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July 19, 1990
Honorabl. City council
Palo Alto l california
ATTENTION: Finance and Public Works Committee
CABLE COOPERATIVE FRANCHISE RENEGOTIATJ:O~
:Members. of the. Council:
Some. time ago. 'I re.ported to you that Cable Co-op had approached us
to discuss making some adjustments to their franchise. Two thIngs
prompt this review and adjustment of the franchise. First" there
is a provision that require.s the City to renegotiate. with the
franchisee in the event another ~r~ncbise is awarded. Thus, our
court-ordered license with Century Federal arguably requires us to
renegotiate.
Second" Cable Co-op -wishes to refinance their operation. This
refinancing was contemplated in the oriqinal franchise, and
provision is made for it. Cable Co-op's financial backers bave
asked that certain franchise prOVisions be revised in light of
Federal Court decisions~
The franchise itself runs more than 75 pages.. ~Qst of the proposed
changes are tecbnlcal in nature and will have no effect <>n the
customer. "Below is a sUlIllD.ary of the significant changes and their
implications.
1. Eliainate the Requir~ent tor Post-Construction Bonds~
The franchise provides for Ule posting of a $10'0,.000 post
constructIon bond. Given the pregent status of the system --it is
virtually built out --the need for that bond no l~nqer exists.
2. Reschedule Franchise Cost Payaents.
Unde.r the provisions of the e.x:isti1l<J franchise ... Cable Co-cp is
oblig-ated to reimburse the City for its franchi.se process costs.
Those costs remaining amount to $500,0'0 10 and ar-e t·.> be paid in
equal quarterly installments of approximately $18,0'00 each. Cable
co-op is in arrears on those payments at this time. The
recommended franchise amendments would have Cable co-op make all
delinquent payments at the closa of thIs refinancinq and make 30
equal quarterly payments for the balance of the Ulount.
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3_ Oiopute<S Construction Costs.
We have bad a dispute with Cable Co-op reqardinq the paym9nt of
some construction costs. under the new arrangement, Cable Co-op
would agree to make these payments upon closing or the reflnan-cing ..
4. Revise Security Deposit.
The ex!stinq franchise calls for a letter of credit (LOC) of
$450,000 and $5-0,000 cash as a security deposit. With the advanced
state of the system, it Is app~opriate to reduce this requirement.
This neW' arranqement would set the LOC level at $300,00'0 and set
the cash level at $lO,O'O'O~
5, .Installation of -Drops ....
The existing franchise calls for Cable Co-op to install service
-drops· at SOO community facilitIes at no cba.rge. In our
discussions with Cable Co-op, we :have de.termined that a more
reasonable number would be lOoQ~ This nWllber should acc-ommoaate all
City and School District needs~
6, Opper Page .11111 Road construction.
construction of facilities at upper page Mill Road vas postponed
for 5 years at the time council discussed underground pedestals.
ThIs aqreement would extend that period and provide that the issue
would be renegotiated and settled during the 1993-95 period~
7. Interconnection with Other Systems~
The existing franchise calls
interconnection to other systems
agreement puts a. $20,0'0'0 cap -o.n
connect! on.
8. Refrancblae Costs.
for Cable Co-op to provide
(mainly stanfordJ~ The revised
costs associated with any such
Cable Co-op will pay the City $10,01)0 to cover our costs to
refranchise.
Recommendation
Staff recommends approval of the revised franchise agreement.
ubmltted,
anaqer
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RESOLUTION NO.
RESO!..UTION OF THE CO(JNCIL ~THE--CIT,{ OF PALO
ALTO APPROVING AND AUTHORIZING THE AMENDMENT
AND MOOIFICATION OF THE FRANCHISE OF CABLE
COMMUNICATIONS COOPE~TIVE, INC.
WHEREAS, on behalf of the city of Palo Alto, the Town of
Atherton, the City of East Palo Alto, the City of Menlo Park, the
county of San Mateo~ and the county vf Santa Clara (hereinafter
referred to as the -Joint Powers·),. the City of Palo Alto awarded
a franchise to Cable Communications cooperative of Palo Alto,. Inc.
(hereinafter referred to as "Cable Coop· J,. .hich franchise is
represented by a franchise agree~ent dated March 24, 1986 {herein
after -the original Franchise Agreement-}: and
WHEREAS,. the City of Palo Alto "-as a party defendant .in
a lawsuit entitled century __ Fe_deral! Inc .. v. City of Palo Alto. et
~~ in the united states Federal District COQrt Cor the Northern
District of California in 'Which judgment has been entered and 'Which
lawsuit has now been dismissed; and
WHEREAS, disputes and differences have arisen bet'Ween the
Joint Powers and Cable coop with respect to the enforceability of
various terms of the Original Franchise Agreement as a result of
certain rul ill9s rendered by the trial judge in the century F~4_era_!
litigation; and
'WHEREAS~ the parties wish to amend and modify the
Original Franchise Agreement so that they freely and voluntarily
undertake by contract the Obligations provided in said document 6
except where explIcitly otherwise provided;
NOW, THEREFORE, the Council ot the city of Palo Alto does
hereby RESOLVE as follows:
~ECTIQN 1. The -Amended and Modified Fr-ancnise Agreement.
by and Bet'Ween the City of Palo Alto on Behalf of the Joint Powers
and the Cable cOlD.ltunications cooperative of Palo Alto, Inc~-is
hereby approved.. and the Mayor is authorized to execute same on
behalf of the City of Palo Alto and the Joint Powers~
SECTION 2~ 'l'he amendment and modification of this
Franchise Agreement do no·t constitute a project under the Califor
nia Environmental Quality A.ct and no environmental revieW' is
thereby necessary.
nlTROOUCEI) AND PASSED:
AYES:
NOES:
ABSEN'i:
ABSTENTIONS:
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ATTEST:
city Clerk
APPROVED AS TO FORK:
Sr. Assistant city Attorney
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APPROVED:
--Mayor
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Pirecto~ of Utilities
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.iU!tlIDED 1>IID MODIFIED FRANClIISEAGRE.EKEN'l'
BY i.Nti BE'niEEN THE ClT't' OF· PALl> ALTO ON
I!t!iALFO.F . TIlE JOINT POWERS.' AND. C/\&LE
cOMKON1CATIONS COOPERA'l'IVE O.F i'ALO ALTO,
INC.
Th~,s Agreement, ~hereinaf,ter referr,ed to as the
·ftest;at~ Francb:!st! _ Agreement-,,01'" simply,. iResta,t,ed Ag:tee~
iI~,~·f 15 made' and executed this ___ day of __ . _________ _
• 1990, by and between the City of Pa~O Alto,
c""a"l"i"f"o=r=n"i"a'--;t'h"""r=e ina fter re f erre d to a s the • City· J and th e
Cable Communications Cooperative of Palo Al to,. Inc. ...hose
P:riilC_ipa} p_lace_ otbusi,ne_ss is located at :)'20:<>' .!!'ar_;t. BOUlevard)
~~,~'i:>,_~~9;r ~'~,~,tfo~_iat'" -94306 {hereinafter"refer'red"to a.s '·the
Company"). '
W I T N E SSE T H:
WHEREAS, pursuant to California law, the City, the
Town of Atherton .. the City 'Of East Palo Alto .. the city of
Menlo park~ the county of San Mateo, and the county of Santa
Clara (hereinafter referred to as the "Joint Powers·) have the
power to franchise and regulate .cable television systems to be
~onstructed and operated within the service Area (as defined
in Section 1 bereof): and
WHEREAS, pursuant to California law, the Joint
powers have entered into a Joint Powers Agreement {as defined
in Section 1 hereofJ pursuant to which the City is authori~ed
to: til administer a franchising process for the service Area,.
Inclttdir19 all activities and dec_isions necessary to (a) issue
a Request tor Proposals, (b) evaluate the responses to the
Request for proposals, {e) target one or more applicants for
rranchise agreement negotiations, {d) negotiate a franchise
agreement with the targeted applicant(s}. and (el a~ard one or
more franchises to private companies; and (iiJ administer"
oversee, and regulate the franchisees) a~arded: and
WHEP.F.A.S,. pursuant to the Joint Powers Agreement,. the
c~ty issued a -Request for Proposals To Provide Cable Televi
$10n Ser~tce to the Designated Service Area,,· to ~hich the
Company responded; and
WHEREAS,. following the evaluation of and a pu~lic
hearing regarding the Company's proposal, on June 18 and 19,
1994 1 the CitY' Council (as defined in section 1 hereof}
targeted the company for cable television franchise negotia
tions; and
WHEREAS" the City Manager (as defined in section 1
hereof) has exercised due diligence in negotiating an agree
ment with the Company that protects the interests of the Joint
Powers and the residents and institutions of the Service Area
and which sets forth the standards# terms# and conditions for
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the cable televIsion system# based upon the Company's volun
tary otfer and proposal to make the conrnitments contained in
this Agreement and to provide the capacity, services, facili
ties .. equipment~ contrib-utions~ support .. resources, and o·ther
benefits described in this Agreement; and
WHEREAS, the City Council scheduled a public hearing
on this Agreement to be held on september 23 and 30 .. October
1# 2~ l# a~ 7, 1985# and directed that this Agreement be made
available for pu·bl ic inspection; and
WH£REAS~ said hearing was a full public proceeding
affording due process at which the City Council considered and
approved the Company's technical ability, financial condition
and responsibility# quality of s€rvice, and other relevant
matters; considered and found adequate and feasible the
Company's plan for constructing and operating the System {as
defined in section 1 hereofj; and
WHEREAS, the City Council approved the Original
Franchise Agreement by adoption of a separate ordinance on
November 1B, 1985, and authorized the Mayor (as defined in
section 1 hereof) and City Clerk to execute it; and
WHEREAS. the Joint Po~ers l'l.ave ta);:en all action
necessary to permit the City to enter into.. execute and
administer the Franchise and this Restated Franchise Agreement
on behalf of the Joint Powers~ and
WHEREAS.r pursuant to-California law, the Joint
Powers intend to enter into a Joint PoW'ers Agreement (as
defined in section 1 hereof) which governs the relationship
between the City and the o,ther Joint Po~ers with respect to
the City's administration# oversight, and regulation of the
franchise granted to the Company purSudnt to this Agreement;
and
WHEREAS. the City intends to exercise the full scope
of its -governmental powers, includjng both its police polJer
and contracting authority .. to promote the public interest.r to
prot-ect the. health, safety, and 'Welfare of the citizens of the
Service Area~ and the aesthetic qualities of the Service Area ..
and to assure each Person's (as defined in Section 1 hereofj
ability ~o receive cable television services, subject to the
terms and conditions contained in this Restated Agreement.,
and, in pursuit of these goals, desires to provide means for
the development of innovative programning by the city and its
institutions for delivery to the public over the System; to
experiment vith and implement uses for Broadband communIca
tions Facilities (as defined in Section I hereof). including
the System# in connection with -qcvernmental operations; and to
explore the full po,tential of em Insti tutio.nal Cable (as
defined in Section 1 hereof) as a means of providing a wide
range of services in the public interest~ and
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WHEREAS, in connection ~ith the Joint Po~ers
Agreement, the Joint Powers have determined that the public
interest in community and public Services (as defined in
Section 1 hereof} make desirable the creation ot a non-profit
corporation to help stimulate and implement the development of
such services; and
WHEREAS .. the Joint Po .... ers have established franchise
procedures and standards which will encouraqe the growth and
development of cable Services and assure that sueb Services
are responsive to the needs and interests of the local
communities~ and
WHEREAS r the Joint Powers seek to assure that cable
communications provide and are encouraged to provide the
widest possible diversity of 1nformation sources and Services
to the public; and
WHEREAS .. the city has determined that competition in
the delivery of Services is in the public interest: that there
should be opEn, ~idespread, and equal access to the System;
and ~hat the City should take appropriate action to stimulate
such competition. and -
WHEREAS, the provisions of the Restated Agreement
are oonsistent ~ith the Cable Act (as defined in section 1
bereo f); and
~;"'i;,_,~he:":"'city, ,u'rider.,'ohter-""o_t th$, '-~t:'._.in
CetitUrt,': ped,"al'~:,i::l'~~:-riv .. " _city of PalO. Alto<' et. oJ ~,.-' awa_rd~d
.,:,>~;~2~e,,;:~0;<~~nt~ Eede,ral,', rnc~. "~i~!t,,,lice~s~:,vCl,~_ l~~,~T
~~,9~ ':.:~~,,_,~~V~~_:,~_~erc:ised: an<:l
~~i: ': ;t;he"_(;itt 'Of Ji'enlo J),iiri-lt ,awarded _',f:ranCbis'e~ toq!1l;ury'F~,r'!J; t ne., . and V ic;le~ :f!rlgi.'!'~ring" li!lJ.m, fran,.
j;1lIses Dl(theitl;er1lls ilre operative only ... 1thi .. the. bOUndar!.!!s 9,f,~n1.9:,::pa~~_t::~iBf : .. " , , ,,",,, , ' . -,', , "
•.. . .. ~.!;h!> partiesvish~ "lI!et:>d.t:>d~1ty .the
()r,,l'i.a.rm~.,.frlU)ChlsloAgr!,.em.nt· so that .... thel("fr".ly ~. vol",,:
,,*~lt\lftde~ .• lI: .. ~ .. contract the <>1>ligations pr:ov~d"" in ... aid
dc)c(ime-,nt<~ '::' e_&cep.t-, :where expl iel tly otherwi1;;e' provi,ded .in' ,this
~e~,~a,~ed ,,~qt"eem~n,t i ~~ " ,
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~, the ,City·s city council ooticed arid held a
pal)HCliearli>9 on thIs Restated Agreement en AUgust n. age>.
~~for~ln9_'_':'~,_',opportunity tor all interested persons and the
,;=ompa:~,Y 't.?:,_ ~pPea:r ~ be heard en U".is _~greement:
NOW~ THEREFORE. in consideration of the foregoing
clauses. 'Which clauses are hereby made a part of this Restated
Agreement., and. the mutual covenants and agreements herein con
tained. the parties hereby covenant and ag:ee as follows:
SECTION 1 -DEFINED TER~S
Unless the context clEarly indicates that a differ
ent meaning is intended:
la1 -Access ~hannel· means a channel on the
subscriber system 'Which the company shall lr,ake available to
the community Access orga.nizatlo-n, 'Without charge or for a
nominal charge, as provided in this Restated Agreement.
L 2 "Affiliated Person-means E..:>..ch Persen 'Who fa:lls
into one or more of the folloving categ'ories: (iJ each person
having, directly or indirectly, control or a Controlling
Int.erest in the Company: (iil each person in 'Which the COIrlpany
has, directly or indirectly, Control or a Controlling inter
est: [iii) each officer, director, general partner .. joint
venturer or joint venture partner, of the company; and (Iv}
each Person, directly or indirectly. controlling, controlled
by, or otl:lerwise related t.o the Company by common ownership,
common management, or common Control: provided that, -Affili
ated Person-shall in no event l'nean the City, the Joint
Powers, the community Access organization, any educational
inst.itution actinq in its capacity as such, for public,
educational, or charitable purposes, or any creditor of the
Company solely by virtue of its status as a creditor and ~hiCh
is not otherwise an Affiliated Person by reason of owning a
Controlling interest in l being oo,.,rned by. or baing under common
ownership ... common management .. or common Control withl the
company.
1.3 -Restated Agreement-means this agreement ..
together vith: {i) the Appendices attached hereto and (ii) the
Company's "Proposa1· to the extent so specified in Section
20 .. .( hereof, and all amendments or rene~'als thereof.
1.4 "Audio Channel-means a band of frequencies on
the System which is capable of carrying one FM audio Signal.
1.5 ·Ba:~ie Sel"'~iee· ~--:meafl'3 aay Een+iee fef" et.~
t.haR aft iiflthaftE!ea SaF; iee--w~iefl: il'"lela~fle £et-EBA-Smissian ef
leeal tele·,'isiBR b:f'saeeast 9i~flals a-nd-......;rft-ieh is Eiist-riell;lt.e!i
~~e Sli"Bseriiber= S,st;eBl ... --a5--Jt'f'oviaei ia 1IIlIleFlaiees---e--~
afla :I 1: t-s 'his Re5lt;ateEl Jt!reemel"lt_
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~&.slc Se.rvice-means the Servlc~ consistl69 o,f _all
9C ... ~" ... <=h.nri.l" inclujh.d in Unive .. ",,~ serVice P~lls · .. ",,11 ~~tlon .. l .<=haru'tels .... provided for in Appendicesc ~t>d 1) to
ij.l$ . Rest;ated ... A'1r""ment; lxlt not ... Jncluding . any channel ~r.,.,icled\,s par;t, <>f any.Enhan<:ed Servlce, .
1~6 -.Broadband COIr.munications Facility· means a
ce.ble system.. 3!lY facility operating by means of coaxial
cable, optical fiber, or other transmission lines or forms of
transmission, and associated equipment and devices located
above, below" 00, in, or along the streets, the primary
function of ~bich is to receive thrQugh any means, including,
without limitation~ coaxial cable, optical fiber, antenna, or
satellite or microwave transmission, and to distribute to
subSt;:ribers or other Persons the Signals of one or more
broadcast televIsion or radio stations or of other sources of
video# audio~ voice, or data signals. Said facility may also
be one which l subject to all ~pplicable laws, distributes to,
from, or-amonq subscribers or o,thee Persons such other video,
audiol voice~ or data Signals as may originate .. ithin the
Service Area or elsewhere.
1.7 -Cable Act· means the Cable Communications
Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779.
l.e ·Channel-means a band of frequencies in the
electromagnetic spectrum~ or any other means of transmission
(including, ~ithout limitation, optical fibers or any other
~eans nov available or that may become available)1 which is
capable of carrying a video Signal, an audio Signal, a voice
Signal, or a data Signal, provided that the spectrum capacity
of each such Channel ar.~ the technical specifications of each
such Signal shall be as defined in AppendilC A to this Restatea
Agreement.
1.9 -Channel Number-means the position on a
televisio.n rece.iver l converter, or other device which is
selected to receive a specific Channel or Service.
1.10 ·City· means the city of Palo Alto, California
or, as appropriate in the case of specific provisions of this
Restated Agreement, any board .. bureau, authority, agency,
commission, department ~f .. or any other entity of or acting on
behalf of, the City of Palo Alto, or any officer l of!icial l
employee~ or agent thereof, its or his or her designee, or any
successor thereto.
1.11 ·City Attorney· means the City Attorney of the
City of Palo Alto .. his or her designee, -or any successor
thereto.
1.12 -City Auditor-means the Auditor of the City of
Palo Alto, his or her designee, or any successor thereto.
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1.13 ·City Clerk-means the City Clerk of the City
of Palo ~lto6 his or ber designee, or any SUCcessor thereto.
1.1( ~city Council-~eans the city council of the
city of Palo Alto, Californi~. its designees or any successor
thereto.
1.15 ·City Manager-means the city Manager of the
City of Palo Alto-, his or ber designee., or any successor
thereto.
1.t6 ·community Access Org~nization· or "CAO" means
the
non-profit .entity to be established pursuant to the 30int
Powers Aqreement and operated as prcvided in Appendix E to
this Restated Agreement.
1.17 ·Company· means Cable communications Coopera
tiv~ of Palo Alto, Inc., hereinafter BCcmp~ny·, or any la~ful
successor, transferee, or assIgnee of Co~pany.
1.1S -company Channel" means a Channel on ~hich the
Company determines the specific Services to be distributed~
·company channel" shall not include any Leased Channel, Access
Channel~ Government Channel~ or other Cha!L~el vhich is
otherwise required for use by federal law or regulation.
1~19 ·Control" or "controlling Interest-means
actual working control in ..... hatever manner exercised.. A
rebuttable presump~lon of the existence of control or of a
~trollinq interest shall arise from the beneficial owner
ship" directly or indirectly, by any Person or 9t:"OtJ.P __ of
Jlers_ons" acting in coocert ot ten peE'eeflt (lS\) t.wen:fi'.'~five
~_~cen~,>t.~,5~O: or more of any Person (which Person or Group of
~ersOOs is' "hereinafter referred to as "Controlling Person") ..
-control" or "Controlling Interest" as used herein may be held
simultaneously by more than one (1) Person or group of
PeI"S-Ons.
1.20 "Data Channel· me.ans" .... ith respect to each data
Service distributed over the System, the amount of frequency
bandwidth created by assigning selective data interface
adapters or other devices to the cable(s} in order to provide
said service ..
1.21 -Director of Finance-means the Director of
Finance of the city of Palo Alto" nis or her designee" or any
successor thereto ..
1~22 -Enhanced Service'll means any Service or package
of services distributed over the Subscriber System for vhich
there is a per Channel, per unit, or per package cnarge and
eacb Interactive Service, as provided in Appendices C and 0
and 1-2 to this Restated Agreement.
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,'. '. " 1.23 -FCC· means the Federal Communications Commis
sion, its designee, or any successor thereto.
1.24 "Government Channel-means
Subscriber system which the Company shall
the c1ty.. without charge, as provided
Agreement.
a Channel on the
make available to
in this P.estated
1.25 -Gross Revenue-means all revenue,. as deter
mined in accordance ~ith generally accepted accounting
principles, ~hich is actually received, directly or indirect
ly, by the Company and by each Affiliated Person from or in
connection 'With the distribution of any Service -over the
System or the provision of any Service Related Activity in
connection with the System~ Gross Revenue shall also include
the .gross revenue of any other Person Which is actually
received direc-tly or indirectly from or in connection with the
distribution of any service over the system or the provision
of any Service Related Activity to the extent that said
revenue is actually received.. through any means 'Wbich is
intended to have the effect of avoiding the payment of
compensation that 'Would othenrise be paid to the Ci.ty tor the
Franchise granted herein as reascnably determined by the City
Auditor.. Gross Revenue shall also include installation
charges whether or not attributable to the cost of equipment~
excluding refundable converter deposits~ wbich bear interest.
Gross Revenue .. for purposes of Section 10.1 and Section 10.1~5
hereof~ shall not include: (i) the revenue of any Person~
including yithout limitation a supplier of programming to the
Company. to the extent that said revenue is also included in
Gross Revenue of the Company: Iii) the reven,ue of the Com~ny
or any other Person which is actually received directly from
the sale of any merchandise or services (other than the
Services) through any service distributed over the system;
C iii) taxes imposed 'by law on Subscribers .....-hich the Company is
Obligated to collect and pay in full to the applicable taxing
authorities~ including. vithout limitation~ sales taxes and
use taxes; (iv] ~ubject to secticn 10.1.05 hereor~ amounts
collected by the Company from Subscribers on behalf of Leased
or Access Channel proqra~mers~ other than Affiliated Persons ..
to the extent that said amounts are passed on by the Company
to said programmers; Cv) the revenue of any Affiliated Person
which represents standard and reasonable amounts paid by the
Company to said Affiliated Person for ordinary and necessary
business expenses of the Company, including. without limita
tion~ professional service fees and insurance premiums: (vi)
any investment income earned by the Company; (vii] that
portion of the fee paid by the Company to an Affiliated Person
which exceeds the revenue of the co~pany from said Service;
(viii) refunds or credits given to Subscribers~ including
member equity contributions~ patronage refunds~ and other
subscriber distributions .. except. for refunds or credits due to
interruptions in Service or as otherwise required by this
Restated Agreement. (ix) bad debts attributable to Subscribers
which are deducted from Company income in accordance with
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generally accepted accounting principles; (x) the value of
barter transactions vhich in the aggregate in any twelve (12)
month period are de minimi!! in relation to the Gross Re7enlJe
for such period: or (lI:ij all revenues derived from sUbscribers
located outside the Service Area.
1.26 -Institutional Cable-means the c6ble{s) or
bandwidth on a cable provided pursuant to Section 4.5 hereof
and Appendix F to this Restated Agree~ent. a portion of whiCh
the Company shall make available~ without charge~ to the City
and to other governmental and educational institutions.
1.21 -Interactive Service-means any Service which
involves the transmission of Signals to and from any Subscrib
er or other Person on the system~
1.28 "'Joint Operating Agreement-:means the Joint
Power5 Operating Agreement to be entered into by the Joint
Powers, which governs the r~lationship bet~een the City and
the Joint Powers with respect to the City's administration,
oversight, and regulation of the franchise granted to the
Company pursuant to this Restat~~ Agree~ent.
1.29 -Joint Powers-means the local 9'Overnments
which are parties to the Joint Po~ers Agreement and which ~ill
be parties to the Joint Operating Agreement, i.e., the City,
the Town of Atherton, the City of East Palo Alto, the City of
Henlo Park~ the county cf San Mateo, and the County of Santa
Clara. -Joint Powers" may C!lso refer to anyone of the
foregoing-local goverrunents, as the context may require.
1.30 -Joint Powers Agreement-means the Joint
Exercise of Powers A,]reement dated July 26, 1983, by and
between the Joint Powers, pursuant to .. hich the City is
authorized to: {il administer a franchising process leading to
the award of one or more cable television franchises to
private companies to serve all of the residents, businesses,
and institutions located within the Service A.rea; and (ii)
oversee and regulate the franchisers} a~arded.
1~31 -Leased Channel-means a Channel on the
Subscriber System to or ~~ v~ich the Company shall. ~rsuant
to Section 3.7 of this Restated Agreement. provide open,
widespread, and equal ~ccess to all Persons unaffiliated vith
the Company withIn the meanin9 of the Cable Act, including
Persons who desire to use said Channel for commercial purpos
es, in a o'Wner vhich enables and encourages competition in the
delivery of s~rvices, as provided in this Restated Agreement.
1.32 -May· is permissive.
1.33 -,Kayor-means the Mayor of the City. his or her
designee, or any successor to the present Mayor.
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1.34 ·Person-shall mean any indi ..... idual~ or any
association, firm., partnership .. joint venture, corporation, or
other legally recognized entIty, wbether tor-profit or
not-for-profit, but shall not mean the Joint Po~ers.
l.~5 -Residential Dwelling Unit-shall mean a home,
mobile home, condominium~ apartment, co-operative unit, and
any o,ther individual dToit"ellinq unit la'Wful1y occupied for
residential purposes or as defined in Title 18 of the Pale
Alto. Municipal Code or a municipal or county code of the
jurisdiction in which such d~elling unit is located.
1.36 -Residential Subscriber-means a Subscriber 'Who
lawfully receives any Service on the Subscriber System in a
Residential DWelling Unit ~bich is located within the Service
Area: except to the exte~t that said Services are used by said
Subscriber in connection with a trade l business# or profes
sion~
1.)1 ·SChool-Ir.eans any institution of the Palo Alto
unified School District l any duly accredited non-public
school I any duly accredited day care center l any duly aocr~d
ited. college or university# and any other public or non-public
duly accredited educational facility or institution located in
the Service Area so designated by the City Manager.
1.38 -Service-means any Basic Service# any Enhanced
Service l or any other service l whether or not origInated by
the Company., 'Which is offered to any SUbscriber in conjunction
vith l or vhich is distributed over l the System.
1.19 -Service Area-means the areal as set forth in
the map at Exhibit 1 to this Restated Agreement., the original
of which is on tile with the City and is incorporated herein
by this reference., comprised of the Town of Atherton. the city
of East Palo Alto# the City of MenlG Park l the City of palo
Alto# various unincorporated areas of the county of San Mateo#
and unincorporated areas of the COl1;rlty. of san~a Clara compri~
~ng Stanford, University except 8,S, , spe5~ifl~a~ly prOY~~:<!~CJ<'ln
~~<'!Ii~i~_,:~.~ The service Area may be"extended"'from time'to
t1me"by"the Joint Powers to include areas within the spheres
of influence of the Joint Powers as shown on the map's attached
as Exhibit 1 to tbis Restated Agreement l which sPheres of
influence are annexed by the Joint Po~ers on terms consistent
vith Exhibit 1 to this Restated Agreement.
~~'~~~~tJSr~:~F ~ ~'6%~C~Q~Em:~Z~ ~. ~.' TIIE'SExVli:E AREA,OTHERWISE;cABLEW-Ol;' WILl.
~f}:cr"L(:ALL¥'IU:SERVE ITS RIGHTS AS DESCRIB<:O ... INA· SEPARATE l;~tON;.> .. (Chai.ged.sligbt1y t;c> .. efei.'~l?'· .. al'~·attacbe4 ... s ~l<hU:;1~~'~ . tl? simply refer to.'another sect'On forth ..
~~~etya,!rlO!> o(rlghts.) .. ..... . . . . .... . ..
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1.40 ·Ser, .. ice Related .Act ivi ty'll means any activity
o'r function associated with the production or distribut ion of
~ny Service over the system" includin9'~ 'Without limitation,
use of studio or o,ther facil iti-es or equipment, bill inq,
audience promo,tion, or installaticn or lease of equipment.
1.41 ·Shall-and ·Will-are mandatory, not merely
di.rective.
1.42 ·Signal-means any trans~ission of radio
frequency energy or of optical information~
1.43 -state-means the State of California, or any
department" agency, official, or e~ployee thereof.
1.44 ·state-of-the-Art-means that level of techni
cal performance or capacity, service, plant or other equip
ment, production or other facilities, or construction tech
niques which has been developed and demonstrated to be
workable and economically feasible and ,riable from time to
time throughout the term of this Franchise.
1.'5 ·street(s}-means the surface of, as ~ell as
t.he spaces above and below" any and all streets, avenues,
highways .. bo\llevards, concourses .. drive .... ays., bridges, tunnels,
parks" parkways, 'Waterways, and public grounds or vaters
within the Service Area~ including any easements owned by the
Joint Powers in any of the above areas or on the surface of,
including the spaces above and below, any other public or
private area within the Servjce Area.
1.46 -Subscriber-means any Person lawfully receiv
ing any service.
1.41 ·Subscriber System R means that pOrtion of the
System whose primary purpose is to provide video programming
services to Residential SUbscribers.
1.48 ·System" means the B,roadband Communications
Facility wbich is to be constru~ted, operated, and maintained
by the Company pursuant to tl'ds Res-t*ed---.... !J[eelllefl~, including,
without limitation .. all rights thereto, and all real and all
tangible and intangible pers0nal property comprising said
Facility.
't:,,":f _",vnlversal Service" means the Service consist,~'\;'_9:(:::~~:,:9t-" c;lje,::' c:nannels included_in Basic, Service as
P~,!'~~,-,J?r in Appe~1ces C and 0 to th1s Restated Agreement ..
-l-04-9> i ~ ~ ·Video Channel-means a Channel on the
System which i3.-'c:'apable of carrying one (1) video Signal.
h-5-e 1~51 -voice ChanI'lel-means a band of frequen
cies which is c.i'Pable of carrying one or more voice Signals.
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SECTION 2 --GRANT OF AUTHgRrTY
2 .. 1 The company and t.he city hereby acknowledge
that, as ot the effective date of this Restated Agreement, as
provided in Section l.3.01 hereof# (ij there is in effect the
Joint Powers Agreement, pursuant to which the city is autho
rized to administer a franchising process for the Service \rea
and to administer and oversee the franchisees) awarded tor the
service Area, and (ii) the Joint Powers intend to enter into
a Joint Operating Agreement, which will qovern the relation
ship between the Joint Powers and the City with respect to the
City's administratIon, oversight, and regulation of the
Franchise granted to the Company pursuant to this Restated
Agreement. The Company and the city further acknovledge and
hereby aqree that all references in this Restated Agreement to
the City, the City Council, the City Manager.. the City
Attorney. and the City Audito= are intended to mean the City.
the City Council, the City Manager. the city Attorney and the
city AO<iitor actiO<] on heheJIlf of the Joint Powers, pursuant to
the Joint Powers Agreement and the Joint Operating Agreement.
In addition, the City and the Company acknowledge and agree
that. as the Joint Operating Agreement will provide: Ii} the
City, in certain circumstances, may delegate to, or exercise
jointly with, one or more of the Joint Powers, the aut,hority
of the City under this Restated Agreement: (ii) the City may
permit one or more of the Joint Powers to exercise, either
alone or jointly with the City, the rights of the City under
this Restated Agreement: and {iii) the prot.ections afforded by
and to the City in this Restated Agreement shall include
protection -of the Joint Po"..rers to the same extent as the City.
2~2 This Restated Agreement shall take effect as
provided in Section 2.3.01 ~ereof. ~he ~eFm sf ~~e f~afteflige
~t'an"ed: toe Ule eo~afty ~i:il!'Stlafl~ ~e 'tbis Flest-at-e4-11,r=eeBle:Ai=
ellall eemmer.ee en \ohe ·effeet.iJe---4a-t:e el Nlis Res'tates
A~~ee.eflt.· as defiAed-iA 5eetiea 2.3.91 hayeef.
