HomeMy WebLinkAboutRESO 7991RESOLUTION NO. 7991
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO
ALTO CONSENTING,
TO THE TRANSFER
SUBJECT TO CERTAIN CONDITIONS,
AND ASSIGNMENT OF THE CABLE
SYSTEM HELD BY CABLE COMMUNICATIONS COOPERATIVE
OF PALO ALTO, INC., TO TCI CABLEVISION OF
CALIFORNIA, INC. DBA AT&T BROADBAND, A
WHOLLY-OWNED, INDIRECT SUBSIDIARY OF AT&T CORP.
WHEREAS, the City of Palo Alto, California ("City"), is
a party to a certain Joint Exercise of Powers Agreement, dated
as of July 2 6, 198 3, and a certain Joint Operating Agreement,
dated as of October 13, 1983, pursuant to which the City, on
behalf of itself and the Town of Atherton, the City of Menlo
Park, the City of East Palo Alto, the County of San Mateo, and
the County of Santa Clara (collectively, "Joint Powers"), is
responsible for administering certain cable television ·franchise
matters on behalf of the Joint Powers; and
WHEREAS, the City and Cable Communications Cooperative
of Palo Alto, Inc. ("Company") , entered into a certain Amended
and Modified Franchise Agreement By and Between the City _9~ Palo
Alto On Behalf Of The Joint Powers And Cable Communications
Cooperative of Palo Alto, Inc., dated as of February 28, 1991
("Franchise Agreement"), which granted to the Company the
nonexclusive right to construct, operate and maintain a cable
system ("System") in the streets of the Joint Powers to provide
cable television service to the residents of the Service Area,
as "Service Area" is defined in Section 1. 39 of the Franchise
Agreement; and
WHEREAS, the Franchise Agreement provides that it shall
remain in effect unless sooner terminated, until March 24, 2001;
and
WHEREAS, Section 14.1 of the Franchise Agreement
provides, among other things, that neither the Company's rights
or obligations under the Franchise Agreement, nor the Company's
System, may be assigned or transferred to another person without
the prior consent of the Council of the City ("Council"); and
WHEREAS, the Company has entered into a certain Asset
Purchase Agreement By and Between Cable Communications
Cooperative of Palo Alto, Incorporated and TCI Cablevision of
California, Inc., a Subsidiary Of AT&T Corp., dated as of
September 7, 1999 ("Asset Purchase Agreemer).t"), pursuant to
which, subject to certain conditions, including the City's
consent required by the Franchise Agreement, the Company will
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000727syn 0071832
sell the System and its rights and obligations under the
Franchise Agreement to TCI Cablevision of ·california, Inc.
("TCI"), a wholly-owned, indirect subsidiary of AT&T Corp.
("AT&T") ; and
WHEREAS, on or about January 5, 2000, the subscriber-
owners of the Company approved the proposed sale of the System
and the transfer and assignment of the Company's rights and
obligations under the Franchise Agreement and the System
("Sale") to TCI; and
WHEREAS, on or about February 14, 2000, the Company
filed an application with the City requesting the City's consent
to the proposed Sale to TCI (the application, together with all
subsequent correspondence and information provided by the
Company, TCI and AT&T concerning the application being
hereinafter referred to as the "Application"); and
WHEREAS, pursuant to Section 14.2 of the Franchise
Agreement, on or about February 22, 2000, the City Manager
submitted the Application, together with the City Manager's
report (CMR: 155:00) and recommendation concerning the
Application, to the Council; and
WHEREAS, pursuant to Section 14.2 of the Franchise
Agreement, on or about March 10, 2000, the City informed the
Company and TCI that the Application ·failed to provide
sufficient information to permit the Council to act on that
Application; and
WHEREAS, on or about March 24, 2000, the Company and TCI
informed the City they disagreed with the City's determination
that the Application was not complete in all respects; and
WHEREAS, pursuant to Section 14.3 of the Franchise
Agreement, the Council considered the Application on or about
April 10, 2000, and the Council determined that additional
information was needed before it could fully evaluate the
Application and take action thereon; and
WHEREAS, by letters, dated May
2000, TCI and the Company, respectively,
June 26, 2000, the 120-day period under
City to consider the Application; and
16, 2000 and May 17,
agreed to extend, until
47 U.S.C. §537 for the
WHEREAS, by letter, dated June 23, 2000, TCI and the
Company agreed to extend, until July 24, 2000, the 120-period
under 47 U.S.C. §537 for the City to consider the Application;
and
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000727 syn 0071832
WHEREAS, the Council has reviewed and relied upon the
Application, as well as all relevant documents, staff reports
and recommendations, the comments and recommendations of the
public, and the representations of the Company, TCI and AT&T
concerning the proposed Sale to TCI; and
WHEREAS, in Exhibit 6 to the Application, TCI has relied
on the qualifications of its ultimate parent corporation, AT&T,
to demonstrate its technical qualifications, expertise and
experience regarding cable television systems; and
WHEREAS, Section 9. 2. 7 of the Asset Purchase Agreement
provides that TCI is not obligated to consummate the proposed
Sale unless, prior thereto, the City on behalf of the Joint
Powers shall have approved either a new franchise agreement to
replace or supercede the Franchise Agreement, or an amendment to
the Franchise Agreement, containing unspecified terms that are
satisfactory to TCI in its reasonable discretion; and
WHEREAS, Sections 14.3 and 14.4 of the Franchise
Agreement specifically permit the City to refuse to accept any
amendment or change in the Franchise Agreement as a condition to
consenting to a transfer of the Franchise Agreement or the
System; and
WHEREAS, Section 7. 22 and 7. 24 of the Asset Purchase
Agreement appear to provide that, upon the consummation of the
proposed Sale [ ("Closing") , as "Closing" is defined in Section
1.6 of the Asset Purchase Agreement], TCI is to be relieved of
some of the Company's obligations under Section 4. 3. 03 of the
Franchise Agreement, which requires, among other things, that
the cable television franchiseholder provide certain studio
facilities and equipment to the Community Access Organization
( "CAO") , as "CAO" is defined in Section 1. 16 of the Franchise
Agreement) , and Sections 7. 22 and 7. 2 4 of the Asset Purchase
Agreement therefore appear to be inconsistent with the Franchise
Agreement; and
WHEREAS, Section 7. 5. 2 of the Asset Purchase Agreement
requires, among other things, that the Company must receive
assurances reasonably satisfactory to TCI from the City on
behalf of the Joint Powers that TCI's proposed post-closing
rates are acceptable to the City, that the City will forbear
from regulating TCI' s rates for at least 12 months after the
Closing, and that the City will not take any action against TCI
with respect to the Company's pre-closing rates, and thus
Section 7.5.2 of the Asset Purchase Agreement appears to be
inconsistent with the Franchise Agreement in that it would
require the City to forfeit rate regulatory powers explicitly
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000727 syn 0071832
reserved to the City by Section 5.4 of the Franchise Agreement
and by federal law; and
WHEREAS, Section 14.3 and 14.4 of the Franchise
Agreement provide, among other things, that the Council may
require, as a condition to consenting to a sale or transfer,
that the transferee agrees to adhere to and to assume and be
bound by all applicable provisions of the Franchise Agreement;
and
WHEREAS, the deadlines for the City's action set forth
in Sections 14.2 and 14.3 of the Franchise Agreement and in 47
U.S. C. § 537 apply only to requests to approve a transfer or
sale of a cable system or franchise, and do not apply to
requests to modify, amend, replace or renew a transferor's
existing franchise, or to grant a new franchise to a transferee,
as Sections 9. 2. 7, 7. 5. 2, 7. 22 and 7. 24 of the Asset Purchase
Agreement appear to contemplate; and
WHEREAS, the City and TCI
franchise agreement between the City
Agreement") to replace and supercede
the terms and conditions of such New
attached hereto as Exhibit A; and
have negotiated a new
and TCI ("New Franchise
the Franchise Agreement,
Franchise Agreement being
WHEREAS, the City and the Company have negotiated a
Compromise and Settlement Agreement between the City and the
Company ("Settlement Agreement") to compromise and settle
certain disputes between them concerning the Company's
performance under the Franchise Agreement, the terms and
conditions of such Settlement Agreement being attached hereto as
Exhibit B; and
WHEREAS, the City and Silicon Valley Community
Communications, Inc. ("SVCC"), have negotiated an agreement
between the City and SVCC ( "SVCC Agreement") pursuant to which
SVCC will provide certain equipment, facilities, and funds for
equipment and facilities to the CAO to support PEG access, the
terms and conditions of such SVCC Agreement being attached
hereto as Exhibit C; and
WHEREAS, the Council has determined that consent to the
proposed Sale to TCI is in the public interest, but only if the
Company, TCI, AT&T, and SVCC are willing to accept in writing
and agree to abide by certain terms and conditions relating
thereto, .such terms and conditions being set forth below in this
resolution, the New Franchise Agreement attached hereto as
Exhibit A, in the Settlement Agreement attached hereto as
Exhibit B, and in the SVCC Agreement attached hereto as Exhibit
C; and
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000727 syn 0071832
WHEREAS, the Company, TCI, AT&T, and SVCC have agreed to
such terms and conditions, TCI has agreed to execute and accept
the New Franchise Agreement, the Company has agreed to accept
and execute the Settlement Agreement, and SVCC has agreed to
accept and execute the SVCC Agreement;
NOW, THEREFORE, the Council of the City of Palo Alto
does hereby RESOLVE as follows:
SECTION 1. The Council hereby consents to the proposed
Sale to TCI subject to the following conditions:
(a) The proposed Sale shall be consummated within
thirty-one days of Council approval of this resolution on the
terms and conditions set forth in this resolution and, to the
extent not inconsistent with this resolution and the New
Franchise Agreement, the Application.
(b) Neither the System nor the rights and privileges
granted by the New Franchise Agreement, nor any part of the
System located at the public rights-of-way or streets in the
Service Area, shall be assigned or transferred, in whole or in
part, to AT&T or to any parent, subsidiary or affiliate of AT&T
other than TCI without filing a written application to the City
and obtaining the Council's prior written consent. to such
assignment or transfer.
(c)
resolution,
Agreement
Exhibit A.
Within thirty-one days of Council approval of this
TCI shall execute and accept the New Franchise
in substantially the form attached hereto as
(d) Within thirty-one days of Council approval of this
resolution, the Company shall execute and accept the Settlement
Agreement in substantially the form attached hereto as Exhibit
B, and on the Closing Date, as "Closing Date" is defined in the
Asset Purchase Agreement, the Company shall have transferred to
the City the funds required by Section 3 of the Settlement
Agreement.
(e) Within thirty-one days of Council approval of this
resolution, SVCC shall execute and accept the SVCC Agreement in
substantially the form attached hereto as Exhibit C.
(f) Within thirty-one days of Council approval of this
resolution, SVCC and Mid-Peninsula Access Corporation, as the
present CAO, shall enter into and execute an agreement on
mutually agreeable terms and conditions consistent with the
undertaking by SVCC pursuant to the SVCC Agreement.
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000727 syn 0071832
SECTION 2. If all of the conditions and provisions
specified in Section 1 hereof are satisfied, the New Franchise
Agreement shall be effective and the Franchise Agreement shall
terminate and be of no further force or effect. If any of the
conditions and provisions specified in Section 1 hereof is not
satisfied, then the Council's consent to the proposed Sale to
TCI is denied, the New Franchise Agreement shall not take effect
(including any retroactive application of the New Franchise
Agreement), and the Franchise Agreement shall remain in full
force and effect as between the City and the Company (and not
TCI).
SECTION 3. Any material misrepresentation in the
Application by TCI and/or its affiliates shall constitute a
material violation of the New Franchise Agreement and shall be
subject to all of the rights and remedies available to the City
under the New Franchise Agreement and applicable law.
SECTION 4. Any violation of this resolution by TCI
and/or its affiliates shall constitute a material violation of
the New Franchise Agreement and shall be subject to all of the
rights and remedies available to the City under the New
Franchise Agreement and applicable law.
SECTION 5. This resolution shall not be construed to
grant or imply the Council's consent to any other transfer or
transaction that may require the City's consent under the
Franchise Agreement, the New Franchise Agreement, or applicable
federal, California or City law. The City reserves all of its
rights with regard to any such future transactions.
SECTION 6. This resolution is a final decision on the
Application within the meaning of 47 U.S.C. § 537, and for these
purposes the Application is deemed acted upon on the date of
adoption of this resolution by the Council.
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II
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000727 syn 0071832
SECTION 7. The Council finds that the adoption of this
resolution is not a project under the CEQA Guidelines and,
therefore, no environmental review is required.
INTRODUCED AND PASSED: July 24, 2000
AYES: BEECHAM, BURCH, EAKINS, FAZZINO, KLEINBERG, KNISS, LYTLE
NOES:
ABSENT:
ABSTENTIONS: OJAKIAN
NOT PARTICIPATING: MOSSAR
ATTEST: Ci~1}·~
Senior Asst. City Attorney
Services
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000727 syn 0071832
EXHIBIT A
["NEW FRANCHISE AGREEMENT"]
000831 syn 0071832
000724 syn 0071883
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
THE CITY OF PALO ALTO, CALIFORNIA
ON BEHALF OF THE JOINT POWERS
AND
TCI CABLEVISION OF CALIFORNIA, INC.
EXHIBIT A
SECTION 1.
SECTION 2.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
SECTION 3.
SECTION 4.
SECTION 5.
5.1
5.2
SECTION 6.
6.1
6.2
6.3
6.4
6.5
6.6
SECTION 7.
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
000724 syn 0071883
TABLE OF CONTENTS
DEFINITIONS-----------------------------------------1
GRANT OF FRANCHISE----------------------------------3
Grant-----------------------------------------------3
Ter.m------------------------------------------------4
Effective Date--------------------------------------4
Effect of Acceptance--------------------------------4
Rights Reserved to the City ------------------------4
Compliance by TCI; Rights Reserved to TCI-----------5
Legal Qualifications--------------------------------5
FRANCHISE LIMITATIONS-------------------------------5
NON-EXCLUSIVE FRANCHISE ----------------------------6
NO w.AIVER-------------------------------------------7
Inaction by City------------------------·-----------7
Same or Different Breach---------------------------7
CUSTOMER SERVICE------------------------------------1
Customer Service------------------------------------7
Privacy---------------------------------------------8
Sale of Subscriber Lists and Personalized Data------8
Maintenance and Complaints--------------------------8
Non-discrimination, Equal Employment, and ADA-------9
Parental Control Device-----------------------------10
SYSTEM FACILITIES, EQUIPMENT, AND SERVICES----------10
Cable System Design and Functionality---------------10
Interconnection-------------------------------------12
Institutional Network-------------------------------13
System Design Review Process------------------------15
Initial Tests---------------------------------------15
System Inspections----------------------------------16
Other Construction Procedures-----------------------17
System Maintenance----------------------------------18
System Perfor.mance----------------------------------18
i
SECTION 7.
7.10
7.11
7.12
7.13
7.14
7.15
SECTION 8.
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
SECTION 18.
SECTION 19.
SECTION 20.
SECTION 21.
SECTION 22.
22.1
22.2
22.3
000724 syn 0071883
SYSTEM FACILITIES, EQUIPMENT, AND SERVICES (Cont 'd)
System Extension-------------------------------------19
Public, Educational and Governmental Use------------21
Ascertainment of Proqrarnminq------------------------27
No City Control-------------------------------------28
Emergency Alert System------------------------------28
Certain Current Services----------------------------28
CONSTRUCTION STAN.DARDS------------------------------28
RATE REGULATION-------------------------------------30
FRANCHISE F.EES--------------------------------------30
PERFORMANCE BON.D------------------------------------32
SECURITY FUN.D---------------------------------------33
SURETIES; RELATION TO OTHER REMEDIES----------------34
FRANCHISE VIOLATION --NOTICE AND PROCEDURES--------34
TERMINATION, REVOCATION, FORFEITURE-----------------35
LIQUIDATED DAMAGES---------~------------------------37
REMEDIES cu.MULATIVE---------------------------------38
CONTINUITY OF SERVICE-------------------------------38
RECORDS INSPECTION----------------------------------39
REPORTS AND RESPONSES TO Qu.ESTIONS------------------40
RECORDS ~INTENANCE---------------------------------41
PERFORMANCE MONITORING------------------------------42
Triennial Review -----------------------------------42
TCI Cooperation------------------------------------42
Exercise of Authority------------------------------42
ii
SECTION 23. OTHER CITY RIGHTS-----------------------------------43
SECTION 24. OPEN ACCESS-----------------------------------------43
SECTION 25. MISCELLANEOUS---------------------------------------43
25.1
25.2
25.3
25.4
25.5
25.6
25.7
25.8
25.9
25.10
25.11
25.12
25.13
25.14
25.15
25.16
EXHIBITS:
Time of Essence------------------------------------43
Compliance with Laws-------------------------------43
Force Majeure--------------------------------------43
Severability---------------------------------------44
Written Notice---------------·----------------------44
Conflict between Agreement and Enabling Ordinance--45
California Law Applies-----------------------------45
Burden of Proof------------------------------------45
Integration----------------------------------------45
Amendment------------------------------------------45
Headings--------------------------------------------45
Counterparts----------------------------------------45
Exhibits--------------------------------------------46
Venue-----------------------------------------------46
Representation by Counsel---------------------------46
Calculation of Time---------------------------------46
A SERVICE AREA MAP
B INSTITUTIONAL NETWORK -CITY AND TOWN HALLS
C INSTITUTIONAL NETWORK -SCHOOL, SCHOOL DISTRICT AND
PUBLIC FACILITIES
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000724 syn 0071883
CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN
THE CITY OF PALO ALTO, CALIFORNIA ON BEHALF OF THE JOINT POWERS
AND TCI CABLEVISION OF CALIFORNIA, INC.
This CABLE TELEVISION. FRANCHISE AGREEMENT, dated
is entered into by and between the CITY OF PALO
ALTO, on behalf of the Joint Powers ("City") and TCI CABLEVISION
OF CALIFORNIA, INC., a California corporation ("TCI").
SECTION 1.
1.1
abbreviations
The
and
DEFINITIONS
following words, terms,
their similar formulations
phrases,
shall have
and
the
meanings given them in this Agreement, unless the context clearly
indicates otherwise. All other words, terms, phrases and
abbreviations used in this Agreement shall have the meanings
given them in the Enabling Ordinance, or, if not defined therein,
the meanings set forth in the Cable Act, and, if not defined
therein, their common and ordinary meanings.
"Agreement" means this Cable Television Franchise
Agreement by and between the City of Palo Alto, California on
behalf of the Joint Powers and TCI Cablevision of California,
Inc.
"Cable System" means the cable television system that
TCI is required to construct, upgrade and/or rebuild, and
maintain under the provisions ·of this Agreement; it shall not
refer to the term "Cable System" as that term is defined
generally in the Enabling Ordinance, unless the content clearly
indicates otherwise.
"Community Access Organization" or "CAO" means the non-
profit entity that has been established pursuant to the Joint
Powers Agreement, and the assigns and successors in interest to
such entity.
"Community Media Access Center" or "CMAC" means a
facility (or facilities) where Public, Educational, or
Governmental use signals are managed and/or delivered to TCI for
downStream transmission to Subscribers or to other acc~ss centers
via a dedicated connection.
"Enabling Ordinance" means Ordinance Number 4636 of the
Council of the City of Palo Alto, codified in Chapter 2.10 of
Title 2 of the Palo Alto Municipal Code.
000724 syn 0071883 1
"Institutional Network" or "I-Net" means a
communications network related to and physically joined with the
Cable System which is constructed and maintained by TCI as
provided in Section 7.3 hereof and which is not generally
available to residential Subscribers of the Cable System.
"Joint Operating Agreement" means the Joint Operating
Agreement, dated October 13, 1983, by and between the Cities of
Palo Alto, East Palo Alto, and Menlo Park, the Town of Atherton
and the Counties of Santa Clara and San Mateo, including any
amendment, extension or renewal of the Joint Operating Agreement.
"Joint Powers" means the Cities of Palo Alto, East Palo
Alto, and Menlo Park, the Town of Atherton and the Counties of
Santa Clara and San Mateo, which are parties to the Joint Powers
Agreement. "Joint Powers" may refer to any one or more of the
foregoing local governments, as the context may require.
"Joint Powers Agreement" means the Joint Exercise of
Powers Agreement, dated July 26, 1983, by and between the Joint
Powers, including any amendment, extension or renewal of the
Joint Powers Agreement.
"Normal Business Hours" means those hours during which
most similar businesses in the community are open to serve
customers. In all cases, "Normal Business Hours" shall include
some evening hours after 5:00 p.m. at least one day per week and
some weekend hours.
"Normal Operating Conditions" means those service
conditions that are within the control of TCI, or which TCI could
reasonably anticipate occurring in the ordinary course and scope
of business, including, but not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal
demand periods, and maintenance or upgrade of the Cable System
and every other non-natural conditions within the control of TCI.
Those conditions which are not within the control of TCI, or
which TCI could not reasonably anticipate occurring in the
ordinary course and scope of business, include, but are not
limited to, natural disasters, civil disturbances, labor
disputes, power outages, telephone network outages, and severe or
unusual weather conditions.
"Other Programming Service"
other than a video programming service,
to all Subscribers generally.
means a Cable Service,
that TCI makes available
"Party" means the City or TCI; "Parties" means the City
and TCI.
000724syn 0071883 2
"Service Area" means the area, as set forth in the map
at Exhibit A to this Agreement, comprised of the Cities of Palo
Alto, East Palo Alto, and Menlo Park, the Town of Atherton,
various unincorporated areas of the County of San Mateo, and
unincorporated areas of the County of Santa Clara comprising
Leland Stanford Jr. University, except as specifically provided
in Exhibit A to this Agreement, that TCI is authorized to serve
by the terms of this Agreement. The Service Area may be extended
from time to time by the Joint Powers to include areas annexed by
one or more of the Joint Powers after the effective date hereof,
and those areas within the spheres of influence of the Joint
Powers where the Joint Powers is the only lawfully authorized
cable franchising authority for those areas.
"TCI" means TCI Cablevision of California, Inc., a
California corporation, with a principal place of business
located at 12647 Alcosta Boulevard, Suite 200, San Ramon,
California 94583, and a subsidiary of AT&T Broadband L.L.C., a
Delaware Limited Liability Company, and its lawful and permitted
successors, assigns, and transferees.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant. Subject to the covenants, terms and
conditions of this Agreement, and applicable Law, the City nereby
grants to T,CI a non-exclusive franchise ("Franchise") to
construct, operate, maintain and repair a cable system ("Cable
System") to provide Cable Service in the Service Area, and to use
the streets and other portions of the Public Rights-Of-Way to
install, construct, operate, maintain, and repair in, on, over,
under, upon, across and along the Public Rights-Of-Way, such
poles, wires, cable, conductors, ducts, conduit, vaults,
manholes, amplifiers, appliances, attachments, and other property
as may be necessary and appurtenant to the Cable System to
provide cable service.
2.1.1 The Parties hereby acknowledge and agree
that, as of the effective date of this Agreement, (i) there is in
effect·the Joint Powers Agreement, pursuant to which the City is
authorized to administer a franchising process for the Service
Area and to administer and oversee the franchise(s) awarded for
the Service Area, and (ii) there is in effect the Joint Operating
Agreement, which governs th~ relationship between the Joint
Powers and the City with respect to the City's administration,
oversight, and regulation of the Franchise granted to TCI. The
Parties further acknowledge and agree that all references in this
Agreement to the City, the Council, the City Manager, the City
Attorney, and the City Auditor are intended to mean the City, the
Council, the City Manager, the City Attorney, and the City
Auditor acting on behalf of the Joint Powers, pursuant to the
000724 syn 0071883 3
Joint Powers Agreement and the Joint Operating Agreement. In
addition, the Parties acknowledge and agree that, under the Joint
Operating Agreement: (1) the City, in certain circumstances, may
delegate to, or exercise jointly with, one or more of the Joint
Powers, the authority of the City under this Agreement; ( 2) 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
under this Agreement; and (3) the protections afforded by and to
the City in this Agreement shall include the protection of the
Joint Powers to the same extent as the City.
