HomeMy WebLinkAbout2000-07-24 City CouncilTO:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT :ADMINISTRATIVE
SERVICES
DATE:
SUBJECT:
JULY 24, 2000 CMR:332:00
ADOPTION ~F A RESOLUTION APPROVING AN ASSIGNMENT
AND TRANSFER OF THE EXISTING CABLE TELEVISION
SYSTEM FROM CABLE COMMUNICATIONS COOPERATIVE
OF PALO ALTO INC., TO TCI CABLEVISION OF CALIFORNIA,
INC., DOING BUSINESS AS AT&T BROADBAND, AND
APPROVAL OF A CABLE TELEVISION FRANCHISE BETWEEN
THE CITY OF PALO ALTO ON BEHALF OF THE JOINT
POWERS AND TCI CABLEVISION OF CALIFORNIA, INC., AND
APPROVAL OF AN AGREEMENTWITH SILICON VALLEY
COMMUNITY COMMUNICATIONS, INC., CONCERNING
SUPPORT FOR THE MID-PENINSULA ACCESS CORPORATION,
AND APPROVAL OF A COMPROMISE AND SETTLEMENT
AGREEMENT WITH CABLE COMMUNICATIONS
COORPERATIVE OF PALO ALTO, INC.
REPORT IN BRIEF
Staff is pleased to report that a proposed new franchise agreement has been reached
between the City and TCI Cablevision of California, Inc., doing business as AT&T
Broadband (AT&T). The proposed franchise agreement, the culmination of nearly two
years of work, endorses the subscriber-supported sale of Cable Communications
Cooperative of Palo Alto, Inc. (Cable Co-op) to AT&T. The agreement will result in an
investment of millions of dollars in a cable plant upgrade, including new fiber optic
cables, the expansion of channel capacity, and improved system reliability. It will also
result in additional digital video services being made available.
Staff has also reached a proposed agreement with Silicon Valley Community
Communications, Inc., (SVCC) for the provision of facilities and equipment for the Mid-
Peninsula Access Corporation (MPAC) the City’s designated community access
organization. This agreement was developed in response to City Council direction to
CMR:332:00 Page 1 of 11
"keep MPAC whole," and provides for studio space and studio equipment to meet
MPAC’s current and future needs throughout the term of the new franchise agreement.
This report transmits the following items for Council approval: 1) a resolution approving
the transfer and assignment of the existing cable television system from Cable Co-op to
AT&T; 2) a proposed new franchise agreement with AT&T; 3),a proposed agreement
with SVCC for facilities and equipment support for MPAC; and 4) a proposed
compromise and settlement with Cable Co-op. (All of these items are included as
Attachment A). In addition, staff seeks the Council’s direction to return with
modifications to the City’s cable television ordinance to account for a recent decision by
the U.S. Court of Appeals (9th Circuit) restricting a local franchising authority’s right to
regulate cable modem services.
CMR:332:00 Page 2 of 11
RECOMMENDATION
Staff recommends that Council:
Adopt the resolution approving transfer and assignment of the cable television cable
system held by Cable Co-op to TCI Cablevision of California Inc., doing business as
AT&T Broadband, a subsidiary of AT&T Broadband L.L.C. and a wholly-owned
indirect subsidiary of AT&T Corp.
Approve a cable television franchise agreement between the City Of Palo Alto, on
behalf of the Joint Powers, and TCI Cablevision of California, Inc., doing business as
AT&T Broadband.
3.Approve an agreement between the City of Palo Alto and SVCC for the provision of
facilities and equipment for MPAC.
4.Approve a compromise and settlement agreement between the City of Palo Alto and
Cable Co-op.
Direct staff to return at the earliest possible date, with amendments to the City’s cable
television ordinance (Chapter 2.10 of the Municipal Code), removing Section 26 of
Appendix A, in deference to the U.S. Court of Appeal’s decision in the AT&T Corp.
v. City of Portland that restricts the City’s right to regulate cable modem services.
BACKGROUND
In 1983, a Joint Powers Agreement (JPA) was entered into by Palo Alto, Menlo Park,
East Palo Alto, Atherton, and portions of San Mateo and Santa Clara Counties for
purposes of obtaining cable television service for residents, businesses, and institutions
within these jurisdictions. The JPA gives the City of Palo Alto sole authority to grant and
administer the cable television franchise on behalf of all the JPA member communities.
In 1986, a cable television franchise agreement was executed with Cable Co-op; the
agreement was amended in 1991. This agreement is set to expire on March 24, 2001. In
July 1998, Cable Co-op requested that the City of Palo Alto commence formal
proceedings to determine whether or not to renew the franchise, and since the fall of
1998, staff has been working on this renewal project. The City hired a cable
communications consultant, The Buske Group, and retained the services of a law firm,
Miller, Canfield, Paddock & Stone, which specializes in cable communications law, to
assist with the process. Generally, a franchise renewal process takes 30 to 36 months,
and staff had intended to conclude the renewal process by March 24, 2001.
In April 1999, Cable Co-op announced that its Board of Directors had approved a letter
of intent to sell the cable system to AT&T. The Board approved the sale in September
1999, and the subscribers of Cable Co-op approved the sale in early 2000. On February
CMR:332:00 Page 3 of 11
14, 2000, the City received the request to transfer the franchise from Cable Co-op to
AT&T.
During the review of the transfer request, staff understood, for the first time, key details
of the sales transaction between Cable Co-op and AT&T. In particular, staff was made
aware of the fact that closing the sale was predicated on AT&T receiving a new franchise
agreement within the relatively short period of time the City had to review the transfer
request. The asset purchase agreement between Cable Co-op and AT&T states that a
new or amended franchise agreement must be in place for the sale to close. Staff was
already aware that Cable Co-op has significant loans coming due at the end of July 2000
and needs the sale to close to pay off its debtors. These two facts combined to create a
situation in which the City was being asked to approve a new franchise agreement as
soon as possible, and at the same time as the transfer request is considered, rather than by
March 2001.
In late March 2000, staff agreed to make every effort to negotiate a new franchise for
Council approval on June 26, at which time Council was scheduled to consider the
franchise transfer from Cable Co-op to AT&T. Cable Co-op and AT&T later extended
the transfer deadline to July 24, 2000, in order to allow additional time to come to
agreement on a new franchise.
During negotiations with AT&T, staff learned that the asset purchase agreement altered
the relationship between the cable company and MPAC, the City’s designated
community access organization. Under the terms of the existing franchise agreement,
Cable Co-op is required to provide facilities (office space and studio space) and
equipment to MPAC. AT&T would have assumed this obligation under a new franchise
agreement. The asset purchase agreement, however, transferred responsibility for this
obligation to a newly created nonprofit, SVCC. As a result, during negotiations AT&T
made it clear that it would not preserve the status quo for MPAC in terms of facilities or
equipment. Due to these circumstances, it was necessary for staff to negotiate with
SVCC for facilities and equipment for MPAC, even though the City is not legally
required to do so.
In preparation for approving a new franchise agreement, in May 2000, the City Council
adopted an ordinance related to cable television and open video system operators
(CMR:237:00). The ordinance, which amended and added new provisions to Chapter
2.10 of the Palo Alto Municipal Code, contains many clauses currently in the existing
franchise agreement. The adoption of the ordinance ensures that any provider of cable
services, including AT&T, will be required to meet the same standards and requirements.
This includes customer service standards, a franchise fee requirement of five percent, and
the requirement for a local customer service office.
CMR:332:00 Page 4 of 11
DISCUSSION
This reports seeks Council approval of four separate items: 1) a transfer of the cable
system from Cable Co-op to AT&T; 2) a new franchise agreement with AT&T; 3) an
agreement with SVCC; and 4) a compromise and settlement agreement with Cable Co-
op. In addition, staff is asking Council to direct staff to return with amendments to the
City’s cable television ordinance to reflect the U.S. Court of Appeals decision that
currently limits the City’s right to regulate cable modem services. Each of these items is
discussed in more detail below.
Franchise Transfer Request
Federal and state laws, as well as the existing franchise agreement, govern the process of
transferring ownership of a franchise from one cable television operator to another. Once
a transfer request has been submitted, it can only be denied under certain circumstances.
Palo Alto may deny a franchise transfer request based upon the buyer’s unique financial,
legal, technical, and character qualifications, and its ability to provide the required cable
service. It may also deny a transfer request if the proposed transfer would eliminate or
reduce competition in the delivery of cable service, if the buyer refuses to accept the
terms of the existing franchise agreement, and/or if the buyer refuses to cure any past
contract noncompliance issues of the seller.
Federal law gives local franchise authorities 120 days in which to review a transfer
request, once it has been determined that :-~. complete request has been received. If the
local franchise authority has not taken action within the 120 day timeframe, the transfer
request is deemed approved. Federal law allows both parties to agree to an extension of
this timeline. Cable Co-op and AT&T have extended the 120 day period for the City’s
review of the transfer request to July 24, 2000.
Staff is satisfied that AT&T possesses the financial, legal, technical, and character
qualifications necessary to provide cable services. Staff is therefore recommending that
the Council approve, by adoption of the attached resolution, a transfer of the cable
system from Cable Co-op to AT&T; the current franchise agreement will be superseded
by the new franchise agreement, and staff is also recommending its approval to Council.
New Franchise Agreement
The proposed franchise agreement with AT&T represents a departure from the existing
franchise agreement with Cable Co-op, reflecting the changing nature of the cable
television industry and the transition from a locally owned cooperative to a multinational
corporation, AT&T provides a standard set of cable services across the country. Thus,
some of the services to which citizens have grown accustomed will be altered or
discontinued under an AT&T franchise. With this, many of the changes AT&T will
bring to Palo Alto will be positive ones. AT&T has agreed to spend millions of dollars
investing in a cable plant upgrade, including laying new fiber optic cables. This will
CMR:332:00 Page 5 of 11
result in the expansion of channel capacity, improved system reliability, and the
availability of additional digital video services.
The City conducted a thorough needs assessment ascertainment process to help determine
what to negotiate for in a new franchise agreement. It is important to note that Federal
and California laws define the negotiating powers of the City of Palo Alto as the local
franchising authority. Foi~ example, Federal law prohibits Palo Alto from regulating rates
(except for the lowest cost tier of service), establishing a franchise fee that is greater than
five percent of gross revenues, or granting an exclusive franchise agreement. California
law precludes Palo Alto from regulating voice (telephone) services, even if offered over
cable lines. The key items negotiated as part of the franchise agreement, including those
identified through the ascertainment process, are discussed below.
Term: The franchise term has been reduced from 15 to 10 years, reflecting the
increasingly competitive and rapidly changing telecommunications environment.
Cable System Upgrade: The system will be upgraded within 36 months to a hybrid
fiber/coax communications system with a minimum bandwidth of 750 MHz. This will
bring improved service and reliability to the community. The system will be capable of
bringing local phone service, high-speed data access, and multi-channel video service.
The upgrade will be phased in through the franchise area, so some residents will see new
services sooner than others.
Rates: AT&T has agreed that it will not make any rate changes through the end of 2000.