2.3 Closing, EffectiVe Oate~ Term and Termination
of Agreement
2~ 3.01 This Restated Agreement shall take
effect on the closing of this Restated Agreement (hereinafter
referred to as the -Second Closing:-).. At Second Closing. this
Restated Agreement shall supersede the Original Franchise
Agreement as to restated terms and conditIons and the original
franChise terms and conditions shall continue in full force
and effect to the extent they bave not been changed in this
Restated Agreement.
2~ 3.02 This Restated Agreement shall remain
in effect from the effective deJIte of this Restated Agreement
to the termination of this Restated Agreement, as provided in
section 2.3.0J hereof .. wbich period of time is herein referred
to as -the term of this Agreement.-
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2.3.0) The termination of this Restated
Agreement '!;hall occur upon the earlier of: (iJ the expiration
of the term of the franchise granted pursuant to this Restated
Agreement.,. as provided ir, sectio-n 2.4.02 hereof; or (ii) the
adoption by the City Council of a resolution terminating this
Restated Agreement in accordance vith the termination rigbts
provided in this Restated Agreement,. ."hieh resolution shall
ti~ the date of such termination.
2.3.04 The termir.ation of this Restated
Agreement shall not operate as a .aiver or release of any
obligation of the Company or any o·ther Person,. as applicable,
arIsing prior to such termination, and of any ooligaticn which
thIs Restated Agreement expressly provides will survive su~h
termination. At any termin~tion~ the Co~pany shall, to the
extent not inconsistent with Section 17.5.01(i) hereof l cease
all construction and operation~l activities in a prompt and
workmanlike manner.
2.4 Commencement, Term, and Rene~al of Francbise
2.4 .. 01 To the fullest extent permitted under
the JoInt Po ..... ers Aqreement .. the City bereby grants the ccmpany
a nonexclusive franchise for the occupati~n and use of the
Streets within the Service Area for the construction .. opera
tion, maintenance... repair, and removal of the System in
accordance with the provisions of this Restated Agreement. No
privilege or power of eminent domain is besto ... ·ed on the
Company by this grant of authority.
2.4.02 The Franchise shall remain in effect
for a terti of fifteen (15J years from March. ~4" -1986 .. unless
sooner reVOked, which period of time is herein referred to as
-the initial term of the Franchise.-The Franchise shall be
revoked automatically upon any termination of this Restated
Agreement by the city.
2.4 .. 03 subject to Section 19 hereof and
Section 626 of the Cable Act, the City reserves the right to
grant or refuse to .grant any rene .... ·al of the Franchise follow-
in<] the initial term of tlle. Francbise and to condition any
such renewal upon the company's agreement to comply fully with
this Restated Agreement and all amendments or other modifica
tions bereto as may be mutually agreed upon. No-thing in this
Restated Agreement shall be construed as creating or recogniz
ing any presumption in favor of a rene~al of this Restated
Agreement.
2.4.04 In the event that: (i) pursuant to
section 19 hereof and Section 626 of the Cable Act .. the city
does not grant a renewal of the Franchise at the expir~tion of
the initial term of the Franchise at: t-he e::K~iratiefl -o-f--4fte
if'ltt-ial -teFl!!: tit 'the-Fr-aileaise. or (ii) this Restated Agreement
is terminated prior to the expiration of the initial term of
the Franchise. thereby revoking the Franchise, then the term
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of the Franchise sh~ll expire, all rights of the Company in
the Franchise shall cease, and the rights of the City and the
company to the System, or any part thereof, shall be deter
Dined as provided in section 17.5 hereof.
2~ 5 Cond;itio!'ts andmnJ,.,imJtations on Franchise
2.5.01 Nothing in this Restated Agreement
shall affect the right of the city to grant to any Person a
franchise.,. consent.. or other right to occupy and use the
streets., or anY' part thereof" for-the construction, operation,
or maintenance o~ all or any part of a Broadband Communica
tions Facility within the Service Area.
2.5.02 In the event tbe City grants to any
other person a franchise, consent ... or o,ther right to occupy or
use the Streets" or any part thereof. for the construction.
operation~ or maintenance of all or any part of a Broadband
Communications Facility · .. ithin the Service Area~ the City
shall , at the Company's written request~ ma~e a qood faith
effort to insert the follo~in9 language into any such fran
chise. consent... or other document creating s\Jch right to
occupy and use the Streets or any part thereof:
[G~antee] agrees that it shall not move~
damage. penetrate, replace l or interrupt any
portion of the Broadband Communications Facil
ity owned by [the Company] without the prior
~Titten consent of Ithe companYl~ IGrantee]
shall indemnify [the Company] against any
damages or expenses incurred by [the Company1
as a result of any such removal I damage l
penetration~ replacement... or interruption of
the services of {the company] caused by [Gran
tee].
2.5.03 Nothing in this Restated Agreemant
shall abrogate the right of the City to perform any public
work or public improvement of any description... including,
without limitation ... all lIlork authorized by applica~le laW'. In
the event that the System interferes with the construction ,
operation ... maintenance, or repair of any such public work or
public improvement. the Company. after reasonable notice from
the City I shall.. at its own cost and expense. promptly
pro~ectl alter l or relocate the System , or any p~rt thereof~
as directed by the city. In the event that the Company
refuses or neglects to so protect ... alter, or relocate all or
part of the System ... the City shall have the right in connec
tion with the performance of such public work or public
improvement to break through I remove~ alter, or relocate all
or any part of the System without any liability to the Company
except. for the City's willful miscond'uct and the Company shall
promptly pay to the City the costs incurred by such breaking
through. removal. alteration, or relocation.
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2.5.04 Nothing in this Restated Agreement
shall be construed as a waiver of any code or ordinance of the
city or the Joint Powers or of the City's right to require the
company or any Person utilizing the System to secure all
appropriate permits or authorizations for such use. The city
shall ~se reasonable efforts to expedite the company's
application for all permits or authorjzatiO-ns necessary to
install~ operate 6 maintain, an6 repair the System and shall
cooperat~ with the Company in causing the Joint Po~ers to use
reasonable efforts to expedite the Company's application for
said permits or authorizations.
2.5.05 :r-:0·thing in this Restai:ed Agreement
shall be construed as a ~alver or release of the rights of the
city or the Joint Powers in and to the Streets. In the event
that all or any part of any Street within the Service Area is
vacated., eli2inated., discontinued, or closed, all rights and
privileqes qranted pursuant to this Hest.atc-<i Agreement "With
respect to said street, or any part thereof 50 vacated,
eliminated, .aiscontinued, or closed, sb2!11 cease upon the date
of the adoption of the plat vacating, eliminating., discontin'l
ing, or closing said Street; provided that, the rights and
privileges granted hereunder shall not automatically cease if
such rights and privileges do not interfere with the purpose
of such vacation., elimination, discontinuance., or closing of
such street.
2.5.06 The company shall comply with: (iJ
all applicable lays and all requirements of the State, the
FCC.,and any other federal or state agency or authority of
competent jurisdiction., consistent .. itrL section 18 hereof; and
(iiJ all local laws., rules, regulations. and all orders or
other directives of the City issued pursuant to this Restated
Agreement.
2.5.07 As consideration. for the franchise
granted herein., the Company agrees that at all ~imes it shall:
(i) comply with all provisions bereof and all amendments and
other modifications to this Hestated Agreement; and (ii)
subject to the terms of this Restatement Agreement., not
challenge the validity of said provisions hereof and amend
ments or other modifications hereto as drafted and agreed to
in cormectiNl with any proceedings rega-rding or affecting this
Restated Agreement before any federal or State agency~
department., commission, or court.
2 .. 5.08 As consideration for the franchise
granted :herein, the Company Shall., throughout the term. of this
Restated Agreement, maintain adequate financial resources to
perform., on a timely basis, all obligations pursuant to this
Restated AgreemenL This Restated Agreement is el!pressly
conditioned upon the submission by the Co~pany to the city
Manager, with a copy to the members of the City Council, of a
financial plan demonstrating that, as of the e-f--f.eet-i-¥e--date of
t:his Res'eoat.ed Ag-l'eemeAt the Second Closing, the Company has
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said resources or 'Will obtain said reSQurces in accordance
lI'ith" the financial plan.. The Company may modify sai~ Cirian-
c.ia!.i'~.an as. provIded for In AppendixJ. .
SECTION" 1 --SERVIC~_ OBLIGATIONS
3.1 The Company shall constru~tr operate~ and
maintain the System a$ a State-of-the-Art 8road'oand communica
tIons Facility offering the full range of Services., facili
ties, and equipment that can be made available through su~h a
Facility, as provided in Appendix A, C and 0 to this Restated
Agreement.
3.2 Throughout the term of this Franchise., the
Company shall promptly furnish, maintain., and. except as
provided in the second sentence of secticn 9.2.04 hereof ..
continue to offer all Services distributed over the System to
any Person lawfully occupying a Residential Dwellinq Unit and,
sul:lject to the provisions of Appendix B to this Restated
Agreement, any other Person f",'itbin the service Area, upon
request. and payment of all applicable charges, as set forth in
Appendices I-I, 1-2, and 1-3 to this Restated Agreement ..
provided that such request is not-inconsistent vith the terms,
conditions, and schedule for construction .. as provided in this
Restated Agreement, and provided further that the Company is
able to obtain access to each Person's premises in order to
furnish, maintain.. and continue to offer Service to said
Person. The company shall not. aba,MoOn the System, in vhole or
in a not insubst~ntial part, without the prior written
approval of the City Council. The inability of the Company to
obt.ain or continue to obtain access to any Residential
Dwelling Unit located on a premises ~hich contains more than
four Residential Dwelling Units upon terms and conditions
reasonably accept.able to the Company and subsequent failure to
provide or to continue to provide service to such Residential
Dwelling Unit sball not be deemed to be an abandonment of the
System.
J.3 The company shall offer to all subscribers
Services within broad categ-ories of video programminq services
as provided in Appendix C to this Restated Agreement.
3 .. 4 The Company shall offer on the Subscri~r
System a full range of Audio and o,ther servic<=!s as provided in
Appendix D to this Restated Agreement.
3.5 The Company shall, either directly or through
the lease of Channels on the System, offer Services within
broad categories of video programming and other services set
forth in Appendices C and 0 to this Restated Agreement to
ensure that the mix .. quality, and level of Services initially
set forth in Appendices C and 0 to this Restated Agreement
shall be maintained throughout the term of the franchise.
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3.6 The Company~ itself or through third Pdrties~
shall offer on the Subscriber System, the Institutional Cable,
or both, a full range of other services designed to satisfy
the needs, for the services made aVailable through Broadband
Communications Facilities. of bUsiness and cOr.'<.~ercial entities
in the Service Area, and residents and non-profit entities in
the Service Area for special j zed data Services~ consistent
with Sections 3.1 and 3.2 hereof. As provided in this
Restated Agreement, said services shall include the capacity
to provide one-way, t~o-.. ay, interactive .. and machine-to-ma
chine transfer of audio, video, voice, and data Signals both
within the System and to and from sources outside the System
throuqh the interconnection of the System. consistent -with all
applicable laws .
.).7 L.eased Services
3.7.01 The Subscriber system shall contain
initially at least t.wO" (2) ~-{--a.T Leased Channels ... ea:l9aeity
including access to the upstream ~apacity specified in
Appendix: A to this Restated AgreeIr.ent~-----;."hiefl: :FIk:lfl'\£!er has ~Ft
aeE"ivedi ~y---apph' ii"li'J ~he feEl!lll±-a-----€ SRI; i3 i Flea iFl 6eef: i Oft--6-l-t--&!
"the CallIe :l.st: ~a t;.h:e e,allaeH::J s~ ste'£'li: s'Aall eei"rt-a-i1"1 il'l:t.1:oii311)
_a:t: "sf ~_I\_e Sy-stem., ,At all times.jI the company shall comply vitb
~lr:_:awlJ~rEr: ~aW's ,concerning provision 'Of Le_ased ,Channels,~
Th'e tkase'CJ Channels shall be distributed at Channel Numbers to
b~ ,sel_ec_ted _b,r, t1?e_ Company. Subject to tbe la:st sent'ence o,f
t.h,~~"}',:$'ect_l~,,,)'.1 .. il14 at any time folloving the fifth (5th) y~J:;:""<l(;:,,~e ___ Il!it;ial t'erm of the Fr-an<:hise", upon a determina-_ti~:/,:b:y:,:-:::tllff:I'-Ci~y Manager and the Company that the then !?c),ifJ,~,i~'~te,,~'sed. ~a,nr.els are being 5ub5tanti~11y utilized ~nd th~,t_"-4,:,~~t_ant~al and demonstrated need eX1sts for one (1) 'a:dditl~i'J~.ea:s'ed Channel ... then the Company shall supply su-c~
a~it,,it~#t\l.:::'t.e~~eci ~annell without decr-easing the numh_er, ~f
~yeJ~llJne'rie __ 'C;)_r''--Acces5: Channels ... as promptly as possible,: but in
Dc?7'~~~~':):,al:;_~r"-"th'an ,six (6) l:iOnths after said determination.
,~rrng-. tb~_ :ipltial term ,of the Fran'Chise l the Company shall
iD,:O_~:",~'_'-:~~iqatEiHi to provide a total of more than three (3)
aet1vatecl' yideo.'Cbannels a~ Leased Channels. unless otherwisE!:
~a'~,i'~_e4:'by(,a.~li(;able law. If .. elaf'iFH~' 'E:fie' iRi-t-i-a-l tee-I!! af
the "Ffraftebis'e .. tBe flumbe~ ~r J:.easeel CAal"lRel--s-----'t~ 199 5'L!~pl ieel by
t.-Ile GempaflY p1tU'Sld?sl"ttt:. "Ce £ee"Ciea 61-2----e-f.-\:lrl.e €al:lle ".~-~-ea-ses
kOlB---tfie flCHftil ef' e f Leased--C-haf\::l"l: 1 S sf! e si-f.i-ed.----...fft-----t-hi 3 5 eet. i e t1
3=7.81, tfficef't the C-empaA] shall eOIR:t31:J" .'ith---:t-he ~e~:1i'f"e$eF\:t-5--O'f
saia Beet-left-6124 If Section 612 of the cable Act is amended
such that it (i) ceases to apply to the Company or the System ..
or (ii) permits the Company to offer fewer Leased Channels
than are currently required under Section 612.. then the
Company shall not offer fe~er Leased Channels than the number
contained in this Restated A.gree!':1ent w~-i-cfl: i3 tfle :RU~---&f
leased: eftaft.-.els E e~iFed--t-e----*-sl:i~~l ieiJ ell the eS'W!.f'i3Pi:f
p~Fseafi~ ~a Seetieft 612, ~ithout the prior agreement of the
City.
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3.1.02 Subject to Section 612 of the Cable
Act and other applicable law~ the Leased Channels shall at all
times be available for programming' and othel'" Services by
Persons other than the Company and Affiliated Persons at
neqotiated terms and c~ditions, in accordance vith disclo
sures of rates made to the City, the rules to be established
pursuant to t:he plan required by Section 3.7.04 hereof ..
Neither the Company nor any Affiliated Person shall distribute
any Service over any Leased Channels, except as provided in
Section 612(b) (4) of the C2ble Act.
J. 1. 03 At reasonable times during which each
Leased Channel is being used ... in .. 'hole or in part~ for the
distribution of any Service by the Company of an Affiliated
Person, the Company shall cause a notice to appear 00 said
Channel advising all Persons that said channel is available
tor lease and specifying whom should be contacted in order to
lease said Channel ..
3.7.04 The Leased 'Channels shall be adminis-
ter-ed by the Company in a manner Vlhich makes possible competi
tion in the delivery of Services and diversity of programming
a.~ information sources. At such time as the City reasonably
determines that because of amendments to the Cable Act the
City should take additional responsibilities ror the adminis
tration of Leased Channels, the City may require the Company
to develop a plan for the administration of said Channels.
Said plan shall:
{i} Be submitted to the city Manager
within three {3} months after it is
requested and shall take effect one
(1) month thereafter unless the City
Manager notifies the Company, in
writing, that he does not reasonably
concur in said plan;
(ii} Be updated from time to time as
reasonably necessary, and no materi
al ~odifiC'ation thereto shall become
effective if the city Manager noti
fies the Company~ in wTiting, within
one {l) month after receipt of said
modification t:hat he does not ap
prove said modification;
(iii} Describe the details for ensuring
that the company will make available
the Leased channels to all Perscns l
or, upon request of any perscn. time
segments of reasonable duration on
the Leased Channels, on a
first-come, first-served basis and
on such other terms and conditions
..... hich shall not discriminate between
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comparable uses and users of the
Leased Channels, provided that the
Company ~ay ~eg~tiate or establish
different rates or teLDs for differ
ent types of uses or categories of
users;
(iv) Set forth the rules, in accordance
with the provisions of this Restated
Agreement, gov-erning the appl ication
for, availability of, and use of
Leased Channel til!le and S.ervice
Related Activities by Leased Channel
users; and
{v} Specify the agreement which the
Company snall require each Leased
Channel U5~r to execute in order to
provide that Leased Channel users
coDlply 'With the various provisions
of this Restated Agreeme~t which
govern the obI igations of Company in
connection with the distribution of
any service over the system, includ
ing, ~ithout limitation, the re
quirements of Section 5.1 ... 9 .. 1, 9.2#
lO .. 1.~5# and 16 hereof.
-3-.7.95 Ift 'the e,efllt. tha-t ameR~!!!ents toe
Seet:ieR 612 at t:be Gahle Aet. Sf' st.-he-r---pr9visiePl sf feaeFal laW'
all:ell' aft iRereaae ift ~t;-~~
eas"ti!'e 'that.... t.hrsl3:!jlisl3:t. 'the "tell! af t-5-is.~aflclli5e# t:heFe
Mall ~e a sa:f:fieieHt. fl:i:lrMleE' ef----Lease8: €aaPb:els ts sat-isi} toee
demand: :reF saeh C~l:$ h J PeE'SSn5 et.heF "'Raft the--C-e-mpany---a-Ad
Affiliat:e!l PeF:981"13" at: an} 'tift-e-fal1e'ar i-nt}-t-he tlliFS (3E'aJ } ear
sf t.he ifti'tial t.ez=m af tfi.-i-s--F-r~--eft'fti~---.ey
'=he Gi'ty MaRalj'el' afOul t.he €SIfl13 aay 'Efi-a-t:----t.-he----eif-ist.iflL} ~ea5 ed
ChaRi\e1s aFe ~eiFJe~ s·~&t:aFIt-ially----il-t--i-l-i2eEl aFla. ~.-at-a s~staR
1=ial aft!l aemeftS~Fat:e~ need e~i9ts f~£ BAe [ll SF mo£~
t.iaflal l.easeEi eha:J\l\el(sl ... t:liea 'tRe C9m~any----sft.a-ll SI::I19l'l) "ti(31=e
't.9 (2) add:it:ielLal l:eaee!J Chafb:el (-s-J ' .. i1:11-I::It a:eeFeasifl::~ toee
ftl::lHeE' e"f Sa. eE'lU!IeAt: &F----Aecess €aal'U"lels# a:9 ~£G~y----a-s
psssil!le ... lHi~ 1n De e'. eB~ la~eF 'than silt-(6} merrt-fl:S aft-eE said
Eiet.e!"BiRat-ielh If ee'flSist.eR\: -.'ith app-l-!-eable 13 .... fe11a.iFl'!J
toRe iftit.::ial t.eHL af t:he FFaF.eh-i:;e, t.he eit:y Maftalje?'----iI"\aY
!'eqaesti 'the €empafty te sl:il'~ly Lease;! Gfiaftfle-l.-s----ifT---adOitien '£e
t.RBse "f'e~i!'ea e)1 'tRis SeetieR 3. 7----~-eqt:lestifllJ the CempaR:p
toe i ... erease "tee l1"tieef' -cr ea(9aeit} e f caafL. .... els BF oa&l-e-5----efl:
£be Sl3l3seE'i~er Sj stem.
J. e Competition
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3.8.01 Tbe Company shall not enter into any
agreement or take any other action which: (i) prohibits it
from offering competitive Servi~es or (ii} may prohibit any
other operator of a Broadband Communications Facility fran
chised by the City from distributing any Service over such
other Broadband Communications Facility. The exercise by the
Company of the rights granted in this Restated Agreement shall
not constitute action by the company prohibited by this
Section 3~8.01.
3~8~02 If, 2t any time, a court e"f competent.
jorisdiction determines that the distribution of any service
by the company or any Affiliated Person has tended to create
a monopoly or to restrain trade, then the City Council may
issue a directive to correct such conditions consistent vith
the determination of the Court.
3 .. B ~ 03 The Company agrees that the city
shall be considered a ·person aggrieved-as that term is used
in Section 612 of the Cable Act~ entitled to all the rigbts
and remedies therein provided upon the company's failure to
comply fully with the letter and spirit of Section 3~1 hereof.
Such rights and remedies are cumUlative and do not affect the
City's right to proceed under Section 17 hereof.
3' .. '9 Continuing Obligation
3 .. 9.01 Throughout the term of this Fran
Chis~. the Company shall: (i) maintain and u'pgC"ade the
servIces distributed over the system and the technical
performance of the System so as to keep pace with developments
in the State-of-the-Art of Broadband Communications Facility
technoloqy~ to the extent the Company and the city reasonably
mutually determine that it is economically viable and feasible
to -do so. and (ii) el ther on its own initiative or at the
request of the city Manager, participate in or undertake
experiments.... tests.... and other activities to enhance and
advance the state-of-the-Art of Broadband Communications
Facility technology. to the extent the Company and the City
reasonably mutua11y determine that it is economically viable
and feasible to do so; and provided that, such experiments ....
tests. and other activities are technically sound and under
taken in response to a mutually defined market demand. The
City council ~ay~ at any time, conduct a public hearing to
determine whether the Company has complied fully vith this
obliqation, and ll.aYr as a result of such hearinqr take
appropriate action to ensure compliance 'With this obligation:
provided that .... the Company shall be given reasonable 'Written
notice of non-compliance with this obligation and a reasonable
period of time vithin ~hich to cure such non-compliance.
3.9.02 If, at any time. the Company or any
Affiliated Person distributes~ over-any -o,ther B,roadband
Communications Facil ity located in any a,ther jurisdiction with
demographiC r economic and other relevant characteristics
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comparable. to those of the Service Area. any broad category of
video programming serv-ices.. ' .. rb ich are di fferent from the
Services then being distributed over the System, or introdu-ces
any ~ther features different from those of the System.. then
the City Council may. consistent with the principles of
economic feasibility and visibility described in Section ..,.
hereof and subject to applicable la·... order the company to
proqram.minq services or o,ther services or to offer said or
similar features over the System within a reasonable time
thereafter. For the purpose of this section 3.9.02,. but
with<"Alt modifying in any way the definition of Affiliated
Person set forth in section 1.2 of this Restated Agreement ..
Affiliated Person shall no·t include a Person ,..-hose sole
relationship to the Company is the provision of services to
the Company under a management or Oi,:,erating agreement.
3.10 Neither the City., the COr'~unity Access Organi
zation~ nor any other government-created entity shall engage
in any program censorship or other control of the content of
the programming on the System, el!cept as otherwise required or
per:mitted by law, provided that .. (i) the City may exercise
editorial control over programming on the Government Channels,
and -(ii) the Commu.nity Access organization (the nCAO"} may
exercise editorial control over progra~.ming on those portions
of Access Channel time ~bich may be programmed in ~hole or in
part by the CAO.
SECTION 4. --PUB·LIC SERVICES
4 ~ 1 The company shall, as provided in this Section
4 and Appendices E and F of this Restated Agreement, ma);:e
available to the City, without charge, a variety of services,
€acilities and equipment for the creation, development, and
use or Government Channels, Access Channels, and the Institu
tional cable~ All such Ch.annels~ services, facilities, and
equipmen~ provided by the company snaIl be beld by the City
for the benefit of all Subscribers to the System and the
public". and". as may be appropriate in SOI:'.e cases, the Company ..
Said Channels, servi~es, facilities, and equipment may be
designated for specific initial uses in this Restated Agree
ment: however .. the City cou.ncil reserves the right .. subject to
the provisions of this Restated AgreelI'.ent, to alter, 'Without
prior consultation 'With the Company .. any or all such initial
designati~ns for non-profit access and institutional uses
consistent with this Restated Agreement and all applicable
laws.
4.2 Government Chal1n_~1",§
442.01 The Company shall initially supply to
the City, without charge" a minimum of: (i) t .. -o (2) activated
Video Channels on the S-ubscriber System 'Which the City may
elect to use, in vbole or i~ part, for video, audio, or data
Services, and (ii) access to the upstream capacity specified
in Appendix A to this Restated Agreement. Said Channels shall
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be the Government Channels and shall be used by the .Joint
Powers ~ All Gove rnment Channel s suppl ied pursuant to th is
Section 4 shall be distributed at Channel Numbers to be fixed
by the Company, in consultation vith the City Ma~ager. The
city Manager may, at any time, direct that anyone {I) or more
of the Government Channels be allocated to Basic services ..
and, as appropriate in accordance ~ith this Section 4,
Enhanced Services.
442.02 The Government Channels may be used
by the City for any lawful, non-profit governmental purpose.
The City and the Company :may jointly agree on te:rms llpon 'Which
a Government Channel may be offered or used for Leased Access
purposes in the event either the City or the Company deems
offering such Channel capacity for such commercial purposes
desirable ..
4 .. 2 .. 03 Except as provided in Section 4 .. 2~02
hereof .. the Company shall not prohibit or limit any service .or
cate9'iry of Services distributed over the Government ChannelS,
'Which is consistent with this Section 4 and the technical
characteristics of the System.. as provided in Appendix A to
this Restated Aqreement.
".2.04 Subject to the second sentence of
this Section 4.2.04 .. at any til!'!c folloW'ing the fifth (5th)
year of the initial ter.m of the Francbise, u~ a determina
tion by the City Manager and the Co~pany that then existing
Government Channels are being substantially utilized and that
a substantial and demonstrated need exists for one i1) or more
additional Government Channels, then the Company shall supply
sucb additional Government Channels, without decreasing the
number of Leased or Access Channels, as prompt:ly as possible,
but in no event later than six (6) months after said determi
nation. During the initial term of the Franchise, the Company
shall not be Obligated to provide to the City a total of more
th~n three (3) activated Video Channels as Government Chan
nels, provided that, in order to provide Channel capacity for
use by the city in addition to said three (3J Video Channels,
the Company shall.. upon request of the city Kanaqer.. permit
the City to lease from the Company~ for noncommercial purpos
es, anyone (1) or more of the Lease Channels, or portion
thereof, at a rate not to exceed one-half (1}2) of the lowest
then prevailing commercial rate charged by the company for any
comparable Lease Channel .. or porticn thereof, excluding
cbarqes for experimental or start-up Services .. as soon as said
Leased Channel(s), or portiones) thereof, become(s) available.
4.2.05 The City shall receive, as provided
in a pre-development agreement negotiated between the Company
and the City, an appropriate portion of the financial bene
fits, if any, received by the Company or any Affiliated Person
in connection vith the use in any oth~r eroadband Co~~un!ca
tions Facility of any programming or services developed by or
on behalf of the City, or by the company in cooperation with
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the city. pursuant to said agreement, for use on the Govern
ment Channels ..
4 .. 2.0·6 In the event the City or the CAO
desires that Channel capacity. facilities, services, or
equipment be provided to commercial users (incl\Jdil'lg municipal
utilities) of the city or the CAO. the company shall be
compensated for the value thereof at rates to be agreed upon
between the appropriate parties {the Company and the city" or
the Company and the CAO} in their sole discretion~ Such
compensation may take the {OrIll of a trade or exchange of
services as the parties may agree.
".3 Access C:panneis
(.3.01 As part of the Basic Servic~s on the
SUbscriber System, the Company shall initially supply to the
city, without charge: til a minimum of three {3) activated
Video Channels I whicb the city or the CAO may elect to use, in
whole or in part~ for video l audio ... or data Services I and eii)
access to the upstream capacity specif~ed in Appendix A to
this Restated Agreement. Said Channels shall be the Access
Channels and shall be dedicated to publ ie..-edu·cational, and
other institutional use. .All Access Channels supplied
pursuant to this section 4.3 shall be distributed at Channel
Numbers to be selected by the Co~pany.
4.3.02 The Access Chdnnels shall be placed
under the jurisdiction of the CAO..-to be established pursuant
to the Joint Po~ers Agreement and operated and designated as
provided in Appendix E to this Restated Agreement. said
Access Channels shall be used for public..-edu.cational l or
charitable purposes, and for any other purpose agreed to
between the Company and the CAOI including any other Service
for which a per-p~vgram or per-Channel charge is imposed by
the. CAD.
4.).0) The Company agrees to supply and make
available to the CAO, designat.ed in '1.'-Titing by the City. which
deSignation may be cbanged from time to time, without charge
or for a. nominal fee, either by itself or by agreement in
writing with any other francbisee of City, all of the equip
ment and facilities as pro"\~ided in Appendix E to this Restated
~greement. The Company shall retain title to such equipment
and facilities and shall have the right to substitute equiva
lent facilities and equipment fram time to time l subject to
the CAO's approval.
4.3.04 .Rules and regulations shall he
adopted by the CAO, in conSUltation with the City~ to govern
the use of Access Channel time l eqlliprtent ... facilities, and
other services to ensure that said time l equip~entl facili
ties, and other services are available on a fair l open~ and
nondiscriminatorj'" basis. Said rules and regulations shall
also provide for the CAO to receive~ pursuant to a pre-devel-
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opment agreement neqotiated between the Compa~y and the CA~I
an appropriate portion. of the financial benefits, if any,
received by the company or any Affiliated Person in connection
with the use in any other Broadband Communications Fa~ility of
any access or local origination programming or services
developed by or on behal f of the CAO or by the company in
cooperation with the CAO. pursuant to said agreement, for use
on the System. The Company shall not prohibit or limit any
service or class of services distributed over the Access
Channels to the e~tent that said service or class of services
is consistent with the purposes set forth in section 4.3.02.
4.3.05 Rules and regulations shall also be
adopted by the CAO and the company jOintly to govern the use
of that portion of the Institutional Cable to be made avail
able .for educational uses, as specified in Appendix F to this
Restated Agreement. Said rules shall ensure that the Insti tu
tional Cable is available to edu-cational institutions on a
fairJ open and nondiscriminatory basis.
4.3.06 Subject to the second sentence of
this section 4.3.06, at any time following the fifth {5th}
year of the initial term of the Fran~bise, upon a determina
tion by the City Manager and the Company that then existing
Access Channels are beinq substantially utilized and that a
substantial and demonstrated n€ed exists .for Access Channels
in addition to the t.hree (3) Access Channels suppl ied pursuant
to Sect. ion 4.3.01 hereof, then the Company shall slJWly such
additional Access Channels, vithout decreasinq the number of
Leased or Government Channels~ without decreasinq the number
of Leased or-Government Channels ... as prcmptly as possible J but
in no event later than six (6) months after said determina
tion. DurIng the initial term of the Franchise, the Company
shall not be obligated to provide a total of more than five
(5J a~tivated Video Channels as Access channels.
4.4 Fallow Time on Government and ~_9Ces§l Channels
If there is any unused tine on any Govern.t:lent or
Access Channel and the Company or any Affiliated Person
desires to distribute any Service over said Channel (5) durinq
said unused time, then the Company or the Affiliated Person
shall so notify in ~iting the City Manager, in the case of
any Government Channel ... or the CAO, in the case of any Access
Channel. Said notice shall demonstrate that there then exists
no demand by any ot-her Person ... including the CAO in the case
of an Access Channel or the Joint Powers in the use of a
GoverIllllent Channel, for the unused time. The Company or the
Affiliated Person may conunence the distribution of the Service
over the Channel(s) at the end of the fifteenth (15th) day
followinq receipt of said notice by the City Manager or the
CAO unless the City Manager or the CAO no,tifies the Company,
in writ~ng, that he or it does no,t consent to the 'Use of th-e
Government or Access Channel(s] by the Company or any Affili
ated Person vhich consent shall not be unreasonably withheld.
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The City manager or the CAO, as applicable, shall specify in
writing and in reasonable detail his or its reaso-ns .for
denying such use. In the event that the city Manager or the
CAO auth-orizes the Company or any Affiliated Person to utilize
any Government or Access Channel (s). the company or the
Affiliated Person so authorized shall promptly relinquish such
use upon receipt o~ a request by the city Manager, in the case
of any Government Cha~~el. or the CAO, in the case of any
Access channel .. but in any event such use shall be reI in
guisbed. not later than ninEty (90) days after receipt by the
Company of such request. At all ti:r::es during 'Which each
Goverrunent or Access Channel is not being used for the
distribution of any Service. an1 at reasonable times during
which each Government or Access Channel is being used for the
distribution of any Service by the company or an Affil iated
Person~ the Company shall cause a notice, in the form to be
developed in consultation with the City Hanger and the CAO, to
appear on the System, adVising all Persons that said Channel
is, as applicable~ a Government or Access Channel available
for use in accordance ~ith this Section 4.
