided to City by Company, using existing
public utility facilities, the Company shall, on such conditions
as the applicable permit authori.t.ies may specify 1 constr1Jct or
install its own cr.oss at'!IS in appropriate areas on utility poles,
o~ its ovn conduits or other underground facilities for the
construction of th~ System, subject to Section 6.2 and 6.5
hereof.
6~5 The Co•pany shall have the sole responsibility for
diligently obtaining, at its own costs and expense, all perm~ts,
licenses, or other for11s of approval or authorization necessary to
construct, operate, ~intain or repair the system, or any part
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the~eof, prior to co•mencement of any such activity. The City
shall, upon the request of the Co•pany, assist in securing said
approvals or authorizations fro~ the City and the Joint Powers.
Approvals or authori~ations issued by the City may contain such
require•ents as a~e necessary and approp~iate in the ~easonable
discretion of the City, including pay.ent of the cost of a
~aediator or a~rbitrator to resolve disputes between and among one
or .ore franchisees, utilities, or public agencies, including the
Joint Powers. The City and the Joint Powers shall cooperate to
expedite the processing of any and all pe~mits or other approvals
required to construct, operate, and maintain the System. The City
shall allow the Oo•pany to use available space as reasonably
determined by the City on poles and conduits owned or controlled
exclusively by the City on teems and conditions available to other
us~cs under the City's utility Rules and Regulations, which shall
be comparable to terms and conditions available or charged to tte
Company by utility companies in the remainder of the Service
Area.
6.6 If the Co~pany seeks to construct and maintain its
cables and other System facilities on o~ about public or private
propei:tYr any easement for. such ose which has already been grant.ed
to a telephone or other utility company shall, to the extent
possible, be interpreted so as to gz.·ant. the Company the same
rights and privileges as have been granted to the telephone or
other utility company. In such easements, the words "telephone•
or "telephone company,• ~~'~publi·~ utility" and the like, shall be
interpreted to include the Company# to the extent possible. The
rights and pri vileg~~s extended to the Co•pany pursuant to this
Section 6.6 are granted by virtue of and only in connection with
the franchise granted pursuAnt to this Ordinance. said rights and
privileges shall cease and terminate upon the termination of this
Agree.ent, as provided in Section 2.3.03 of this Ordinance.
6.7 If the gr~des or lines of any Streets ~ithin the Service
Area are changed at any ti•e during the term of this franchise,
then the Coiip..:;ny shall, at its own cost and expense and
upon the reasonable request of the City, pco•ptly protect, alter,
ot" reloeate the Syste•, or .an!· part thereof, so as to conform .with
such new grade$ or lines, provided that the City shall give the
Coapany reasonable no tic~ and a reasonable period of time within
which to comply with the Section 6.7.
In the event that the Co11pany refuses or ne9lects to so protect,
alter, or relocate all. or any part of the System, the City shall
have the right to break through, reMove, alter, or relocate all or
any part of the Syste• without any liability to the company and
the CoMpany shall proeptly pay to the City the costs incurred by
such breaking through, reaoval, alteration, or relocation.
6.8 In connection with the construction, operation,
maintenance, repair, or removal of the System, the Company shall,
at its own cost and expense, protect any and all existing
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structures belonging to the city. The Co~pany shall obtain the
prior approval of the City before •aking any alte~ation of any
water main, sewerage oa: drainage syste111, electr ica 1
communications, fire alara, traffic control loops, utility
department coaxial cable, elect~ical cable, gas lines, or any
other governmenta 1 stru.ctut"e in the Streets required necause of
the installation or maintenance of the Syste• in thE Streets. Any
such alteration shall be .ade by the CO•pany, at its sole cost and
expense, and in a Mnner prescribed by the City.. The CoMpany
agrees that it shall be liable, at its own cost and expense, to
replace or repair and cestore to servicable condition, in such
manner as may be reasonably specified by the City, any Stre~t,
governmental structuce, or privata property that may become
disturbed or damaged as a ~esult of any ~ork in connection ~ith
the system by or on behalf of the Company pursudnt to this
Ordinance. The constcuction of the System sh.!ll not endanger oc
interfere with any improvements the City may deem proper to ~ke,
or interfere with the eights of any property o~ners.
6.9 In connection with the construction, operation,
maintenance, repaic, or removal of the system, the Company shall
not obstruct the Streets, railways, passenger travel, or other
traffic to, from, or within the Service Area ioiithout the prior
consent of the appropriate authorities, which consent shall not be
unreasonably withheld or delayed by the City or the Joint Powers.
6.10 The Company shall, at its ollin cost and expense, take
all reasonable steps to prevent accidents at its work sites,
including, but not limtied to, the placing and ~Mintenance of
proper guards, fences, trenches, b4rricades, watch•en, and
suitable and sufficient excavation and lighting •
. 6.11 The Co•pany shall, upon prior wr"itten notice of at
least fifteen (15) working days fro• the City or any Person
holding a permit to m<>VE"! any st.:ucturft, te11porarily .ove the
cables, wires, or other part of the syst~e• to per•it the 110ving of
sai~ structure. The COt~pany say i•pose a char-ge on any Person
other than the City for: any such fOOVellent.
6.12 The Co!Rparay shall, at its own cost and expense,
protect,· support, teraporarily disconnect, t"elocate in the same
Strt:"et or othe~ public place or governtJ~ental property, or re11ove
from the street or other public place or governMental property,
any property of the Company when required by the City Manager by
reaso.n of traffic conditions, public safety, Stceet vacation, and·
~treet construction, ch~nge, or establish•en~ of Street grade,
installation of sewers, drains, water pipes, power lines, signal
1 ines, gas 1 ines, and tracks,. or any ot.her type of structures or
improvements by public agencies.
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6 .• 13 -Technical Reguire•ents
6.13.01 Throughout the term of this F'canchise, the
Company shall operate and maintain the Syste$ in accordance ~ith
the minimum technical perforMance standards and testing
requirements as provided in Appendix A to this ordinance or as
_provided by the FCC Report and Order Docket 85-33, whichever is
allowed by the cable Act. The City Manager-~My, fro• ti~t~e to
time, propose modifications to said testing L~l!quicet~ents. Such
modifications shall take effect tlpon the consent of the CotRpa.ny.
6.13.02 The Compan~· shall operate dnd maintain the
System so as not to interfere with the trans~issioo or rece?tion
of (i} over-the-air broadcast signals by television ~eceivers and
(ii} radio signals on the coaxial cable owned and operdted hy the
Utilities Department of the City. The use of the frequency r~nge
between 144-148 MHz is restricted in the following nanner: (i)
said frequency range shall not be used if other frequency ranges
are available for comparable use by the Company~ and { i i) said
frequency range shall not be used if its use shall interfere with
ham radio reception and transmission. The final decision to use
the 144-148 MHz frequency rang~ lies solely with the Company.
6.13.03 The Company shall ~mploy such competent service
and repair technicians as are necessary to maintain the System on
a twenty-four (24) hour a day, seven (7} day a week basis in
accordance with Section 11 hereof.
6.14 Engineering Desi2n and Syste~ Architecture
The Comp~ny shall sub~ait to the City Manager, for review and
acceptance, an Engineering Design and System Architecture for the
System, in accordance with the ploc~duc-es and schedule set forth
in Appendix A to this Ordinance. said design and acchitectu['e
shall .include, without limitation, all in for•ation necessary to
comply with all applicable laws, rules, or regulations, including,
without limitation, all environlllental review requirements. The,
Company shall not commence construction of the Syste~& without ·
first obtaining the written acceptance of the City Mana~er: of the
Engineering Design aod Syste111 Architecture* Unless the City
Manager notifies the co~pany i~ writing within thirty (30) days of
receipt of the Engineering Design and Syste• Architecture that
said plan is not approved, and, wlthin fifteen ( 15) days of such
notification, provides the Company with a state~ent of reasons for
such disapproval, then said plan shall be deea~ed to have been
approved.
6.15 Interconnection
6.15.01 The Company shall comply with all System
interconnection requirements set forth in this Agreement.
6.15.02 All upstceam Channels on the Institutional
cable and Subscriber System will be capable of interconnection to
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downstream Channels on the Insti.tutione.l Cable and Subscri~r:
System, at the headend or at the Palo. Alto hub.
6.15.03 The Company shall interconnect the
Institutional Cable wi1;h the Subscriber Syste• at the headend of
the System or at the Palo Alto hub, as pt'ovided in Appendices A
and F to this Ordinance.. Both the Insti tuti.onal C41ble and the
Subscriber System shall be fully interconnected, by •eans of
hardware or mict·owave, with both the Institutional cable and
Subscriber System of all adjacent Broadband ComMunications
Fac;,l i ties within t.he County of San Mateo and t.he County of Santa
Clara which are owned or operated by the Company or any Affiliated
Person (excluding any Person affiliated with the Company sol~ly by
reason of a management or. operating agreement). The Company shall
also cause the Institutional Cable to be interconnected to all
other similr cables within Broadband Communications Facilities
owned by the Company or by any Affiliated Person (excluding any
Person affiliated with the Company solely by reason of a
management or operating agreement) ~hich are located within the
San Francisco Standard Metropolitan Statistical Area (•sMsA~} and
the Santa Clara County SMSA, and shall exercise reasonable efforts
to cause the Institutional Cable to be interconnected to all other
similar cables within othe:c Broadband Commuc"lications f'acilities
located within the County of San Mateo, the Santa Clara County
SMSA, and the San Francisco SMSA. Nothing in this Section 6.15.03
shall be interpreted to require the Company or an Affilt~ted
Pet·son to modify or alter the facilities or equipment of other
Broadb~nd Communications Facilities owned by said Affiliated
Person. Both the Institutional Cable and S.ubscciber System shall
be capable of being interconn.ected with any co•patible Broadband
Communications Facilities in the United States, provided that,
with respect to such Facilities not owned by the Company or an
Affiliated Person, such capability may be limited to ceceiving
Signals fr9m and transmitting Signals to such other Facilities.
Both the Institutional cable and the Subscriber: Syustem shall be
fully interconnected to Stanford University's Broadband
Communications Facilities on tet'ms and .conditions agreeable to the
Company and Stanford University.
6 .. 15.04 Within eighteen (18) months after the effective
date of this ordinance, the Company shall submit to the City
Manager a plan describing, in detail, how it will meet the
interconnection requirements set forth .in thls Ordinance. At a
minimum, said plan shall .address the following ma tte~s:
(i) Appropriate Signal distribution Methods
(e.g~, cable, fiber.,. microwave, satellite,
or otherwise) ~
(ii) Satellite uplink facilities~
(iii) Interconnection capacity (i.e., number
of Channels/bandwidth) for each type of interconnection;
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(iv)
( v)
interconnection~
(vi)
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Method for achieving emergency override;
Procedures/operational rules for
Rates, if any, for intecc'onnection;
(vii) Schedules for tests and implementation of
the intercorinection plan; and
(viii) Capacity for frequency translation.
6.16 Bonds
6.16.01 To guarantee the timely construction of the
System, to ensure that construction of the infrastructure of the
System and the operation of the Systerr continue in an ordArly and
uninterrupted manner in the event of a default by the Company~ and
for the other purposes specified in Section 6.16.03 hereof, the
Company shall arrange for, and shall maintain for the time periods
provided in Section 6.16,02 hereof, constr.uction performance and
payment bonds and a franchise perform~nce bond solaly for the
protection of the City, the Company, and specified claimants with
corporate surety and trust companies, Leasonably aceptable to the
City Attorney, as provided in Sections 6.16.02 through 6.16.05
hereof~ For pucposes of this Section 6ol6, the Ninfrastructure of
the System" shall inlcude all plant and equipment comprising the
System, including specifically, all headends, hubs, trunk and
feeder cablesv and associated equipment and supplies, but
exlcuding all Subscriber connections and equipment installed in
Subscribers' premises.
6.16.02 The initial construction performance and
payment bonds shall be in a face amount of not less than one
Million Dollars ($1,000,000.00) and Five Hundred Thousand Dolla~s
($500,000.00), respectively. said payment bond shall run froift at
least thirty (30) days prior to the commencement of construction
of the System through one hundred eighty { 180) da}•s following
completion of construction of the System, as provided in Appendix
B to this Ordinance. Said construction pet"formance bond shall run
at least thirty (30) days prior to the commencement of
construction of the System through one (1) year following
completion of.construction of the System, as provided in Appendix
B to this Ordinance. Following one · ( 1) year after completion of
all construction of the System, the City Manager may, in his
discretion, require a franchise perforl\lance bond in the araount of
up to One Hundred Thousand Dollars ($100,000.00). said franchise
performance bond shall remain i~ effect throuqhout the remaining
years of ~he term of this franchise or until such earlier time as
the City Manager may detet:mine.
6.16.03 The constr•Jcti.on performance bond and franchise
performance bond shall indemnify the City, up to the full face
amount of the bonds, for: ( i) the cost to continue -.:ol".struction
of the infrastructure of the System, and to maintain operation of
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the System in that portion of the System in which construction has
been completed, following a termination of this franchise up to
the date upon which the face amount of the bonds, plus all revenue
actually received through the continued operation of the System
during said period, have been exhausted; (i i) any loss or damage
to any municipal structure during the course of construction of
the System r (iii} any other costs, or loss or damage actually
incurred by the City as a result of the Company's failur:e to
faithfully perform its obligation to constcuct the System pursuant
to this fr~nchise; and (iv) the removal of all or any part of the
System from the Streets provided, however, that the City may not
seek recourse against said bonds for any costs or damages for
which the City has previously been compensated through a
withdrawal from the Security Fund. The payment bond shall be
available for payment of claims to which reference is made in
Title 15 (commencing with 3082) of Part IV of Division 3 of the
California Civil Code.
6.16.04 Said construction performance and payment bonds
and franchise bond shall be in a form approved by the City
Attorney, which approval shall not be unreasonably withheld, on or
before the effective date of the franchise granted herein. ~t
least sixty (60) days prior to commencement of construction
the Company shall furnish said bonds t.o the City Clerk. said
construction perform1nce and payment bonds shall each contain
substantially the following endorsement; "It is hereby understood
and agreed that this bond may not be cancelled by the surety nor
the intention not to renew be stated by the surety until ninety
(90) days after completion of construction of the System.•
6.16-05 The faithful performance by and the liability
of the Company pursuant to this Agreement shall not be limited by
the acceptance of the bonds r:equired by this Section 6.16.
SECTION 7 --(THE~E IS NO SECTION WITH THIS NUMBER.)
SECTION 8 --EMPLOYMENT
8.1 The Company shall not discriminate against any
individual in compensation, hours of employment, or any other
term t condition oc privilege of employment, incfud ing, ~~ thout
limitation, promotion, upgrading, demotion, downgrading, transfer,
lay-off, and termination, on the basis of race, creed, color,
national origin, sex, age, handicap, mari.tal status, or veteran
status, in accordance with applicable law.
8. 2 The Company. shall, at its own cost and expense, develop
and maintain a plan for the recruitment, education, traning, and
employment of residents of the service area for the <';.portunities
to be created by the construction, operation and maintenance of
the system. said recruitment activ.i.ties shall includ1~ provisions
for the posting of employment and training opportunities at
appropriate governmental departments or agencies responsible for
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enco~raging em~loyment withiri th' service area. Said plan shall
be designed so as to ensure the promotion of equal employment
opportunity for all persons em~;>loyed by, or seeking employment
with, the Company. Withi.n ninety (90) days after the effective
date of this franchiser the Cdmpany shall submit said plan to the
City Manager for review and approval. 5aid plan shall be updated
from time to time as reasonably necessary, or as the City Mana~er
may direct. The Company shall,· throughout the term of this
Ordinance, exercise its b~st efforts to implement said plan, at
its own cost and expense, by ensuring, to the maximum feasible
extent, the recruitment, education, training, and employment of
residents of the service area. This Section 8.2 shall not be
interpreted to impose an undue economic burden on the Company.
SECTION 9 --ADDITIONAL SUBSCRIBER RIGHTS
9. 1 Privacy _Protect ion
9.1.01 The Company shall operate the system in a manner
that: {i) protects against invasions of any person's privacy, and
(ii) protects, consistent with the state-of-the-art of Broadband
Communications Facility technology, the privacy of data services
and data signals distributed over the system. To the extent the
user of such data services requests special security for its use,
the Company shall provide such security on terms and conditions
mutually agreeable between the Company and the data user.
9.1.02 At the time of entering into an ageement to
provide any cable service or other service to a subscriber and at
least once a year thereafter, the Company shall provide notice in
the form of a sepatate, written statement to such subscriber,
which clearly and conspicuously informs the subscriber of:
(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 an
identification of the types of persons to whom the disclosure may
be made7
(iii) The period during which such info~mation
will be maintained by the Company;
{iv) The times and place at which the subscriber
may have access to such information in accordance with Section
9.1.05 hereof;
(v) The limitations provided by Section 9.1 hereof
with respect to the collection and disclosure of information by
the Company and the right of the subscriber under Sections 9.1.07
and 9.1.08 to enforce such limitations.
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For purposes of this Section 9.1, .the term "personally
identifiable information" does 110t include al)y record of aggregate
data which does not identify particular pers6ns.
9.1.03 Except as provided in this Section 9.1.03, the
Company shall not use the system to collect personally
ideritifiable information concerning any subscriber without the
prior written or electronic consent of the subsc~iber concerned.
The Company may .u~~ the system to collect such information in
order to: ·
(i) Obtain information necessary to render a cable
service or other service provided by the Company to the
subscriber: or
(ii) Detect unauthorized reception of cable
communications.
9.1 .04 Except as provided in this section 9.1 .04, the
Company shall not disclose personally identifiable information
concerning any subscriber without the prior written or electronic
consent ot the subscriber concerned. The Company may disclose
such information if the disclosure is:
(i) Necessary to render or conduct a legitimate
business activity related to a cable service or other service
provided by the Company to the subscriber;
(ii) Subject to Section 9.1.07 hereof, made
pursuant to a court order authorizing such disclosure, if the
subscriber is notified of such ofder by the person to whom the
order is directed1 or
(iii) A disclosure of the names and addresses of
subscribers to any. cable service ot other service, if {A) the
Company has provided the subscriber the opportunity to prohibit or
limit $uch disclosure, and (B) the disclosure doe~·not reveal,
directly or indirectly (1) the extent of any viewing or other use
~Y the subscriber of ~ cable service or ether servic~ provided by
the Company, or (2) the nature of any transaction made by the
· subscriber over the systam.
9.1.0S A subscriber shall be provided access to all
personally identifiable information regarding that subscriber
which is collected and maintained by the Comp~ny. Such
information shall be made available to the Subscriber at
reasonable times and at a convenient place designated by the
Company. A Subscriber shall be provided reasonable opportunity to
correct any erro~ in such information.
9.1.06 ·The Company shall destroy personally
identifiable information if the information is no longer necessary
for the purpose for which it was collected and there are no
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pending requests or orders for access to such information under
Section 9.1.05 hereof or pursuant to a court ordero
9.1.07 Subject to all relevant laws, the City may
obtain pe~sonally identifiable information concerning a Subscriber
pursuant to a court order only if, in the court proceeding
relevant to such court order:
(i) the City offers clear and convincing evidence
that the subjdct of the information is reasonably suspected of
e~gaging in criminal activity and that the information sought
would be mate~ial evidence in the case; and
(ii) the subject of the info~mation is afforded
the opportunity to appear and contest the City's claim.