2.2 Term. This Agreement shall expire ten years after
its effective date unless lawfully terminated in accordance with
its provisions and applicable Law, or altered in accordance with
Section 18 hereof.
2.3 Effective Date. The Franchise shall become
effective on the day following its approval by the Council
("Effective Date"), provided that, within thirty-one days of that
date (i) TCI executes and accepts, in writing, this Agreement;
( ii) TCI provides all warranties, proofs, and other documents
required by this Agreement, (iii) Cable Communications
Cooperative of Palo Alto, Inc., ("Co-op") , executes that certain
Settlement Agreement between Co-op and the City; and (iv) Silicon
Valley Community Communications, Inc. ( "SVCC") executes that
certain Agreement between SVCC and the City. If these conditions
are not satisfied prior to thirty-one days following approval of
this Franchise Agreement by the Council, then the City may, at
its option, declare the Franchise forfeited, and of no force or
effect, and this Agreement shall be deemed rescinded.
2.4 Effect of Acceptance. By accepting the Franchise,
TCI: ( i) acknowledges and accepts the City's legal right and
power to issue and enforce the Franchise; ( ii) agrees that it
will not oppose the intervention by the City in any proceeding
affecting the enforcement of the City's rights under this
Agreement; (iii) accepts and agrees to comply with each and every
provision contained herein; and ( i v) agrees that the Franchise
was granted pursuant to processes and procedures consistent with
applicable Law, and agrees that it will not raise any claim or
defense to the contrary.
2. 5 Rights Reserved to the City. The rights granted
in this Agreement are subject to the City's exercise of its
police powers and other powers, and nothing in this Agreement
shall be read to limit t:he exercise of those powers. The City,
among other things, does not waive the requirements of applicable
Law, including, but not limited to, codes, ordinances, and
resolutions relating to zoning, building permits and fees, rules
000724syn 0071883 4
regarding the time, place and manner of construction, or the use
of the Public Rights-Of-Way.
2.6 Compliance by TCI; Rights Reserved to TCI. Except
as provided in Section 2.6.1, TCI hereby agrees to comply with
and shall be subject to the provisions of the Enabling Ordinance
as in effect on the effective date of this Agreement and any
subsequent lawful amendments thereto, and all other lawful City
ordinances, including, but not limited to, zoning ordinances, and
ordinances establishing construction standards or procedures for
use of the streets.
2.6.1 Notwithstanding
reserves its right to challenge,
Agreement shall not be construed
challenge:
the foregoing, TCI hereby
and TCI' s acceptance of this
as a waiver of TCI's right to
(1) The portion of Section 2.10.230(c) of the Palo
Alto Municipal Code as in effect on the effective date hereof
that requires a proposed franchise transferee to pay all actual
costs incurred by the City in reviewing and evaluating an
application for transfer of a cable system or a franchise; and
(2) Any amendment to the Enabling Ordinance or any
other City law, rule or regulation made after the effective date
hereof as an unlawful abrogation of those contractual rights that
are granted to TCI herein or as otherwise contrary to applicable
Law.
2.7 Legal Qualifications. TCI represents that it
meets or satisfi~s all the legal qualifications set forth in (i)
Section 2.10.240 of the Palo Alto Municipal Code, (ii) all other
existing ordinances and regulations 1 of the City, and (iii) 4 7
u.s.c. § 533.
SECTION 3. FRANCHISE LIMITATIONS
3.1 The Franchise does not confer rights other than as
provided by this Agreement or applicable Law.
3.2 No privilege or exemption is granted or conferred
except those specifically prescribed herein.
3.3 The City may delegate its authority to award one
or more Franchises except as prohibited by applicable Law.
3. 4 In addition to any immunities that the City may
have under applicable Law, TCI shall have no recourse against the
City for any loss, cost, expense, or damage arising out of any
provision or requirement of this Agreement or the Enabling
000724syn 0071883 5
Ordinance, or because of their enforcement or non-enforcement.
This subsection shall not be construed to limit any right TCI may
have to seek injunctive relief under California or federal law:
3.5 TCI shall at all times be subject to the exercise
of the police power of the City, and its other lawful authority.
3.6 Nothing in this Agreement shall be read to create
an expectancy of renewal or to an entitlement to the renewal or
extension of the Franchise, except as may otherwise be provided
by applicable Law.
3. 7 Any privilege claimed under the Franchise by TCI
in any Public Rights-Of-Way or other public property shall be
subordinate to any prior lawful use or occupancy of the Public
Rights-Of-Way or other public property, subject to Section
2.10. 050 and any other pertinent provisions of the Palo Alto
Municipal Code and other equivalent provisions adopted by the
several Joint Powers members.
SECTION 4. NON-EXCLUSIVE FRANCHISE
4.1 This Agreement, and the right it grants to use and
occupy the Public Rights-Of-Way, is not exclusive, and it does
not explicitly or implicitly preclude the issuance of other
Franchises to operate Cable Communications Systems within all or
any part of the Service Area, affect the City's right to
authorize use of the Public Rights-Of-Way by other Persons, or
affect the City's right to itself construct, operate, maintain or
repair a Cable Communications System, with or without a
Franchise, provided, however, that after the effective date
hereof, any franchise granted by the City, or the City acting on
behalf of the Joint Powers, to an operator of a cable
communications system shall require the franchisee to ( 1) set
aside at least the same amount of PEG access channel capacity on
its system as TCI is required to provide under Sections 7.11.1
and 7 .11. 2 hereof; (2) make a per-subscriber annual PEG grant
payment no less than the amount that TCI is required to make by
Section 7. 11. 4 hereof; ( 3) provide institutional network
facilities and support (or cash equivalent) comparable to that
which TCI is required to provide under Section 7.3 hereof; and
(4) pay a franchise fee at least equal, in terms of the
percentage of Gross Revenues and the Gross Revenues on which the
fee is paid, to that which TCI is required to pay pursuant to
Section 10 hereof. Nothing in this Section 4 shall be construed
as waiving any right TCI may have to challenge any franchise
subsequently granted by the City, by the City acting on behalf of
the Joint Powers, or by any community within the Service Area to
an operator of a cable communications system as contrary to
California Government Code § 53066.3 or any other applicable Law.
000724 syn 0071883 6
SECTION 5. NO WAIVER
5.1 Inaction by City. The failure of the City, upon
one or more occasions, to exercise a right or to require
compliance or performance under this Agreement or any applicable
Law shall not be deemed to constitute a waiver of such right or a
waiver of compliance or performance, unless such right has been
specifically waived, in writing.
5.2 Same or Different Breach. A waiver of a
default or a breach of this Agreemerit or a failure of the City to
enforce or insist on TCI' s compliance with any part of the
Enabling Ordinance is not a waiver of any similar or different
default or breach. Neither· the granting of the Franchise nor any
provision herein shall constitute a waiver or bar to the exercise
of any governmental right or power of the City.
SECTION 6. CUSTOMER SERVICE
6. 1 Customer Service. Except as provided in Section
6. 1. 1 hereof, TCI hereby represents and warrants that, within
ninety days after the effective date of this Agreement, it shall
meet or exceed the requirements and standards for customer
service established by the City in Section 2.10.500 of the Palo
Alto Municipal Code, and Appendix A to Chapter 2.10 of the Palo
Alto Municipal Code. TCI shall abide by the terms and conditions
of Appendix A in effect as of the effective date of this
Agreement and as may be hereafter lawfully amended or
supplemented from time to time. TCI shall be subject to the
remedies set forth in Chapter 2.10 of the Palo Alto Municipal
Code and other applicable Law and in this Agreement for
violations of the customer service standards.
6. 1. 1 Notwithstanding Section 6. 1, the Parties agree
as follows with respect to portions of Section 9.1, Section 4.3.2
and Section 26 of Appendix A to Chapter 2.10 of the Palo Alto
Municipal Code:
( 1) In lieu of the portion of Section 9. 1 of
Appendix A to the Enabling Ordinance that requires a franchisee
to provide sixty days' advance written notice to the Cable
Coordinator of any material changes in information, TCI agrees to
notify the Cable Coordinator in writing of any such changes prior
to providing the required thirty days' advance written notice of
such changes to Subscribers;
(2) In lieu of the requirement of Section 4.3.2
of Appendix A to the Enabling Ordinance that a franchisee provide
000724 syn 0071883 7
one free month of the most widely subscribed-to service tier, TCI
agrees to offer not less than a $20.00 credit to subscribers.
( 3) The City agrees to suspend enforcement of
Section 2 6 of Appendix A to the Enabling Ordinance unless or
until Section 2 6 of Appendix A is repealed or the Enabling
Ordinance is amended to remove Section 26 of Appendix A. Nothing
in this paragraph (3) shall be construed as in any way
restricting the Parties' respective reservations of rights in
Section 24.3 hereof.
6.2 Privacy. TCI shall constantly monitor and
safeguard against possible abuses of the right of privacy of any
Subscriber, programmer, or any other Person resulting from any
device or signal associated with the Cable System. Subject to the
Subscriber privacy provisions of the Cable Act, 47 U.S.C. § 551,
TCI shall notify the City immediately of any abuse of privacy,
whether caused by TCI or other parties.
6.3 Sale of Subscriber Lists and Personalized Data.
6. 3. 1 TCI shall be subject to the provisions of
federal law regarding limitations on TCI's collection and use of
personally identifiable information, and the protection of
Subscriber privacy.
6. 3. 2 Nothing in this Agreement shall be read to
limit the City's right to adopt other consumer protection laws or
customer service standards, and to apply those Laws to TCI.
6.4 Maintenance and Complaints.
6.4.1 TCI shall render promptly efficient Cable
Service, make repairs promptly, and interrupt Cable Service only
for good cause and for the shortest time possible.
6. 4. 2 Written and other documented complaints
concerning billing, employee courtesy, programming, safety, or
TCI's operational policies and procedures, as well as all other
complaints, including, but not limited to, complaints about
outages, signal quality, and service disruptions, shall be
recorded. Notwithstanding the provisions of Sections 2.10.080(a)
and 2.10.110(a) of the Palo Alto Municipal Code, TCI will
maintain records of complaints for four years from the date of
receipt of complaint. Subject to the privacy requirements of
federal and California law, copies of the complaints shall be
provided promptly to the City on .request.
repair
6.4.3
force of
000724 syn 0071883
TCI shall obtain and maintain
technicians sufficient to comply
8
a service
with this
Agreement and the customer service standards under Normal
Operating · Conditions and to respond to, among other matters,
Subscriber complaints, loss of Cable Service, or requests for
Cable Service. TCI shall have in place at all times the
equipment necessary to locate, diagnose and correct Cable System
malfunctions and other performance deficiencies.
6.4.4 Subscribers and members of the general public
in the Service Area may direct complaints and inquiries regarding
TCI' s service or performance or lack thereof to the City. In
addition to such other actions the City may take to enforce this
Agreement, upon the request of a complaining party or TCI, the
City may review a complaint or dispute, and recommend remedial or
other corrective action.
6.5 Non-discrimination, Equal Employment, and ADA.
6. 5. 1 TCI shall fully comply with the equal
employment opportunity requirements of applicable Law and FCC
rules and regulations relating thereto. Upon request by the
City, TCI shall furnish the City a copy of TCI's annual
statistical report filed with the FCC, along with proof of TCI's
annual certification of compliance. In the event TCI is at any
time determined by the FCC not to be in compliance with FCC rules
and regulations, TCI shall notify the City within fifteen days of
its receipt of the FCC's notice of noncompliance, and furnish a
copy of such notice to the City within the fifteen-day period.
6.5.2 TCI shall not, in its rates or charges, or in
the availability of Cable Service or facilities of the Cable
System, or in any other respect, make or grant unreasonable
preferences or advantages to any Subscriber, potential
Subscriber, or group of Subscribers or potential Subscribers, nor
shall TCI subject any such persons or group of persons to any
prejudice or any disadvantage. However, TCI may offer temporary,
promotional discounts in order to attract or maintain Subscribers
provided that such discounts are offered on a non-discriminatory
basis to similar' classes or types of Subscribers throughout the
Service Area. Subject to FCC rules and regulations) this Section
shall not prohibit TCI from publishing different rates for
different classes of Subscribers, so long as the rates are
identical for every Subscriber in each class. Different rates may
be offered to commercial or bulk rate Subscribers. Reduced rates
may be offered to the disabled and economically disadvantaged
senior citizens.
6. 5. 3 TCI shall not deny, delay, impair or
otherwise burden Cable Service or discriminate against
Subscribers within the Service Area on the basis of age, race,
creed, religion, color, sex, national origin, marital status,
000724syn 0071883 9
sexual orientation, physical or mental disability, or political
affiliation.
6.5.4 TCI shall not deny Cable Service to any group
of potential Subscribers because of the income of the residents
of the Service Area in which the group resides.
6.5.5 TCI shall ensure that Cable Service is
accessible, as far as reasonably practicable, to Persons with
disabilities. The Cable System, including, but not limited to,
the closed....:caption signal, shall retransmit all programming
received by TCI with closed-captioning.
6.6 Parental Control Device. TCI shall rent, lease or
sell parental control devices to any Subscriber, on request.
SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES
7.1. Cable System Design and Functionality
7.1.1 System Design. TCI shall upgrade and/or
rebuild its Cable System in the Service Area in a manner
consistent with the requirements of this Section 7. It is
expressly understood that TCI may substitute another transmission
material and/or modify its upgrade design, provided that any such
substitution or modification attains the same technical, service
capability, channel capacity and reliability as the requirements
set forth in this Section. TCI agrees to provide the City with
at least sixty days' prior written notice in the event it should
deploy a technology different than that specified in this
Section 7.
( 1) The Cable System will use an optical fiber-
to-the-node architecture or a technology and architecture
providing equivalent functionality, capacity and reliability.
(2) TCI intends to deploy fiber optic cables to
nodes, which serve no more than 760 residential subscribers per
node.
(3) Sufficient fiber-to-the-node shall be
constructed to allow segmentation of the node with no significant
additional construction such that no more than 300 homes are
required to share the return (upstream) bandwidth allocated for
two-way services.
(4) All active electronics replaced or added
after the effective date of this Agreement will be 7 50 MHz-
capable equipment, or equipment of higher bandwidth. All passive
000724 syn 0071883 10
components replaced or added after the effective date of this
Agreement will be 1 Gigaher~z-capable equipment.
( 5) The Cable System will be two-way activated
upon completion of the Cable System rebuild and/or upgrade, and
TCI will maintain two-way activation until or unless market
demand for services using such two-way activation is insufficient
economically to justify the cost of continued maintenance of two-
way activation. TCI shall notify the City in writing in advance
of any discontinuance of two-way activation.
(6) The Headend ·shall be supported with 24-hour
backup non-interruptible power supplies. Each node shall have
three-hour backup and hub sites and optical transfer nodes shall
have six-hour backup power supplies. Such equipment shall be
constructed and maintained so as to activate automatically upon a
failure of utility service, to revert automatically to a standby
mode when utility service is restored, and to comply with all
utility and other safety regulations to prevent the alternate
power sources from energizing a "dead" utility line in order to
prevent injury to any Person. Power to the nodes will be
monitored remotely.
7 .1. 2 System Functionality.
(1) As designed, rebuilt and/or upgraded, and
maintained, the Cable System must maintain reliability comparable
to the reliability of other TCI-owned or affiliated cable systems
which are similarly sized and rebuilt between 1999 and 2002.
(2) As designed, rebuilt and/or upgraded, and
maintained, the facilities and equipment on the Cable System must
be able to deliver high quality signals that meet all applicable
FCC technical and signal quality standards (including any such
standards adopted or modified after the effective date
hereof) ("FCC Standards"), regardless of the particular manner in
which the signal is transmitted, including, if applicable, all
digital programming.
( 3) Upon completion of the upgrade
rebuild, all facilities and equipment will be installed
customer premises equipment), so that the two-way
capability required in Section 7.1.1(5) is fully ready to
upon Subscriber request.
and/or
(except
active
operate
( 4) Equipment shall be installed at the Headend
to allow TCI to cablecast signals in substantially the form
received, without substantial alteration or deterioration. By
way of example and not of limitation, the Headend must include
equipment that will transmit color video signals received at the
000724 syn 0071883 11
Headend in color. Equipment must be installed so that all closed
captioning programming received by the Cable System shall include
the closed caption signal, provided that the closed caption
signal is provided consistent with the FCC Standards. Equipment
must be installed so that all local signals received in stereo or
with secondary audio tracks (broadcast and PEG Access) are
retransmitted in those same formats. In the case of FM radio
transmission, the above specifications, where applicable, shall
apply.
(5) Upon completion of the rebuild and/or
upgrade, TCI will deliver at least seventy-eight channels of
video programming services to Subscribers. Unless or until
applicable Law permits or compels TCI to do otherwise, TCI shall
provide at least the channels on the Basic Cable Service tier on
the Cable System in analog form. All additional Channels may be
digital. The compression ratio of the digital Channels shall be
based either on TCI' s internal standard or, if applicable, the.
FCC Standards.
7.1.3 Timeline for Completion of Rebuild. The
Cable System upgrade and/or rebuild required under this Section
7.1 shall be completed no later than thirty-six months after the
effective date of this Agreement. The City shall grant
reasonable extensions of time to complete construction in
particular areas of the Service Area if, prior to the scheduled
time for completion, TCI demonstrates to the satisfaction of the
City that, notwithstanding TCI's due diligence, it has been
unable to extend Cable Service to a specified area within the
Service Area because the acts or omissions of a third party (not
including TCI's subcontractors or agents) has caused a delay in
construction beyond delays that could be reasonably anticipated
during the course of an upgrade and/or rebuild, and TCI proposes
a reasonable alternative deadline for extension of Cable Service
to that area within the Service Area.
7.2. Interconnection.
7.2.1 Current Interconnection with Educational
Providers. TCI shall continue to provide at least the level of
interconnection that is in place on the effective date of this
Agreement between the Cable System serving the Service Area and
those communities contiguous to the Cable System on the effective
date of this Agreement, including the DeAnza-Foothills Community
College and Stanford University. If the City requests that TCI
interconnect the Cable System with another Cable Communications
System in order to ·provide locally produced educational access
programming from other qualified educational facilities, TCI
shall promptly enter into negotiations with that other Operator
to determine, among other matters, where the interconnection
000724syn 0071883 12
shall be located, how costs for the interconnection will be
shared, and a schedule for promptly completing the
interconnections. In the event that the interconnection request
is for an area served by TCI or its affiliate, TCI agrees to
provide such interconnection so long as TCI (or its affiliate, as
applicable) is reimbursed by the requesting party for TCI's
reasonable time and material charges or costs required to provide
such interconnection.
7.2.2 Cooperation. The City understands that
interconnection will require the cooperation of other Operators.
The City shall use reasonable efforts to assist TCI in achieving
the cooperation necessary to achieve the interconnection;
provided, however, neither Party shall be liable to the other
Party or its Affiliates if either Party's efforts fail to achieve
the necessary cooperation.
7. 2. 3 TCI Not a Common Carrier. Nothing in this
Agreement shall be deemed to require TCI to assume the status of
a common carrier as defined under applicable Law.
7.3 Institutional Network.
7. 3. 1 General. In conjunction with the upgrade
and/ or rebuild of the Cable System required by Section 7. 1, TCI
shall install and maintain on its upgraded Cable System certain
capacity as described in this Section 7.3 and to be referred to as
the "Institutional Network." The Institutional Network shall be
composed of two parts: ( 1) the PEG/Headend links, described in
Section 7.3.2 below; and (2) the I-Net Links, described in Section
7. 3. 3 below. In addition, TCI shall provide the Institutional
Network Equipment Grant described in Section 7.3.4 below.
7. 3. 2 PEG/Headend Links. TCI shall, at its
expense, construct and maintain throughout the term of this
Agreement, dedicated two-way activated fiber links between the
Headend, the CMAC, and the other upstream PEG insertion points
listed in Exhibit B. Each of these fiber links will be two-way
activated with all necessary associated equipment to transmit and
receive ( 1) the upstream feed of PEG programming from each of the
PEG insertion points in Exhibit B to the CMAC (or to the Headend
and from the. Headend to the CMAC), and from the CMAC to the Headend
for distribution downstream to Subscribers on the PEG channels; and
( 2) the downstream feed of all PEG channels and PEG programming
from the Headend or the CMAC to each of the PEG insertion points in
Exhibit B, so that any other Cable Communications System in the
Service Area may interconnect at either the CMAC or any of the PEG
insertion points in Exhibit B to obtain PEG channel programming to
carry on such Operator's system. Any switching and routing
000724 syn 0071883 13
functions that are performed at the CMAC are the responsibility of
the CAO.
7. 3. 3 I-Net Links. TCI shall, at its expense,
construct and maintain throughout the term of this Agreement, six
optical fibers connecting all of the public facilities listed in
Exhibit C to the CMAC. Each I -Net Link shall be extended to the
point of demarcation at each public facility listed in Exhibit C.
TCI will install the fiber connections to each facility listed in
Exhibit C free of charge where either (1) a cable drop is currently
extended to the facility as of the Effective Date hereof; or ( 2)
the facility is within 200 feet of the closest point of the Cable
System. If a facility in Exhibit C fails to meet either of these
requirements, and the City nevertheless requests extension of the
I-Net Links to that facility, TCI may assess a charge for
installation not exceeding TCI's reasonable time and materials
charges or costs associated with extending the link beyond 200 feet
from the closest point of the Cable System.
7.3.4 Institutional Network Equipment Grant.
Within thirty-one days after Council approval of· this Agreement,
TCI shall cause Co-op to pay the City a grant of Two Hundred Fifty
Thousand Dollars ($250,000) for use by City in its sole discretion
to acquire, install, and/or maintain equipment to be used in
connection with the Institutional Network. TCI agrees that this
payment does not constitute a "franchise fee" within the meaning of
47 u.s.c. §542.
7.3.5 If in the future the City wishes to have the
Institutional Network extended beyond that which is set forth
herein, TCI agrees to charge on a time and materials basis for the
construction of such additional Institutional Network plant.
7. 3. 6 TCI shall not be liable for any indirect,
special, incidental, punitive, consequential or other damages
resulting from a full or partial failure of the Institutional
Network; provided, however, that the foregoing shall not (1) limit
TCI's liability to the City for liquidated damages under Section 16
hereof for any failure of the Institutional Network caused by TCI's
failure to comply with the terms of this Agreement; or (2) limit
TCI's obligation to indemnify the City pursuant to Section 2.10.060
of the Palo Alto Municipal Code.
7.3.7 The Institutional Network may only be used by
the City and such other non-profit users as it designates. The
Parties agree that the Institutional Network will not be used for
commercial purposes, including, without limitation, the provision
of telecommunications services or capacity to third parties for
profit. Notwithstanding the foregoing, the non-commercial
limitation on use of the Institutional Network shall not prevent
000724syn 0071883 14
the use of the Institutional Network for any bona fide public
purpose even if such use generates revenues to reimburse the City,
or other non-profit users designated by the City, for the provision
of services. For the purposes of example, but not limitation, a
bona fide public purpose which would generate revenues and which
would be permitted under this Section would include the
transmission of educational programming for a fee or the sale of
Geographic Information Systems data maintained by the City.
7.4 System Design Review Process.
7. 4. 1 At least sixty days prior to the commencement
date of construction of the upgrade and/or rebuild required by
Section 7.1, TCI shall, subject to Section 19.2 hereof, provide a
Cable System design and construction plan and timeline, which shall
include at least the following elements or their contemporary
equivalent:
(1) Design type, fiber and coaxial cable design,
and the then-planned or known number and location of hubs and
nodes.
(2) Distribution system-cable, fiber, equipment
to be used.
(3) Plans for standby power at the Headend, hubs
and nodes, and satellite terminals (stating the make, model number
and duration capacity of equipment to be used).
(4) Longest amplifier cascade in the Cable System
(number of amplifiers, number of miles, type of cable/fiber).