After that time, AT&T normally makes rate adjustments in June of each year. The City
has the right to regulate rates in the lowest tier of cable services, which generally includes
television stations broadcast locally and PEG channels.
Channel Line-up: The community expressed the desire to retain certain channels (e.g.,
Sundance, Ovation, and the Discovery Channel) and to keep the public, education, and
government access (PEG) channels at their current numerical locations. Since federal
law prohibits local franchise authorities from requiring or prohibiting the carriage of
specific channels, staff was not able to require AT&T to continue to carry the channels
desired by the community. During the rebuild, the channel line up will remain the same;
once it is completed, subscribers should expect to see line up changes, including a
"leaner" basic service with fewer channels at a lower cost. Staff attempted to have
AT&T commit to keeping the PEG channels at their current location, but were
unsuccessful. Since AT&T plans to offer a universal channel line-up throughout the Bay
Area, it may need to move the PEG channels in order to satisfy this plan. AT&T agreed
to the following conditions if it moves the numerical location of a PEG channel: payment
of $5,000 for each PEG channel it moves; at least 60 days prior written notice of the
move; to locate four PEG channels in a grouping under the channel number 33; and to
provide free advertising space to promote subscriber awareness of the channel move.
CMR:332:00 Page 6 of 11
PEG Channels: The existing PEG channels are 6 and 77 (for local and public access
programming), 16 (for government), 50 (Foothill College), and 51 (Stanford University).
The community expressed strong support for additional PEG programming and channels.
After the rebuild is completed, AT&T has agreed to provide a sixth PEG channel for
government programming. This will enable more than one public meeting to be
broadcast at a time. In addition, staff negotiated for up to four additional PEG channels if
PEG programming grows sufficiently. Finally, upon completion of the rebuild, AT&T
will provide SVCC with one channel.
Open Access: Strong community support was expressed for requiring AT&T to allow
multiple Internet service providers access to the cable modem system. A recent decision
by the U.S. Court of Appeals has restricted Palo Alto’s right to regulate cable modem
services. By declaring that cable modem Internet services are telecommunications
services and not cable services, the Court has placed the right to regulate these services in
the hands of the Federal Communications Commission (FCC), and taken it out of the
hands of local franchise authorities. Thus, as of today, and pending any effects or future
decisions to the contrary, Palo Alto is prohibited from requiring open access as a
condition of approving the transfer of the franchise to AT&T.
Further, the portions of the City’s cable television ordinance related to Internet and Cable
Modem Service Standards should be amended since these standards can no longer be
enforced.
FM Radio Services:" Strong community support was expressed for retaining the current
audio service provided by Cable Co-op. Cable Co-op currently provides World Class
audio service for $7.95 a month, which carries a classical FM radio station greatly valued
by the community. World Class audio service currently has 144 subscribers. Cable Co-
op also offers an FM audio line-up with 32 channels at no cost for subscribers of basic
cable services. Unfortunately, federal law prohibits Palo Alto from requiring specific
offerings, including radio service. However, staff was able to obtain a commitment from
AT&T that it would continue to provide FM radio service until the cable system rebuild
is phased in. However, once the rebuild is complete, AT&T plans to offer the same
digital audio service that it provides in other communities in the Bay Area.
Internet Services and Speed." The community expressed its strong support regarding a
desire to retain the current tiers of cable modem service offerings and to have the
broadest bandwidth possible available. Again, federal law prohibits Palo Alto from
requiring specific services (tiers of service) or specific transmission technologies
(specific speeds). Staff was able to get AT&T to commit to retaining the current tiered
service offering until the system is upgraded. However, once the upgrade is complete,
AT&T plans to offer its standard Internet service package to subscribers. Currently,
AT&T offers "@home" for residential, casual Internet users.
CMR:332:00 Page 7 of 11
Digital Divide: Strong interest was expressed in bridging the "digital divide" to ensure
that all JPA communities have similar access to technology. Staff has negotiated the
provision of an institutional network linking public schools, libraries, public buildings,
and community centers in the JPA area with the capability of providing voice, video and
data communications. In addition, AT&T has agreed that it will cause Cable Co-op to
pay $250,000 to the City to help fund a portion of the cost for the equipment necessary to
make the network functional, including acquisition of equipment for Ravenswood City
Elementary School District in East Palo Alto and East Menlo Park. Staff has also
negotiated, free of charge, basic cable and cable modem service for all educational
institutions (including all public schools) and for all public buildings in the JPA area.
Finally, the agreement provides free cable modem equipment to all public schools and
libraries in the JPA.
Public, Educational and Government (PEG) Funding and Support: The community
expressed strong support for funding to maintain and enhance PEG access services
provided by MPAC. AT&T has agreed to pay $0.88 a residential subscriber per month, or
approximately $275,000 annually. The level of support will increase if the residential
subscriber base goes up. Currently, Cable Co-op provides about $150,000 annually to
MPAC. In addition to funding, staff has negotiated for MPAC to receive 5 free
advertisements a month for an eighteen month period. After that time, MPAC will have
the ability to purchase advertisements at a discounted rate. To increase community
awareness of PEG access resources and services, the Agreement also includes
requirements related to the distribution of promotional materials and program guides for
all PEG channels.
Agreement with SVCC
Under the terms of the asset purchase agreement, AT&T will provide SVCC with office
and studio space for 18 months free of charge, at which point SVCC must seek new
facilities. In turn, MPAC must look to SVCC for facilities throughout the term of the
new franchise agreement. SVCC will receive a $17 million charitable donation from
AT&T that will allow it to fulfill its obligations to MPAC. Of the $17 million, almost $7
million must be held in escrow pending final determination from the IRS that the $17
million is a non-taxable charitable donation to SVCC rather than a taxable event to Co-op
arising from the sale of Cable Co-op’s system to AT&T.
Staff has negotiated a proposed agreement with SVCC that provides for MPAC’s facility
and equipment needs throughout the term of the new franchise agreement. The
agreement guarantees that MPAC will be provided programming facilities and other
space located within the JPA service area that is at least commensurate in size and
suitability with facilities MPAC has today. In terms of equipment, for the first six
months, $150,000 will be available to fund MPAC equipment needs. These guarantees
are consistent with the Council’s direction to "keep MPAC whole."
CMR:332:00 Page 8 of 11
Staff has also provided for the future needs of MPAC in a way that will allow it to
enhance the services it provides to the community. The agreement requires that within
six months, SVCC must establish a new board of directors composed of three people
designated by SVCC, three designated by the City, and three designated by MPAC. This
board composition will give the City and MPAC decision-making control over the
charitable donation of $17 million. This will allow MPAC access to these funds to meet
its existing and future needs. Until the new board is established, the City and SVCC will
jointly control all SVCC expenditures.
Compromise and Settlement Agreement with Cable Co-op
Under the existing franchise agreement, the City Council may require as a condition to
consenting to the transfer or sale of the franchise, that the new cable company assume
responsibility for any outstanding financial obligations of Cable Co-op to the City. The
asset transfer agreement between Cable Co-op and AT&T does not obligate AT&T to
pay Cable Co-op’s outstanding financial obligations, but instead makes Co-op
responsible and liable for the City’s claims against Co-op before the sale and transfer is
consummated.
As a part of the franchise renewal process, The Buske Group undertook an assessment of
Cable Co-op’s past performance. This assessment included a contract compliance
review, franchise fee audit, and technical assessment. The assessment identified a
number of areas of non-compliance on the part of Cable Co-op, including: failure to pay
$214,364 in franchise fees; failure to post a $310,000 letter of credit; failure to post a
performance bond; failure to provide the required number of PEG channels; failure to
meet certain technical performance standards; and failure to extend the cable system to
parts of the franchise service area.
In the interest of resolving the non-compliance issues in a timely fashion, in order not to
delay approval of a franchise transfer and a new franchise agreement, the city agreed to
settle its claims if Cable Co-op pays $220,000.
In addition, the current franchise agreement requires Cable Co-op to pay the ordinary and
reasonable costs that the City incurs as part of a franchise renewal process. The amount
was capped at $150,000, adjusted by CPI. Cable Co-op has agreed to pay $185,000 in
support of these costs.
Finally, as mentioned earlier, as a part of the new franchise agreement, AT&T has agreed
that it will cause Cable Co-op to pay $250,000 to the City as a grant in connection with
the institutional network obligations of AT&T.
RESOURCE IMPACT
The proposed new franchise agreement with AT&T provides various forms of
compensation (e.g., franchise fees, funding for PEG access services, funding for an
CMR:332:00 Page 9 of 11
institutional network, etc.) for the use of the public’s streets and rights of way. In
addition, Cable Co-op is paying the JPA $405,000 to settle contract noncompliance issues
and costs associated with the franchise renewal process. This money will be distributed
to the JPA member communities on a pro-rata basis based on subscribers. Staff plans to
include the necessary adjustments to the 2000-01 General Fund Budget as part of the
2000-01 Midyear Report.
The proposed agreements with AT&T and SVCC reflect the fact that the cable industry is
becoming more complex and is rapidly changing. In order to manage these contracts
properly, in addition to being able to manage any contracts with additional cable service
providers who may come into the area, additional staff and consulting resources will be
needed. Staff plans to propose additional resources needs, perhaps as soon as with the
2000-01 Midyear Report.
ENVIRONMENTAL REVIEW
This is not a project under the Califomia Environmental Quality Act.
ATTACHMENTS:
Attachment A: Resolution Approving an Assignment and Transfer of the Existing
Cable Television Franchise with the following Exhibits:
Exhibit A: Franchise Agreeme,nt with AT&T
Exhibit B: Compromise and Settlement Agreement with Cable Co-op
Exhibit C: Agreement with SVCC
PREPARED BY:Melissa Cavallo, Assistant Director, Administrative Services
Shannon Gaffney, Senior Financial Analyst
REVIEWED BY: Grant Kolling, Senior Assistant City Attomey
DEPARTMENT HEAD APPROVAL:
Services
CITY MANAGER APPROVAL:
FRANK BENEST
City Manager
CMR:332:00 Page 10 of 11
co:Mr. Russell Averhart, Director of Administrative Services, City of East Palo Alto
Mr. Walter Callahan, Deputy Director, Public Works, San Mateo County
Ms. Uma Chokkalingam, Finance Director, City of Menlo Park
Ms. Jan Dolan, City Manager, City of Menlo Park
Mr. Ralph Freedman, Interim City Manager, Town of Atherton
Ms. Monica Hudson, City Manager, City of East Palo Alto
Mr. John Maltbie, County Executive, County of San Mateo
Ms. Jan Thomson, Stanford University
Ms. Salani Wendt, City Clerk, City of East Palo Alto
Mr. David Wheaton, Asst. City Manager, City of Menlo Park
Mr. Richard Wittenberg, County Executive, County of Santa Clara
Mr. Josh Wallace, CEO & General Manager, Cable Co-op
Mr. Tom Carlock, AT&T Broadband
Sue Buske, President, The Buske Group
Randy Okamura, Pacific Bell
Needs Assessment Task Force Members
CMR:332:00 Page 11 of 11
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO
ALTO CONSENTING, SUBJECT TO CERTAIN CONDITIONS,
TO THE TRANSFER 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 26, 1983, 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 of 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 Agreement"), pursuant to
which, subject to certain conditions, including the City’s
consent required by the Franchise Agreement, the Company will
000720 syn 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:I55:00) and recommendation concerning the
Application, to the Council; and
WHEREAS, pursuant to Section 14.2 of the Franchise
Agreement, on or about March i0, 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 i0, 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 16, 2000 and May 17,
2000, TCI and the Company, respectively, agreed to extend until
June 26, 2000 the 120-day period under 47 U.S.C. §537 for the
City to consider the Application; and
WHEREAS, by letter, dated J~ne 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
000720 syn 0071832
2
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 7.2.2 and 7.24 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
000720 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, amQng 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 transfer0r’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 have negotiated a new
franchise agreement between the .City and TCI ("New Franchise
Agreement") to replace and supercede the Franchise Agreement,
the terms and conditions of such New Franchise Agreement being
attached hereto as Exhibit A; and
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
C@mpany, 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, in 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
000720 syn 0071832
4
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 I. 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 Franchise
Agreement, the Application.