9.1.08 At such time as the City reasonably determines
that,because of amendments to the Cable Act, the city should take
additional steps to ensure that privacy provisions of this Section
9 will be complied with, the City may requi~e that not later than
three {3) months follo~ing said determination by the City, the
Company shall submit to the City Manager, for approval, a plan
describing how the Company shall operate the System to protect
against invasions of any Person's privacy, which plan shall
address, at a minimum, each of the matters cover~d by Sections
9.1.02 through 9~1.07 hereof. Said plan shall be deemed to be
approved, if the city Manager does not disapprove of said plan
within thirty (30) days after the City Manager has received said
plan. Said plan may not be modified without the prior approval of
the City Manager, which approval shall not be unreasonably
withheld.
9.1.09 If the Company has tailed to comply with the
foregoing provisions of this Section 9.1 with respect to any
Subscriber, the City Manager may order the Company to, and the
Company agrees that it shall: {i) pay to the City as a civil
penalty an amount equal to the value of the financial benefit, if
any, received by· the Company or any Affiliated Per::;on inconnection
with a willful violation of the foregoing provisions of this
Section 9.1; and (ii) demonstrate to the satisfaction of the City
Manager, that the Company has taken or will take actions to
prevent any for~her violations. This remedy shall not affect any
remedy available under the provisions of Section 17~3.n1 hereofj
or any remedy available to said Subscriber for an invas-vn of his
privacy by the Company.
9.1.10 The rights and duties set out i~ this Section
9.1 are in addition to other rights, duties, remedies, and
protections that m~y be provided by law.
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9.2 Interr~ption of Service
9~2.01 The Company shall at all times maintain all
parts of the Sy$tem in good conditiori and repair throughout the·
terM of this Agreement so as to provide Services to all
Subscribers on an uninterrupted basis, except as provided in this
Section 9.2
9.2.02 The Company shall promptly notify the City
Manager of any significant interruption in the operation of the
System. For the purpose of this Section, a "significant
interruption in the operation of the System" shall mean any
interruption of a duration of at least four (4) hours to at least
five ( 5) pet'cent of the Subscribers~ The Company shall at all
times keep an outage log in which all outages shall be regularly
logged~ The City shall have access to such log upon reasonable
notice and at ~easonable times.
9.2.03 The Company shall exercise its best efforts to
limit any interruption of Service for the purpose of maintaining,
repair.:-ing, or upgrading the System to periods of minimum use.
Except in an emergency necessitating a more expedited procedure,
the Company may schedule an interruption of service for a period
of more than four (4} hours during any twenty-four (24) hour
period only ~fter the City Manager and each affected Subocriber
has received forty-eight {48) hours prior notice of the proposed
interrupt. ion.
9.2.04 In the event that Service to any Subscriber is
interrupted, for any reason, for forty-eight (48) consecutive
hours, and provided the Company is given reasonable notice of such
interruption within two {2} working days thereafter, the Company
shall promptly provide to each affected Subscriber a credit equal
to one-fifteenth (1/lSth) of the Subscriber's next due monthly
bill after such notice and the equivalent of one-thirtieth
(!/30th} of said Subscriber's next due monthly bill for each
additional consecutive twenty-four { 24) hours Ot' part therof of
Service interruption. The following shall not be an interruption
within the meaning of this Section 9.2 .. 04: (i) the termination or
interruption of any Service by the supplier of said Service~ (ii)
a failure of any equipment at the Sub~criber's premises which is
not installed or otherwise fur. i shed by the Company or any
Affiliated PersonJ (iii) interruptions caused by third party
vandalis~; or (iv) an interruption due to circumstances beyond
reasonable control of the Company. In the event that restoration
1Jf the interrupted Service requires access by the Compa·ny to a
Subscriber's premises, then the Company s.hall not be required to
provide the credit called for in this provision with respect to
any period of interruption following a denial by said Subscriber
of access to said Subscriber's premises, between the hours of 9:00
a.m. and 7:00 p.m., for the prupose of restoring said Service.
9.2.05 For purposes of computing the duration of an
interruption of Servicep said period shall begin when the Company
receives a .notice from~ Subscriber that any cable Service(s) has
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(have) been interrupted or when the Company has actual notice of
said interruption, ~hicheve~ is earlier, and shall cease when said
Service(s) has {have) been restored to said Subscriber.
9 .. 3 Complaints
9.3.01 Within twelve (12) months after the effective
date of this Ordinance, the Company shall submit to the City
~anager for his approval, which approval shall not be unreasonably
withheld, a copy of its Subscriber complaint procedures, which
procedures shall be consistent with all applicable laws and the
provisions of this Section 9.3. The Company shall submit to the
City Manger any modification to said complaint procedures not less
than thirty (30) days prior to the effective date thereof. A copy
of such complaint procedures and modifications thereto shall be
rrovided to each Subscriber before provision of any Service, and
on dn annual basis thereafter. Such pr.ocedures shall include,
without limitation, the address and telephone number of the
Company 1 s office to which complaints may be reported.
9.3.02 Each Subscriber complaint regarding the system
or the Services distributed over the System shall be responded to
by the Company as soon as reasonably possible, but in no event
later than forty-eight (48) hours after the date of receipt of
said complaint by the Company unle$S the Company can demonstrate,
to the satisfaction of the City Manager, that response to said
complaint within said period is not reasonably possible. The
Company shall be staffed to respond to all Subscriber requests for
Service in accordance with Section 11 hereof.
9.3.03 The Company shall maintain, at its office in the
Service Area~ accurate and complete records of all Subscriber
complaintsr including both written and oral complaints received
during the prior two (2) years, and dw action taken by the
Company in t'esponse to each complaint.
9.3.04 Upon request of the City Manager, the Company
shall, within ten (10} business days after receipt of said
request, provide a written report to th~ City Manager.with respect
to any co•plaint. The report to the City Manager sha 11 provide an
explanation in reasonable detail of the investigation, findings,
and corrective steps taken by the Company in response to the
complaint, together with a statement of whether t~e Subscriber was
satisfied with the corrective steps taken by the Company.
9.3.05 In the event that a Subscriber's complaint has
not been resolved to the ·satisfaction of said Subscriber within a
reasonable t.i•e aft.er receipt of said complaint by the Company,
the City Manager may take appropriate action to resolve the
controversy between the Company and said Subscriber.
9.3.06 In any case in which a request for any Service
by any Person consistent with Section 3.2 hereof has been ignored
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or unfilled by the Co~~Jpany without reasona.ble cause, the City
Managet· uy order the Company tc comply with such request.
9. 4 Discontinuation of Servic-e
If a Subscciber fails to pay any pcoper fee or charge
for anr Set'viee, the Co•pany IQay discontinue said Service,
provided that the Subscriber: has been gi.ven no less than ten ( 10)
days' prior, Nritten notice of the intent to discontinue and such
notice was given not less than fifteen (15) days after the due
date of said fee or chacge. If the Company receives payment of
all outstanding fees and charges, including any late char"ges,
p~ior to the expiration of the tenth (lOth) day after receipt of
said notice from the Companyf then the Company shall not
discontinue said ~rvice. After any Service has been
discontinued, upon request of the Subscriber accompanied by
payment in full of all fees or charges due the Company and the
payment of an appropciate reconnection charge, if any, the Company
shall proa.ptly reinstate said Ser.vice: provided that the Company
may institute procedur-es for permanent disconnection of any
Services to any Subscriber who repeatedly fails to pay amounts due
to the Company. The Company shall submit such procedures to the
City and to each Subscriber.
9.5 Noninterference
The Company shall not interfer1 with the ability of any
Subscriber to utilize his or her teV~vision receiver f.:>r any
lawful purpose ..
9.6 !nfor~tion to Subscribers
9.6.01 Before providing any serviqe initially to each
Subscciber, the 003pany shall advise said Subscriber, in writing,
of:
(i) the availability of the Signal control device
required by Section 4.6.03 hereof:
(ii) the fees, charges, deposits, and associated
teras and conditions which apply to all Services then being
distributed over the System which the Subscriber may ele~t to
receive:
(iii) the procedures which the Company follows in
order to change any fees, charges, deposits, or associated terms
and conditionsr
(iv) the Company's procedures for protecting
~g•inst invasions of privacy;
{v) the Company's procedures for the receipt
and resolution of Subscriber complaints;
• •
(Vi) tne address and phone 11umber of the Comp~ny's
oftice 1n the Service Are~ to ~hich complaints may be reported;
(vii) the Co~pany's procedures for advising
Subscribers that p~rticular Services may include potentially
objectionable progra~aing; and
(viii} other appropriate operational information.
9.6.02 In the event of any material change in any of
the items listed in Section 9.6.01 hereof, the Company shall
promptly notify eacn attected Subscriber of said change in
w~iting. For purposes of this Section 9.6, the designation of
"potentially objectionable programm1ng 1' shall approximate in the
opinion of tne Company the designation, by the Motion Pictu~e
Associ~tion of America, of a commercial motion picture holding a
~~estricted• or higher c~ting. The notice required by Section
9.6.0l{v) hereof regarding Subscriber complaint procedures shall
be provided to each Subscriber on not less than an annual basis.
9«6.03 The not1ce required by Section 9~6.01 and 9.6.02
hereof shall be developed by the Company.
SECTION 10 --CO~PENSATION AND
OTHER PA~MBNTS
10.1 Comoensation
10.1.01 As d Franchise Fee, the Company shall pay to
the City an amount equal tQ five percent (5%) of annual Gross
Revenue during each year of the term ot the franchise.
10.1.02 The Company shall submit to the City Manager,
a report~ in such for~ and containing such detail as the City
Manager shall require, not late~ than tnirty (30) days after the
last day of each quarter throughout the term of the franchise,
setting forth the Gross Revenue for the preceding three (3) month
period. Said report shall be accoMpanied by the Company's
f~anchise COMpensation payment to the City in the amount equal to
five percent (5\} of Gross Revenue for the preceding three (3)
month period determined taking into account a reasonable
adjustment for bad debts. At the end of each fiscal year of the
Company, the Gross Revenue shall be reconciled on the basis of
act~al bad debts f~r the preceding four (4) fiscal quacters.
10.1.03 The compensation payments to be made ·pursuant
to this S1l~tion 10.1 snail not be dee~ed to be in the nature of a
~ax. Safa comp~nsation payments shall be in addition to any and
all t~xes ~r other tees or cha~ges which the Company or any
Affiliated· Person shall be required to pay to the City, the Joint
Powers, or to «ny State or federal agency or authority, as
required herein oy law, all of which shall be separate and
distinct obligations of the Company and its Affiliated Per~ons.
·;,.
• •
Neither the Co~pany nor any Affiliated Person shall have or make
any claim for any deduction or other credit ot all or any part of
the amount of said comp~nsation pay~ents tro~ or against any of
said City taxes or other fees or charges which the Company or any
Aftiliated Person is required to pay to the City, except as agreed
herein or requir:-ed by law. Neither the Company nor: any Affiliated
Per~on shall apply nor seek to apply all or any part of the amount
of said compensation pay~ents as a deduction or other credit from
or against any of said City taxes o~ other tees or: charges, each
of which shall be deemed to be separate and distinct obligations
of the Company and Atfiliated Persons. Ne1ther the Company nor
any Affiliated Person shall apply or seek to apply all oc any part
of the amount of any said L:t x.es or otnec-t.aes o c-charges as a
deduction or other credit from or against any of said compensation
obligations, each ot which shall oe deemed to be separate and
distinct oblig2tions of the Company dnd Affiliated Pecsons.
10.1.04 Hothing contained in this Section 10.1 or
elsewhere in t~~ is Ordinance s~1a ll prevent the Company or any
Affiliated Person from tr~ating tne compensation and other
payments that it, they, or either of them, may pay pursuant to
this Ordinance as an ordinary expense of do1ng business dnd,
accordingly, from deducting said payments from gross income in any
City, State, or federal income tax return.
1 0 • l. 0 5 Cons i. s tent . ..., i t h s~ c t ion 6 2 2 ( h } o t the cab 1 e
Act, the City intends to impose a fee eqoal to 5\ of the Gross
Revehue of any Person that distributes any Servic~ over the
Syste~. If the Company collects revenues for sald Person, then
the Company shall collect said S\ fee on the Gross Revenue of said
Person actually collected by the Company and shall pay said fee to
the City along ~ith the Company's payments pursuant to s~ction
10.1.02 of this Ordinance. If the Co•pany does not collect the
revenues for a Person that distributes any Service over the
system, then t.he Company shall noti.fy said Person of this S\ fee
requirement and shall notify the City cf said use of the System.
Nothing in this Section 10.1.05 shall require the C~mpany to
monitor payntent of a fee to tne City by any Person or ensure the
acc~~acy of any information provided to the Co~pany by any Person.
Nothing in this Section 10.1.05 shall require the CAO or any
educational institution, acting in its capacity as such, for
public, educational, or charitable purposes, to pay a fee to the
City for the distribution of any Service over the S:y-stem, provided
tnat the CAO or any educational institution shall be obligated to
pay a fee to the City as described in this Section 10.1.05 if the
-CAO or educational institution: (i) imposes a per-program or
per-Channel charge for a Service distributed over the System, or
(ii) distributes a Service over the System for commercial
purposes.
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10.2 Other Payments
10.2.01 Tne Company shall pay or pr·ovide to the City,
and such other Person(s) as ~ay be specitied by the City, all of
the items of value set torth in this Sectio~ 10.2 and in
Appendices £ and F to this Ord1nance.
10.2.02 The Company shall pay t~•1 City a prorata share
(based on t~e number of franchises) of the Cities franchising
costs which equal Three Hundred and Fifty Thousand Dollars
($350,000) representing the Company's contribution toward the
actual and reasonable costs incurred up to and including the
effective date of this Ordinance, and are incident~l to the
awarding or enforcing of the franchise. Century 1 s shar<l is the
sum of One Hund~ed Seventy-Five Thousand Dollars ($175,000~,
payable as follows:
(i) Fifty Thousand Dollars ($50,000) w1thin thirty
(30) days of the effective date of this Ordinance;
(ii) seventy-Five Thousand Dollars ($75,000) not
later Ulan one year: t:ollo~~Wing the et:t.e-ctive date of this
Ordinance; and
{iii) Fifty Thousand Dollars ($50,000) pr1or to the
second (2nd) anniversacy of the effective date of this Ordinance.
Payment required by the Company pucsuant to tnis Section 10.2.02
shall be within the exclusions to the term Rfranchise fee•
provided by Section 622(g} (2)(¢) of the \...able Act and shall not be
deemed to be part of the compensation to be paid by the Co11pany to
the City pursuant to Section 10.1 hereof.
10.2.03 The Company sball provide channel capacity,
facilities and equipment as its contribution to the use of the
Access Channels, the Government Channels' and the Institutional
Cable as specified in Appendices E, F and G to this Ordinance.
The facilities and equipMent provided by the Co•pany pur$uant to
this Section 10.2.03 shall be ~ithin the exclusion to the term
".franchise fee• provided by Section 622(g)(2)(C) of the Cable Act
and shall not be deemed to be part of the co•pensation to be paid
by the Company to the City ~ursuant to Section 10.1 hereof.
10.2.04 The Company shall pay to the City an aaount
equal to t;he ordinary and reasonable costs which the City 11ay
incur in conn~ction with •or renewal or renegotiation of this
Ordinance, and any amend11ent of this Ordinance requit'ed by law or
initiated by the Company, or any other !llod.itication of this
Ordinance initiated by the Company, at such t.i~~e and in such
manner as the Company and the City Manager shall mutually
determine. Said payment by the Company shall be witnio tne
exclusion of the term ~franchise fee• provided by Section
622(g)(2)(D) of the CablQ Act and shall not be deemed to be part
of the compensation to be paid by the CoMpany to the City
pursuant to Section 10.1 hereof.
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.'·:.,
• •
10.2.05· The Company shall pay to the City the aao!Jnts
set forth in Section 17.2.01 hereof. Said payment by the Coapany
shall be within the ~~elusion to the term •franchise fee" provided
by Section 622(g)(2)(D) of the Cable Act and shall not be deented
to be part of the compensation to be paid oy the Company to the
City pursuant to Section 10.1 hereof.
10.3 All contributions, Services, equipment, channel
capacity, facilities, support, resburces, and other things of
value to be paid, supplied, or voluntarily provided by the Con~pany
pursuant to this Ordinance including Section 10.2 hereof and any
Appendix to this Ordinance, are for the benefit of all Subscribers
and the public. Said contributions, Services, equipment,
facilities, support, resources, and other things of value are not
within the meaning of the term "franchise fee" as defined by
Section 622(g)(l) of the Cable Act and are within one or more
exclusions to the term "franchise feeH provided by Section
622(g)(2)(A}-(D) of the Cable Act. Said contributions, services,
equipment, facilities, support, resources, and other things of
value shall not be demmed to be: (i) ~payments-in-kind• or
involuntary payments chargeable against the compensation to be
paid to the City by the Company pursuant to Section 10.1 hereof,
or (ii) part of the compensation to be paid to the City by the
Company pursuant to Section 10.1 hereof, except as expressly
provided her.ein.
10.4 All payments by the Company to the City pursuant to this
Ordinance shall be made payable to the City and deposited with the
Director of Finance.
10.5 In the event that any payment required by this Ordinance
is not actually received by the City on or before the applicable
date fi~ed in this Ordinance then a late charge shall accrue
thereon from the end of the cure period for such payment, as set
forth in this Ordinance at a rate equal to two (2) perc~ntage
points above the then-prevailing reference rate of interest
charged by the B~nk of America in San Francisco for cOMmercial
loans, compounded quarterly as a civil penalty for violation of
this Ordinance. Any payments to the City pursuant to this Section
10.5 shall not be chargeable against tne compensation to be paid
to the City pursuant to Section 10.1 hereof and shall be within
the exclusion to the term "f~anchise fee" for requirements
incidental to the enforcing of the franchise pursuant to Section
6212(g)(2)(D) of the Cable Act.
10.6 In tne event that the Company continues to operate all
or any part of the. Sy~tem after the term of this Ordinance, then
the Company shall continue to comply with a:O.l applicable
provisions of this Ordinance, including, without limitation, all
compensation and other payment provisions of this Section tO,
throughout the period of such continued operation, provided that
any such continued operation shall in no way be construed as a
• •
renewal or other extension of this Ordinance or the franchise
granted pursuant to this Ordinance.
SECTION 11 --OVERSIGHT AND REGULATION
11.1 The City. Council shall have the right to oversee,
regulate, and periodically inspebt tbe construction, operation,
and maintenance of the System, and all parts thereof, in
accordance with the provi~ions of this Ordinance.
11.2 The City Council may, from time to time, adopt or issue
such reascinable rules, regulations, orders, or other directives
governing the Company or the System as it shall find necessary or
appropriate in the exercise of its police power, provided that
such rules, regulations, orders, or other directives a~e not
materially in conflict with the provisions of or privileges
granted in this Ordinance. The City Manager may, from time to
time, issue such orders governing the Company or the System as he
shall tind reasonably necessar.y or appropriate pursuant to and in
further-ance of thf.~ purposes of this Ordinance. The Company s'h..l\
comply with all such rules, regulations or orders lawfully
binding upon the Company, or other dii~ctives issued pursuant to
this Ordinance. No such rule, regulation, o~der, or other
directive issued pursuant to this Section 11.2 shall constitute an
amendment to this Ordinance.