(5) Design of the Cable System shown on maps of
industry standard scale using standard symbols, depicting, to the
extent then known, all electronic and physical features of the
cable plant.
7.4.2 The City shall have thirty days from the date
TCI provides the City with the design and construction plans set
forth in Section 7. 4. 1 to review and to submit comments on the
plans. TCI must submit a written response to the comments,
including an amended plan, if appropriate, within ten days of the
date it receives the City's comments.
7.4.3 Thirty days before commencing construction of each
phase of the System rebuild, TCI shall provide to the City the
number and -location of nodes for :that phase of the rebuild.
7. 5 Initial Tests. TCI shall perform all tests necessary
to demonstrate compliance with the requirements of this Agreement
000724syn 0071883 15
and other performance standards established by applicable Law.
All tests shall be conducted in accordance with federal rules and
regulations in accordance with the most recent edition of National
Cable Television Association's "Recommended Practices for
Measurements on Cable Television Systems." TCI shall perform at
least the following tests:
7.5.1 Preconstruction quality control on cable and
equipment. TCI shall employ generally accepted industry
procedures to assure the selection of high quality cable
television system components. TCI shall perform quality tests on
any portions of the existing Cable System plant which will be
reused in the Cable System upgrade and/or rebuild, to ensure that
any such portions of the existing Cable System plant are capable
of meeting the required FCC Standards.
7.5.2 Acceptance Tests. TCI shall perform
acceptance tests on the Cable System at the substantial
completion of construction to demonstrate compliance with the FCC
Standards. TCI shall give reasonable advance notice of dates of
the tests, and the City will be permitted to witness or otherwise
monitor the tests. The test results shall be submitted to the
City for review within thirty days of the completion of testing.
TCI shall have the obligation, without further notice from the
City, to take corrective action if any segment is not operating
or performing in compliance with the FCC Standards.
7.6 System Inspections. The City may inspect the Cable
System during and after construction. The City shall have the
right to inspect the Cable System, Subscriber installations of
Cable Services at the Subscribers' premises, and TCI's equipment
used in the maintenance of the Cable System at any time to
determine compliance with the Agreement, the Enabling Ordinance,
and other applicable Laws. The City shall provide five business
days written notice to TCI of such inspection, and the Parties
shall jointly identify the specific locations to be inspected.
Any testing of the Cable System necessary to accomplish such
inspections shall be performed only in the presence of an
authorized employee of TCI. TCI shall be notified, in writing, of
the determination of any violations found during the course of
inspections. If, based on Subscriber complaints or on its own
investigation, the City determines that the Cable System may not
be operating in compliance with this Agreement or the Enabling
Ordinance, it may require TCI to perform additional tests and to
prepare a report to the City on· the results of those tests,
including a report identifying any problem found and steps taken
to correct or attempt to correct the problem. TCI must cure
violations within thirty days of the date it receives written
notice of such violations. Inspection by the City will not
relieve TCI of its obligation to maintain the Cable System in
000724 syn 0071883 16
compliance with the provisions of the Agreement. This provision
is subject to any limitations that may be placed or imposed by
federal law on the City's authority.
7. 6. 1 Continuing Tests. Upon thirty days prior
written notice, the Parties will jointly select test points at
various points of the Cable System to perform ongoing tests of
the Cable System. The number of these test points will be
mutually agreed upon based on what best represents the
architecture of the Cable System. TCI shall perform FCC proof-
of-performance tests at these locations as often as required by
FCC Standards and in conformance with testing required by FCC
Standards, and as mutually agreed upon where Cable System user
complaints indicate tests are warranted or are required to test
all major trunk lines. The City will be permitted to witness the
tests. A written report of the test results shall be filed with
the City within thirty days of the completion of the test. If a
test location fails to meet the FCC Standards, TCI, without the
requirement of additional notice or a request from the City,
shall take corrective action and retest the test locations, and
advise, in writing, the City of the action taken and results
achieved, until the FCC proof-of-performance tests are completed
in all respects.
7.7 Other Construction Procedures. TCI shall:
7.7.1 Follow a Cable System design and construction
plan consistent with its obligations under this Agreement, and
use the equipment specified (or substitute equipment of
equivalent or better quality) in such distribution system design
plan and construction plan (except insofar as those plans, or any
of them, if carried out, would result in the construction of a
Cable System which would not meet the requirements of applicable
Law; and except for such minor modifications as are typical in
the industry) ;
7.7.2 Use equipment of good and durable quality;
7. 7. 3 Provide a quarterly construction report to
the City of the status of the rebuild and/or upgrade in a form
reasonably ·acceptable to the City;
7.7.4 Maintain a file subject to inspection by any
member of the public upon request which shows publicly available
information about TCI's plan and timetable for the upgrade and/or
rebuild of the Cable System in each Joint Powers member's
jurisdiction in the Service Area.
7. 7. 5 Notify residents and businesses in the
Service Area of any planned construction that will occur within
000724syn 0071883 17
the times specified by the Laws of each of the respective
jurisdictions of the Joint Powers, or, if none, at least one day
in advance, before first entering onto property. to perform any
work in conjunction with the Cable System construction, and shall
additionally notify affected residents and businesses in advance
of any work which will involve excavation, the replacement of
poles, or tree trimming;
7.7.6 Provide as-built and
electronic format agreeable to the City
Powers, on request, after the completion
area within the Service Area; and
design maps in an
and any of the Joint
of construction in any
7. 7. 7 Make available to the City, upon · request,
maps showing the actual location of additions or extensions to
its lines within thirty days of completion of construction in any
area within the Service Area.
7.7.8 Nothing herein shall be construed to replace
or substitute for TCI's need, if any, ·to obtain a pole attachment
permit or other agreement issued by the City Department of
Utilities or an underground facilities permit or other agreement
issued by each Joint Powers member's Department of Public Works.
To the extent consistent with applicable Law, any payment made by
TCI pursuant to such permit or agreement will not be considered a
part of or chargeable against the franchise fee to be paid to the
City by TCI pursuant to Section 10 hereof.
7.8 System Maintenance.
7. 8.1 Interruptions to be minimized. Whenever
possible, TCI shall schedule the Cable System maintenance so that
activities likely to result in an interruption of service are
performed during periods of minimum Subscriber use of the Cable
System. TCI shall use best efforts to minimize interruptions of
Cable Service consistent with reasonable and customary
construction practices.
7. 8. 2 Maintenance Practices. In addition to its
other obligations, TCI shall use replacement components of good
and durable quality, with characteristics better or equal to
replaced equipment; and shall follow the more stringent of
industry maintenance standards or corporate maintenance
standards.
7. 9 System Performance. The Cable System shall meet
or exceed the FCC Standards at all times. If the FCC Standards
are no longer in effect, the City may continue to enforce the FCC
Standards as if they were still in effect, or the City may
000724 syn 0071883 18
establish such other standards in a manner consistent with
applicable Law.
7.10 System Extension.
7.10.1 TCI shall upgrade and rebuild the Cable
System so that it is able to provide service to all wired
residential and commercial areas within the Service Area as they
existed on January 1, 2000. TCI must upgrade and rebuild the
Cable System, so that it can extend service to all residential
dwelling·units located in areas which may be added to the current
Service Area, in accordance with Section 7. 10.2 ( 2) . TCI shall
use reasonable efforts in the construction of the Cable System to
serve all residential areas within the Service Area, including
any previously unserved areas, whether or not TCI or its
predecessor was under an obligation to serve, and such service
was not provided. Construction of the Cable System in those
portions of the Service Area that remain unserved by TCI shall be
completed within thirty-six months of the effective date of this
Agreement, subject to the line extension requirements specified
in Section 7.10.2.
7.10.2 Line Extension Requirements.
(1) Service Area Boundaries. TCI must extend
Cable Service upon request to any residential dwelling unit for
no charge other than the then-prevailing normal installation
charge and/or the long drop charge if there are at least thirty
residential dwelling units (or proportionate fraction thereof)
per linear mile (or proportionate fraction thereof) from the
closest point of the Cable System to the requesting residential
dwelling unit. TCI may, however, demonstrate to the City's
satisfaction that extraordinary circumstances justify a waiver of
this requirement, and the City may grant such a waiver.
(2) New Areas.
(a) For those areas within the Service Area
where new residential dwelling units are constructed after
January 1, 2000, TCI will extend its trunk and distribution
portions of the Cable System to serve residential dwelling units
in such newly constructed areas requesting Cable Service after
the effective date hereof at the then-prevailing normal
installation charge and/or the long drop charge, so long as there
are at least thirty residential dwelling units (or proportionate
fraction thereof) per linear mile (or proportionate fraction
thereof) from the closest point of the Cable System to the
requesting residential dwelling unit, unless TCI demonstrates to
the City's satisfaction that extraordinary circumstances justify
a waiver, and the City grants such waiver.
000724 syn 0071883 19
(b) In the event that a new residential
dwelling unit requesting Cable Service is not located within 500
feet (or the equivalent of thirty homes per linear mile) of the
nearest existing Cable System plant, TCI will extend the Cable
System on request based upon the following cost-sharing formula:
i. Total Cost to Construct Extension1
Cable Miles of Extension
ii. Cost Per Cable Mile of Extension
30
iii. TCI's Share of Cost Per
Subscriber Unit Times Number
of Subscriber Units Passed
iv. Total Cost to Construct Extension
Minus TCI's Share of Total
v. Total Subscriber Share
Number of Subscribers
Cost Per Cable Mile of
Extension
TCI's Share of Cost
Per Subscriber Unit
TCI's Share of Total
Cost of Extension
Total Subscriber's Share
Cost Per Subscriber
Requesting Service
7. 10. 3 Subscriber Drops. TCI shall not assess any
additional cost for service drops of 150 feet or less, unless TCI
demonstrates to the City's satisfaction that extraordinary
circumstances justify a higher charge and the City approves of
such additional charge. Where a drop exceeds 150 feet in length,
TCI may charge the Subscriber for the difference between TCI' s
actual costs associated with installing a one-hundred-fifty-foot
drop and TCI's actual cost of installing the longer drop.
7.10. 4 Undergrounding of Drops. In any area where
TCI would be entitled to . install a drop aboveground, TCI will
provide the Subscriber the option to have the drop installed
underground. TCI may charge the Subscriber for the difference
between the actual cost of the aboveground installation and the
actual cost of the underground installation, if the cost of the
underground installation is higher.
7. 10. 5 Time for Extension. TCI shall extend Cable
Service to any Person who requests it:
( 1)
and service can
standard drop to
within seven days
If the Person is located in
be provided by activating
that location, Cable Service
of receipt of the request;
the Service Area,
or installing a
shall be provided
"Total Cost to Construct Extension" is defined as the actual
turnkey cost to construct the entire extension including
electronics, pole make-ready charges, and labor, but not the cost
of the Subscriber drop.
000724 syn 0071883 20
(2) If the Person is located in a newly
constructed area within the Service Area after January 1, 2000,
Cable Service shall be provided in accordance with the following
timelines and conditions:
(a) If the Person is located in an area
where Cable Service can be provided by activating or installing a
service drop, Cable Service shall be provided within seven days
of the receipt of the request;
(b) Subject to the requirements of Section
7. 10. 2 and if the Person requests Cable Service where a Cable
·system extension of 2, 64 0 cable-bearing strand feet (one-half
cable mile) or less is required (weather and ground conditions
permitting), TCI must provide Cable Service according to the
following timeline:
i. Within thirty days of its receiving
a request for Cable Service, TCI shall apply for any required
permits and shall file such permits with the appropriate local or
California agency or utility; and
ii. TCI shall provide Cable Service to
that location within sixty days from the date that TCI has
obtained all required permits for such construction to the
Person's location.
(c) Subject to the requirements of Section
7. 10.2 and if the Person requests Cable Service where a Cable
System extension of more than 2, 64 0 cable-bearing strand feet
(one-half cable mile) is required, TCI must provide Cable Service
according to the following timetable (weather and ground
conditions permitting):
i. Within thirty days of its
receiving a request for Cable Service, TCI shall apply for any
required permits and shall file such permits with the appropriate
local or state agency or utility; and
ii.
Service to that location within
TCI has obtained all required
the Person's location.
TCI shall provide Cable
twelve months from the date that
permits for such construction to
7.11 Public, Educational and Governmental Use.
7 .11. 1 PEG Access Channel Capacity. On and after
the effective date of this Agreement, TCI shall continue to
provide five downstream channels for PEG Access (exclusive of any
000724syn 0071883 21
channel "SVCC Channel" provided by TCI to SVCC pursuant to the
Asset Purchase Agreement between TCI and Co-op) . After the
upgrade and/or rebuild of the Cable System is completed or within
thirty-six months of the effective date of this Agreement,
whichever sooner occurs, a minimum of six downstream channels for
PEG Access (exclusive of the SVCC Channel) shall be provided.
Thereafter, pursuant to the trigger mechanism set forth to
Section 7.11.2, up to a maximum of ten analog channels (exclusive
of the SVCC Channel) or twenty (exclusive of the SVCC Channel)
digital video channels shall be made available for PEG use. The
City shall give TCI at least 120 days prior written notice of the
requirement for activation of additional PEG Access channel
capacity on the Cable System.
( 1) PEG Channels. For purposes of this Section
7.11 and for all other sections of this Agreement that may relate
to this Section, the term "channel" shall refer to the channel
capacity set aside for PEG Access use that is delivered to each
Subscriber, to the extent not inconsistent with Section
2.10.010(11) of the Palo Alto Municipal Code. Each channel shall
consist of 6 MHz of spectrum until such time as all other
channels on the Basic Service tier are delivered in a digital
format, at which time the access channels must be.converted to a
digital format as provided in Section 7.11.1(2) below. When such
digital conversion of PEG Access channel capacity occurs, the
spectrum available on the Cable System for PEG Access use shall
be sufficient to transmit twenty digital channels (exclusive of
the SVCC Channel), subject to the PEG Access triggers specified
in Section 7.11.2. The PEG Access channel capacity that is to be
provided as described above must be capable of transmitting
signals in any industry standard format, and can be used to
transmit video and audio programming or such other type of
programming or other services that may be commonly and generally
provided by television broadcasters in the future. A non-standard
NTSC use shall be subject to TCI's prompt prior review and
approval to ensure that the use will not cause unreasonable
technical interference with other channels. Such uses must be in
furtherance of PEG Access purposes.
( 2) Time line for Digital Conversion of PEG
Channel(s). TCI shall be required to deliver PEG Access channels
to Subscribers in an analog format unless and until all other
channels on the Basic Service tier are delivered in a digital
format. At such time that all other channels on the Basic Service
tier are delivered in digital format, TCI shall be responsible
for all costs associated with delivering PEG Access channels to
Subscribers in digital format. The PEG Access channels must be
receivable by Subscribers without special expense, other than the
expense and applicable equipment required to receive Basic Cable
Service.
000724 syn 0071883 22
7. 11.2 PEG Access Channel Trigger. TCI shall, upon
request, provide additional PEG Access channel(s) (beyond the six
channels (exclusive of the SVCC Channel) to be provided after the
upgrade and/or rebuild, but not more than ten channels (exclusive
of the SVCC Channel) until such time as the System provides PEG
Access channels in a digital format as specified in Section
7.11.1(2)),when the channel usage trigger described in subsection
7.11.2(2) has been achieved. An additional Public Access,
Educational Access or Governmental Access channel may be
requested if the level of programming on the existing Public
Access, Educational Access, or Governmental Access channel(s)
meet(s) or exceed(s) the following:
(1) During ten consecutive weeks, a pre-existing
channel designated for the same purpose as the channel requested
(Public Access, Educational Access or Governmental Access)
cablecasts at least seventy hours per week of qualified
programming. For purposes of calculating the seventy hours per
week of qualified programming, a program may be repeated only
four times after its first run during the ten-week test period.
(2) Qualified programming includes any material
carried on the PEG Access channels that is produced in or
relating to the Joint Powers communities, and any programming of
interest to the Joint Powers communities whose primary purpose is
educational, except for "bulletin board" material where the same
text (or video and text) screen is sent simultaneously to all
System Subscribers. The term "qualified programming" includes
bulletin board material only if the material consists of multiple
and different text (or video and text) screens transmitted to
different Subscribers simultaneously or where the content of the
bulletin board can be selected by a viewer, even if the resulting
message is then available to all viewers of the channel. Such
interactive bulletin board material may trigger no more than one
additional channel.
7 .11. 3 Requirements Regarding Rules and Procedures
for Use of PEG Access Channels.
(1) The City may designate a Community Access
Organization to manage the use of PEG access channels provided in
the Service Area, which are provided pursuant to the Franchise.
(2) The Community Access Organization shall
establish and enforce rules for use of the PEG Access channels to
ensure non-discriminatory access to the extent required by
applicable Law to one or more channels to similarly situated
Users, and promote use and viewership of the channels, consistent
with the obligation to provide non-discriminatory access to
000724 syn 0071883 23
similarly situated Users.
establishing and enforcing
channels during any period
does not exist.
The City shall
rules for use
such Community
be responsible for
of the PEG Access
Access Organization
( 3) TCI may not exercise any editorial control
over the content of programming on the designated PEG Access
channels (except for such programming TCI may produce and
cablecast on the same basis as other PEG Access channel Users).
(4) The PEG Access channels shall be available at
no charge to Users, the Community Access Organization, and/or the
City.
( 5) PEG Access channels may not be used for the
cablecast of commercial advertising or a program whose purpose is
commercial and for-profit without the express written permission
of TCI.
7 .11. 4 PEG Equipment and Facilities. Beginning
seventy-five days after the effective date of this Agreement and
continuing monthly throughout the term of this Agreement, TCI
shall pay to the City, on behalf of the Joint Powers, an amount
equal to $0.88 per month per Residential Subscriber (as defined
below) for PEG Access facilities and equipment. These grants will
be used by the City in its sole discretion for any lawful PEG
Access purposes. For purposes of this Section 7 .11. 4, the term
"Residential Subscriber" shall not include any Person who
receives TCI' s Cable Services as part of a bulk account in a
contract in effect on the Effective Date hereof, and TCI is not
obligated to make payments pursuant to this section for such
Persons for the remaining term of any such preexisting bulk
contracts as long as such contract is not amended, renewed or
extended; provided, however, that TCI does agree that any Person
who receives TCI' s Cable Services as part of any bulk account
contract entered into after the Effective Date hereof or from and
after the time any preexisting bulk contract is renegotiated,
extended, amended or renewed shall be counted as a "Residential
Subscriber" for the purposes of this Section, and the City shall
receive payments for such Residential Subscriber, calculated on
an EBU (equivalent billing unit) basis.
7 .11. 5 Cable Drops for PEG Locations. TCI shall
install, without charge~· one drop ~or the highest level of Basic
Cable Service and one drop for a two-way interactive data
connection to any educational institution, including, but not
limited to, Schools, within the Service Area, designated PEG
Access facility(s), and government buildings that are either (1)
currently served with a cable drop or (2) within 200 feet of the
nearest point or the Cable System. Upon request, TCI shall
000724syn 0071883 24
install a drop to any educational institution, designated PEG
Access facility(s) or government buildings failing to meet either
of the standards in (1) or (2) for a charge not exceeding TCI's
reasonable time and materials charges or costs associated with
extending the drop beyond 200 feet from the nearest point on the
Cable System. The government, School, or access facility may
install facilities and equipment to transmit the signal to all
rooms within a building. All such non-TCI installation of
facilities and equipment shall be in compliance with FCC signal
leakage standards.
7.11.6 Cable Modem Equipment. In deploying and
offering any Internet access service after completion of the
System rebuild, TCI shall provide to all public schools and
public libraries meeting the installation standard specified in
Section 7.11.5 and without charge and without offset against the
franchise fee owed to the City by TCI under this Agreement, one
free cable modem and free unlimited access to both the Internet
and TCI's affiliated cable modem service.
7. 11. 7 Promotion. In order to help develop and
maintain (a) awareness of the PEG Access resources and services,
and (b) viewership of the PEG Access channels by Subscribers, TCI
shall, during the term of this Agreement, provide the following
promotional services to the Community Access Organization, free
of any charges:
(1) Program schedule information for each PEG
Access channel shall be listed in all print and electronic
program guides provided by TCI to Subscribers, in the same manner
as the program schedule information for other cable channels is
listed. TCI shall provide the Community Access Organization
access to third party providers to include PEG Access channel
listings in their print and electronic program guides provided by
TCI to Subscribers. The Community Access Organization shall be
responsible for the timely provision and updating of these
listings. Any fees associated with special placement or handling
beyond the standard manner of presenting program schedule
listings shall be the responsibility of the Community Access
Organization.
(2) CAO Ad Avails.
(A) During the first eighteen months after the
effective date of this Agreement, TCI shall provide to the CAO,
free of charge, five thirty-second ad avails per week, one of
which will be in prime time and four of which will be in non-
prime time.
000724 syn 0071883 25
(B) After the first eighteen months· after the
effective date of this Agreement, the CAO may purchase from the
Cable System, at its lowest unit rate, up to five thirty-second
ad avails per week, one of which will be in prime time (Pacific
Time zone) and four of which will be in non-prime time. Nothing
in Section 7.11.7(2) shall be construed to limit the CAO's
ability to purchase additional ad avail time from the Cable
System at market rates.
(3) On an annual basis, TCI shall allow the
Community Access Organization to submit to it written or printed
material, created at the Community Access Organization's expense,
to be mailed to all subscribers within the Service Area. All
costs of duplicating and mailing the material shall be borne by
the Community Access Organization. TCI shall provide access to
its vendors so as to afford the Community Access Organization the
most affordable printing, deli very and mailing price for the
distribution of the CAO's written or printed material to
Subscribers.
(4) (A) The Parties agree that the numerical
locations for the PEG Access channels shall initially be as
follows: Public Access channels number 6 and 77, Stanford
Educational Access channel number 51 ("Stanford Channel"),
DeAnza-Foothills Community College channel number 50 ("DeAnza
Channel") , and Government Access channel number 16. Prior to
completion of the System upgrade and/or rebuild, TCI may move the
PEG channel locations as long as TCI provides the City and the
CAO with at least sixty days' prior written notice of the move
and TCI also satisfies the following additional conditions:
(i) The three PEG Access channels (exclusive
of the SVCC Channel) other than the Stanford Channel and the
DeAnza Channel must be located (a) on the Basic Service tier; (b)
in close proximity to one another; (c) in an area of the Basic
Service tier where there are at least five other non-PEG Basic
Service Channels; and (d) on channel numbers at or below 33; and
( ii) the Stanford Channel and the DeAnza
Channel must be located on the Basic Service tier, and either (a)
on their present channel locations, or (b) on channel numbers at
or below channel 78 and in close proximity to one another.
(B) In the context of the System upgrade and/or
rebuild, and thereafter throughout the term of this Agreement,
TCI may move:
( i) the . four PEG Access channels (exclusive
of the SVCC Channel and other than the Stanford Channel and the
DeAnza Channel) that TCI is obligated to provide after the
000724 syn 0071883 26
upgrade pursuant to Section 7. 10. 1 hereof only if (a) the City
requests such a move and TCI agrees to accommodate the request,
or (b) the following conditions are satisfied: (i) TCI provides
the City and the CAO with at least 60 days' prior written notice
of the move; ( ii) these four PEG Access channels remain on the
Basic Service tier; (iii) these four PEG Access channels remain
in close proximity to one another and on channel numbers at or
below 33; (iv) TCI provides the City or the CAO with a payment of
$5,000 per channel moved to compensate the City or the CAO for
its costs in preparing for the channel move promoting the new
channel location; and (v) TCI makes available to the CAO, free of
charge, ninety 30-second ad avails in the 45 days immediately
preceding the channel move and ninety 30-second ad avails in the
45 days immediately following the channel move to promote
Subscriber awareness of the channel move; and
(ii) The Stanford Channel, the DeAnza Channel
and any PEG Access channel added pursuant to Section 7. 11.2
hereof (exclusive of the SVCC Channel) only if (a) the City
requests such a move and TCI agrees to accommodate the request,
or (b) the following conditions are satisfied: ( i) TCI provides
the City and the CAO with at least sixty days' prior written
notice of the move; (ii) the PEG Access channels remains on the
Basic Service tier; (iii) each PEG Access channel remains in
close proximity to any other PEG Access Channel ( s) subject to
this Section 7.11.7(4)(B)(2) and on channel numbers at or below
7 8; ( i v) TCI provides the City or the CAO with a payment of
$5,000 per channel moved to compensate the City or the CAO for
its costs in preparing for the channel move promoting the new
channel location; and (v) TCI makes available to the CAO, free of
charge, ninety 30-second ad avails in the 45 days immediately
preceding the channel move and ninety 30-second ad avails in the
45 days immediately following the channel move to promote
Subscriber awareness of the channel move.