4.5-InstitutionalmnCa;QJ.,g
4~ 5.01 As providej in Appendices A and F to
this Restated Agreement, the Company sball: (i) construct, and
thereafter thrO\l9hout the term of this Restated Agreement,
operate and maintain a fully t ... ·o-way cable that is midspl it or
supersplit, and (ii) in connection ~ith said cable, provide
services, equipment~ facilities~ and support to the City for
educational and qovernmental uses. said cable shall be
capable of providing one-W'ay, tr.ro--",·ay, interactive~ and
machine-to-machine transfer Qf audio, video~ voice, and data
Siqnals within said cable and to and from sources outside the
system, through the interconnection of the System as provided
in thIs Restated Agreement. The following Is a list~ by way
of elll:ample, bet not. limitation .. of the types of services which
said cable shall have the capability of providing: two-vay
video conferencinq: high speed data transfer: ac.cess to
informaticna I serv ices; Ine(3:i ca 1 in forma t i on interchange;
facsimile reproduction; and energy manage~ent. A portion of
the capacity of saId cable shall be made available fer use by
the City and by other governmental and edu~aticnal institu
tions, as provided in Appendix F to this Restated Agreement.
4.5.02 The cable or the bandwidth~ as the
case may be, supplied pursuant to Section 4.5.01 hereof shall
be the InstitutIonal Cable and that portion of the Institu
tiOl"lal Cable so designated in Appendix: F of this Restated
Agreement shall be available tor use by the City and by other
governmental and educational institutions. The city may
utilize said portion of the Institutional Cable to provide the
City .. ith the means to develop and distribute governmental
services to the public over the Subscriber System~ to develop
plans !o·r 4 test, and implement the use of Broadband communica
tions Facilities 4 inclodinq the System, as an integral part of
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qovernmental operations .. and for any o,ther la'Wful., qQvernmen
tal purpose; provided that~ such use shall not impose techni
cal interference ~ith the operation and physical uses of the
Institutional Cable by the Company and that su-cb testinq shall
only occur with the prior written consent of the: Company.. The
use of th~ Institutional Cable by educational institutions
shall be in accordance 'With the rules established by the CAO
pursuant to Section (. 3~O5-to-this Restated Agreement and
shall bE limited to public, educational., or cb~ritable
purposes. Neither the City nor such institutions may sublease
capacity on the Institutional Cable to commercial entities.
4.5.03 If there is unused capacity on that
portion of the Institutional Cable ... 'hieh is available for use
by the City and by other governmental and educational institu
tions, then the. Company may petitio-n the City Manager tor
consent to util ize said unused capacity on a temporary basis l
which consent may no,t be unreasonably 'Wi th1'!.eld4 I f the City
Manager authorizes said usc by the company or any Affiliated
PersDn I then., u'pon notice to the Company by the City Manager,.
the Company shall promptly. but in no event later than one
hundred fifty (15,0) days after receipt of said notice from the
City Manager., cease its use of said capacity and return said
capacity for" use by the City and by other goverru:cental and
educational institutions. W-i-~-fl; t..e (2} ~eaE's f:eea t,fie
effeet:i.e i!!atoe af this Restat-e~ :1;qE'eelfteRt., toile eity shall
~E'emsl~ate Fea50Aaale ~les¥ £eqslat.ieAs aHa ~eeedare9 fSE
lise at l:i8sseti eapaei'l::y fl13Fsti:aflt---n-t-&---this seetisB L 5. 93:,: .aiel!
~hal_l ,h_E!< ee,fUiist:eent.---Yit-h---t-hi 5 Rest-at.:::e AIJl" eemeBt: ,. W! t;:.hin_ ,oh~
(~,l:.,'ye~,r:":,_~iOm,,,the _actl:vat,i6n.of the S cable as provided ;f()r'ln; A~~,ix,',' ,A-I ~'> ~l'l$',::~ity :sha;tl prolllulgate reasonable_ r~ili!,$; f_~at~~$, a'ilCi, pr&~~es for use of unused capacity_ pul'S_\lal'1.t
t~ \:h1E1",,~:ctiori:' J'."S .. ()3., Which shall be consistent" vit..b :,~h~:s ~~~l~~d __ 'A9~e~e,~~,~:" ' ,
4.5.04 The City shall receive, pursuant to
a pre-development agreement negotiated between the Company and
the. City" an appropriate portion of the financial benefits, if
any, received by the Company or any Affiliated Person in
connection with the use in any other Broadband Communicatio~
Facility of any programming or services developed by or on
behalf of the City" or by the Company in cooperation with the
City. pursuant to said agreement,. for use on the Institutional
Cable~
4.6 Other PUblic Service§
4.6.01 The Company sb~ll take affirmative
steps to ensure maximum practicable availabil ity of the
Services and facilities of the System by handicapped persons.
Within twelve (12) months after tbe effective date of this
Restated Aqreement. the Company shall submit to the City
Kanager a plan demonstrating how the Company intends to ensure
the availability of its Services and facilities to handicapped
person.s. Said plan shall include., at a minimull., specific
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programming and facility access propo~als.
updated from t~me to time as necessary.
said plan shall be
4.6.02 The cortpany has offered to provide on
a voluntary basis the Services, equip~ent, and other support
to the q<:Ivernmental and other facilities specified in Appendix:
G to this Restated Agreement under the conditions set forth in
said Appendix.
4.6.03 The company shall~ upon request of
any Residential Subscriber" provide to said -Subscriber (by
sale or lease) a device by ~bich said Subscriber can prohibit
viewing of a particular service during periods selected by
that Subscriber. as further provided in Appendix A to this
Restated Agreement.
·1.6.04 In the event of an emergency" as
reasonably det.ermined by the Mayor or City Manager 6 either of
them may order that Signals being distributed over the System
shall be interrupted for the delivery of appropriat~ messages
or other Siqnals as may ~e necessitated by such emerqency~
The proced,ures tor, and the equipment and facilities necessary
t.o accomplish 6 said emergency override soall promptly be
established by the City and the Company and, .hen 50 estab
lished 6 shall be set forth in Appendix H to this Restated
Agreement~ Sucb procedures 6 equipl:'Lent and facilities shall be
available to the other Joint P~ers.
4.6~05 The Company,. either alone or in
cooperatIon with the Community Access organization .... or any
other Person shall develop or acquire., and distribute Services
on the Subscriber System, to serve the community needs and
interests of t.he Service Area and to reflect the cultural.,
civic.. ed,ucationa1 6 and artistic resources of the service
Area ..
~.QN 5 --FEES AND -cRARC",,--1;:.~
5.1 No fee,. charge~ depositr or associated term or
condition shall be imposed by the Company or any Affiliated
Person for-any Service unless it is set forth in Appendix 1-1.,
1-2 .. or 1-) to this Restated Agreement as said Appendices m,ay
be, Cl.me~,e.d, .from ,:tim~ to, tilUe by the Company.. The .tees.;
~a:tqes~~':::,<t:epos.1tfJ/ a'rieI.' ,associated terms and conditions for ti~',;,ye.r;$~;t-,'Se::t.rl~~··»a6,f.c.ServlC'e. En~anced services., and other
seryi.c&;$','shall.,be discl,osed to the c~ty, not ~egulated, ex.:ept
.s ".sPG<::.l.titAl1y" proyid,~d "in section 5 .. 4 to this Restated
A~r~llt;:.; 't'be fees~ cbarges., deposits., and associated 'terms arid 'conditions for Basic ServIces shall be set forth in
Appendix 1-1 to this Restated Agreement: those for Enhanced
services shall be set forth in Appendix 1-2 to this Restated
Agreement; and ~hose for service Related Activities and all
other Services .. facilities. equipment, and other matters shall
be set forth in Appendix 1-] to thIs Restated Agreement. All
such fees. charges~ depo5its~ and associated terms and
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conditions shall be nondiscriminatory, provided that this
requirement sball not prevent: (i) the ose of sales promo
tions l other special discounts, ~aiver of charges l reduced
charges, or changes in associated 'terms and conditions to
identifiable classes of Subscribers, (iil the negotiation of
bulk rates, discounts, reduced charges, or changes in associ
ated terms and conditions for the provision of Services, and
(iii) the offerinq of specialized Services at negotiated
rates; provided that, the Company shall ensure that no
Residential Subscriber is charged any fee. charge, or deposit
in excess of those set forth in Appendix 1-1 1 1-2, or 1-) to
this Restated Agreement, as they may be amended trom time to
time by the Company. Provided further that discounts for Co
op member/subscribers and patronage refunds o~ distributions
shall not give rise to discrImination in rates.
5.~ Except as provided in Appendices I-l~ 1-2~ and
1-) to this Restated Agreement .. loihich may be amended from time
to time by the Company~ the company shall not impose any tee
or charge on any Residential Subscriber for: (1) any service
call to said Residential Subscriber's premises to perform any
repair or maintenance ~ork.. except any such work wbich vas
nec~ssitated by a negligent or wrongful act of said Subscrib
er: or (ii) the. disconnection of all Services to a Subsc!'.!~r~
provided that"the Company may impose appropriate charges if,
at the time of disconnection.. some or all of the Company 1 s
equipment is not returned to the company or the Subscriber has
not paid all outstanding fees and charges due to the Company ..
5.3 Within at least five {5} 'Working days prier-to
the effective date of any change in any rate 4 charge, deposit~
or associated term or condition set forth in Appendix 1-1, 1-
2~ or 1-3~ except as o,ther....-ise provided in said Appendix, the
Company shall: (i) submit a revised AWe:ndix to the City
Manaqer together with a description of the proposed change and
(ii) provide a written notice of such proposed change to each
affected Subscriber and other Person utilizing the affected
service ..
5 .. 4 The City and the Joint Po~ers intend to
regulate rates for cable service to t.he fullest enent
permitted by law. Notwithstanding anything in this Restatec
Agreement to the contrary .. in the event that the Cable Act is
amend~d or restrictions on the authority of the City and/or
the Joint Po~ers to regulate rates are otherwise removed or
lessened 4 the City and the Joint Powers each intend to and
may.,. at their discretion~ regulate rates to the fullest extent
of their regulatory authority under federal, state and local
laws.
SECTION 6 --qJNSTFUCTION AND TECrniICi\L REOOIREMENTS
6.1 Within fifteen (15) days after the effective
date of this Agreement, the Company shall begin to pursue
diligently the receipt of all necessary operating authoriza-
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tions and permits and, thereafter. shall diligently and
continuously construct the System throughout the Service Area
in an orderly manner-in accordar.;ce ....... ith the construction
standards, terms, and schedule, as provided in Appendix g to
this Restated Agre~ment, except as may be delayed by causes
described in Section 20.7 hereof~
6.2 All work involved in the constructio~, opera
tion, maintenance, repair. and removal of the System shall be
performed in a safe, thorough, ar.d vorkmanlike manner using
materials of good and durable quality with due regard for the
aesthetics of the Service Area. The Comp~ny may instal1 the
System using existing aerial facilities throughout the Service
Area.. except that the Company shall install the system in
underground facil ities in those areas of the Service Area
'Where all of the public utility facilities ace underground .. or
'Where an Underground Utility District has been established
pursuant to Chapter 12.16 of the Palo Alto Municipal Code or
any similar provision of the code of a jurisdiction wbich is
a member of the Joint POiorers and in accordance .... ith o,ther
applicable lalj{. If .. su:Osequent to constructic-n of any part of
the system,. all public utility facilities in an:z~ area are
placed underground ... t:he City may require the Company ... at the
Campany's own cost and expense,. to ~ove that portion of the
system located in said area(s) to the same or similar under
ground facilities on the satle tlasis as the City requires
public utilities to so move. The Company shall compensate the
City for the use of any poles.. ducts or condQits controlled
exclusively by the City's municipal utility for installation
of the company's cables on terns and condi tions and at rates
deterDined by the City Council ~hich shall be comparable to
the terms .. conditions ... and rates available or charged to the
Company by utility companies in toe remainder of the Service
Area. Such payments shall not be considered a part of or
chargeable against the compensation to be paid to the City by
the Company pursuant to Section 10.1 of this Restated Agree
ment.
6.3 If, at any time, it is determined by any
authority of competent jerisdiction that any part of the
System., including ... 'Without limitation, any means used to
distribute Signals over or within the System, is harmful to
the health or safety of any Person, then the Company shall .. at
its ~wn cost and expense I promptly correct all such condi
tions: provided that .. in the event the Company reasonably
determines that compliance with this Section 6.3 is not
economically feasible,. the Company may. by delivery of thirty
(30) days' prior written notice to the City .. terminate this
Franchise and .cease operation of the system. If the Company
terminates this Franchise as provided in this Section 6.3 ... the
Company shall comply 'With Section 17.5 .. 05 hereof.
6. C; To-the extent that constru.ction of the System
cannot be accomplished expeditioQsly. in accordance with a
schedule for COl"'.structicn as provided in .... ppendix B to this
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Restated Agreement, using existing public utility facilities,
the Company shall, on such conditions as the applicable permit
authorities may specify, -construct or install i ts O~ ~ross
:arms in appropriate areas on utility poles, or its own
conduits or other underground facilities for the construction
of the System, subject to Section 6.2 and 6.5 hereof.
6.S The Company shall have the sole responsibility
for diligently obtaining$ at its own costs and expense~ all
permits, licenses,. or other forms of approval or-authorization
necessary to construct, ~erate, maintain or repair the
system, or any part thereof, prior to commencement of any such
activity.. The city shall. upon the request of the -Company.
assist in securing said approvals or auth~rizations from the
City and the Joint POla'ers~ Approvals or authorizations issuea
by the City may contain such requirements as are necessary and
appropriate in the reasonable discreticn of the city~ Tbe
City and the Joint Po~ers covenant that they sbal1 cooperate
to expedite the processing of any and all permits or other
approvals required to construct, operate, and maintain the
System. The City shall allola' the Company to use available
space as reasonably determined by the city on poles and
conduits owned or controlled exclusively by the City on terms
and conditicns aVailable to other users under the City's
utility Rules and Regulations, ~hich shall be comparable to
terms and conditions available or charged to the company by
utility companies in the remainder of the service Area.
6 ~ 6 If the Company seeks to construct and maintain
its cables and other System facilities on or about public or"
private property, any easement for such use which has already
been grantees to a telephone or other utility company shall, to
the extent possible, be interpreted so as to grant the Company
the same rights and privileges as have been granted to the
telephone or other utility company. In such easements# the
words -telephone-or -telephone company, -·publ ic utility· and
the like# shall be interpreted to include the company, to the
extent possible. The rights and privileges extended to the
Company pursuant to this section 6.6 are granted by virtue of
and only in connection with tne Franchise granted pursuant to
this Restated Agreement~ Said rights and privileges shall
cea.se and terminate upon the termination of this Restated
Agreement, as provided in Section 2.3.0) of this Restated
Aqree.d1ent.
6.7 If the grades or lines of any streets within
the Service Area are changed at any time during the term of
this Franchise, then the Company shall~ at its ovn cost and
expense and upon the reasonable request of the city. promptly
protect# altar, or relocate the Systam, or any part thereof,
so as to conform with such new grades or lines, provi~ed that
tha City shall give the Company reasonable no,tice and a
reasonable period of time within 'ioI'hich to comply with the
Section 6.7~
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In the event that the CO<::lpany refuses or I"'.eqlects to
so p~otect. ~lter~ or relccate all or any part of the System,
the City shall have the right to break through., remove, alter.
or relocate all or any part of the System "lalithout any liabili
ty to the company and the Company shall promptly pay to the
City the costs incurred by such breaking through .. removal ..
alteration, or relocation a
6. B In connection 'With the construction .. operation.
maintenance., repair, or removal of the system~ the Company
shall l at its own cost and expense. protect any and all
existing structures belonging to the City. The Company shall
obtain the prior approval of the City before making any
alteration of any 'Water main,. se'",'erage or drainage system.,
electrical communications., fire alarm, traffic control loops.,
utility department coa>lial cable, electrical cable., .gas lines.,
or any other governmental structure in the Streets required
because of the installation or ~,a intenance of the System in
the Streets. Any such alteration shall be made by the
Company.. at its sole cost and expense, and in a manner
pr-escribed by the City.. Th9 'Company a.grees that it shall be
liable., at its own cost and expense, to replace or repair and
restore to serviceable condition, in su-ch manner as may be
reasonably speCified by the City, any Street,. gcvernment~l
structure. or private property that may become disturbed or
damaqed as a result of any ~ork in connection with the system
by or on behalf .of the company purSudnt to-this Restated
Agreement~ The construction of the System shall not endanger
Or'" inter:fere with any improvements the city may deem proper to
make, or interfere 'With the rights of any property o*~ers.
6.9 In connection with t.he construction, operation,.
maintenance ... repair .. or removal of the system, the Company
shall not obstruct the Streets, raih'ays, passenger travel, or
other traffic t.o, from" or vithin the Service Area without the
prior consent of the appropriate auth-oriti£.s, t,.·hich consent
shall not be unreasonably withheld or delaj'ed by the City or
the Joint Powers.
6.10 The Company shall,. at its o'",'n cost and expense ..
t.ake all reasonable steps to prevent accidents at its work
sites., including, but no·t limited to. the placing and mainte
nance of proper guards" fences, trencbes, barricades,. vatch
men., and suitable and sufficient e>.:cavation and lighting.
6.11 The Company shall, upon prior ....-ritten notice of
at least fifteen (15, vorking days from the City or any Person
holding a permit to move any structure,. temporarily move the
cables., vires, or other part of the system to permit the
moving of said structure. The Company may impose a charge on
any Person other than the city for any such movement.
6.12 'rbe Company shall. at its O\rffi cost and ell-pense.
protect. support,. temporarily disconnect, relccate in the same
street or other public place or g'overnnental property, or
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remove from the Street or other public place or governmental
property. any p,roperty of the CC!!1pany \then required by the
City Manager by reason of traffic conditions, public safety,
street vacation.l and street construction, change, or estab
lishment of Stre2t grade, installation of seW'ers, drains,
water pipes, power 1 ines, signal 1 ines, gas 1 ines. and tracks ..
o·r any other type of structures or improvements by public
aqencies~
6~ll Technical Reguire~ent~
6 .. 13.01 Throughout the term of this Fran
cbise. the Company shall operate and maintain the System in
accordance with the minimum technical performance standards
and testing requirements as provided in Appendix A to this
Agreement. The City Manager l!'.ay, from time to time., propose
modifications to said testing requirements. Such modifica
tions shall take effect upon the consent of the Company.
6 .. 13.02 The Company shall operate and
maintain the Syste.m so as r.ot to Interfere 'With the transmis
sion or-reception of {i} over-the-air broadcast signals :by
television receivers and (iiJ radio siqnals on tbe coaxial
cable owned and operated by the Utilities Department of the
City. The use of the frequency range between 144-148 MHz is
restricteo in the £ollo'Wing manner: (i) said frequency range
shall no~ be used if other frequency ranges are available for
com~rable use by the Company; and {iiJ said frequency range
shall not be used if its use shall interfere 'With ham radio
reception and transmission. The final ~ecision to use the
144-148 MHz frequency range lies solely with the Company.
6.13.03 The Company sball employ such
competent service and repair technicians as are necessary to
maintain the. System on a t~enty-four (24J hour a day, seven
{7} day a week basis in accordance with Secticn 11 hereof.
6.14 ~i.,neerinq Design and SYstem Ar-_chit:ecture
The company snaIl submit to the City Manager l for
review and accep;tance.,. an Engineering Design and System
Architecture for the System .. in accordance with the procedures
and schedule set forth in Appendix A to this Restated Agree
ment. said desiqn and architecture shall include. without
limitation. all information necessary to comply with all
applicable lalli'S. rules .. or reg·ulations. including, without:
limitation, all environmental review requirements. The
Company shall not: commence construction of the System 'Without
first Obtaining the written acceptance of the City Manager of
the Engineering Design and system Arcbitecture. Unless the
City Manager notifies the -company in writing 'Within thirty
(3·0) days of receipt of the Engineerinq Design and System
ArcbitectLlre that said plan is not approved.. and, within
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fifteen (15) days of such nDtification, provides the Company
with a statement of reasons for' such dis.approval, then said
plan shall be deemed to have been approved.
6.15 Interconnectton
6.15.01 The Company shall co!:',ply with all
System interconnection requirements set fort.h in this Flestat-e4
Agreement ..
6.15.02 All upstream Channels on the Institu
tional Cable and subscriber System ",-ill ce cap3ble of inter
connection to downstream Channels on the Ins~itutional Cable
and Subscriber System". at the headed or at the Palo Al to bub.
6.1~.03 _ The company shall, at the, reqU~st:O,f
tS:tY.c~~nifupt(,1'o'ent::f Thousand Dollars ($20,OOO) in the ~~l?_99at,e_> fo~' all, requirements imposed by this section "to
intercorihect the Institutional Cable 1Mith the Subscriber
system at the headed of the System or at the Palo Alto hub, as
provided in Appendices A and F to this Restated Agreement~
~~'tll_iir):~~a::")J_m,,~l':q(, the ,~xPenditure provided above, both the
Institutional Cable and the Subscriber System shall be fully
interconnected-#, by means of haro· ... 'dre or microwave, -with bo,th
the Institutional Cable and Subscriber syste~ of all adjacent
Broadband Communications Facil i ties "'",'ithin the County of San
Mateo and the County of Santa Clara ..,hich are own-ed or
operated by the company or any Affiliated Person (excluding
any Person affiliated with the co~pany solely by reascn of a
management or operating agreement). The Company shall also
cause the Institutional Cable to be interconnected to all
other similar cables within 8,roadband CommLlnications Facili
ties owned by the Co.:pany or by any Affil iated Person (exclud
ing any person affiliated .... ith the Co~pany solely by rea.son of
a management or operating agreement) .,hich are located .... ithin
the San Francisco standard Metropolitan Statistical Area
(-SMSAW) and the Santa Clara County SXSA. and shall exercise
rei3son_able: e_fforts within' the litlit of the $20,00.0-expenditure
proy_l9ed_ aboY~ to cause the Institutional Cable to be intercoru,ed:.'ec:f fo,o'all ot.her similar cables within other Broadband
Comnunications Facilities located 1Mithin the County of San
Mateo, the Santa Clara County SMSA, and the San Francisco
SMSA~ Nothing in this Section 6.15.03 s'b.all be interpreted to
require. the Company or an Affiliated Person to modify or alter
the facilities or equipment of other Bro;:,;dband Comrnunicaticns
Facilities owned by said Affiliated Person. Bo,th the Institu
tional Cable and Subscriber System 5h~ll be capable of being
interconnected with any compatible Broadband COITl.ILlunications
Facilities in the United states~ provided that, 'With respect
to such Facilities not owned by the Company or an Affiliated
Person, such capability may be limiced to receiving Signals
froll and transmitting Signals to su<:h o,ther Facilities. Bet:ft
t.he Iflst.lt.l::it;ieftal <-able af\!i the 5u-&s-e~r---5ystel!!: sfiall be
ftilly iA~e£ee1"lfleeteEi toe 5taflfsrd----UAi. ef"sit) '5 Bl"'eaEJba..M
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Ge_ltiftlea~ie"5 Faeilities eft nit-ten tef"IfIS allEl eefl:eli"tisfls
6.15 • .04 wi thin eight'2'en (18) months after the
effective date of this Restated Agreement" the Company shall
submit to the City Manager a plan describing, in detail .. how
it will meet U .. e interconnection r",-~uirements set forth in
this Restated Agreement.. At a minimum, said plan. sball
address the following matters:
override;
(1) Appropriate Signal distribution
methods (e .. g .. , cable .. fiber, micro
wave, satellite, or otherwise);
[Ii} Satellite uplink facilities;
{iii} Interconnection capacity (i.e.,
number of Channelsjbandwidth) for
each type of interconnection:
(iv) Xethod for achieving emergency
(v) Procedures/operatiooal
interconnection;
rules for
(vi) Rates" if any, for interconnection;
(viil Schedules for tests and implementa
tion of the interconnection plan;
and
(viii) Capacity for frequency translation.
6.16 Bonds
6 .. 16 .. 01 To guarantee the titlely construction
of the system# to ensure that construction of the infrastruc
ture. of the System and the operation of the System continue in
an orderly and u~interrupted manner in the event of a default
by the Company, and for t.he o,ther purposes specified in
Section S .. 16.0J hereof, the Company shall arrange for, and
shall maintain for the time periods provided in SectIon
6 .. 16 .. 02 hereof .. construction per-formance and payment bonds and
a Franchise performance bond solely for the protection of the
City. the Company, and specified claimants with corporate
surety and trust companies, reasonably acceptable to the city
Attorney. as provided in Sections 6 .. 16.02 through 6 .. 16 .. 05
hereof. For purposes of this section 6~16, the -infrastruc
t.ure (If the System" shall incllJde all plant and equipment
comprising the System, including speCifically, all headends,
hubs, trunk and feeder cables, and associated equipment and
supplies, but excluding all Subscriber connections and
equipment installed in Subscribers' premises.
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~ •. 15.02 {THERE IS 110 SECTION WITH' THIS
6.16.0) The construction performance bond and
franchise perfonnance bond shall indemni fy the city, up to the
full face a~ount of the bonds, for: {I} the cost to continue
constru'Cticn of the infrastructure of the system,. and to
:maintain operation of the System in that portion of the System
in Which construction has been coIr.pleted.r follo· ... lng a: termina
tion of this Franchise u'p to the date upon 'Which the face
amount of the bonds". plus all revenue actu~lly received
through the continued operation of the System during said
period, have been exhaosted; (ii) any loss or damage to any
municipal structure during the course of construction of the
system; (iii) any other costs, or loss or damage actually
incurred by the City as a result of the Company's failure to
faithfully perforn its obligation to construct the System
pursuant to this Franchise; and (iv) the removal of all or any
part of the System from the Streets provided, ho .... ever .. that
the city may not seek recourse against said bonds for any
costs or damages for .... 'hich the city has previously been
compensated through a withdrawal from the security FUnd. The
payment bond shall be available for payrr:.ent of claims to which
reference is made in Title 15 (commencing with 3082) of Part
IV of Division 3 of the California Civil Code.
Ei.Ui.04 Said constru'ction performance and
payment bonds and franchise bond shall be in a form approved
by the City Attorney ... 'irrhich approval shall not be unre.asonably
withheld.. on or before the effective oate of the Franchise
qranted herein.. At least sixty (60) ddj'S prior to commence
ment of constru-ction or thirty t)Oj days after Closing,
whiChever is latar¥ the company shall furnish said bonds to
the city Clerk.. Said construction pe.rformance and payment
bonds shall each contain substantially the following endorse
ment: -It is here by understood and agreed that this bond ~ay
not be cancelled by the surety nor the intention nat to renew
be stated by the surety until ninety (gO) days after comple
tion of construction of the System.-
6.16.~5 The faithful performance by and the
liability of the Company pursuant to this Restated Agreement
shall not be limited by the acceptance of the bonds required
by this section 6 .. 16 ..
SECTION 7 --IQ.TCHnlG
1.1 The City's right to modify provisions of this
Agreement under the circumstances provided in this section 7
shall be in addition to .. and not in lieu of, any other right
of the, Cit)' ..... as provided in this Agreement,. to modify or amend
this R~ate.~ Agreement ..
1.2 The Company may be granted additional, fran
chises for the construction, operation, and maintenance of the
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Broadband communications Facilities outside of the Service
Area and may renegotiate any of said franchises. Such other
agreements grantinq said franchises .. in their original or
reneqotiated form, may contain provisions imposing qreater
obliqations o,n "the Company than are imposed by the provisions
of this .esta"t.~~ Agreement. Consistent with t.his Section 7.
the compa'fiy a'gree,s _ that the Ci ty shall have the righ't to
modify this Re~_~a.te_CI Agreement one til time follow-il19 the
eighth (8th) year' of tbe initial term of the franchise so as
to impose upon the Company su'Ch greater obligations by
requirinq that the provisio<ns c.f this Re~s:tated Agreement be
matched to those contained in any of such 'o.ther agreements
(hereinafter referred to as the -agreement (s) to be matche~-).
'.3 The Company agrees to abide by a resolution,
duly adopted by the City Council,. following negotiation with
the Company" Which modifies the provisions of this R.es-,ta.t~
Agreement so as to match, as nearly as feasible and c-ons.lste'nt
with section 1.4 bereof, any of the provisions of the agree
mentes) to be matched by requiring any of the following:
til lo~er charges for Basic Services to
Residential subscribers~ if permit
ted by applicable la~;
(ii) greater numbe~s of cables or Chan
nels, or increased Channel capacity;
(iii) additional categories of Interact.ive
or other Enhanced Services, if per
mitted by applic~ble law;
(iv) greater discounts to the City;
(v) higher compensation payments to the
City tha_n those required pursuant to
this Restated Agreement, if permit
ted by applicable law; or
(vi) such other matters contained in the
agreements to be matched" as the
City Council deems appropriate.
1.4 The maximum e~tent to ~hich any provision of
this ~.;,taYt:~,',fAgreement may be ttatched pursuant to this
sectiOn '1 sball ... <1epend u'pon the degree of comparability
between this Fii$t.ate~ Agreement and the agreement (5) to be
matched .. taldnq 'into account factors that :may include ... ,,:w:it.hC)Ut
limitation: the leng:th of the remaining term of this Resta,'te()
Agreement; performance demonstrating the operatiOl'1al feasibl.l~
ity of the prOVisions to be matched; differences units l and
other factors affecting the economic feasibility of the items
to be zatched~ technological advances made after substantial
construction pursuant to this Restated Agreement and the
adaptability of such advances of the services to be matched;
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and Sl."'Ch other factors and considerations as shall be relev3nt
to an inquiry into the overall economic comparability of this
Agreement and the agreement to be matched. In connection with
the aforementioned negotiation ... the company shall have the
burden of demonstrating to the City Council ... if it so. be
lieves ... that th~ application of the foregoing factors does not
justify the matchirI<] sought to be imposed by the City council.
7.5 The Company shall be given a reasonable period
of time within which to adhere to any modification adopted
pursuant to Sections 7.2 tbr~~~ ?~4 h~reof.
7.6 The City and or any of the other Joint Po~ers
may qrant additional franchises, permits, licenses, or other
approvals for the constru~tionl operation~ and/or maintenance
of other Broadband Communications Facilities within the
Service Area. Such other franchises~ permits, licenses~ or
approvals 6 in their original or renegotiated fonn~ may contain
provisions imposing lesser obligations on the grantees ~han
are imposed by the provisions of this Restated Agreement on
the company or may confer greater or other more favorable
benefits on the grantees _than are provided to the company by
the provisions of this ~estated Agreement. Consistent with
the principles established"in section 7.4 bereof, the City and
the Joint Powers agree that the Company shall have the right
to seek modifications to this Restated Agreement to incorpo
rate such lesser cr-less oneroos obligatie·ns or such greater
or more favorable benefits as contained in such other fr-an
cbises~ permits~ licenses or approvals.
1.7 Follow-ing negot iat ion betlr.'een the parties to
modify the provisions of this Restated Agreement so as to
match .... as nearly as feasible a:xi consistent with section 7.8
hereof.... any of the provisions of such other or additional
franchises .... permits~ licenses .... or approvals, the city may
amend. this ~esta,t.'¢d_ Agree:rn.ent to provide for any of the following: --".'.' ,',
(1) Lower corr.pensation payments to the
City than those requires pursuant to
this Restated Agreement;
{ii) Lesser numbers of ca'!Jles or Channels
or less Channel capacity;
(iii) Less stringent constru~tion obliga
tions;
(iv) Less sophisticated or ·state-of-the
Art-facilities, services, or equip
ment; and
(v) Such other matters as may have a
significant economic impact upon the
company or as may materially affect
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the Company's ability to compete
with the holders of such franchises.
licenses, permits~ or approvals~
7.8 In the event the parties are unable to agree
upon an amendment to thIs Restated Agreement or modification
hereof to match such less onerous or lesser terms after a good
faith effort to do .SO~ the Company sball be entitled to
terminate this tlestated Agreement, which termination shall not.
be for cau.se.