(b) Neither the System northe 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) Within thirty-one days of Council approval of this
resolution, TCI shall execute and accept the New Franchise
Agreement in substant.ially the form attached hereto as
Exhibit A.
(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 Co
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 force or effect. If any of the
conditions and provisions specified in Section 1 hereof is not
000720 syn 0071832
.satisfied, then the Council’s consent to the proposed Sale to
TcI is denied, and the New Franchise Agreement shall not take
effect and the Franchise Agreement shall remain in full force
and effect.
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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000720 syn 0071832
SECTION 7. The Council finds that the adoption of this~
resolution is not a project under the CEQA Guidelines a~d,
therefore, no environmental review is required.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
Mayor
City Manager
Director of Administrative
Services
000720 syn 0071832
EXHIBIT A
[ "NEW FRANCHISE AGREEMENT" ]
000720 syn 0071832
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
THE CITY OF PALO ALTO, CALIFORNIA
ON .BEHALF OF THE JOINT POWERS
TCI CABLEVISION OF CALIFORNIA, INC.
TABLE OF CONTENTS
SECTION 1.
SECTION 2.
2 1
2 2
2 3
2 4
2 5
2 6
2.7
SECTION 3.
SECTION 4.
SECTION 5.
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
DEFINITIONS i
GRANT OF FRANCHISE
Grant .......
Term
Effective Date
Effect of Acceptance
Rights Reserved to the City
3
4
4
4
Compliance by TCI; Rights Reserved to TCI ...........4
Legal Qualifications---5
FRANCHISE LIMITATIONS 5
NON-EXCLUSIVE FRANCHISE 6
NO WAIVER ...............6
Inaction by City ............
Same or Different Breach
6
7
CUSTOMER SERVICE 7
Customer Service
Privacy .........
Sale of Subscriber Lists and Personalized Data
Maintenance and Complaints ..........
Non-discrimination, Equal Employment, and ADA
Parental Control Device
7
8
8
8
9
10
SYSTEM FACILITIES, EQUIPMENT, AND SERVICES ..........10
Cable System Design and Functionality
Interconnection
Institutional Network
System Design Review Process
Initial Tests
System Inspections
Other Construction Procedures
System Maintenance
System Performance
I0
12
13
14
15
16
17
18
18
SECTION 7.
7 10
7 Ii
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
SYSTEM FACILITIES, EQUIPMENT, AND SERVICES (Cont’d)
System Extension
Public, Educational and Governmental Use
Ascertainment of Programming
No City Control ...........
Emergency Alert System
Certain Current Services
18
21
27
27
-27
.-28
CONSTRUCTION STANDARDS
RATE REGULATION .........
FRANCHISE FEES ........
PERFO~CEBOND
SECURITY FUND
- 28
- 29
30
31
32
SURETIES; RELATION TO OTHER REMEDIES ................33
FRANCHISE VIOLATION -- NOTICE ANDPROCEDURES ........34
TERMINATION, REVOCATION, FORFEITURE--35
LIQUIDATED DAMAGES 36
REMEDIES CUMULATIVE 37
CONTINUITY OF SERVICE ..............37
RECORDS INSPECTION ...............38
REPORTS ANDRESPONSES TO QUESTIONS ...........39
RECORDS IV~INTENANCE ..............41
PERFO~CEMONITORING 41
Triennial Review ...........41
TCI Cooperation 42
Exercise of Authority .........42
ii
SECTION 23.
SECTION 24.
SECTION 25.
25.1
25.2
25.3
25.4
25.5
25 6
25 7
25 8
25 9
25 i0
25 ii
25 12
25 13
25 14
25 15
25.16
OTHER CITY RIGHTS
OPEN ACCESS
MISCELLANEOUS 42
Time of Essence
Compliance with Laws
Force Majeure
Severability
Written Notice
42
42
43
43
43
Conflict between Agreement and Enabling Ordinance-- 44
California Law Applies.44
Burden of Proof--44
Integration
Amendment
Headings
Counterparts
Exhibits
Venue
Representation by Counsel
Calculation of Time---
44
44
45
45
--45
45
,45
--45
EXHIBITS:
A
B
C
SERVICE AREA MAP
INSTITUTIONAL NETWORK - CITY AND TOWN HALLS
INSTITUTIONAL NETWORK -SCHOOL, SCHOOL DISTRICT AND
PUBLIC FACILITIES
iii
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 I.DEFINITIONS
i.I The following words, terms, phrases, and
abbreviations and their similar formulations shall have 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 c~mmon 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 access 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.
"Institutional Network" or "I-Net" means a
communications network related to and physically joined with the
000720 syn 0071883 1
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 TCIo
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" means a Cable Service,
other than a video programming service, that TCI makes available
to all Subscribers generally.
and TCI.
"Party" means the City or TCI; "Parties" means the City
~ "Service Area" means the agea, 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,
000720 syn 0071883 2
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.,
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.,
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 hereby
grants to TCI 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 theJoint 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 the 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
Joint Powers Agreement and the Joint Operating Agreement. In
addition, the Parties acknowledge and agree that, under the Joint
Operating Agreement: (i) the City, in certain circumstances, may
delegate to, or exercise jointly with, one or more of the Joint
000720 syn 0071883 3
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 (iv) 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 the 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
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
000720 syn 0071883 4
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 the foregoing, TCI he.reby
reserves its right to challenge, and TCI’s acceptance of this
Agreement shall not be construed as a waiver of TCI’s right to
challenge:.
(I) The portion of Section 2.10.Z~O(c] Qf the .~alo
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 satisfies 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 of the City, and (iii) 47
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
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 ~=xercise
of the police power of the City, and its other lawful authority.
000720 syn 0071883 5
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 (I) 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 i0 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.
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
000721 syn 0071883 6
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 Agreement 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:
I)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
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 26 of Appendix A to the Enabling Ordinance unless or
until Section 26 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
000720 syn 0071883 7
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.
6.4.3 TCI shall obtain and maintain a service
repair force of technicians sufficient to comply 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 lo~ate, 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
000720 syn 0071883 8
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 TCl 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,
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,
000720 syn 0071883 9
the closed-caption signal, shall retransmit
received by TCI with closed-captioning.
all programming
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.
(I) 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 750 MHz-
capable equipment, or equipment of higher bandwidth. All passive
components replaced or added after the effective date of this
Agreement will be 1 Gigahertz-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.
000720 syn 0071883 10
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.
(i) 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 and/or
rebuild, all facilities and equipment will be installed (except
customer premises equipment), so that the two-way active
capability required in Section 7.1.1(5) is fully ready to operate
upon Subscriber request.
(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
H~adend 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
000720 syn 0071883 11
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 ~able 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
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;
000720 syn 0071883 1 2
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: (I) the PEG/Headend links, described
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 (I) 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
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 Co
TCI will install the fiber connections to each faciiity listed in
Exhibit C free of charge where either (I) 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
000720 syn 0071883 13
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, instal!, 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 (i) 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
the use of the Institutional Network for any bona fide public
purpose even if such use generates revenues to reimburse the City,
or o~her 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 Desiqn 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
000720 syn 0071883 14
include at least the following elements or their contemporary
equivalent :
(I) Design type, fiber and coaxial cable design,
and the then-planned or known number and location of hubs and
nodes.
to be used.
(2)Distribution system-cable, fiber, equipment
(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
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.
000720 syn 0071883 15
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 S.ystem, 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
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 Continuinq 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
000720 syn 0071883 1 6
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 busin@sses in the
Service Area of any planned construction that will occur within
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 design maps in an
electronic format agreeable to the City and any of the Joint
Powers, on request, after the completion of construction in any
area within the Service Area; and
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 withinthe Service Area.
000720 syn 0071883 17
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 i0 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
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 I, 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
000720 syn 0071883 18
Agreement, subject to the line extension requirements specified
in Section 7.10.2.
7.10.2 Line Extension Requirements.
(I) 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 i, 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
fracti6n 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.
(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:
Total Cost to Construct ExtensionI =
Cable Miles of Extension
Cost Per Cable Mile of
Extension
ii.Cost Per Cable Mile of Extension
3O
TCI’s Share of Cost
Per Subscriber Unit
iii.TCI’s Share of Cost Per
Subscriber Unit Times Number
of Subscriber Units Passed
TCI’s Share of Total
Cost of Extension
I "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.
000720 syn 0071883 19
iv.Total Cost to Construct Extension = Total Subscriber’,s Share
Minus TCI’s Share of Total
Vo Total Subscriber Share
Number of Subscribers
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
~nderground installation is higher.
7.10.5 Time for Extension.
Service to any Person who requests it:
TCI shall extend Cable
(I) If the Person is located in the Service Area,
and service can be provided by activating or installing a
standard drop to that location, Cable Service shall be provided
within seven days of receipt of the request;
(2) If the Person is located in a newly
constructed area within the Service Area after January I, 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 2,640 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
000720 syn 0071883 2 0
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 2,640 cable-bearing strand feet
(one-half cable mile) is required, TCI must progide 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.TCI shall provide Cable
Service to that location within twelve months from the date that
TCI has obtained all required permits for such construction to
the Person’s location.
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
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 ofsix 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.
(i) 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
000720 syn 0071883 21
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) Timeline 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.
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:
(I) 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.
000720 syn 0071883 2 2
(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 Reqarding Rules and Procedures
for Use of PEG Access Channels.
(I) 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
similarly situated Users. The City shall be responsible for
establishing and enforcing rules for use of the PEG Access
channels during any period such Community Access Organization
does not exist.
(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 Usersi.
(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
000720 syn 0071883 2 3
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 Subscriber2 calculated on
an EBU (equivalent billing unit) basis.