7.11.8 General. The Parties agree that any cost to
TCI associated with complying with this Section 7, including,
without limitation, the payments required by Section 7. 3. 4 and
Sections 7.11.4 through 7.11.8 are not part of the Franchise fee,
and fall within one or more of the exceptions to 47 U.S.C. § 542,
as currently adopted.
7.12 Ascertainment of Programming.
7.12.1 TCI shall periodically conduct an
ascertainment of the programming needs, interests, and
preferences of its Subscribers within the Service Area. TCI
shall, if requested, report to the City the results (if any) of
its programming ascertainment and any actions taken, or to be
taken, by it pursuant thereto.
000724syn 0071883 27
7. 12.2 The City at its sole option may undertake a
survey of community views of cable operations in the City,
including, but not limited to, programming, response to community
needs, and customer service.
7.13 No City Control. During the term of this
Agreement, the City may not prohibit TCI from providing any
program or class of programs, or otherwise censor communications
over the Cable System; except that nothing in this Section shall
be read to authorize TCI to engage in communications which are
prohibited by applicable Law or to allow TCI to exercise any
editorial control over PEG channels except to the extent
authorized by federal or California law.
7.14 Emergency Alert System.
7. 14. 1 TCI shall install and maintain an emergency
alert system ( "EAS") in conformance with FCC regulations. The
EAS shall be remotely activated by telephone and shall allow an
authorized representative of each of the members of the Joint
Powers to override the audio and video on all channels on the
Cable System that may be lawfully overridden, without the
assistance of TCI, for emergency broadcasts from a location
designated by each Joint Powers member in the event of a civil
emergency or for reasonable tests. Testing of the EAS shall
occur at times that will cause minimal Subscriber inconvenience.
7. 14. 2 Each Joint Powers member shall permit only
appropriately trained and authorized Persons to operate the EAS
equipment. Except to the extent expressly prohibited by
applicable Law, the City shall hold TCI, its employees and
officers harmless from any claims arising out of the emergency
use of its facilities by the City.
7. 15 Certain Current Services. During the period
in which an area of the table System is not rebuilt, TCI agrees
to use its best efforts to continue to provide the premium FM
services currently provided by Co-op on the Cable System and also
to continue to provide the Internet services currently offered on
the Cable System by Co-op. To the extent that TCI is unable to
continue to provide one or both of these services during this
period, TCI agrees to provide at least sixty days' prior written
notice to the City and Subscribers and shall endeavor to provide
alternative comparable service or services. f
SECTION 8. CONSTRUCTION STANDARDS
8.1 This Agreement does not confer the right to place
or maintain facilities in any particular location, or in any
000724syn 0071883 28
particular manner, or at all times in the Public Rights-Of-Way or
any other property occupied pursuant to this Agreement.
8.2 Without limiting the provisions of Sections 2 and
3 above:
8.2.1 TCI agrees that its occupation of the Public
Rights-Of-Way and such other property is subject to the
supervision and control of the City.
8.2.2 TCI shall move or relocate its facilities as
directed by the City. Should TCI fail to do so, the City after
giving reasonable written notice to TCI may perform the work
required and TCI shall pay the cost thereof. In the event of an
emergency, the City may move or relocate TCI's facilities without
giving notice to TCI. Except as specifically stated, any action
that TCI may be required to take shall be at its expense.
8.2.3 The construction, installation, operation,
and maintenance of the Cable System and all parts thereof shall
be performed in an orderly and workmanlike manner. All such work
shall be performed in accordance with the following safety,
construction, and technical specifications, codes and standards,
as they may now exist or be amended or adopted hereafter:
(1) Occupational Safety and Health Administration
(OSHA) Safety and Health Standards;
(2) National Electrical Code;
(3) National Electrical Safety Code (NESC);
(4) Obstruction Marking and Lighting, AC 70/7460
i.e., Federal Aviation Administration;
(5) Construction, Marking and Lighting of Antenna
Structures, FCC Rules and Regulations, 47 C.F.R. Part 17;
(6) All federal, California
construction requirements, including FCC rules
and environmental regulations;
and municipal
and regulations
( 7) All building and zoning codes and all land
use restrictions and local safety codes;
(8) The Enabling Ordinance; and
(9) CALTRANS Standards for Vehicular Traffic
Control.
000724 syn 0071883 29
8. 2. 4 In the event of a conflict among codes and
standards, the code or standard imposing the most stringent
obligation shall apply (except insofar as those standards, if
followed, would result in a Cable System which could not meet the
requirements of applicable Law. The City may adopt other
standards to ensure that work continues to be performed by TCI in
an orderly and workmanlike manner, or to reflect changes in
standards that may occur during the term of this Agreement.
SECTION 9. RATE REGULATION
9.1 For rates subject to rate regulation by the City,
all charges to Subscribers and Users shall, subject to Section
6. 5. 2 hereof, be uniform throughout the Service Area with a
written schedule of fees for all Cable Services offered to be
made available upon request.
9.2 TCI shall provide each new Subscriber with prices
and options for cable services and conditions of subscription to
cable programming and other services.
9.3 The City may regulate TCI's rates and charges to
the full extent permitted by federal law.
9.4 TCI will notify Subscribers of any proposed rate
increase at least thirty days before the effective date of the
proposed increase. The notice (which may be included in TCI' s
billing sta~ement) will list the FCC community identifier for the
Cable System and the name, address, and phone number of a contact
person or department at the City so that information regarding
procedures for public participation is readily available to
Subscribers.
9.5 The City reserves the right to prescribe
reasonable rates and order refunds, subject to applicable Law, if
it is determined that a rate proposed or charged is unreasonable.
SECTION 10. FRANCHISE FEES
10.1 TCI shall pay to the City a franchise fee in an
amount equal to five percent of Gross Revenues. Should the
federal law limit on franchise fee amounts be eliminated or
changed, the City may alter the fee amount to be paid by TCI
consistent with applicable Law and Section 2.10.250 of the Palo
Alto Municipal Code, provided that the City shall give TCI thirty
days prior written no~ice of any such change in the fee amount.
10.2 Franchise fee payments due the City under this
provision shall be computed at the end of each calendar quarter
and shall be due and payable for the preceding quarter on or
000724 syn 0071883 30
before May 15 (for the first quarter), August 15 (for the second
quarter), November 15 (for the third quarter), and February 15
(for the fourth quarter) of each year. A statement of Gross
Revenues shall accompany each payment for the quarter and a
report showing the basis for computation of fees. Pursuant to
Section 20 .1. 3, the reports shall list a line i tern for every
source of revenue from the operation of the Cable System.
10.3 No acceptance of any payment shall be construed as
an accord and satisfaction that the amount paid is in fact the
correct amount, nor shall acceptance of payment be construed as a
release of any claim the City may have for further or additional
sums payable under this Agreement by TCI.
10. 4 Any Franchise fee payment submitted more than
ten days after the due date shall be subject to an interest
charge, which shall be calculated in accordance with Section
2.10.140 of the Palo Alto Municipal Code.
10.5 TCI agrees that: (i) the franchise fee payments to
be made pursuant to this Section 10 shall not be deemed to be in
the nature of a tax; ( ii) the franchise fee payments shall be in
addition to any and all taxes, other fees, or charges which TCI
or any Affiliate shall lawfully be required to pay to the City,
the Joint Powers, or to any governmental agency or authority, as
required herein by applicable Law, all of which shall be separate
and distinct obligations of TCI and its Affiliates; (iii) neither
TCI nor any Affiliate shall have or make any claim for any
deduction or other credit of all or any part of the amount of the
franchise fee payments, including, but not limited to, payments
made in support of PEG Access under the Franchise and this
Agreement, from or against any of the City taxes, other fees, or
charges which TCI or any Affiliate is required to pay to the
City, except to the extent such payments, fees, taxes, or other
charges are determined to be, by a court of competent
jurisdiction whose decision is no longer subject to appeal, a
"franchise fee" within the meaning of 47 U.S.C. § 542; and (iv)
other than the fee required by Section 10.1, none of the payments
or obligations of TCI required by this Agreement, including
without limitation the payment obligations in Section 7.3.4 and
Sections 7 .11. 4 through 7 .11. 8, is a "franchise fee" within the
meaning of 47 U.S.C. § 542.
10.6 Audits to verify Franchise fee payments may be
conducted by the City on behalf of the Joint Powers members for a
period of four years after any payment is made. TCI will provide
to the City all records relevant to auditing. and verifying fee
payments at a location directed by the City. TCI shall reimburse
the City for the City's reasonable out-of-pocket costs if the
audit results in an increase, by more than two percent of TCI's
000724syn 0071883 31
annual Franchise fee payment to the Joint Powers communities for
the year in question.
10.7 When this Agreement is terminated for any reason
(other than through the issuance of a renewal or superseding
Franchise), TCI shall file with the City within ninety calendar
days of the date its operations in the City cease, a financial
statement, certified by a certified public accountant or TCI' s
chief financial officer, showing the Gross Revenues received by
TCI since the end of the previous fiscal year. Adjustments will
be made at that time for Franchise fees then due to the date that
TCI's operations under the terminated Franchise ceased.
SECTION 11. PERFORMANCE BOND
11.1 Within thirty-one days of the Council's approval
of this Agreement, TCI shall establish in the City's favor a
performance bond that covers all Joint Powers communities in the
amount of one million dollars ($1, 000, 000). A corporate surety
authorized to transact a surety business in California shall
issue the performance bond.
11.2 In the event TCI fails to complete the Cable
System construction, upgrade, and/or rebuild in a safe, timely,
and competent manner in accordance with the provisions of this
Agreement and the Enabling Ordinance, applicable Law, and
permits, or otherwise fails to comply with its obligations under
this Agreement, there shall be recoverable, jointly and
severally, from the principal and surety, any damages or loss
suffered by the City as a result, including the full amount of
any compensation, indemnification, or cost of removal or
abandonment of any property of TCI, or the cost of completing or
repairing the Cable System construction, upgrade and/or rebuild,
or other work, plus reasonable attorneys' fees.
11.3 The City shall reduce the performance bond
requirement to five hundred thousand dollars ($500,000) upon the
satisfactory completion of the construction, upgrade, and/or
rebuild of the Cable System or as evidenced by completion of
acceptance testing in Section 7.5.2 of this Agreement. The City
may reinstate the one million dollar ($1, 000, 000) performance
bond requirement consistent with this Section 11 for any
subsequent major upgrade and/or rebuild of the Cable System.
11. 4 The performance bond shall contain the following
endorsement or a similar endorsement acceptable to the City:
000724 syn 0071883
"This bond may not be canceled, or allowed to
lapse, until sixty days after receipt by the
City, by certified mail, return receipt
32
requested, of
surety of its
renew."
a written notice from the
intent to cancel or not to
11.5 The performance bond required by this Section is
in addition to, and not in lieu of, any bonds required consistent
with the City's normal practices for similar construction
projects.
SECTION 12. SECURITY FUND
12. 1 Within thirty-one days of the Council's approval
of this Agreement, TCI shall post with the City, as beneficiary
for all of the Joint Powers communities, an irrevocable letter of
credit in the amount of $100,000. The City may draw on the letter
of credit as a security fund to ensure the faithful performance
of all provisions of the Enabling Ordinance, this Agreement,
applicable Law, and permits, and the payment by TCI of any
penalties, liquidated damages, claims, liens, fees, or taxes due
the City which arise by reason of the construction, operation,
maintenance or repair of the Cable System. The security fund
shall be maintained consistent with Section 2.10.060 of the Palo
Alto Municipal Code.
12.2 The irrevocable letter of credit shall be approved
as to form by the City Attorney. Subject to Section 14 hereof,
the letter of credit shall in no event require the consent of TCI
prior to the collection by the City of any amounts covered by the
letter of credit.
12. 3 Within three business days of the date the City
draws on TCI' s letter of credit, the City shall send written
notice to TCI notifying it that the City has drawn on the fund,
the amount withdrawn, and the specific reasons for the
withdrawal.
12.4 TCI shall restore the letter of credit to its full
amount within three business days of receipt of the notice
referred to in Section 12.3 hereof. If TCI fails to restore
the security fund to the full amount within ten days, such
failure may be. considered a material breach of this Agreement,
and such failure may be used as a ground for termination of this
Agreement.
12.5 If this Agreement terminates for any reason, and
TCI has ceased to provide Cable Service in the Service Area, the
balance of the security fund that remains following the
termination of the Agreement and full and complete satisfaction
of TCI's obligations to the City which are secured by the fund
shall be returned to TCI. Funds shall not be returned until the
000724 syn 0071883 33
City has determined that TCI does not owe funds to the City and
is not in default under this Agreement.
SECTION 13. SURETIES; RELATION TO OTHER REMEDIES
13.1 The insurance, bonds, security fund, and letter of
credit required by this Agreement and the ·Enabling Ordinance
shall be issued, respectively, by an admitted, licensed or
authorized insurer, surety and issuer, respectively, in
California, acceptable to the City, and by a financial
institution qualified to do business in California acceptable to
the City.
13. 2 Recovery by the City of any amounts under this
Agreement and the Enabling Ordinance shall not in any respect
limit TCI's duty to indemnify the City as required by the
Enabling Ordinance for any unrecoverable amounts due the City;
nor shall recovery of any amounts in any respect prevent the City
from imposing penalties under California law, or exercising any
other right or remedy it may have under this Agreement or at law
or in equity.
13.3 TCI shall provide to the City one or more
certificates of insurance as proof of insurance coverage, bonds
and security fund (cash or letter of credit) required in this
Agreement that names the City as an additional insured under any
insurance policy, as an obligee under any performance bond, and
as a beneficiary under any letter of credit. Such documents
shall be approved as to form by the City Attorney.
SECTION 14. FRANCHISE VIOLATION NOTICE AND
PROCEDURES
14.1 Before terminating this Agreement, assessing
liquidated damages, or pursuing any other remedy available to it
under Sections 11 and 12, the City shall follow the procedures
set forth in this Section 14, the Enabling Ordinance or any other
ordinance of the City pertaining to administrative violations,
including, but not limited to, Chapters 1.12 and 1.16 of the Palo
Alto Municipal Code.
14.2 The City shall notify TCI, in writing, of any
alleged default or breach of this Agreement ("Notice of Default")
or any alleged violation ("Notice of Violation") ["Notice" or
"Notices"] of the Enabling Ordinance. Any such Notice shall: (1)
describe the alleged default or breach or violation; (2) direct
TCI to cure the alleged default or breach or violation or show
cause why the alleged default or breach or violation should not
be or cannot be cured; and, (3) state the time for response. TCI
shall respond to any such Notice within thirty days of the date
000724syn 0071883 34
of issuance, provided, however, the City may give written notice
of less than thirty days in the event the City determines that an
alleged default or breach or violation presents an imminent
physical danger to public health, safety, or welfare.
14.3 Within the time period designated for response,
TCI shall respond, in writing, to the City indicating that: (1)
TCI intends to contest any such Notice, describing all facts
relevant to its claim; or (2) TCI has cured the default or breach
or violation and has provided documentation to the City
demonstrating that the alleged default or breach or violation has
been cured; or (3) TCI has begun to correct the alleged default
or breach or violation, but that with all due diligence the
alleged default or breach or violation cannot be cured within the
time period designated for response, and TCI describing in detail
the steps it already has taken to cure and its plan and schedule
for completely curing the alleged default or breach or violation.
TCI shall not be deemed to have cured the alleged default or
breach or violation until all damages and penal ties owed are
paid.
14.4 If TCI intends to contest any such Notice, or the
City concludes that TCI failed to cure or submit an acceptable
plan for curing the alleged default or breach or violation , the
City may schedule an administrative hearing where TCI will be
asked to show cause why it should not be found in default or
breach or violation of this Agreement. TCI shall be given at
least thirty days written notice of such a hearing.
14.5 The notice given by the City pursuant to Section
14.4 shall indicate the City's intent to review and the time and
place of the hearing. The City shall: (i) provide public notice
of the hearing in compliance with the requirements of applicable
Law; (ii) hear any Person interested therein; and (iii) provide
TCI an opportunity to be heard.
14.6 If the City determines, after conducting any
hearing required by Section 14, that TCI has failed to satisfy
its obligations under this Agreement or applicable Law, the City
may issue an order assessing liquidated damages, or (subject to
Section 2.10.070 of the Palo Alto Municipal Code and Section 15
hereof, revoke the Franchise.
SECTION 15. TERMINATION, REVOCATION, AND FORFEITURE
15.1 In addition to all other rights, powers, and
remedies reserved by the City, the City shall have the
additional, separate, and distinct right to revoke the Franchise
if TCI:
000724syn 0071883 35
15. 1. 1 Defrauds or attempts to defraud the City or
Subscribers, willfully submits materially misleading information
to the City, or willfully withholds information from the City
that the City has a right to request;
15.1.2 Attempts to avoid or evade any material
provision of Chapter 2.10 of the Palo Alto Municipal Code
(incorporating other provisions of the Palo Alto Municipal Code)
or applicable Law relating to the construction, operation,
maintenance or repair of the Cable System;
15.1.3 Violates any material provision of· this
Agreement or any material rule, order, or regulation enacted by
the Council in accordance with this Agreement; or
15. 1. 4 Abandons its Franchise by being deemed to
have willfully refused to operate the Cable System, when there is
no event beyond TCI's control that prevents the operation of the
Cable System, and where the operation of the Cable System would
not endanger the health, safety or welfare of the public or
property.
15.2 Upon the revocation of the Franchise or the
expiration or termination of this Agreement by passage of time or
otherwise, the City shall have the right to require TCI to
remove, at TCI's expense, the Cable System from streets and other
portions of the Public Rights-Of-Way, public property, and any
private property occupied pursuant to the revocation,
cancellation or termination of the Franchise and this Agreement.
The City shall notify TCI, in writing, that the Cable System
shall be removed, and identify any period during which TCI will
be required to continue to operate the Cable System as provided
in Section 18 hereof. In removing the Cable System, TCI shall
refill and compact, at its expense, any excavation that shall be
made,· and shall leave all streets and other portions of the
Public Rights-Of-Way, public property, and private property in as
good a condition as that prevailing prior to installation of the
Cable System. TCI's obligation to remove the Cable System shall
survive the termination of this Agreement.
15.3 Upon the termination of this Agreement, TCI may
sell or trans fer the ownership of the Cable System, subject to
Section 2.10.040 of the Palo Alto Municipal Code, so long as such
transfer of ownership is both consented to by the City and
consummated within ten months of the date of termination of this
Agreement.
15.4 Notwithstanding the portion of Section
2.10.070(a) of the Palo Alto Municipal Code as in effect on the
effective date hereof that makes reduction of the term of a
000724 syn 0071883 36
franchise one of the City's available remedies for violation of
this Agreement or the Enabling Ordinance, the City agrees to
refrain from imposing on TCI a reduction of the franchise as a
remedy (but not to refrain from imposing any other remedy,
including without limitation, revocation or termination of the
franchise, for TCI's violation of this Agreement or the Enabling
Ordinance) .
SECTION 16. LIQUIDATED DAMAGES
16.1 Because TCI's failure to comply with provisions of
this Agreement will cause the Joint Powers, including the City,
to sustain damage, and because the Parties agree that it will be
difficult to estimate the extent of such damage, the Parties
hereby agree that the liquidated damages specified below shall
represent the Parties' reasonable estimate of the damages
resulting from TCI's failure to comply. TCI waives any claim or
defense that the liquidated damages that may be assessed under
this Agreement are unenforceable as a penalty or on the basis
that they do not fairly approximate the actual damages caused by
TCI' s default or breach or violation of this Agreement. TCI
further agrees that the liquidated damage amounts represent the
damages to the City and are collectible by and payable to the
City.
16.2 For failure to complete the construction or extend
Cable Service in accordance with this Agreement: $1,250 per day
for each day the breach or violation continues;
16.3 For failure to comply with the material
requirements for PEG Access use of the Cable System (other than
the requirements specified in Section 7.11.4): $500 per day for
each day the breach or violation continues;
16. 4 For repeated, will·ful, · or continuing failure to
submit reports, maintain records, provide documents or
information: $250 per day for each day the breach or violation
continues;
16.5 For
standards that are
violation per day;
breach or violation
not measured quarterly:
16.6 For breach or violation
standards that are measured quarterly:
breach;
of customer service
$250 per breach or
of customer service
$1,250 per quarterly
16.7 For failure to comply with transfer provisions:
$1,000 per day from the date of any unlawful transfer; and
000724 syn 0071883 37
16.8 For all other material violations for which actual
damages are not readily ascertainable: $150 per day for each day
the breach or violation continues.
SECTION 17. CUMULATIVE REMEDIES
17.1 All remedies provided under this Agreement or the
Enabling Ordinance shall be cumulative, unless otherwise
expressly stated. The exercise of one remedy shall not foreclose
use of another (except that the City may not collect both
liquidated damages and actual damage for the same violation
unless California law allows otherwise) , nor shall the City's
exercise of a remedy relieve TCI of its obligations to comply
with this Agreement. Remedies may be used singly or in
combination; in addition, the City may exercise any rights it has
at law or in equity.
SECTION 18. CONTINUITY OF SERVICE
18.1 TCI represents and warrants that all Subscribers
in the Service Area shall be entitled to continuously receive all
available Cable Services from TCI, provided that they are not in
default with regard to any financial or non-financial obligation
to TCI, and they have not cured such default within the time
allowed by contract or by applicable Law.
18.2 In the event of the termination or transfer of
this Agreement, TCI shall ensure that all Subscribers receive
continuous, uninterrupted service regardless of circumstances in
accordance with this Section 18. At the City's request, TCI
shall cooperate with the City to operate the Cable System for a
temporary period ("Transition Period") following the termination
or the transfer of the Franchise as necessary to maintain the
continuity ·of service to all Subscribers, and shall cooperate in
the development of plans required to ensure an orderly transition
from one Operator to another. The Transition Period will be no
longer than a reasonable period of time required by the City to
select another franchisee, but shall not be less than ten months,
unless the Parties agree to a shorter or longer period of time.
During the Transition Period, the Cable System shall be operated
consistent with the terms and conditions of this Agreement and
the Enabling Ordinance.
18.3 In the event TCI fails to operate the Cable System
for ninety-six hours during any seven-day period without the
prior approval of the City, or if the Cable System is abandoned
under the provisions of Section 15. 1. 4, the City may, at its
option, operate the Cable System or designate an Operator until
such time as TCI restores Cable Service under conditions
acceptable to the City or until this Agreement is terminated and
000724 syn 0071883 38
another Franchisee is selected. If the City is required to
fulfill this obligation for TCI, TCI shall reimburse the City for
all costs and damages resulting from TCI' s failure to perform
hereunder. Additionally, TCI will cooperate with the City to
allow City employees and/ or agents reasonable access to TCI' s
facilities and premises for the purpose of continuing Cable
System operations.
SECTION 19. RECORDS INSPECTION
19.1 The City may inspect and copy the books, records,
maps, plans, and other documents, including financial documents
(subject to applicable confidentiality requirements), in the
control or possession of TCI or its Affiliates, or any contractor
or subcontractor of TCI: ( i) reasonably necessary to enforce the
City's rights or assess TCI' s compliance or lack thereof with
this Agreement and applicable Law; ( ii) reasonably necessary in
the exercise of any power the City may have under this Agreement
or applicable Law; or (iii) as may be reasonably necessary in
connection with any proceeding applicable Law permits the City to
conduct with respect to the Cable System. TCI shall be
responsible for collecting the information requested. The
material shall be produced at the City Manager's Office -unless
the City agrees to inspection and copying at another location.