SECTION 8 --EMPLO"QIENT
8.1 The Company shall not discriminate against any
individual in compensation~ hours of employment, or any other
term. conditie;.n or privilege of employment .. including, without
limitation~ promot.ion... upgrading, demotion~ downgradinq,
transfer,. lay-off. and termination ... on the basis of race ...
creed, color~ national origin, sex, age .. handicap., marital
status ... o·r veteran status" in accordance with applicable lav~
a ~2 The Company shall, at its own cost and expense,.
develop and maintain a plan for the recruitment, education,
training, and e~loyment of residents of the service area for
the opportunities to be created by the construction ... operation
and maintenance of the System. said recruitment activities
shall include provisions for the posting of employment and
training: opportunities at appropriate q'overnmental departments
or agencies responsible for encouraging employment within the
service Area.. Said plan s'hall be designed So as to ensure the
promotion of equal employment opportu-ni ty for all Persons
employed by. or seeking employment with., the Company. Within
ninety (90} days after the effective date of this Franchise.,
the Company shall submit said plan to the City Manager for
review and approval. Said plan shall be updated from time to
time as reasonably necessary,. or as the City Manager may
direct. The Company shall., throughout the term of this
Restated Aqreement~ exercise its best efforts to implement
said plan~ at its own cost and expense~ by ensurinq, to the
maximum. feasible ertent~ the recruitment, education .. traininq,
and employment of residents of the service Area. This Section
a ~ 2 sball not: b~ interpreted to impose an undue economic
burden on the company.
SECTION 9 --AQPITlONAL SUBSCRIBER RIGHTS
9.1 Privacy Protection
9.1~Ol The Company shall operate the System
in a manner that: (i) pro·tects against invasions of any
Person's pr!vacY6 and. (iil protects~ consistent with the
state-of-the-Art of Broadband C01nlllunicati.ons Facility technol-
0<JY6 the privacy of data services and data signals distribYted
over the System~ To the extent the user of such data services
requests special security for its use. the Company shall
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provide such security on terms and conditions mutually
agreeable betveen the company and the data user.
9.1. 02" At the time of entering into an
aqreement to provide any cable service or other se~ice to a
Subscriber and at least once a year thereafter, the Company
shall provide notice in the form of a separate, written
statement to su~h Subscriber~ ~hich clearly and conspicuously
informs the Subscriber of:
(i) The nature of personally identifi
able information ~ollected or to be
collected ~ith respect to the Sab
scriber and the nature of the use of
such information;
(Ii) The nature, frequency and purpose of
any disclosure~ which may be made of
such information, including an iden
ti fication of the types of persons
to whom the disclosure lDay be made;
(iiiJ The period during which such infor
mation .... rill be maintained by the
company;
(iv) The times and place at which the
subscriber m~y have access to such
information ~n accordan~e ~ith Sec
tion 9.1~DS bereof~
(v) The limitations provided by Section
9.1 hereof with respect to the col
lection and disclosure of informa
tion by the Company and the right of
the Subscriber under Sections 9 ~1. 07
and 9.1~OB to enforce su~h limita
tions or unfilled by the Company
~ithout reasonable cause, the city
Manager l!1ay order the Company to
comply ~ith su~h request.
For purposes of this Section 9.1~ the term ·person
ally identifiable information-does not include any record of
aggregate data which does not id€ntlfy particular persons .
. _ ,_" " _~b,'eC:t:, to:' 'ali aPPlicable laws, the Company Jlay ,comPlj
*l.t,q:,:',~e __ :~~,irellent&'"ol' this sectio~ 9rl.-D2 bX (1) providin<J ~~,:~'S:~ri~.r :with,: a ',s~ary wrItten not~ce of __ (al tb~
m"',~,~~U!'Y9f ouch information and (b) the tim:s and <::hahnel
1)~"""wber~,d'l,taUe<linfol"1llation w>ll be d>splaYed,oh,a fb~~f:'~-_,~e:': sYste.'~,' ,'(2') providing a detailed sta~em~rit.",of
a,11_:""_Ei~:_;,,',ln~~ntatlon in a character-generated or' ot.her F!!,~:$_OlIaj;)iy:):eq~J'le"'vri.tteo message dIsplayed continuously <>n
~,,,~~,~,!!,J-~Ii' the System, for a period of not less than t'W?, {2}
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fl!.'ki"~Je .. st once each year, and (3) providLnq .~d"ta~Ied ,,!i:Ii~~t I;>f ~11 sUchln.formation. in Vrittn<jtotl)Ot;e ~~::
!t"t~'f!/:.~eqU .. stiri9 .. ""!itter-cOj?l' of Snch lnfo~ti¥*
9.1~Ol Except as provided in this Section
9.1.03, the company shall not use the System to collect
personally identifiable information concerning any Subscriber
without the prior written or electro-nic conse.nt of the
Subscriber concerned~ The company may use the System to
collect such information in order to:
Ii) Obtain infoI1l1ation ;>ecessary to
render a cable serv~ce or other
service provided by the Company to
the Subscriber: or
(ii1 Detect unauthorized r~ception of
cable commu·nications ..
9.1.04 Except as provided in this Section
9.1..04" the Company shall not disclose personally identifiable
informatl~n concerning any Subscriber without the prior
writ.ten or electronic consent of the Subscriber concerned.
The Company may disclose such information if the disclosure
is:
I i) Necessary to render or conduct a
legitimate business activity related
to a cable service or other service
provided 'by the -Company to the SuI::l
scriber;
(ii) Su·bject to Section 9 .. 1. 07 hereof.
made pursuant to a court order au
thorizing such disclosure.. if the
Subscriber is no,tified of such -order
by the person to vhom the order is
directed; or
(iii} A disclosure of the names and ad
dresses of Subscribers to any cable
service or other service, if
{A) the Company has provided
the SUDscriber the opportunity to
prohlbit or 1 imit such disclosure ..
and
(8] the disclosure does not:
reveal.. directly or indirectly (1)
the extent of any viewing or other
use by the Subscriber of a cable
service or other service provided by
the Company" or (2) the nature of
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any transaction made by the Subscri
ber over the system.
9.1. OS A Subscriber shall be provided access
to all personally identi fiable inforIl1ation regarding that
Subscriber wbich is collected and maintained by the Company.
Such information shall be made available to the SUbscriber at
reasonable times and at a c~nvenient place designated by the
Company. A SUbscriber shall be provided reasonable opportuni
ty to correct any error in such i~formation.
9.1.06 The Company shall destr.,?y personally
identif'iable infonnat1on if the inforroation 1.S no longer
necessary .for the purpose for ... ·hieh it ___ 'as collected and there
are no pending requests or orders for access to su~h informa
tion under section 9 .. 1.05 he.reof or pursuant to a court order ..
9.1 .. 07 Subject to all relevant lar..rs .. the
City may obtain personally identifiable information concerning
a Subscriber pursuant to a court order only if~ in the court
proceeding relevant to such court order:
(i) the ci ty offers clear and convincinq
evidence that the subject of the
information is reasonably suspected
of engaging in criminal activity and
that the information sought -would be
material evidence in the case; and
(tiJ the subject of the information is
afforded the oppertuni ty to appear
and contest the City's claim.
9.1.0.8 At s\Jcn time as the City reasonably
determines that~because of amendments to the Cable Act, the
city should talce aMi tional steps to ensure that privacy
prOVisions of this Section 9 .... i11 be complied .,ith, the City
may require that not later than three (3J months tollowinq
said determination by the city. the Company shall submit to
the City Man:ager. for approval.l a plan describing how the
Company shall operate the System to protect against invasions
of any Person's priva-cy. ....hieh plan shall address, at a
minimum, each of the matters covered by Sections 9.1.02
through 9.1.01 hereof.. Said plan shall be deemed to be
approved, if the city Manager does not disapprove of said plan
within thirty (JO) days after the City Manager has received
said plan. Said plan may not he ~odified without the prior
approval of the City Manager, ... 'hlch approval shall not be
unreasonably ~ithheld.
9.1.09 If the Company has failed to comply
.. ith the foregoill9 provisions of this Section 9.1 .... ith respect
to any Subsc~iber, the city Manager may order the Company to,
and the Company agrees that it shall: {i} pay to the City as
a civil penalty an amount equal to the value of the financial
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benefit, if any. received by the Comp3ny or any Affiliated
Person in connection wi th a vi 11ful violation of the foregoing
provisions of this SectiQn 9,1. and (iil demonstrate to the
satisfaction of the city Manager, that the company has taKen
or will take a·ctions to prevent any further violations.. This
remedy shall not affect any remedy available under the
provisions of Section 17.3.03 hereof, or any remedy available
to said SU·bscriber for an invasicn of his privacy by the
COlllpany.. The City and the Company agree that the amount
payable under (i) above represents a fair-and reasonable
estimate of the damages 'Which toe city mig·ht suffer from such
failure. and further agree that the actual damages which the
City might suffer in such event are incapable of ascertairunent
or reliable estimate at this time.
9.1.10 The rights and duties set out. in this
section 9.1 are in addi tio'n to other rights, duties .. remedies ...
and protections that may be provided by law.
9.2 Interruption of Servi~~
9.2.01 The Company sball at all times
maint.ain all parts of th6 system in good conditIon and repair
throughout the term of this P.estated Agreement so as to
provide Services to all Sul:scribers on an uninterrupted basis ..
except as provided in this Section 9.~.
9.2.02 The Company sball promp,tly DOt.ify the
City Manager 0.( any significant interruption in the operation
of the System. For the purpose of this Section ... a ·signifi
cant interrupt.ion in the operation of the System-sb~ll mean
any interruption of a duration of at least four (4).~rs to
at least five (5} percent of the Subscribers.. The" " .... ~~~pany
shall at all times keep an outage 109 in ~hich all o_>~~~
shall be regularly logged. The city shall have access to such
109 upon reasonable notice and at reasonable times ..
9.2.0J 'I'he Company shall exercise its best
e.fforts to limit any interruption of Service for the purpose
of Il.aintaininq .. repairing, or upgrading the System to periods
of uinimum use~ Except in an emergency necessitating a more
expedited procedure, the Company may sched'ule an interruption
of service for a period of more than four (4J hours during any
twenty-four (24) hour period only after the City Manaqer and
each affected Subscriber bas received forty-eight {48} hours
prior notice of the proposed interrupti~n.
9.2.04 In the event that Service to any
Subscriber is interrupted.. for any reason.. for forty-eight.
CUI) consecutive hours .. and provided the Company is given
reasonable notice of such interrup.tion within two {2} working
days thereafter .. the company shall promptly provide to each
affected Subscriber a credit equal to one-fifteenth (ljl5th)
of the Subscriber's next due monthly bill after such no,tiee
and the equivalent of ~nc-thirtieth {lJ30th) of said Subseri-
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ber's ne~t due monthly bill for each additional consecutive
tyenty-four {24) hours or part thereof of service interrup
tion. The fol1o~ing shall not be an interruption within the
meaning of this Section 9.2.04: (i) the termination or
interruption of any service by the supplier of said service:
(ii) a failure of any equipment at the Subscriber's premises
~hich is not installed or otherJise furnished by the company
or any Affiliated Person: (iii) interruptions caused by third
party vandalism; or (Iv) an interruption due to. circumstances
beyond reasonable control of the Company. In the event that
restoration of the interrupted Service requires access by the
Company to a subscriber's premises, then the Company shall no·t
be required to provide the credit called for in this provision
vith respect to any period of interruption follo~ing a denial
by said Subscriber of access to said Subscriber·s premises,
between the hours of 9:00 a.m. and 7:00 p.m., for the purpose
of restoring said Service.
9.2.05-For purposes of computing the
d,uration of an interruption of Service., said perIod shall
begin ~hen the company receives a notice from a Subscriber
that any cable Service(s) has (have) been interrupted or ~ben
the company has actual notice of said interruption, ~nicnever
is ~arlier. and shall cease ~be~ said Service(s) has (have)
been restored to said subscriber.
9.1 Complaints
9.3.01 Within twelve (12J months after the
effective date of this Restated Agreerr.ent .. the :company shall
submit to the City Manager for bis approval., .hich approval
sball not be unreasonably withheld r a copy of its subscriber
complaint procedures, whi;;:h procedures shall be consistent
with all applicahle laws and the provisions of this Section
9.1. The Company shall submit to the City Manger any modifi
cation to said complaint procedures not less than thirty (30)
days prior to the effective date thereof. A copy of such
complaint procedures and modifications thereto shall be
provided to each Subscriber before provision of any Service,
and on an annual basis thereafter. Su-ch procedures shall
include, without limitaticn .. the address and telephone number
of the Company's office to which complaints may be reported.
9.).02 Each Subscriber complaint reqarding
the System or the Services distributed over the System shall
be responded to by the company as soon as reaso.nably possible"
but in no event later than forty-eight (48) hours after the
date or receipt of said co~plaint by the Company unless the
company can demonstrate.. to the sat isfaction of the city
Xanager, that response to said complaint within said period is
not reasonably possible. The Company shall be staffed to
respond to all Subscriber requests for Service in accordance
with Section 11 bereof.
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9.3.03 The Company shall maintain, at its
office in the Service Area~ accurate and complete records of
all Subscriber complaints, including both lorritten and oral
complaints rece.ived during the prior two (2) years, and the
action taken by the Ccmpany in response to each complaint.
9.3.04 Upon request of the city Manager ... the
Company shall, within ten {lO) business days after receipt of
said request, provide a vritten report to the City Manager
with respect to any complaint. The report to the City Manager
shall provide an explanation in reasonable detail of the
investigation, findings, and corrective steps taken by the
Company in response to the complaint, together with a state
ment of whether the Subscriber was satisfied with the correc
t1ve steps taken by the Company~
9.3.05 In the event that a Subscriber's
complaint has not been resolved to the satisfaction of said
Subscriber 'Within a reasonable time after receipt of said
complaint by the Company, the city Manager may take appropri
ate actIon to resolve the controversy between the Company and
said Subscriber.
9.3.06 In any case in which a request for
any Service by any Person consistent wi~Jh section 3.2 hereof
has been ignored or unfilled by the company without reasonable
cause~ the City Manager may ~rder the Company to comply with
such request.
9".4. piscontinuation of Servj . .ce
If a SUbscriber fails to pay any proper fee. or
charge for any service" the Company may discontinue said
Service, provided that the Subscriber has been given no less
than ten (10) days' prior# written notice of the intent to
discontinue and such notice was given not less than fifteen
(l5} days after the due date of said fee or charge. If the
Company receives payment of all outstanding fees and cbarges#
including any late Charges, prior to the expiration of the
tenth (10th) day after receip·t of said notice from the
Company, then the Company shall not discontinue said Service.
After any service has been discontinued" upon request of the
Subscriber a.ocompanied by paym.ent in full of all fees or
Charges due the Company and the payment of an appropriate
reconnect ion charqe~ if any, the Company shall promptly
reinstate said service; provided that the Company may insti
tute proced·ures for permanent disconnection of any Services to
any Subscriber who repeatedly fails to pay amounts due to the
Company.. The Company shall submit such procedures to the City
and to each Subscriber.
9.5 Nopinterference
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The Company shall not interfere .-ith the ability of
any S~bscriber to utili~e his or her television receiver for
any lawful purpose.
9.6 Information to~ub5cribers
9.6.01
ly to each Sub~criber,
er~ in writing. of:
Before providing any Service initi3:1-
the Company shall advise sa id Subscr-ib-
(i) the availability of the
trol device required
4.6.03 hereof;
Signal con
by Section
(ii) the fees~ charges, deposits, and
associated terms aM conditions
'Which apply to all Services then
being distt ibute-d over-the System
which the Subscriber may-elect to
receive;
(iii) the procedures " .. hich the Company
follo""s in order to change any fees ..
charges, deposits, or associated
terms and conditions;
(iv} the Company's procedures for pro
tectIng against invasions of priva
cy;
{v) the Company~s procedures for the
receipt and resolution of Subscriber
complaints~
(viJ the address and phone number of the
company"s office in the service Area
to .hich complaints :may be reported;
(vii) the cor:tpany~s procedures tor advis
inq Subscribers that particular
Services may inclade potentially
objectionable programninq. and
(viii) other appropriate operational in for
maticn.
9.6.02 In the event of a~y material change
in any of the items listed in Section 9.6.01 hereof .. the
Company shall promp,tly no,tify each affected Subscriber of sai,d
~hanq,e , ___ 1_':'1 writiIl9: by",(l) providinq each Subscriber with ,'a
!~,9l",Vr.1tt~n notic_e _~f (a) the availability of info-rmati_O:n
~.}'(:~~_~',.l,l¢,h _ma!~n:ial change and (b) the times and channel ~rs, "1IIhfl;r:e detal~~ information concerning such material ~~~nge'~ will-!:'~,~:_di~played en a channel on the System, (2)
p,-t~vldlt19-a ~etal~~ statement of su<:h material cbange in a
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tharacter-generate4 or ~ther reasonably le9ibl~ Wr~tt.~
:iae55aqe displayed <:ont.ir'IUously on a: channel on the System,_(or
a_j_r,l,_~",_Of llQt ,less-than two (2) ... eeks at. least ()ilce_, __ eac:h year~ .P<i, .:(lJ Pl"Ovidinq a aetailed statement of such -~~t8:'ial
~~ngf(:',1n :,~itlnq",~o ~thClse subscribers requestinq a vritt4'!n ~Y of, ,'s,ucb, informat10n. For purposes of this section g~ 6"
tile designatio!"i' of ·potentially objectionable-programming
shall approximate in the opinion of the Company the designa
tion, by the Motion Picture Association of America,. of a
commercial motion picture belding a -Rest..ricted-or hig·her
rating. The notice required by Section 9.6.01(v) hereof
regarding Subscriber complaint procedures 6hall be provided to
e_ach_ ~ubscrib_e_:r: 011_ not less than an annual basis .. and it ,_ma,Y
~",J)r~y{~ed',~~ ~e~tibed in this section 9~6~ -.,. ,
9~ 6~ 03 The notice r-equired by section g .. 6~(ll
and 9.6.02 hereof: s.hall be de\Tel~ed by the Company in
cooperation with the City Manager ..
10. 1 Compe n s~J.J on
to .1. 01 As compensation for the franchise
granted pursuant to this Agreement .. the Co~pa~y shall pay to
the City an a-moont equal to five percent (5\) -of ann'ual Gross
Reven,ue d-urinq each year of the term of the Franchise ..
10.1.02 i'-he 89 __ f3t3tfl)l ~all stllrftlit 'tG---£-he-n-Gf..t:.y
• K<t!<"""",a .. ~ .. e", .... ,~·".-",,,,el'''''Br.:t .. is Saefl: feEm aFlEi eeRtai~ sl:1:eh aet:ail as
"lie €itS KaftalJel!' saall FeEfl:l:ire~t. la1;:e!' 't.-haR 1;ttiE""t:y (39J
dass aftseF '=fte last: daj et-----eaeh-E),lB:f't-e!' ~ht'e~~hast. 'the t.e~
~be P~afle"hise.. sett-iFtIlJ i"apt-h 'tile GFess Revefll:1:e ,fef', t-A,~
p'~,~,~_elii81J :~:h:t'e~,_,_,(1), }RSBth, ~ef'ie,8. Tbe Company shall ,subllt~t:,t;6
t.be,~,Cl_q-,',)f~ge,~, a; ,repOrt, in su.ch fOrll and conta,inil19, Stl~ d~f~_a ... ~:::~s,,:,#~ ¢~~y ~ager shall requIre, not later t.han_"~_i,,rtY (~Ol:days att~l.-'the lao;t day of each quarter througl>Out the t"en._ of-,t.h'e,:_~15e" setting forth the Gross Revenue" fO-r_ ~~ s;!:E!eed!nlr:t:Iir~e(31 month period, Said report shall be
aCCO"mpaTi'ie<i 'by the Company's franch i se cornpensa t ion pay:men-t to
the City in the amount equal to five percent (5\) of Gross
Revenue for the preceding three f3) month period determined
talting into account a reasonable adjustment for bad debts. At
the end of each fiscal year of the Company .. the Gross Revenue
shall be reconciled on the basis of actual bad debts for the
preceding four (4) fiscal quarters.
10 .. 1 .. 0) 'l'he company expressly agree.s that:
(i) the compensaticn payments to be made pursuant to this
Section 10.1 shall not be deemed to be in the nature ot a tax;
(ii) said compensation payments shall be in addition to any
and all taxes or other fees or cbarges ~hich the Ccmpany or
any Aff~liated person shall be required to pay to the city,
the Joint Powers I or to any State or federal agency or
authority .. as ~equired herein by law .. all of ~bich shall be
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separate and distinct obligations of the Company and its
Affiliated Persons; {iii} neit!1er the Company nor any Affili
ate<! Person shall have or :make any clain! for any dedu-ction or
other credit or all or any part of the a.rr.ount of said compen
sation payments from or against a:1Y of said city taxes or
other fees or charges ....-hich the company or any Affiliated
Persc.n is required to pay to the City. except as agreed herein
or required by laW'; (iv) neither the company nor any Affiliat
ed Person shall apply nor seek to apply all or a~y part of the
amount of said compensation payments as a dedu~tion or other
credit from or against any of said city taxes or other fees or
charges, each of 'Which shall be deemed to be separate and
distinct obligations of the Company and Affiliated Persons;
afi6 (v) neither the Company nor any Affiliated Person shall
apply or seek to apply all or any part of the amcunt of any
said taxes or other fees or charges as a ded~ction or other
credit from or against any of said co't1pensation obligations ..
each of 'Which shall be deemed to be separate and distinct
obliq_ations o~ th,e, ,Company and Affiliated Persons~ and (vi)
heither ,the"_Company no,l'" any Affiliated PerscD, shall claim that
!Su9n_cc~nDpe~atiq.n: is :~liscriminatory vis a vis other francbis~
b91~p~,"or:" the,,,~ity provided that the rate of compensation i,s
~~"_,,,~~me,:',f'~r,,'.~_ll ,~ble>_ television service providers4 "
104L04. Nothing contained in this Section
10~1. or else-wbere in this Restated Agree~ent shall prevent the
Company or any Affiliated Person fro~ treating the compensa
tion and othe~ payments that it,. theYr or either of them .. may
pay pursuant to this Restated Agreement as an ordinary expense
of doing business and,. accordingly,. from deducting said
payments froll gross income in any City. state .. or fed-eral
income tax return.
104 LOS Consistent '"ith section 622 (h) of t.he
Cable Act .. the City intends to impose a fee ~qual to 5% of the
Gross Revenue of any Person that distributes an.y Service over
the System~ If the Company collects r€T,,"enu€s for sa id Per-son,.
then the Company shall collect said 5% fee on the Gross
Revenue of said Person actually collected by the Company and
shall pay saie! .fee to the City along -with the company's
payments pursuant to Section lQ.l~02 of this Restated Agree
ment. If the Company does not collect the revenues .for a
Person that distributes any Service over the System, then the
company shall notify said Person of this 5\ fee requirement
and shall notify the City of said use of the System. Nothing
in this section lO~1.05 shall require the Company to monitor
payment of a tee to the city by any Person or ensure the
accuracy of any information provided to the Company by any
Person. Nothing in this Section 10. LOS shall require the CAO
or any educational institution, acting in its capacity as
such, for public, ed,ucation.al .. or charitable purposes, to pay
a fee to the city for the distribut ion of any Servi<:e over the
system .. provided that the CAO or any educational institution
shall be oeligated to pay a fee to the City as described in
this Section 10.1.05 if the CAO or educational institution:
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[i) imposes a per-program or per-Channel charqe for ) Service
distributed over the system, or {iiJ distributes a Service
over the System for commercial purposes.
1()42" otber Pawen:t_§
10.2.01 The Company shall payor provide to
the CitYr and such other Person(sJ as ~ay be specified by the
city. all of the items of value set forth In this Section 10.2
and in Appendices E and F to tbis Restated Agreement.
10.2.02 The Company shall pay the City Seven
HUndred and Fifty Thousand Dollars ($75,0 .. 0,0'0) representing the
Company's contribution tOlJard the actual and "reaso-nable cos~s
i!lCU.rre~ __ up to and inclooing the awa~d, '·Qf.-:>t~e' :_:?,t'.i91nal
ff~~,;.~~' which costs have been billed "t~ the' city by it's
cable consultants and attorneys, and are ~ncidental to the
awarding or enfo~cinq of the franchise~ as certified by the
city Manager according to the follow-inq schedule:
(iJ One Hundred Thousand Dollars
{S10:0 .. 00'0)., .... hich "'as paid u'pot]..
Closing of the original Franchise:
and
(ii) One Hundred Fifty Thousand Dollars
($15,0-, O,O-oJ r "'hich was paid upon
closing of the Company's initial
financing as described in tbe origi
nal financing plan; and
{iii) Eighty~Nine Th<:>usand .. TIo!<>.··~red
Eighty-Six POll'z:. {$89,Z85) as the
amounts due on the orig'inal fran
chise up to the closing -of this
Restated Agreement and thereafter
due in, 30 e~al ,fll.:l<l~terly_ payment_s
of Thirteen' "ThoUS-tUld S_il(: J:Iundred
Ninety_ [):)llar'~',':',t $~_3~~9<»,:,'e_a'~" co-m~
mencing Oc:tooer' 1" 1'9~90. '"
Payment required by the Company pursuant to
this Section 10.2.02 shall be within the exclusions tG the
term -franchise fee-provided by Section 622(g) (2J(0) of the
Cable Act and shall not be deemed to be part of the compensa
t.ion to be paid by the Company to the City pursuant to Section
10.1 hereof.
10.2.0) The Company shall provide channel
capacity, facilities and equipment as its contribution to the
use of the Access Channels~ the Government Channels' and the
Institutional Cable as specified in Appendices E, F and G to
this Restated Agreement.
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The facilities and equipment provided by the Company
pursuant to this section 10.2.03 shall be .,ithin the exclusion
to the term -franchise fee-provided by section 622(9) (2) (e)
of the Cable Act and shall not be deer.'Lca to be part of the
compensation to be paid b:t the corr.pany to the City pu!'"sual1t to
Section 10.1 hereof~
10.2.04 The Company shall pay to tbe City an
amount equal to the ordinary and reasonable costs which the
city may incur in connection ",,"ith any rene'oIrI'al or rene9'O,tiatio-n
of this Restated Agreement,. and any amendnent of this Restated
Agreement required hy law or initiated by the Company" or any
other modification of this Restated Agree::1ent initiated by the
Company" at such ti.me and in such l!1anr:er as the Company aIld
the _C~ty ,_Mano;t,SE!,r __ shall mutually determine, 1"hich costs _ shall
~'::::~*~':,(.t:,:~l,~Q~tiO~, ~ltiplled by a CPI adjustment factq~ __ a~ c:J:~~_~_6'ed:,,_,~.J~ i!l the a,9gregate during the initial t~rm' O:f
~b~:,,,,P,i~?1,!.~_~_{' said paYnient by the Company shall be within
the exclusion of the term -franchise fee-provided by Section
622{q)(2}{O) of the Cable Act and shall not be deemed to be
part of the compensation to be paid by the Company to the city
PU_I"~_uan~_ ~o_, Sec1:i?n 10.1 hereof. 'The CPI adjustment, fact_o-r
(3:~l:rl_~_~:_:apQYI!i!,shall be -calculated as foIlo.-s: The base, for ~Qm'p~t~'",~li'e ;_~djustment is the ConSUl::er Price Index: for All
tT~~n_"::<::_~_~time!~_,:,{,Qase, year 1967 = 10'0) for san, Francisoo~
?:a:~aJ)d': ___ P'U.1>l~shed,,,by __ the United states Department of Labo,r~
sur_~~/:'~_f,!'~ ~'1:)9:r-':, st~tistics ~. Index·) "which is in eff,ect ,in
::r,,~!!~,:y.~J.n9l(.Beginning Index' J. The Index published most
i·s •• diat;:el_Y:~ I?r~ed:Jnq the til'je -when the CO!l1pany is asked to
m_~:~ii':::' ~n*,:'(~~nt .. " ~o 't;he City fer sl1ch costs (-Extension
~_nq,~o~.·,_,::/.+,~';:L~9; _b,~i_;_',~s~ in determining the amount of, the
~,9jys~nt,:,,~i,~ ___ l:'~,spect __ to: payment of any particular costs ill
~rUi~,~,'!?fr __ :_:,;'~~_tl1 .. ;,:,~e.:..-<~rovislons of t.his Section. 'I.f ~e
Eltt:en_s;_,+,Oil':Jilde_x,h~s_,~ncreased or decreased over the Beq.lnnlllg
:i~~,lt~ ;,:it;he,;:'¢pl,:,-~d$ustment factor applicable to ea~b such
pa._~~,nt':<shall,~ 'be:,,: a;",'fraction, the nur.erator of Which is the
~t,ens~9ri :I_~_eJc and _the denominator of ""hich is the B~innln9
I,ride:l(o, _: It:,.t.he _"Irld,ex, is changed so that the base year differs Iro1l1,i:~'tl:l<l,~", 'in,,,' i~,tfec,t (or the year preceding any adjustment.,
date)" _the":'_Ind_ex ':",sh.:all be converted in accordance with t.he ~V:~t&,~_~~::f'~?~C~"pu;bl.isbed by the United States De~rtment o_f ;aI:>qr .. ,':,'Bu:te:~'tf of ',:tKU>or Statistics. If the Index: is discontlnP~,;~~J:"':r,eVJ,~~'-,~lir~ng' ~he .initial term of the Franchise,' ,suC~ ot.her_:::,!;~:ve,_~f!,nt,,:,inde)C or computation with .. hich it, is;
~~,~J~.o_eq,,;"~b~),,~,,!_'l:>.a;: .~'sed :in or~er t~ obtain substantially the
~~~, l:"e~'!J.1.~:_":_,,~: ~ld be obt2nnea 1 f the Index-had not been
~l ~,9.:<?'Q~Jp~eq; ,~r re:.,i 5 ed ..
10.2.05 The Company shall pay to the City the
amounts set forth in section 17.2.01 hereof. Said payment by
the Company shall be within the exclusion to the term -fran
chise fee-provided by Section 622(g) (2) CD) of the Cable Act
and shall not be deemed to be part of the compensation to be
paid by the Company to the City pursuant to Section 10.1
hereOf.
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10).1.06 The Company shall pay!'en!'~@,s4nd
!>olln. (~l(l.OOO)t<> City "pen the second Closill9.t<>,,~e;:,I::ll!'
¢itY '$, .,,_~l::nl$t.catlve expenses inv:olve~ in th_e_negotiat-:!~_ot
'rh1s Jleeta !'sd ,A~re ement .
10.3 All contributie:ns .. Services .. ~o:p.!ip-::ent ... channel
capacity, facilities" support .. resources .. and other things of
value to be paid.. supplied .. or voluntarily provided by the
Company pursuant to this Restated Agreement .. including Section
lO~2 hereof and any Appendix to this Restated Agreement. are
for the ber.efit of all Subscribers and the public.. Said
contributions" Services.. equipment, facilit1es, support ...
resources" and other things of value are not within the
meaning of the term -franchise fee-as defined by Section
622(q}(l) of the cable Act and are ~ithin one or more exclu
sions to the term -franchise fee-p,rovided by Section
622 (g) (2) (A.) -{D) of the Cable Act~ said contributions I
services l equipment l facilities l supportl resources, and other
things or value snal1 not be deemed to be: (i)
-payments-in-kind-or involuntary pa:y1r.ents chargeable against
the compensation to be paid to the City by the Company
pursuant to Section 10.1 hereof, .or (ii,) part of the compensa
tion to be paid to the City by the Company pursuant to Section
10.1 hereof l except as expressly provided herein.
10.4 All payments by the Company to the City
pursuant to this Restated Agreement shall be made payable to
the City and deposited ~ith the Director of Finance.
10.5 In the event that any payment re~ired hy this
Restate~ Agreement is not actually received by the City on or
before the applicable date fixed in this Restated Agreement
then a late charge shall accrue thereon from the end of the
cure period for such payment, as set forth in this Restated
Agreement at a rate equal to t~o {2} percentage points above
the then-prevailing reference rate of interest charged by the
Bank of America in San Francisco for commercial loans l
compounded quarterly. The City and the company agree that
this charge represents a fair and reasonable estimate of the
damages wich the City might suffer from such failure and
further agree that the actual damages which the city Bight
suffer in such event are incapable of ascertainment or
reliable esttmate at tbis time. Any payments to the City
pursuant to this Section 10.5 shall not be chargeable against
the compensation to be paid t~ the City pursuant to Section
10.1 hereof and shall be within the exclusion to the tern
-franchise fee-for requirements incidental to the enforcing
of t.he Franchise pursuant to Section 6212 {q} (2) (D) of the
Cable Act.
10.6 In tile event that the Co,mpany continues to
operate all or any part of the System after the term of this
Restated Agreement, then the Company shall continue to comply
with all applicable proviSions of this Restated Agreemantl
includinq, without limitation l all compensation and other
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payment provlslons of this Section lOt throughout the period
of such continued operation, provided that any such continued
operation shall in no ~ay be c~nstrued as a rene~al or other
extension ot this Restated Agreement or the Franchise granted
pursuant to this Restated Agreement.