7.11.5 Cable Drops for PEG Locations. TCI shall
install, without charge, one drop for 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 (I)
currently served with a cable drop or (2) within 200 feet of ~the
nearest point or the Cable System. Upon request, TCI shall
install a drop to any educational institution, designated PEG
Access facility(s) or government buildings failing to meet either
of the standards in (i) 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
000720 syn 0071883
promotional services to the Community Access Organization, free
of any charges:
(i) 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 s~all 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.
(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, delivery 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
000720 syn 0071883 2 5
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 e&ther (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
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
78; (iv) TCI provides the City or the CAO with a payment of
000720 syn 0071883 2 6
$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 Programminq.
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, orto be
taken, by it pursuant thereto.
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
de@ignated 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.
000720 syn 0071883 2 7
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 Cable 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.
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
particular manner, or at all times in the Public Rights-Of-Way or
any other property occupied pursuant to this Agreement.
3 above:
8.2 Without limiting the provisions of Sections 2 and
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 Qf 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
shal! 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:
(i) Occupational Safety and Health Administration
(OSHA) Safety and Health Standards;
(2) National Electrical Code;
000720 syn 0071883 2 8
(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 and municipal
construction requirements, including FCC rules and regulations
and environmental regulations;
(7) All building and zoning codes and all land
use restrictions and local safety codes;
(8)The Enabling Ordinance; and
Control~.(9) CALTRANS Standards for Vehicular T~affic
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 Servfces 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 statement) 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
000720 syn 0071883 2 9
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 i0.FRANCHISE FEES
I0.I 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 notice 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
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 item 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 i0 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 shal! 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
000720 syn 0071883 3 0
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 i0.I, 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 shal! 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
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 Ii.PERFORMANCE BOND
ii.i Within thirty-one days of the Council’s approval
of this Agreement’, TCI shall establish in the City’s favor a
p@rformance bond that covers all Joint Powers communities in the
amount of one million dollars ($I,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
000720 syn 0071883 31
repairing the Cable System construction, upgrade and/or rebhild,
or other work, plus reasonable attorneys’ fees.
11.3 The City shall reduce the performance bond
requirement to five hundred thousand dollars ($500,000) upon the
satisfactory completion of the construction, upgrade, and/or
rebuild of the Cable System or as evidenced by completion of
acceptance testing in Section 7.5.2 of this Agreement. The City
may reinstate the one million dollar ($I,000,000) performance
bond requirement consistent with °this Section II 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:
"This bond may not be canceled, or allowed to
lapse, until sixty days after receipt by the
City, by certified mail, return receipt
requested, of a written notice from the
surety of its intent to cancel or not to
renew."
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 Withinthirty-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 $I00,000. 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,
000720 syn 0071883 3 2
the amount withdrawn, and the specific reasons for
withdrawal.
the
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
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 pena’ities 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.
000720 syn 0071883 3 3
SECTION 14.
PROCEDURES
FRANCHISE VIOLATION -NOTICE AND
14.1 Before terminating this Agreement, assessing
liquidated damages, or pursuing any other remedy available to it
under Sections II 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
A!to Municipal Code.
14.2 The City shall notify TCI, in writing, of any
alleged default or breachof this Agreement ("Notice of Default")
or any alleged violation ("Notice of Violation") ["Notice" or
"Notices"] of the Enabling Ordinance. Any such Notice shall: (i)
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
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: (I)
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 penalties 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
000720 syn 0071883 3 4
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, separat4, and distinct right to revoke the Franchise
if TCI:
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 i’ts 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 revocaiion 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
000720 syn 0071883 3 5
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
sel! or transfer 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
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;
000720 syn 0071883 3 6
submit
information:
continues;
16.4 For repeated, willful, or continuing failure to
reports, maintain records, provide documents or
$250 per day for each day the breach or violation
16.5 For breach or violation of customer service
standards that are not measured quarterly: $250 per breach or
violation per day;
16.6 For breach or violation of customer service
standards that are measured quarterly: $1,250 per quarterly
breach;
16.7 For failure to comply with transfer provisions:
$i,000 per day from the date of any unlawful transfer; and
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 al!
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
000720 syn 0071883 3 7
the development of plans required to ensure an orderly transition
from one Operator to another. The Transition Period will be no
ibnger 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
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
000720 syn 0071883 3 8
"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
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: (I) 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 i0; and
20.1.4 A report stating the Subscriber totals for
each member of the Joint Powers for: (i) 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:
000720 syn 0071883 3 9
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
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
leakage tests (or their equivalent); and
and RF signal
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.
000720 syn 0071883 4 0
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:
21.1.1 Records of outages, indicating date,
duration, area and the estimated number of Subscribers affected,
type of outage, and cause to be maintainedfor four years,
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 commence 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.
000720 syn 0071883 41
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. The City may exercise
appropriate regulatory authority under the provisions of this
Agreement and applicable Law.
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)(i) or (b)(I).
SECTION 24.OPEN ACCESS
24.1 TCl 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 obligations of the Parties and each of them.
25.2 Compliance with Laws. TCI must comply with
applicable Law. If the City’s ability 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
000720 syn 0071883 4 2
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
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. O. 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
000720 syn 0071883 4 3
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
upon hand-delivery to the person identified above, at the address
specified above.
25.6 Conflict between this Agreement and the
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, shal! 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 prinqiples.
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 Agreement shall not be
amended except pursuant to a written instrument signed by the
Parties.
000720 syn 0071883 4 4
25. ii 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.
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.
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 in this Agreement, and shall be deemed a part
hereof.
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 thefollowing business day.
//
//
//
//
//
//
//
000720 syn 0071883 4 5
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 OF PALO ALTO
City Clerk
APPROVED AS.TO FORM:
Senior Asst. City Attorney
APPROVED:
As.sistant City Manager
Director of Administrative
Services
Risk Manager
Mayor
TCl CABLEVISION OF CALIFORNIA,
INC.
By:
Name:
Title:
By:
Name:
Title:
Taxpayer Identification No.
EXHIBITS:
A
B
C
(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)
SERVICE AREA MAP
INSTITUTIONAL NETWORK - CITY AND TOWN HALLS
INSTITIONAL NETOWRK -SCHOOL, SCHOOL DISTRICTS
AND PUBLIC FACILITIES
000721 syn 0071883 4 6
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
) SSo
COUNTY OF )
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
0007Z0 syn 0071883 47
CERTIFICATE OF ACKI~OWLEDGM~NT
(Civil Code ~ 1189)
STATE OF )
) SS.
COUNTY OF )
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
000720 syn 0071883
48
Atherton
1. Reserved
EXHIBIT B
INSTITUTIONAL NETWORK
CITY AND TOWN HALLS
By Community
East Palo Alto
1. City Hall
2415 University Avenue, East Palo Alto, CA
Menlo Park
1. Civic Center
701 Laurel Street, Menlo Park
Palo Alto
1. Civic Center
250 Hamilton Avenue, Palo Alto
EXHIBIT C
INSTITUTIONAL NETWORK
SCHOOL, SCHOOL DISTRICT, AND PUBLIC FACILITIES
Schools and School District Facilities by School District~
Ravenswood City Elementary School District
I. Belie Haven Elementary School
415 Ivy Drive, Menlo Park, CA 94025
2. Brentwood Oaks/Edison Elementary School
2086 Clarke Avenue, East Palo Alto, CA 94303
3. Chavez Academy (Elementary) School
2450-A Ralmar Street, East Palo Alto, CA 94303
4. Costano Elementary School ~
2695 Fordham Street East Palo Alto, CA 94303
5. East Palo Alto Charter School
1286 Runnymede Street, East Palo Alto, CA 94303
6. Flood Magnet School
320 Sheridan Drive, Menlo Park, CA 94025
7. Green Oaks School
2450-B Ralmar Street, East Palo Alto, CA 94303
8. McNairiEdison Intermediate School
2033 Pulgas Avenue, East Palo Alto, CA 94303
9. Menlo Oaks Intermediate School
475 Pope Street, Menlo Park, CA 94025
10. Willow Oaks Elementary School
620 Willow Road, Menlo Park, CA 94025
11. San Francisco 49er Academy
2086 Clarke Avenue, East Palo Alto, CA 94303
12. District Office
2160 Euclid Avenue, East Palo Alto, CA 94303
EXHIBIT C - INSTITUTIONAL NETWORK
Page 2 of 10
Las Lomitas Elementary School District
1. La Entrada Middle School
2200 Sharon Road, Menlo Park, CA 94025
2. Las Lomitas Elementary School
299 Alameda de las Pulgas, Atherton, CA 94027
3. District Office
1011 Altschul Avenue, Menlo Park, CA 94025
Menlo Park City Elementary School District
1. Encinal Elementary School
195 Encinal Avenue, Atherton, CA 94027
2. Laurel Elementary School
95 Edge Road, Atherton, CA 94027
3. Oak Knoll Elementary School
1895 Oak Knoll Lane, Menlo Park, CA 94025
4. Hillview Middle School
1100 Elder Avenue, Menlo Park, CA 94025
5. Administrative District Office
181 Encinal Avenue, Atherton, CA 94027
6.Business Office/Special Education
1101 Altschul Avenue, Menlo Park, CA 94025
Same address as Las Lomitas D~strict Office
Redwood City Elementary School District
1. Garfield Elementary Charter School
Middlefield and Semi-Circular Roads, Menlo Park, CA 94025
2. Selby Lane Elementary School
170 Selby Lane, Atherton, CA 94027
EXHIBIT C - INSTITUTIONAL NETWORK
Page 3 of 10
Sequoia Union High School District
1. Menlo-Atherton High School
555 Middlefield Road, Atherton, CA 94025
Palo Alto Unified School District
1. Addison Elementary School
650 Addison Ave., Palo Alto, CA 94301
2. Barron Park Elementary School
800 Barron Ave., Palo Alto, CA 94306
3. Briones Elementary School
4100 Orme St., Palo Alto, CA 94306
4. Duveneck Elementary School
705 Alester Ave., Palo Alto, CA 94303
5. E1 Carmelo Elementary School
3024 Bryant St., Palo Alto, CA 94306
6. Escondido Elementary School
890 Escondido Rd., Stanford, CA 94305
7. Fairmeadow Elementary School
500 E. Meadow Dr., Palo Alto, CA 94306
8. Greendell Elementary School
4120 Middlefield Rd., Palo Alto, CA 94303
9. Hays Elementary School
1525 Middlefield Rd., Palo Alto, CA 94301
10. Hoover Elementary School
445 E. Charleston Rd., Palo Alto, CA 94306
11. Nixon Elementary School
1711 Stanford Ave., Stanford, CA 94305
12. Ohlone Elementary School
950 Amarillo Ave., Palo Alto, CA 94303
13. Palo Verde Elementary School
3450 Louis Rd., Palo Alto, CA 94303
EXHIBIT C - INSTITUTIONAL NETWORK
Page 4 of 10
14. Jordan Middle School
750 N. California Ave., Palo Alto, CA 94303
15. Stanford Middle School
480 E. Meadow Dr., Palo Alto, CA 94306
16. Gunn High School
780 Arastradero Rd., Palo Alto, CA 94306
17. Palo Alto High School
50 Embarcadero Rd., Palo Alto, CA 94301
18. District Office
25 Churchill Avenue, Palo Alto, CA 94306
4
EXHIBIT C - INSTITUTIONAL NETWORK
Page 5 of 10
Atherton
1.