Material that the City requires TCI to produce under this Section
shall be produced upon reasonable notice, no later than thirty
days after the request for production. Requests for extensions
of time to respond shall not be unreasonably denied.
19.2 Access to TCI's records shall not be denied to the
City on the basis that the records contain proprietary
information. Subject to applicable Law, including the California
Public Records Act, California Government Code § 6250 et seq.,
the City shall keep any information which is marked "proprietary"
or "confidential" (and, under applicable Law, deemed
"proprietary" or "confidential") submitted by TCI as required
under this Agreement ("Information") in confidence. The City
shall not disclose the Information or any part thereof to any
third party, government agency or regulatory body seeking to
inspect or obtain the Information without first informing TCI of
such request and affording TCI the opportunity to resist such
disclosure at its sole cost and expense. The City shall not be
liable to TCI for any submission or disclosure of such
Information to a third party as required by applicable law or to
a government agency or regulatory body seeking the Information
and claiming jurisdiction in any of these events. Nothing in
this Section 19.2 shall limit the right of TCI to contest
disclosure or submission to a third party as required by Law or
to a government agency or regulatory body asserting jurisdiction
000724syn 0071883 39
over it or such subject matter before such disclosure shall be
effected.
SECTION 20. REPORTS AND RESPONSES TO QUESTIONS
20.1 TCI shall provide the following reports on a
quarterly basis, in a form acceptable to the City, at the time
TCI is scheduled to make its Franchise fee payment:
20.1.1 A report showing the number of service calls
completed by type during the prior quarter and the number of
service calls compared to the Subscriber base;
20 .1. 2 A report showing the number of outages as
defined in the Enabling Ordinance for the prior quarter,
identifying separately: ( 1) each planned outage, the time it
occurred, its duration, and the estimated number of Subscribers
affected; and (2) each unplanned outage, the time it occurred,
its estimated duration, the area and the estimated number of
Subscribers affected;
20.1.3 A Franchise fee report showing Gross Revenues
received, by category, in a form acceptable to the City such
report shall meet the requirement of Section 10; and
20 .1. 4 A report stating the Subscriber totals for
each member of the Joint Powers for: ( 1) each basic Cable
Service tier; ( 2) each premium Cable Service; ( 3) pay-per-view,
and; ( 4) any other programming service, information service, or
non-programming service.
20.2 Within ninety days after the close of TCI's fiscal
year, TCI shall submit a written annual report, in a form
approved by the City, including, but not limited to, the
following information:
20.2 .1 A summary of the previous year's activities
in the development of the Cable System within the Service Area,
including, but not limited to, additions, deletions, or
improvements begun or discontinued during the reporting year,
services initiated or discontinued, number of Subscribers
(including gains or losses) , homes passed, and /miles of cable
distribution plant in service;
20.2.2 An audited financial statement, including,
but not limited to, a statement of TCI's income and profit and
loss statement, a statement of financial condition or any other
operating statement that shall be certified by an officer of
TCI; and
000724syn 0071883 40
20.3 Unless otherwise specified and within thirty days
upon request, TCI shall provide the following documents to the
City:
20.3 .1 Within thirty days of the date mailed to
shareholders or partners, the annual report or reports, if any,
of TCI and any Affiliate which controls, owns, or manages TCI;
20.3.2
the Cable System;
Copyright filings regarding the operations of
20.3. 3 FCC Forms 325 and 395 (or their successor
forms) for the Cable System;
20.3.4 FCC proof of performance and RF signal
leakage tests (or their equivalent); and
20.3.5 Such other information relevant to regulation
of the Franchise which the City shall reasonably request.
20.4 TCI shall file with the City any notice of
deficiency, forfeiture, or other document issued by any
California or federal agency which has instituted any
investigation or civil or criminal proceeding naming the Cable
System, TCI, or any Operator of the Cable System, to the extent
the same may affect or bear on the operations of the Cable
System.
20.5 TCI shall file, within ten days of filing or
receipt, with the City any request for protection under
bankruptcy laws, or any judgment related to a declaration of
bankruptcy by TCI or any Affiliate which owns, controls, or
manages or which is owned, controlled or managed by TCI, or any
Operator of the Cable System.
SECTION 21. RECORDS MAINTENANCE
21.1 TCI shall maintain records described below in
a form reasonably acceptable to the City. The records shall be
kept at TCI's local office and shall be available for review and
copying by the City during normal business hours. Except for the
records referred to in Section 21.1.4, copies of records made and
retained by the City pursuant to this Section 21 shall be subject
to Section 19.2. Records of any event recorded shall be kept for
the time frame indicated below:
duration,
type of
21.1.1 Records of outages, indicating date,
area and the estimated number of Subscribers affected,
outage, and cause to be maintained for four years,
000724 syn 0071883 41
notwithstanding the provisions of Sections 2.10.080(a) and
2.10.110(a) of the Palo Alto Municipal Code;
21.1.2 Records of service calls for repair and
maintenance, indicating the date and time that service was
requested, the date and time that service was scheduled (if it
was scheduled) , the date that service was provided, and (if
different) the date the problem was solved to be maintained for
four years, notwithstanding the provisions of Sections
2.10.080(a) and 2.10.110(a) of the Palo Alto Municipal Code;
21.1.3 Records of installation/reconnection and
requests for service extension, indicating the date of request,
the date of acknowledgment, and the date and time that service
was extended (to be maintained for four years, notwithstanding
the provisions of Sections 2.10.080(a) and 2.10.110(a) of the
Palo Alto Municipal Code); and
21.1.4 Maps depicting the current location of all of
TCI's Cable System plant in public rights-of-way, including the
location of all trunk and feeder lines.
SECTION 22. PERFORMANCE MONITORING
22.1 Triennial Review
22. 1. 1 During the years that commenc~ on the third
and/or sixth anniversaries of the effective date of this
Agreement, and every third year thereafter if this Agreement is
renewed or extended, the City may commence a review of TCI' s
performance under this Agreement. As part of this review, the
City may consider: (i) whether TCI has complied with its
obligations under this Agreement and applicable Law; (ii) whether
customer service standards, technical standards, or bond or
security fund requirements are adequate or excessive; and (iii)
other issues as may be raised by TCI, the City, or the public.
22.1.2 If the City conducts a review under Section
22.1.1, then the City shall hold at least one public hearing at a
lawfully noticed Council meeting to provide TCI and the public
the opportunity to comment on TCI's performance and other issues
considered as part of this review.
22.2 TCI Cooperation. TCI shall cooperate in the
triennial reviews described in this section.
22.3 Exercise of Authority.
appropriate regulatory authority under
Agreement and applicable Law.
000724 syn 0071883 42
The City may exercise
the provisions of this
SECTION 23. OTHER CITY RIGHTS
Nothing herein shall prohibit the City from exercising
its rights to acquire or assign the Cable System pursuant to 47
U.S.C. § 547 (a) (1) or (b) (1).
SECTION 24. OPEN ACCESS
24.1 TCI shall comply with all applicable and lawful
requirements with respect to nondiscriminatory access to its
Cable Modem platform(s) for all Internet Service Providers.
24.2 In deploying and offering any Internet access
service over the Cable System, neither TCI nor any of its
Affiliates shall deny access to, or phase construction or
deployment of, such Internet access service to any group of
Subscribers or potential Subscribers because of the income, race,
color, national origin, religion, gender, sexual orientation, age
or disability of the Subscribers or potential Subscribers of the
local area in which such group resides.
24.3 Nothing in this Agreement shall be construed as a
waiver of any right the City may have under applicable Law to
regulate cable modem service offered by cable operators, or of
any right TCI may have to challenge any such regulation as
contrary to applicable Law.
SECTION 25. MISCELLANEOUS
25.1 Time of Essence. Time is of the essence with
respect to the ob1igations of the Parties and each of them.
25.2 Compliance with Laws. TCI must comply with
applicable Law. If the City's abiiity to enforce any provision of
this Agreement is finally and conclusively preempted, then the
provision shall be deemed preempted but only to the extent and
for the period the preemption is required by applicable Law. If,
as a result of a change in applicable Law, the provision would
again be enforceable, it shall be enforceable and TCI will comply
with all obligations thereunder after receipt of notice from the
City.
25.3 Force Majeure. TCI shall not be deemed in default
or non-compliance with provisions of the Franchise where
performance was rendered impossible by war, riots, civil
disturbance, hurricanes, floods, other natural catastrophes,
labor disputes, or similar events beyond TCI's control, and the
Franchise shall not be revoked or TCI shall not be penalized for
such non-compliance, provided TCI takes immediate and diligent
steps to bring itself back into compliance and to comply as soon
as possible under the circumstances with the Franchise without
000724 syn 0071883 43
unduly endangering the health, safety, and integrity of TCI' s
employees or property, or the health, safety, and integrity of
the public, streets, public property, or private property.
25.4 Severability. If any provision of this Agreement
is held by a court or by any federal or California agency of
competent jurisdiction in a final action to be void, voidable, or
unenforceable as conflicting with any federal or California law,
rule, or regulation now or hereafter in effect, such provision
shall be deemed severable from the remaining provisions of this
Agreement and shall not affect the validity of the remaining
sections hereof.
follows:
25.5 Written Notice. Notices shall be given as
To the City:
Office of the City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copies to:
Office of the City Manager
250 Hamilton Avenue
P. 0. Box 10250
Palo Alto, CA 94303
To TCI:
Franchise Department
TCI Cablevision of California, Inc.
d.b.a. AT&T Broadband
12647 Alcosta Blvd.
Suite 200
San Ramon, CA 94583
Copies to:
Area Director
TCI Cablevision of California
d.b.a. AT&T Broadband
1691 Bayport Avenue
San Carlos, CA 94070
Notice shall be deemed given three business days after
posting with pre-paid postage, first class mail, or immediately
000724syn 0071883 44
upon hand-delivery to the person identified above, at the address
specified above.
25. 6 Conflict between Agreement and Enabling
Ordinance. The Parties agree that, except as provided in
Sections 2.6.1, 6.1.1, 6.4.2, 15.4, 21.1.1, 21.1.2, and 21.1.3
hereof, there is no conflict between any provision of this
Agreement and any provision of the Enabling Ordinance as in
effect on the effective date of this Agreement. Subject to TCI's
reservation of rights in Section 2.6.1, any lawful amendment to
the Enabling Ordinance made after the effective date of this
Agreement that conflicts with any provision of this Agreement, or
any Amended Agreement, shall control.
25.7 California Law Applies. Except as to matters
that are governed solely by federal law, this Agreement will be
governed by and construed in accordance with the laws of the
State of California, without regard to its conflicts of law rules
or principles.
25. 8 Burden of Proof. For the purposes of all
proceedings before the City Manager or the Council pursuant to
this Agreement, wherever this Agreement requires that an action
be taken or not taken by TCI or the City on the basis of
operational, technical, or economic feasibility or viability, TCI
shall have the burden of demonstrating the existence or lack, as
applicable in the case of a particular provision of this
Agreement, of that feasibility or viability.
25.9 Integration. This Agreement contains the
entire understanding between the Parties with respect to the
subject matter herein. There are no representations, warranties,
agreements or understandings (whether oral or written) between
the Parties relating to the subject matter hereof which are not
fully expressed in this Agreement.
25.10 Amendment. This
amended except pursuant to a written
Parties.
Agreement
instrument
shall not be
signed by the
25.11 Headings. The Section headings
Agreement are inserted for convenience of reference only,
a part of this Agreement, and shall have no effect
construction or interpretation of this Agreement.
of this
are not
on the
25.12 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one and the
same instrument.
000724syn 0071883 45
25.13 Exhibits. All exhibits, which may be amended
from time to time, may be referred to in any duly executed
amendment to this Agreement and are by such reference
incorporated
hereof.
in this Agreement, and shall be deemed a part
25.14 Venue. In the event that suit is brought by
a Party, the Parties agree that trial of such action shall be
vested· exclusively in the state courts of California, County of
Santa Clara, or in the United States District Court, Northern
District of California, in the County of Santa Clara.
25.15 Representation by Counsel. Each Party and
its counsel have reviewed this Agreement. Accordingly, the
normal rules of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be
employed in the construction and interpretation of this
Agreement.
25.16 Calculation of Time. For the purposes of
this Agreement, the time in which an act is to be performed shall
be computed by excluding the first day and including the last.
Except as provided otherwise in this Agreement, if the time in
which an act is to be performed falls on a Saturday, Sunday, or
any day observed as an official holiday by the City, the time for
performance shall be extended to the following business day.
II
II
II
II
II
II
II
II
II
II
II
II
000724 syn 0071883 46
IN WITNESS WHEREOF, the Parties by their duly appointed
representatives have executed this Agreement in Palo Alto, County
of Santa Clara, State of California on the date first above
stated.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Director of Administrative
Services
Risk Manager
EXHIBITS:
A SERVICE AREA MAP
CITY OF PALO ALTO
Mayor
TCI CABLEVISION OF CALIFORNIA,
INC.
By: -------------------------------
Name: -----------------------------
Title: ----------------------------
By: -------------------------------
Name: -----------------------------
Title: ----------------------------
Taxpayer Identification No.
(Compliance with Corp. Code § 313 is
required if the entity on whose
behalf this contract is signed is a
corporation. In the alternative, a
certified corporate resolution
attesting to the signatory authority
of the individuals signing in their
respective capacities is acceptable)
B INSTITUTIONAL NETWORK -CITY AND TOWN HALLS
000724 syn 0071883
C INSTITIONAL NETOWRK -SCHOOL, SCHOOL DISTRICTS
AND PUBLIC FACILITIES
47
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
ss.
On , 2000, before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared
personally known to me or proved to me on the basis of
satisfactory evidence to be the person (s) whose name (s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
·capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
48
000724 syn 0071883
·STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
ss.
On , 2000, before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared
personally known to me or proved to me on the basis of
satisfactory evidence to be the person (s) whose name (s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s)7 or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
49
000724 syn 0071883
EXHIBIT B
[ 11 COMPROMISE AND SETTLEMENT AGREEMENT 11 ]
000831 syn 0071832
COMPROMISE AND SETTLEMENT AGREEMENT
This Compromise and Settlement Agreement
("Agreement"), dated 2000, is made and entered
into by THE CITY OF PALO ALTO, a California charter city and a
municipal corporation ("City"), and CABLE COMMUNICATIONS
COOPERATIVE OF PALO ALTO, INC., a California consumers
cooperative corporation ("Co-op") ["Party" or "Parties"], in
reference to the following facts and circumstances:
RECITALS:
1. The City is a party to a certain Joint Exercise of
Powers Agreement, dated July 26, 1983, and a certain Joint
Operating Agreement, dated October 13, 1983. Under those
agreements, the City is authorized to act on behalf of itself
and the Town of Atherton, the City of Menlo Park, the City of
East Palo Alto, the County of San Mateo, and the County of Santa
Clara ("Joint Powers") to administer certain cable television
franchise matters.
2. The City and Co-op entered into a certain Amended
and Modified Franchise Agreement By and Between the City of Palo
Alto On Behalf Of The Joint Powers And Cable Communications
Cooperative of Palo Alto, Inc., dated February 28, 1991
("Franchise Agreement"), which remains in.effect until March 24,
2001. Under the Franchise Agreement, Co-op has the nonexclusive
right to construct, operate and maintain a cable system
("System") in the streets of the Joint Powers to provide cable
television service to the residents of the franchise service
area.
3. Co-op has entered into a certain Asset Purchase
Agreement By and Between Cable Communications Cooperative of
Palo Alto, Incorporated and TCI Cablevision of California, Inc.,
a Subsidiary Of AT&T Corp., dated September 7, 1999, as amended
(as so amended, "Asset Purchase Agreement") . Under the Asset
Purchase Agreement, Co-op has agreed to sell the System and
assign and transfer its rights and obligations under the
Franchise Agreement to TCI Cablevision of California, Inc.
("TCI"), a subsidiary of AT&T Broadband L.L.C. ("ATTBL") and a
wholly-owned, indirect subsidiary of AT&T Corp. ("AT&T"), and
TCI has agreed to purchase the System and assume Co-op's right,
title and interest in the franchise. The right to sell the
System and transfer any right, title or interest in the
franchise is subject to, among other things, the City's prior
consent.
1
000724 syn 0071903
EXHIBIT B
4. Under the Franchise Agreement, the Council may
require, as a condition to consenting to a sale or transfer of
the franchise, that TCI shall agree to adhere to and to assume
and be bound by all applicable provisions of the Franchise
Agreement, including agreeing to pay the outstanding financial
obligations of Co-op to the City. The Asset Purchase Agreement
does not obligate TCI to pay the outstanding financial
obligations of Co-op to the City, but instead it makes Co-op
responsible and liable for the City's claims against Co-op
before the sale and transfer is consummated. The preceding
sentence notwithstanding and pursuant to the New Franchise
Agreement referred to below, Co-op and/or SVCC will pay the City
a grant in the sum of $250,000 for use by the City in its sole
discretion to acquire equipment to be used in connection with
the Institutional Network, as such term is defined in the New
Franchise Agreement.
5. TCI and the City expect to reach agreement on
mutually acceptable terms and conditions of a new franchise
agreement ("New Franchise Agreement") on or before the Closing
Date referred to below. The City seeks to compromise and settle
its claims against Co-op on or before that date, and Co-op
wishes to resolve those claims on or before that date.
6. The Council has determined that consent to the
proposed sale and transfer to TCI is in the public interest, but
only if, among other things, Co-op is willing to compromise and
settle the City's outstanding claims resulting from Co-op's
alleged failure to fully perform under the Franchise Agreement
and make the other payments to the City as set forth in this
Agreement.
7. This Agreement shall take effect on the Closing
Date (as that term is defined in the Asset Purchase Agreement),
provided that, on or before the Closing Date, (a) TCI accepts
and executes the New Franchise Agreement, (b) SVCC accepts and
executes a certain Agreement between the City of Palo Alto on
behalf of the Joint Powers Silicon Valley Community
Communications, Inc. concerning facilities and equipment for the
Mid-Peninsula Access Corporation, (c) Co-op accepts and executes
this Agreement, (d) Co-op makes the payment to the City in
accordance with Section 3 hereof, and (e) the Council approves
the New Franchise Agreement, the Agreement with Silicon Valley
Community Communications, Inc., and this Agreement, entered into
by the City and TCI, SVCC, and Co-op, respectively. If the
Council fails to approve such agreements with TCI, SVCC
and Co-op or TCI, SVCC and Co-op fail to accept and execute
2
000724 syn 0071903
their respective agreements, this Agreement shall be void and of
no effect.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants, terms
and conditions of this Agreement, the Parties agree, as follows:
1. This Agreement consists of (a) a compromise and
settlement in the amount of $220,000 by the Parties of the
City's claims against Co-op for its alleged failure of
performance under the Franchise Agreement for the period of time
to and including the Closing Date ("Claims Termination Date"),
(b) a payment in the amount of $185,000 by Co-op to the City for
the City's costs incurred in connection with the renewal of the
Franchise Agreement, and (c) a payment in the amount of $250,000
by Co-op and/or SVCC as a grant to the City in connection with
the Institutional Network obligations under the New Franchise
Agreement.
1. 1 By executing this Agreement, each of the Parties
intends to and does hereby extinguish the claims now existing
between them, subject only to the satisfaction of the following
conditions: that, on or before the Closing Date, (a) TCI accepts
and executes the New Franchise Agreement, (b) SVCC accepts and
executes a certain Agreement between the City of Palo Alto on
behalf of the Joint Powers and Silicon Valley Community
Communications, Inc., concerning facilities and equipment for
the Mid-Peninsula Access Corporation, (c) Co-op accepts and
executes this Agreement, (d) Co-op makes the payment to the City
in accordance with Section 3 hereof, and (e) the Council by
resolution conditionally approves the New Franchise Agreement,
the Agreement with Silicon Valley Community Communications,
Inc. , and this Agreement, entered into by the City and TCI,
SVCC, and Co-op, respectively; and, provided that, if the
Council fails to approve such agreements with TCI, SVCC and Co-
op, respectively, or TCI, SVCC and Co-op, respectively, fail to
accept and execute their agreements, this Agreement shall be
void and of no effect. This Agreement is not, and shall not be
treated as, an admission of liability by either Party for any
purpose.
1. 2 If all of the conditions and provisions specified
in this Agreement are satisfied, the New Franchise Agreement
shall take effect and the Franchise Agreement shall terminate
and be of no force or effect. If any of the conditions and
provisions specified in this Agreement is not satisfied, then
3
000724 syn 0071903
the New Franchise Agreement shall not take effect and the
Franchise Agreement shall remain in full force and effect.
2. In consideration of the payment of Six Hundred
Fifty-Five Thousand Dollars ($655,000) ("Settlement Funds"),
representing the sums of money referred to in Section 1 hereof,
and further subject to the provisions hereof, including,
Sections 1 and 1.1, the City hereby compromises and settles and
generally releases the Indemni tees (as defined below) from all
past and present (through and including the Claims Termination
Date) claims, demands, obligations or causes of action for
compensatory, punitive or other damages, costs, expenses, losses
and compensation, whether based on tort, contract, or other
theories of recovery, which it has or which have accrued to it
as of the Claims Termination Date against Co-op, its directors,
officers, predecessors, and successors in interest and. assigns
("Indemnitees"). The Parties agree that the compromise and
settlement shall constitute a bar to all such claims.
3. Co-op shall pay the Settlement Funds on the Closing
Date by wire transfer to the City's designated bank account with
Bank of America NT & SA or any other method designated, in
writing, by the City's Director of Administrative Services,
notice of which will be provided to Co-op.
4. Co-op shall indemnify and hold harmless the City
from and against any damages, liabilities, demands, actions,
claims, costs and expenses arising out of any claim to the
Settlement Funds, and shall defend by counsel reasonably
acceptable to the City from and against any action or proceeding
brought by any claimant to the Settlement Funds.
5. This Agreement shall be admissible as evidence
pursuant to California Evidence Code section 1123.
6. Each Party to this Agreement, for itself, its
directors, council members, officers, employees, shareholders,
members, partners, affiliates (past, present and future),
successor in interest and assigns, in consideration of the
mutual covenants herein, hereby releases and forever discharges
the other Party to this Agreement, its directors, council
members, officers, employees, shareholders, members, partners,
affiliates (past, present and future), successor in interest and
assigns, of and from any and all actions, causes of action,
claims and demands of whatever nature, at law or in equity,
known or unknown, which such party now has, ever had, or
hereafter may have, generally arising out of or relating to the
facts set forth in the Recitals above and the actions or
4
000724 syn 0071903
omissions of the Parties relating to the Franchise Agreement
arising on or before the effective date hereof, except for the
rights and obligations specifically created by and under this
Agreement.
7. Subject to the other covenants, terms and
conditions of this Agreement, the Parties expressly waive the
provisions and benefits of Section 1542 of the California Civil
Code, which provides:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
and agree as a further consideration and inducement for this
Agreement that this Agreement sha·ll apply to all unknown and
unanticipated losses or damages arising out of the subject
matter of this Agreement, which losses or damages hereafter may
be claimed by the Parties, as well as to those such losses or
damages known by the Parties.
8. When is appears from the context that several acts
are to be performed at the same time, each such act shall be a
condition precedent to the remaining acts and all such acts
shall be performed concurrently, as practicable.
9. If a court (or arbitrator) of competent
jurisdiction holds any section, paragraph or clause of this
Agreement to be invalid or unenforceable, in whole or in part,
for any reason, the validity and enforceability of the remaining
sections, paragraphs, clauses, or portions of them, shall not be
affected, unless an essential purpose of this Agreement would be
defeated by the loss of the invalid or unenforceable provision.
10. Nothing herein
exercising any discovery rights
involving another party in
involving a third party.
shall preclude a Party from
that a Party may have against or
any litigation or arbitration
11. The Parties shall execute any and all documents
reasonably necessary or appropriate to carry out the covenants,
terms and conditions of this Agreement.