11.3 Periodic Evaluation and Hearings
11.3.01 Annually, not later than sixty (60) days after
each anniversary of this Ordinance, the Company shall submit to
the City Manager a written report, in reasonable detail, covering
the significant events related to the Company's performance or
nonperformance of the terms and conditions of this Ordinance
during the prev1ous year. Such reports may, for example, cover
significant events related to the following:
(i) compliance with, and any modification
necessary with respect to, the financial plan required by Section
2.5.08 hereof;
(ii) compliance with the requirements regarding
System characteristics and technical performance and testing
r.equirements, as provided in Appendix A to this Ordinance;
(iii) compliance with the co~struction terms,
standards, and schedule, as provided in Appendix B to this
Ordinance;
(iv) a description of the changes made or
cont~mplated to the mix, level and quality of programming in the
broad categories of video programming or other services on the
System; in accordance with Section 3.10 of this Ordinance, nothing
in this par4graph (iv) shall imply any regulatory authority or
•
power of censorship over the content of programming on the Company
Channels or th~ Leased Chanriels:
(v) the status of the State-of-the-Art of
Broadband Communication .Facility technology, the Company's
activities tci enhance or advance said technology in connection
with the System~ and the Company's compliance wi~h its •continuing
Obligation,~ as provided in Section. 3.9 hereof;
(vi) a description of the facilities and equipment
provided to the CAO by the Company, as provided in Section 4.3
hereof and Appendix E to this Ordinance:
(vii) the stat us of development and use of the.
Institutional Cable, as provided in Section 4.5 hereof and
Appendix F to this Ordinance~
(viii) compliance with, and any modification
necessary with respect to, the Company's plan for ensuring maximum
practical availability of its Services and facilities to
handicapped persons, as provided in Section 4.6.01 hereof;
(ix) compliance with, and any modification
necessary with respect to, the Engineering Design and System
Architecture for the system, as provided in Section 6.14 hereot
and Appendix A to this Ordinance;
(x) compliance with, and any modification
necessary with r~spect to, the plan for interconnection, as
provided in section 6.15 hereof, including the Company~s
activities pursuant to said plan;
(xi} compliance with, and <any tt1odification
necessary with respect to, the plan for recruitment, education,
training, and employment of residents of the Service Area, as
provided in Section 8.2 hereof;
(xii) compliance with, and any modification
necessary with respect to, the Compan~•s privacy protection
poli~ies, as provided in Section 9.1 hereof;
(xiii) a summary of all significant Service
interruptions, as provided in Section 9.2 hereof;
(xiv) a su.mmar-y of all significant and
representative Subscriber complaints and the actions taken by the
Company in response thereto, as provided in Section 9.3 hereof;
and
(xv) other events which the Compan~ believes the
City may find significant.
11.3~02 Within sixty (60) days after receipt of the
Company 1 s report, the City Manager may request additional
• • information on specific topics which the Company shall ~upply
within thirty (30) days of such request. The City Manager may
review the Company's performance to determine ~hether the Comany
has complied with the terms and conditions of this Ordinance and
shall, following, completion of such review, if any, file the
Company's report with the City Council together with such firtdings
ana .recommendations as he deems appropriate. Nothing in this
Section 11.3 shall affect City's remedies provided elsewhere in
thi.s O~dinance.
11~3.03 The City may retain, at its own cost,
technical a11d other experts and consultants on a periodic basis
throughout the term of this Ordinance for the purpose of
overseeing, testing, and inspecting the constructionf operation,
and maintenance of the System, and all parts thereof, to ensure
compliance with the provisions of this Ordinance.
11.4 Other R~ports
11.4.01 Upon the request of the City Council or the
City Manager, the Company shall, subject to the provisions of
Section 11.6.03 hereof with ~espect to proprietary information,
promptly make readily available at the reasonable times to the
~equesting party any reasona~le information regarding the Company,
its business and operations, or any Affiliated Person, with
respect to the ~ystem 1 any Service distributed over the System, or
any Service Related Activity.
11.4.02 The Company shall make readily available at
reasonable times to the City Manager progress reports describing,
in detail, the status of construction of the System in accordance
with the standards, terms, and schedule for construction, as
provided in Appendix ~ to this Ordinance.
11.4.03 The Company shall submit to the City Manager,
not later than three (3) months after the end of its fiscal years,
with respect to the fiscal year just ended: (i) copies of all
,income statements, balance sheets, statements of changes in
financial position for the System ~nd other financial statements
given.to investors and lender2 of the Company, provided that, if
the City Manager reasonably d~termines such information is
insufficient, the Company shall provide to the City, no more th~n
once a year, statements and balance .sheets which have been audited
by an independent certified public accountant; (ii) a statistical
summary of the operations of the System for the fiscal year just
ended including the number of Subscribers added, and penetration
rates; and {iii) a breakdown of the annual Gross Revenue from the
System.
11.4.04 Within thirty (30) business days after the
Company has received from or submitted to any governmental, stat~,
County, or federal agency or official any report, petition, or
other significant filing which materially pertains to or in any
• •
way materially affects the Systgm or any Service Related Activity,
the Company shall submit to the City Manager a copy of such
report, petition, or other communication. A copy of each response
thereto submitted to or received from such governmental, state,
County, or federal agency or official by the Company, shall ·
likewise be submitted promptly to the City Manager.
11.5 Company Office
11~5.01 Thrbughout the term of this franchise, the
Company shall maintain an office in the Service Area. The Company
hereby designates said office as the place where Subscriber
complaints, any notice, direction, order 1 request, or other
communication from the City, and any othe~ communication to the
Company including, without limitation 1 a request for any Service,
may be served, or delivered. The Company shall promptly notify
the City Manager, in writing, and shall provide notice to each
Subscriber and other user of the System, of the initial location
and telephone number, and any change in the location or telephone
number~ of said office. The Company shall be entitled, in its
discretion, to utilize a regional customer service office:
provided that, such office is within five (5) miles of the Service
Area and that the Company provides a local telephone number within
the service Area for contacting such office.
11.5.02 The office required by Section 11.5.01 hereof
snall be open to the public during all normal business hours and
shall have a publicly listed telephone number. Staff or other
services shall be available to~ (i) receive Subscriber complaints
or requests for Service or repairs and to initiate action with
reHpect to System or Service outages on a full-time basis, twenty
feu~ (24} hours a day, seven (7) days a weekt and (ii) initiate
Service installations, undertake normal repairs, and initiate
action ·with respect to .Subscriber complaints on Monday through
Friday, from 8:30a.m. to 5:00 p.m.v and at such other times as
may be necessary to accomodate special circumstances.
11.6 Books and Records/Audit
11.6.01 Throughout the term of this franchise, the
Company shall maintain, either in the office required by Section
11.5 hereof o~ elsewhere within the City, or snall make available
at said office within five (5) working days after receipt of a
written request by the City Manager or the City Auditor, complete
and accurate books of account and records of the business,
ownership, and operations of the Company with respect to the
System, any Service distributed over the System, &nd each Service
Related Activity, i~ accordance with Section 9.1 nereof.
11.6.03 The City Council, the City Manager, the City
Auditor, or th&ir designated representatives, shall have the right
to inspect, examine, or audit, during normal business hours and
upon reasonable notice to the Company, all documents which pertain
• •
to the Company.or any Affiliated Person with respect to the
System, each Service distributed over the System, and each Service
kelat3d Activity, •xcluding the personal financial statements or
information of individual investors if such informat1on is not
general!~ available. All such documents shall be made available
at the office of the Company; provided such office is within the
Service Area, or at the Palo Alto Civic Center, if said office is
located 6utside of ~he Service Area, in otder to facilitate said
inspectiono examination, or audit, as provided in Section 11.6.01
hereof. All such documents which may be the subject of an audit
by the City shall be retained by the Company for a minimum of
three (3) years follo~ing termination of this franchise. Access
by the City to any of the financial documents covered by this
Section 11.6.03 snall not be denied by the Company on grounds that
such documents are alleged by the Company to contain proprietary
information, provided that the Company or any Affiliated Person
shall be entitled to mark such inform~tion as proprietary, and
provided further that this requirement shall not be deemed to
constitute a waiver of the Company 1 s right to assert th~t the
proprieta~y information contained in such documents should not be
disclosed and to withhold said information upon the agreement of
the City. In order to determine the validity of said assertion
and withholding by the Company, the City agrees to review the
alleged proprietary information at the Company's office in the
Service Area and, in connection with said review, to limit access
to the alleged proprietary information to those individuals who
requf~e the information in the exercise of the City's rights under
thi~ C1rdinance. If the City Manager, upon advice of the City
Attorney, concurs with the Company's o~ the Affiliated Person's
assertion regardinQ the proprietary nature of said information,
the City will not disclose such infocma~ion to any Person and will
not remove from the Company's or the Affiliated· Person's office
the proprietary portion of any document or other tangible thing
that contains said proprietary information.
11.6.04 The City Council, the City Manager, the City
Auditor, or their designated representatives, may require written
certification by the Company's appropriate directors, officers, or
other employees with respect to all documents referred to in this
Section 11.6.
11.6.05 Thcoughout the term of this franchise, the
Company shall maintain, in a file available for public inspection
during normal business hours at its office in the Service Area,
the follo~ing documents:
{i) the initial version of all plans and other
documents to be submitted by the Company or, as applicable, by any
other Person as provided in this Ordinance, all updates to said
plans and other documents, and any modifications to said plans or
other documents that have become effective~
• •
(ii) all periodic reports to be sumitted by the
Company, as provided in this Ordinance;
(iii) records indicating all uses, and users, of all
video Channels on the System, as provided in this Section 11; and
(iv} reasonable summaiie& of Subscriber complaints
received by the Company during the prior two (2) years, and of the
types of actions taken by the Company in response to the
complaints.
SECTION 12 --FORECLOSURB AND CONDEMNATION
12.1 Upon the occurrence of any event which is reasonably
likely to lead to the foreclosure or other judicial sale of all or
a substantial part of the System, or the tf.~rm i nat ion of any 1 easf.:'~
or mo~tgage covering all or a substantial part of the System, the
Company shall immediately notify the City Manager and the City
Attorney of such occurrence. Such notification shall be treated
as a notification of a proposed change in Control of the Company
and the provisions of Section 14 of this Ordinance shall apply.
12.~ In tne event that the System, or any material part of
the System, is taken, appropriated, or condemned pursuant to law
and tne effect of such taking is to materially trustrate the
ability of the Company to carry out its obligations pursuant to,
and the purposes of this Ordinance, then the Company may terminate
this franchise, which t~~mination shall be deemed to be nc~ for
cause.
SECTION 13 --RECEIVERSHIP
13.1 The Company shall immediately notify the City Manager
and City Attorney, in writing, if: (i} the Company f.i.l(:tS a
voluntary petition in bankrup~cy, a voluntary petition to effect a
plan or other arrangement with creditorsJ (ii) the Company files
an answer admitting the ju~isdiction of the court and the rnateri3l
allegations of an involuntary petition filed pursuant to the
aankruptcy Code, as amended; {iii) the Company is adjudicated
bankrupt, makes an assignment for the benefit of creditors,
applies for or consents to the appointment of any receiver or
trustee of all or ~~ny part of its property, incluJing <All or any
part of the SystemJ ~iv) the Company institutes dissolution or
liquidation proceedings with respect to its business; (v) an order
is entered approving an involuntary petition to reorganize the
business of the Company or tp effect a plan or other arrangement
with creditors or appointin9 a receiver or trustee for the Company
of all at a part of its property, including all or any part of the
System1 or (vi) a writ or warrarit of attachment, execution,
distraint, levy, possession, or any sim1la~ process that may
materially affect the operation of the System shall be issued by
any co~rt against all or any material part of the property of the
Company, including all or any material part of the System.
' • 13.2 In the event that said petition, writ, or warrant shall
not be dismissed or a stay of foreclosure obtained or said
assigruaent, appointment, or proceedings shall not be rescinded or
terminated, within one hundred and twenty (120) days of the
issuance, raaking, or commencement t.hereof, and t:.he effect thereof
is to materially frustrate or impede the ability of the Company to.
carry out its obligations pursuan~ to, and the purposes of, this
Ocdinance, then the City Council may terminate this franchiset
unless:
{i) within one hundred and twenty (120) days after
his election or appointment, any receiver or trustee of the
Company, or, within one hundred and twenty (120) days of the
commencement thereof, the Company itself as a debtor-in-possession
in connection with any sucn reorganization or similar proceedings,
shall hav€ remedied any uncured failure to comply with any
provisions of tnis Ordinance¥ and
(ii) within said one hundred and twenty (120) days,
said ~eciever or trustee 1 ar the Company itself as a
debtor-in-possession, shall nave executed an agreement 1 duly
approved by the City Council and the court having jurisdiction
over the premises, whereby said receiver or trustee or the
Company, in said capacity, assumes all obligations and agrees to
be oound fully oy each and every provision of this Ordinance.
1J.3 The notice required by Section 13.1 hereof shall also be
provided if the Company receives notice that any of the acts or
events specified therein are performed by or regarding any Person
who holds a Controlling Interest in the Company.
13.4 (TH~RE IS NO SECTION WITH THIS NUMBER.)
SECTION 14 --RESTRICTIONS AGAINST
1\,SSIGNMENT AND OTHER TRANSFERS
14.1 Except as approved by City and in this Section 14,
includinq any extensions or modifications of the matters set ·forth
herein, neither this Ordinance, nor any rights or obligations of
the Company pursuant to this Ordinance or in the Syste~ shall be
assigned, transferred, pledged, leased, sublet, ot: mortgaged in
any manner, in whole or in part., to any Person, nor shall title
thereto, either legal or equitabl~, or any right or interest
therein, pass to or vest in any Person, nor shall any change in
Control of the Company occur., either by act of the Company, by
operation of law, or otherwise, without the prior consent of the
City Council. Any such action completed without the prior consent
of the City Council shall be hull and void: provided that, nothing
herein shall restrict the free transfer of partnership interests
or stock of the Company if such transfers do not change the ·
Control of the Company, and no consent shall be required for such
transfers. In the event that the Company shall desire.to transfer
or assign the franchise or any of the rights, privileges, or
immunities contained therein, the City shall have the right of
, •
first retusal to assume such transfer or assignment, on the same
terms and conditions proposed for such transfers, provided such
option is exercised ~ithin ninety (90) days of receipt by the City
of written notice together with the terms and conditions in
sufflcient Qetail to enable the City to exercise its reasonable·
judg~nt with respect to this option.
14.2 '!he Coe~~pany shall promptly notify the City Manager of
any proposed action requiring the consent of the City Council
pucsuant to S~ction 14.1 hereof, by submitting to the City
~anager, ~itn a copy to the City Attorney, a petition requesting
the a~proval ot the City Council. The petition shall tully
dPsc~ib8 the proposed action and shall be accompanied by a
justification for the action and such additional suppo~ting
l~formation as the City Council, the C1ty Manager, or the City
Attorney may ~cqu1re in order to review and evaluate the proposed
action. Upon review of the petition, the City Manager shall
submit the petition, within fifteen (15) days from receipt of the
petition, to the C1ty Council togethe~ with a ~ecommendation for
action on the petition.
14.3 The City Council shall scnedule a public hearing on the
petition, within thirty (30} days after receipt of the petition
tor consent, and shall act on said petition within sixty (60) days
thereafter. For the purpose of determining whether it shall grant
its consent, tne City Council may inquire into: (i) the
qualifications of each ?erson 1nvolved in any action described .in
Section 14.1 hereof, (ii) all matters relevant to whether said
Person will adhere to all applicable provisions of this franchise,
and (iii) all other relevant matters. The Company shall provide
all requested assistance to the City Council in connection with
any such inquiry and, as appropriate, shall secure the cooperation
and assistance of all Persons involved in said action.
1~.4 (THERE IS NO SECTION WITH THIS NUMBER.)
14.5 Nothing in this Section 14 shall be deemed to prohibit
any assignment, pledge, lease, sublease, mortgage, or otter
tranfer of all or any part of the System, or any right or interest
therein, for fioc1ncing purposes, provided that each. such
assignment; pledge, lease, sublease, mortgage, or other transfer
shall be disclosed to. the 'C1ty in writing and~ (ii) set forth in
the financing plan referred to in Sections 2.5.08 and 14 hereof,
including any extensions or modifications therein (except for any
significant modifications in.said financing planj; and (iii)
subject to the rights of the City pursuan~ to this Ordinance or
applicable la~. Nothing in this Section 14 shall be deemed to
affect the right of the Company to lease Channels, portions of
Channels, equipment, and other materials to other Pet·sons.
' •
$£CTION 15 --RESXRlCTlOHS ON X~€ COMPANY
15 .. 1 The Company may uttlize its O"ttn oc any eKisting MATV,
$~ATV, MDS, oas, or other ~ystem 1n any structure tor the
distribution of any S~rvice which would otherw1se be distributed
over tne Syste~, provided that said use shall not relieve the
Company of 1ts obligation to construct, operate, and maintain the
System in said structure pursuant to this Ordinance.
15.2 Tne Co~pany ~ay lease, sell, or other~ise furnish to
Subscribers all ~quip~ent necessary tor the transmission or
receipt of Signals distributed over the System. All fees,
charges, deposits, and associated terms and conditions for
equipment which the Company leases, sells, or otherwise furnishes
to Subscribers shall be set forth in d1sclosures required by
Section 5 ot th1s Or.di~dnce. The Company shall give the City
prior w~itten notice, a lease fi~e (5) working days prior to their
effective dates, of any modifications in such ~ritten
disclosures.
S~CT[UN 16 --LIAIBLITY AND INSURANCE
16.1 Liabilit)' ~ Indemnit:(
16.1.~1 The Comp~ny shall be responsible for any damage,
liability or loss to any real or persondl property of the City or
any Person, and tor any inJury to or death of any individual
Person and any officer, employee, or agent of the CitY: arising
out of or in connection with the construction, operation,
maintenance, repair., ot na.oval of, or an}t other. action of the
Company or any Aftiliate ~ith respect to, the System, any Service
Related Activity, or the distribution of any Service over the
System. The Company shall, at its o~n cost and expense,
reasonably ~eplace, repair, or restore all such property to its
prior condition and snall pay appropriate compensation in the
event of any injury to or death of any individual Person.
Notwithstanding the foregoing, nothing in this Section 16.1.01 is
intended to confer on any third party any rights or remedies in
addition to rights or remedies othec~ise pcovided by law.
16.1.02 The City, its officers, employeeR, and agents
shall not be liable for any loss o~ damage to any real or personal
property of the Company or any Person, or for any injury to or
death of any individual Person, arising out of or in connection
with the construction, opet'ation, maintenance, repair, or removal
of, or other action or event ~ith respect to, the System, any
Service Related Activity, or the distribution of any Service over
the System.
16 .. 1..•')3 The City caay, at any time, in case of fire,
disaster, or otner emergency, as reasonably determined by the
City, cut or move any ot the ~ires, cables, amplifiers,
appliances, or other parts of the System. The City shall not be
liable to tl1e Company, any Affiliated Person, or any other Person
for any acts taken pursuant to this Section 16.1.03 except to the
• •
extent that the City, 1ts otticers, agents, oc employees, commits
any willful misconduct or gross negligence ~ith respect to said
acts. ~hen possible, the Co~pany shall be consulted p~ior to any
such cutting or 11oveaent of any part of thlit System and may be
given the opportunity to pertor~ such ~ork itselt.
16.1~04 Except as provided in Section 16.1.07 hereof,
the City shall not be liable to the Company o~ ~ny other Person
for any damage to oc loss of all or any p~rt ot the System, oc
otherwise, as a cesult of or in connection Wlth the protection,
breaKing through, movement, removal, alterationt or relocation ot
any part of the Syst~m by or on behalf of the Co~pany or the City
connection with any public ~ock, public improvement, alteration
of any governmental structure, any chdnge in the grade or line of
any Street, O[" the vacation, elim1nation, discontlnuat).on, ot"
closing of any Street, as provided in this Ord1nance, except to
the extent caused by the ~illful misconduct or negligence of the
City, its officers, agents, oc employees -.olitn respect to such
act,s ..