o
o
o
o
School and School District Facilities by Community
Las Lomitas Elementary School ’
299 Alameda de las Pulgas, Atherton, CA 94027
Encinal Elementary School
195 Encinal Avenue, Atherton, CA 94027
Laurel Elementary School
95 Edge Road, Atherton, CA 94027
Menlo Park City Elementary Administrative District Office
181 Encinal Avenue, Atherton, CA 94027
Menlo Park City Elementary Business Office/Special Education
1101 Altschul Avenue, Menlo Park, CA 94025
Same address as Las Lomitos District Office
Selby Lane Elementary School
170 Selby Lane, Atherton, CA 94027
Menlo-Atherton High School
555 Middlefield Road, Atherton, CA 94025
East Palo Alto
1. Brentwood Oaks/Edison Elementary School
2086 Clarke Avenue, East Palo Alto, CA 94303
2. Chavez Academy (Elementary) School
2450-A Ralmar Street, East Palo Alto, CA 94303
3. Costano Elementary School
2695 Fordham Street East Palo Alto, CA 94303
4. East Palo Alto Charter School
1286 Runnymede Street, East Palo Alto, CA 94303
5. Green Oaks School
2450-B Ralmar Street, East Palo Alto, CA 94303
6. McNair/Edison Intermediate School
2033 Pulgas Avenue, East Palo Alto, CA 94303
EXHIBIT C - INSTITUTIONAL NETWORK
Page 6 of 10
San Francisco 49er Academy
2086 Clarke Avenue, East Palo Alto, CA 94303
Ravenswood District Office
2160 Euclid Avenue, East Palo Alto, CA 94303
Menlo Park
1. Belle Haven Elementary School
415 Ivy Drive, Menlo Park, CA 94025
2. Flood Magnet School
320 Sheridan Drive, Menlo Park, CA 94025
3. Menlo Oaks Intermediate School
475 Pope Street, Menlo Park, CA 94025
4. Willow Oaks Elementary School
620 Willow Road, Menlo Park, CA 94025
5. La Entrada Middle School
2200 Sharon Road, Menlo Park, CA 94025
6. Las Lomitas District Office
1011 Altschul Avenue, Menlo Park, CA 94025
7. Oak Knoll Elementary School
1895 Oak Knoll Lane, Menlo Park, CA 94025
8. Hillview Middle School
1100 Elder Avenue, Menlo Park, CA 94025
9. Garfield Elementary Charter School
Middlefield and Semi-Circular Roads, Menlo Park, CA 94025
Palo Alto
1. Addison Elementary School
650 Addison Ave., Palo Alto, CA 94301
2. Barron Park Elementary School
800 Barron Ave., Palo Alto, CA 94306
EXHIBIT C - INSTITUTIONAL NETWORK
Page 7 of 10
3. Briones Elementary School
4100 Orme St., Palo Alto, CA 94306
4. Duveneck Elementary School
705 Alester Ave., Palo Alto, CA 94303
5. E1 Carmelo Elementary School
3024 Bryant St., Palo Alto, CA 94306
6. Escondido Elementary School
890 Escondido Rd., Stanford, CA 94305
7. Fairmeadow Elementary School
500 E. Meadow Dr., Palo Alto, CA 94306
8. Greendell Elementary School
4120 Middlefield Rd., Palo Alto, CA 94303
9. Hays Elementary School
1525 Middlefield Rd., Palo Alto, CA 94301
10. Hoover Elementary School
445 E. Charleston Rd., Palo Alto, CA 94306
11. Nixon Elementary School
1711 Stanford Ave., Stanford, CA 94305
12. Ohlone Elementary School
950 Amarillo Ave., Palo Alto, CA 94303
13. Palo Verde Elementary School
3450 Louis Rd., Palo Alto, CA 94303
14. Jordan Middle School
750 N. California Ave., Palo Alto, CA 94303
15. Stanford Middle School
480 E. Meadow Dr., Palo Alto, CA 94306
16. Gunn High School
780 Arastradero Rd., Palo Alto, CA 94306
17. Palo Alto High School
50 Embarcadero Rd., Palo Alto, CA 94301
7
EXHIBIT C - INSTITUTIONAL NETWORK
Page 8 of 10
18. Palo Alto District Office
25 Churchill Avenue, Palo Alto, CA 94306
8
EXHIBIT C - INSTITUTIONAL NETWORK
Page 9 of 10
Atherton
1.
o
Public Facilities by Community
Atherton Library
2 Dinkelspiel Station Lane, Atherton CA 94027
Holbrook-Palmer Park Facilities: Main House, Carriage House, Play School, and
Corporation Yard
150 Watkins, Atherton, CA 94027
City Manager’s House
160 Watldns, Atherton, CA 94027
4. Permit Center
83 Station Lane
5.Street Corporation Yard
Station Lane
East Palo Alto,
1. Community Development Center
2200 University Avenue, East Palo Alto
2. Recreation Center
550 Bell Street, East Palo Alto
3. Senior Center
560 Bell Street, East Palo Alto
4. Corporation Yard
350 Demeter, East Palo Alto
Menlo Park
1. Menlo Park Public Library.
800 Alma Street, Menlo Park
2. Municipal Service Center
333 Burgess Drive, Menlo Park
3. Onetta Harris/Senior Center
100 Terminal Avenue, Menlo Park
9
EXHIBIT C - INSTITUTIONAL NETWORK
Page 10 of 10
4. Little House
800 Middle Avenue, Menlo Park
5.Menlo Atherton Cooperative Nursery
902 Middle Avenue, Menlo Park
6. Belle Haven Police Substation
1197 Willow Road, Menlo Park
7.Belle Haven Branch Library
413 Ivy Drive, Menlo Park
8.Belle Haven Child Development Center
410 Ivy Drive, Menlo Park
9. Sharon Heights Pump Station
920 Sharon Park Drive, Menlo Park
10. Chrysler Drive Pump Station
1221 Chrysler Drive, Menlo Park
11. O’Connor Pump Station
O’Connor Drive, Menlo Park
Palo Alto
1. Palo Alto Intemet Exchange
529 Bryant Street, Palo Alto, CA 95301
Location to be Determined
1. Community Media Access Center
10
EXHIBIT B
[ "COMPROMISE AND SETTLEMENT AGREEMENT" ]
000720 synO071832
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:
I. 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 ~ertain 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.
000720 syn 0071903
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 claimsagainst 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 Go 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
000720 syn 007 |903
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:
i. This Agreement consists of (a) a compromise and
set{lement 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.
I.i 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 Eranchise 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
000720 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 i.i, the Gity hereby compromises and settles and
generally releases the Indemnitees (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 counsei 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
000720 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 un~der 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 shall 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.
I0. Nothing herein shall preclude a Party from
exercising any discovery rights that a Party may have against or
involving another party in any litigation or arbitration
involving a third party.
ii. 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
000720 syn 0071903
5
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.
//
//
//
//
//
000720 syn 0071903
6
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 OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
City Manager
Mayor
CABLE COMMUNICATIONS COOPERATIVE
OF PALO ALTO, INC.
By:
Name:
Title:
By:
Name:
Title:
Director of Administrative
Services
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)
000720 syn 0071903
7
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
STATE OF )
) SS.
COUNTY OF )
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
000720 syn 0071903
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
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
000720 syn 0071903
EXHIBIT C
[ ~ SVCC AGREEMENT" ]
000720 syn 0071832
AGREEMENT BETWEEN THE CITY OF PALOALTO
ON BEHALF OF THE JOINT POWERS AND
SILICON VALLEY COMMUNITY COMMUNICATIONS, INC.
CONCERNING FACILITIES AND EQUIPMENT
FOR THE MID-PENINSULAACCESS 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:
i. 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 I, 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 Cabievision 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
000720 syn 007 1897
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 facilities at 3200 Park Boulevard, Palo
Alto ("Subleased Facilities"), will be leased to TCI, which will
sublease those facilities and the common areas of the Subleased
Facilities at no charge to SVCC for a period of 18 months. SVCC
will sub-sublease the Subleased Facilities to MPAC, providing
studio space and studio equipment at the Subleased Facilities
for 18 months, subject to the termination of TCI’s lease. Within
the 18-month period ending January 31, 2002, SVCC, which will
relocate to alternate studio space within the Service Area, will
provide MPAC with studio space and related studio equipment
commensurate to that space and equipment afforded MPAC by Co-op
at the Subleased Facilities under the 1995 Agreement..
8. Under the Asset Purchase Agreement, TCI will make a
charitable gift of $17,000,000, of which $10,075,000 ("Current
Funds") will be paid on the Closing Date to SVCC and $6,925,000
("Contingent Funds") will be placed in escrow for the benefit
and general support of SVCC and released at a later date.
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:
NOW, THEREFORE, in consideration of the
covenants, terms and conditions ("Provisions")
Agreement, the Parties agree, as follows:
recitals,
of this
SECTION i.TERM; TERMINATION.
I.I 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-
000720 syn 0071897
2
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.
I.i.i Any reference to TCI shall also include any
affiliate of TCI, its parent, AT&T Corp., and any subsidiary of
AT&T Corp..
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.
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
000720 syn 0071897
3
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")
established 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);
(i) With respect to the disbursement of funds
as contemplated in Section 2.2(B), until January 31, 2001, SVCC
shall furnish to the Director of Administrative Services written
notice of any such disbursements within I0 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;
000720 syn 0071897
4
C. Transfer into an escrow account ("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, which is made a part of the Asset Purchase
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
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 Obligations. Unless
otherwise agreed to, in writing, by the Parties, SVCC shall on
or before January 31, 2001:
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"), cause the Existing Board to duly notice and
hold a meeting of the ExistingBoard and duly appoint, in
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
000720 syn 0071897
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;
(I)’ With respect to the disbursement of funds
as contemplated in Section 2.2(B) and expenditures contemplated
in Section 2.3(B), until January 31, 2001, SVCC shall, furnish to
the Director of Administrative Services written notice of such
disbursements within I0 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
undertake or perform the following:
cause the New Board to
(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.
(ii) Identify the location of, and develop
preliminary construction plans and specifications for, cable
television cablecasting, production and programming facilities
and other space located within the Service Area ("New Subleased
Facilities") for the benefit of 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
000720 syn 0071897
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, 25 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.
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: (I) pay for the
reasonable relocation costs of the CAO for the initial and any
000720 syn 0071897
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 Existinq 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 any studio and control room
equipment of the CAO, including the Existing Equipment and any
other equipment purchased by the CAO, that is damaged or
destroyed due to the neglect or the improper use thereof by the
staff or volunteers of SVCC.
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
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 not cause SVCC or the CAO to
violate any applicable federal or California law, rule or
regulation governing non-profit corporations or PEG access
television entities.
2.6.4 SVCC shall provide the CAO with the quality
and quantity of cableca~ting equipment for any cable channel
000720 syn 0071897
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
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.