12. This Agreement has been prepared and negotiated by
the Parties hereto, and no provision shall be construed in favor
5
000724 syn 0071903
of or against the other on account of the drafting of this
Agreement.
13. Each Party and its counsel have reviewed this
Agreement; Grant Kolling has represented the City of Palo Alto,
and Peter Carson has represented Co-op. Accordingly, the normal
rules of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in
the construction and interpretation of this Agreement.
14. The laws of the State of California shall govern
the interpretation and enforcement of this Agreement, without
regard to its conflict (or choice) of law rules or principles.
15. This Agreement is binding on all successors and
assigns of the Parties.
16. This Agreement may be modified, amended, altered,
changed, or repealed, in whole or in part, only by the written
consent of the Parties.
17. Any Party may waive, in writing, any provision of
this Agreement to the extent such provision is for the benefit
of the waiving party. No waiver of any Party of a breach of any
provision of this Agreement shall be construed as a waiver of
any subsequent or different breach. No forbearance by a Party
to seek a remedy for noncompliance or breach by another Party
shall be construed as a waiver of any right or remedy with
respect to such noncompliance or breach.
18. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
·19. Each Party to this Agreement shall bear its own
costs and fees, including attorney's fees, incurred in
connection with the negotiation and execution of this Agreement.
II
II
II
II
II
6
000724 syn 0071903
IN WITNESS WHEREOF, the duly appointed representatives
of the Parties have executed this Agreement on the date first
above stated in the city of Palo Alto, County of Santa Clara,
State of California.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
City Manager
Director of Administrative
Services
000724 syn 0071903
7
CITY OF PALO ALTO
Mayor
CABLE COMMUNICATIONS COOPERATIVE
OF PALO ALTO, INC.
By:
Name:
Title:
By:
Name:
Title:
Taxpayer Identification No.
(Compliance with Corp. Code § 313 is
required if the entity on whose behalf
this contract is signed is a corporation.
In the alternative, a certified corporate
resolution attesting to the signatory
authority of the individuals signing in
their respective capacities is
acceptable}
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
ss.
On , 2000, before me,
a Notary Public in and for said County and State, personally
appeared personally known to
me or proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her /their signature ( s) on the instrument the person ( s), or
the entity upon behalf of which the person ( s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
8
000724 syn 0071903
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
ss.
On , 2000, before me,
a Notary Public in and for said County and State, personally
appeared personally known to
me or proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her /their signature ( s) on the instrument the person ( s), or
the entity upon behalf of which the person ( s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
9
000724 syn 0071903
EXHIBIT C
[ "svcc AGREEMENT II ]
000831 syn 0071832
AGREEMENT BETWEEN THE CITY OF PALO ALTO
ON BEHALF OF THE JOINT POWERS AND
SILICON VALLEY COMMUNITY COMMUNICATIONS, INC.
CONCERNING FACILITIES AND EQUIPMENT
FOR THE MID-PENINSULA ACCESS CORPORATION
THIS AGREEMENT, dated, 2000
("Execution Date"), is entered into by and between the CITY OF
PALO ALTO, a charter city and a California municipal corporation
("City") , and SILICON VALLEY COMMUNITY COMMUNICATIONS, INC., a
California non-profit corporation ("SVCC") ("Parties"), in
reference to the following facts and circumstances:
RECITALS:
1. The City is a party to a certain Joint Exercise of
Powers Agreement, dated July 26, 1983, and a certain Joint
Operating Agreement, dated October 13, 1983, pursuant to which
the City, on behalf·of itself and the Town of Atherton, the City
of Menlo Park, the City of East Palo Alto, the County of San
Mateo, and the County of Santa Clara (collectively, "Joint
Powers"), is responsible for administering certain cable
television franchise matters on behalf of the Joint Powers.
2. The City and Cable Communications Cooperative of
Palo Alto, Inc. ("Co-op") entered into a certain Amended and
Modified Franchise Agreement By and Between the City of Palo
Alto On Behalf Of The Joint Powers And Cable Communications
Cooperative of Palo Alto, Inc., dated February 28, 1991
("Franchise Agreement").
3. Under the Franchise Agreement, the Mid-Peninsula
Access Corporation ("MPAC"), designated by the City as the
Community Access Organization ("CAO"), and Co-op entered into a
certain Cable Co-op/MPAC Agreement, dated January 1, 1995
("1995 Agreement") .
4. Co-op, as seller, TCI Cablevision of California,
Inc. ("TCI"), as buyer, and SVCC have entered into a certain
Asset Purchase Agreement By and Between Cable Communications
Cooperative of Palo Alto, Incorporated, and TCI Cablevision of
California, Inc., A Subsidiary Of AT&T Corp., dated September 7,
1999, as amended (and as amended, "Asset Purchase Agreement").
5. The City and TCI have negotiated and intend to
enter into a franchise agreement ("New Franchise Agreement")
that will supercede and replace the Franchise Agreement and that
1
000724 syn 0071897
EXHIBIT C
will take effect on the Closing Date, as that term is defined in
the Asset Purchase Agreement.
6. Under the Asset Purchase Agreement, on the Closing
Date, TCI will be relieved of some obligations to provide
certain studio facilities and equipment to the CAO and SVCC
agrees to assume the obligations of TCI.
7. Co-op's existing lease of its facilities at 3200
Park Boulevard, Palo Alto ("Leased Facilities") will terminate
upon the Closing Date and immediately thereupon TCI will enter
into a new lease of the Leased Facilities. TCI will then
sublease ("Sublease") to SVCC that portion of the Leased
Facilities, including access to common areas, described in the
Sublease ("Subleased Facilities"). SVCC will enter into an
agreement with MPAC to permit MPAC to use the Subleased
Facilities, which are inclusive of the space afforded to MPAC at
the Leased Facilities under the 1995 Agreement, and to provide
equipment as contemplated in this Agreement, at no charge for a
period of 18 months. SVCC will provide to MPAC studio space
(and studio equipment) at the Subleased Facilities for 18
months, subject to the termination of the Sublease. Within the
18-month period ending January 31,. 2002, SVCC, which will
relocate to alternate studio space within the Service Area, will
under the same or a different agreement provide MPAC with other
--studio space and related studio equipment commensurate to that
space and equipment afforded MPAC by Co-op at the Leased
Facilities under the 1995 Agreement.
8. As a condition to the Closing under the Asset
Purchase Agreement, TCI will make a charitable gift on the
Closing Date to SVCC of $17,000,000, of which $10,075,000
("Current Funds") will be paid to SVCC and $6,925,000
("Contingent Funds") will be placed in escrow pursuant to an
escrow agreement, which is made a part of the Asset Purchase
Agreement, between SVCC and Co-op ("Escrow Agreement") .
9. In reliance on SVCC's representations and
inducements, the City intends to enter into an agreement with
SVCC, and SVCC intends to enter into an agreement with the City,
with respect to SVCC's provision of studio facilities and
equipment to and for the express and direct benefit of MPAC as
the CAO in furtherance of the New Franchise Agreement.
AGREEMENT:
2
000724 syn 0071897
NOW, THEREFORE, in consideration of the
covenants, terms and conditions ("Provisions")
Agreement, the Parties agree, as follows:
. SECTION 1. TERM; TERMINATION.
recitals,
of this
1. 1 Effective Date. This Agreement shall take
effect on the Closing Date, provided that, on or before the
Closing Date, the following events also shall occur: (a) TCI
accepts and executes the New Franchise Agreement; (b) SVCC
accepts and executes this Agreement; (c) Co-op accepts and
executes a certain Compromise and Settlement Agreement; (d) Co-
op pays to the City the amounts set forth in the Compromise and
Settlement Agreement; and (e) the Council approves the New
Franchise Agreement, this Agreement, and the Compromise and
Settlement Agreement, entered into by the City and TCI, SVCC,
and Co-op, respectively. If the Council fails to approve such
agreements with TCI, SVCC and Co-op or TCI, SVCC and Co-op fail
to accept and execute their respective agreements, this
Agreement shall be void and of no effect.
1.1.1
affiliate of TCI,
AT&T Corp ..
Any reference to TCI shall also include any
its parent, AT&T Corp., and any subsidiary of
1.2 Term. The term of this Agreement shall be equal to
and coterminous with the term of the New Franchise Agreement;
provided that, subject to the approval of the City, which
approval shall not be unreasonably withheld, this Agreement may
be terminated by the Parties at the request of the CAO.
SECTION 2. RIGHTS AND OBLIGATIONS OF SVCC
2. 1 General. In order to, among other things, induce
the City to enter into the New Franchise Agreement with TCI,
SVCC shall in accordance with the terms and conditions of this
Agreement provide to the CAO cable television cablecasting,
production and programming facilities and equipment, including,
but not limited to, cablecasting office, studio, storage and
warehouse space and studio equipment and other cable-related
equipment, during the periods of time specified herein.
2.1.1 For the purposes of this Agreement, "CAO"
means "MPAC" or any other entity designated by the City as the
CAO, and "SVCC" means SVCC and its successors in interest,
transferees and assigns.
3
000724 syn 0071897
2. 2 Immediate Post-Closing Obligations. Unless
otherwise ·agreed to, in writing, by the Parties, SVCC shall on
or before August 31, 2000:
A. Transfer or cause to be transferred the Current
Funds to the Community Foundation of Silicon Valley, Inc. [or,
subject to the City's prior written approval, any other entity
whose general purpose is to invest and manage the funds of third
persons, including charitable organizations and non-profit
corporations] ("Fund Manager") ;
B. Cause the Fund Manager, by written instruction
signed by the designated representative of SVCC and approved in
writing in advance by the City, to transfer, in a single or a
series of transfers, a sum equal to and not exceeding in the
aggregate $400,000 to the Mid-Peninsula Bank [or any other bank
or depositary institution selected by SVCC and approved, in
advance, by the City] ("Bank") to a bank account ("Account")
est~blished in the name of SVCC and existing as of the Execution
Date. Unless otherwise agreed to by the Parties, SVCC shall use
the funds in the Account only for the purpose of funding the
ongoing operations of SVCC and new equipment purchases for the
Subleased Facilities for the benefit of both SVCC and the CAO
for the period from the Closing Date through January 31, 2001;
( i) SVCC warrants and agrees that, until the New
Board contemplated in Section 2.3(A) has been duly appointed, it
will not transfer or authorize any transfer of the Current Funds
or portion thereof in excess of the $400,000 contemplated by
Section 2. 2 (B) from the Account to itself or the Bank or any
other third party without obtaining the City's prior written
approval, which shall not be unreasonably withheld. For the
purposes hereof, the City hereby designates the Director of
Administrative Services and his or her authorized
representative ( s) to issue the written approvals on behalf of
the City;
( ii) SVCC shall ensure that such Account shall be
established so that, until January 31, 2001, any check written
on or any other transfer from the Account in full payment of any
expenditure in excess of $2,500 shall require one or more
designated representatives of each of the Parties to authorize
in writing such disbursement of funds therefrom, such as by the
joint signatures of each of the Parties' representatives and
only for the purpose described in Section 2.2(B);
(1) With respect to the disbursement of funds
as contemplated in Section 2.2(B), until January 31, 2001, SVCC
4
000724 syn 0071897
shall furnish to the Director of Administrative Services written
notice of any such disbursements within 10 days after the end of
the month in which such disbursements are made;
(iii) The Account shall not be moved from the Bank
to any other bank or depositary institution without the City's
prior written approval, which shall not be unreasonably
withheld; and
(iv) SVCC shall give the City written confirmation
of the actions taken as contemplated in this Section 2.2 within
48 hours after such action has been taken;
C. Transfer into the Escrow Account maintained at
Chase Manhattan Bank & Trust Company, National Association, as
escrow agent, the Contingent Funds, to be held in such escrow
account ("Escrow Account") in accordance with and for the
purposes and the period of time contemplated in the Escrow
Agreement;
(i) SVCC shall transfer or cause to be transferred
to the Fund Manager, immediately upon the release from the
Escrow Account to SVCC, the Contingent Funds and any interest,
dividends, capital gains and other yield on such investment, or
such portion thereof, as are released to SVCC in accordance with
the Escrow Agreement, excepting only such taxes, if any, that
may be due and payable on the charitable gift; and
D. Deliver or cause to be delivered to the City a copy
of the articles of incorporation and the bylaws ("Current
Bylaws") of SVCC, which SVCC represents will be in effect as of
the Closing Date and which SVCC will not modify without first
giving the City notice of, and the opportunity to approve, any
attempted modification, except as SVCC modifies the same for the
purpose set forth in Section 2. 3 (C) . Any failure by SVCC to
perform its obligations referred to in this Section 2. 2 shall
constitute a default under this Agreement.
2.3 Short-term Post-Closing
otherwise agreed to, in writing, by the
or before January 31, 2001:
Obligations. Unless
Parties, SVCC shall on
A. Within 30 days after the City gives SVCC a list of
six individuals, including three representatives of MPAC,
nominated by the City, for appointment to the three-member board
of directors of SVCC existing as of the Execution Date
("Existing Board"), cau~e the Existing Board to duly notice and
hold a meeting of the Existing Board and duly appoint, in
5
000724 syn 0071897
accordance with the Current Bylaws, each of the six individuals
so nominated by the City to the Existing Board, so that upon
such appointment the board of directors of SVCC shall consist of
nine individuals, including the Existing Board ("New Board");
(i) The New Board shall supercede and replace for
all purposes the Existing Board;
B. Subject to the City's approval, which shall not be
unreasonably withheld, develop a budget not exceeding $400,000
for the period from the Closing Date to and until January 31,
2001 relating to (i) the acquisition of facilities and
equipment for the CAO for the period to and including January
31, 2001, (ii) salary and other operating expense requirements
for the local origination programming of SVCC for the period to
and including January 31, 2001; and (iii) such other matters as
may be mutually agreed to by the Parties;
( i) SVCC shall secure the prior written approval
of the City for any budget item expenditure exceeding $2,500 as
a condition precedent to the City's obligation to approve any
such disbursement from the Account, which approval shall not be
unreasonably withheld;
(1) With respect to the disbursement of funds
as contemplated in Section 2. 2 (B) and expenditures contemplated
in Section 2.3(B), SVCC shall furnish to the Director of
Administrative Services written notice of such disbursements
within 10 days after the end of the month in which such
disbursements are made;
C. Develop new bylaws ("New Bylaws") that will conform
to the extent required by applicable law the meetings of the New
Board to the requirements of the Ralph M. Brown Act, California
Government Code § 54950 et seq., or any amendment thereto,
during the term of this Agreement; and
D. Use best efforts to cause the New Board to
undertake or per~orm the following:
(i) Propose, review, and adopt any appropriate
amendments, deletions or modifications to the Current Bylaws,
which amendments, deletions or modifications shall be subject to
the prior review and approval of the City, which shall· not be
unreasonably withheld; and
preliminary
000724 syn 0071897
(ii) Identify the
construction plans
6
location of, and
and specifications for,
develop
cable
television cablecasting, production and programming facilities
and other space located within the Service Area ("New Subleased
Facilities") for the benefit of SVCC and the CAO, and enter into
an appropriate agreement for such acquisition; provided,
however, SVCC shall not be deemed in default of this Section
2. 3 (D) ( ii) if the City determines, in its sole discretion, that
SVCC has used best efforts to fulfill its obligations hereunder
and is diligently and continuously fulfilling such obligations ..
Any failure by SVCC to perform its obligations referred
to in this Section 2. 3 shall constitute a default under this
Agreement.
2. 4 Subleased Facilities. At the Closing, and
continuing until January 31, 2002, or the date on which the
Sublease between TCI and SVCC of the Subleased Facilities is
terminated, whichever earlier occurs ("Termination Date"), SVCC,
at its sole cost and expense, shall provide or shall cause to be
provided to the CAO for the CAO's joint use with SVCC
commensurate in size and ·suitability of use afforded the CAO
under the 1995 Agreement, the Subleased Facilities, measuring
not less than 6,865 square feet, as may be described in Exhibit
A, and storage space in TCI's warehouse, measuring not less than
108 square feet, to which the CAO and its employees and
authorized agents and representatives shall have 24-hour, 7-day
access.
2. 4. 1 The Studio A, the Control Room and the Rear
Door Access area to the Studio A of the Subleased Facilities
shall be subject to the right of SVCC to use such areas, or any
part thereof, 2 5 percent of the time for SVCC productions, in
accordance with the terms of a written agreement to be
negotiated and entered into between SVCC and the CAO. SVCC
shall be entitled to access to the Control Room and studio
equipment therein, including risers and flats built by MPAC,
during the periods in which SVCC is entitled to use the Studio
A.
2.4.2 SVCC will make the Conference Room located
within the Subleased Facilities available to the CAO when it is
not scheduled for SVCC's use.
2.4.3 If SVCC and the CAO should agree upon the need
for physical improvements for the Subleased Facilities occupied
and available for use by the CAO, the cost of such improvements
shall be borne by SVCC.
7
000724 syn 0071897
I
./
2. 5 New Subleased Facilities. Commencing upon the day
after the Termination Date and continuing for the term or
extended term of this Agreement, SVCC, at its sole cost and
expense, shall provide to the CAO use of and access to the New
Subleased Facilities to be located within the Service Area, that
are commensurate in size and suitability of use to the Subleased
Facilities. SVCC will allocate financial and non-financial
resources to the acquisition and use of any such New Subleased
Facilities by SVCC and the CAO during the term of this
Agreement. SVCC shall use reasonable efforts to obtain the
cooperation. of the CAO to jointly approve the proposed design,
development, construction and other aspects of the New Subleased
Facilities.
2. 5. 1 In addition, SVCC shall: ( 1) pay for the
reasonable relocation costs of the CAO for the initial and any
subsequent relocation moves during the term of this Agreement;
and ( 2) pay for the costs of installing new cable facilities
necessary to reroute all signals from the Subleased Facilities
to any such New Subleased Facilities, to ensure that any such
New Subleased Facilities are interconnected with TCI's cable
plant, including, but not limited to, TCI's "head-end" building.
2. 6 Existing Equipment. At the Closing, and continuing
until the Termination Date, SVCC, at its sole cost and expense,
shall provide to the CAO for the CAO' s use, at no charge, the
cable television cablecasting, production and programming
equipment and other cable-related equipment that were made
available to. MPAC by Co-op under the 1995 Agreement, as may
described in Exhibit B. SVCC shall also provide, at its sole
cost and expense, studio equipment to the CAO for shared use by
SVCC and the CAO at the Subleased Facility and at any such New
Subleased Facilities commensurate to the equipment shared with
MPAC at the Subleased Facilities, as described in Exhibit B
("Existing Equipment") .
2.6.1 SVCC shall contribute an annual amount for
studio bulbs to be mutually agreed upon by the CAO and SVCC.
2.6.2 SVCC shall replace
equipment of the CAO, including the
other equipment purchased by the
destroyed due to the neglect or the
staff or volunteers of SVCC.
any studio and control room
Existing Equipment and any
CAO, that is damaged or
improper use thereof by the
2.6.3 SVCC agrees that in addition to the CAO's
right to use the Existing Equipment and any other equipment
purchased by SVCC for PEG access purposes, the CAO shall have
8
000724 syn 0071897
the right to use the Existing Equipment and any other equipment
purchased by SVCC in order to provide video services, so long
as:
A. Any customer of such video services otherwise
entitled to use such equipment in accordance with the rules and
regulations governing public access has been informed of such
right; and
B. Such activities do
violate any applicable federal
regulation governing non-profit
television entities.
not cause SVCC
or California
corporations
or the CAO to
law, rule or
or PEG access
2. 6. 4 SVCC shall provide the CAO with the quality
and quantity of cablecasting equipment for any cable channel
provided the CAO to deliver signal quality comparable to the
general signal quality of other cable services and channels to
be provided by the cable system required to be rebuilt under the
New Franchise Agreement.
2.7 New Equipment.
2.7.1 On or before January 31, 2001, SVCC shall
confer and cooperate with the CAO to develop a list of new cable
television cablecasting, production and programming equipment
("New Equipment") and other related equipment in an amount not
to exceed $150,000 to meet the equipment needs of the CAO.
2.7.2 SVCC will allocate financial and non-financial
resources to the acquisition of New Equipment to meet the
existing needs and future needs of SVCC and the CAO during the
term of this Agreement.
2.8 Maintenance and Repair of Equipment and Facilities.
2. 8.1 As between~ the CAO and SVCC, during the term
of this Agreement, SVCC shall be responsible, at its sole cost
and expense, for the cleaning and maintenance of the Subleased
Facilities and any such New Subleased Facilities to be occupied
by the CAO. SVCC may deny access to any joint use facilities
therein to any person in the event that such person is found to
have conducted an act or threat of vandalism, misconduct,
violence, harassment or theft while using any shared space of
the Subleased Facilities or any such New Subleased Facilities.
2.8.2 The CAO shall maintain and repair the Existing
Equipment and any replacement equipment or New Equipment
9
000724 syn 0071897
consistent with current practices during the term of this
Agreement. SVCC shall reimburse the CAO for the reasonable cost
of maintenance and repair.
2.9 Utility Charges. As between the CAO and SVCC,
SVCC, at its sole cost and expense, shall pay for any and all
charges for utility services, including, but not limited to,
electric, gas, water and storm drain services, delivered to the
Subleased Facilities or any such New Subleased Facilities for
the use, enjoyment and occupancy of the same by SVCC and the
CAO.
2.10 Other Defaults. Any failure by SVCC to perform
any other obligations referred to in this Section 2 shall
constitute a default under this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 SVCC Representations. SVCC represents and warrants:
3.1.1 It is a corporation duly organized and validly
existing and in good standing under the Nonprofit Public Benefit
Corporation Law of the State of California. It has all
requisite corporate power and authority to own its property,
real and personal, and to operate its business as and where it
is now being conducted.
3. 1. 2 It has the power and authority to enter into
this Agreement and perform its obligations hereunder. All
necessary corporate actions and proceedings have duly authorized
its execution, delivery and performance of this Agreement. This
Agreement is (and any other instrument, document or writing to
be executed and delivered by SVCC pursuant hereto will be)
legal, valid and binding obligations of SVCC, and enforceable
against SVCC in accordance with the provisions of this Agreement
and applicable laws.
3. 1. 3 The execution and deli very of this Agreement
and any other instrument, document or writing contemplated
hereby by SVCC will not conflict with or violate or constitute a
breach or default under the articles of incorporation and either
the Current Bylaws or the New Bylaws, as the case may be, of
SVCC or the provisions of the Asset Purchase Agreement or any
mortgage, trust, indenture, bond, lien, pledge, release,
agreement, guaranty or instrument to which SVCC is subject.
10
000724 syn 0071897
3. 1. 4 It has sufficient financial resources to
fulfill all of its obligations under this Agreement during the
term and any extended term of this Agreement.
3. 2 Representations of the City.
and warrants:
The City represents
3. 2. 1 It is a charter city and a municipal
corporation duly organized and validly existing under the laws
of the State of California. It has all requisite corporate
power and authority to own its property, real and personal, and
to operate its business as and where it is now being conducted.
3. 2. 2 It has the power and authority to enter into
this Agreement and perform its obligations hereunder. All
necessary actions and proceedings have duly authorized its
execution, deli very and performance of this Agreement. This
Agreement is (and any other instrument, document or writing to
be executed and delivered by the City pursuant hereto will be)
legal, valid and binding obligations of the City, and
enforceable against the City in accordance with the provisions
of this Agreement and applicable laws.
3. 2. 3 The execution and deli very of this Agreement
and any other instrument, document or writ1ng contemplated
hereby by the City will not conflict with or violate any
provision of the Charter of the City of Palo Alto or the Palo
Alto Municipal Code.
SECTION 4. DEFAULT; REMEDIES FOR DEFAULT.
