ORDINANCE NO. 557
Introduction.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LOMA LINDA GRANTING A FRANCHISE TO COMCAST CABLEVISION OF SAN BERNARDINO, INC. TO OWN, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN LOMA LINDA, CALIFORNIA AND SETTING FORTH TERMS, PROVISIONS AND CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE, AND PROVIDING FOR THE REGULATION AND USE OF SAID SYSTEM.
WHEREAS, COMCAST CABLEVISION OF SAN BERNARDINO, INC., a Delaware Corporation ("Operator") is the successor in interest to that certain franchise ("Prior Franchise") issued on or about October 28, 1980 to Tele-PrompTer Corporation by the CITY OF LOMA LINDA, a municipal corporation, ("City"); and WHEREAS, the Prior Franchise expired on or about October 27, 1995; and
WHEREAS, the City and Operator elected not to invoke the provisions of subsections (a) through (g) of 47 USC 546 and instead, pursuant to an alternative procedure pursuant to 47 USC 546(h), derived this ordinance ("Ordinance") through negotiations, which began in December, 1994, to effect a renewal of the Prior Franchise upon certain terms, provisions and conditions; and
WHEREAS, during the course of the negotiations to derive this Ordinance, the Prior Franchise expired and the Operator continued to occupy the public rights-of-way of the City under the terms of the prior franchise during the period of continued negotiations; and
WHEREAS, the City is now convinced that this Ordinance, as it has heretofore resulted from such negotiations, reflects a workable revision and renewal of the Prior Franchise which is consistent with the public interest; and
WHEREAS, the City and Operator desire to have the franchise established by the Ordinance ("Franchise") constitute a contract between Operator as franchisee and the City as franchisor (the City and Operator in said capacities hereinafter "the Parties"); and
WHEREAS, the Parties have negotiated the terms, provisions and conditions of this Franchise with the anticipation that, during the term of this Franchise, Operator could well be subject to a much higher level of competition than may have heretofore existed from, inter alia, telephone companies and direct broadcast satellite service providers, and that some or all of the competitors may deliver their services without, inter alia, the payment of fees to any level of government comparable to the level of Franchise Fee required by this Franchise even though some or all of such competitive providers may utilize public rights of way under other authorizations than those provided by City to a degree substantially similar to the utilization authorized hereby; and
WHEREAS, Operator, in recognition of the potential competitive advantages which will accrue to it by reason of the benefits accorded by this Franchise, including without limitation the advantages of potentially solidifying its position as first provider of such services, nonetheless desires to be bound to the terms, provisions and conditions of this Franchise including, inter alia, to the payment of the Franchise Fee as specified herein to the fullest extent allowed by law, provided only that the City use its best efforts to impose similar or equivalent terms, provisions and conditions to those set forth herein when it is within City's lawful power so to do; and
WHEREAS, the City has following reasonable notice conducted a public hearing, affording all persons reasonable opportunity to be heard, which proceeding was for the purpose of considering authorizing a franchise for a community antenna television system, establishing rules and regulations regarding such services and consideration of the technical ability, financial condition, legal qualification and general character of Operator; and
WHEREAS, the City after such consideration and deliberation, has found and determined sufficient the technical ability, financial condition, legal qualification, and character of Operator; and
WHEREAS, the City has at the said public hearing, also considered the plans of Operator for the construction and operation of the Cable System ("System" or "Cable System") as defined herein and found and determined the same to be adequate and feasible in view of the needs and requirements of the area to be served by the System;
WHEREAS, City has determined that it is in the best interest of and consistent with the convenience and necessity of the City to grant this Franchise to Operator to operate the System within the boundaries of the City and on the terms, provisions and conditions hereinafter set forth;
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Loma Linda, State of California as follows:
"Cable service"
shall have the meaning given that phrase in Title VI of the Communications Act of 1934 (47 U.S.C. § 521 et seq.), as such may be amended from time to time and the judicial construction thereof and, subject to applicable law.
"Cable system" or "system"
shall have the meaning given the phrase "Cable System" in Title VI of the Communications Act of 1934 (47 U.S.C. § 521 et seq.), as such may be amended from time to time, and the judicial construction thereof and, subject to applicable law.
"Cable wiring"
shall mean that cable wiring and facilities of the Operator inside a Subscriber's Dwelling Unit installed by the Company or the Company's contractor, including that wiring which is 12 inches outside of where the cable wire enters the outside wall of the Subscriber's Dwelling Unit.
"City"
is the City of Loma Linda in its present incorporated form and as it may be changed by annexation.
"City Council"
shall mean the governing body of the City of Loma Linda.
"Dwelling unit"
shall mean a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.
"FCC"
shall mean the Federal Communications Commission.