16.1.05 The City, its officers, employees, and agents
shall not be liable to the Company or any Affiliated Person or any
other Person for any special, 1ncidental, consequential, punitlve,
or other damages as a result of the pcoper and reasonable exercise
of any right of the City pursuant to this Ordinance, including,
without limitation, the rights at the City to terminate, amend, or
otherwise modify all or any part ot this Agreement or the
franchlse granted herein.
16.1.06 The Company shall: (i) defend, indemnify~ and
tlOld ha cmless the City and the Joint Powers, thei c officers,
employees, and agents, from and against all liability, special,
incidental, conseque~tial, punitive, and all other damage, cost,
and expense (including reasonable attorneys• fees) arising out of
or in connect1on with the !ranchising, construction, operation,
maintenarica, repair, or removal of, or any other action or event
~ith respect to, the Systea, any Service Related Activity, or the
distribution of any Service over the Syste•; and (ii) cooperate
with the City, at no cost to tne Company, by providing such
assistance as may be requested by the City, in connection with any
claim arising out of or in connection with the franchising process
and the execution of, or the award of the franchise pursuant to,
this Ordinance.
16.1.07 As between the City and the Compan~, the
foregoing liability and indesnity obligations of the Cdmpany
pursuant to this Section lG.l shall not apply to any Services
distributed over the Access Channels, the Government Channels, or
the portion of the Institutional Cable available to and used by
the City .to the extent that the Company has not participated in
the production of said Services or any other act forming the basis
of s~id claim. Further, the Company shall not be liable or be
obligated to indemnify, defend; and hold harmless the City and the
• •
Joint Powers pursuant to this Section 16.1 with respect to (i.) any
negligent or wrongful act or tailure to act by the C.ity, its
officers, employees, or agents, which is clai~ed, asserted, or
alleged by th.ird parties1 (ii) any claim challenging the authority
of the City to grant a cable television franchise, or challen9ing
the manner in which such authority is exercised or enforced; (iii)
any other issues existin9 in cla h1s currently ~nd ing or
threatened against the City; ot· ( iv) any action or intervention by
the City or the Joint Powers pursuant to Section 18.2 of this
Ordinance.
16.2 Insurance
ib.2.01 Prior-to the Closing, the Company :3hall, at
its own cost and expense, obtain and furnish to the City Manager,
a liability insurance policy or policies, includin9 a
broadcasters' liability insurance policy or policies, in a form
reasonably acceptable to the City Attorney, covering each and
every liability arising out of this Ordinance. Said policy or
policies snall take effect as of the Closing and shall be issued
by a company duly licensed to do business in the State and
acceptable to the City Manager. At or before the Closing, the
Company shall deliver to tne City ~anager, in a form acceptable to
the City Attorney, (i) evidence demonstrating that the premiums
for said policy(ies) have been paid; and {ii) an endorsement to
said .f'olicy(ies) which shall state that: (a) said policy(ies)
specifically cover(s} each and every liability specified in this
Ordinance, including Section l6.l hereofi (n) the City, its
officers, employees, and agents are named ~s additional insured
parties under the policy{ies) with respect to each and every form
of liability referred to in Section 16.1 h~reof; (c} said
policy(ies) cover(s} any claim made during or following the
termination of this Ordinanc~ to the extent that such claim
relates to any acts or omissions occurin9 prior to said
termination, regardless of whether th~ policy(ies) is (are) in
effect at the time'such claim is sade; and (d) •rt is hereby
understood and agreed that this policy may not be cancelled nor
the intention not to renew be stated until thirty (30) days after
receipt. by the City Manager and City Attorney, by reqistered mail,
of a written notice of such intent to cancel or not to renew."
Within seven .. (7) days after receipt by the City Manager and City
Attorney of said notice of intent to cancel or not to renew, and
in no event later than fourteen (14} days prior to said
cancellation or nonrenewal, the C01apc1ny shall obtain and furnish
to the City Manager, replacement insurance policies in a form
reasonably aG"ceptable to the City Att.orney.
16 .• 2.02 The policy or policies fur:nished pursuant to
this Secti.on 16.2 shall be in the minimum co.bined amount of Ten
(10) Million Dollars ($10,000,000) for bodily injury, property
damage, and liability in connection with the disLribution of any
Service over the System. The foregoing minimum limitation shall
not prohibit the Company from obtaining a liability insurance
l ,-·,
• • policy or policies in excess of such limitation, provided that the
City, its officers, employees, and agents shall be named as
additional insurjd parties to the full extent of any li2itation
contained in any suey policy or policies obtained by the Company.
16.2.03 The policy or policies furnished pursuant to
this Section 16.2 shall be maintained by the CoMpany throughout
the term of this franchise and for such other period of time
during which the Company operates the System, including the period
following termination of this franchise, as provided in Section
2.3.04 hereof.
16.2.U4 The City Council may, following the effective
date of this Ordinance, annually adjust th~ minimum limitation of
the liability 1nsurance policy or ~olicies specified in this
Section 16.2 hereof by the rate of inflation for such year.
16.2.05 The legal liability of the Company to the City
and any Person for any of the matters which are subject of the
liability insurance policies required by this ~ection 1o.2,
including, without limitation, the Companyts indemnification
obligation set forth in Section 16.1.06 hereof 1 shall not be
limited by said insurance policies nor by the recovery of any
amounts thereunaer, provided that the liability of the Company to
the City or any Person shall be reduced by the amount of any
payment actually received by the City or such Person pursuant to
said policies from the applicable carrier or carriers.
16.3 In addition to furnishing the liability insurance policy
or policies required by Section 16.2 hereof, the Company shall
obtain and furnish to the City Manager an insurance policy or
policies, in a form reasonably acceptable to the City Attorney, to
protect the City and the Joint Powers, their officers, employees,
and agents against any and all liability for claims for Workmens'
Compensation benefits arising out of or in any way related to the
construction, operation, maintenance, repair, or. reJBOval of the
System, any System Related Activity, or the distribution of any
Service over .the System.
16~4 With respect to any insurance policies under which the
City and the Gompany are not co-insureds, the City and the Coapany
each hereby waive all rights of recovery against the other and the
authorized representative of the other, and any rights of
subrogation of either party's insurer, to the extent any loss or
damage is covered by such insurance policies maintained by either
party, whether or not such loss or damage is caused by the fault
or negligence of the other party, provided that such waiver shall
be limited to the extent the insurance maintained by the City or
the Company relating to this Ordinance or the System does not
permit the foregoing waiver or if the covetage under any such
policy would be invalidated as a result of such waiver.
• • SECTION 17 SPECIFIC RIGHTS AND REMEDIES --·------~----~--~~~--~~~~~~~~~~
17.1 The City shall have the specific rights and remedies
set forth in this Section 17. These rights and remedies are in
addition to all other rights or remedies available to the City io
order to enforce the provisions of this Ordinance.
17.2 Securitr Fund
17.2.01 The Company shall deposit ~ith the Dicector of
Finance the amount of One Million Dollars ($1,000,000), which
amount shall constitute the Security Fund. One Hundced Thousand
Dollars ($100,000) of the Security Fund shall be provided 1n cash,
at or before tr1e sixtieth (60th) day after the effective date of
this Ordinance, to the City Attorney, and the balance shall be
provided in a form reasonably acceptable to the C1ty Attorney,
provided that the Company may, at its discretion, provide a
letter of credit in two parts, as follows:
(i) a letter of credit in tt1e amount of Two
Hundred Fifty Thousand Dollars ($250,000} at or before the
sixtieth (60th) day following the effective date of this
Ordinance; and
(il) a letter of credit for the balance on or
before the ninetieth {90th) day following the effectiYe date of
this Ordinance.
The Security Fund shall be reduced to Five Hundred Thousand
Dollars ($500,000) upon substantial completion of construction of
the System by replacing the original letter of credit with a
letter of credit in the amount of Four Hundred Fifty Thousand
Dollars ($450,000) and by reducing the cash portion of the Fund to
Fifty Thousand Dollars ($50,000}. At any time after the earlier
to occur of: (A) the third (3rd) year of operation of the full
System, or (B) the fifth {5th) anniversary ot the e~fective date
of this Ordinance, the City Manager, if he determines that the
Company has complied with the terms of this Ordinance, may reduce
the letter of credit portion of the Security Fund to an
appropriate amount not to exceed Two Hundred Thousand Dollars
($200,000) or may eliminate the letter of credit portion of the
Security Fund. Said letter of credit or other instrument shall in
no event require the consent of the Con1pany prior. to the
collection by the City of any amounts covered by said letter of
credit or other instrument. The cash amount 91ven pursuant to
this Section 17.2.01 shall be deposited in an 1nterest bearing
·account separate from the City's other tunds, with interest
thereon accruing t6 ~he benefit of the Company.
17.2$02 The Security Fund shall serve as security for:
(!) the faithful performance by the Company of all material
provisions of this Ordinance; (ii) any expenditure, damage, or
loss incurred by the City occasioned by the Company's unexcused or
uncu~ed failure to materially comply with all rules, regulations,
orders, permits, and other directives of the City Council or the
City Manager issued putsuant to this Ordinance; (iii) the payment
by the Company of all liens and taxes, and all damages, claims,
\ • •
costs o~ expenses which the City h~s been compelled to pay or
incur by reason ot any act o~ default of the Company, and all
other payments due the City from the Company pursuant to this
O~dinance~ (iv) the loss ot any payments required to be made by
the Company to the City which would have been received by the City
but for the Company's failure to perform its obligations pursuant
to this Ordinance, during the period of time between the Company's
unexcused or uncu~ed failure to perform and the date on wh1ch the
City taKes over, or authorizes any other Person to take over, the
construction, operation, or maintenance of a Broadband
Communications Facility in the Se~vice Area necessitated by such
failure; and (v) any costs incurred by the City in connection ~ith
the award of any franchise for, o~ other authorization to,
const~uct, ope~ate, or maintain a Broadhouse Communications
Facility in the Service Area necessitated by such failure. The
witl1drawal of amounts from the Security Fund shall constitute a
credit against the amount of the applicable liability of the
Company to the City but only in the amount of said ~ithdrawal.
17~2.03 Throughout the term of this franchise, the
Company shall maintain the Security Fund in the amount specified
in this Section 17 or such other amount as may from t1me to time
be agreed to by the City Counc1l and the Company. ~ithin thi~ty
(30) business days after receipt of notice from the City Manager
that any amount has been withdrawn from the Security Fund, as
provided 1n Section 17.3 hereof, the Company shall restore the
Security Fund to the amount specified in this Section 17r provided
that said resto~ation obligation shall be suspended during the
period of any judicial challenge by the Company to the propriety
of said withd~awal from the Security Fund, and provided further
that, if it is determined that said withdrawal by the City was
improper, the City shall restore to the security Fund an amount
equal to the improperly withdrawn amount plus all interest that
would have accrued thereon but for the withdrawal, as reasonably
determined by the Director of Finance, and shall pay to the
Company ~11 charges or fe~s incurred by the Company as a result of
such withdrawal. ·
17.3 Withdrawals from the S!curity Fund
17.3.01 If the Company fails: (i) to make any payment
required by this Ordinance within the time fixed herein~ (ii) to
pay to the City, within thirty (30) working days after receipt of
written notice, any taxes or liens relating to the System that are
due and unpaid: (iii) to pay to the City, within thirty (30)
working days after (eceipt of written notice from the City
Manager, any damages, claims, costs or expenses which the City has
been compelled to pay or incur by reason of any act or default of
the Company;. or (iv) to comply, within thirty (30) working days
after receipt of written notice from the City Manage~, with any
provision of this Ordinance which the City Manager reasonably
determines can be remedied by an expediture of an amount in the
security Fund, then the City Manager may instruct the Director of
• •
Finance to withdraw the amount thereof from the Security Fund and
pay it to the City, provided that, prior to each such withdrawal,
(A) the Company shall be afforded an opportunity to cure any of
said failures within thirty (30) days after written notice from
the City Manager that the withdrawal is to be made, or (B) if such
cure cannot be reasonably accomplished within said thirty (10)
days, then the Company shall have a reasonable time to cure; and
provided further that, the Company commences such cure within said
thirty (30) days arid diligently pursues such cure to completion.
17.3.02 Interest due on any payment required to be
made by the Company pursuant to this Ordinance shall not begin to
accrue for a period of thirty {30) business days after receipt by
the Company of th~ written notice of withdrawal f~om the Security
Fund of the principal amount due, as provided in this Section 17.
Thereafter, if the Company nas not made the required restoration
to the Security Fund, interest on said amount shall accrue at the
rate specified in Section 10.5 hereof. The City Manager may
instruct the Director of Finance to withdraw ,from the Security
Fund and pay to the City said interest periodically up to the date
on which the Company makes the required principal payment,
provided that the Company shall not be obligated to pay said
inte~est with said principal payment to the extent said interest
has been already withdrawn by the Director of Finance at the
instruction of the City Manager.
17.3.03 In addition to the withdrawals authorized by
Sections 17.3.01 and 17.3.02 hereof, the City Manager may instruct
the Director of Finance to withdraw from the Security Fund and pay
to the City the amounts specified in subsections (i), (ii), or
(iii) of this Section 17.3.03, for the following material failures
by the Company to comply with the provisions of this Ordinance,
provided that, such material failures are not cured by the Company
to the setisfaction of the City Manager within thirty (30) days
after receipt of written notice by the Company from the City
Manager, subject to the cure p::!riods set forth in Section 17.4.03
·hereof:
(i) Failure to complete construction of the System
in accordance with the ~ched1~le for construction, as provided j:n
Appendix B to this Agreement: up to Ten Thousand Dollars ($10,000}
per month, for each month or part thereof that such delay
continues, subject to tne force majeure clause set forth in
Section 20.7 hereof;
(ii) Failure td furnish, maintain, and continue to
offer, Service to any Persori within the Service Area upon the
order of the ~ity Manager, as provided in Section 9.3.06 hereof:
One Hundred Dollars {$100) per day, for each day or part thereof
that such failure continues up to a maximum of One Thousand
Dollars ($1,000) per day for single multipl~ dwelling unit, but in
no event more than Fifty Thousand Dollars ($50,000) during each
year; or
I i I
I
• •
(iii) Refusal to provide the City with any books,
records, or other documents, as provided in this Ordinance: ~ive
Hundred Dollars ($500) per day, for each day or part thereof that
such failure continues.
The foregoing amounts are civil penalties imposed by the City
for Company violations of this Ordinance.
17.3.04 Within one (1) week after each of the
foregoing withdrawals, the City Manager shall notify the Company
in wr:-iting of ti1e date and amount thereat.
17.4 Material Breach
17.4.01 In the event that the Company fails to comply
with a material pr:-ovision of this Ordinance, a pr-ovided i 1 Section
17.4.02 hereof, then, in accordance with the procedures provided
in Section 17.4.03, the City Council may either:
{i) Impose civil penalties on the Company is an
amount determined by the City Council to be appropriate under the
circum$tances after notice to the Company and a public hearing at
which evidence of the nature and extent of the failu~e and
Company's rebuttal is taken;
(ii) SeeK money damages from the Company as
compensation for said material breach; or
{iii) Elect to revoke the franchise granted pursuant
to this Ordinance for cause.
17.4.02 Failure to comply with a material provision of
this Ordinance shall include any of the following acts or failures
to act by the Company or any Affiliated Person, or any of the
following events, unless excused by the City; provided that, the
Company shall first be given written notice of such material
breach and an opportunity to cure the same for thirty (30) days
from receipt of such notic~, or if such breach cannot be uured
withln said thirty (30) days, then the Company shall have a
~easonable period of time to cureJ and provided further that, the
Company commences such cure within thirty (30) days and diligently
pursues such cure to completion:
(i) {THERE IS NO SUBS~CTION WITK THIS NUMBER.)
{iiJ Substantial failure to satisfy the
requirements regarding the System characteristics or to meet the
technical performance standards and testing requirements, as
provided in Appendix A to this Ordinance:
(iii) Substantial failure to comply with the
standards, terms, or schedule for construction, as provided in
Sections 6.1 t.h,OI!gh 6.15 har~of and Appendix B to this ordinance,
• •
provided that, with respect to a delay in construction, said
failure shall not arise in the event of a delay of less than one
hundred and twenty (120) days in meeting the schedule for
construction;
(iv) Substantial failure to maintain the mix, level
and quality of services within the broad category of video
programming and other services initially offered on the System in
accordance with Section 3.10 of this Ordinance, provided however
that nothing in this paragraph (iv) shall imply any regulatory
autho~ity or power of censorship over the content of programming
on the Company Channels or the Leased Channels;
(v) Abandonment of the System, in whole or in
part, without the prior written consent of the City Council:
(vi} Substantial and repeated failure to comply
with the requirements of Sections 3.7 through 3.9 hereof and with
the provisions of Section 612 of the Cable Act;
(vii) Substantial. failure to supply the Access
Channels and related facilities and equipment to the CAO within
one hundred and twenty (120) days after the date by which said
items must be supplied, as provided in Section 4 hereof and in
Appendix E to this Ordinance;
(viii) Substantial failure to supply the Governmental
Channels, Institutional Cable, and any related equipment,
facilities, and other support, as provided in Section 4 hereof and
in Appendix F to this Ordinance:
(ix) Imposition of any fee, charge, deposit, or
associated term o·c condition, for any Service which is not set
forth in, or which is materially inconsistent with, disclosures in
writing made pursuant to this Ordinance;
(x) Substantial failure to comply·with the
interconnection requirements, as provided in this Ordinance~
(xi) Substantial failure to comply with the EEO
provisions of Section 634 of the Cabla Act;
(xii) Substantial failure to comply with the
Subscribers' rights, as provided in Section 9 hereof, and with the
provisions of Section 631 of the Cable Act;
(xiii) Substantial failure to make any of the
compensation payments, as'provided in Section 10.1 hereof, other
payments required by this Ordinance, or to maintain the Security
Fund in the amount required by Section 17 hereof;
(xiv) Substantial failure to comply with any rules,
regulations, orders, or otller directives of the City Council or
• •
City Manager issued pursuant to this Ordinance relating to a
material aspect of this Ordinance;
{xv) Any failure to comply with the provisions of
Section 10.1.03 or Section 10.1.05, hereofr
(xvi} The taking of any action which requires the
approval or ~onsent of the City Council without having first
obtained said approval or consent, as provided in Sections 12
through 14 hereof;
(xvii} Failure to furnish and maintain, throughout
the te~m of this Ordinance, the liability insurance policy or
policies, as provided in Section 16 hereof;
(xviii) Persistent failure to furnish each plan
required by the City pursuant to this Ordinance;
(xix) To engage in a course of conduct intentionally
designed to practice any fraud or deceit upon the City, any
~ubscciber, or any other user of the System~
(xx) (THBRE IS NO SUBS8CTION WITH THIS NUMBER.)