000720 syn 0071897
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 delivery 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.
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 Represent&tions 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 unde~ 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 authorizedits
execution, delivery and performance of this Agreement.This
Agreement is (and any other instrument, document or writing to
000720 syn 0071897
10
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.
3.1.3 The execution and delivery of this Agreement
and any other instrument, document or writing 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 by the
City upon the occurrence of any of the following events
specified below, each of which shall be deemed a material breach
of and-a default under this Agreement by SVCC:
4.1.1 SVCC fails to observe, perform or comply with
any obligation required to be observed, performed or complied
with by SVCC under this Agreement; or
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
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, warranty or
statement in this Agreement that shall prove to have been
incorrect in any material respect when made.
In the event of a material breach and a 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
000720 syn 0071897
11
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
appropriate notice to SVCC.
this Agreement by giving the
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
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
and construed in accordance with the. laws of the State of
California, without regard to its conflicts of law rules or
principles.
5.5 Compliance with Laws. The Parties shall comply
with all federal, California and City laws, rules and
regulations.
5.6 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.
000720 syn 0071897
12
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.
5.12 Notice. Notices shall be given to:
CITY:Office of the City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Phone: (650) 329-2571~
SVCC: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
000720 syn 0071897
13
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 theperformance
required or permitted by any ~arty 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 fts
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 Assiqns. 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.
5.17 Survi’val of Representations and Warranties.The
Parties’ representations and warranties shall survive the
termination of this Agreement.
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.
5.20 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
000720 syn 0071897
14
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 OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
SILICON VALLEY COMMUNITY
COMMUNICATIONS, INC.
By:
Name:
Title:
City Manager
Director of Administrative
Services
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)
000720 syn 0071897
15
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
STATE OF )
) SS.
COUNTY OF )
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
000720 syn 0071897
16
CERTIFICATE OF ACKNOWLEDGEMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
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
000720 syn 0071897
17
EXHIBIT A
SUBLEASED FACILITIES
000720 syn 0071897
EXHIBIT A
33’ 5’
t3’ 10"
00
20’ 4"
EXHIBIT B
EXISTING EQUIPMENT
000720 syn 0071897
Sandbags (8)
Softie & Sho~kmount
Studio Viewfinders
Studio Viewfinders (3)Zoom Controls (3)Focus Controls (3)
Zoom Controls (~1)Focus Controls (3)Microphones (2)
Wireless Mios (3)
Matthews
Rycote
Sony
Hilachi
Fujinon
F..ujinon
~anon
Canon
Audio Technica
Shure
All contents of Vehicle Lic #5C90449
All contents of Vehicle Lic #5D83915
All contents of L.O. Offioes
All contents of studio
All contents of control morn
Al!~ contents of cablecast facility
All contents of loading dock area
Al! contents of L.O. warehouse
AT.835
2
Mitsubishi
Paaasonic
Organ
R~xlio Sl~k
Koss
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£pmn
MS
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C~
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WJ,.45o
464A
AP-40U
AP40
TA15
KPS33
2o25-58-9
IDPRO
ADA-6
T76~
RM44o
CT-131Y
KTH1Q0O
MM400
HD-3o
5240
S~ius 640
From
Prim,hop pro
315111790
31~111690
EC1079
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¢ommodme
Commodore
KI..H
41220
VO9800
V200A00
195
G187
TSGI70A
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video Amp
16ram Projmor
16~
AUdio mixer
Dua! ~e player
Tuner
~o~
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Wav~ ~r
A~o M~r
S~n ~ ~d
Brand:
IR.KB-D
80ol
/VC TM-131SVSonySVO-2000
DPS DPSo29o
Sony V’P-720
KNOX RS 16x16
JVC VR-S6OOV
Tek~oaix 172o
1730
DVX ~oj.266A
Rang CP62
Tek~ro,,~140
Tru-Spec TA-25
Singer 39522
Shut FP42
~ony TC-WE,~
DENON DI~-35VSonyCDP-215
Senior MX995
Sony 5800
Tektronix $20A
"1480R
"760
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Video Switcher (2)
SVHS VTR
B&W Monitor (8)
Color Monitor
Switcher
U-MaticVTR
U-MaticVTR
Edit ControllerComputer Monitor
Graphics Computer
Video D.A.
Video Patch Panel
Computer
CCU (4)
CCU
Vectorscop.e
Waveform Monitor
Color MonitorCD Player
Amplifier
TBC
Audio Mixer
Power Supply
Speaker (2)
Intercom
Headsets
Analog Wall Clock
Toolbox & Tools
Generator
Color Monitor
Video Camera (3)
Video Camera (4)
Audio DA
Speaker_(2) ’
Various Power cables
Vadous Audio cables
3M
Panasonic
Ikegami
Sony
JVC
Sony
Sony
Sony
Laser
VideonicsGrass Valley
TriadSony
HitachiTektronix
Tektronix
Sony
Sony ..
Kenwood
A~a
Hill
Sony
Polk Audio
Clear Corn
Clear CornSpartus
Piano
Honda
Sony
Hitachi
Sony
TecNec
Sony
Various Camera cables
TEquiPment boxes (!4) Rubbermaidnpod (2)BogenTripod (3)SachtlerTripodQuick-SetTalent Box Custom
Talent Headsets Shure
Scoreboard Camera Sony
Model
AG-DS850PMg-5
PVM-1271Q
KM-2000
V0-5850
V0-5800’
RM-450
644.8/41
PS.4000 PRO
DA-8
486
CCU-M3
OP-Z31
1720
173o
PVM-8220
CDP-XE400
KR-A5080
Cygnus
Multimix
CMA-8
Mini Monitor
Que Corn
Que Corn
EX4500-S
CVM-1271
FP-Z31
DXC-3000
DA-6 Balanced
Older woodgrained
3066
Video 14
Custom
Infrared w/Power Supply
Computer MontiorComputer Monitor
ComputerComputer
PdnterScanner~p.eakersnnterBeige File Cabinet
Black File CabinetWoodgrain DeskCouch, Orange
Equipment Shelf (4)
White bookcaseBlack Videotape rack
Leather Chair -Equipment Cart
~pple
pple
A. ppleApple
MiCrotek
Schwab
Luxor
1987 Ford Aerostar Van
CA Lic# 5D83915
VIN# 1 FTCA14UXHZA67452
1982 GMC/Grumman Truck
CA Lic# 5C90449
VlN# 1GDG4T1T0CV592208
! 5 inch12 inch6150!66
6205 CDColor Stylewriter !500
Scanmaker E3+Black Desk’top
DeskWriter 600
2 Drawer2 Drawer Heavy Duty
2 Drawer
Metal, heavy duty
4 shells
4 shellsHigh back
4 shells, milers
Public Access Equipment Purchased by Cable Co-op
AC Power Adaptor #1
AC Power Adaptor #2
lavaller mio (6)
3 Shure Receivers
Battery charger
Ught head
Light bracket
Power cable
Battery belt #1
Battery Belt #2
Mini-fill light
Ele~trovoice microphone
Electrovoice microphone #2
Editing (~ontrolter
Editing interface
Edit deck
tripods (2) (donated one to
Panasoni~ 13" S-VHS Monitor #1
P~nasonic 13" S-VHS Monitor #2
Panasonic 1
Panasonic 13" S-VHS Monitor #4
Sony Hi-8 Camcorder
Amiga monitor for edit suite
mouse for Amiga
titling softwar¢ for AMIGA
Edit cable (interface to deck)
Edit cable (interfaoe to de~k)
Genlock for mobile Amiga
Graphics computer
Editing Record Deck
Edit controller
hand held
Sony Hi-8 Camcord=r
Wireless mic hand-held
wireless mic - lavatier
Tripod
Tripod
monitor
mice - 4
Tripod
Battery Charger (Double) #1
Battery Charger (Double)
INTERCOM BELTPAK
INTERCOM BELTPAK
model serial #recv’d date purohase price
AC-V30 Y176977
AG.V30 925703
Audio Te~hnioa Pro 7 $125 each
VP3-CE
Fre2:zolini BC 77U 558 5/14/90 $ 3 9 8.0 0
Frezzolini Super 650 none 5/14/90 $16,,, 0
Frezzolinl L$1 5/14/90 $ 2 5.0 0
Frezzolini C-12 5/14/90
Frezzoiini F12 EX FA 6196 "5/t4/90 $495. O0
Frezzol~ni F12 EX FA 6195 5/14/90
Frezzolini MFSX none 5/14/90 $41 55.00
Electrovoi~e 635A 9019 5114/90 $1 0 5.0 0
Electrovoice 635A 9019 5/14/90 $1 0 5.0 0
~ony edit controller RM 450 729~3 ,5/14/90 $1910.0 0
JVC 45 pin interface E1511 09122007 ,5/14/90 $289,00
JVC BR-,~611 U 06510552 5/14J90 $3088.00
Star D 70 7/1/90
CT-1381Y MB01310048 7/18/90 $285 W/OUT
CT-1381Y MB01280500 7/18/90 $285 W/OUT
CT-I&~IY MB01280,998 7/t8/90 $285( w/o tax)
CT-1381Y MB01310338 7/18/90 $ 2 6 5
EVO-9100 202324 7/23/90 $ 2, ~ 2
Commodore 1084 Video Monitor X-I- 1087803 8/1/90 $299
Commodore mouse B90700853 8/1/90
JDK Images Pro Video Gold 8/5/90 $1 2 5
Sony RCC 5F none 8/9/90 $12 6
Sony RGG 5F none 8/9/90 $1 2 6
Digital Cmatlons Supergen 20005 RMO776 8/15/90 $1 6 2 0
¯ Commodore Amiga 2500 8/30/90 $ 3,5 $ 0
Sony VO 9850 U-matio SP 71984 9/13/90 $1 2,578
Sony RM 450 75021 9/13190 $12~578
Eleotro Voice 635A 9238 10/4/90
EVO.9100 202611 10/4/90 $2,1 50
NADY 151 VR HT Oh K 151112602 10/18/90 $148,50
NADY 151 VR (171.905 MHz)151121584 10/24/90 $1 46.50
Bogen 3063 head and 3011 legs !2/5J90 $1 61
Bogen 3063 head and 3011 legs t2/5/90 $1 61
Panasonio CT 1320M UG1535509 12/11/90 $1 07,25
Electrovoice 635A 1/7/91 $109 ea (tax
Bogen 3063 head and 3011 legs 2/14/91 $1 5 6
AC-V55 010872 3/2,9/91 $1 44
AC.V55 010940 ,3/29/91 $144 ea.