:f6:~7 ,~.iring the period cOrI'..rnencing October 1# 1990-
~t,i;:,,'oec:ember l#, 1~9Q., unless extended to a later date by
~~h_$_::~~_' Zriutu_i!11, agr,eement, the Cot'lpany and the City a9'ree _t~
nS99tr,~te> In gOod -"faith _to adopt policies~ procedures, and
ue~!:tts' ,:','t:,o_' ,this_' Restated Agreement,. as necessary" to ~eY~~oP::~',:i~aru;:ln9 prc:»gram for underground vaul ts cons.iste,nt
y,ltb:~::,~b_~:~-qUt,~~119:7$_ adopted by the Council on February:,~,~,
1~1!_'~' " --'. '"
SECTION 11 --OVERS_ICi"fl'n AND REGUt..a~TION
11.1 The city Council shall have the rig-bt to
oversee, requlate~ and periodically inspect the ccnstruction~
operation.. and maintenance of the System. and all parts
thereof~ in accordance ~ith the prOVIsions of this Restated
Agreement ..
11.2 The City Council may~ from time to time, adopt
or issue such reas~nable rules, r~gulations, orders, or other
directives qoverning the Ccmpany or the System as it shall
fir~ necessary or appropriate in the e~ercise of its police
power, provided that such rules~ regulations, orders, or other
directives are not materially in conflict ~ith the provisi~ns
of or privileges granted in this Restated Agrtement. The City
Manager ~ay, from time to time~ issue such orders qoverning
the Company or the System as he shall find reasonably neces
sary or appropriate pursuant to and in furtherance of the
purposes of this Restated Agreement~ The Company agrees to
comply 'With all such rules .. regulations or ceders la.fully
binding upon the Company, or cthe~ directives issued pursuant
to t.his f(estated: Agreement. No such rule, regulation .. order,
or other directive issued pursuant to this Section 11.2 shall
constitut.e an amendment to this Restated Agreement~
11. 3-~iodic EValuat.ion nand. J;!._~_~J::n-tngs
ll.3.~1 Annually. not later than si~ty (6Q}
days after each anniversary of this Restated Agreeroent, the
company shall submit to the city Manaqe~ a written report, in
reasonable detail, covering the significant events related to
the CompanY'e performance or ncn-perforIt'ance of the terms and
conditions of this Restated Agreement dl.lri ng the previous
year .. Such reports may, for example~ ccver significant events
related to the following:
{i) compliance -with,. and any modifica
tion necessary with respect to~ ~he
financial plan required by Section
2~5.0B bereof;
so
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(ii) compliance with the re~~irements
regarding System characteristics and
technical performance and testinq
requirements .. as provided in Appen
dix A to this Restated Agreement;
(iii) compliance vith the construction
terms" standards,. and schedule.. as
provided in Appendix a to this Re
stated Agreement:
{iv) a description of the changes made or
contemplated to the mix8 level and
quality of programming in the broad
categories of video programming or
other services on the System as
provided in Appendices C and D to
tnis Agreement; in accordance with
Section 3 ~ 10 of this Restated Agree
ment, nothing in this paragraph (iv)
shall imply any regulatory authority
or po'Wer of censorship over the
content of programming' on t'!;.e Compa
ny Channels or the Leased Channels;
(v) the status of the State-of-the-Art
of 8roadband Communication Facility
technology, the Company's activities
to enhance or advance said technolo
gy in connection with the System,
and __ the Company's compl lance with
its ·Continuing: Obligation,· as
provided in Section 3~~ hereof;
(vi) a description of the facilities and
equipment provided to the CAO by the
CornpanYF as provided in Section 4.3
hereof and Appendix E to this Re
stated Agree-ment;
(vii) tbe status of development and use of
the Institutional Cable, as provided
in Section 4.5 nereof and Appendix F
to this Restated Agreement;
(viii) COOlpliance with, and any modifica
tion necessary with respect to, the
Company's plan for ensurinq maximum
practical availability of its Ser
vices and facilities to handicapped
persons J as provided in Section
4 ~6. 01 hereof;
{ix} compliance 'WithJ and any modifica
tion necessary with respect to~ the
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Engineering Design and system Archi
tectlJre for the System, as provided
in Section 6.14 hereof and Appendix
A to this Restated Agreement~
(xl compliance -with .. and any modifica
tion necessary ~ith respect to, the
plan for interconnection .. as provid
ed in Section 6.15 hereof .. including
the Cornpany"s activities pursuant to
said plan;
{xi) compliance .... ·ith. and any modifica
tion necessary with respect to" the
plan for recruitment.. education,
training, and employment of resi
dents of the Service Area, as pro
vided in Section B.2 hereof;
(xii) compliance with,. and any modifi.ca
tien neC6.ssary ... ..-ith respect to ... the
Co~panyrs privacy protection poli
cies., as provided in section 9.1
hereof;.
(xiiiJ a summary of all significant Service
interruptions, as provided in Sec
tion 9.2 hereof~
(xiv) a summary of all significant and
representative Subscriber complaints
and the actio'ns ta'k'en by the Company
in response thereto l as provided in
Section 9.3 hereof; and
{xv} other events .... ·hich the companl~ be
lieves the City may find signifi
cant.
11.3.02 Within sixty (60) days after receip~
of the Company's report l the city Manager m~y request addi
tional intormation on specific topics ~hich the Company shall
supply within thirty PO} days of such request. The City
Manager may review the Company" s performance to determine
'Whether the Company has complied with the terms and conditions
of this Restated Agreement and shall r following, completion of
such revie~, if any~ file the Company's report vith the City
council together with such findings and recommendations as he
deems appropriate. N~thin9 in this section 11.3 snaIl affect
City's remedies provided elsewhere in this Restated Agreement.
11.3.03 The city may retain, at its o'Jncost,
technical and other experts and cor;sul tants on a periodic
basis throughout the term of this Restated Agreement for the
purpose of overseeing, testing; and inspecting the construc-
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tion~ operation, and maintenance ~f the System, and all parts
thereof, to ensure compliance 'With the provIsions of this
Restated Agreement.
11.4 Other Reoo.rts
11.4.01 Upon the request of the City Council
or the City Manager" the company shall, subject to the
provisions of Section 11.6.03 hereof 'With respect to. propri
etary information, promptly make readily available at the
reasonable times to the requesting party any reasonable
information regarding the Company. its business and opera
tions. or any Affiliated Person, 'With respect to the System,
any Service distributed over the System,. or any Service
Related Activity~
11.4.02 The Company shall make readily
available at reasonable times to. the City Manager progress
reports describing, in detail, the status of construction of
the System in accordance 'With the standards, terms, and
sched,ule for construoetion, as provided in Appendix B to this
Restated Agreement.
11.4.0), The Company shall submit to the City
Manaqer~ not later than three (Jj months after the end of its
fiscal years, 'With ,respect to the fiscal year just ended: (iJ
oopies of all una._tldited income st.ate1!lents, balance sheets,
statements of chaOges in: financial position for the System and
otber financi~,~ s~_a_temen,ts given to investors _an~ lenders of
~h,~.,~,?~~~.ny~,j?u'rs,p~t to it rl?n-discJosure ~gr~ement: ,oonsiste.n_~
l!~l'l<;i ~A;pro<>,,~url';" <lescrlbed in sect1~ ~l, 6 .()~ .. of .tbls ~~~,~,~::,:,;,~c:p;'~~'~tt~,-~ provided~ ho· ... ev~r.. that if the City
Manager reasonably determines such information is insuffi
cient~ the COlll.Pi3!'lY shall proyide_ to, the "City. no" more than
i)f)C_e _it _,y'ea,:~ ~_hd':'_n<;It, -unti.1 at least" s"ix "(6_' ': months-after ~lle iiij~~~~(,:9~,\:.i:~'S'fJ~'1'-,i,e,'ar .. statements arid balance sbeets vhich
have Eeen aud~ted by an independent certified public accoun
tant. {iiI a statistical summary of the oper-ations of the
System for the fiscal year just ended including the number of
Subscribers added, and penetration rates; and (iii) a break
~}>,t _th~ __ annual Gr,oss Revenue from the System; and (Iv) if
~iim~~~Y'"~" city Manager_ .an: update of the financial ~lan
~!~"4.),ysf'CU,~ 2.~.OB bereof. as .. amen<led.
11~4.04 Within thirty (30) business days
after the Com~ny has received from or submitted to any
qovernmental l state, County, or federal agency or official any
report .. petitIon, or other-significant filing -which materially
pertains to or in any way materially affects the System or any
Service Related Activity .. the Company shall submit to the City
Manager a copy of such reportl petition l ~r other communica
tion~ A copy of each respo-n~e thereto submitted to or
received from such g.overrunental, statG~ county. or-federal
agency or official by the Company, shall like .. ise be submitted
promptly to the City Managerr
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11.5 Company Office
11. S. 01 Thrcu)hout the term of this Fran
chise, the Company shall maintain an office in the service
Area. The Company hereby designates said office as the place
where Subscriber complaints, any notice, direction, order,
request, or other communication from the City. and any other
communication to the Company including, ~ithout limitation. a
request for any service, may be served, or delivered. The
Company shall promptly notify the City Manager, in ~itinq,
and shall provide notice to each Subscriber and other user of
the System ... of the initial lcx::ation and telephone n1.lmLer, and
any change in the location or telephone number, of said
office. The Company shall be en~itled, in its discretion, to
utilize a regional customer service office; provided that,
sucb office is within five (5) :miles eot the Service Area and
that the Company provides a local telephone number within the
Service Area for contactir.g su-ch otfice~
11.5.02 The office required by Section
11.5.01 hereof shall be open to the public during all normal
business bours and sh2l11 bave a publicly I iste:d telephone
number. Staff or o,ther services shall be available to: (i)
receive Subscriber complaints or requests for Service or
repairs and. to initiate action ...-ith respect to System or
Service outages on a full-time basis~ twenty-four (24) hours
a -day,. seven (7} days a 'Week;r and (it) initiate Service
installations, undertake normal repairs, and initiate action
with respect to Subscriber complaints on Monday through
Friday, from 8:30 a~m~ to 5:0,0 p.m., and at such other times
as may be necessary to accommodate special circumstances.
11.6 Books aD9 RecordsLAudi!
11.6.01 Throughout the term of this Fran
chise .. the. company shall I"IaiI-,tain, either in the office
required by s~ction 11.5 hereof or else~here ~ithin the City,
or shall make available at said office "Within five (5) 'iliorkinq
days after receipt of a -written request by the City Manager-or
the City Auditor, complete and accurate books of account and
records of the bosiness, ownership, and operations of the
Company with respect to the System, any service distributed
over the System .. and each Service Related Activity. in
accordance with Section 9.1 hereof.
11.6.02 The co~pany shall maintain l in saId
office or as otherwise specified in this section 11.6,
accurate and compete recard's indi.:ating all uses of, and
suppliers of Services on~ all Channels on the System.
11.6.03 The City Council~ the City Manager,
the City Auditor l or their designated' representatives, shall
have the right to inspect, examine, or audit, during normal
business hours and upon reasonable notice to the Company, all
docWDents .... hieh pertain to the Compa.ny or any Affiliated
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Person with respect to the SystEm, each Service distributed
over the System~ and each Service Related Activity, excluding
the personal financial statem02nts or-information of individual
investors if such information .!s not generally available. All
such docUEents shall be made available at the office of the
Company, provided such office is within the service Area$ or
at the Palo Alto Civic center. if said office is located
outside of the service Area, in order to facilitate sai~
inspection, examination, or audit, as provided in Section
11~6.01 hereof. All such documents which pez-tain to financial
matters which may be the subject of an audit by the city shall
be retained by the Company for a minimum of three (3) years
following termination of this Franchise. Access by the city
to any of the financial documents covered by this Section
11.6.0l shall not be denied by the company on grounds that
such documents are alleged by t.he Company to contain propri
etary information .. provided that the Company or any Affiliated
Person shall be entitled to mark SQch information as propri
etary. and provided fu.rther that this requirement shall not be
deemed to constitute a 'Waiver-of the Company's right to assert
that the proprietary information contained in such documents
should not be disclosed and to vithhold said information upon
the agreement of the City .. In ort3er to determine the validity
of said assertion and withholding by the Company, the City
agrees to review the alleged proprietary information at the
Company's office in the Service Area and~ in connection with
said revieW"... to limit access to the alleged proprietary
information to those individuals who require the information
in the exercise of the City I S rights under this Restated
Agreement. If the City Manager~ upon advice of the City
Attorney.. ~oncurs with the Company·s or the Affiliated
Person's assertion regarding the proprietary nature of said
informatlon~ the city will n~t disclose such information to
any Perscn and will not remove from the Company's or the
Affiliated Person's office the proprietary portion of any
document or other tangible thing that contains said propri
etary information.
11.6.04 The City Council .. the City Manager~
the City Auditor~ or their designated representatIves, may
require written certification by the Company's appropriate
directors .. officers, or other employees with respect to all
documents referred to in this section 11.6.
11.6.05 Throughout the term of this Fran
chise. the Company shall maintain... in a file available for
public inspection during normal business hours at its office
in the service Area ... the following documents:
{i} the initial version of all plans and
other documents to be submitted by
the Company or .. as applicable, by
any a,ther Person as provided in this
Restated Agreement, all updates to
said plans and other docum~nts.. and
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any modifications to said plans or
o,ther docurrents that have }xcome
eftective;-
all periodic reports to be submitted
by the co~pany~ as provided in this
Restated AqTeer:-,ent ..
records indicatin9
users l of all video
S-yste;:n~ as provided
11; and
all uses l and
Channel s on the
in this section
{iv} reasonable sU:':":!!laries of subscriber
co~plaints received by the Company
during the prior t ... ·o {2) years I and
of the tYPIi:S of actions taken by the
company in response to the com
plaints.
SECTION 12 --::---.XQuFECLOSURE AND COND,DWATION
12.1 Upon the occurrence of any event -which is
reasonably likely to lead to the foreclosure or other judicial
sale cf all or a sUbstantial part of to..he Systern l or the
terminat.ion of any lease or mortgage covering all or a
substantial part of the syste~6 the Co~pany snall immediately
notify the City Manager a~ the city Attorney of such occur
rence. Such notification shall be treated as a notification
of a proposed change in Control of the company and the
p:rovisions of Section 14 of this Restated Agreement shall
apply.
12.2 In the event t.hat the System l or any material
part of the System... is ta):en~ awropri:!ted l or condemned
pursuant to law and the effect cf such taking is to materially
frustrate the ability of the co~pany to carey out its obliga
tions pursuant tOI and the purposes of this Restated Agree
ment,. then the Company may ternlinate this Franchise ..... hieh
termination shall be dee~ed to be not for cause.
SECTION 13 --~ECE!VERSHIR
13.1 The Company shall imnediately notify the City
Manager and city Attorney. in -writing~ it: {i) the Company
files 2. voluntary petition in bankruptcy,-a voluntary petition
to effect a plan or .ot.her arrangement lJith creditors;-Cii) the
Company files an answer admitting the jurisdiction of the
court and the material allegations of an involuntary petition
filed pursuant to the Bankruptcy Code~ as amended; (iiiJ the
Company is adjudicated bankruptr ~a):es an assignment for the
benefit .0£ creditors l gpp~ies for or consents to the appoint
ment of any receiver or trustee of all or any part of its
property. including all or any p3rt of the System; (Iv) the
Company institutes dissolution or liquidation proceedings with
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respect to its ~Jsiness; (v) an order is entered approving an
involuntary petitiOl'l to reorganize the bUsiness of the company
or to effect a plan or other arra~ement vith creditors or
appointing a receiver or trustee for the Company of all or a
part of its property .. including all or any part of the System;
-or (vi) a writ or warrant of attachment., execution .. distraint ..
levy. possession. or any similar process that may materially
affect the operation of the system shall be issued by any
court against all or any material part of the property of the
Company" including all or any :material part of the System.
1:l.2 In the event that said petitioo" writ,. or
.... arrant shall not be dismissed or a stay of foreclosure
obtained or said assignment .. appointment., or proceedings shall
not be rescinded or terminated~ ~ithin one hUndred and twenty
(120) days of the issuance .. making. or comm~!ncement thereaf ..
and the effect thereof is to materially frustrate or impede
the ability of the company to carry out its obligations
pursuant to~ and the purposes of ~ this Restated Agreement,
then the City Council may terminate this Franchise .. unless:
(iJ within one bundred and t-..'enty (120)
days after his election or appoint
ment, any receiver or trustee of the
Company, or, ~ithin one hundred and
twenty (120) days of the commence
ment thereof~ the Company itself as
a debtor-in-possession in connection
vith any such reo·rganlzation or
similar proceedings6 shall have
remedied any uncured failure to
compiy with any provisions of this
Restated Agreement: and
iii) ~ithin said one hundred and tlloenty
(120) days, said receiver or trust
ee, or the Company itself as a
debtor-in-possession, shall have
executed an agreement, duly approved
by t.ha City council and the court
having jurisdiction over toe pre
mises,. ""hereby said receiver or
t.rustee or the Company, in said
capacity, assumes all obliqations
and agrees to be bound fully by eacb
and every provision of this Restated
Agreement.
13.3 The notice required by section 13 .. 1 hereof
shall also be provided if the Company receives notice that any
of the acts or events specified therein are performed by or
reqarding any Person who bolds a Controlling Interest in the
Company ..
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13.4 Nothing in this section 13 shall be interpret
ed so as to conflict wit.h the pr-ovisioI1s of Appendix: J to this
Agreement.
SEC'TIOJL 14
OTHER TRANSFERS
RESTRlc-rIO~rS ____ A.GAINST ASSIGNMENT AND
14.1 Except as provided in Appendix: J to this
Agreement and in the financial plan referred to in Section
2.5.08 hereof and in this section 14,. including any extensions
or modifications of the matters set forth therein, e~ee~~ feF
aft) 9i!f\ifieaR't madifieatieFt5 elf tl:te Il',at-ters set: feFth heFeie.,
neither this Restated: Agreement .. nor any rights or obligations
of the Company pursuant to this Restc:ted .Agreement or in the
System shall be assigned.. transferred, pledged, leased,
sublet~ or mortgaqed in anY'manner, in .. hole or in part, to
any Person, nor shall title thereto, either legal or equita
ble, or any right or interest therein, pass to or vest in any
Person, nor shall any change in Control of the Company occur,
either by act of the Company..-by operation of law, or other
vise .. 'Without the prior consent of the City council. Any such
action completed without the prior consent of the city Council
shall be null and void; provided that, nothing herein shall
restrict the free transfer of partnership interests or stock
of the Company if such transfers do not change the Centrol of
the Company, and no consent shall be required for such
tr-ansfers. In the event that the CO!:1pany shall desire to
transfer or assign the franchise or any of the rights ..
privileges, or immunities -co'ntained therein. the City shall
have the right of first refusal to assu~e such transfer or
assignment, -on the same terms and conditions p·roposed for such
transfers, provided such cp·tion is exercised ...... ithin ninety
(90) days of receipt by the city of iaitten notice together
with the terms and conditions in SUfficient detail to enable
the City to exercise its reasonable judgment yith respect to
this option.
1·L2 The Company shall proIl'.ptly notify the city
Manager of any proposed action re~~iring the consent of the
City Council pursuant to sectic-n 14 ~ 1 hereof, by submitting-to
the City Manager, ...... ith a copy to the City Attorney .. a petition
requesting the approval of the City Council. The petition
shall tully describe the proposed action and shall be accompa
nied by a justification for the action and such additional
supporting information as the city Council, the City Manager,
or the City Attorney may require in order to review and
evaluate the proposed action. upon revie' .... of t.he petition.,
the City Manager sha1l subnit the petiti.on, within fif~een
(15) days from receipt. -of the petition~ to t.he city Council
together with a recommendation for action on the petition.
14.3 The City Council shall schedUle a public
hearing on the petition, lolithin thirty (30) days after receip·t
of the petition for consent, and shall act on said petition
'Within sixty (60) days thereafter. For the purpose of
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determlninq whether-it shall grant its consent, the City
Council may inquire into: {i} the qualifications of each
Person involved in any action described in section 14 ~ 1
herecf, (ii] all matters relevant to. vhether said Person will
adhere to all applicable provisions of this Franchise, and
{iii) all other relevant matters. The Company shall provide
all requested assistance to. the City Council in connection
with any such inquiry and, as appropriate, shall secure the
cooperation and assistance of all Persons involved in said
action.
14a4 As a cQndition to. the granting of any consent
required by section 14 .. 1 hereof, the City Council may: (i)
upon a reasonable, determination that the Company did not
execute this ~estated Agreement under a good faith belief that
it would itsel f carry out the obligations of the franchise
pursuant to this Agreement., require the COIllpany or any
Affiliated Person to pay to the City part or all of the
profits earned or to be earned in connection ~ith~ upon the
completion of, or as a result of, any of the actions described
in section 14.1 hereof with respect to any of said actions
~hich occur 'Within three (3) years after the effective date of
this Aqreement~ provided that said profits shall not include
any terminatiOf'l payments made to a system manager or operator,
if any. pursuant to a written agreement in existence as of the
-date of Closing, and {iil require that each Per-son involved in
any action described in Section 14.1 hereof shall execute an
aqreement, in a form and containIng such conditions as may be
reasonably specified by the City Council, providing that said
Person assumes and agrees to be bound by all applicable
provisions of this Re"stated Agreement. The execution of said
agreement by said Person"'shall in no 'Way relieve t.he Company ..
or any o~her transferor involved in any action described in
S_~<:tio:n,_ 14~1 hereof .. .of its obligations pursuant to this
~_~,!,~~ Aqreement without the consent of the city Council ..
14.5 Nothing In this Section 14 shall be deemed to
prohibit any assignment, pledge, leases sublease, mort9age~ or
other transfer of all or any part of the System, or any right
or interest therein~ for financing purpo-<""~s. provided that
each such assignment, pledge, lease, sublease~ mortgage, or
()~,~_:r: ,t._ransfer shall ,be (i,) described", in "Appendi:.c, :,J t,o __ this_
~~:t;~~_d _ ~gr_eement o-r ,:o.therWise disclose _ too ~1:~1',"~·!,J, ~;OV:f_~~_g ~_;-~mM,,~-~,-:'~; (iil set forth in the financing pla'n re'ferbi~d
to In Sections 2.5.08 and 14 hereof .. including any extensions
or modifications thereIn (elt::eel3t. Ee£ afl)' siqniEieaflt: lfleaifiea
~ien6 iA saia. fiflafleiAIj I'laft); and (iii) subject to the rights
of the City pursuant to this Restated Agreement o'r applicable
law.. Nothing in this Section 14 shall be deemed to affect the
right of the company to lease channels. portions of Channels,
equipment, and other materials to-o,ther persons.
"S .. EC'f~ ... IO",N"--... 1.25-=--=--",R,~E"S",-T",R,,,-IhCTLI91'LQN THE COMPANY
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1541 The Company may utilize its o~n or an existing
MA'IV, S:MATV .. MDS, DBS ... or other Syste~ in any structure for
the distribution of any service loo."h ich ';,,:ould otherwise be
distributed over the system .. provid~d that said use shall not
relieve the company of its obligation to eefl'5-t~ ope~,ate
and .ma,:p'1t.ain a,ny, part of the Systet:l provided that sait:!. u~e
~halJ __ not i<!:lleve the Company of its obligation t'> operate ,and
iJI~';'DtI!;_J\-'_'any part ,:or the System constructed and controlleti by
tl'l_~" _ C'9Plpany in said: 5t~-t:l-£€---~··tifSUa~fl:is Rest-at.€d
AEJFeemefrt. -.,
15.2 The Company ~ay lease, sell.,. or otherW'ise
furnish to subscribers all equiprent necessary for the
transmission or receipt of Signals distributed over the
System .. All .fees, charges, deposits. and associated ten.s and
conditions for equipment loth ich the Corr,pany leases, sells.,. or
otherwise furnishes to Subscriters shall be set forth in
Appendix I-1, 1-2.,. or 1-3, as applicable, to this Agreement4
The company shall give the City prier "'-ritten notice, a lease
five (5) 'Working days prior to their effective dates r of any
modifications in Appendix I-I, 1-2, or I-3, as applicable, to
this Agreement4
SECTION 16 -.. -LIA.BILIi'i A.\1'D INSUP-A .. NCt
16.1.01 The Co~pany shall be responsible for
any damage, liability or loss to any real or personal property
of the City or any Person.,. and for any injury to or death of
any individ,ual Person and any officer, employee, or agent of
the City, arising out of or in connection with the ccnstruc
tion, operation, maintenance, repair. or removal of, or any
other acticn of the Co~pany or any Affiliate with respect to.,.
the System, any Service Related Activity~ or the distribution
of any Service over the System. The co-rnpany sball. at its OW'n
cost and expense, reasonably replace. repair, or restore all
such property to its prior condition and shall pay appropriate
compensation in the event of any injury to or death of any
individual Person. Not~ithstanding the foregoing. noting in
this Section 16 .. 1.01 is intended to confer on any third party
any rights or remedies in addition to rights or remedies
otherwise provided by law.
16.L02 The. City, its officers. employees,
and agents shall not be liable for any loss or damage to any
real or personal property of the Cor.r-any or any Person, or for
any injury to or death of any individual Person, arising out
of or in connection with the construction, operation, mainte
nance, repair, .or removal of, or other action or event with
respect to~ the System, any Service Related Activity~ or the
distribution of any Service over the System.
16.1.0J 'The City !!ay, at any timer in-case of
fire, disaster, or other emergency, as reasonably determined
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by the City, cu.t or move any of the wires#, cables, ampl i fiers,
appliances" or other parts of the System.. The City !".hall not
be liable to the company, any Affiliated Person l O~ any other
Person for any acts taken pursuant to this section 16.1.03
except to the extent that the City, its officers, agents; or
employees; commits any willful miscondu~t or gross negligence
~ith respect to said acts. ~~en possible. the Company sh~ll
be consulted prior to any such cutting or movement of any part
of the System and may be given the opportunity to perform such
work itself.
16.1.04 Except as provided in section 16.1.07
hereof#, the City shall not be liable to the company or any
other Person for any damage to or loss of all or any part of
the System~ or otherwi3e s as a result of or in connection with
the protection, breaking through, movement, removal, alter
ation~ or relocation of any part of the system by or on behalf
of the Company or the city connection with any public worle,
public improvement~ alteraticn of any qovernmental stru~ture,
any change in the grade or 1 ine of any street, or the ,,'aca
tion, elimination, discontinuation, or closing of any Street~
as provided in tois Restated Agree~ent, e~cept to the extent
caused by the willful miscondu~t or negligence of the City,
its officers~ agents, or e~ployees with respect to su~h acts.
16.1.05 The City, its officers s employees,
and agents shall not be liable tc the C01:lpany or any Affiliat
ed Person or any other Person for any specials incidental,
consequential, punitive, or other damages as a result of the
proper and reasonable exercise of any right of the city
pursuant to this Restated Aqreement, including, with~t
limitation, the rights of the City to terminate, amends or
ot.herwise modify all or-any part -of this Rt:es'E:at.er! Aqreement or
the Franchise qranted herein.
16~ 1.0.6 The cOlI'pany shall: (i) defend,
indemnify. and hold ha~_less the City and the Joint Powers,
their officers, employees, a~ agents, from and against all
liability. special~ incidental, consequential, punitive, and
all other damage, cost, and expense (including reasonable
attorneys I fees) arising out of or in connection .. ith the
franchising, constructicn, operation, maintenance, repair, or
removal of. or any other action or event with respect to, the
SysteD. any Service Related Activity, or the distribution of
any Service over the System; and (iii cooperate iiith the City,
at no cost to the Company, by providing such assistance as may
be requested by the City. in connection with any claim arisinq
out of or in connection with the franchising process and the
execution of, or the award of the Franchise pursuant to, this
Restate~ Agreement.
16.1.07 As between the city and the Company,
the foreg-oinq liability and indemnity obligations of the
Company pursuant to this Section 16.1 shall not apply to ~ny
Services distributed over the Access Channels, the Government
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Channels~ or the portion of the Institwtional Cable available
to and used by the Ci ty to the extent tnat the Company has not
particIpated in the production of 5ai1 Services or any other
act forming the basis of s2Iid clai~. Further,. the Company
shall not be liable or be obligated. to indemnify,. defend .. and
hold harmless the City and the Joint Po" .. ·ers f'Ursuant to this
Section 16.1. with respect to (iJ any ne'gligent or wrongful act
or failure to act by the city .. its officers, emplo::tees ... or
agents ... 'Which is claimed. asserted, or alleged by third
pa.rties: (ii) any claim ch<!llenging the authoritjo" of the City
to grant a cable television franchise~ or challenging the
r,anner in -which such auth-ori ty is exercised or enforce.:i; (ii iJ
any o,ther issues existing in cJ aims currently pending or
threatened against the City; or (iv) any action or interven
tion by the city or the Joint po .. 'ers pursuant to Section 18.2
of this Restated Agreement.
16.2 Insurance
16~2~-ol Prior to the Closing, the Company
shall ... at its crwn cost and expense ... obtain and furnish to the
City Manaqer ... a liability ins f.lra:1ce policy or policies ...
including a broadcasters I 1 iabil i ty insurance policy or
policies ... in a form reasonably acceptable to the City Attor
ney .. covering each and every liability arising out of this
Restated Agreement.. Said policy or pol icies shall take effect
as of the Closing and shall be issued by a cOI!1pany -duly
licensed to do business in the State and acceptable to the
City Manager. At or before the Closing~ the company shall
deliver to the city Manager~ in a Corm acceptable to the city
Attorney. (iJ evidence demonstrating th2:t the premiums for
said policy(ies) have been paid~ and (iil an endorsement to
said policy{tes) vhich shall state that: (aJ said policy(ies)
specifically cover{s} each and every liability specified in
this Restated Agreement .. including Section 16.1 hereof; (b)
the City ... its officers ... employees, and agents are named as
additional insured ,Parties under the policy(ies) ,dth respect
to each and every form of liability referred to in Section
16.1 bereof: eel said policy(ies) cover(s) any claim made
during or following the termination of this Restated Agreement
to the extent that such claim relates to any acts or omissions
occurrinq prior" to said termination~ regardless of 'Whether the
policy(les) is (are) in effect at the ti~e such claim is made:
and (d) -It is hereby understood and agreed that this policy
may not be cancelled nor the intention not to renew be stated
until thirty (3D} days after receipt by the City Manager and
City Attorney .. by registered .mail" of a ,,rritten notice of such
intent to cancel or not to rene"",.-Within seven (7) days
after receipt by the City Manager and City Attorney of said
notice of intent to cancel or not to rene~, and in no event
late~ than fourteen (14) days prior to said cancellation or
nonrenewal. the Company shall Obtain and furnish to the city
Manager. replacement insurance policies in a form reasonably
acceptable to the City Attorney.
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16.2.02 The policy or policies furnished
pursuant to this Section 16.2 shall be in the minimum combined
amount of Ten (10) Million Collars ($lO,a·Q·olOOO) for bodily
injury, property damage, and liability in connection with the
distribution of any Service over the Syste3.a The foregoin::;,
minimum limitation shall not prohibit the company from
Obtaining a liability insurance policy or policies in excess
of such limitatic-~I provided that the City, its officers,
employees, and agents shall be named as additional insurec!
parties to the full extent of any limitation contained in any
such policy or policies Obtained by the Company~
16.2.03 The policy or policies furnished
pursuant to this Section 16.2 shall be tlaintained by the
Company throughout the term of this Franchise and for such
other per-iex) of ti:!l.e during ..... 'hich the company operates the
system, including the period fol1o, .. ing termination of this
Franchise, as provided in Section 2~3.04 hereof.
16.2.04 The city Council may, following the
effective date of this Restated Agreement., annually adjust the
m.l.nl.mum. limitation of the 1 iabil ity insurance policy or
policies specified in ~his Section 16.2 bereof by the rate of
inflation for such year.
16.2.05 The legal liability of the Company to
the City and any Person for any of the matters whicb are
subject of the 1iability insurance policies required by this
Section 16.2 .. including, -without limitation .. the Company's
indemnification obligation set forth in section 16.1.06
hereof, shall no·t be 1 imited by said insurance policies ClOr-by
the recovery of any amounts thereunder, provided that the
liability of the Company to the City or any Person shall be
red·uced by the amount of any payment actually received by the
City or such Person pursuant to said poliCies from the
applicable carrier or carriers.