(xxi) The conviction of the Company, any Person
holding a Controlling Interest in the Company, any director or
officer of the Company or of any Controlling Person, or any
employee or agent of the Company or of any Controlling Person
acting under the express direction or with the actual consent of
the Company, its Directors or officers of any criminal offenser··
·including, without limitation, bribery or fraud, arising out of or
in connection with this Ordinance or any other agreement or
requirement to construct, operate, or maintain a Cable System or
Broadband Communications Facility in the Service Area or
elsewhere, the award of the franchise granted pursuant to this
Ordinance, or any act to be taken following the effective date of
this Ordinance by the City, its officers, employees, or agents
relating or pursuant to this Ordinance, provided that the right to
terminate this franchise in the event of said convictions shall
arise only with respect to any of the foregoing convictions of the
Company itself and, in the event of the conviction of any of the
other Persons specified in this subsection (xxi), if the Company
fails to disassociate itself from, or terminate the employment of,
said other Persons with respect to activities in the Service Area
or any other activities affecting the System pursuant to this
Ordinance within thir:ty {30) days of such convictioni
(xxii) The conviction of any City officer, employee,
or agent of the offense of bribery or fraud with respect to this
Ordinance which. arises out of or in connection with any
intentional action by the Company, any Person holding a
Controlling Interest in the Company, any director or officer of
the Company or of any Contolling Person, or of any employee or
• •
agent thereat acting unde~ the express direction or actual consent
of the foregoing which act was undertaken for the benefit of the
Company;
(xxiii) Any false,entry knowingly made in the books of
accounts or records of the Company, or any substantial false,'
statements knowingly made in any report to the City or otherwise
by the Company, any director, otticer, or other Person holding a
Controlling Interest in the Company, any Affiliated Person, or any
employee or agent of the Company acting under the express
direction or with the actual consent of the Company with the
intent to deceive the City: or
(xxiv) (THERE IS NO SUBSECTION WITH THIS NUMBER.)
Notwithstanding the foregoing, if, as a result of a failure
o~ alleged failure to comply with a material provision of this
Ordinance as delineated in the foregoing subsections (i} through
(xxiii) of this Section 17.4.02, the Company is unable to comply
with any other material provision(s) which necessarily and
directly arise(s} out of said failure or alleged failure as
delineated in said subsections, such inability to comply with such
other provision{s) shall not be deemed to be an independent
failure to comply with a material provision of this Ordinance.
17.4.03 The City Council shall exercise tne rights
provided in Section 17.4~01 hereof in accordance with the
following procedures:
(i) The City Manager shall notify the Company, in
writing, of an alleged failure to comply with,a material provision
of this Ordinance which notice shall specify the alleged failure
with reasonable particularity. The Company shall, within thirty
{30} days after receipt of said notice or in the event such
failure cannot be reasonably cured within said thirty (30) days,
within a reasonable time, provided the Company commences cure
~ithin said thirty (30} days and diligently prosecutes such cure,
either cure such alleged failure or, in a written response to the
city Manager, either present facts and arguments in refutation or
excuse ot sucn alleged failure or .state that such alleged failure
will be cured and set forth the method and time schedule for
accomplishing said cure.
(ii) The City Manager shall investigate: (a)
whether a failure to comply with a material provision has
occurred~ (b) whether saia failure is excusable~ rnd (c) whether
said failure has been cured or will be cured by the Company.
. (iii) If tne City Manager determines that a failure
to comply with a material provision has occurred and that either
saio failure is not excusable or has not been or will not be cured
by the Comp~ny, then the City Manager shall so notify the City
Council in a written report which may recommend action to be taken
by the City Council. The City Manager shall provide notice and a
. _:.1
• • copy of said report t.o the Company. In the event that the Cit'
Manager. determines that. said failure either has been or will ~e
cured~ or that said tailure is excusable, said determination shall
conclud~ the investi9ation ..
(iv) In the evc~t that the i~vestigation is not
concludEde as provided in subsection {iii) above, the City Council
st\allJr withi.n thirty (30) days of receipt of said report from the
City Manager, notice a public hearing at which the Company shall
have tne oppot:tuni ty to respond to the claim tha.t a mater: ial
breach has occur~ed and to present facts and arguments in
refutati.on or excuse of such alleged breach, or to demonstrate
that such tailure shall be cured as provided in this Ordinance.
(v) After the conclusion of such public nearing,
or at any tim•:: u~:-•on its own motion, the City Council may take any
of tne act1ons provided in Section 17.4.01 hereof, provided that,
if the City Council acts on its own motion, it shall follow the
procedural steps regarding notice, opportunity to cure, and public
hearing which are set forth in this Section 17.4.03.
17.5 !ignts upon Terminatio~
17.5.01 In the event of any termination of this
tcanc~ise, the City Council may either: (i} direct the Company to
operate the System on behalf of the City pursuant to th€
provisions of this Ordinance and such additional terms and
conditions as are equitable to the City and the Company, for a
period of up to twelve {12} months; or (ii) authorize any other
Person to operate the System on behalf of the City or· otherwise
upon such te.rcts and conditions as are equitable to the City and
the co~pany. The Company agrees that, in the event of a
termination of any other agreement(s} between the City and third
parties to construct, operate, or maintain any other Broadband
co.muoications Facility in the Service Area, the Company may
operate said. Faci 1 i ty on benal f of the City on such terms and
conditions as may be agreed to by the Company and the City Council
in their sole discretion.
17.5.02 Upon the termination of this franchise due to
the expiration of ~he term of the franchise gr~nted herein, the
company shall be entitled to the return of the Security Fund
deposited pursuant to Section 17 hereQf,, along with all interest
thereon, or any portion thereof as remains on deposit with the
city M.anaqer at said terminati!)n ~ after account is taken for all
offsets necessary to compensate th~ City for any uncured failure
to comply with any provision of this franchise as herein provided,
provided that if the Company continues to operate the System
following the termination of this Ordinance, the Company shall not
be entitled to a return of the Security Fund until the end of such
continued operation~ In the event of a termination of this
franchise for cause due to a material breach by the Company or
• •
otherwise, or a ter~ination pursuant to ~ection l3.2 hereof, said
Security Fund shall become the property of the City to the extent
necessary to cover any costsr loss, or damage incurred by the City
as a result of said termination or material breach, provided that
any amounts in excess of said costs, loss or damage shall·be
refunded to the Co•pany.
17.5.01 In the event of a ter~ination of this
franchise due to a aaterial breach of this Ordinance by the
Compant, as provided in Section 17 her€of, or any other
t-:;cmination for cause as t>rovided in this Ordinance (other than a
termination tor abandonment), the City Council may order that the
entire System shall become the sole prope~ty of the City, in which
event the Company shall be entitled to a payment from the City for
the System equal to an eq~itable price for the System at the time
of tne termination. In the event of such termination and receipt
of payment schedule between the Company and the City, the Company
snall:
(i) cooperate with the City, or with any Person
authorized by the City Council to operate the System, in main
taining the diStribution of Services over tne System during such
transfer of ownership period;
(ii) promptly execute all appropriate documents to
transfe~ to the City, free of any and all encumbrances, title to
tne Sy -~mf as well a.s all contracts, leases, licenses, permits,
rights-of-way, and any other rights necessary to maintain the
System and tne distribution of Services over the System; and
{iii} p~omptly supply the City with all necessary
records to operate the System, including, without limitation, all
Subscriber records and plant and equipment layout documents.
l7.5.04 In the event of termination of this Ordinance
due to abandontlent of the entire System, without the prior written
consent of the City Council, the enti=-e System shall become the
$Ole property of the City, the Company shall not be entitled to
any payment from the City for all or any part o! the system, and
the Company shall:
{i) cooperate with the City, or with any Person
authoirzed by the City Council to operate the System, in
maintaining the di$tribution of Services over the System during
such transfer of ownership period;
(ii) promptly execute all appropriate docu~ents to
transfer to the City, free of any and all encumbrances, title to
the ~ystem, as well as all contracts, leases, licenses, permits,
rights-of-way, and any other rights necessary to maintain the
System and the distribution of Services over the System; and
·-·-..,:'
• •
(iii) pro.W~ptly supply the City will all necessary
records to operate the Syste•, iocludin9, with~ut limitation, all
Subscriber records and plant and equi~ent ldyout documents.
The Company shall be dee-.ed to have abandoned thP. System tf the
Company has deliberately ceased to operate the same fo.:-thi.rty
( ]0) days without intent to restoc:-e operation.s ..
17 .. 5.0'5· Upon ter~tination of this Ordinance, other than
a termination not for cause as provided in this Ordinance, if so
directed by the City Council, the Company shall, at its own cost
and expense, promptly c~move that part of the System located
in the St~eets and shall replace or repair and ~esto~e to
serviceable condition all affected Streets and governmental
structu~es therein in such manner as may be reasonably specified
by the City~
17.5.06 Upon termination of this franchise not for
cause, including a termination due to the expiration of th~ term
of the franchise, including any renewal tnereof, the City Council
may in its sole discretion elect to: (i) in the event of
expiration of the term ot the franchise, and non-renewal pursuant
to the terms of this O~dinance or termination of this franchise
pursuant to Section b.3 1 hereof, direct the Company to remove that
part of the System located in the St~eets, pursuant to this
Section 17; or {ii) purchase all or any part of the System at a
price to be agr-eed to by the City and the Company. In the event
of a termination not for cause, 1E the Company sells all or a
portion of the System, the Company shall not purport to confer any
rights on any purchaser to operate the SysteAl in a manner which
requires a franchise pursuant to then applicable law, and nothing
contained in tnis Ordinance or the sale transaction shall obligat~
the City to grant a franchise to any purchaser of all or a portion
of the System. In tne event of a purchase by the City and receipt
of payment by the Company from the City, or agreeaent upon an
appropriate payment schedule between the Co.pany and the City, the
Company shall: (a) cooperate with the City, or with :::\ny ptrson
authorized by tne City Council to operate the System, in
maintaining the distribution of Services over the System during
such transfer of owners~ip period; (b) proaptly execute all
appropriate documents to transfer to the City, free of any and all
encumbrances, title to the System, as well as all contra~ts,
leases, licenses, permits, rights-of-way, aod any other rights
necessary to maintain the Systea and the distribution of Services
over the System; and (c) proRtptly supply the City ~ith all
necessary reco~ds to operate the System, including, without
limitation, all Subscriber records and plant and equipment layout
documents.
17.5.07 In the event of any acquisition of the System
by the City pursuant to this Section 17.5, and subject to the
requirements of applicable law, (i) tne City shall notbe required
to assume any of the obligations of a~y collective ba~Jaining
• •
agreements or any other: employment contC'acts held by tne Co~apany
or any other obligations of the Co•pany to ahy of its otficers,
employees, or agents, includi~g, ~lthout li~it~tion, ~ny pension
or other cetirement, or any insurance ooligatiOn$; and (ii) the
Cit~,. may lease, sell, operate, or other~i.se dispt~se of all or an~·
par.t of the Syste~ in any manner, provided that the Company may
seek tt"le award of any fr~nchise to construct, opecate# or maintain
the System in connection with any such sale~
17.5.08 (TH!:':!<E IS ~0 SIJBSECriON ~lff. 'frii!> NUM~SR.}
17.6 (TH8R8 IS NO SUt3SECTION ~lfH HHS 1HHIB£R .. )
SECTION 18 --(THERE IS NO SECTI0N ~ITH THIS NUMB~R.)
SECfiON 19 RENewA~ OF FRANCHISE
19.1 Subject to Section 626 of the Cable Act, the City
reserves the eight to gcant or cetuse to g~ant any rene~al ot the
franchise following the expication of the initial term of the
franchise and to cond.\ t ion any such renewal 'Jpon the Company's
full compliance with all amendments or other modifications of
this Ordinance as may oe specified by the City Council, provided
that the Company's failure to agree to comply fully ~ith all said
amendments shall not be grounds tor denial of renewal under
Section 626(c)(l)(A) of the Cable Act; provided further, that this
exclusion shall not in an¥ way alter any other c1ghts the City has
undec Section 626 of the Act, 1ncluding without li~itation the
right to condition approval on the matters cefe~red to in Section
626(c)(l)(C) and (D) of the Cable Act.
19.2 At any time prior to the expiration o( the initial term
of the franchise, the Company ~ay petition the City Council for
amendments of this franchise. As a result of such petition,
the City Council may grant a rene~al of the franchise for a period
of up to fifteen (15} additiQnal years subject to the Company's
petition or modification the~eof.
SECTION 20 --SUNDRY PROVISIONS
20.1 The Appendices to this Ordinanc~, attacned hereto, and
all portions thereof and exhibits thereto, are, except as
ott1erwise specified in this Ordinance or in said Appendices,
incocporated herein by refer~nce and expressly ~ade a part of this
Ordinance. The procedures for approval of any subsequent
amendment or modification to said Appendices shall be as set forth
in this Or:dinance or the Appendices. The Co!Rpany shall not
commence construction of the System until Lt obLains approval of
the plan required to be approved pursuant to Section 6.14 of this
Ordinance by the City Manager, provided that, the City Manager may
• •
authorize the Company to commer1ce construct too pen.jing f ih.al
approval of said plan. The City Council m~y ter~inate this
Franchise, which termination shall be deemed to be a ter~inatioo
for cause, if, within six (6) monihs after the due date of all
plans.~equired to be approved pursuant to this Ordinance, unless
other~i.se extended by the City Council, such plans have not been
deliverd to the City.
20.2 Any action to be taken by the City Council pursuant to
this Ordinance shall be taken in accordance with the ~pplicable
provisions of federal, state, and local la~, as said Law mar be
amended or modified throughout the te~m of this Ordinance. In
addition to such other requirements as are or may be set forth 1n
said federal, state, and local law, any such action shall oe taken
only pursuant to a resolution or ordinance duly adopted by the
City Council after notice to the Company and an opportunity fo~
the Company to be heard regarding said action. An~ action to be
taken by the City Manager pursuant to this Or:-dirtaJtce shall be
embodied in a w~itten document and snall be accompanied by notice
to the Company and an opportunity tor tne Company to presents its
views regar.ding said action.
20.3 For the purposes of all proceedings before the C1ty
Manager or the City Council pursuant to this Ordinance, wherever
this Ordinance requires that an action be taken or not taken by
the Company or the City on the basis of operational, technical, or
economic feasibility or viability, the Compay sha.ll ha11e the
burden of demonstrating the existence or lack, as applicable in
the case of a particular p~ovision of this Ordinance, o~ said
feasibility o~ viability. Nothing in this Section 20~3 shall be
interpreted as being in conflict with the provisions of Section
19 of this Ordinance.
20.4 (THEKE IS NO SECTION wiTH THIS NUH8£R.)
20.5 (THERE IS NO SECTION ~ITH THIS ~UMBER.)
20.6 In the case of any ambiguity or inconsistency oet~een
this Ordinance and any Appendix to this Ordinance, this Ordinance
shall prevail.
20~7 Notwithstahding any other provision of this Ordinance,
the Company shall not be liable for delay in pertor~ance or
failure to perform, in whole or in part, its obligations pursuant
to this Ordinance due to strike, boycott, or lockout; war or act
of war (whether an actual declaration is made or not):
insurrection7 riot1 act of public enemy; accident; fire; flood,
storm, earthquake, lightning, o~ other act of God: technical
failure, where the Company has exercised all due care in the
prevention thereof; or other events, to the extent that such
causes or other events are beyond the control of the Company; and
any such delay or failure to pe~form shall not be considered
• •
a .breach of this Ordinance~ In the event that delay in
performance or failure to perfo~m affects only part of the
Company's capacity to perform, the Company shall pe~for~ to th~
extent that it is able to do so. the Company agrees that in
correcting said cause(s) within its control and in effecting such
partial pe~f9~mance, it shall take all reasonable steps to do so
in~~ expeditious a manner as possible. The Company sh~. l utilize
its best eftort to notify the City ~anager of t~e occurrence of an
event covered by this Section 20.7 within five (5) working days of
the date upon which the Company learns or should have learrned ct
its occurrence.
20.8 Every notice, order, petition, document, or other
direction or communication to be served upon the City or the
Company shall be accomplished by personal delive~y or by certitied
mail, return receipt requested. The Company shall have the
obligation to keep the City informed of 1ts present mailing
address, and the City may always use the &ddress of the otfice
located in the Service Area for service o E s uc11 do cum en t;;.
Every suc!1 co;l'!munication to i..~·~e City or tne City Council
shall be sent or delivered to the City Manager and as applicable,
the City Attorney. The mailing of such notice, direction, or
order shall be equivalent to direct personal notice and shall be
deemed to have been given when mailed. Personal delivery of ~ny
notice shall be deemed to occur upon receipt of the notice at the
appropriate otfice(s) or by the appropriate individual(s). The
foregoing names and/or addresses may be changed upon provision of
appropriate notice by either party.
2099 (THER~ IS NO SECTION riiTH THIS NUMBER.)
20.10 (TH~RE IS NO SECTION WITH THIS NUMBER.)
20.11 All of the provisions of this Ordinance shall apply to
the City, the.~oint Powers where appropriate, the Company, and
their respective successors and assigns.
20~12 (THERE IS NO SECTION: WITH THIS NUMBER.)
20.13 I any section, subsection, sentence, clause, phrase,
or other portion of this Ordinance is, for any re~son, declared
invalid, ·tn whole or in part, by any court, agency, commission;
legislative body, or other.authority of competent jurisdiction.
such portion shall be deemed a separate d~s.tinct, and independent
port~on. Such d~claration shall not affect the validity of the
remaining portions hereof, which other portions shall continue in
full force and effect.
20.14 The headings contained in this Ordinance are to
facilitate reference only, do not form a part of this Ordinance,
and shall not in any way affect the construction or interpret
•
• •
interpretation hereof. All references to any gender or number
shall be deemed to include all others, as the context may
require.
20.15 (TH~RE IS NO SECTION wiTH ·.rrus NUMBEH.)
20.16 (TH8~E: IS NO SECTION WITH THIS NUMHER$)\
20.17 The Company and the City agr-ee that any and all claims
asserted by or against the City arising under this Q("dinance or
related thereto shall be heard and determined either by a cou~t of
the United States located in the Northern District of California
("Federal Court") or in a court of the State of Cal1fornia tor the
County of San Mateo or the County of Santa Clara ("California
Sta t.e Court").
20.18 (THEaE IS NO SECTION WITH THIS NUMBER.)
INTRODUCED february 23, 1987
PASSED: March 9, 1987
A'if~S: Bechtel, Cobb, Fletcher, Klein, Levy. Patitucci, Renze·i, Woo11ey
NOES; None
ABSTE:l'll'TIONS: None
ABSENT: Sutori us
APPROVED:
Mayor .
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•
Exh.ibit 1 to the
Franchise Cr.ii"•"~.t•
•
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•
MAP OF SERVlCE_~g~
Exhib~t l to the
Fr..!n..ch i se Or'dil\af\re.
Th~ rwo (ruu-hatc
are~ta to till! lafr _
tool..:nl' tttr.r.ftode•
vhich, H tht:y are-
1for:orporatl'd by t~ Cit
M Palo liho, IJI~<t-l 1
beca.w part of Ute
toery t.:a AtC'a aile! t hul·
St'r'Vt!d by lhl' CaePif'l'•
. ,
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•
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SYSTtM CHARACT!~lSTICS ~
,1tC~.:I CA!. PE:i\F:>~:,:A.~::EC!'tS!l N:; :1\E:Q':Jlttt:"XN':'S
• •
Appendi"' A
APP:t~DIX A
SYSTEM CHAftACTt~lSTI~S A~D TECHNICAL PERFORMANCE/TESTING REQ~TRE~E,TS
SECTION I. SYSTEM CHARACTERISTICS
A. Technical Fe~tures
1. He&denrl/Hub Oesi~en, Location and Intrai'!\''3te~
Coaraection
Tbe Company will provide • e1ngle hea~er.d. Tl1e
location will be determined prior to conatructlon. (lt is
t.ntictpated that Us location will be w.lt~i" th4 Servoc.e. A<e.a,
su!',,1e<:t to
consultation with the City.) The faclltty will include a
buildinc of •4«4"a+c :.•zc.-, tncludin~ office!';,
warebouse, •tu4io facilities and parkin(.