Clear-Corn RS501 041677 3/29/91 $153
Clear-Corn RS 501 041673 3/29/91 $153
Public Access Equipment Purchased by Cable Co-op
INTERCOM BF.,LTPAK
soundboard
Electrovoice Microphone #M"I
Electrovoice Mic#M*2
Elaotrovo~ce
Ele~trovoice Microphone
TV monitor
CD player- thrown out 4/97
Speakers (2)
CASSETTE DECK
Sony Hi-8
Sony Hi-8 Carnco~er
Audio Mixer
Lowel 4 ornni light kit
Lowel soffiltes (2)
Lowel prolignt
Lowel light stands (2) for =oftlites
Soft light
Soft light
,~niga 2500
ROB monitor
Genlook
Sony Hi-8 Camcorder
Switcher
Intercom Headset
Intercom Power Supply
U-rnatic record deck
Audio ,Snake
condenser rnic
INTERCOM SYSTEM (SINGLE
INTERCOM SYSTEM (SINGLE
iNTERCOM SYSTEM (SINGLE
Head set
3 beltp~oks for headsets
3 headsets muffs
VIDEO MONITOR
VIDEO MONITOR
VIDEO MONITOR
monitors
Audio cassette deck
television set
LCD Monitor
LCD Monitor
HI 8 PLAYER DECK for edit
model serial #
Clear.corn RS 501 041676
Studiomaster 16-2R 2669-02
6~5A
635A
635A
635A
Panasoni~ CTM-1356R MB03440174
Sony CDP 790 8051S6
Audio Source LS TWO/A 9090576
Sony TC-FX170 806493
V-5000 217956
V-5000 217988
Radio Shack 32-1200 9026948
01-95 kit
$2-10
PlolO
KS stand
Lowel 82-10
Lowel $2-10
25(X)/30/50 w 5rob RAM CA1039652
Amiga RGB XT1016379
Supergen 2003S RM9339170
EVO-9100 20M8,~
Panasonio WJ-MX12 12A10333
(3) Clear-Corn CC=758 None
Clear~3om PK-5 BER523520
Sony VO-9600 16981
Pr~Co HELIX 109659
Shure SM94-LC
Clear-~_.~rn 501 A041676
Qear-Com 501 A041677
Clear.Corn 501 A041678
Clearcom PK-5 power supply
clearcorn RS-501
Clearcom CCGSB
Panasonio WV-6200BU 14100975
Panasoni~ WV-5200BU 14100976
Pana=onic WV-5200BU 14100977
Panasonic WV 5203
Sony TG-WR520 848357
Symphonk~ SV13M Q051 17599 A
XV-M30 300280
XV-M30 300275
EVO-9800 11644
reov’d date
3/29/91
5/20/91
5-29.91
5-29-91
5.29.91
5-29-91
5/30/91
5/30/91
5]30/91
5/30/91
5/3!/91
5/31/91
5/31/91
6/1/91
6/1/91
6/1/91
6/1/91
6/1/91
6/1/91
6/3/91
6/3/91
6/3/91
6/4/91
6/4/91
6/4191
6/4/91
6/4/91
6/6/91
6/6/91
7/01/91
7/01/91
7/01/91
7/1/91
7/’U91
7/1/91
7/19/91
7119/91
7/19/91
8/1/91
8/22/91
8/22/9I
9/17/91
9/17/91
9/20/91
[0
purchase pti¢e
$153 ea.
$1;386
$94,00
$94.00
$230
$199
$89.00
$2,150 w/out
$2,150
$70,00
$1,173
$252 each
$102
$107 each
252 bfore tax
252 bfore ta~
$3100
$325
$1400
$2,300
$2~666
$101
$127
$290
$175,00
127 before
$153 before
$101 before
$876 w/ou~
$130
$149
$340.00
$340,00
$12,578
Public Access Equipment Purchased by Cable Co-op
8oom poles (2)
dolly
Headsets 12) & beltpaks (2)
TBC
TBC
Tdpod
Tdpod
VTR de~k
Color Trinitron TV
Color Tdnltron TV
Color Trinitron TV
Lowell light kit
monRor
SuperGen Genlook
Amiga
wavefo~m/vectorscope
time ba~e orrector
Sony Hi.8 Cam~order
Tripod
Tripods (2)
Audio mixer
Sony LCD Monitor
Hi 8 edit record deck /
Lav~lier mi~
Lavalier mic
~olor monitor (53
JVC Rechargeable Battery
Portabrace Monitor Case
Telephone Bridge
Hi-8 edit source deck
VCR
Tripod
Sony Hi-8 Camcordet
mixer
mixer
B~ttery Belt
Star Case
VTR deck
monitor
battery charger
wireless mlc
wiretess
viewfinder for studio cam
model serial #
Comprehensive PB-10X
Comprehensive TRD
Clear Corn CC-75B & RS-501
DPS Personal TBC II 9183296
DPS Personal TBC II 91893294
DPS Personal TBC II
Bogen 3194 13191 legs w/3066 head)
Bogen 3046
JVC BR-S60SU 12610580
~ony KV 13TR,?,4 8273964
Sony KV 13TR24 8270102
Sony KV 13TR24 8273970
T0-95, 20mni~s and 2 Tota’s
10~4$-D1 1040629
SG1000 3JSG1339209
A2000 HD/P HK0008819
DPS Personal V-scope 9216032
DP$ Personal TBC II 92949032
V-5000 222101
Bogen 3046 w/3063 head
Bogen 3140
Shum M267
XV-M30 303466
Sony EVO 9850 RETURNED 1/93
Sony ECM44B S010219068-C
Sony ECM44B S010219063-7
JVC TM22U 13609822
MO-22U
Gentnet SPH-3A 008-2415
Sony EVO 9800A 11558
JVC HR-DX22U 068U2226
Bogen 3116 w/mini fluid 144/DA27
V-5000 222106
Shure M268 none
M~ckie 1202 D~49~
Frezzoltni F12EXF A 6254
blue case for two can~order remotes 92527
JVC BR-S3?8U ’108x0104
Pan, sonic CTlO30M KA2540140
AC-V55 01308
NADY 351 lav Ch, B 351200314
NADY 351 l~v Oh. D 351100455
Sony DXF-40 0014943
recv’d date
9/27/91
9/27/91
10/2/91
12/3/91
12/3/91
12/3/91
1/31/92
1/31/92
4/1/92
419/92
4/9/92
4/9/92
4/30/92
4/30/92
4/30/92
4/30/92
5/12/92
5/12/92
6/18/92
6/22/92
6/27/92
7/7/92
9/3o/92
10/23/92
11/4/92
11/4/92
11/4/92
12/9/92
12./15/92
1/5/93
1/27/93
4/9/93
4/23/93
5/10/93
5/15/93
5/20/93
5/21/93
8/17/93
8/24/9~
8/24/93
9/8/93
10/26/93
10/26/93
11/27/93
purchase price
$37 ea,
$110
approx. $500
$839
$839
$839
$710 w/out
$311.11
$1843 w/out
$265,00
$265.00
$263.00
$2428
$2428
$2425
$759
$779
$2,653 w/tax
268 w/out tax
$291 e=. w/
$349.00
$387,54
$5564
$155.25
$437,80
$61,21
$124,49
$508 (w/o tax)
$4281
$214,34
$1~6,55 (w/
$1,899.99
$225 (w/out
$350.20 w/tax
$550 w/tax
$925 wlout
$340 w/out
$140 w/out
$160 w/out
$i60 w/out
$500 (used)
11
Public Access Equ|pment Purchased by Cable Co-op
matrix switcher
c~mera
camera control unit for DXC-3000
power supply for DXC-3000
Tripod
teleprompter
shotgun mic
shotgun mi~
power supply for (SXC 3000
power supply .
remote zoom and focus
Hi-8 Player Deck
monitor
Editing deck
monitor
character generator
light kit
audio mixer
Battery Belt
camcorder
video mlxer/switcher
audio mixer
Vehicle
switcher
iavalier
lovelier mlc
lavalier
I~valier mic
hard clrJve
computer & keyboard
computer monitor
Amiga Computer Chips
Hi-8 P.amcorder
Hi.8 ca~’ncorder
Amiga Gen Lock
Accelerator
Professional Sound Corp,
wireless mic
wireless mtc
wireless mic
Matthews Folding C Stand
Lowel $oftlite 2
model
Sony DXC-3000
V/d/craft Pro Switcher 4 by 4
Sony DXC-3000
Sony
Sony CMA=8
Vinten
Q-TV Videoprompter System VP$.M.14
audio technica AT835
Sennheiser ME-80 w/KK3-U
Sony ¢MA-8
Sony CMA-SA
Fujinon SRD - 92B
Sony EVO 9800
Panaaonio CT-1383Y
Panasonio CT-1383Y
Sony VO-SSSO
Panasonio OT-2083vy
Videonics TM 2000
Lowel Intro-ldt VP98
Mackie 1202
LED65U
Sony CCD-VX3
Panasonlc WJ-MX12
Mackie MS-1202
’64 Chevy Van
Videonics MX-1
Sony ECM-44B
Sony ECM-44B
Sony ECM-44B
Sony ECM-44B
Power Mac 7100/66
Sony CPD1425
Sony TR400
Sony TR-400
SuperGen
A2630
Nady 351 VR handheld
Nady 351 VR handheld Ch. B
Nady 351 VR lay Ch, F
339564
$2-10
serial #
H 02431
21472
3717150
612242
442
preY. marking:Be>
"14469
14469
11104
MB40980058
MB40980263
12122
MB 31740530
230987
D69084
3489
10095S3
21A13859
D84330
MX026873
S0102308739
so102308728
=ol 0230874A
so102308717
FC42.913A1 UU
SO17181226D
44914
53187
BSGS088137
RX-3519303079
re¢v~d date
11/29/93
12/23/93
2/26/94
2126194
2/26/94
4/26/94
4/26/94
5/23J94
6/1/94
6/3/94
6/7194
6t7/94
6/30/94
6/30/94
6/30/94
912/94
9/26/94
9/28/94
10/28/94
11/! 4/94
1/26/95
415/95
4/10/95
6/t 3/95
7/10/95
8/18/95
8!! 8/95
8118/95
8/18/95
8/18/95
8123/95
8/30/95
9/11/95
9/19/95
9/28/95
9/28/95
9/28/95
9/29/95
10/1/95
10/19/95
10/19/95
1 O/19/95
10/25/95
10/25/95
purchase price
$2500
$299
$2800
$1,000 (W/OUt
part of pkg
$1,000 used
$950 used
$150 wlo tax
$225 (used)
$582 wltax
$631 w/tax
$1199 W/tax
$s~60
$295 +24
$295 +24
$2,500 w/~ax
$364 w/tax
$599 wlout
$664 w/out
$341 wltax
$79,9S inci
$4027.03
$1180
$278 (W/OUt
$$,000
$959. wtout
$146 (no tax)
$146 (no tax)
$146 (no tax)
$146 (no tax)
$873
$1560 + 25
$369 w/tax
$110
$1136.50 +
$1136.50 ~
$431
$399
$205
$186
$186
$165
$140.70
$317
Public Access Equipment Purchasedby Cable Co-op
Hose Stereo Headphones - 3
Shur~ Omnidirectional Leveller
Tripod
Amiga Hard Drive
Monitor
Monitor
shotgun mid