16.3 In additi~n to furnisbing the liability
insurance policy or policies required by section 16.2 hereof.,
the Company sball obtain and furnish to the City Manager an
insurance policy or policies, in a form reasonably acceptable
to the City Attorney .. to protect the City and the Joint
Powers, their officers .. employees .. and agents against any and
all liability for claims for Workmans' Compensation benefits
arising: out of or in any way related to the construction.,
operation .. maintenance, repair, or removal of the System .. any
system Related Activity~ or the distribution of any Service
over the System~
16 •• With respect to any insurance policies under
which the City and the Company are not co-insureds .. the city
and the Company each hereby ..... aive all rights of recovery
aqainst the other and the authorized representative of the
other. and any rights of subrogation of eithe.r party's
insur~r. to the extent any 10s$ or damage is covered by such
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insurance policies maintained by eitl":er partr, ""hether or not
such loss or damage is caused by the fault or negligence of
the o'ther party". provided that such ... ·.:iver shall be limited to
the extent the insuran-ce mainta ine..:! by the City or the Company
relatinq to this Restated Agreer:1ent or the Systelll does not
permi t the foregoinq 'Waiver or if the coverage under any such
policy 'Would be invalidated as a re::;;ult of such 'ilfaiver.
SECTION 17 --SPECIFIC IiLG.!fTS A!m REMEDIES
17 .. 1 The city shall h.ave the specific rights and
remedies set forth in this Section 17.. These rights and
remedies are in addition to 2111 other rights or remedies
available to the city in order to enforce the provisions of
this Restated Agreement.
17.2 Securit:Y-i'und
17.2 .. 01 '[he C~pany shall deposit 'With the
Director of Finance the a~ount of GAe HillieR gel1~
{$1,GGo.~ Three Hundred Ten Thousa:nd Dollars ($310,0'0:0J
which amount shall constitute the Security Fund. et\e--Te.n
8~ftaFe4 Thousand Dollars ($10,000) of the Security Fund shall
be provided in cash, at or before the closing of this Restated
Agreement, to the City Attorney, and the balance shall be
provided in ~ form reasDnably accepta~le to the City AttorneYr
provided that the Co:mpanlr may .. at its discretion, provide a
letter of credit.if1 t.e j9arts, as-4e-l-i-o';i-5--!-
ti7--a-1 et-t-e-F e f~-n-4::he ameliPlt~ af
'F'o!'9 BI:H'IS:f"-e4---F-4nf-ty 'i'eS:iSaF.a 8el1aFs
~.··().IM1--... ~l>e-5i·"He~
f6-G-th) say felle~ .• iAg -~fte.mneffeeti.e
~--e-f---tJ::t..i.s--fles-ta-t-ed-A§l Fe e!3 e Fl t, a REi
(i i) -a--m-l-e 'tte or e f ere 3: i-t:----f-G-f----tbe ba 1 aflse
an er tefer~-he-n-fti-f'letie'Ui (90tftt
day---f-ol-~-i-r~ tee effeeti. e 4-a-t:e--e-f
tl'l:is Restatee--A~£ee1'!el'1:t-.
The 6eeeFit) FtlflEl-s.£-1U-l-l lle Ee,"u;:'ca te Fi. e-~
!J!fteasaftB Bellal's ($S00,988) spaHn sbi:EstaRt-ia-l-mm-ce~let:ieft at'
eaRstF\ie~iiefi af the Sys"tea by f"ep±ae-i--nq-tl9:e er-igif'lal let.-tel'--O-f
~t wl"th a let.t:eF af ered4-t in toftC al'l9Sl;lRt e£-.FOl3:-fnnHl:lflSE'ed
ri f'ty tftlaesafui Bel }.a-rs {S. 58, 80 ot-a-n4---by---r-e-d l:l c i I"!!J the €lash
p_8_Fi;:,iSfi: .. __ 8_t, n~t!~, F"afta ~9 Fifty TMusttfui 8<911,*,5 (658-.. ~
~,.,9~_.o!_,9_Q~::let;ter ,,,e'E_ 'E!Fesit: a~-lG. 88 8 eazb .---At ani to-hi.e after
~ ea!"l ier te aeel:iF -*-~mn--(-.. ·d tfie t.Mi--r4-f3-t=4t--yea-r--&f e~eFa~ieR
sf 'tllte "fall System,. ap (8j the -E4-f..tft---{--5-tbJ---a-n. .... i. el'sary ef--t.be
effeetive Elat.e ef 1::h15 Resl;:ate-d---Ag-reeF.,eJ'l:'E, tbe~
i-f--Ite-.(ietoePl!l:iFleS 1:ha~-h e eemflanj has eeHtp-1-i-edm -Y-i-t:a the teAls
sf "'lis Rest-ate€! J.~E'eemuflt, :lila) sha-Hmn£eaeee t-ee let-t~--e-!
E!FeEiH: pertiell af the Secl:lr-i-ty Fal":1 ta -ttfl--~'f'-+a-tc amel:i1'lt
eat te e~eeeEl 1".8 Hundl'efl Tae~-Be-l-l-a-rs--(-$29 9, SSS) Sf' II'hzy
elimiflate tile lettoe!' at e!'ed-~H:-i-O£ af toea Seetff-i-t-y-n~
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Sa ill letter at el"eElit sf" ether-iFlst.f"Itl!!1el9lt. shall iR 1"16 e,\'eM
:f'e~tE'e 'the ee:p!:sellt ef 'the G9~patty-p-f'-i-o-f'--~() the eelleet-ien ~}I
4:he ei~y Be a .... y aB'ea.,.t.s ee.er-ed-nby said let:t:ef" sf eFe/lit. Sf'
e4s.fteF iPls1s:Ftil!leat-~ 'fhe----casa a!!119ItlFlt. ~i .. eFt: pl:lf"sl:lal"lt.--te--t..ft.i-s
Sect-ian: 17,2.91 5!flall 11: depositef! -in----aTt--n-iatef'est ~ea;pif\1J
aeeel::lJ'l't sepClpate 'FeB\: t:tte---€-i-ty4-m -e'tael! tl;lfl:ds, .... itl\: iAt.€.~
t.ae'f'eeA aeel:!l::liftlJ t-e Uie----bel"lefit sf 'the GSBll'afl}r.
17.2.02 The Security Fund shall serve as
security for: (i) the f~ithful performance by the Company of
all material provisions of this P.estated Agreement; (ii) any
expenditu~e, damage, or loss incurred by the city occasioned
by the Company's unexcused or uncured failure to materially
comply with all rules, regulations, orders, permits I and other
directives incur by reason of any act or default of the
Company, and all other payments due the city from the Company
pursuant to this Restated Agreement; (iii) the payment by the
Company of all lierls and taxes,. and all do_mages,. clail!ls,. costs
or expenses ~hich the City has been compelled to payor incur
by reason of any act or default of the Company. and all o,ther
payments due the City from the Company pursuant to this
Restated Agreement; {iv) the loss of any payments required to
be made by the Company to the City 1lThich would have been
received by the City but for the Company's failure to perform
its Obliqations pursuant to this Restated Agreement. during
the per-Iod of time bet'Ween the Company's une~cused or u,ncured
failure to perform and the date on ~bich the City takes over.
or authorizes any other Person to take over,. the construction.,
operation" or maintenance of a Broadband communications
Facility in the Service Area necessitated by such failure; and
(v) any costs incurred by the City in cOl'mection with the
award of any franchise for, or other authorization to ...
construct, operate I or maintain a Broadhouse communications
Fa.cility in the service Area necessitated by such failure.
The withdra'Wal of amounts from the Security Fund shall
constitute a credit against the amount of the applicable
liability of the company to the City but only in the amount of
said 'Withdrawal.
1'1.2.0) ThrOlJ.ghout the term of this Fran-
chise, the Company shall maintain the Security Fund in the
amount specified in this Section 17 or such o,ther amount as
may from time to ti_me b_e ,agreed to by the City C--etine-i-l ~n_a9~l"
and the Company ;irf,~itinq. Within thirty {30} busines's' days
after receipt of notice from th~ City Manager that any amount
has been withdrawn frOt:l the Security FundI as provided in
Section 17.3 hereof, the Company shall restore the Security
FUnd to the amount specified in this Section 17, provided that
said restoration obligation shall be suspended during the
period of any judicial challenge by the Company to the
prc;:ariety of said 'Withdrawal from the Security FundI and
provided further that, if it is determined that said vithdraw
al by the city 'Was improper, the city shall restore to the
Security Fund an a:rnount e~Jal to the improperly 'Withdrawn
amount plus all interest that ~ould have accrued thereon but
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for the withdrawal l as reasonably determined by the Di~ector
of Finance l and shall pay to the Co~p3ny all charges or fees
incurred by the company as a result of such "rithdralllal.
17.3 Withdra'Wals froQ the Se:cut"i __ t-Y~_D9
17.3.01 If U::.e CO~'pany fails: (i) to maJce any
payment required by this Restated Agree~ent ~ithin the time
filCed herein; (iiJ to pay to the City. 'iolithin thirty [3D)
'Working days after receipt of w"ritten notice~ an}o~ taxes or
liens relating to the System that are cue and unpaid; [iii} to
pay to th~ City, within thirty (30) 'ir,'orking days after receipt
of 'Written notice from t}'.e City Marlaqer ... any damages, claims,
costs or expenses 'Which the City has been compelled to payor
incur by reason of any act or defa~lt cf the company; or (iv)
to comply, within thirty t:3 OJ 'W'orking days after receipt of
written notice from the City Man.ager, .... i th any provision of
this Restated Agreement .... ·hich the City Manager re2asDf"lably
determines can be remedied by an expenditure of an amount in
the Security Fund.-then the City Man.3ger may instruct the
Director of Finance to withora. the a~ount thereof from the
security Fund and pay it to the City. provided that l prior to
each such vithdrawal, {A) the Corrcpany sl:~ll be afforded an
opportunity to cure any of said failures ~ithin thirty (30)
days after written notice from tte City Manager that the
withdrawal is to be made, or (B) if such cure cannot be
reasonably accomplisbed ~'ithin said thirty (30) days, then the
company shall have a reasoI'1.able tir.e to cure; and provided
fUrther that,. the Company co",r.:;ences such cur-e "· • .-ithin said
thirty (30) days and dil igently purs'Jes such cure to ~o~ple
tion.
11 .. 3.02 Intere.st due on any payment required
to be made by the Company purs1J.ant to this Restated Agreement
shall not begin to accrue for a period oE thirty (30) bUsiness
days after receipt by the Co!"'p<'iny of the written notice of
vitMrawal from the Secl.lri ty Fund of the principal amount due.,
as provided in this section 17. Thereafter, if the Company
has not made the required restoration to the Security Fund.,
interest on said amount shall accrue at the rate specified in
section 10.5 hereof. The -City Manager may instruct the
Director of Finance to .. ithdra;,r fro:n the Security Fund and pay
to the City said interest perio:Hcal1y up to t.he date on which
the Company makes the required principal payment, provided
that the Company shall not be oblig,a.ted to pay said interest
with said principal payment to the extent said interest has
been alreaC!y withdrawn by the OJ rector of Finance at the
instruction of the City Manager.
17.3.03 In additio~ to the withdra*als
authorized by Sections 17. J. 01 and 17.3.02 hereof. the City
Manager may instruct the Director of Finance to withdrav from
the Security Fund and pay to the City the a~ounts specified in
subsections (i). (iiJ, or {iii) of this Section 17.3.03,. for
the following material failures by the company to comply with
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A'\ V G
the prov~sl.ons of this Restated Agreement., provided that, such
material failores are not cured by the Company to the satis
faction of the City Manaqer 'Within thirty PO} days after
receipt of vritten notice by the Company from the City
Manaqer,. subject to the Cure periods set forth in Section
17 .. 4.03 hereof:
(1) Failcre to coI:1plete construction of
the System in accordance with the
schedule for construction, as pro
vided in Appendix B to this Restated
Agreement: up t~ Ten Thousand Dol
lars (S10,OOO} per month, for each
month or part thereof that such
delay continues". subject to the
force majeure clause set forth in
Section 20.7 hereof;
(Ii) Failure to furnish, maintain, and
continue to cffer, Service to any
Person within the service Area upon
the order of the city Manager", <!l_s
provi.ded in sec,tlon ~,~ 3. 06,~' _ ~_~'ce~
as limited by" se:ctJ:()n __ 3 ~ ~i hereof:
One :gundred Dollars '($100) per day,
for each day or part t.hereof that
such failure continues up to a maxi
mum of One Thous_and OOl!a,rs ($1,0'0'0)
per day for any slrigl'e multipl.e
dwelling' unit, but in"no event more
than Fifty Thousand Dollars
($50,,-0'0,0) during each year; or
{iiiJ Pefusal to provide the City with any
books, records, or other documents"
as provided in this Restated Agree
ment: Five Hundred Dollars ($5.00)
per day for each day or part thereof
that such failure continues.
The foregoing amounts are civil penalties imposed by
the City tor Company violations of tbis Restated Agreement4
17 .. 3.04 Within one (l} \leek after each of the
foregoing withdrawals ... the city }o!"anager sha11 no,tify the
Company in writing of the date and amount thereof.
17.' Material Breach
11.4.01 In the event that tbe COGpany fails
to comply with a Eaterial provision of this Restated Agree
ment~ as provided in Section 17.4~02 hereof, then I in a~cor
dance with the procedures provided in S€ction 11.'.03" t.he
City Council may either:
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(1) Seek to reach agreement with the
Company to ar!'1end any provision of
this Restated A~r€ement so as to:
(~)
(b)
(el
incre,~se the compensation to. be
pa id by the company to the City
for the franchise, as provided
in Section 10.1 hereof • .if per
mitt~d by applicable la~;
increase the amount of the Se
curity Fund deposit by the Com
pany as provided in this Sec
tion 17;
place un,j,er the control of t.he
C'ity~ or a Person designated by
the City, one (1) or more Chan
nels on the System" for the
purpose of distributing servic
es OVEr said Channel(s), pro
vided that the Company shall
not be e~titled to any compen
sation for any such Cbannels;
(d) require the CDmpany to provide
to Subscribers.. at a redu-ced
charge or free of charge. any
-Service or Services, as shall
be design.ated by the city Coon
cil ... if permitted by applicable
121"-: or
{e} take any other action ... ·hich the
City Coun~il deems appropriate
in the circumstances; or
(ii) Seek money damages from the Company
as compensation for said material
breach; or
(iii) In the event that the Company does
not consent to any or all of the
foregoing amendments as may be spec
ified by the City Council.. or the
city council does not elect to seek
money daI!lages .from the Companl'" or
the Company does not agree to pay
such damages as the city may seek,
then the City Council may elect to
revoke the Franchise granted pursu
ant to this Restatc~ Agreement l for
cause~
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17.4.02 The company agrees that a failure to
comply with a material provision .)f this P,estated Agreement
shall include any of the following acts or fail~res to act by
the Company or any Affiliated Person, or any of the following
events, unless excused by the City:-provided that .. the Company
shall first be given vritten notice of such material breach
and a~ opportunity to cure the same for thirty (30) days from
rece.ipt of such no·tice, or if SllCh breach .cannot :be cured
within said thirty (30) days, then the Company shall have a
reasonable period of time to cure: and provided further that,
the Company commen<::es such cure withill thirty (30) days and
diligently pursues such cure to completion:
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(i) SUbstantial failure to comply with
Sections 2.5.07 or 2.$.08 hereof:
Iii}
(iii)
{iv}
(v)
Substantial failure to satisfy tile
requirements regarding: the System
characteristics or to meet the tech
nical performance standards and
testing requirements, as provided in
Appendix A to this Restated Agree
ment:
SUbstantial failure to comply with
the standards. terms.. or schedule
for oonstruction~ as provided in
Sections 6~1 through 6.15 hereof and
Appendix B to this Restated Agree
ment, provided that, vith respect to
a delay in construction, said fail
ure shall not arise in the event of
a delay of less than one hundred and
twenty (120) days in meetinq the
sch~dule for construction:
Substantial failure to maintain the
mix, level and quality of services
within the broad category of video
programming and other services ini
tially offered on the System in
accordance 'With Section 3.10 of this
Restated Agreement .. provided however
that n~thing in this paragraph {Iv}
shall imply any regulatory authority
or po .... er of censorship over the
content of programmIng on the Compa
ny Channels or the Leased Channels:
Abandonment of t:he Sys,_teIII" in, -wholli!!
or in part .. ~xceP:t 'as-:,,:Jb,it_ed ,:,by
Section 3.2, her4fofi -withOUt "the
prior writte'ri' consent of the City
Council;
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{vi) Substantial and repeated failure to
comply with the requirements of
Sections 3.7 through 3.9 hereof and
vith the provisi~ns of secticn 612
of the Cable Act;
{viiJ Substantial failure to supply the
Access Cha~~e1s and related facili
ties and equ.ipment to the CAO 'Within
one hundred and t,,renty (120) day3
after the date by 'Which said items
must be supplied, as provided in
Section 4 hereof and in Appendix E
to this Restated Agreement:
(viii) SUbstantial failure to supply the
Governmental Channels, Institutional
Cable.. and any related equipment,
facilities~ a:nd other support .. as
provided in section 4 hereof and in
Appendix F to this Restated Agree
ment.
(ix) Imposition of any fee, charge, Qe
posit, or associated term or ~ondi
tion,. for any Service 'whicb is not
set forth in, or ~bicn is materially
irx:onsistent iiith .. Appendices-'J-i.
I-2, or-1-3 to this Restated Agre_e-:
ment.. as modified 8igeles'i;~:Feet hi
~~ ~eis Res~
a-tee .'.~lee!1leFlt:
(lC) Substantial failure to comply with
the interconnection requirements, as
provided in this Restated Agreement;
{xi} Substantial fai lUre ~o comply ..-ith
tbe EEa provisions of Section 634 of
the Cable .Act~
{xii) Substantial failure to comply 'iiith
the Subscribers I rights,. as provided
in Section 9 hereof., and with the
provisions of Section 631 of the
Cable Act;
(xiii) Substantial failure to make any of
the compensation payments, as pro
vided in Section 10.1 hereof. o,ther
payments required by this Restated
Agreement, or to maintain the Secu
rity Fund in the a~o~nt required by
Section 17 hereof~
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(xiv)
(xv)
(xvi}
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Substan.tial failure to comply with
any rules~ requlati~ns, orders, or
other directives or the City council
or City Manager issued pursuant to
this Restated Agreement relating to
a material aspect of this Restated
Agreement:
Any failure to comply with the pro
visions of Section 10.1.03 or Sec
tion 10.1.0S, hereof:
The taking ¢f any action 'Which re
quires the approval or consent of
the City CQuncil without having
first obtained said approval or
consent, as providi:!d, in s,e_c=:t_~Ofls 12
through ,14 h,ereof ex_cep~ _~s"pr9vld_~
in Section 2:~'~",08 '-an(L:,A~_ndix ,J hereof ~ ," --, m ,."
(rviiJ Failure to furnish and maintain,
throughout the term of this Restated
Agreement, the 1 iability insurance
policy or policies, as provided in
section 16 bereof;
(K'Viii) Persistent failure to furnish each
plan required by the City pur,suant
t,o this ,Restated A~:re_e_m~nt_~, f?r~vid~
ed~ however.,' ,t.}l-a_t:.; w~tb:-:,'"r_~Ii>~,i:?t," ~q
any, plan or report, requ:i,r~ tel>,_~
delivered, to, t,h,~'C_iti:','pr_i,~*",,,tO<_~07;
ber :n ot 1990" receipt"b-llJlO!I;UDlJE_r 1'~
1990 shall be acceptaJ:,le: ': ~,1)d' /s~~ll
not consti~ute, a 'material,-'breacb' of
this Agreement; , ' ", ..
{xix) To engage in a course of conduct
intentionally designed to practice
any fraud or deceit upon the City,
any Subscriber, or any other user of
the System;
(KX) {THERE IS NO SUBSEC'l'ION WITH THIS
NUMBER .J
(xxii The conviction of the Company. any
Person holding a Controlling Inter
est in the Companyot any director or
officer of the Company or of any
Controlling Person, or any employee
or agent of the Company or of any
Controlling Person acting under the
express direction or ..-i th the actual
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ccnsent of the Company, its Direc
tors or cfficers of any criminal
offense ... including, W"ithout limita
tion~ bribery or fraud, arising out
of -or in connection ..,it.h this Rest
ated Agree~,ent or-any other agree
ment or re':;ruire:r.ent to construct"
operate. or et,~affi a Ea~le G]stem a!'
maintain a Broadband Communications
Facility in the Service Area or
else .... here .. the a"'ard of the Fran
chise granted pursuant to this Rest
ated Agreement. or any act to be
taken follO".;-ing the effective date
of this Restated Agreement by th.e
City .. its officers, employees, cr
agents relating or pursuant to this
Resta:ted J..greement, provided that
the right to terminate this Fran
chise in the event of said convic
tions ~hall ariSE only ",ith respect
to any of the foregoing convictions
of the Cot::pany itself and, in the
event of the conviction of any of
the other Persons specified in this
subsection (leX!) ~ if the CClIlpany
tails to disassociate itself .trom,
or terminate the employment Of6 said
o,ther Persons ..,ith respect to activ
ities in the service Area or any
other activities affecting the sys
tem pursuant to this Restated Agree
ment ~ithin thirty (30] days of th~
company' 5 bay ing no,tice of such
convictio-n (in 'ilThich case_the_'Compa~
ny shall so inform the City-W,'ithirt
ten flO) days of receiving sucb
notice} and having received_ a 'wrlt~
ten request frolll the City", that the
COt:lpany so disassociate it'5el~: -""
(xxii) The conviction of any City officer,
emploree. or agent of the offense of
bribery or fraud with respect to
this Restated Agreement ,.."hlch arises
out of or in connection 'With any
intentional acticn by the Company~
any Person holding a Controlling
Interest in the Company. any direc
tor or officer of the company or of
any controlling Perscn~ or of any
employee or agent thereof acting
under t.he express direction or actu
al consent of the foregoing 'Which
act W'as undertaken for the benefit
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of the Company provlded thjJt the
right to terminate this Agreuent 1n
the event of said intentional' ac';';'
~ions shall arise only ,wi.~~:, respect
~o any of the fqregoi1l9. _;_n~E!n~l~nal
actions of the Company-l.t$_~lJ -aildl
in the event -of the intentional
actions of any, of th_e ;:ot.her· iJe~sbhs
specified in thissQb"ection (JdcUl;
if the company tails to 'disa&!iii~iate
itself from.. or" termi_nate-_',_~e-'em...;.
ploPlent of, said other: PersOn's 'vit~
respect to activities in:;.l:be Servl~~
Area or any other _activitie's aft,ect...::
il19 _ the System_ p'ursua,nt"-;·, tQ<-',':.thi_s
Agreement vithill" thi~¥ .t3-_0) ",~aYIi,,_~,t'
tfl,e company~s_:havln9, D9tlc_e: CI_t, $~~
intentional a,ctiO('l~ tin __ ~-~ch -~fs_~
the Company shall, so, info-lilt" th~_ ~~t:y
within lG days,',. O,f, 'r.~e~vin9,;-,:,S.u(:~
notice) and having receiv'~d a ,writ
ten request from, t,he Ci:t'y, tha,t the
Company so disassOciate "i~sel.t:'
(xxiii) Any false entry knowingly made in
the books of accounts or records of
the Company., or any substantial
false statements knowingly made in
any report to the city o'r otherwise
by the Company, any director, offi
cer, or other Person holding a Con
trolling Interest in the. Company,
any Affil iated Person.. or any e.m
ployee or agent of the Company act
ing under the express direction or
vith the a~tual consent of the Com
pany with the intent to deceive the
Ci ty provided -that, 't'he right -t.o
terminate this' ~g_reem,~Il~:' _ In,, : 'ttl_I!
event of said fa~,~e en_try"'0J;,-'state.;...
ment shall ar.ise_' <:mlf',,_l~ te~~~
to ,any of th!!'''' for~g.o..i~ :',i~:;_~-,"~~
tries or statecE!'nts. of' thE:! Com~ny
itself and, in' the, :evEnit'''''~f the
false entry or stateme:nt ':Of::-:,~r:iY',Qf
the o,ther Pers'ons specitied ;n: thl;s
subsectbn (xxiii). H.theCompajiy
fails t.o-disassociate i_tself trail;
or terminate the el!lployDient':of,~~ saId
other Persons ,vith respee,t 'to "a,-=t,iv~
ities in the' S~rvice -,,~_e.4\ ~r: _', an1
other activities,_ ~ft~~~r19 "t~e' S)r$~
tent pursuant to thi,$ MCi'~ement"vith:~+
in thirty (30) 'days, of ~he.'("Qmpany1's
havlD9 no,tice of such: false."entry-or
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statement (in ~hich case the Company
shall so inform the city within 10
days of receiving such not,tee} 'ar,eJ
having received a written r-eques~
from the city that the CompanY.'_,6o
disass~iate itself. -
(lOfh:) ('!'HEPE----i s---t;9 5'l'BSEG'I IOU teJITH------'fH-l-B
!AA<BE,,",+
Notwithstanding the foregoing, if; as a result of a
failure or alleged failure to corr,ply ... ith a material provision
of this Restated Agreement as delineated in the foregoinq
subsections (i} through (xxiii) of this section 17.4.02. the
Company is unable to comply ~ith any other ~aterial provi
sion[s) which necessarily and directly arise[s} out of said
failure or alleged failure as delineated in said sUbsections.
such inability to comply .ith such other provision(s) shall
not be deemed to he an independent failure to comply with a
lI.ate_rial "pJ:'ovl~ion of this Restated J..greernent. Nob{ith~
,~~~,!~<:('t:fi~',o:t()~,~gOin9'. 'prior to terminating this Agreement:,~t
P'9,r:~,u,."i~,,~e:r"c~'vai,lable remedies as a result of a failure, or ~.1A~_ed,_::/:(~.il,:tlr;~~ ___ to, compiy "With ~ t'aterial proviSion of, thi,s
A.9Yeem~tlt:l>tbe-"City shall allc' ... h'J.lders of any assignment,1 p.t~e~-'(~:r:iqag.a;-"-9r ot1'ler right to transfer allor, any _part
§,t,'J~~_}¥st_g",mi!ide" for the PlJrpose of obtaining financing for thiri,;:':system;, t.o'_ 'exercise the rights to -cure provided for,' in ~~~i~:.::~~ .0",'-'-,----,-, , '"
11.4.03 The City Council shall exercise the
rights p:rovided in Section 17 .. 4.01 hereof in accordance with
the following procedures:
';.,'
(i,) The City ~an,~ger shall notify the
C01l1p,3ny. in ·.;riting, of an alleged
faillJre to corr.ply Tolith a material
prOVl sian of this Restated Agreement
which notice shall specify the al
leged failure vith reasonable par
ticularity. The company shall,
within thirty [3D) days after r-e
ceipt of said notice ar in the event
such failure cannot be reasonably
cured ~ithin said thirty (30) days.
~ithin a reasonable time; provided
the Company CO!TL!'C1ences cure 'lifithin
said thirt::r' (30) days and diligently
prosecutes S'Jch curer either cure
such alleged failure or. in a writ
ten response to the city ManageI',
either present facts and arguments
in refutation or excuse of such
alleged failure or state that such
alleged failure .-..il1 he cured and
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set forth the meth'.)<j and time sched
ule for accomplishing said cure.
(iil The City Manager shall investigate:
(a) 1t.'hether a failure to comply with
a material provision has occurred;
{b) 'Whether-said failure is excus
able: and ee) w'heth:er said failure
has been cured or will be cured by
the Company.
(iii} If the City Manager determines that
a failure to comply ~ith a material
prOV~Slon bas occurred and that
either said failure is not excusable
or has not been or wi 11 not be cured
by the Company~ then the City Manag
er shall so notify the City Council
in a written report which may rec
ommend action to be taJ!::en by the
City Council. The City Manager
shall provide notice and a copy of
said report to the Company. In the
event that the City Manager deter-
mines that said failure either has
been or will he cured# or that said
failure is excusable# said determi
nation shall conclude the investiga
tion.
(iv) In the event that the investiqation
is not concluded, as provided in
subsecticn (iiiJ above, the City
Council shall# witnin thirty (JO)
days of receip,t of said report troll
the City Hanaqer# notice a public
bearing at which the Company shall
have the opportunity to respond to
the claim that a material breach has
occurred and to present facts and
arguments in refutation or eKcuse of
such alleged breach, or to demon
strate that such failure shall be
cured as provided in this Restated
Agreement.
{v} After the conclusion of such public
hearing, or at any time upon its Olrlll
motion, the City Council :may take
any of the actions provided in Sec
tion 17.4.01 hereof. provided that.
if the City Council acts on its own
~otion, it shall follo~ the proce
dural steps regarding notice, oppor
tunity to cure~ and public hearin~
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',.chich are s~t forth in this sectio..>n
17.4.03.
17.5 Rig·htlii>_ 'Own Termi n_"Lt ion
17.5.01 In the event of any termination of
this Franchise4' the City Council rl,3y either: {il direct the
company to operate the System. on beh,al f of the city pursuant
to the provisions of this Restated Agree~ent and such addi
tiona1 terms and conditions as are equitable to the City and
the Company. for a period of up to t\:"el ve (l:2} months: or (i i)
authorize any other Person to operate the System on behalf of
the city or otherwise upon such ter~s ar,d conditions as are
equitable to the City and the Corr.pany. The Company agrees
that, in the event of a termination of any other agreement(s}
between the city and third parties to construct, orerate l or
maintain any other Broadband COrrL"'!1unications Facility in the
service Area, the Company may operate said Facility on behalf
of the City on such ter.ms and conditions as may be agreed to
by the company and the City Council in their sole discretion.
17.5.02 upon the termination of this Fran
cbise due to the expiration of the term of the Franchise
qranted herein~ the Company shall ~e entitled to the return of
the security Fund deposited pursuant to Section 17 hereof~
along: with all interest thereon~ c,r any portion thereof as
remains on deposit 'With the City }'!:,ana'3'er at said termination ...
after account is taken for all offsets necessary to compensate
the city for any uncured failure to cO:!1ply with any provision
of this Franchise as herein provided,. provided that if the
Company continues to operate the Syste~ following the termina
t.ion of this Restated AgreeLlent, the Companj' shall not be
entitled to a return of" the Security Fund until the end: of
sU<:h continued operation.. In the eV€.'.'1t of a termination of
this Franchise for cause due to a material breach by the
Company or otherwise, or a termination pursuant to secticn
13 .. 2 hereof, said Security Fund shall became the property of
the city to the extent necessary to cover any costs, loss, or
damage incurred by the City as a reS'.llt of said termination or
material breach, provided that any a~O'.Jnts in excess of said
costs, loss or damage shall be refunded to the Company.
17.5.03 In the event or a ten!1ination of this
Franchise due to a material breach of this Restated Agreement
by the Company" as provided in Section 17 hereof, or any other
terlltination fo-r cause as pro'iided in this Restated Agreement
{oth~r than a terJll:ination for abandor..r,ent). the City Council
may order that the entire Srste.'TI sh.all become the sole
property of the city .. in 'Which event the Company shall be
entitled to a payment from the city for the S}'stem equal to an
equitable price for the System at the time of the termination.
In the event of such termination an:i receipt of payment
schedule bet....,een the COlr'pany and the City, the Company shall:
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cooperate vith the city. or vith any
Person authorized by the city Coun
cil to operate the System, in ma1n
taining the distribution of Services
over the System during such transfer
of ownership period:
promptly execute all appropriate
oocuments to transfer to the City,
free of any and all encumbrances ..
title to the System~ as ve11 as all
contracts, leases, licenses, per
mits, rights-of-.... 'ay. and any ot.her
rights necessary to maintain the
System and the distribution of Ser
vices over the System: and
promptly supply the City 'With all
necessary records to operate the
System, including, yithout limita
tion, all Subscriber records and
plant and equipment layout docu
ments.
17.5.04 In the event of termination of this
Restated Aqreement due to abandonment of the entire System l
without the prior written consent of the City Council, the
entire System shall become the sole property of the city~ the
Company shall not be entitled to any payment from the City tor
all or any part of the System, and the Company shall:
(i} cooperate with the city, or with any
Person authorized by the City Coun
cil to operate the System~ in main
taining the distribution of Services
over the System during such transfer
of G~ership period;
{ii' promptly execute all appropriate
documents to transfer to the City.
free of any and all enc..unbrances,
title to the System. as well as all
contracts. leases, licenses, per
mits. rigbts-of-way~ and any other
rights necessary to maintain the
system and the distribution of Ser
vices over the System: and
(iii) Promptly supply the city will all
necessary records to operate the
System, including, without limita
tion, all Subscriber records and
plant and equip~ent layout docu
ments.
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The Company shall be deerrej to have abandoned the
System if the Company has deliberately ceased to operate the
same for thirty {:3 OJ days vi thout intent to restore opera
tions ..
17 .. 5 .. 05 Upon termir:3:tion of this Restated
Agreement, other than a termination not for cause as provided
in this Restated Agreement, if so directed by the city
Council ... the Company shall, at its own cost and expense,.
promptly remove that part of the System loc3.ted in the Streets
and shall replace or repair and restore to serviceable
condition all affected Streets and governmental structures
therein in Sl]ch manner as may 'be reason.'!bly specified by the
City ..