2. Nu•ber/Type/Banawltl:!. of Cables
Tb~ •rste~ will eo~s1st of t•o coaxial cables. On~ ca~le
("\be A cable") wlll be acUuted hrmedhtely. 7he second cablP.
("tbe B cable") will be bel~ ln reserve for the fi~st two ve~rs.
Durin& tear tbree, .:ppro:a:t•!ltely 10 1111les of tbe B eab!e •i 11 be
•ettvated to provide eervlee for eOC!Imercial and tn-;tltutionai.
ueer1. Tbe Clty •ay require tbat uo to an additional 20 miles of
\be B cable be activated durln& rear four, and that u~ to an
additional 20 •lles of tbe B cable be activated durln• year f1~e.
Tbe r-alnlDI portion of the B cable •111 be held in reserve
2
•
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AppendiX A
~Dt1l tbere t• aeed tor ttft capacity.
T'be A cable wlll·be a sso lfhz., sub-split faeittt:v. T'le A
e&ble •111 be a s~o Mbz •ld-spUt or super-split hcDitv. The 'I;
c:able will be hltially Installed with amplifier cuin~s t'lat can
H used to b®se aepli tiers at the ume of activat ton.
The C~pany will activate the remaining portion of t~e ~
cable •hen the ~rojected revenues from the activation of t~e ;
cable exceed the p~ojected costs of acti~ation for the rema!~in~
term of tbe franchise, when the Company na~ retaine~ ~u1!ic~ent
esrnincs from any net available surpluses to finance t~e
activation o! the B cable primarily out of ret~ine~ ~arnin~~. an~
when there is a de~nstrated need for the B cabl~'s ca~acity.
Tbe Coepany reserves the right to determine when the TP.~~ininl
portion of the 8 cable (other than the 10-50 mil~s aetivated \n
Je&rs three to five) shall be activat~d and whether it sh~11 he
•ld-split, super-split or otherwise configured.
3. Si&nal Reeeptlon/Distribution Technique~
Satellite reception will be from a 7-meter equivalent
Mult1sat antenna equipped to receive in both polarization~ from
,.t leaat fhe aatellites. Tbi& antenna will ensuTe hh;h-quali.ty
aatellite s1&nal reception even as spacinc is reduced tn two
de&rees over the next several 1ears.
Off-air reception will be provided by Scientific Atlanta
aateaoaa Cor equhaleat equls-ent) for FM and bl"oadcast 'r'V,
IIOUDted on a aelf-aupporUns tower tbat will be a1:>prolCirnatelv 10.1
tHt Jtiab.
3
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Appendix A
•· lateractlve C&pabllltJ
Tbe 8ub-ap11t aapllfters o~ tbe 1 cable will •llo• for full
lat•ractJ.-~apab!lltJ la tbe cable d1atrlbution plant. At th~
tl ... that tbe a cab!e Je activated. it will have a simllar
iete·,racthe eapablli ty. Tbls eapabllitv, en the A cable
l~ltlally a~d oa the B c&ble in the future, will be au~~enied hv
beadeDd equl~nt that wlll provide for r.ecess~ry frequencv
tJ·aaslatioos and status ~n1tor1n,. •hlle the final s~lect\on of
•q~1paent and protocols will be determined at the time of initial
activatloc, it 1a antlcipat~d tbat some of the channel cauacitv
t'111l be utUizeo to •~pport Srtek equ1pm~nt and protoeols. '!'he
Coep&DJ :anticipates worlkln1 wit.h other or~an!.zation<;;, lncludin~t
tbe Cable Research FoundatAon. to demonstrate the feasibilitv and
sultabil1t1 of other equipMent and protocols. Additional
equlpeeDt aay be added to th~ cable plant from time to time
(•·I· Packet Tecbnolo~ies equi~ment) to enhance lts interactive
capabilltJ at tbe d!seretio~ of the Company.
5. ~TSeDCJ O.~rrlde
The s,.t .. wlll incorporate a re.otely-aceessible emer~encv
ower~ide tor both •ldeo asd audio transalssions ln accordance
wltb roc rules and rcculatloas. Tbe override capa~ility will be
lf'Uted oel)' to tbo•• per~n• cSeslcnated 'by the City in
aecordaaee •ltb cu~reat rcc rules and recutations.
e. StaadbJ ~-r
Tba CO.panJ will provide a 20 I• cenerator with automatic
atart aad cuto•er to pro~ide full beadend capability ar.d llmi~ed
orl&la&tloa. Tbe dlstributlon plant will have four-hour batterv
bac~up at eack power eupply,
••••••• . .
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Appendh A
7. Pare~nal Cor.trol Opt loos
Prt•r,. parental c:oatrol •ee:.~rl t1 will be P!"OY~ dec:t b\' t'le
coa•ert•r used to pro~l~e basle eervlee. Tbe Zen!th ~-~AC
coawerter that wlll be u&e4 for basic •ervlee contains a st~ole,
tle•ible parental eontrol •rste~ that wlll allow ~arPnts to
preveat eb!ldreo from choosing pa~ticular ehannels. Addltior.a1
devices •lll be available for sale or lease to meet th~
requlre=ents of th~ Acre~ent.
•
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n.
••
• .. 11 •
brfsn.anc• st .. -.ctng
. 1. C..ral
na. Spt .. lll\&U 1M deai;ned. ccmatructed, eo.d
ope~at~ ae a St•te-o!•the·A~t Sroedband C~:ations
FAcility. tt~ C~y ahall atr1ve to attain the O.•t
poaaible t.c~e•l perfQra.nce fo~ ~ Sy•t .. , ~onaiseen~
vith ao~Dd enqi~rinq pract1~••·
At • •1ni~,, the Syst .. shall be deaiqned and
operated so •• t1!) Net all applicable technical
performance atar~arda o! ~~ FCC &nd the City ~rfor~anc~
•tanda~s ••t forth at Exhibit 1 to this App4r~i~ A.
Tha Co.pany aay petition the City for a ~aiver of any
OiM or taera ata..rwial:'da upon a llhovin; of undue hardship, ~,. ttaek J ......_~;~ ~ ~i~-tt-.& snt'Wf¥d er ~5•
2. Siqnala{~•la
For purpoM • of thi • A;ree:.ent. i ni tlall y and
until avch ti .. •• the City and the Co~pany otherv.1s•
aq~••· the ~~ctru. capacity of each type of Channel
utili~ed on the Syat~ aball be •• follow•:
(a) Video Channel 6 lim~; 1
{b) Aw:Uo Chlln."\411 an FJil Audio Si9flal
occupyin9 200 kHs of bandw1ath, the
Signal •tr•nvth of vhich ahall not exeeed
that of tha a~io .ubcarrier of the
aeare-at Vi~ CbaDM 1 110r be l••• ~
-16d!BV at the receiver tarainala
(referene• ~V ~·1• 1,000 eicrovol~s
•~roe• 1S ~);
(c) Voice ct•PAel •• a b&Dd of frequenciea
to 1:. det.enaiated by t.h4t interface device
~sed to di91t1ze tbe Vaice Sivnal;
noraally aqql to 5·6 kHz dependinq
IAJ)On tbe eide baacl8 aacl tr~ission
.. ~~ bei~ utili&ed;1
1 A V'deo ~1 ~u include both the vieual anct
aural c•rriera and cor:-...-poQIUf\9 aiCS. ~ vt\ic:h
constitute the picture and ~ of a televiaion proqr ...
lD !ldr!i~ion, a v~•o Che.Mel .Ull be c~l• of carryin9
the c~ti~l• atereo a~o portioa of a television
prQ91'•·
• ~ Collpany NY eatabU~ adcU.t1ona1 nquin.enu
cone•rDinv Voice &ad Da~ Channel• coaa1et•nt vith thi•
A9T..-eDt ia a~r ta en.ur• teebnical 4Dd ope~ational
intevrity aDd c~tibility of the Syat ... ifteludjn;
IIVi tchiq, c:onai a tent vi tb tbe perfonN.QC:a at&ndarda
Ht fol"'th in Exhibit l t.c thia A;lpe!:dta A .
. ,.., ..
-----------------------------~----~----------------------------, • • -12-
(d) Oat. CbDM1 -.. • b.-.1 ot f~lea
to JMI de~:aia.d 1'17 tile :1aUt'fa.ce .,ie.s
ua.d ~ u ... late tile Dau Sl9Ul; l 111:Bz to' lila ~iD9 .... ...,.ell.,, dat.a
ua~••icm. ·
All Sipala cU nrt!:mt.ecS OV!tr-u. sm.-. lac l;,dtr.c,
both dcvn8tr'e-aDd \aP8tH-Slvn.-le, all.all ~OIW to the teclmical per'for1a&Oea at...S.nb r;.et torY~ at
lxh1bit l hereto, provided ~t ~ Carrier-to•Hol••
RaUo atandard shall DOt app 1 y to tmy O.u Si c,n.al.
3. Ci tx Ped'omanco Standu.,da
The City perforaanca •tAndarda for ~A Syat.
are aat forth Mt £x~ib1t l to this App.ndi~ A.
The per!onunca •tanC.rda are to be u-.d ia tile
daa1qn and all aub~~·n~ testa of ~ Syat.a. Theae
atandarda shall apply to worat c••• transaiaaior.a in
both direction• throu9hout the Syat... Ir. the c••• of downstraa. trana.iaaiona. the deaiqn standarc• &pply
up to ~ through eonvertara or other ~•rm~n-1 •quipe4nt,
cap&.bl-of tranal!i ttinq wch 1ti .;nal•. c:onn.c:tri d.i r•c tty
to a Subecriber'a televiaion receiver. The Eftqine.r~r.9
Peaiqn and Systaa Ar~hitectura to be d-eveloped by the
C:o:=pany shall ~ baaed ~n theM •tand.ard•.
A• noted above, the perfo~c• •ta~a•d• a~ll
••rva •• the a.ea~r• for d.y•to-~ay ~rfoTMance of the
Syat-., L~ vill be u•ed in conn~tion ~1th all per~od1c
testa of the Syat .. folloviaq the inj~i•l proof-of-
. perforaaac:e te•t in e&da ana. n-... stu4al'da ab.all
apply to all tr~a•10D8 in. bo~ dir..::Uoe. tl\rou!Jbout
the Syat... Ia ~ caM of downst:nt.Q trueai•sion•.
the oparatiD9 atanda~ ~ll ~lr ~o ell tr~••iona throu9h converterM o~ o~r terMinal equipaent ~onnectad
c:lirectly to a Subscriber' • telrdslOA ~•iver.
8. Testing I!QYire.entt
1. Tuti!f llegui~n.ta !J!d Proe~re•
Requin-.nt• ~ proeecture• for t .. u.,.. the
teehnieal perto~~• ot the Sy•ta. are .. t fo~ at
&xhibit 2 to thh Apptndix A. the City Ny. frOfl tiM
to ti .. ~ ntain. an i~t enqiueriD; ccmaultut
to c:onduet techni~al :perfo~• Uata of tlM Sy•t .. ,
at tbe City'• exp4n ... in. addi~ion. to tho .. ~cted
~y the eoap&ny.
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2. T!•u• eoae&m•st!.9!
•. Cllmet•l
!be te•ta to tte ~tid ot t.M ~eciha'c::•l
perforauc• of tM. Sya~· .UU be ••1.9Md t.o -..un
co;apliuce by tM ~Y With •U qpUcdtl• perfodi&Dee
atandard•. includinq ~ Cttr'• perfo~• at&Qda~
•• Ht forth at EXhibit 1 to thie ~ndi• A.
b. t:o.pUaa.c:e with Perfora.nce
Standard•
In the event ot the e~any's failuc• t~ .-et
tho perro~~c• •tandaras in conn•etion with th~ City'~
revi•w of tha Enq1ne4r1n9 C.sivn and Systea Arehitectu••
or any initial proof-ol•P'trfo;:oa.anee te•t in a.ny a.r••·
the Co.pany ahall take i.-ediate ~orrect1ve a~tion either:
(1) prior to eonatructi~n. in the caae ~! ~ de•iqn
failure; or (11) •• • coftdition to continued operation
of the System in any area, in the case of a !allure
of any initial proo!•of•ptrfonl&nce test.
The Company'• failure to meet the p4r!or=an~e
standard• on &ny one (l} occaaion in connqction ~lth
any te•t of the Syatem will not subject the Cozpany
to any breach under this ()r;i/~~, l:xat will obliqate
the CQ~&ny to undertake l...Cla~e eorre~tiv• action,
•• d•scribed below. Sub•tantial fail~re to paws opera~in~
t•ata or repeated retuaal t~ take earrective action
in the event of .uch failure• aball con•titute a .. terlal
breac:h of t.bi• Ordi~•, •• provided in Section
17.4. 02 ( i1) of . t.hU Ol'~i-..,<.e ...
rt the Syst .. 1a f<tund to ... t the perf<tr&aoee
standard• on all Cbazmela at tM. u .. of any teat, no
f~rther aeUon .by th• Co.pany v-ill be r4tQYired. l!
t.he Sy•t• faila to -•t one ( 1) or .oce of t.he
perforaance 1tandarda at the tilllle of any ten. the eo.pany
will 1-..diat•ly inveatiqate tbe ~au .. of said failure
aad, to ·.-u. extent .. id c:auM ia within the Cospany• •
control, tbe Coapany Shall be viven a period of up to
eixty (6C) claya to correct •a:id eau ... provided that
aaid ai.xty (60) day c:orrv.ticm period U.ll be eateftded
on a· day·t~Y baeia .durin<~ the period in vhieb t.J)e
Collp~y 18 dili~ntly and continuously c:orret:tinc, sai~
cau•• to tJu1 Ntia!action of th• · C:it:y. ,JIIanaqer. At the
concl.~•ion ~f .. td period~ an addaioul t•at vill t.e
conc:t>.;ct" to dtttenune. whether the c:orrKUve acti,.,na
have broulbt ~ Systa in~o eo.plhnce vi th tlM
~~foraance at~~da.
In thO event of a failur. to ... t tbe perfor.anee
•tandarcls oa any c::hannel •t the tiM of any teat. ~
Ccapany will be pel'aitted to show t.b.at Hid failunt
va• due to cire\lllst.a.c:•• t»eyoad its c:ontx-ol; for eaaaple.
ctu• to th~ quality of rec:eiv.4 Si;nah or tapes prepared
by Per.ou oU.r than .t!Mt Ccllpany or the ~U ty of
any conv•rt•r or other teraiul device •tuc.be4 to •
,I;,·,,
• • • 14 -
Appttndia ·~
S\&bacriber' • televt.iou which vaa not .uppUed br tba
Co.peny or any Aflilhtad Par.on. A deteza1uat1on vUl
1M ud'li by the City,·. ~n coAINltatiOA witla the Collpu)',
•• to whether tho failure to aaet the operatiQt •taad•~~
em any C'ha!mal vaii due tO cilrcwutaDc;es NJOM tba
Coapaoy' • control. If 1t h chteraiDed. ~t taM .failun
vali we to circua•tance• !Mtycnd t.hll COIIpany• • c-oQtrol.
the Colripany will be relea•ecS fJ:Ota aaid failure to paaa
the operatinq te1t. In the event of a cont~ary
determination, the Co~any will be vivan a reaaonable
period of time in which to correct the !ailure, after
which an additional teat will be conducted.
III. ENOINEERING DESIGN AND SYSTEM AAO!ITEC'I'UR£
A. PurpC~se
The Enqineerinq De1i9n and Syst~ Architecture
ahall en•ure that, •• constructed &nd OP4rat~. the
System •hall be able to provide the capacity and Service$ re~ired by this ~~~~~~~. in a mannar consiatent with
the a:ppli . ..:able per.tQrm&nce standards, ineludinq the
City's p•r!o~an~e •tandards set forth at Exhibit l to this Appendix A.
B. Submission to City of Ac:c:ep~~nc:e
The initial ver•ion of the Enqin•er1n9 Deaiqn
and Sv•t•m Arehiteet~r• ahall be su~itted t~ the Ci~y
Manager: within !i\•e ( 5) montho after thw •ff•ctive date
ot thie 0.-cH~-.~•. cut i.n no event later than ninety
(90} days pr1or to commencement of any construction
of the System. Tho City Manaqer shall ei~er accept
or, after cona~~tation with the C~any, reject aai~ ini~ial veraion within th1rty (30) days after reeelpt,
provided t.J].at, if aaid initial version has not been
fully accepted by the C~ty ftanaver prior to the •xpiraticm
of aaid thirty (30) day period, the Cit}• Mana~; uy
authorize the CoJIII)any t9 cc~~ZNne~t construction of the
System pendinv further worx by the Co~any to con.fora
•aid initial version in a •anner reasonably acceptable
to the City Manaqer. Thereafter, ·~··~ent additions
or JaOcUfication• to the £nvinHrinc; Desivn AtKt Synea
Arc:!ii tecture shall be •utai tted by the Co:Sp~y in •uch
form and within web t.i~~e p.riod u the City Jllanaqer
ahall ~eify.
The initial verdon of the Enqi~•erinq Desi9n
and SyateJ~ Al:cbi tecture, .· •• aC:eepted by tba City ltana9er.
and all subsequent addition• or aodificatio~a to .-id
initial ve~·eion, ae accepted by the 'City Manager, shall
be ••t forth •• Exhibit 3 to this ~n4i~ A and ahall
be incorporattKI hef•in and ••de 1 part of thia Ont• ... •ca.
AU aat.erhl aoclifications thereto ahaU. be eubject
to the approval of the City ManaeJer;-. ·
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• • -15
c. Cor~tente
. · Th• initial veraion. of the bgineertnv Dea19n
and· Syatu Arehiteetu~e shall contain, at a ainiawa:
1. A deecription of the d4a.ip phill)~y anc1 principal ae•waption• for the Syet•;
2. An interference 1tudy, includinq •ite aeaauremente, for all none&ble Signal patha to be ~tilized
for the receipt or diatribution of Siqnala by or within the System;
3. A liatin; of •ll operatin9 mar;ina for the
Syatem over the full temperature ranqe, 1neludin9, without
limitation, a apeeifieation of: (a) maximum tolerable
level variations ta meet en~·tQ•end ei;nal performance
atandards; (b) operatinq levela of r•p~eaentative Channels (in~ludinq nominal and acc~ptable •~tremea at key points
in the Syat~m. aueh as the hoadend, hub(•), trunkff•eder
connections, and foed•r end•); and (e) the intermodul•tion
and noiae modela uaed in the d.eai;n of the SystM~,:
4. A description of all stepa to ~ taken ~Y
the Company to en&ure System reliability and to protect
a;ainst failures to meet the performanc• standard$ (in lieu of a full reliability analysia);
S. A deacription of •ll channelinq plans •nd •witching' sy1tems to bo utiHzed, toq6~h~r with the
proposed 1usiqrunent., both Dial Location and e~c:trum •llocation, of all Cha~~els;
. 6. All information neceaaary to comply with applicable local laws, rules, or reg\.1lationa, inc:ludinq,
without limitation, all environmental review req~ire-.nts: and ·
7. 'l'he Syate1·1 Arc.h!tec:ture, which shall include, at a miniiiiWII:
a. a block diaqtam of all principal aections
of the Syetem (!.g. , headenda, h\U) ( •) , di.stribution
plant.·and production facilities) and the. function and performance of all principal equipment to 0. util~zed;1
• 1'o the extent that apecU'ic;; equipment has been aelected, the initial vereion of the tn;ineerinq Desiqn
and System Archit•cture ahould liat the ll&nutaeturer
and aodel of aai~ equipment. Othervhe, aaid information a~ould be auppl:l.ed when the actual equipiHil.t h aelected.