Mi~ (4)
Phone ~y=tem
$-VHS Deck
Hi-8 Deck
light kit
Light Kit
U-matic deok
’Cassette Deck
CO Player
Electrovoice Mice (6)
video projector
viewfinder
VCR
monitors & covers
audio cassette recorder
record deck
oamcorder
, camcorder
Battery oharger/discharger
Intercom
Intercom Headset
camcorder
lavalier
leveller
Satellite receiver
light stand
Battery Catchers (3)
Video cam~order oase
¢ompressor-Itmiter
light
light
player deck
serial interface
monitor
headsets (3 units)
Seagate Hard Drive
Power Macintosh Computer
model
HDS-701
SM11,CN
Bogen 3116 (3011 le~,s w/3063 head)
Quantum 730
JVC TM-AOU
JVO TM-A6U
audio techni~a 836b
Eleotrovoice 635A
Partner II
Panaeoni¢ PV-$4,~66
Sony EV
Lowet OmnJ 4 Kit
Lowel VIP VP-98
Sony VO 5600
JVC TD-W106
Sony CDP-261
Electrovoice 635a
Sharpvision XV-H37UPLCD
Sony DXF-50 Viewfinder
Sharp VHS VCR
JVC TM550U Monitors & Porte Braoe
Fisher OR-W686÷
JVC S-VHS record deck
Panasonic AG 456
P~nasonic AG 456
Delta 4a
Clear-(3om RS-501
Clear-Corn CC-85
Sony CCDTR3300
Sony ECM-44B
Sony ECM-44B
DSVR 9000 IRD
KS Stand (for Softlight)
MAT VJA0180
Tamrac 974 Video Case
Alesls 3630
Lowel Omni
Lowe~ Omni
JVC BRS500U
3VC SAK26U 9.pin .serial interface
JVC TM131SU 13" color monitor
Clea~com
$T52160
6500/225
serial #recv’d date purcha=e price
10/2S/95 29 X 3
10/25/95 $ 9 7
144/FH25 11/1/95 $1 75
11/1/95 $214
08130901 2/9196 $4!1 w/ou~
08130841 2/9/96 $411 w/out
546 2/23/96 $ 2 S 0
2/23/96 $ 4 0 0
4/15/96 $5734
KSSA300 4/17/96 $456 plus
TR346011 4/29/96 $588 plus
5/2/96 $13 7 t
5/15/96 $729
76743 6/7/96 $ 9 0 0
150Kl107 6/12/96 $SO
8875692 6/12/96 $14 0
7/1/96 $560 w/out
612528 8/15/96 $3287 before
77726 11/12/96 $732.13
610754303 12/12/96 $51 1.96
17133074 1/$1/97 $1649.20
R6501829 3/5/97 $ 8 2.8 3
SRS365 3/20/97 $1,042.00
L6HB00641 3126/97 $1 8 0 2
L6HB00871 3/26/97 $1 802
A 73455 5/14/97 $475 w/tax &
A108224 5/29/97 $153 w/out
A108224 5/29/97 $101 w/out
1006421 7/9/97 655,00
SO1-0239188 816197 $1 40
SO1-0239189-1 816/97 $1 40
8/28/97 $1,8 9 4
9/3/97 $1 2 3.1 8
9/17/97 $24.23
9/19/97 $82,23
CL4279205 10/3/97 $246,56
10/5/97 $142 before
10/5/97 $142 before
14214167 10/5/97 $2~.59 before
15111177 10/5197 $176 before
09202461 10/5/97 $262 before
10/8/97 $479.14
10/10/97 $269,54
XB73913M9CL 10/16/97 $14 2 2,1 -~
13
Public Access Equipment Purchased by Cable Co-op
Power Macintosh Computer
Optiquest Computer Monitor
Optiquest Computer Monitor
intercom belt pack
Intercom belt pack
hard drive Barracuda
S-VHS Scan Converter
Video Bulletin Board
ram modules (2)
Clearcom Beltpacks (2)
digital oamcorder
Hammer Drive & Cables
Boom Pole w/shock mount
PLI Card for IVBB
~am~order
camcorder
Belkin Resource 32~ UPS for
camcorder
oam~order
SCSI Accelerator
Media 100
tripods (2)
wireless lay
wireless lay
wireless lav
wireless handhold mic
video mixer / switcher
character generator
AC Adaptor/Battery Charger
battery pack
Power Mac for non. linear edit
monitor
Scanner
CCU Cable
tam,order
genlocks (3)
teleprompler
speakers
lights
hard drive disk array
audio mixer
Hum eliminator
audio mixer
model
6500/225
Q14
Q14
Clearcom R8-501
Clearoom R$,-501
Hammer 8L8200UW
MSA-5,f~O0
IVBB
16 M!~G 168,.PIN/DIMM RAM MODULE
RS-501 1-CH.
Sha~ VL-DS000U
FP557
Powedlne I
Sony Hi-8 TRV99 ,
Pana~onic AG 456
F5C500
Panasonic AG-456U
Panasont¢ AG-456U
Power Domain 2940UW
Media 100
Bogen #3116
Shure VPL/93 La, v
Shure VPIJ93 Lav 8ys
$hure VPL/93 La, v sys
8hure VPH/58
Pa, nasonic WJ-MX2,0 Digital AN Mixer
Panason|c Chara=er Generator
Panasoni¢ AC Adaptor/Battery Charger
Panasonic AGBP20 Battery Pack
9600/200MP
17" Supermac Sony
FOCUS TVIEW COL 8canner
Technics 8L-PD6
14 pin CCU Cable 50 ft,
DCR VX1000 (digital)
DeltaScan-PRO GL Genl0ck Adapt
VPPRO Full VideoPrompt Pro
Yamaha system 25 speaker
4 Lowel Omni LOH..01-10
Rorke 8~8-Flex 18/CUOA
Mackie 1202
Allen Avionics HEC-?..000
Shure M267
serial #recv’d date purchase price
XB73913YgCL 10/16/97 $1422.12
6A73301186 10/16/97 $299.95
6A73301190 10/16/97 $299.95
Al13728 10/30/97 178 before
Al13729 10/30/97 $178 before
3S164663J7 11/3/97 $2947.65 wl
11/4/97 $126.63
000143 11/5/97 $4000
11/5/97 $192.69
11/11/97 $391.37
11/13/97 $1199 before
3S164663J7NO 11/19/97 $1053.24,
12/8/97 $276,69
12001806705 12/12/97 $220.74
SO1-1037000 1/8/98 8900 ÷ $240
LTHB00131 1/27/98 $1628.95
2/10/98 $151.54
K7H B00200 2/16/98 $16 75.71
K7HB00156 2/16/98 . $1675.71
BFOF7490GNU0 3/5/98 w/ Media 100
00533734 3/5/98 $ 24 0 8.99
3/10/98 380.80
021981240 3/13/98 $284.95
021981218 3/13/98 $284.95
021981222 3/13/98 $284.95
021981222 3/13/98 $324,50
7ya00790 3/13/98 $ 9 9 9.9 5
10784 3/13/98 $879.98
3/!3/98 $1 69,95
3/13/98 $49.95
XB72101NA6S 3/16/98 $ 2 8 9 8.9 4
2002988 4/1/98 $ 2 6 9.5 4
5/1/98 $328.50
DPeBA04035 6/4/98 $129 before
7/2/98 $110,41 X 2
91108 7/14/98 $2400 (+149
7/81/98 $2,157 (699
7/31/98 $142.77
8/5/98 $1 2 6.6 3
8/20/98 $ 9 81
466705 10/6/98 $ 2 ~ 17 2
D121445 10/9/98 $299
none 10/26/98 176 w/tax
984353936 11/16/98 $ 4 5 o
]4
Public Access Equipment Purch~sed by Cable Co-op
P,A, Amplifier
2 P.A, Speakers
deck s-vhs
lights
lights
two audio hum eliminators
lavalier
lavalier
I~valier
lawlier
lavatier
tripod
tripod
audio mixer
lavalier
monitor
digital camcorder
digital camoorder
digital oamoorder
shotgun
wireless lay mic
wireless mio transmitter
Computer
oomputer monitor
Printer
Intercom beltpack
2 Intercom muffs (ear piece)
monitor
monitor
monitor
monitor
monitor
monitor
color bar / tone generator
10 microphones
wireless intercom system 1
U-marie deck
computer monitor
Printer
model serial #recv’d d~te purchase prica
Crate.PA-4~.ANDDKa0222 12/11/98 $289 (before
Crate PE-12 12/11/98 $199 each
Mitsubishi HS-U781 003738M 1/25/99 $54! + 139
Lowel Elemental kitTO-g8 2/5/99 $1,000 plus
Lowel Soft Light 2/5/99 $375 plus tax
F..BTECH 4/1/99 $70 each
Sony ECM 44B 245216 5/4/99 157 w/out tax
Sony ECM 44B 245215 5/4/99 157 w/out tax
Sony ECM 44B 245220 5/4/99 1.57 w/out tax
Sony ECM 44B 245213 5/4/99 157 w/out tax
Sony !~CM 44~245212 5/4/99 !57 w/out tax
Bogen 3066 h~ad & 3046 legs 5/5/99 565 w/out tax
Bogen 3066 head & 3046 legs 5/5/99 865 w/out tax
Mackie1202 BU168~6 5/7/99 325 w/out tax
Sony ECM 44B 246864 6/8/99 157 w/out tax
Sharp 13L-M100 13"7/26/99 $1 51.54
Sony DOR-TRVg(X)1061318 8/9/99 $2250 ,,tax
Sony DCR-TRV900 1061329 8/9/99 $2250 +tax
Sony DCR-TRVg00 1061301 8/9/99 $2250 +tax
Audio Tschnlca ATR55 Telemike none 9/5/99 Free
NADY 151 VR lay Ch. A 171.905 mhz 9/10/99 $ 5 0
Nady HT-3 Ch. H 191.30 mhz 70301070534 9/10/99 4 0
Apple 64001200 XB6334,3F836 111151gg used
Apple Color Plus 14"CY3370J3152 11/15/99 u,sed
Apple Stylewriter II 11/15/99 used
Clear.CoreRS.S01 A141197 11/15/99 186 before
Clearcom CC-85 11115/99 154 ea=h
Sony PVM14NSU 16010561 12/13/99
Sony pVM14N5U 16010563 12/13/99
Sony PVM14N5U 16010574 12/13/99
Sony PVM 14NSU 16010602 12/13/99
Sony PVM14NSU 16010616 12/13/99
Sony PVM14NSU 16010619 12/13/99
Ho~ta CSG-S0 CT2091350 4/3/2000
Electrovoice 635A 4/4/2000 $90 ea.
Digioorn 4304 4/4/2000
Sony VO 5600 48486 5/1/2000 ’ $200
Sony MultiSc~n CPD-E200FD 17 in. S 01-9060376-H 5/5/2000 $380 (before
Epson 740 A6R1A01231 5/5/2000 $150 (before
p&S ~8261
Nelson Bainbridge
B~rs~ Elm. AV4XIP
Sony
Sony
Audiotehnic Pro2AX
Sony ECM-~B
Sony ECM.4~S
R~s~e 42-2110
F-.tmo ST-180~
JVC
FBmore MW2
1
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16