17 .. 5.06 Upon ter~ir.ation of this Franchise
not for cause, including a termination dL:;e to the expiration
.of the term of the Franchise, includin9 any renoewal thereof,
the City Council may in its sole dis.:-retion elect to: {i) in
the event of expiratIon of the term of the Francllise .. and
non-renewal pursuant to the terES of this Restated Agreement
or termination of this Francbise pursuant to Section 6 .. 3,
hereof, direct. the Company to remove that part of the System
located in the Streets, pursuant to this Section 17; or(iiJ
purchase all or any part of the system at a price to be agreed
to by the City and the company.. In the event of a termination
n~ for cause, if the Company sells all or a portion of the
System, the company shall no,t purport. to confer any rights on
any purchaser to operat~ the SystE!::'1 in a manner '.,:hien requires
a franchise pursuant to then app:!.icable law, and nothing
contained in this Restated Agreement or the sale transaction
shall Obligate the City to grant a franchise to any purchaser
.of all or-a portion of the Sy5te:rn~ Tn the event of a purchase
by the City and receipt of paymerJt by the -Company from the
City, or agreement upon an appropriate payment schedule
between the Company and the City, the Company shall: (a)
cooperate with the City .. or wit]'"1 any pers'.)fl authorized by the
City council to operate the system, in maintaining the
distribution of Services over the System during such transfer
of ownership per-ioo; (bJ promptly execute all appropriate
documents to transfer to the City~ free of any and all
encumbrances, title to the Syste!r., as ... ·ell as all contracts"
leases .. licenses" permits" rights-ai-way, and any other rights
necessary to maintain the System and the distribution of
Services over the System; and (e) pr.:'lI:"ftly supply the city
with all necessary records to operate the System, including,
without 1 imitation, all Subscriber records and plant and
equipment layout documents.
17 .. 5.07 In the event of any acquisition of
the System by the City pursuant to this Section 17.5.. and
subject to the requirements of applicable laT., (i) the city
shall not be required to assume any of the obligations of any
collective bargaining agreements or any other employment
cont.racts held by the company or any other obI igations of the
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Company to any or its officers, employees, or agents, includ
ing, ~ithout limitation, any pension or other retirement, or
any insurance obligations: and (ii) the city may lease, sell,
operate, or otherwise dispose of all or any part of the System
in any manner, provided that the Company may seek the a'Ward of
any franchise to construct, operate, or maintain the System in
connection with any such sale.
17.5.08 If the Company fails to complete its
financing as provided in the financial plan provided pursuant
to Section 2.5~08 of this Agreement vithin one (IJ year of the
execution of this Agreement, the City may, by written notice
to the Company, terminate this Agreement and revoke the
franchise or the Company may terminate this Agreement by
written notice to the City. In the event of such a termina
tion, the Company will pay to the city, as liquidated damages,
the amount of Four Hundred Fifty Thousand Dollars ($450,000).
Such sum shall be the city's sole and exclusive remedy in the
event of such a termination and shall be satisfied first from
the cash portion of the security Fund and second from the
letter or credit portion of the Security Fund, to the extent
any such funds remain in the security Fund at the time of such
a termination; provided hat, (1) the city need not rely on the
bonds required by Section S~16 of this Agreement to satisfy
the Company's obliga.tion to pal' liquidated damages required by
this Section 17 ~5~091' and (il} the Company shall be obligated
pay any difference bet~een the amount of liquidated damages
requIred by this Section 17.5.08 and the funds, if any,
remaining in the Security Fund. The City and the Company
agree that such sum is a fair and reasonable estimate of the
damages vhich the City might suffer from such tgrmination and
further agree that the actual damages which the City migbt
suffer in such event are incapable of ascertainment -or
reliable estimate at this time~
17~ 6 city option to Purcnase Perc~_ntage of System
The City shall be entitled to purchase an interest
in the System under the terms and conditions specified in
Appendix K to this Res,~ated Agreement ~
SECTION IB --SUBSEQUENT ACT!O~
18.1 In the evect that,. after the effective date of
this ~s.1:~t~_,t:,"'9reement,. any court, agency, cocuuission 6
legislafive'bOdy .. or other authority of competent jurisdiction
takes any actic-n or makes any declaration which has an adverse
impact,. with respect to tne City, the company.-the CAO, or any
such ether Personrs} as may be specified by the city to be the
r6cipient o_f_ any payment(s) or other itel"l.(s} of value pursuant
to this ;Re$~e.te.d Agreement, then the City Council. acting
through the "Cit:i Manager. and the Comp<ll_ny shall enter into
neg-otiations to reasonably amend this Res:tat~ Agreement so as
to enable the parties to make ... 'hole the-city, -the CAD, or such
other personCs}. in a manner consistent ~ith said action or
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declaration.. by promptly restc-ring the City, the CAO, the
company. or such other Persones) to a position equivalent to
that .... hich it, or any or all of tne7n, held prior to sa id
action or declaration.
1!.2 In the event that. after the effective ddte of
this Res,t~ted Agreement, any court ~ a'3€ncy. commission ..
legislative body .. or other authority of competent jurisdic
t.ion: (1) declares this Restated Agree::-:ent inval id, to: (aJ
perform.,a:rtY act which is inconsistent ""ith any provision of
this ~_~'$~~~ Agreement or-'b) cease performing any act
required:' by ,a'ny provision of this Eestatc(! Agreement .. the city
council shall reasonably determine '-.,ihether said declaration or
requirement bas a material and a::iverse effect on this Restated
Agreement. The company shall notify the City ~anager of said
declaration or requirement vithin thirty (30) days of its
knowledge of such event. If the City Council determines that
said declaration or requiret'1ent does not have a material and
adverse effect on this Restated J.+gree_c.€r.t..-then the Company
shall comply with said declaration or requirement. If the
City Council determines that said declaration or requirement
does have a material and adverse effect on this Restated
Agreement.,. then the Company shall cor:'.ply • .oith said declaration
or requirement if the Company believes in g·ooCI f'3ith., based
upon a written opinion of its legal counsel, a copy -of lolhich
opinion shall be provided to the City Attorney. that said
declaration or requirement is binding upon the Company:
provided that., the -Company shall then, at the Cityls option.,
either (i) enter into negotiations .. ith the city to a::nend this
RIi1I~ij"~at_ed Agreement to eliminate any inconsistency or conflict
betweO~~_ said declaration or require!:'l€nt and the provisions of
this R_e!;_t:~~M Agreement and to enable the Company to make the
city 'whOle.,. or {iit seek a declaratory judg::1ent. or other
appropriate judicial relief 'iorith respect to the enforceability
against the Company of su·ch declaratio-n of requirement,
provided further that, the City may participate or intervene
in such action instituted by the CCffipany., subject to Section
16 ... 1..07 of this Re'stat:ed Agreerr;ent. Nothing in this Restated
Agreement shall prevent the City or the COI!'.pany from seeking
a declaratory judgment or other ap~roprlate judiCial relief
yith respect to said declaration or require~ent~ subject to
Section 16.1.01 of this Restated Agreement. In the event that
a court determines in the action irlstituted by the City or· the
Company that such declaration or requirement is binding uPon
and enforceable against the Company, or in the event a court
in any other action determines that such declaration or
requirement is binding on other parties similarly situated in
a manner t.hat is determined jointly by the city Attorney a.nd
by the company1s legal counsel to t:e sufficient precedent to
determine the Companyrs obligations~ the Company shall comply
with such declaration or requirement. The City Council may
then determine whether compliance ""ith said declaraticn or
r-equirement by the Company 'Will l!":ateri.3lly frustrate or impede
the ability of the Company to carry out its obI igations
pursuant to, and the purposes of. this Restated Agreement. If
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the City Council so detennines, then the Ccmpany and City
Council shall enter into negotiations to amend this Rest,ated.
Agreement so as to enable the Ccppany to make the City whole,
in a manner consistent vith said declaration or requirement~
by restoring the city to a position as equivalent as reason
ably possible to that which it ~eld prior to said declaration
or requirement.
SECTION 19 --RENEWAL OF FRANCHISE
19.1 Subject to Section 625 of the Cable Act~ the
city reserves the right to grant or refuse to grant any
renewal of the Franchise follo· ... ing the expiration of the
initial term of the Franchise and to condition any such
renewal upon the Company"s full cOU1pliance with all amendme.nts
~r other modificaticns of this Restated Agreement" as may be
specified by the City Council. provided that the company's
failure to agree to comply fully with all said amendments
shall not be grounds for denial of renewal under Section
626{c) {l) tA) of the Cable Act; provided further, that this
exclusion shall not in any 'Way alter any other rights the City
has under Section 626-'Cf the Act, including -withQut limitation
the right to condition approval on the matters referred to in
section E2E(C)(1)[C) and (DJ of the Cable Act.
19.2 At any time prior to the expiration of the
initial term of the Franchise, the City council and the
Company, may agree to renegotiate all or any part of this
:Re,~_t~~ Agreement. As a result of such petition. the City
Couooil"'may grant a renewal of the Franchise for a period of
up to fifteen (15) additional years subj ect to the Company's
agreement to comply fully ~ith this Restated Agreement and all
amendments or other-modifications to this Re5t._a~e,~ Agreement
as may be agreed u'pon by the parties.. '
SECTION 2~ --SUNDRY PROVISIONS
20 .. 1 The Appendices to this Restated Agreement,
attached hereto, and all portio,ns thereof and exhibits
thereto, are, except as otherwise specified in this Restated
Agreement or in said Appendices,. incorporated herein by
reference and expressly Ulade a part of this Restated Agree
ment.. The procedures for approval of any subsequent amendment
or modification to said Appendices snaIl be as set forth in
this Restated Agreement or the Appendices.. The Company shall
not commence const.ruction of the System until it ootains
approval of the plan required to be approved pursuant to
Section 6.14 of this Restated Agreement by the City Manager.
provided that, the City Manager may authorize the Company to
commence construction pending final approval of said. plan.
The City council may terreinate this Franchise,. which termina
tion shall be deemed to be a termination for cause, if, within
six (61 months after the due date of all plans required to be
approved pu.r-suant to this Restated Agreement. unless otherwise
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extended by the City council ~ sllch plans have not been
delivered to the citYa
20.2 Any action to be caken by the city Council
pursuant to this Restated Agreement shall be taken in :accor-
danCe with the applicable provi sians of federal,. state~ and
local law" as said law may be a:r.ended or modified throughout
the term of this Restated Agreer.'":ent ~ In add i tion to such
other requirements as are or may te set forth in said federal,
state,. and local la T"" any such dction shall be taken only
pursuant to a resolution or ordinance d'Jly adopted by the city
Council after notice to the Company and an opportunity for the
Company to be heard regarding said action. Any action to be
taken by the city Manager pursuant to this Restated Agreement
shall be embodied in a written docuIr,ent and shall be accompa
nied by notice to the Company and an opportunity for the
Company to presents its vielll"s reg,arding said action.
:20.3 For the purposes of all proceedings before the
city Manager or the City council pu~suant to this Restated
Agreement .. 'Wherever this Restated Agree~ent requires that an
action be t.aken or not taken by the Co"t.1pany or the City on the
basis of operational, tec~ical, or economic feasibility or
viability, the Company shall have the burden of demonstrating
the existence or lack l as ap?licable in the case of a particu
lar provision of this Restated Agree~ent; or said feasibility
or vIability. Nothing in this Section 20.3 shall be inter
preted as being in conflict with the provisio,ns of Section 19-
of this Restated Agreement.
20.4 This Resti:!lted Agree::'cnt e~bodics the entire
understanding and agreement of the ci t:{ and the CompaI"1:f with
respect t.o the subject matter hereof and merges and supersedes
all prior representations, agree~entr and understandings ..
whether oral or written, bet\l.'eeo the City and the Company with
respect to the subject matter "he t"eof, inclur:Hng 'Without
limitation .. all prio'r drafts of this Restated Agreement and
any Appendix to this Restated Agreement and any and 3111
written or ori:!ll statements or representations by any official,
employee.,. or agent of the City and by the Company. and the
PrOJ>Osal submitted by the Company on October 12 .. 1983. This
~,st~~~ Agreement constitutes t.he CO!i'_p,any 1 s voluntary offer
a'rid proposal to make the cOl!tmi tments contained herein and to
provide the capacity, services; facilities; equipmel1t l
contributions, support .. resources, and other benefits de
scribed herein.
20. S Except as othenlise provided in this Restated
Agreement or any Appendix-to this P,estateci Agreement l no
provision of this Re,state(j Agreement, nor any Appendix to this
Re~t::at:ed Agreement, shall be amended or otherwise modified .. in
wh.oi'!"' or' in part ... excep.t by an agree.':'.ent, in ,"'Titing, executed
by the City and the Company, which agree~er.t shall be autho
rized on behalf of the city through the adoption of an
appropriate resolution or order by the city Council.
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20~6 In the c~se of any ambiguity or inconsistency
between this Restated Agreement and any Appendix to this
Restated Agreement~ this Restated Agreement shall prevail.
20.7 Notwithstanding any other provision of this
Restated Agreement" the Company shall not. be liable for delay
in perfonnance or failure to per-form, in ""hole or in part .. its
obligations pursuant to t.his Restated Agreement due to strike"
boycott" or lockout; war or act of war (whether an actual
declaration is made or not); insurrection~ riot; act of public
enemy; accident; fire; flood, storm r earthqua~e ... lightning, or
oth~r act of God; technical failure, ~here the Company has
exercised all due care in the prevention thereof; or other
events, to the e~tent that such causes or other events are
beyond the centrol of the Company; and any such delay or
tailere to perform shall not be considered a breach of this
Restated Agreement. In the event that delay in perfo-rrnance or
failure to perform affects only part of the company's capacity
to perform, the Company shall perform to the extent that it is
able to do so. The Company agrees that in correcting said
cause (5) 'Within its control and in effecting such partial
performance" it shall take all reaso,nable steps to. do so in as
expeditious a manner as possible~ The company shall utilize
its best effo·rt to notify the City Manager of the occurrence
of an event covered by this Section 20.7 within five (5)
working: days of the date upon 'Which the Company learns or
should bave learned of its occurrence.
20.8 Every no·tice.. order.. petition. document ... or
ot.her direction or communication to" be served upon the City or
the Company shall be accomplished by personal delivery or by
certified mail.. return receipt requested. Every such
communication to the Company shall bc sent or delivered to:
(iJ its office located in the City or, prior to the establish
ment of said office, to!
ca-bl'E{'''-Communications Cooperative
of':"P'i:ilo.. Al to, Inc.
i>200.J'ai-k. Biyd.
f'J9,:,.gtb#::;,,~alifornia 94 :l01
:':f{~~~~nti~: General Manager
¥~~aSCPyto:
~'l_'4)i.,:};odw~rdt castro, Huddleson ,. Tab.iIl
3000 Sand Hill, Building 3; Suit.e 230 .
!I~rilo ~rki.CA 9 4C 2 5
''''A~t.entio-n,: James C. Kitch, Esq.
£'very SlJoCh communication to the City or the City
Council shall be sent or delivered to the City Manager and as
applicable, the City Attorney. The mailing of such notice ..
dir-ection .. or order shall be eqlJ.ivalent to direct personal
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notice and shall be .(feemed to have been given ..,hen :mail~d.
Personal delivery of any notice shall be deemed to occur upon
receipt of the notice at the appropriate office(s) or by the
appropriate individual{s}~ The foregoing names and/or
addresses may be changed upon provision of appropriate notice
by either party.
20.9 The Company ~arrants~ represents, agrees, and
acknowledges, and at or before the Closing, the Company shall
sUbmit to the City Ma~ager, in a forn acceptable to the City
Attorney .. an opinion Of. counsel stating~ that~ as of the
effective date of this Restated A9ree.!':',;:.nt:
".---
{il The Company is a corporation, duly
organized, validly existing. and in
good $ta~ding under the lavs of the
State of California;
(ii) The Company has the requisite po...-er
and authority under applicable law
and its bjo"-la·.'s and articles of
incorporation, is authorized by
re90]utions of its Bo"rd of Direc
tors, and has secured all consents
wbich are required to be Obtained as
of the effective date of this Re~
stated Agreenent, to enter into and
legally bind the Company to tl:!is
Restat~d Agreement and to ta~e all
actions necessary to perform all of
its obligations pTlrsuant to this
Restated Agreement;
(iii) This Restated Agr-eernent is enforce
able against the Company in accor
dance ,..ith the provisions hereof:
(iv) To the best of such counsel's knowl
edge, there is no action or proceed
ing: pending or threatened aqainst
the company or any Affil iated Person
..... hich questions the validity, or
prospective validity of this Restat
ed Agreenent~ or of any e,ss,e-ntial
element upon. \t(hich this Restat'ed
Agreement depends, or of any "action
to be taken by the Company or any
~ffiliated P~rson; and
'v} Insofar as t'he legal capacity Of the
Company to ca rry OIJ.t any obligatIon
~ursuant to this Restated Agreement
is concerned, the execution of. and
perforJ!'.an-ce p-ursuant to" this Ref
stated Agree~erlt 'Will not result-hi
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the breach or violation of any pro
vision of this articles of incor
poration or by-laws of the company
or of any statute. regulation.
agreement, judgment, or decree to
~hich it is subject.
20.10 At or before the Closinq, the Company
shall deliver to the City Manager, in a form acceptable to the
city Attorney, a certifiec copy of the resolution(s) [of the
Board of Directors of the Company. and,] as applicable, each
Affiliated Person and Pers~n holding Control of the Company.
a~thorizin9 execution of this Restated Agreement.
20.11
Agreement shall
appropriate~ the
assiqns.
All of the provisions of this Restated
apply to the City, the Joint Po'Wers lIIhere
Company, ar.d their respective successors and
20.12 The, rights and remedies of the parties
pursuant to this fie,stated A9:reement are cumulative l except as
otherwise provided in this Restated Agreement l and sha11 be in
addition to. and not in derogation of any other rights or
remedies which the parties may have ... ith respect to the
subject matter of this Restated Agreement. A waiver of any
right or remedy by a party at anyone time shall not affect
the exercise of said right or remedy or any other right or
other remedy by such party at any other time. The failure of
a party to take any action in the eVent of a material breach
by the other party shall not be deemed or construed to
constitute a vaiver of or otherwise affect the right of such
party to take any action permitted by this Rest-a,t;ed Agreement
at any other time in the event that said material breach by
such party has not been cured,. or with respect to any other
material breach by such party.
20~13 If any sectio~.. subsection l sentence l
clause. phrase l or other portioo of this Restated Agreement
iS I for-any reason, declared invalId .. in .'hole or in part, by
any courtl agency,. commission .. legislative bodYI or other
authority of competent jurisdiction~ such portion shall be
deemed a separate distinct .. and independent portion. Such
declaration shall not affect the validity of the remaining
portions hereof ... 'Which o,ther portions shall continue in full
force and effect.
20~14 The headings contained in this Restated
Agreement are to facilitate reference only, do not form a part
of this Restated Agre~~entl and shall not in any way affect
the construction or interpret interpretation hereof. All
r~~erences to any gender or number shall be deemed to include
all others# as the context may require.
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20~ 15 The Co!:',pany sha:l1 conduct the ","ork to be
performed purs\lant to this Restated )..gree~ent as an indepen
dent contractor and not as an agent of the City.
20.16 Thi!o RestatEd Agreerr.ent shall be deemed to
be executed in the City of Palo Alto, County of Santa Clara,
State of C;o:lifornia.l regardless of the domicile of the
Company. and shall be governed by and construed in accordance
in accordance with the la'.'s of the State.
20.17 The Company and the City agree that any
and all claims asserted by or against the City arising under
this Restated A9re~ment or related t't-Jereto shall be heard and
determined either by a court of the enited States located in
the Northern District of California (RFederal Court-) or in a
court of the State of California for the County of San Mateo
or the county of santa Clara (-California state Court-). To
effect this agreement and intent, tone Company agrees that:
(i) If the City initiates any action
against the C~~Pdny in Federal Court
or in CalIfornia State court,. in
persona:ll service of process may be
made on t.he Co,pany either .. "herever
such COr'cpany may be found, or by
registered {!1.:1 i 1 addressed to the
Company as its office in the Service
Area as required by the Agreement,
or to such other address as the
Company !!::3,£ provide to the City in
'Writing:
(ii) With respect to any -action between
the City and the co:npany in Calit'or
nia St,:tte court, the Company h.ereby
expressly ~/aives and relinquishes
any right it Light other have: (a)
to I:!ove or dismiss on grounds of
forum nqIl, cagy§:!niens; (b) to remove
to any Federal Court other than the
Federal Distr iet Court for the
Northern District of California; and
(c) to move for a change of venue to
a court of the State of California
outside San Mateo county or Santa
Clara county;
(iii) With respect to any action between
the City and the Company in Federal
Court, the Company expressly waives
and relinquishes any right it miggt
othert.'ise have to move to transfer
the action to a United states Court
outside of the Northern District of
California; and
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(iv) If the Company commences any action
against t:he City in a CalifornIa
State Court other than the Califor
nia Court of Appeal or the Califor
nia Supreme Court located Q·ther than
in San Mateo County or santa Clara
Count.. then. upon request of the
City. the Company shall either con
sent to a transfer of the action to
a california state C~Jrt located in
San Mateo County or Santa Clara
County or. if tbe court where the
action is initially broU9ht will not
or cannot transfer the action.. the
COClpany shall consent to dismiss
such actio'n vithout prejudice and
may thereafter reinstitute the ac
tion in a California State Court
located in San Mateo county or Santa
Clara County.
20.18 Tbe CO!:1pany agrees that it sball net
oppose the participation or intervention by the city in any
suit. a.ction, .or proceeding involving the Company with_ re.s,Pe<::t
to the System or any material provision of this Re~'ta_t~
Aqreement. ' ,,, ",
IN WI~ESS WHEREOF, the City, by its Hayor and City
Clerk, thereunto duly authorized by the City Cou.ncil, has
causea the corporate name of the City to be hereunto signed
and the corporate seal of the City to be hereunder affixed and
the company. by its __________ .. thereunto
d,·uly authorized, has caused tne name of the Company to be
hereunto Signed and the corporate seal ~f the Company to be
hereunto affixed as of the date and year first abo-..;e 'W'citten.
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
AT'rEST: APPROVED:
City clerK Mayor
APPROVED AS TO FORM:
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The service Area shall include the area outlined in
Exhibit I-A: provided, however, that {aj througbout the term
of this Franchise, the Service Area shall specifically not
include the academic portions of Stanford University served by
stanfol""cPs SWet system as shot .. rn on the Map attached bereto as
Exhibit 1-C, and (b) d1Jring the period prior to August 1,
1995-, the service Area shall specifically not include the
Upper Page XiII, Los Trancos, Skyline, and other areas
generally south of Altamont Road at Page Kill (hereinafter
-the lJpper Page Mill area-J as shown on the map attached
hereto as Exhibit 1-B. During the period cOllunencing Au-gust 1,
1993 until February 1 .. 1995, the Company and the City agree to
neqotiate in good faith to determine whether (a} cable
communicatIons service is necessary in the Upper Page Hill
area, and (b) f if so, 'Whether there are less expensive
alternatives to making such service available other than
laying cable. In the event that the Co~pany and the city find
either (a) that cable communications service is not reasonably
liecessary in the Upper page Kill area.,. or (b) that there are
other less expensive alternatives than laying cable, then
after such determination, the Upper Page Mill area ... ill be
permanently excluded from the Service Area. In the event that
the Upper Page Mill area is included in the Service Area at a
futUre time~ then the company shall be entitled to compensQ
tioa as provided for in section 10.7 of this Rest..ate<l Agree
ment.. Notwithstanding the foregoing, the company"specifically
reserves its right to contest the poW'er of the City to
designate the Upper Page Mill area as part of the Service
A.rea.
{Attachments are Exhibits l-A, I-B, and 1-C.]
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APPEND1X A
SYSTEM CHARACTERISTICS AND
T~CHNICAL PERFORMANCE/TESTING REQUIREMENTS
SECTION 1. SYSTEK CHARACTERISTICS
A~ Technical Features
l~ Headend/Hub Design, Location and Intrasystem Con
nection
The Company will provide a single headend. The
location will be determine~ prior to construction. (It is
anticipated that its location will be W"ithin L 5 Diles of the
intersection of Xiddlefield Road and Melville Avenue, subject to
~sultation with the city.) The facility .. ill include a building
of 9~OQO square feet or more~ including offices~ warehouse, studio
facilities and parking_
2. NumberjType/Bandvith of Cables
The system will consist of two coaxial cables. One
cable (-the A cable-) will be activated immediately. The second
Cable (-the B cable-) will be beld in reserve.
The A cable viII be a 550 Mhi, sub-split facility.
The B cable will be a 550 Khz mid-split or super-split facility~
The B cable will be initially installed with amplifier casings that
can be used to house amplifiers at the time of activation.
cable Co-op shall activate at least 10 miles of the
B cable by December 31, 1991. Cable Co-op and the city will seek
to agree on paths for activation, Which agreement shall not be
withheld unreasonably. In selecting these paths, Cable Co-op may
take account of the needs of other potential users of the B cable,
including, but not limited to, Palo Alto Unified School District,
Stanford", and potential commercial users.. Cable Co-op hereby
agrees to negot.iate with the city for activation of additio-nal
mileage, as provided hereinafter.
The remainder of the B cable will be beld In reserve
until the Company determines that there is a demonstrated need for
the B cable and that it is reasonably economically feasible ~ar the
Company to activate the B cable. Upon the request of the city. the
Company agrees to negotiate with the City regarding the economic
feasibility of the partial or total activation of the B cable. In
detenaininq the economic feasibility of the partial or total
activation or the B cable~ the parties shall ta~e account of Cal
the demonstrated demand for services to be offered on the B cable~
taking particular account of the presence or absence of any long
term contracts for such services, and {b) the Company's actual and
reasonable costs for said activation, includin9 materials, labor,
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anticipated maintenance and operaticns costs l costs of capital, a
reasonable return on debt and equity, plus a commercially reason
able profit for said activation~ The company will activate the B
cable when the pr-ojected revenues from the activation of the B
cable exceed the projected costs of activation for the remaining
tera of the franchise,. when the Compal"ly is able to obtain financing
on reasonably acceptable and prudent te~s {or the activation of
the 8 cable... and 'When tttere is a demonstrated need: for the B
cable's capacity.. The Company reserves the right to detennine
whether the B cable shall be mid-split or super-split upon
activation ..
3. Signal Reception/Distribution Techniques
Satellite reception will be from a 7-meter equiva
lent Hultisat antenna equipped to receive in both polarizations
from at least five satellites. This antenna viII ensure high-qual
ity satellite signal reception even as spaCing is red'uced to two
degrees over the next several years.
Off-air reception 'Will be provided by scientific
Atlanta antennas (or equivalent equipment) Cor FM and broadcast TV,
mounted on a self-supportinq tower that will be approximately 10'0
feet high.
Interactive Capability
The sub-split amplifiers on the A cable will allow
for full interactive capability in the cable distributi~n plant~
At the time that the B cable is activated, it viII have a similar
interactive capability. This capability~ on the A cable initially
and. on the 8 cable in the future~ will be augmented by headend
equipment that will provide for necessary frequency translations
and status monitoring. The final selection of equipment and
protocols will be determined at the time of initial activation.
The company anticipates working with other organizations to
demonstrate the feasibility and suitability of other equipment and
protocols. Additional equipment may be added to the cable plant
from time to time to enhance its intera-ctive capability at the
discretion of the Company.
5. Emergency OVerride
The System will incorporate a remotely-accessible
emergency override for both video and audio transmissions in
accordance 'With FCC rules and regulations. The override capability
will be granted only to those persons designated by the City in
accordance with current FCC rules and regulations.
6. standby Power
The ~ompany will provide a 20 Kloi generator with
automatic start and cutover to provide full headend capability and
limited origination. The distribution plant will have four-hour
battery backup at each power supply.
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7.. Parental Co..,trol Options
Primary parental control security will be provided
by the converter used to provide basic service. The TOCOK
converter that will be used for basic service contains a simpler
flell[ible parental col1trol system that .. ill allow parents to prevent
Children froil. -choosing particular channels. Additional devices
will be available for sale or lease to meet the requirements cf
the Aqreement.
B.. Enhanced Service Delivery Techniques
.Pay and pay-per-vieW' services will be delivered
using TOOOK converters and other delivery techniques that may be
adopted in the futUre (includinq~ perhapsl a hybrid impulse
pay-per-view system).. Data communications services will be
delivered using pro·tocols and equipmen·t that .. ill be determined at
the time of initial activation.
B. Service capabilities
1. Subscriber Services
a. Over-The-Air Signals
Initially, the System will carry approximately
15 off-air signals.
b. Automated Programming
Initially, the System viII provide the follow
inq automated proqramming services:
(i) program guide
(ii) automated programmiTl9 behind: certain
local channels, as d~emed advisable by
the Company.
Other automate.oJ programming services may be added from time to
tiKOe.
c. Community Programming
(i) Access
Three public access channels will be
provided initially on the A cable. Two additional public access
channels viII be provided on the 8 cable ~hen it is activated. The
public access channels vill be administered by the CAO in accor
dance with this Agreement and applicable law.
A.."l additional three channels viII be
provided initially on the A cable for governmental access. Two
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additIonal channels viII be available tor governmental access on
the S cable.
( ii) Local origination/Operator-Originated
Programming
The Company
ProqraDUling Channel on the A cablea
made available on the B cable at the
channels vi!l be administered by the
viII provide one community
Additional channels may be
time it is activat,ed. These
CompanYa
e. Cable Progrdm services
i'he Company yill provide at least 15 cable
program services on the A cable. Additional channels will b~ made
available on the B cable ~hen it is activated~ subject to negotia
tion between the company and the City.
f. Pay Cable Services
The Company will initially offer at least 5 pay
cable services# subject to availability of the proposed services
and other services that may become available prior to the time of
activation~ Additional channels may be mada available on the B
cabla at the time of activation ... subject to negotiatio.n between the
Company and the City.
q. Audio
The Company vill offer at least 2S regional FM
channels as part of its FH service. which will be available to
subscribers receiving Basic Service for an additional fee~ The
Company reserves the right to offer additional regional FK
services" remote FK services... stoareo sim.ulcast services, and
specialized audio services as part of the basic service or as part
of a separate pay-FK service~
h. Leased Access
The Company will offer at least two leased
access channels on the A cable and additional leased access
channels on the B cable at the time of activation. in accordance
with ~his Agreement and subject to applicable law~
i. Interactive services
The COIl'.pany will conduct demonstration projects
and experiments with interactive services, including electronic
mail ... text-editing and community information banks. during the
initIal ten years of operation. subject to regulatory approval.
The provision of interactive services on a broad basis and in later
years viII be determined by the company in accordance with its
experiences durinq this initial test perioo. The Company will work
'With local businesses" schools. institutions. and the City in
carryinq out these demonstration projects and experiments.. The
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company ~ill wo~k with the City to determine which of the following
types ot services shOuld be given highest priority in conducting
demonstration projects and experiments and in providing broad-based
services:
one-way pay-per-view
video games
security monitoring
impulse pay-per-view
teletext
data communications
opinion polling
videotext
community information banks
Telenet~ Tymnet and other natiGnal network connections
electronic mail
energy management
home shopping
home bankirt9
teleconferencing
j. Disabled
In addition to makinq production facilities
accessible to the disabled, the company, alone and in cooperation
with the CAO, will support programming for the disabled on the
access channelS. community proqralllDlinq cbannell and automated
channels.. Capt.ioned progralIUlling will be offered as it is made
available. The Company will support experiments in developill9
advanced communications interfaces for the disabled_ working in
cooperation with researchers at the VE"ter-ans Administration and
other local institutions.
Ie, Regional
The Company, alone and in cooperation with the
CAO~ will offer regional programming on the access and community
programminq channels. The Company anticipates participating
actively in t.he Bay Area Interconnect 4 The Company vill also
cooperate with other cable operators and organizations ~nd
producers~ such as K-QED" Foothill-DeAnza" Stanford and the Film
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Arts Foundation. throughout the Bay Area. on a reciprocal basis. in
developinq other forms of reqional programming.
2. Business/Other services
a. Capability
The Company wl11 provide services to businesses
throuqhout the Designated Service Area on the A cable initially and
on the B cable at the time of activation.
b. service Types
The Company viII provide the services offered
to residential subscribers to business subscribers as well
(bovever. the company reserves the right to adjust the terms and
rates of services for businesses). Of particular interest to
businesses will be an automated business news service. a satellite
business news service. and interactive services as they become
available.
C.. Prod·uction Facilities
Production facilities ~ill be provided as specified in
Appendi>< E.