To the eatent that the CQ~apany baa provide a Ust of
the •pecU:ic equipment to ,0. utHhed. the CotiiP•ny uy
thereafter chanve aaid equipment upon written lc\Otic•
to the City Mana9er demonatrat1n9 tha\; the P1J1rfor~U.nc:e
quality ot the new equ1~ont will not ~ 1••• than that
of the equipment for which it i• be!n9 aubatituted in any aaterial aapect. ·
• • .. 16 -
. b. de819ft ••P• ior the initial aect1on of
the Sy•tera to be conatructecl b)' th,. Coapan,v, which •hall
llhow eJl infoZ'ftlation tci .be ap.c:iUIId by th• City Manaqer, · conahtent with vhat i.e then available to the Coaapany;
retardint the spac:inq betw••n and actual •treat loca~ion
(but not the addresa) of the infrastructure of the Sy•t•m. inc:ludinq:
hub(s)
ti:"'~n)C cables
amplifier locations
ftted.et cables
propos~d etudios &md other pt"odu.c::tion
fac: i li ties, and
antennas, microwave towe~e. an~
satelUte ea:th stations an~ uplin~
Throuqhout construction of thtt System. a~:tual lias built"
maps ahall b• su.batituted for the d.eaiqn mapa to be
!urniahed with the initial version of the En;ineerinq Deaiqn and S~atem Architecture.
In the event of any material deviation in desi;n
of the System from that set forth in the initial version
ot the Enqineerinq Deaitn or Syatem Architecture, or
at any ti~e upon the request of the City Manaqer, the
Company ah.dl pro•..ride 5\.LC:h additional informmtion
reqardinq the System Oesiqn and. Arch1t&ct~r• •• may
be reaaonU:ily apeeitied by the City Manaqter.
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Exhibit 1
to A!=>Pflridix·A
PALO ALTO CABLE SYSTEM
Q.UlTRIBU'riON PERFORMANCE S'l'Al\TDARD~
• •
iMib1t l to Append~x !:...
J, JILEVISION AND AUDIO SIONA~S
P'arueter
Carrier• too
Noise Ratio
Video Si 9flilll•
Noise Ratio
Triple But
InterDiociula
tion
Video Differ
ential Gain
VideoDiffer
ent.iel Phase
FCC
Standardas
36ciB
-46d.B
Video Frequency !2dB
Reeponee
AuraljViaual
Crosstalk
City' a
Per
formance
Standards Remarks
43dB Since these are "worst caseh
specifications, operating
performance for most Su~
acri~ers should exceed the
atandard by 1-2 dB.
4SdB
•SOda
(..,itho~.:tt
consider
ation for
HRC)
_!1.5%
+2c:!B :.sMHz to
•3.75MHz
Standard applies for any
point-to-point vid~o sig~a:
transmission path o~i9i
natinq in the Se~ice A~ea.
St~ndard applies to pea~·to~
peak siqnal to P~S weigh~e~
noise on any video signal
trancmission path for a
point-to-point video
eervice oriqinatinq in the
Service Area not includlnq
aubscriber drops and con
verters. See also above
carrier-to-noise ratio
remark.
Shall not exceed thes~
v~luea
Shall no~ ex~eed th~se
values.
Shall not exc~ed these
va~uea for any one R!-to
video link. Reference to
the averaqe of the hfghe~t
and the lowest amplit~qes
within the•e frequency
boundaries.
Standax-ci to be achieved is
no perceptible de9radat1on
of picture or sound due to
aural/viaual croaatalk
aff•cta.
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Audio Si;nal-to•
NciH Ratio
Audio Frequency
ae~n••
Audio Total Die
tortion
Audio Stereo
Character:istics
- 2 -•
Exhibit 1
to Apj:)end.iX A
SCdB
(SOHz to
lS.OkHz)
Within
.. lc:IB•2d.B
of stan
dard 75
micro
second
pre-emphasis
curve
[To be ee
tablished]
City standard to be estab
lished in accordance with
accepted zt~ndards.
As a minim~. for AM, FM
and televi$ion broadcast
Signals, audio and stereo
characteristic~ must
comply with existing rcc
requirements .
•
lt. R•t• Stgnala
Carrler-to·Mo~ ..
ht.io ·
Tran.aia•ion
&rror Rate
PhaM Jitter
TrmnR<ia•ion
R&te/Speed
• - 3 -
Exhibit: 1
to Appendix A
1.0 x 1o-•
Jn • .4 to Normalized justification
. S ratio ·
Variou•
( 110 bps to
5.5 Mbps)
Jn shall be between 0.4
and 0.5
I I I. Signal Lea'kage and l'ngress of Othe~_al to Cable Syst~::-.
FCC Stanc:h1rds
Siqnd t.ea~a9e
I.illlitation•
Isolation to
In9r:esa
Up to and
ino::luchnq
54:MHz
over S4MHz
to and
including
216 I'IH:
OVer 216
MHz
Sub•criber Tap 18dB
to Tap Iaolation
15 mierovclta
p~r m~ter at 100
feet diatance
20 microvolts
per 11\eter at
10 feet dis•
tanee
15 microvolts
per 111eter at
100 feet cbs
tanee.
City's
Per!orroar:ce
Standard
Comply wi~h Fee
Comply w1 tt. ru
siqnal leaf{at
standards
20dB
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Exh1b1t Z
to ARP•n<lix A
PALO ALTO CABLE SYSTEM
!£S'I'lt-.'C REQt.llR~ENTS M"' PMCEDURES
• •
a..hUt1 t: Z to Appendi K A .
, . ..,,. •oo•a
U. tedmtctua vUl bav. a daily rouuu nqu1r1nq
tJie pado~• o~ p~~•n.iMCI cbecb oo t!M synu. ay petfOnUDIJ 'CMM cMeU OD a n9\llar bfla1• :!. t 18
eapected tlloat Sy•~ perfonunee vill alway• be aain~ained
at an opU..U. 1..,..1 aDd Mri~• outa~• "ill be avoided.
C.rtain ~••t• aay ~ire that S.rvh:e be
inten,.pt~. In .-uch inst.anc•a. th•a• teste vi ll btl
conduct~ in ~ early aorninq hours in •~coraance Wlth
tb4t r~i~nt• of S.ctioe 9.2 of t.hia OrdiJ~o~l'lc.e.
aeco~ vill be ~t of ehe r••~lt• of all tests
so that a eonunuou• vrltten report of the Syct:•'•
pe~foraance vill be on !1le.
ll. ~TESTS
A. Oailr Checks
l. bch Cba.nn«l of th«-Sub•eri~r Systetll and
Institutional Cable vill be ftOnitored daily for picture
quality, a~o quali~y. and data tr~~iasion quality
OQ ••eh of ~ ~runk c&bleo •ervin9 the Service Area.
The pictures aball be exa.in.d for 9hostin9, noise and
apu:ioua products on each Ch.u.nd. Any c;han~• in qv.ali ti'
and observation• of de9raded pictures and audio quality
&hall be not~ and ~orrective act1on taken. It is
partl~lady taportaat for penoAnel doin9 ayat ..
-.Jnteaaaca ead inetallatioe to evaluate picture and
INdio quaUtr ud report. all p~tly tc the Chief
E:DiiDMr.
2. All au~ted Services, ~eh as neva and
weather channels. abail be in~cted e&~h day to a .. ure
propn operaUoa aad Keuraey.
3. S19Nl1 lavttla vill be checked at: the
.. tr..ttiee ~taa.tically ia accordance vith atandard
iftdu•trr practice• usi~ a coeput~ri&ed atatus aonitoring
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1. . nr.. picture. audio, and data transai•sion
qualitl•• &Qd Sivnal teat point levels of all ~adeDd
aad S.rv1ce Ana bub eli atribution equis-en~ Yi 11 be
aoo.ttored to ... t the operatin9 standards and parlllHters
~1fiecl 1la E&b.it>it 1 to ~nclix A to thia Ordi"-l"CA.
e. lleet.blY 'feat and CMc:Ju.
1. .Ul 519Ml lAval .._ten will be checked for
proper caUbratioa aDd reau.lts l099ed.
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2. li.,..U 1 ... 1• vUl lae dleellled at, OM founh
of tbe t.nak ~U••· ('De Sp~ ... u -1nta1n
• U.U.. of all ~u .. eo U.t. all of ta.e .. poinn eu lae -s~ la a _. antb. per1o4.)
J. Tile -I'IIICJ' ......, .._,7 at t:IN S.rvtee
Ana butt wt:U 1M t.ee"4 WMkly for Jn'OPel' opel'at.ion to JIO'ftl' au S.n1ce ~ ... tl'l'l1..-t..
•· Oft u.. s,.u.. le ackUt.ton to t.be nortUl
... w~u aad q'l&aUt.y checllte at. tbe Syat• eatr-.itiez . .. ~u ~•t. be llade of Spt• c:ax-:rier to not••· m.. -.nd. 1nuraodulaUon proctuc:ta and .onltored to aeet
the ~x-aticq atandarda and par ... ter• ~Hied in
lahlbit 1 to Apperw::Ua A t:o Ulia 0.4•~<-· Th•••
.. awr ... a.t:=. will be aade at ~ :;oya~ .. ••tret~itia•.
the M&W1"ei!Mnt.a vUl be -.de at cU!ferent tan points
each ~nth v1th ~ teat po1cta aelected ~ that they
fo~""a a repr&Mntative aacp!e of Sya'tee per!ol"''&&nCa and
*Dsur. that all teat po1nta ar• v1aited within 6 aonths.
D. S~i-~~~al T•sta, Chee~a ar~ In•P!~tions
1. In addition tQ ~ veekly And •ontnly ch•cxs
th• follcwin; eheck• and aeawr ... nta shall be •ada
on • sa.i•annu•l ~•i•:
(a) Antu1naa:
Visual inspection of all antenna ayst~s
!or phyaical d ... ~. Signal level aea•urements
on all antenna ayat .. :t. H~ lffteaaure1'11enta
on SiCJn&la delivered i:ly anteMa aounted
prea~~pa.
(b) hceptiOA Eguip!!n~:
'%1M raapoaae and ali.-.nt of all equiP~tmt
arA output frequeociea of all Siqnala on
the Sy•~-c.Mckecl ia adclitioa to the weekly
and 1100Uily t.wl .. asure.enu.
Sptcial equi~t .uch •• mcrovave, two
VItf rlldio • ....: e...-t.b at.atiOQ receivin9
eq\ai~t. -.ball 1M teated.. •aaurecS, aDd
adjuated •• ~'ll-1'*<1 by the aanufacturer ~~~ required br tbe rcc.
(d) 0Utei4e Plant:
h' ecicU tioa 'tO tbe M&Mll'efllenU nqu.ired
01a • ve.klJ ...s IIOftthlJ' baaia, tbe Syet•
AapollM ehall bt -~ at the tn&All ut.._i tiaa for full ec:-.pUutee vt tb the
oper&t.ift9 t~cal •tar&clai'Clll of thia
fnDC:h1 H •
• •
a. 61!Qatl IJ!t•·. ll!!ftD!!!nH 1114 I!9!C!toca
1. '!be aaaual t.nte ad ~u vUl 1acluch
• full ICC pnof ot pedo~ ta ediUUoe t:o aU -.....--u pnyiaual., ouUi...S. u. ~ penormel.
.UU ~ tll.a't U. proof of -•••r•nat... u-. ...s.
Oft M UUW.l b&alt !A Keol'daae• v1t:.b. ICC ...,.U~t.!.
lo. addition, Syau. pe~l vill _..,... tlaa~ U.s,.~. -•t• the cl18tribuUoe pedo~"Woa~~Ce !'tarxlal'da Ht forth
in bhibit 1 to Appencl.1a A to~· 0~.
111 . MAIN'rENANC!: STAn'
The Caapany, cliuctl:t and in c.:>op41rat1on vith
third partie•, ahall ena~r• that th•r• vill 0. a~ate
en9in .. rinq Ttaff to ec.ply with tAe ~in~•~• and
t•etinq provi•iona aet for~~ in tbia ~n4ix.
A co.plete and .. parat• array of t••t equi~nt
to aceo!llpliah the abo\-. testa vill b4t ator-ecl and
••intained at th• headend ••~ each of the hub•. This
teet equipment will be callbrated en • yearly ~•1•
a(Jaj nat a atand&rci traceable to th• N&tlonal Bureau
of Stanciarcis.
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ENClNEERINC OESICN
AND
SYSTEM MCHI TEC'TUP..E
[TO BE INSERTED UPON APPROVAL BY TKt CITY,
PRIOR TO COMMENCEMENT OF CONSTRUCTlONj
: I ~I
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APPENDIX B
CONSTRUCJION STANDARDS, TERMS, AND SCHEDULE
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Appendix B
APPENDIX B
C9NSTRUCTJ.ON STANDARDS. TERMS, AND SCJIE%)UL!
I. . CONSTRUCTION STANDAJWS AND Tg!!
A. Location of Cable
1. The Company ehall install all cables in • aanner eonaiatent with existing telephone or public
utility linea. Where all auch linee or facilities •~•
undergroun<;t at a particular location, the Company rahaU
install ita cables under9round, except aa ot~erwieft
provided in St!Ct.ion l.A.3 of this Appendix a or as
otherwise approved by the ;cvernmental •qenciaa havin;
juriadiction aver auch matter•. Whe~e eithEr of auch
lines or facilities are above qround at a particular
location, the Company m.!ly elect tQ install its cables above qround.
2. The Compeny ahall ~tilize exiatin; telephone
ox public utility poles, ducts, or conduits for the
installation ~f c&blea, except as provided in the next paraqnph.
3. Wherever existinq tel•phone or public utility
polea, ducts or conduits CL~ot reasonably accomModate
the 1natAllation of the Company's cables on terms and
c:onc!i ti ons ressonabl y acceptable to the Company, or
whenever the telephone or public utility company(ies)
ref~ae to m~ke available their exiatinq facilities,
or construct new facilities, for the installation of
the Company'• cabl••· the Company may, consistent with Section 6.4 of thia Aq~eement, install ita own poles,
dueta or conduits, •• appropriate; provided ·that nothing
herein ahall be deemed to reli~ave add utility c:otDpanies
of their existing obligation to make available their
poles, ducts, conduits, and other facilities for the
installation of the Sy$tem. For purpose• of tbia
aubaection 3, "facilities" ehall include, without
limitation, facilitiee providin9 Wlderqroun<;t acc:eaa
from the 11ain dur:ta intoeaeh block.
· 4. The CQIIlpany ·anall JA&ke reasonable coapensation
to the City for tho use of any poles, ducts, or conduits
of the City' • municipal ~tility comp-.ny for installation
of the Company'• cables at. r&tes comparable to rates
available or char;ed to the CoiJIP&ny in tbe Z""euinder
of the Servict~ Area. Suc:hpaym•nta shall not be
considered a part of or ch•rg•able aqainst the
compensation to be paid to the City by the Company
pursuant to Section .. lO.l of t.hh Or4t"a~.
, s. Th• Company aball c.cmstnact the Sy•t• in
the ••qu•nce in~ic•t•d on the ••v attached •• E,xllibi t 1
to thh Appenaix B, Wlleu c:han9•• to •uch •equenc:e
are approvec!·by the City Manager, which approval ahall
not be unrea•onably withhela .
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- 2 -
Appendix B
B. Spec-ific T•na•
1. A• ·provided :,\n thia OrdiiUl"c:.e, the Coi!J)any
ahall comply vith all applicfbl.e lawa, rules, rec;ulaticns, cod••· and other requirem•ntsof the City in connection ~ith the constt'Uc:tion of the Syatem. Prior to.the
beginninv of construction, the Company Yill submit a
plan to the City for approv~l. apecifying rules,
l'f'Cl\llllt1one and eon•t.n.u:tion procedures to protect the privacy and property of resid&nts of the Service Area during eonstruction.
2. The installation of all cables, wires, or
other component parta of ~~~ System ir. any structure
shall b• undertaken in a manner which does not interfere
with the operation of any existing MATV, SMATV, MDS,
DBS, or other distribution syatem in said et~~cture,
inc .l.udimJ an~· eondui t uaed. in connection with said other
•ystem. For the purpoee of routine maintenance, repair, connectio~, installation, or disconnection, •ll System
wiring in any •tructvre shall be accessible from the
"tap •ide" in a public hallway, roof, basement, stairwell, or ot11er public area in said 1tr1.1cture.
3. The Company ahall construct the System ao
as to meet the Service obligations set forth in Section 3
of this Agree..nt. \: , \. ,
II. CONSTRUCTION SC~
A. Commencement of Con~tr.1ction
For pUrpoaea of this Or~i~ant&, ~commencement
of conetruetiontr ahall be de•med to have occurred on
th11 firet bueinue day. following the latest to occur
o!: (a) execution o! appropriate pole ~ttaehment and
conduit agreements with the applicable utility companies
with respect to the 1nitial.portion of the Systtua to
be constructed by the C~mpany; or (b) the date upon
.which the City Manager aecepta the initia.l veraicm of
the E:tiqineering Deei,qn &nd System Architecture, or,
aa provided· in Ap~ndii A to thif OrdiftaltC!e.1 the date
on which the City Mana9er authorizes the C~any to
c~nc:e conlitruc:tion pending acceptance ot.aaid
!ngineerinit>e•i;n and Sy$tem.Architecture. In no event
ahall the commencement of construction occur later than
two hundrt~d~ forty (240) day& aft4!r the ef!ect.ive d!lte
of th~ • Ord~•"c.&. Not later than thirty ( 30) days
'-f"er 'the effec:ti ve elate of tl'a:ia Ord,.,a~, the Co111pany ahall eeek .pole attachment and conduit agreem•nta with
the applicable ~tili~y companie• with reapeet to the
initial portion of the Sy•t•• to be conat~cted by the Co~apany. ·
8. Completion of Conatr~c£~
Fer p~,~rpo .. • of ~· Orodi"~"cc, "co!Qpletion of ccn•truction" of the Syate~ shall occur when the City
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Appendix B
Manager haa acknowledged, in vritin9, that the Company
hja•l (i) inatalled all c.Ablea and aasociated equipment
and device• necessary for Subacribera to receive Services
d1ttdbut:ed over the Syatom; (1i) pa .. ed the initial
proof•of•"DerfoZ'IIIance teata, •• provided in Appendix A
to t.hia Ol'dh,atte-e, and ( U 1) commenced the offering
and diMtribution of Services to Subscriber•.
C. Construction Schedl.lle
1. The Company shall complete construction of
the beadend and s\lch other part• of the Subscriber System,
•o an to pass, within the ~onth• indicat•d below, the following percentaq~e of occupied ho\l~eholdG, as
determined by the 1980 U.S. Census, in the Service Area:
(a) Within six (6) months after
commencement o~ C:gi'tl!tructicm:
(b) Within twelve (12) month8
after commencement of
conmtruction:
(c) Within eighteen (18) months
after ~ommencement of
construction:
20% of occupied households
60% of occupied
households
100% of occupied ho,Jseholds
These time pe.riods may be extended up to six
(6) months during such time as the Company has been
dili;ently purauin; make•ready work, but has not ~~en
able to aecure completion of aame. Attaehed as Exhibit 2
to ~~1• Appendix B ia a detailed const~ction schedule,
vhich is. aubalitted for information only and is not klindinq
on the Company.