4. 1 Default. This Agreement may be terminated
City upon the occurrence of any of the following
specified below, each of which shall be deemed a material
of and a default under this Agreement by SVCC:
by the
events
breach
4 .1.1 SVCC fails to observe,
any obligation required to be observed,
with by SVCC under this Agreement; or
perform or comply with
performed or complied
4. 1. 2 SVCC assigns or transfers its interest (other
than the right to receive money from the City) in this
Agreement, whether voluntarily or by operation of law, in
violation of Section 5.2; or
4 .1. 3 SVCC generally assigns its assets, including,
but not limited to, any sum of money, whether or not received by
SVCC from Co-op or TCI and/ or its affiliates in consideration
11
000724 syn 0071897
for any act or promise by SVCC or as a gift, for the benefit of
its creditors; or
4.1.4 SVCC files a petition seeking protection from,
or a petition against SVCC is filed under, the bankruptcy or
reorganization laws of the United States, unless the same is
dismissed within 120 days after the same is instituted; or
4. 1. 5 SVCC makes a representation,
statement in this Agreement that shall prove
incorrect in any material respect when made.
warranty or
to have been
In the event of a material breach and default by SVCC,
the City shall give notice of default to SVCC at least 30 days
before any notice of termination shall become effective.
4. 2 Remedies for Default. In addition to all other
rights and remedies afforded by law or equity or provided for in
this Agreement, including the right to collect money damages, to
which the City may resort cumulatively, or in the alternative,
the City may:
4. 2. 1 Keep this Agreement in effect and enforce all
of its rights and remedies specified herein by appropriate legal
action; or
4. 2. 2 Seek the specific performance hereof by SVCC
or exercise other rights or remedies at law or in equity; or
4.2.3 Terminate this Agreement by giving the
appropriate notice to SVCC.
SECTION 5. MISCELLANEOUS PROVISIONS.
5. 1 Amendment. This Agreement shall not be amended
except pursuant to a written instrument signed by the Parties.
5. 2 Assignment. Neither this Agreement nor the rights
or obligations of the Parties thereunder may be assigned or
transferred by any party without the express written consent and
approval of the other party. Any attempted assignment or
transfer shall be void and of no effect.
5.3 Calculation of Time. For the purposes of this
Agreement, the time in which an act is to be performed shall be
computed by excluding the first day and including the last.
Except as otherwise provided in this Agreement, if the time in
which an act is to be performed falls on a Saturday, Sunday, or
12
000724 syn 0071897
any day observed as an official holiday by the City, the time
for performance shall be extended to the following business day.
5.4 California Law. This Agreement will be governed by
with the laws of the State of and construed in accordance
California, without regard to
principles.
its conflicts of
5.5 Compliance with Laws.
with all federal, California and
regulations.
The Parties
City laws,
law rules or
shall comply
rules and
5.6 Counterparts.
any number of counterparts,
but all of which together
instrument.
This Agreement may be executed in
each of which shall be an original,
shall constitute one and the same
5.7 Designation of CAO. By its execution of this
Agreement, the City does not, and does not intend to, withdraw
its formal designation of MPAC as the CAO under the New
Franchise Agreement, and the City does not, and does not intend
to, approve or ratify, expressly or implicitly, TCI's
designation of SVCC as the L/P Provider in the Asset Purchase
Agreement.
5.8 Exhibits. All exhibits, which may be amended from
time to time, may be referred to in any duly executed amendment
to this Agreement and are by such reference incorporated in this
Agreement, and shall be deemed a part hereof.
5.9 Force Majeure. A party shall not be in default of
any provision of this Agreement where that party's performance
is rendered impossible or legally excused by war, riots, civil
disturbance, hurricanes, floods, other natural catastrophes, or
similar events beyond that party's reasonable control.
5. 10 Headings. The Section headings of this Agreement
are inserted for convenience of reference only, are not a part
of this Agreement, and shall have no effect on the construction
or interpretation of this Agreement.
5.11 Integration. This Agreement contains the entire
understanding between the Parties with respect to the subject
matter herein. There are no representations, warranties,
agreements or understandings (whether oral or written) between
the Parties relating to the subject matter hereof which are not
fully expressed in this Agreement.
13
000724 syn 0071897
5.12 Notice. Notices shall be given to:
CITY:
SVCC:
Office of the City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Phone: (650) 329-2571
Silicon Valley Community Communications, Inc.
1755 Oak Avenue
Menlo Park, CA 94025
Attn.: Seth Fearey
Phone: (650) 325-0588
Notice shall be deemed given 3 business days after
posting with pre-paid postage, first class mail, or immediately
upon personal delivery to the person identified above, at the
address specified above.
5.13 Provisions. Any agreement, circumstance, condition,
covenant, fact, qualification, restriction, recital,
reservation, representation, term, warranty, or other
stipulation in this Agreement or at law that defines or
otherwise controls, establishes, or limits the performance
required or permitted by any Party hereto, shall be deemed a
Provision of this Agreement. All Provisions, whether covenants
or conditions, shall be deemed to be both covenants and
conditions.
5.14 Representation by Counsel. Each Party and its
counsel have reviewed this Agreement. Accordingly, the normal
rules of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in
the construction and interpretation of this Agreement.
5. 15 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the successors, assigns
and transferees of the Parties.
5.16 Severability. If any provision of this Agreement
is held by a court or by any federal or California agency of
competent jurisdiction in a final action to be void, voidable,
or unenforceable as conflicting with any federal or California
law, rule, or regulation now or hereafter in effect, such
provision shall be deemed severable from the remaining
provisions of this Agreement and shall not affect the validity
of the remaining sections hereof.
14
000724 syn 0071897
5.17 Survival of Representations
Parties' representations and warranties
termination of this Agreement.
and Warranties.
shall survive
The
the
5.18 Time of Essence. Time is of the essence with
respect to the obligations of the Parties and each of them.
5. 19 Venue. In the event that suit is brought by a
Party, the Parties agree that trial of such action shall be
vested exclusively in the state courts of California, County of
Santa Clara, or in the United States District Court, Northern
District of California, in the County of Santa Clara.
5. 2 0 Waiver. The consent of a Party to any act of the
other Party shall not be deemed to imply consent or to
constitute the waiver of a breach of any Provision hereof or
continuing waiver of any subsequent breach or the same or any
other Provision, not shall any custom or practice which may
arise between the Parties in the administration of any part of
the Provisions hereof be construed to waive or lessen the right
of a Party to insist upon the performance of the other Party in
strict compliance with the Provisions hereof.
IN WITNESS WHEREOF, the duly appointed representatives
of the Parties have executed this Agreement on the date first
above stated in the city of Palo Alto, County of .Santa Clara,
State of California~
ATTEST:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
City Manager
Director of Administrative
Services
000724 syn 0071897
CITY OF PALO ALTO
Mayor
SILICON VALLEY COMMUNITY
COMMUNICATIONS, INC.
By:
Name:
Title:
By:
Name:
Title:
Taxpayer Identification No.
15
16
000724 syn 0071897
(Compliance with Corp. Code § 313 is
required if the entity on whose behalf
this contract is signed is a corporation.
In the alternative, a certified corporate
resolution attesting to the signatory
authority of the individuals signing in
their respective capacities is
acceptable)
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
ss.
On , 2000, before me,
a Notary Public in and for said County and State, personally
appeared personally known to
me or proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his /her /their signature ( s) on the instrument the person ( s) , or
the entity upon behalf of which the person (s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
17
000724 syn 0071897
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
ss.
On , 2000, before me,
a Notary Public in and for said County and State, personally
appeared personally known to
me or proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her /their signature ( s) on the instrument the person ( s), or
the entity upon behalf of which the person ( s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
18
000724 syn 0071897
000724 syn 0071897
EXHIBIT A
SUBLEASED FACILITIES
19
SUBLEASE
THIS SUBLEASE ("Sublease"), dated , 2000 for reference purposes only (the
"Execution Date"), is entered into by and between TCI CABLEVISION OF CALIFORNIA, INC., a
California corporation ("Sublandlord"), and SILICON VALLEY COMMUNITY COMMUNICATIONS,
INC., a California non-profit corporation ("Subtenant'').
RECITALS
A. Sublandlord is tenant under that Lease Agreement dated , 2000 (the
"Master Lease") with El Camino Center, a California limited partnership, as landlord (the
"Master Landlord"), pursuant to which Sublandlord leases from Master Landlord certain
premises located in the building commonly known as 3200 Park Boulevard, Palo Alto, California
(the "Building"), as more particularly described in the Master Lease (the "Master Premises"). A
copy of the Master Lease is attached hereto as Exhibit A. ·
B. Sublandlord desires to sublease a portion of the Master Premises to Subtenant,
and Subtenant desires to sublease a portion of the Master Premises from Sublandlord on the
terms and provisions hereof.
Now, THEREFORE, in consideration of the mutual covenants and conditions contained
herein, Sub landlord and Subtenant covenant and agree as follows:
AGREEMENT
1. Premises. Subject to the terms and conditions below, Sublandlord hereby leases
to Subtenant, and Subtenant hereby leases from Sub landlord, a portion· of the first floor of the
Master Premises consisting of approximately 5,291 square feet, in the area outlined by cross
hatching on Exhibit B attached hereto consisting of, among other things, a local programming
studio, control room, edit suites, stage areas, suite of programming offices, together with access
to common areas on the first floor of the Master Premises, including hallways, restroom
facilities, the lunchroom and the conference room (the "Premises").
2. Term. The term of this Lease shall commence on , 2000 (the
"Commencement Date"). The term of this Sublease shall be eighteen (18) months, commencing
on the actual Commencement Date.
3. Possession. Notwithstanding said Commencement Date, if for any reason
Sublandlord cannot deliver possession of the Premises to Subtenant on the Commencement Date,
such failure shall not affect the validity of this Sublease or the obligations of Subtenant
· hereunder, but in such case the Commencement Date shall not be deemed to occur until
possession of the Premises is tendered to Subtenant. In the event Sublandlord is unable to
deliver possession on such Commencement Date, Sublandlord will use best efforts to deliver
possession as soon as possible thereafter.
507658 v8/SF
@vpm08!.DOC
4. Rent. No rent shall be due for Subtenant's use and occupancy of the Premises.
Subtenant shall have no obligation to pay any property or other taxes otherwise payable by
Sublandlord by virtue of its use and occupancy of the Master Premises.
5. Assignment and Subletting. Subtenant may not assign, sublet, transfer, pledge,
hypothecate or otherwise encumber the Premises, in whole or in part; provided that Sublandlord
and Subtenant each acknowledge, consent and agree that Subtenant shall sub-sublease or
otherwise provide access to use and occupy, on a rent-free basis, the Premises to the Mid-
Peninsula Access Corporation, a California non-profit corporation and the Certified Access .
Organization established by the Joint Powers under (and as such terms are defined in) that
Franchise Agreement dated _, 2000 (the "New Franchise Agreement") between the
Joint Powers and Sublandlord (together with· its successors and assigns, provided that such
successor and assign is itself established as a Community Access Organization by the Joint
Powers or otherwise provides programming for a public access channel, "MP AC"), for the term
of this Sublease (or to such earlier date as Subtenant shall terminate this Sublease and cease its
own use and occupancy of the Premises) in accordance and consistent with the terms of this
Sublease.
6. Use. Subtenant may use the Premises only for uses relating to the ongoing
activities of MP AC and for the producing and provision of local programming and other similar
uses materially consistent to which the uses to Premises have been subject during the year
preceding the Commencement Date, and for no other purpose. Subtenant shall not use or permit
the use of the Premises in a manner that will create waste or a nuisance, interfere with or disturb
other tenants in the Building or violate the provisions ofthe Master Lease. ·
7. Access "Head-End" Building. In addition to all of Subtenant's other rights set
forth herein, Subtenant and its certain designated employees and agents shall, throughout the
term of this Sublease, have limited access to the "head-end" building located at 270 Lambert
Street, Palo Alto, California in order to use and control those PVC switches located therein,
which are necessary for Subtenant's continued programming needs. Sublandlord agrees that
Subtenant may access the "head-end" building provided that Subtenant gives Sublandlord prior
oral notice of such entry (except in the case of an emergency which shall be determined by
Subtenant in its good faith) and, provided further, that such access is subject to Subtenant's
reasonable security measures which may include accompanying Subtenant's employee or agents
Into the "head-end" building. Subtenant covenants that, in accessing the "head-end" building, it
shall use its best efforts not to cause damage or interference with the operation of Sublandlord's
business and that in the event of any such damage, Subtenant shall promptly reimburse
Sublandlord for the costs of any repairs necessitated by Subtenant's access thereto. Sublandlord
covenants and warrants that it shall not interfere with or obstruct Subtenant's use of the PVC
switches nor shall Sublandlord change any locks or other security measures (including those
presently located on the "head-end" building) without giving Subtenant prior written notice of
such changes and any access codes or keys required thereby.
8. Notices. Any notice required or permitted to be given under this Sublease shall
be in writing and (i) personally delivered, (ii) sent by United States mail, registered or certified
mail, postage prepaid, return receipt requested, (iii) sent by Federal Express or similar nationally
recognized overnight courier service, or (iv) transmitted by facsimile with a hard copy sent
507658 v8/SF
@vpm08 !.DOC 2
within one (1) business day by any of the foregoing means, and in all cases addressed as follows,
and such notice shall be deemed to have been given upon the date of actual receipt or delivery
(or refusal to accept delivery) at the address specified below (or such other addresses as may be
specified by notice in the foregoing manner) as indicated on the return receipt or air bill:
To Sublandlord at:
TCI Cablevision of California, Inc.
12647 Alcosta Blvd., Ste. 200
P.O. Box 5147
San Ramon, CA 94583
Attn: General Counsel
To Subtenant at:
Silicon Valley Community Communications, Inc.
3200 Park Boulevard
Palo Alto, California 94~06
Attention: Executive Director
With a ccwy to:
Silicon Valley Community Communications, Inc.
C/o Seth Fearey
1755 Oak Avenue
Menlo Park, California 94025
9. Indemnity.
(a).. Subtenant shall indemnify, defend, protect, and hold Sublandlord and
Master Landlord harmless from and against all actions, claims, demands, costs liabilities, losses,
reasonable attorneys' fees, damages, penalties, and expenses which may be brought or made
against Sub landlord or which Sublandlord may pay or incur to the extent caused by (i) a breach
of this Sublease by Subtenant, (ii) the negligence or willful misconduct of Subtenant or its
agents, contractors, employees or invitees.
(b) Sublandlord shall indemnify, defend, protect, and hold Subtenant harmless
from and against all actions, claims, demands, costs liabilities, losses, reasonable attorneys' fees,
damages, penalties, and expenses which may be brought or made against Subtenant or which
Subtenant may pay or incur to the extent caused by (i) a breach of this Sublease by Sub landlord,
(ii) the negligence or willful misconduct of Sub landlord or its agents, contractors, employees or
invitees, or (iii) the breach of the MasterLease by Sublandlord.
10. · Brokers. Each party hereto represents and warrants that it has dealt with no
broker in connection with this Sublease and the transactions contemplated herein. Each party
shall indemnify, protect, defend and hold the other party harmless from all costs and expenses
507658 v8/SF
@vpm08!.DOC 3
(including reasonable attorneys' fees) arising from or relating to a breach of the ·foregoing
representation and warranty.
11. Surrender of Premises. Upon the expiration or earlier termination of this
Sublease, Subtenant shall surrender the Premises in the same condition as they were in on the
Commencement Date, except for ordinary wear and tear.
12. No Third Party Rights. The benefit of the provisions of this Sublease is
expressly limited to Sublandlord and Subtenant and their respective permitted successors and
assigns; under no circumstances will any third party be construed to have any rights as a third
party beneficiary with respect to any of said provisions.
13. Enforceability. If any provision of this Sublease is found by a proper authority
to be unenforceable or invalid such unenforceability or invalidity shall not render this Sublease ·~
unenforceable or invalid as a whole and in such event, such provision shall be changed and
interpreted so as to best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decisions.
Counterparts. This Sublease may be signed in two or more counterparts, each of which
shall be deemed an original and all of which shall constitute one agreement.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date first
written above.
TCI CABLEVISION OF CALIFORNIA, INC.
By: ____________ _
Name: Mike Martini
Title: Vice-President
507658 v8/SF
@vpmOS!.DOC 4
SILICON VALLEY COMMUNITY
COMMUNICATIONS, INC.
By: _____ __;, ______ _
Name: _______________ _
Title: _____________ _
By: ____________ _
Name: ----~----------Title:. ____________ _
i Jui-20-DD Dl :33pm From-COOLEY GODIYAP" '}P
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EXHIBIT B
EXISTING EQUIPMENT
20
Desk lamp 1
Stereo amp Realistic SA-10 1
Camera~on. Panasonic AK104 1
Turntable Toshiba SRSO ]
c.c.u. Hitachi OP-231 2
Amiga 3000 Comp. Commodore 3000 2
Keyboard " KKQE94VC 1
Supergen Digital Creations SG10 2
A/Vmixer Panasonic WJ-AVE5 1
Audio mixer Realistic 32-1200B 1
Batt. charger Sony BC-1WA 1
Misc. phone wires
SVHSVCR Mitsubishi HSU69 1
Quad system Panasonic WJ-450 1
Compressor ·Orban 464A 1
Hum eliminator Ebtech 1
AIC power adaptor Hitachi. AP-40U 1
MACCOMP. Apple Performa 1
Camera reg./ adaptor Hitachi AP40 1
H work light 250w E1494981
1
Tripod plate Hitachi 'rA15 1
Electric cable striper Kings KPS33 . 1
Box-BNC ends 2025-58-9 1
W~remarker Brady IDPRO 1
VHSVCR JVC HRA32V 1
AudioDA Tecnec ADA-6 1
Heater fan ~ T761 1
Dry erase BD . 1
Edit controller Sony RM440 2
Monitor Panasonic CT-131Y 2
Four drawer file cab. 1
S Gal. gas can 1
2x6' wood bookcase 1
Misc. backdrops 20
Crimper Kings KTH1000 1
Software SCALA MM400
2(3VOL.)
Calculator· Casio HR8B 1
Dual timer Radio Shack CM844A 1
Metal desk shelf 1
. Monitor Socos DCM1499 1
. Extendable monitor holder 1
Computer speakers KOSS HD-30 2
Computer Compaq 5240 2
Printer Epson Stylus 640 1
Software MS Front page 98
1
" JASC Printshop pro 1
7x8' wood shelf 1
Drill set Craftsman 315111790 1
Screwdriver set " 315111690 1
desk lamp 4
24xl6" mirror 1
Paper cutter Boston 1
Mini Fridge Consul EC1079 1
Shotgun mike Beyerdyruunic 41220 1
3/4" SP VTR Sony .V09800 1
3/4" SPVTR Sony V09850 1
B/WMonitor Electrohome V200AOO 1
Edit controller Convergence 195 1
Desk lamp 0187 1
Editing rack Wmsted 2
Toaster edit system Newtek 1
TSG Tektronix TSG170A 1
Monitor Sony PVM-8220 1
Speakers ADS IA20 2
Wall clock Progressive 1
Audio Synthesizer Yamaha PSR-520
1
Wood racks 4
Music/SFX library First com Buyout agreement 1
4x2' Metal rack 2
Mike Stand 2
Halogen light 1
Vacuum Eureka· 1
20' ft cord guard Waber 1
Broom/dust pan 1
Garden hose 25' 1
Spray nossle Gilmore . 1
. Step ladder Casco 1
6x4' metal shelves 3
Monitor 15" Apple 825-3393-A 1
A/V Switcher/TBC Alta Cygnus 1
Sync Generator Tektronix SPG-107A 1
II II 1410 1
Saw 1511 Stanley 15-9 1
Hacksaw 1
AMIFMtuner Scott 558T 1
Tupperware-Misc. screws 2
Keyboard Ami . ga KKQ-E94YC 2
Camera monitor Hitachi GMSN 1
Amigakeyer Roctec ROCGENPLUS 2
Amigamouse Conunodore 3
Amiga 2000 Computer Commodore 2000 2
Monitor II 1084S-D2 2
Misc. Amiga Cables
1 000' Coax cable
VHSVCR Admiral JSJ20401 1
Oil pan 1
Calculator Casio DL220L
1
Heavyduty cord guard 6
Speakers KLH AV-1001B 2
Monitor JVC TM-131SV 1
Rack monitors Panasonic WY-5200BU 3
Misc. video cables
VHSVCR Panasonic AG1240
1
Generator B&S 10.0 1
Monitor case Portabrace 1
Light Frezzi 1
Co-op Inventory
Warehouse Ql'{: Eguiutment Tvne: Brand: Model:
Qty.:
Metal Racks 9
Box of convergence Ace. 1
Scribe Jr. Chyron JRKB-D 1
Switcher 8001 1
Blueprint Printer Teledyne 7F50 1
Corporate set pieces 16
Edit controller rack 1
Cablecast
Monitor JVC TM-131SV 3
SVHSVCR Sony SV0-2000 2
TBC DPS DPS-290
3
3/4"VTR. Sony VP-720 ·· 3
Routing Switcher KNOX RS 16x16
1
SVHSVCR JVC VR-S600V 1
V ectorscope Tektronix 1720 1
Wavefonn monitor " 1730 1
Digitalclock 1
Tuner Scott 558T 1
AIV Modulator Scientific Atlanta 63 50 2
PVC Tech Electronics PVCNG
1
Audio Compressor DVXProj. 266A 1
Audio Processor Rane CP62 1
TSG Tektronix 140 1
Video rack 3
Office
Video Amp Tru-Spec TA-25 1
16nun Projector Singer 39522 1
Misc. cleaning supplies
16" rack 1
Audio mixer Shure FP42 1
Dual cassette player Sony TC-WE405 1
Tuner DEN ON DRA-35V 1
CD player Sony CDP-215
1
Audio mixer Senior MX995 1
3/4" VfR Sony 5800 1
Vectorscope Tektronix 520A 1
Waveform monitor " 1480R 1
Audio Monitor " 760 1
Digital Timer Sony DT-20 1
Short mike stand 1
Equipment Type
Qvgrlhead Projector
·Shop Uac
Folding Tablg
Teglvision 360
Metal Cart
.![) UTR
19[1 monitor
19[1Moni tor
UHS UCR
Dolly/Cart
Lg. Carry casg
Power supply
Uideo Camera
iO UTR
light kits
.Metal Cabirnats
Powgr Supply
3/40 UTR
Tapg eraser
Audio mixer
4x30 dry erase board
halogen stand lanp
Brand
3M
Craftsman
Phil ips
Sony
GEM
SONY
SHARP
Portabrace
Sony cma7
Hitachi
Sony
Lowgll
6x3x2
Sony
Sony
rgal i stic
TOA
laser printgr Brother
computgr speakers mgd i a ~4~568
computgr CPU compaq
computgr monitor GEM
L-shapgd off i cg desk
Office chair
High Back Blk chair
Mini DU camera
Digital ti mgr
HON 00
Sony
oregon sci.
Model
413 1
1
3
T s3654-c 1B2 1
1
UP7B2{3
8A99SFA
Trini-tron
XA300
FP231
68~~
omni/tota
cma8
8800
44233a
rx-S-16a
2
1
t
1
1
1
t
2
1
2 (8 lights)
2
2
1
3
HL 6~ 1
2
524~ 1
·oe-7?e FA 1
1111gc
vxt~OO
TR188
1
Equipment Type Brand Model
Video Switcher (2) 3M
SVHSVTR . Panasonic AG-DS850
8& W Monitor (8) lkegami PM9-5
Color Monitor Sony PVM-12710
Switcher JVC KM-2000
U-MaticVTR Sony V0-5850
U-MaticVTR Sony V0-5800
Edit Controller Sony RM-450
Computer Monitor Laser 6448/41
Graphics Computer Videonics PS-4000 PRO
Video D.A. Grass Valley DA-8
Video Patch Panel
Computer Triad 486 ccu (4) Sony CCU-M3 ccu Hitachi OP-Z31
. Vectorscope . Tektronix .1720
Waveform Monitor Tektronix 1730
Color Monitor Sony PVM-8220.