O. Access to upstream Capacity for Leased 6 Government and
Access Channel Users
One upstream channel and one additional downstream
channel on the A cable 'Will be reserved for use by Leased"
Government and Access Channel users. On the B cable" an additional..
two upstream channels will be reserved for use by the city.
E. Parental Control Devices
SUbsection I.A.7., above 6 is hereby incorporated by
reference as though fully set forth herein.
Appendix A, II, A. 1.6 second paragraph
At a D1n1mUD, the System shall be designed and operated
so as to meet all applicable technical performance standards of the
FCC and the city performance standards set forth at Exhibit 1 to
this Appendix A. The Company may petition the City for a 'Waiver of
anyone or more standards upon a showinq of undue hardship or lack
of authority to require the standar~ or standards.
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EXHIBIT 1 TO APPENDIX A
I.. TELEVISION AND AUDIO SIGNALS
Parameter
carrier
to-noIse
Ratio
video
Frequency
Response
Minimum
Tap output
FCC
Standards
36dB
+/-2dB
5\
Per-
formance
Standards
HoB
+/-2dB
-.5HHz to
+3.75 MHz
16dBMv
5\
Remarks
since these are ·worst Ratio
case-specifications l operating
performance for most Subsccib
ers should exceed the standard
by 1-2 dB.
Sha:l not exceed these values
for anyone RF-to-video link.
Reference to the average of the
highest and lowest amplitudes
~ithin these frequency boun
daries ..
Measured at 5S0 MHz at any Tap
in accordance ~ith cable tele
vision industry standards.
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U. OATA SIGNALS
C~r:r:ier
to-Noise
RatiO'
Tran.s.lIis
don.
trro.. l<a te
l'ranstlls
don
l!atejSpee<:l
1_0 x 1Ci
J ::: ~, to'
n .!I
'Various
(110 bp<;
to 5~5
Jlbps)
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Normalized j~stification ratio
J shall be between O~4 and O~S
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III. SIGNAL LEAMGE AND INGRESS OF OTHER SIGNAL TO CASLE SISTEK
Parameter
Siqnal Leak
aqe Limita
tions
Isolation to
Inqress
SUbscriber
Tap to Tap
Isolation
Up to and
including 54
HlI<
OVer 54 MHz
to and inclu
ding 216 MHz
OVer 216 MHz
FCC
standards
165 Micro
volts per
meter at 10,0
feet distance
20. Microvolts
per meter at
10-feet dis
tance
15 Microvolts
per meter at
10,0 feet
distance
9
Performance
Standards
Comply with FCC
Comply wIth FCC
signal leakage
standards
20dB
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EXHIBIT 2 TO APPENDIX A
PERFORMANCE STANDARDS. TESTlEG REQUIREMENTS AND PROCEDURES
I.. PLANT MAINTENANCE
Unless modified by other agreement bet'Ween the Company and the
City.. the Company shall observe the testinq requirements and
procedures described in this Exhibit 2 to Appendi~ A~
The technicians will have a daily routine requiring-the
performance of predetermIned checks on the system.. By performing
these cbecks on a regular basis .. it is expected that the system's
performance will always be maintained at an optimum level and
serious outages will be avoided.
Certain tests may require that the signal be interrupted. In
such instances, these tests will be cond'ucted in the early morning
hours in accordance with the requirements of Section 9.2 of this
Agreement.
Records will be kept of the results of all tests so that a
continuous written report of the System's performance will be on
file ..
II • PLANT TESTS
A. Daily Che9):s
1. Each Channel on the System viII be monitored daily
for picture quality and audio quality .. The pictures s-hall be exam
ined for ghosting and noise on each channel. Any cbanqe.s in
picture quality and audio quality shall be no,ted and corrective
action taken.
2. All Carrier levels viII be checked at the Head-End
in accordance with standard industry practices ..
B.. Weekly Checks
1.. Each channel's carrier level and Audio level \/'il1 be
measured and recorded, as 'Well as checking and recording moo'ulation
and deviation percent ..
c. Monthly Tests and CheCKS
1.. All Carrier Level Meters will be checked ~or proper
calibration and results logged.
o. Annual Tests. Measurements and Inspections
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1.. Pilot Carrier levels at the e)(tremities viII be
checked.
2. The f~llowing tests will be performed a~ the Trunk
e~tremities: in addition, six feeder legs on each Trunk wIll be
selected to form a representative sample of the Plant and will be
tested:
* Carrier to Noise
• Hum
• composite Triple Beat
• Carrier Levels
Trunk Ex~remlty:
Trunk extremity is the last amplifier on the longest cascade
in each trunJc cabl.e run.
):.. The annual tests and measurements will include a
full .FCC proof of performance in addition to all measurements
previously outlined. The Company shall ensure that the proof of
1Ilea:e;urements are made on an annual ba.sis in accordance with FCC
requirements ..
I II.. MAINTENANCE
A. Maintenance luree
The Company shall ensure that there vill be adequate
staff or ot.her personnel to comply with the maintenance and testing
provisions set forth in this EXhibit 2 to Appendix A. The company
shall utilize a motorized technical 'Work force equipped __ with the
necessary quality tools and test equipment required to effect
quality maintenance service on the System in a timely manner.
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APPENDIX B
Appendix B# II, C.
3. The Compar~y shall activate the. portion of the
Institutional Cable on the B Cable according to a schedule to be
aqreed to by the Company and the City as p3rt of the Engineering
Design and system Architecture referred to in Exhibit 3 to Appendix
A to this Agreement.. 'Which schedule shall be consistent 'With
section I.A.2 ot Appendix A to this Agreement.
4. The Company shall complete all construction of the
Subscriber System and the Institutional Cable so as to pass and be
capable of servinq all residence and institutions existing in the
Service Area on the effective date of the Agreement no later than
the la.::iot day of the twenty-fourth (24th) month following the
effective date of this Agreement. The Company shall continue to
CQn5truCt. the System to serve stru.ctores 'Which are occupied or
built vithin the Service Area or in any areas annexed by the Joint
Pcwers within the areas shown on the map of the Service Area
(Exhibit 1 to this Agreement), except as provided in Exhibit 1 to
this Agreement, after the effective date of t.his Aqreement~
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APPENDIlC C
I. LIST OF BASIC SERVICES
A. Basic Services, including Universal service~ shall
Initially contain the following broad categories of video pro
gramming services, subject to the availability of such services at
any time.:
UNIVERSAL SERVICE (at least 12 channels)
Local Broadcast Stations (7)
Local Broadcast/Company (1)
Government Channels {1)
Public Access channels (1)
Company Channels (2)
TOTAL ( 12)
BASIC SERVICE (at least 45 ch_ann~Js. including all of the. channelJ!
in Universal service~
Lor-al Broadcast staticns
Government Channels
Public Access ChalL~els
Company/Local Channels
Reserve Channels.
TOTAL
(14)
( 1)
(l)
(l2)
(')
(52)
{* Reserve channels will be made available as part of Basic Service
only when programming is available as provided in section III of
this Appendill( C .. )
AUDIO SERVICE {at least 3D ~udio channels)
The Company" in its discretion. m;:,:y increase the number of
channels made available to Subscribers in each of the programming
categories described above from time to time.
B. The Company shall offer the Basic Services at Channel
NumlJers that it may determine.. The initial proposed Channel
Numbers are set forth in Exhibit 1 to this APPEndi~ c. The City
may consult with the Company regarding the assignment of Channel
Numbers ..
The Company shall determine which FK stations will be offered
as part of a sepa~ate Audio service avai13ble to Basic Subscribers
at an additional charge. The ~ompany may adjcst the channels made
available as part of the Audio Service depending on the availabili
ty and cost of such services.
C. All
Services" vill
payment of the
Enhanced services... including all Intera.ctive
be available to any Basic service Subscribe upon
applicable charges and registration of appropriate
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equipment if necessary.. All Interacti'Ye services. all pay
ServIces. all Pay-per-Viewand all Audio services will be available
only to Basic Service subscribers upon payment of the applicable
charges and registration of appropriate equipment if necessary.
II. EQUIPKENT
The company shall provide. on a sales or rental basis. or as
part of a category of service. converter equipment necessary to
receive service. The company may sell or rent or othe~ise ma~e
available other equipment for service in its discretion.
III. MODIFICATIONS
Appendix C may not be amended or modified vit~t the prior
approval of the City Council,. provided that,. the Company l!1ay change
cbannel offerings so long as the Company maintains the level,
quality and mix of Services specified in Appendix C, and provided
further that the Company may select SUbstitute converters for its
different. services r ana provided further that the Company shall add
additional Pu1:Ilic and Government Access Channels r not to exceed the
number specified in the Franchise Agreement, to Basic service as
such additional channels are made available for cablecasting to the
Company.
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EXHIBIT 1 TO APPENDIX C
BASIC SERVICES AND ASSOCI~TED DIAL LOCATIONS
[inaert current channel lineup]
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APPENDIX D
The system shall have a capacity equivalent to at least ten
Video Channels for Enhanced Services. The Company shall, either
directly or through the lease of Channels on the System# ofter the
following categories of Enhanced Services, consistent with section
3." of this Agreement* provided, bo'Wever,. that only Basic Subscrib
ers shall be eligible to receive all of the following categories of
service.:
{the rest of Appendix D is unchanqed, except for replacing ·Zenith
Z-TAX· with -Tocom or equivalent-in the second to last sentence of
section I~ B.l
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EXHIBIT 1 TO APPENDIX 0
ENHANCED SERVICES AND ASSOCIATED DIAL LOCATIONS
[insert current channel lineup]
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APPENDIX E
THE COMMUNITY ACCESS ORGANIZATION
I. CREATION OF THE COMMUNITY ACCESS ORGANIZATION
A. The Joint Cabl~ Working Group (the -JCWG-j. established
pursuant to the Joint PO\.'ers Agreement., has facil i tated the
formation of an independent.. non-profit corporation organiz-ed
pursuant to state law, to serve as a community access organization
for the Service Area .. and 'Which 'Will qualify for tax-exempt status
under Section 301{C) of the Internal Revenue Code of 1954, as
amende-d.
B. After execution and Closing of the Agreement, the city
Cou·ncil shall formally designate, in writing, a Community Access
Organization {the -CAO· J as the organization for purposes of
section C.3 of this A~reement. If, in the judgment of the city
Manager. the CAO is not carrying out effectively the purposes or
activities for vhich the CAO ~as established~ as p~ovided in this
Aqreement~ the City Manager may recommend to the City Council that
the City Council ~ithdraw its designation of the CAO and designate
another non-profit corporation for purposes of section 443 of this
A9reement~ including, without limitation l the receipt of support~
facilities, and equipment provided by the Company pursuant to
Section II of this AppendiX E and the administration of the Access
Channels.
c. The CAO shall undertake such activities and shall adopt
such rules and requlations as are permitted or required by this
Agreement. In addition to such other activities as may, from time
to time, be proposed by the City Cou~~} or the city Manager l the
CAO shall:
1. facilitate open, non-discriminatory access to the
System and protect the public interest in the
development of public services and programming;
2.. administer and manage the Access Channels on the
SUbscriber system and the use of the .fa.cilities l
equipment.... supplies l services l and o,ther support
made available to the CAO by the Company;
3. participate with the company in adninistering and
managing that portion of the Institutional Cable
made available to the CAO for use by public and
private non-profit institutions, as provided in
Appendix F to this Agreement;
support, through direct qrants, joint ventures
(which may be vith the Company)~ and its own pro
gramming initiatives, the development and pro
duction of publ ic services and programming to be
distributed on the Access Chann~ls;
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5.
6.
7.
participate in the training and education of
residents of the Service Area in the development
and producti~n of public ser.ices and programming
to be distributed on the Access Channels;
engage in fund-raiSing
theretrom for public ..
~rposes in connection
activities and use the funds
educatio-nal p or charitable
with the Access Channels;
adminis'ter the funds necessary to carry out its
purposes and objectives; said funds shall be se
cured from the start-up contribution required by
this Agreement; from ongoing annual contributions
by the Company; and from additional contributions
by the public,
Sa engage in activities and develop programming to be
distributed on the Access Channels that may assist
in attracting and retaining Subscribers. thereby
enhancing the value of the franchise and the system
to the COlItpany and increasing the public service
potential of the System for the public; and
9. engage in any other acts, matters, and thinqs
necessary or convenient in order to accomplish the
foreqoing objectives and purposes.
II. REQUIREMENT OF PLAN FOR FACILITIES, EQUIPMENT. STAFF. AND
TRAINING
A. The company will provide the CAO 'With the support and
facilities as provided in Exhibit 1 to this Appendix E~ Except as
e)[pressly provided for in Exhibit 1 to this Appendix E. such
facilities shall be provided subject to the rigbt of the Company to
use such facilities 25\ of the time .for community proqra:m:min.:;
prod·uetions. and subject also to the right of the Company to use
such facilities ~hen they are not being used by the city or the CAO
in accordance with rules and re~Jlations concerning -fal1ow studio
time-attached hereto as Exhibit 2 to this Appendix E. Such rules
and regulations shall specify that neither the CAO nor the City may
unreasonably withhold use of the facilities from the Company .. Such
rules and regulations shall also specify that the City and the CAO
shall cooperate with the Company to make s\)Ch facil ities available,.
subject to the foregoing limitati~s4 to the Company to facilitate
community proqramrting productions.
III .. Modifications
This Appendix E may not be modified or amended without the
prior approval of the City Manager 4 the CAO, and the Company;
provided that approval by the CAO sball not be necessary if the CAO
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bas not heen incorporated and des!qnated. ~$ provided in S~~tion I
ot this Appendix,
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EXHIBIT 1 10 APPE~DIX E
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REVISED MPAC/CABLE CO-OP AGREEMENT
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EXHIBIT 2 TO APPENDIX E
REVISED MFAC/CABLE CO-OP AGREEMENT
FALLO~ TIME WJLES
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APPENDIl{ F
ADVANCED SERVICES DEVELOPMENT
I. TECHNICAL CHARACTERISTICS OF SYSTEJo! WITH RESPECT TO ADVANCED
SERVICES DEVELOPMENT
The Company agrees that a portion of the channe1 capacity of
the Subscriber system I ~sistin9 of the one (i} upstream channel
reserved for USE by the City. the CA0 1 and Leased Access users and
the one (1) additional downstream channel as provided for in
Section 1.0 .. ot Appendix A to this Agreement l shall be reserved for
adv2ilCed services development and institutional uses of cable as
determined by the Company in consultation with the City Manager.
II. MODIFICATIONS OF THE TERMS OF APPENDIX F
This Appendix F may not J:.e modified or amended without the
p,rior approval of the city Manager and the Company.
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APPENDIX G
SUBSCRIBER SYSTEM SERVICES FOR
GOVERNMENTAL AND INSTITUTIONAL FACILITIES
Thi5 Appendix G sets forth the Services and equipment th~t the
Company will voluntarily provide to the governmental, public, and
private non-profit, departments I agencies, and institutions listed
herein. The company has determined to provide said Services and
equipment to assist the city and non-profit institutions to develop
public Services and to provide such ServIces to a broad range of
residents and institutions in the service Area4 The Services and
equipment described herein are not a requirement of the franchise
and are provided by the Company solely on a voluntary basis to
serve the public interest.
II. FREE UNIVERSAL SERVICE
Upon receipt of a satisfactory vri tten agreement -with the City
(a) describing tee locations to be served and (b] providing for
payment... on-terms reasonably acceptable to the Co-mpany of all
actual installation costs as reasonably deter.mined by the company,
the company will provide Universal Service through one drop on the
Subscriber cable to each such location, provided ... ho'Wever, that. (ll
the Company shall not be responsible for supplying any equipment
(and, in particular ... the Company shall not be responsible for
providing any converters} for such service, and (2) the total
number of locations shall not exceed 100 and shall specifically
incltlde, as part of these 10,0 locations ... 50 locatioc::s at publ ic
schools in the service area ... as reasonably agreed to by the City,
the Company, and. representatives of school districts in the Service
Area. The Company agrees to provide. by means of a purchase or
rental agreement... at an additional cost to be determined in the
reasonable discretion of the Company. converters for those
locations requiring or desiring converters to receive Universal
Service.
III. MODIFICATIONS
This Appendix shall not be modified or amended except upon
prior approval of the city Council and the Company •
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update reference to Section 4~6.04
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APPENDIX I
I. FEES AND CHARGES
The fees and charges for services provided by the Company
(e~clading any member equity programs or other shareholder
incentives and discounts) shall be set forth in Exhibit 1 to this
Appendix I. The company may change Exhibit 1 at any time as
provided for in the Franchise Agreement. Notwithstanding anything
in this Appendix or the Franchise Agreement to the contrary~ the
Company Zlay impose separate charges for remote controls and
ccmverters in its -discretion. only Subscribers receivinq Basic
service shall be eligible to receive Enhanced Services.
The Company shall submit to the City Manager a cop::.' of the
uniform agreement that must be signed by a S~bscriber in connection
with the provision of Universal Service, Basic Service., any
Enhanced service, or any o,ther service. Upon del ivery to the City
xanager, said agreement shall be set forth as Exhibit 2 to this
Appendix: I. The Company may change Exhibit 2 at any time as
provided for in the Francbise Agree~ent. Notwithstanding anything
in this Appendix or the Franchise Agreement to the contrary, the
company shall not be obligated to provide the City Manager with
copies of each bulk contract. but the Company shall only be
obligated to provide the City Manager 'With a general form of a bulk
agreement that is subject to negotiativn with particular subscrib
ers.
Consistent with section 4.E.O~ of the Franchise Agreement and
section I. E of Appendix A., the COlllpany sball._ u'pon request of any
Residential Subscriber, make available to said Subscriber, at
charges not. to exceed those permitted by California and other
applicable laws., devices that viII enable said SUbscriber to block
out. the Signals of one (1) or mo're Channels. In addition t.o the
Tooom converter provided to Basic Subscribers. additional devices
'Will be available for sale or lease to meet the requirements of t.he
Franchise Agreement.
The Company reserves the right to impose a late collection or
late payment charge., consistent 'With Section 9.' of the Franchise
Agreement., in an amount not to e~ceed that permitted by California
and other applicable la'Ws.
Consistent with section 5.2 of this Agreement the Company
shall have the obligation to maintain. service. and repair. at no
additional charge, all equipment that is furnished by the Company
to Residential Subscribers in connection ..... ith the provision of
Universal Service and Basic service, provided! that the Company
reserves the rigbt to charge a Residential Subscriber a reasonable
charge tor repairs or replacements occasioned by misuses. abuse,
loss or theft by said Subscriber and for non-system-related service
calls. includinq calls related to equipment no,t supplied by the
Company or any Affiliated Person. The Company also specifically
reserves the right to imp05e additional maintenance p service M and
repair charges for equipment furnished to Subscribers receiving
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Enhanced services vith an express limitation of maintenance
service. No-tW'ithstanding the foregoing.,. the Company may charge tor
maintenance and enter into maintenance contracts ~ith subscribers
for other equipment or vith Subscribers who purchase converters or
other equipment from the Company.
II. MODIFICATIONS AND ADDITIONAL CONDITIONS
The fees and charges listed in this Appendix are the current
rates. Nothing in this Appendix shall prevent the Company from
reo:ucill9 or -waiving any fees or charges specified herein in
connection with a.ny promotional activities or from neqotiating bulk
rates~ discounts, or reduced charges for the pcovision of Basic
Service or Universal service to primarily student residences on
university campuses or campuses of o·tner tax-exempt educational
institutions within the Service Area and residents of multi-unit
d'Wel1 ings . The Company reserves the right to ensure that such
discou..,ts are passed on to ul timate co,nsumers of its services.
The Company expressly reserves its right to modify charges,
rates, and fees in accordance "With state and federal law and
appli.cable rules and re9lJ.latlons of the FCC and other regulatory
bodies. In this regard~ the Company also reserves its right to
establish fees, cl:l,.arges.. deposits and associated terms and
conditions for any class of service presently offered or offered in
the futUre on the System~
The Company intends to raise its rates periodically with the
rate of inflation and in accordance 1Ifi th changes in a-ctual and
predicted operating conditions.
The Company intends to offer to suhsc:ribers 'Woo choose to
become members of the Company and pay a sepa,T?te member equity
contribution refunds at such times as the Cornp~ ~ qenerates any net
available surplus or in accordance wi th other.; Pns as determined
by the Company.
The Company inter.ds to offer discounts for multi-unit
dwellings and other orqani2<ations in .... hich service is provided to
a nwnber of individ·uals, businesses or or9anizations and in 'Which
a single individual. business or organization is financially
responsible for the entire group. Suoeh disc:ounts shall vary
dependinq on the term of the bulk billing a-qreement .. the n.umber of
units so served and the percentage of units within a qiven area
receiving such service. The Company also reserves the right to
offer separate package discounts.
Any modifications or amendments to this AppendilC shall be made
in a-ecordance with Sections 5.3. 5.C, and 5~5 of the Franchise
Agreement.
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EXHIBIT 1 TO APPENDIX I
FEES AND CHARGES
[insert price sbeets]
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EXHIBIr 2 TO APPENDIX I
SUBSCRI8ER AGREEMENTS
{insert subscriber agree~entsl
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APPENDIX J
CONTROLLING INTERESTS AND APPROVED MORTGAGES AND PLEDGES
This Appendix regards commercial relationsbips between the
Company. certain of its creditors and persons or entitles that have
interests in the Company, its tangible and intangible properties,
and/or its other interests.
The company has entered into that certain Agreement .of
Purchase and Sale of Broadband Cable Distribution Facilities
between Pacific Bell and Cable Communications Cooperative of Palo
Alto, Inc., dated as of April 20, 1990 (the ·pacific Bell Agree
ment-). The Pacific Bell Agreement provides, among other things,
that Pacific Bell shall sell to the Company specified cable
communication distribution facilities.
The company is hereby a!J.thorized to enter into certain
financing arrangements with the Canadian Imperial Bank of Commerce
(·eISC-), individually and as agent for c~rtain other banks teIBC
and such other banks as may from time to time become parties to
such financing ar~_angements being hereinafter collectively referred
to as the ·CIBC Lenders·). National Cooperative Bank (-NCB-) (as
senior subordinated lender). individually and as agent for certain
otber banks (NCB and such other banks as may from time to time
become parties to such financing arrangements being collectively
referred to as the -NCB Lenders· J,. and Pacific Bell (as junior
subordinated lender). Upon entering into any such financinq
arrangements,. the Company shall provide the City Manager with a
copy of such financing arrangements~ provided, ho~ever, that the
Company may maJce such disclosure pursuant to the non-disclosure
provisions of Section 11.6.{j). of the Franchise Agreement. Pacific
Bell, the NCB Lenders JI and the eIBC Lenders, together 'With any
lenders refinanci.nq all or-any portion of the aforementioned
financinq arr-angements are collectively referred to herein as the
-Banks·. These financing arrangements may provide for an aggregate
principal amount of up to Forty Million Dollars ($40,O'OO,O'O'D),
unless increased to a higher limit as described belov,. o~ secured
indebtedness of the company to the Banks to be outstand.ing at any
one time Jl provide for the Company to notify the Banks if it is in
default under the Franchise Agreement.,. and permit the Banks to cure
any defaults of the company thereunder. These finanCing arrange
ments may also provide that, if the company is in default under the
Franchise Agreement, the Banks may foreclose on the company's
interest in the Franchise and the system and transfer that interest
to some or all of the Banks and/or to some other person or entity
who will then comply 'With the Company's obligations under the Fran
chise Agreement. The company may, at some future time,. refinance
the f1nancill9 arrangements with the Banks with one or more
financial institut.ions and/or with any of the Banks. Any such
refinancing shall be in an aggregate amount no·t to exceed Forty
Killion Dollars {$40,OIO'O,OOO) of secured indebtedness of the
Company outstanding at anyone time unless (al otherwise agreed to
by the City Councilor (b) unless the Forty Million Dollar
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($40,000,00,0) limit is increased to a higher amount a.s described
below.
In order to induce the Banks to provide the necessary
financing to the Company in connecticn ~ith its Obligations under
the Franchise Agreement. the City agrees that t'he Banks may
exercise all rights of cure available to the C01"'1pany under the
Franchise Agreement; and that, as a result of a default under the
Credit Agreements, in accordance with the exception provided in
Section 14.1 of the Franchise Agreement regarding Appendix J. the
Banks or their agents shall have the right to foreclose on the
Company's interest in the System and may transfer the company's
rights and obligations under the Franchise Agreement and the System
to one or all of the Banks and/or to a person or entity chosen by
the Banks or their agents who 'iiill then have the rights and
obligations of the Company under the Franchise Agreement; provided I
however .. should the transferee need financingl such financinq shall
be in an aI!l("ount not to exceed Forty Million Dollars ($40.600;0 .. 000),
unless Ca} othervise agreed to by the City Councilor (b) unless
the Forty Million Dollar ($40 ,000 .. o'OO) limit is increased to a
higher amount as described belo'W;-and, provided furth~1;:' z that
should the city object to the proposed transfer .. it shall have the
right of first refusal to assume such transfer or assignment.. on
the same terms and concH tions p,roposed for su-ch t.ransfer. provided
such opt.ion is exercised within sixty (60) days of receipt by the
City of writt.en notice together 'With the terms and conditions in
SUfficient detail to eLable the City to exercise its reasonable
judgment .... ith respect to this option.. If the city does not
exercise such option, the Banks shall have the right to make such
transfer ..
Notwithstandi09 the foregoing, in the event that any of the
Banks foreclose on the com.pany's interest in the System or initiate
proceedings to foreclose on the Companyt~" inter-est in. the Syste,m,
a~ i~_"i,s<l\Ot _-POs,:!,ible for such Bank In. the exercise ot rea'~?tlable
d~l_lc;J~"DI6e,,~, e:,ffO~~~j' to cure a default on the part of the Company
p\irsliant to' the"'Franehise Agreement as a result of an action or
failure to ta~e action on the part of the Company prior to such
Bank exercising control over the System l an~ ~~e.iaed f~~~heE tHat
saM BaM ea:r.:As". ift euerc-is-e-----of all f'easeflahle ailiEjel"'lse anei itss
-east:. effsR6 toe el:if'e saea eefaaH: hi Ute fe:'tIJ-!'e-;---then the City
shall waive such default with respect to such Bank .. but only with
reqard to any su-ch action ~r failure to take action on the part of
the Company occurring prior to such Bank exercising control over
the System.
The Forty Million Dollar ($40,000,OOOJ financing figure
described above shall be iT~reased to a higher limit, not to exceed
90' of the established fair market value of the System, if either
the Company presents the City Council with Cal a commercially
acc~~table appraisal of the System showing that its established
fair market value is qreater than Forty-Four Million Four Hundred
and Fifty Thousand Dollars ($44.(50.60'00). or (b) a financial plan,
approved by the city Council, vhich approval may not be ~ithheld
unreasonably and which may be evidenced by a letter of consent or
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a simple resolution of the City Councill demonstrating the capacity
of the company to support a financing in a greater amount.
Notwithstanding the foregoing,. nothing in this Appendix J
shall limit the ability of the Company to issue stock. The Company
s~all also have the right to assign and pledge its interest in the
Systam and the Franchise to a limited partnership of which it is
the qeneral partner and in ~hich it holds a controlling interest.
The Company will also offer local investors the opportunity to
invest in the Company or the System at fixed and variable rates of
return. The Investment instruments to be utilized may be deter
ained by the Company in its discretion from time to time.
Aca::jall.
8/9/90
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Appendix ~~ Effective Date:
APPENDIX K
PURCHASE PRICE TO CITY
The City may acquire up to a 49\ interest in the system upon
reasonable prior written notice to the company at any time during
the term of the franchise. The City may participate as a general
or a limited partner, or directly or indirectly in some other
mutually agreed upon joint venture~ The City may designate up to
seven (1) members of a fifteen {15} person board of directors at
its option, depending on the nature of its participation. The
purchase price sball be a proportionate amount of either (i) an
equitable value to be agreed to by both parties during the
period 1985-1988, or (ii) the fair market ~alue of the System
during the period from 1989 u·ntil the end of the franchise ..
(NOTE: The Company acknowledges that the question of the
purchase price to the City is subject to negotiation. H~ever,
in order to rurther the process of negotiation, the company sets
forth the following points that, it is expressly pointed out~ do
not constitute an offer, but only starting points for further
negotiation:
1. The Company would velcome the participation of the city
in the ownership of the system.
2". In the absence of any o,ther agreement, the company is
prepared to enter into an agreement whereby a joint venture with
the City would be created that would vest control of the System
in the hands of a fifteen (15) member board of directors, t~elve
(12) or vhom would be elected by members of the Company, and
three (3) of whom would ~ selected by the City.
3. The Company is prepared to enter into an agreement
whereby the city would, at the outset of the franchise, acquire
u'p to a 49\ interest in the. System by making contributions equal
to the contributions made by the Company in securing the
franchise and the cOhtributioos of the members of the Company
over time. It is anticipated that such contributions could be
made largely. if not entirely, out of funds already dedicated to
the City as part of this Agreement.
4. The Company is prepared to discuss terms under whIch the
City could acquire. in addition to the Government Channels,
additional leased channels for the entire period of the
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Appendix X, Effective Date:
APPENDIX X
PURCHASE PRICE TO CITY
The City may acquire up to a 49\ interest in the System upon
reasonable prior written notice to the Company at any time during
the term of the franchise. The city may participate as a general
or a limited partner, or directly or indirectly in some other
mutually agreed upon jOint venture. The city may designate up to
seven (1) members of a fifteen (15) person board of directors at
its option~ depending on the nature of its participation. The
purchase price shall be a propcrtionate amount of either {iJ an
equitable value to be agreed to by both parties during the
period 1985-1988. cr (ii) the fair market value of the System
d'urinq the period from 19.89 until the end of the franchise.
(NOTE: The Company acknowledges that the question of the
purchase price to the City is subject to negotiation. Hovever.
in order to further the process of negotiation, the Company sets
fo,rth the follow-inq' points that .. it is expressly pointed out. do
not constitute an offer. but only starting points for further
negot.iation:
1. The Company would welcome the participation of the City
in the o'&J1lership of the Sys'teu.
2. In the absence of any other agre~ment~ the company is
prepared to enter into an agreement where~y a joint venture with
the city would he created that would vest control of the System
in the hands of a fifteen [15J MembEr ~rd of directors, twelve
(12) of Whom would be elected by members of the company. and
three (J) of whom would be selected by the City.
3a The company is prepared to enter into an agreement
whereby the City would, at the outset of the francbise~ acquire
up to a 4g\ interest in the System by making contributions equal
to the contributions made by the Company in securing the
franchise and the contributions of the members of the Company
over time. It is anticipated that such contributions could be
made largely .. if no,t entirely .. out of funds already dedicated to
the city as part of this Agreement.
4. The Company is prepared to discuss terms under ~b!ch the
City could acquire. in addition to the Government Channels~
additional leas~d channels for the entire pariod of the
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a simple resolution of the City Council, demonstrating th~ capacity
of the co~pany to support a financing in a qreate~ amount.
Not.vlthstaT)ding the foreg.oing.,. no:thin<} in this Appendix 3
shall Ii.it the ability or the Company to issue StOCk4 The Company
shall also have the right to assi9n and pledge its interest in the
System and the Franchise to a liroited partnership of ~hich it is
the qeneral partner and in which it holds a controlling interest.
The Company will also offer local investors the opportunity to
invest in the company or the System at fixed and variable rates of
return. The investment instruments to be utilized may be deter
mined by the Company in its discretion from time to time~
ACB:jall
S/9/9C>
32
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Appendi~ K, Effective Oate: ____ _
franchise. The city could acquire the right to use approximately
tour (4J downstream channels, two of which the City would have to
agree to administer as leased channels on behalf of the company
under the terms of the 1984 Cable Act. tor approximately
$SOQ#OO~~ Alternatively, the City could acquire the right to use
approximately six {6) downstream channels and one (1) upstream
channel, on the condition that the City administer four {4) of
the downstream channels as lease channels on behalf of the
Company under the terms of the 19B4 Cable Act, for approximately
$1 .. 000, 0<)0.
5. The Company is prepared to discuss terms under which the
City could acquire its ownership interest in the system by making
in-kind contributions (e.g. of land, st~io or office space~ and
billing services) or by foregoinq franchise fees. In the event
that the city wishes to discuss such terms l it should be further
noted that the Company is prepared to recognize the time value of
any contributions so ~ade. (For example l a firm commitment to
fore90 the franchise rees and to ma~e contributions of land in
the first year of operation might be evaluated at a rate of
interest of up to IS').
6. The Company is further prepared to discuss any other
aspect of this proposed franchise agreement that the City might
consider relevant to the question of the city acquiring an
ownership interest.)
2
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