, 2. The. System shall be deemed to Pe activated at the time of the proviaion of Service to the first
SUbscriber. The date of activation of the System shall ~ no later ~an the end of the fifty•aecond tS2ndl
v.eJc followin9 the ef!ective date of this Qr4i"_,J'\U-.
3. The Company ahall 11ct i Vll te th«t portion of the Institl.ltional Cable. on the B Cable according to
a schedule to ~ ·a;reed to. by the Company and the City
•• part of the Engineeri~9 Deaiqn and System Architecture referred to in Section III of Appendix A to thia
Ordlt\iJ\tC... which schedule ahall be c:onshtent With Sec:~:~ on f. A. 2 of Appendix A to this ()f"dl-.~,.ur...
f. The Colq)any ab~ll ~Qa~Plete all construction
of .the .Suba.criber Syatem ·•~ the Inatitutional Cable
ao •• to pa.. ar'cl b4t c:apable of aerving all reaidoru:ea and inatj, tutiona ex.i ati~9 on the ef!octi v• date of the
Aqreement ndl later than.tl'ie laat. day o! the twenty .. fourth
(24th) •onth followin9 the eff$C~ive date of thia
• • --..
Ap-pendix B
Orcl\'Aa~. The Coalpany .-hall continue to conetruct the syst.. to ••rv• atructurea which are occupied or
built within the Service Area_ or in any area• annexed
by the Joint -Pe»tera within the araaa ahovn on the map
of the Service Area (EXhibit 1 to the Aqre .. ent) after
the effective date of thia Otc:tin~.
Ill. MODIFICATIONS
T.hia Appendix B may not be modified or amended
without prior approval of the City Council, provided
that the City Manaqer may amend or ;rant other appropriate
ralief from the const1·uction terms set forth in Section I
he~eof upon petition by the Company.
•
• EXHI8J1' I . • MID-PENINSUlA WIDEBAND PROJECT
Construction Schedule
lOS AlTOS
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--~,-· ~~'-. ~-.. ---...
• Area I
Day150-300
• Areatl
Oay300-440
• Areatll
Day 440-530 '
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There is flo Exh,·b,l ~ oYld V\o ~)( h,·b~+ b
ft> ~~ s Ordin~-vtce..-
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APPENDtX ~
THE co.MUSITY ACCESS ORGA~l7,~TJOS - -_..__ ---w.--
I. CHEATIOlii 2f ill co-AUNJTY !£ill~ ORGA~.!.H,!IO~
A. Tbe Joint Cable Working Group (the "JC11'G"), estab!ishel'l
pursuant to the Joint Powers Agreement, has facilitated the
!or~atlon of ao independent, non-profit corporation o~~anized
pursuant to State l~w, to ~~rve •s u com~unity access
orc~nizltioD for the S~rvice Area, and which will qualifv for
ta~-e~e~pt status under Section 30l(c) of the Internal Revenue
Code of 1954, as amended.
-li-.e Citv
CPuncil sball formally designate, in writin~, a Communitv ~cce~~
Orcani:u.tion (the "CAO") as the organlzlltion for purposes of
Sect ion 4. 3 of this l>r"dil'\aYlLe--If, l n the juds;ment of tM Ci tv
Manager, the CAO is not carrying out effectively the purposes or
acthlties for which thf> CAO •as eshblished, as provic:le!1 tn t~is
Acreetwnt, tbe Ci tr lllanacer ruy recommend to the Cit~· Counc i 1
tbat the City Councll wlthdn• its designation of the CAO· an1
destcaate anotbe:-oon-protlt corporation for ~urposes of Section
4.3 r:f t.bis Ot"Oi".ali'C.c.1 including, without limitation, the recei:ct
'o;.i. support! fae111Uea, and equipment pro\•ided by the Comoanv
purauant to sectlo~ Jl of tbls Appendix E and the adminlstratinn.
of t~e Access C~aonets.
C. Tbe CAO shall undertake such activities and shall adopt
sueh rules &Dd 'reculat1oQ& as are permitted or requir~d bv this
~~i~~~•· In addition to such othe~ aettv1ties a~ mav, from
tllte to t111e, th! proposed by the Clty Council or the City
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Appendix £
Manat•r. t.be CAO sba ll ~
1. f&!:'l U tl\'t open. ftOn-dls~rtatnator, access to th~
S7st.-a~d protect the ~ubllc Interest ln the
develo~nt of publle service~ and procra~ing:
2. ad•inister aod ~~nace the Acces~ Channels on the
Su~scr\~er Syste~ and the use of t~e !ac11itie~.
eqvip~~nt, supplJes, ser~ices, and other supoort
'ade available to the CAO by the C6moany;
3. participate •lth the Co~pany in ad~1nisterinR and
•anacinc that portion of the Institutional Catl~
•ade available ta tbe CAO for use by public and
pr~vate non-proftt 1nst~tutions, a• provided in
Appendi~ F to thi~ Agreement:
4. support, through dir~ct crants, jnlnt vent~res
(which 111ay be with the Comp~ny), a.nd its O"-'n
procra .. inr i~itiattves, the develo~meot and
production of public servlc~s and pro1ramm\n~ to he
diattibuted on the Acees~ Ci;&nne'l.s:
5. J'artle1pate In tbe traln.\n& and education of
Tesidents of the Service Area in the d~velooment
&Ad productioD ot public servlces and progra>nm!ng
to be cHstr1buted on tbf' Access Channe!s~
6. en&•&• ln fuad-ralala& activities and use t~e funds
tberefroa for public, educational, or cha_rttable
purpose" in connect! on with th!' Access Chann~.l s:
1. adainister the funds necessary t~ carry out tts
purpo:Ses and objecttves. ----------....
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Eabt~lt 1 to ~ppendt~ E.
P«OOft~.,_ I ffG !2£.!!!!!!
I. !!.!J! ST\JU10 E9VlPti.Jf!!.
~anun
To bP d~teralced.
I I. ~~ ~ )(!)Ot'l..ATOR F:Q~'l PY.t:"i'T
!(IJ&I'lfHt
T? be deter~lned.
Ill.~~~ ~~~~lt!CATIO~S
g..,antity
T'o w deter~r~lned .
1
Descrq~t i~~
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IX.
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~nhancing the value of the rranc~is~ 1n~ th~ ~vs~~-
potent 1 a l of the System fo:r the pnh1 s '=; a;,.ri
9. engage in any other acts, ~att~rs, and !~in~s
necessary or conv~nlent in or~t>r to ·acco.,p~ i'i~ ttlt-
!!.!9.gtR~~rsr or ~ I~ fA~-hl·_i'Is~l. ~911J_£'t!E~n, llift.z. ~:'ID I!!ll!!.!:;
A. The Cocapany, in cooperation 1fith the c"o, s~:tll '~nnt a
plan, to be subftlittec!, for appro•al, tot~ City '4anu:e:-•itllin
one (1) year tollo•in& the ~f!ect\ve oat~ of this A~~~~nt.
Said plan Sh&ll sov~rn the fac1littes, equi~ent, staff, snd
training that tbe Coepany will provide for the benefit of t"'e C'.,o
. . ce •lid itle. c!,~ C.U.Ci(.
and tbe City. as deter•\oed by ~.~~·~Said ola" s~all also
describe the worktnc relationship bewt~~n the Comoany an~ t~~
CAO and address the r~tes, ter.s, aod con~itions, as apclica~le,
under whieb tbe: follovla& aatters shall be pro\'ided for the
benefit of the CAO;
1. Number, 8ize, and produetloa ca~a~ilttr of studio
facilitles, lneludin~ a description of sssoeiat~d
equip~~~ent and supplies;
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AppendJ .11 E
2. l'h.1mb~r and production ~apabiltty of ~~Ue Utl'.t~.
ineludih& a descrlptlon of as&oc:\atecf ~qui~t.t &"l ..
supplies;
3. Number ot portable ea~ras, tncludlnc a ~~~crlot~or.
of associated eq~ip~ent and suppll~~;
4. Pre-production eonfer~nce facil1ti~s. l~c:u1:~£ a
description of associated equip~ent a~d suo~~~~~.
available for the develop'llent of pro«:t&"'l-,in~::
5. Post-production editing facil!tie~. Ln~lu~t~~ ~
description of nssociated equlp~~nt and su~p1~e~.
available for editing progra~in~t pro<hE~t>1 b> •.-ar,o;
of a mobile production unit or a Dortable tR~~·a:
8. Description of the technical an~ ~tofess!o~'l ~~aff
who will assist the CAO and aeees~ u~ers, an1 l~e
time commitments of sai~ staff;
1. Maintenance and repair of all facilltie~ an~
equipllent;
8. Deser1 ptlon of the type ~:~f tralnin& proat!'a~ anf'l
assistance tbat tbe Cc:M~pany •ill provid~ to tht" CV'I
and access users;
9. Otfice sp~ee for tbe CAO; and
10. Marketing, advertlainc, prOMotto~. and joint
venture .ad•l and experi.ental ~ra«~•~
arrangements.
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B. Said plan ~h~ll provide, It a ~int~u~ for th~ follo~jo~:
1. Facil 1 ties
The' followlnB faellttles shall be provh1ed sub,1f!ct t':' t"''~
right of the Company to us~ such facilltl~s 2~' or the ti~ foY
community procramming productions, and svbjeet also to t~~ ti~ht
of the Company to use such facilities when th~v ar~ not bP!n~
used by the City or the CAO in accordance with rul•s and
regulations concerning "fallow studio time·• that s!'l::tll be
mutually agreed to by the City, the CAO an~ t~e Co~panv as o~·1
of the plan specified in this Appen1ix E. Such rules &n~
regulations shall specify that neither the CAO nor th~ Cit~ ~av
unreasonably withhold use of the fac~lltles from the Co~panv.
Such rules and regulations shall also specify that the Cilv an~
the CAO shall cooperate with the Companv to ~ake such faciliti~~
~\~ilable, subj~ct to the foregoin~ limitations, to thP Co~n1nv
to :facilitate community progra'llming productions. The. C,otwo.fA"Y "'-j
.u., !'::A.l.b;ed to L!!f'FO"'a I ~ f t~ 1 h> fr&v\de <'M lt_j ~ .s~t: o{ ~
.foHowi~ -f-a.._;t,li~s a.rr'\d ~;f'-"~, ~ a wr;t\~ a..s~~.t
wi~ tu\0~..-..fn."'-~is~e. K trel*,c.klst~s ot ~ ~~!..fy.
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Appendix E
Studio Faell1t1es (all d1mens1ons are approKt~atel;
A studio (appx. 40 x 50 x 15)
B studio (appx. 15 ~ 15 x 15)
Set storage (appx. 8 x 20 ~ 12)
Control room (appx. 20 x 20 x 12)
Edit Suites (3-5 0 appx. 8 x 5 ~ 8)
Cable casting (appx. 10 x 10 x 12)
Viewing Area (appx. 10 x 10 x 12)
Engineering (appx. 10 x 15 ~ 12)
Conference Room (app~. 20 x 30)
Lunch/Snack Room (appro~. 20 x 30)
Miscellaneous Storage
Total
Total approximate value of facilities
Total approximate value of facilities
dedicated to CAO and City
2000 SQ. ft.
225 sq. 1t.
1M sq. ft.
400 S(J. ft.
200 sq. ft.
160 sq. ft.
100 sq. f t .
160 sq. ft.
600 sq. ft.
600 sq. ft.
500 sq. ft .
5105 sq. ft.
'UOO,OOO
$600,000
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1985
1986
1987
2. Production Equipment
Electronics for A studin
Portapak (1)
Editing Equipment (1)
Total
•
Appendix E
Industrial quality cameras, liRhtinr;: equiol'!',ent,
electronics !or A studio
Mobile Van (small)
Portapak (2)
Editing Equipment (1)
Total
Industrial quality cameras, li~hting equio~ent,
electronics ror B studio
Portapak (2)
E~iting Equipment (l)
Miscellaneous/Reserve
Total
Total Years 1985-1987
~50,1100
C:,0,1')00
$15,000
';100,0;)0
C?-75,000
!!;20,()()()
~15,000
Lli?.lO,OOO
$45 ,.oon
$20,QOO
$15,00('1
~35,000
$~1!;,000
M00, 000
(Other equipment, e.g., character generators and insertion
equi~ment 1s budgeted s~parately.)
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Appendillt E
ln addition, the Company shall make available additional
~oney, not to e•ceed the followin~ amounts, in the years
5pecif1~d, to purchase additional equipment for the benefit of
the City and the CAO, as indicated, 1f there exists a reasona~le
and demonstrated need for such equlp~ent, and follow1ng a reque~t
tor the provision of such equipment by the City Council.
For the City:
following the completion of the third vear of the
franchise ¢,50,00()
following the completion of the fourth vear of the
franchise !-150,000
For the CAO:
following the completion of the fifth year of the
franchise ,lOO,OCO
following the completion of the sixth year of t~e
franchise
I
TGtal addit1ioual possible equi-p~T~ent contributtbns
lll. !od1f1catioo•
St51), OOQ
~35o,ooo·
This Append1~~t E may not be modified or a~~nded without t~~
prior approval of the City Manager and the CAO; prov\deM that
approval by the CAO shall not be necessarv if the CAO has not
been incorporated and design~ted, as provid~d tn Section 1 of
tbh Ap~Ddh.
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APPE!>~IX F
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Ap1>flndl• r
APPENDIX F'
ADVANCED SERVICES DEVELOPMENT
1. TF.CHNICAL CHARACTERISTICS OF SYSTEM ~ITH RESPECT TO
ADVANCED SERVICES DEVELOPMENT
Tbe Coep•~Y a1rees tbat a portjon of the c~annel capacity or
the Subscriber System •hall be reserved for a~vAnee~ services
development and lnstit~t!onal uses of cable. In additt~n to t~e
coaaunitJ procramminc cha~nel, the public access channels and t~e
1overnent ebannel•, tbe Company a~rees tltat olie downstream
cbanoel and one upstream ehanoel on the A eabl~ shall be reserved
for adv&nced aerv!ees development. In addition to the public
ace••• and covernm~ot channels •peelfied in Appendi~ A, section
B, 1, e, (1) and tbe upstream capac1ty •pecif1ed in Ao~endi~ A,
aeetiDD D, at the tl•e tbe B cable is activate~, an adJitiona'
five (5) do•nstream cbannels and at least thr~e (3) upstream
channels •~all be reaerv~d for advanced aervices develo~ment. At
lea•t flfty per cent (&01) of tbia cbanne\ capaelt~ sball be
reaerved, dvrlac tbe hlUal five 7ean following the effective
date of tbls l.&reeMDt, for the priorlty use by publle an~
private Don•proflt lnstltutloas end 1overn•e~t a1eneles. ~uch
public and private non·protit tnstttuttoo~ eball be eli~ible to
recetwe addttloaal services, on tbe rematolnJ ~rtion of t~e
channel capacity reserved for advanced services 6eveloomentt and
1n later reara, at tbe lowest dlecounted rate otfered to other
uaere. Anr portloas of tbe chan"el cap~eitr reaerved for
ad•a~c•d .. rvlc•• dev•lop.e~t tbat are aot beiDI u••d at anv paf"tic.u'a.r~"' .. w..~ iac. .. ~ b-j the ~P"Y -Gr oihu r-rf'-t.se.s·.
liL MODJFJCATJO-S OF THE TERM~ Of APPEWDII F
Tbls &ppendh P •ay not be aodi fled or ""'ended wl tb,~ut the
prior approval of tbe City Mana1er aad tbe CAO; ~rovlded t~at
approval by the CAO •ball aot be necea•arJ 1! tb• CAO bas not
beea iacorporat•d, s• provl~ed for 1a S•cttoa J of this Aopendix
F.
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Append 1111 F
APrtNDIX F
ADVANCED SERVICES DEVELOPMENT
I. T'ECHl'HCAL CHARACTERISTICS OF SYSTEM WITH r-ESPECT TO
ADVANCED SERVICES DEVELOPW~NT
Tbe Company agrees that a ~ortion or the c~annel capacity of
the Subscriber System shall be ~es!rved for a~vanced services
development and institutional uses of cable. In addit1~n to the
co~unity programming channel, the public access channels and t~e
&ov~rnaent channels, the Company &~rees t~at one downstream
channel and one upstream chsnnel on the A cable sha11 be reserven
for ad~anced services development. In addition to the public
access and ccvernment channels specified l~ \ppendi~ A, section
B, 1, c, (l) and the upstream capacity specified in Appendix A,
sectio~ D, ~t the time the 9 cable is activated, an additlonal
five (5) downstream channel~ and at least three (3) up~tream
cb~naels eball be reserved for advanced services development. 4t
least ·• 1'HJ per cent (501) of tbts ebannel capacity shall be
re•er~ed, dur1DI tbe initial five ye*rs following the effective
date of tbis AKree.ent. for the priority use by ~ublic and
private DOD•Proflt 1~stitutlon5 and covernment a~encles. Sue~
public and private non-proUt:h'lstitutlons shall be eli~\ble to
recei•e addttlonal aerv1ees, on tbe remaini~l ~ortion of the
channel capacity reserved for advanced servl~es develo~ment, and
la later rears~. at the lowest cUaeounted rate offend to other
users. Any portions of tbe ehanne.l capacity reserved !or
unoce41 nnte•• ""lv.-e•t tbat are at belaa ••'" at anv
part;c:ulaor-+ttA& ~~·~~ike lowpa.y -Gr o~r ~'(,.5e.:$.
JK.. IIODIP!CATJOI(S Of 1'111 TIUS OF &PPER'Dil P
Tbis Appendi~ F •ay not be modifieo or amended without the
priar approval of the City Vana1er and the CAO; ~rovided t~at
approval by the CAO shall not be neceasa~y 1f tbe CAO has not
b4tea inc:orporat.•d• ae provided fof la S.cUon J of tbi• Appendix
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Appendi• A
APPE"lOIX A
SYSTEM CHARACTERISTICS A~D TECHSICAL PERFOR~ANCE/TESTtNG REQU!RE~E.TS
S£CTIOS 1. SYSTE!f CHARAC'l'ERI ST!CS
1. Readend/Hub Oesign, Locat\on and Intrasvste~
Connection
Tbe C~pany will provide a single he~den~. The
location will be deter~ined prior to construction. (It t~
r.rtt1c:tpated that its location sill be witt'llon the Sen•c.e AR!.ol,
suh,1ect to
con$ultation 'lt~ the City.) The facility will include a
butldin& of o14414uate s•ze,-----, tncludin;t offices,
war~~Q~s~. •t~dlo faeillties and ~arktn(.
2. ~u.ber/TJ'pe/Bandwitb of Cables
Tb* •1ste. wlll eocsist of two coa~ial cables. One ca~le
("t&e A eable") will be activated t~ediately. The second cablP.
("tbe B eable") will be bel c2 1n reser'Ye tor the f1 -ret ;two vears.
DurJD& year tbree, approaiaately 10 •lles of the B cable will be
activated to provide •ervlce for coemerclal and in~titutlonal
u .. r.. 'Ute Ctt1 a&J require tbat uo tD an additional 20 milt"s of
tbe B eable be activated during year four, 5nd that u~ to an
addltloaal 20 a1lee of the 8 cable be acti~ated durin~ year flve.
Tbe ree&lftial portion of tbe B cabltrt will be held in reserve
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