CD Player Sony CDP-XE400
Amplifier Kenwood KR-A5080
TBC Alta Cy~nus
Audio Mixer Hill. Mutimix
Power Supply Sony ·cMA-8
Speaker (2) Polk Audio Mini Monitor
Intercom Clear Com Que Com
·Headsets (8) Clear Com ·Que Com
Analog Wall Clock srcartus
Toolbox & Tools Pano
Generator Honda EX4500-S
Color Monitor Sony CVM-1271
Video Camera (3) Hitachi FP-Z31
Video Camera (4) Sony DXC-3000
Audio DA . TecNec DA-6 Balanced
Speaker (2) Sony
Various Power cables
Older woodgrained
Various Audio cables
Various Camera cables
Equipment boxes (14) Rubbermaid
Tripod(2) Bogen 3066
Tripod (3) Sachtler Video 14
Tripod Quick-Set
Custom · Talent Box Custom
Talent Headsets Shure
Scoreboard Camera Sony Infrared w/Power Supply
Eguipment Type Brand Model
Computer Montior Apple 15 inch
· Computer Monitor Apple 12inch
Computer Apple 6150/66
Computer Apple 6205 CD
Printer Apple Color Stylewriter 1500
Scanner Microtek Scanmaker E3+
Speakers Apple Black Desktop
Printer HP DeskWtiter 600
Beige File Cabinet 2 Drawer
Black File Cabinet Schwab 2 Drawer Heavy Duty
Woodgrain Desk 2 Drawer .
Couch, Orange
E~ipment Shelf ( 4) Metal, heavy duty
W ite bookcase 4 shelfs
Black Videotape rack 4 shelfs
.Leather Chair High back
Equipment Cart Luxor 4 shelfs, rollers
Equipment Type Brand
Sandbags (8) . Matthews
Softie & Shockmount Rycote ·
Studio Viewfinders (4) Sony
Studio Viewfinders (3) Hitachi
Zoom Controls (3) Fujinon
Focus Controls (3} Fuiinon
Zoom Controls (3} Canon
Model
Focus Controls (3) Canon
Microphones (2) Audio Technica AT -835
Wireless Mics (3) Shure
1987 FORD AEROSTAR VAN, VIN #1GDG4Tl0CV592208,LICENSE PLATE NO. SC90449,
INCLUDING ALL CONTENTS THEREOF .
All contents of L.O. Offices
All contents of studio
All contents of control room
All contents of cablecast facility
All contents of loading dock area
All contents of L.O. warehouse
PROGRAMMING MATERIALS PRODUCED BY SELLER AND CONTENT POSTED ON SELLER'S WEB SITE,
AND ALL COPYRIGHT AND TRADEMARK INTERESTS THEREIN
Public Access E Jlpment Purchased by Cable Co-i
UID tyPe inodel
ny Hi-8 Camcorder V -5000
pod Bogen 3046 w/3063 . .
pods (2) Bogen 3140
dio mixer Shure M267
'"Y LCD Monitor XV-M30
8 edit record deck I Sony EVO 9850 --· ·--·--. ·-----· ·--·--. ·--valier mic Sony ECM44B
.valier mic Sony ECM44B
)lor monitor (5") JVC TM22U
'9 Rechargeable
)rtabrace Monitor
~lephone Bridge
-8 edit source deck
CR
M0-22U
Gentner SPH-3A
Sony EVO 9800A
JVC HR-DX22U
serial I
222101
303466
1 0212 Retrnd 1193
S01 0219068-C
S01 0219063-7
13609822
008-2415
11558
068U2226
·ipod Bogen 3116 w/mini fluid 144/DA27
ony Hi-8 Camcorder V -5000 2221 06
1ixer
1ixer
attery Belt
.tar Case
TR deck
1onitor
,attery charger
t~ireless mic
vireless mic
~ewfinder for studio
am era
natrix switCher
Shure M268
Mackie 1202
Frezzolini F12EXF A
blue case for two . .
JVC BR-S378U
Panasonic CT1030M
AC-V55
none
034948
6254
92527
108x0104
KA2540140
01308
NADY 351 lav Ch. 8 351200314
NADY 351 lav Ch. D 351100455
Sony DXF-40
Sony DXC-3000
0014943
Vidicraft Pro Switcher 4 H 02431 . .
::amera Sony DXC-3000
:amera control unit for Sony ., ..... ----
)OWer supply for Sony CMA-8 21472 --·-----rripod Vinten 3717150
:eleprompter 9-lY Vi~~_EPr9!llP~er 612242
)hotgun mic audio technica AT835 442
rece!yed date ourcbase price
6/18192 $2,~53 wltax &
6/22/92 268 w/out. tax
6/27/92 $291 ea. w/ tax
1n192 $349.00
9130/92 $387.54
1 0/23192 $~6 .. 4 (~.nclu?~ tax
11/4/92 $155.25
11/4192 $155.25 .
11/4192 $437.80
1219192 $81.21
12/15192 $124.49
1/5193 $S08 {w/o tax)
1127193 $4281
4/9/93 $214.34 {w/tax)
4/23193 $186.55 {w/ tax)
5/10193 ~1.89_9:~~~1?6.75
5/15193 $225 (w/out tax)
5/20193 $350.20 w/tax
5121193 $550 wltax
8/17193
8/24193 $925 w/out tax
8/24193 $340 w/out tax
918193 · $140 w/out tax
1 0/26193 $160 w/out tax
1 0/26/93 $160 w/out tax
11/27193 $500 (used)
11/29193 $2500
12/23/93 $299
2126194 $2800
2/26194 $1 ,000 {w/out tax)
2/26194 ~~~ot_e~a ··----
4/26194 $1,000 used
4126/94 $950 used
5/23194 $150 w/o tax
shotgun mic . ~~.'!n~.eiser ME-80 w/ P.r.e.Y.:...!"arking:Bexel 6/1194 $225 (used)·
?~~~r supply for DXC Sony CMA-8 14469. 6/3194 $582 wltax·
:>ower supply Sony CMA-SA 14469 6n 194 $631 wltax
Public Access JUipment Purchased by Cable Cr ?P
igu!o tyoe model serial I
1mote zoom and focus Fuji non SAD -928
i-8 Player Deck Sony EVO 9800 111 04
1onitor Panasonic CT-1383Y MB40980058
1onitor
:diting deck
1onitor
haracter generator
ght kit
tudio mixer
~attery Belt
:am corder
~deo mixer/ switcher
tudio mixer
~witcher
avalier mic
avaliermic
avaliermic
avallermic
::omputer & keyboard
::omputer monitor
Hi-8 camcorder
Hi-8 camcorder
Nireless mic
Nireless mic
wireless mic
Tripod
Monitor
Monitor
shotgunmic
Mics (4)
S-VHS Deck
Hi-8 Deck
Electrovoice Mics (6)
video projector
camcorder
camcorder
~attery." .
Panasonic CT-1383Y MB40980263
Sony V0-5850 12122
Panasonic CT-2083vy MB 31740530
Videonics TM 2000 230987
Lowellntro-kit VP98
Mackie 1202
LED65U
Sony CCO-VX3
Panasonic WJ-MX12
Mackie MS-1202
069084
3489
1009553
21A13859
084330
Videonics MX-1 MX026873
Sony ECM-448 so1 02308739
Sony ECM-448 so1023.08728
Sony ECM-448 so1 023087 4A
Sony ECM-448 so.1 02308717
Power Mac 7100/66 FC42913A1 UU
Sony CP01425 80171812260
Sony TR~400 44914
Sony TR-400 53187
Nady 351 VR handheld RX-3519303079
Nady 351 VR handheld 3511 00355(rec) -· ---. ------· . ~ Nady 351 VR lav Ch. F 3511 03930(rec) --·------· . " !3ogen. ~! !~ ~30 1.~ 144/FH25
JVC TM-A9U 06130901
JVC TM-A9U
audio technica 835b
Electrovoice 635A
Panasonic PV-S4566
Sony EV C200
Electrovoice 635a
Sharpvlsion
, .... ·--· ·-· --Panasonic AG 456
Panasonic AG 456
Delta 4a
06130841
546
..
K5SA300
TR345011
612528
L6H800641
L6H800871
A 73455
received date purchase pr!cce
6n/94 $1199 W/tax
6/30/94 $3260
6/30/94 $295 +24 shipping
6/30/94 $295 +24 shipping
912/94 $2,500 w/tax
9/26/94 $364 w/tax
9/28/94 $599 w/out tax
1 0/28/94 $664 w/out tax
11/14/94 $341 w/tax
1/26/95 $?~·9? incl $10
415/95 $4027.03 includes· ·---·-" . 4/10/9.5 $1180
6/13/95 $275 (w/out tax etc)
8/18/95 $959. w/out tax
8/18195 $~ ~6 .(no tax) +$3
8/18195 $~~6 ,(no tax) +$3
8/18195 $146 (no tax) +$3 . . .
8/18195 $.1~6 _(no tax) +$3
8/30/95 $1560 + 25 shipping
9/11195 $369 w/tax
9/28195 $1136.50 + 239
9/28195 $1136.50 + 239 .
10/19/95 $186
10/19195 $186
10/19/95 $165
11/1/95 $175
2/9/96 $411 w/out tax
2/9/96 $411 w/out tax
2/23/96 $250
2/23/96 $400
4/17/96 $45f? plus ~16? for
4/29/96 $58~ plus ~17~ for
7/1/96 $560 w/out tax
8/15/96 $3287 before tax
3/28197 $1802
3/28197 $1802
5/14/97 $475 w/tax & ship
Public Access r )ipment Purchased by Cable Cc 1)
I
J!o type model serial I rece!yed date pyrcbase price .
rel 4 omni light kit 01-95 kit 6/1/91 $1,173
fel· softlites (2) S2-10 6/1/91 $252 each
iel prolight Pl-10 6/1/91 $102
veU.i.~ht stands (2) KS stand 6/1/91 $107 each
iga 2500 2500/30/50 w 5mb CA1089652 6!.3/91 $3100 _.. ...
8 monitor Amiga RGB XT1016379 6!.3/91 $325
nlock Supergen 2000S RM9339170 6!.3/91 $1400
ny Hi-8 Camcorder EV0-9100 204755 6/4/91 $2,300
'itcher Panasonic WJ-MX12 12A10333 6/4/91 $2,666
ercom Headset (3) Clear-Com CC-75B None 6/4/91 $101
ercom Power Clear-Com PK-5 BER523520 6/4/91 $127 .
natic record deck Sony V0-9600 16981 6/4/91 $3188
ldio Snake ProCo HELIX 109659 6/6/91 $290
ndenser mic Shure SM94-LC 6/6/91 $175.00
DEO MONITOR Panasonic WV-5200BU 14100975 7/19/91
1dio cassette deck Sony TC-WR520 848357 8/22191 $130
levision set Symphonic SV13M 0051 17599 A 8/22191 $149
~D Monitor XV-M30 300280 9/17191 $340.00
~D Monitor XV-M30 300275 9/17/91 $340.00
I 8 PLA YEA DECK EV0-9800 ... 11644 9/20/91 $12,578 (system)
oom poles (2) g~m.~r.~hensive 9/27/91 $37 ea.
~?ds.ets.i?> & Clear Com CC-758 & 10/2191 approx. $500 -----..
BC DPS Personal TBC II 9183296 1213/91 . $839
BC DPS Personal TBC II 91893294 12/3/91 $839
BC DPS Personal TBC II 12/3/91 $839
ripod Bogen 3194 (3191 1/31/92 $710 w/out tax . . ----. ..
·ripod Bogen 3046 1/31/92 $311.11
r'fR deck JVC BR-S605U 12610580 4/1192 $1843 w/out tax
:olor Trinitron TV Sony KV 13TR24 8273964 4/9/92 $265.00
:olor Trinitron TV Sony KV 13TR24 8270102 4/9/92 $265.00
~olor Trinitron TV Sony KV 13TR24 8273970 419/92 $265.00
.owen light kit T0-95, 2 Omni's and 2 4/30/92 -..
nonitor 1084S-D1 1040629 4!.30/92 $24~8. (A_miga •..
)uperGen Genlock SG1000 3JSG 1339209 4/30/92 $2428 (Amiga, . . -..
~mig a A2000 HD/P HK0008819 4130192 $2428 (Amiga,
I I -'•
vaveform/ DPS Personal V-scope 9216032 5/12/92 $759
ime base corrector DPS Personal TBC II 92949032 5/12/92 $779
Public Access · ;ulpment Purchased by Cable C,. lP
gulp type model serial I
1ttery charger
~ht head
Frezzolini BC nu 558
Frezzolini Super 650 none
FrezzoliniLS1 ~ht bracket
attery belt #1
attery Belt #2
lini-fill light
lectrovoice
diting controller
diting interface
.dit deck
Frezzolini F12 EX FA 6196
Frezzolini F12 EX FA 6195
Frezzolini MF5X none
Electrovoice 635A 9019
~~~y edit controller AM 72983
~~~ :4? pin interface 09122007
JVC BA-5611 U 06510552
'anasonic 13" S-VHS CT-1381Y . .. ".
'anasonic 13" S-VHS CT-1381Y
'anasonic 13" S-VHS CT-1381Y
!" •• "-.
1anasonic 13" S-VHS CT-1381Y . .. . ..
iony. Hi-8 Camcorder EV0-91 00
'~iga monitor for edit ~?.mm.~dor~ 1084
lerylock for mobile ~igital Crea_!i?!:'~ _
3raphics computer 9~!'!.modore Amiga
MB01310048
MB01280600
MB01280398
MB01310338
202324
XT 1067803
RM0776
:diting Record Deck ~9_ny VO 9850 U-matic 71984 ·
:dit controller Sony AM 450 75021
)ony Hi-8 Camcorder EV0-9100 202611
rripod ~?Q~ry 3063 he~d and
NTEACOM Clear-Com AS 501 041677
NTEACOM --· --...
NTEACOM
3oundboard
:::lectrovoice. . .. .
Clear-Com AS 501
Clear-com AS 501
Studiomaster 16-2R
635A
:Jectrovoice Mic#M*2 635A
=:lectrovoice Mic 635A
:::lectrovoice 635A
I •• l
041673
041676
2669-02
rv monitor Panasonic CTM-1355A MB03440174
~~player-thrown out Sony COP 790 805156
Speakers (2) Audio Source LS · 9090576 _., .......
CASSETTE DECK Sony TC-FX170 806493
Sony Hi-8 Camcorder V-5000 217956
Sony Hi-8 Camcorder V-5000 217988
Audio Mixer Radio Shack 32-1200 9026948
rece!yed date purchase price
5/14/90 $398.00
5/14190 $165.00
5/14190 $25.00
5/14/90 $495.00
5/14190 $495.00
5/14190 $4155.00
5/14/90 $105.00
5/14/90 $1910.00
5/14/90 $289.00
5/14/90 $3088.00
7/18/90 $285 W /OUT TAX .
7/18190 $285 W /OUT TAX
7/18/90 $285( w/o tax)
7/18190 $285
7/23/90 $2,525
8/1/90 $299
8/15/90 $1620
8130/90 $3,530
9/13/90 $12,578*
9/13/90 $12,578*
1 0/4/90 $2,150
2114/91 $156
3/29~1 · $153 ea.
3/29/91 · $153 ea.
3/29/91 $153 ea.
5/20/91 $1386
5-29-91 $94.00
5-29-91 $94.00
5-29-91 $94.00
5-29-91 $94.00·
5/30/91 $230
5130/91 $199
5/30/91 $99
5/30/91 $89.00
5131 /91 $2, 150 w/out tax
5131/91 $2, 150
5131191' $70.00
Public Access Ec )pment Purchased by Cable Co-r ·
p tyoe. model serial I received date Purchase price
1SS lav mic Shure VPLI93 Lav sys 021981218 3/13198 $284.95
3/13198 $284.95
3/13198 $324.50
3/13/98 $999.95
3/13/98 $579.95
3/13/98 $169.95
3/13/98 $49.95
3/16/98 $2898.94
1ss lav mic Shure VPL/93 Lav sys 021981222
~handheld mic Shure VPH/58 021981222
' mixer I switcher
1cter generator
~daptor /Battery
try pack
er Mac for non-··· ..
it or
mer
J Cable
al camcorder
locks (3)
prompter
akers
ts
d drive disk array
lio mixer
m eliminator
iio mixer
~. Amplifier
,,A. Speakers
'Its
1tS
ralier
ralier
talier
ralier
1alier
pod
pod
Jdio mixer
valier
1onitor
'ireless lav mrc
:omputer
Panasonic WJ-MX20 -· .. . ..... .
Panasonic Character -Panasonic AC . . .. -..
Panasonic AGBP20 -.. -.
9600/200MP
1711 Supermac Sony
FOCUS TVIEW GOL -
7ya00790
10784
X872101 NA6S
2002988 '4/1/98 $269.54
5/1/98 $328.50
Technics SL-PD6 DP9BA04035 6/4/98 $129 before tax
14 pin CCU Cable 50 lf2 ~PAC; 1/2 7/2/98 $110.41 X2
DCA VX1000 91108 7/14/98 $2400 ( + 149 and
DeltaScan-PRO GL
~ . . . . .
VPPRO Full . ... . -.· . -
Yam~ha system 25
4 Lowel Omni . -·.-. ·-Rorke SSS-Fiex ·-·---· ·-. Mackie 1202
Allen Avionics . ·--------Shure M267
Crate PA-4+
Crate PE-12
Lowel Elemental kit ----Lowel Soft Ught
Sony ECM 448
Sony ECM 448
Sony ECM 448
Sony ECM 448
Sony ECM 448
Bogen 3066 head & --·-. Bogen 3066 head & --·-. Mackie 1202
Sony ECM 448
Sharp 13L-M100 1311
NADY 151 VA lav Ch. . ·-· ---. Apple 6400/200
466705
0121445
. ~--
7/31/98 $2,157 (699 each)
7/31/98 $142.77
8/5/98 $126.63
8/20/98 $981
1 0/6/98 ' $2,172
1 0/9/98 $299
none 1 0/26/98 176 w/tax
984353936 11/16/98 $450
ANDDK80222 12/11/98 $289 (before tax)
12J60220 & 1210014212/11198 · ~1 ~9 each (before
245216
245215
245220
245213
245212
BU16846
246864
15101050189 & ----·------XB63343F836
215/99 $1 ,000 plus tax
2/5/99 $375 plus tax
5/4199
5/4/99
5/4/99
5/4/99
5/4/99
5/5/99
515/99
sn/99
157 w/out tax
157 w/out tax
157 w/out tax
157 w/out tax
157 w/out tax
565 w/out tax
565 w/out tax
325 w/out tax
6/8/99 157 w/out tax
7/26199 $151.54
9/10/99 $50
11/15/99 used
Public Access r ;Jipment Purchased by Cable Cc ·?
yiP tyDl
1rcom
~rcom Headset
ncorder
alier
alier
1tstand
ttery Catchers (3)
model
Clear-Com RS-501
Clear-Com CC-85
Sony CCDTR3300
Sony ECM-448
Sony ECM-448
KS Stand (for Softlight)
MAT VJA0180
ieo camcorder case Tamrac 97 4 Video
mpressor-limiter
'lt
ht
~yer deck
-Alesis 3630
LoweiOmni
Lowel Omni
JVC BRS500U
serial I
A108224
A108224
1006421
S01-0239188
S01-0239189-I
CL4279205
14214167
rial interface JV9. ~~K.26U 9-pin . 15111177
onitor JVC TM131SU 13" 09202461 . ..
~adsets (3 units) Clearcorn. CC-85
3agate Hard Drive ST52160
:>wer Macintosh 6500/225 XB73913M9CL
owerMacintosh 6500/225 XB73913Y9CL
ptiguest Computer 014 6A73301186
~ptiguest Computer 014 SA 73301190
ard drive Barracuda Hammer SL8200UW 3S164663J7
,-VHS Scan MSA-5500
'ideo Bulletin Board IVBB 000143
am modules (2) 16 MEG ·---···-·····-··· ~learcom Beltpacks (2) RS-501 1-CH.
recelyed date oyrchase crlce
5/29197 $153 w/out tax
5/29/97 $101 w/out tax
719197 555.00
8/6/97 $140
8/6/97 $140
9/3197 $123.18
9/17/97 $24.23
9/19/97 $82.23
1 013197 $246.56
10/5197 $142 before tax
10/5197 $142 before tax
1 015197 $2459 before tax
10/5197 $176 before tax
1 0/5197 $262 before tax
10/8197 $479.14
1 0/1 0197 $269.54
10/16/97 $1422.12
10/16197 $1422.12
10/16197 $299.95
1 0/16197 $299.95
1113/97 $2947.65 w/ tax
11/4197 $126.63
11/5197 . $4000
11/5/97 $192.69
11/11/97 $391.37
ligital camcorder Sharp VL-D5000U QE63130603312224 11/13197 $1199 before tax and
iammer Drive & -.. ~oom Pole w/ shock FP557
3S164663J7NO 11/19197 $1053.24
1218197 $276.69
)LI Card for IVBB Powerline I 12001806705
S01-1037000
L7HB00131
~mcorder Sony Hi-8 TRV99
~mcorder Panasonic AG 456 ·
3elkin Resource 325 F5C500 ·--. .. ·--:am corder
~mcorder
SCSI Accelerator
Media 100
wireless lav mic
Panasonic AG-456U K7HB00200
Panasonic AG-456U · K7HB00156
Power Domain BFOF7490GNU 0 --. -· ....
Media 100 00533734
Shure VPL/93 Lav sys 021981240
12112/97 $220.7 4
1/8198
1/27198
2110/98
2116198
$900 +. $2~ for 5 yr
$1628.95
$151.54
$1675.71
2/16198 $1675.71
3/5/98 w/ Media 1 00
315198 $2408.99
3/13198 $284.95
UID tyPe
nputer. monitor
lteroom muffs (ear
nitor
nitor
tnitor
1nitor
>nitor
>nitor
lor bar I tone
'microphones
reless intercom
matic deck
mputer monitor
inter
--
Public Access r !Jipment Purchased by Cable Co )
model
Apple Color Plus 14"
Clearcom CC-85
Sony PVM14N5U
Sony PVM14N5U
Sony PVM14N5U
Sony PVM14N5U
Sony PVM14N5U
Sony PVM14N5U
Horita CSG-50
Electrovoice 635A
Digicom
Sony VO 5600 ·
Sony MultiScan ..... --------·-. Epson 740
serial I
CY3370J31 S2
16010561
16010563
16010574
16010602
16010616
16010619
CT2091350
4304
48486
S 01-9060376-H
A6R1A01231
rece!yed date Purchase Price
11/15/99 used
11/15199 154 each before tax
12113/99
12/13/99
12113199
12113/99
12113199
12/13.199
413/2000
4/4/2000 $90 ea. + $2.50 .. . . .
4/4/2000
5/1/2000 $200
· 5/5/2000 $380 (before tax)
5/5/2000 $150 (before tax)
Coffee maker P&S 48261 1
Framing kits ~elson Bainbridge 6
50 slot connector box full
Television Emerson 1
AN switch Burst Elect. AV4XIP \
4
Switcher Kramer 2066 1
SVHSVTP Panasonic AG-7150 1
VHSVCR JVC SR3360U 1
SVHSVCR " HR-S5200U 1
SVHSVCR " HR-S5100U 1
Monitor Sony PVM-8020 1
Speakers Yamaha DM-01 2
3/4" VfR Sony 5850 1
3/4"VfR SONY 5600 1
Misc. power cables
Rubber eye piece ·-Sony 1
Box w/ VHS hard shell cases 1
16mmProj. Kodascope B 1
Box-headsets 1
Slide proj. Kodak 4400 1
Viewfinder Sony 1
Light stand Lowel 1
Mic stand base 1
Box o' headsets Realistic 1
Chart set Panavision 1
Roll ofblue gels 1
Mic desk stands 10
Unimic Audiotehnic Pro2AX ~ ...
Mic Sony ECM-44B 5
Mic Sony ECM-44S 1
Audio monitor selector · Realistic 42-2110 \ • Power strips box
8mmProj. Elmo ST-180E I • VHS briefcase w/mon.NCR JVC 1
Mic wind screen Filmore MW2 1