"Gross revenues"
shall mean and include, to the extent permitted under federal law, all amounts which are received, directly or indirectly, by Operator from or in connection with the offering of Cable Services via the Cable System located within the borders of the City and utilizing public streets and rights-of-way, including but not limited to:
A. 
Any revenue received from Subscribers for cable service, including but not limited to revenue for basic service, tier service, additional outlets, audio service, commercial service, premium service, pay-per-view service and related per-event services, internet service, or for the distribution of any cable service over the system;
B. 
Any revenue received from Subscribers for installation change in service and reconnection charges and similar fees;
C. 
Any revenue received from Subscribers for converters, remote controls or other equipment leased or rented to Subscribers in connection with the delivery of Cable Services to such Subscribers;
D. 
Any revenue received from Subscribers for service charges and late fees attributable to delinquent accounts;
E. 
Any revenue received from service related activities, including but not limited to, revenue received from leased access programmers and other users, and revenue over $10,000 derived from or equivalent to the fair market value of trades and barters; and
F. 
Any revenue received from advertisers from the sale of advertising on the local Loma Linda Cable System, including revenue from "advertising interconnects".
There shall be deducted from Gross Revenues, bad debts written off by Operator in the normal course of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue, and refunds made to Subscribers or other third parties. Gross Revenues shall also not include any tax of general applicability imposed upon Operator or upon the Operator's Subscribers by the City, state, federal or any other governmental entity and required to be collected by the Operator and passed through to the taxing entity (including, but not limited to, user taxes, service taxes and communications taxes), provided such taxes are identified as a separate line item on subscriber statements.
"Operator"
shall mean COMCAST CABLEVISION OF SAN BERNARDINO, INC., a Delaware corporation, to which this Franchise is granted including such of its or their lawful successors and assigns as shall have theretofore been approved by the City, in its sole and complete discretion and as shall have theretofore agreed in writing, in a form approved by City, to be bound to all of the terms, provisions and conditions of this Franchise.
"Street mile"
shall mean one geographical mile of Street without regard to the length or measure of cable required to traverse such distance and/or provide Cable Service to Dwelling Units adjoining such Street. In calculating "Street miles" for the purposes of this Franchise, Street Miles shall be the shortest distance by which all Dwelling Units in a given area can be reached, even if Operator shall elect or have elected a different architecture for the System than that which would derive the shortest such distance.
"Streets"
shall mean the surface of and the space above and below any street, road, highway, freeway, utility right-of-way or any other easement which now or hereafter exists for the provision of public or quasi public services to residential or other properties, and in which the City is expressly or impliedly authorized or empowered to permit use for the installation and operation of a Cable System.
"Subscriber"
shall mean a lawful recipient of Cable Service within the city.
"Two-way communications"
means the transmission of telecommunications signals from subscriber locations or other points throughout the System back to the System's control center as well as transmission of signals from the control center to Subscriber locations.
"User"
means a party utilizing a Cable System channel for purposes of production or transmission of material to subscribers, as contrasted with receipt in a subscriber capacity.
A. 
Franchise Non-Exclusive. This grant of authority to operate a Cable System in the City and the right to use and occupy the public streets and ways for the purposes herein set forth shall not be exclusive. The City reserves the right, at its discretion, to grant other Franchises and approve franchise agreements to other cable operators; provided that the City shall not authorize or permit another Person to construct, operate, or maintain a Cable System, or otherwise to utilize a Public Street or Public Right-of-Way for the delivery of Cable Services or Other Communications Services within the service area of Operator (other than de minimus overlaps), on material terms and conditions which are in the aggregate significantly more favorable or less burdensome than those applied to Operator, to the extent that such terms and conditions are within the legal control of the City, and taking into consideration the totality and reasonable proportionality of their respective obligations.
B. 
The City hereby grants to Operator the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the Streets as they now and hereafter shall exist in the City such poles, wires, cables, underground conduits, manholes, and other cable conductors and fixtures as are necessary for the maintenance and operation in the City of a cable communications system, to be used for the sale and distribution of Cable Service to the residents of the City.
The Operator shall at all times during the operation of this Franchise, be subject to all lawful exercise of the police power as may be hereafter provided by the City, but such power shall not be inconsistent with the provisions of this Ordinance and shall be subject to applicable law.
A. 
Subject to the terms, provisions and conditions of this Franchise, the duration of the rights, privileges and authorizations hereby granted shall be 20 years from the date the Franchise is accepted by the Operator, provided the system rebuild, as described in Section 10 (a), is 100% complete by December 31, 2000. In the event the system rebuild as described has not been completed as agreed by December 31, 2000, the term of this Franchise agreement shall be reduced by one full year for each year or portion thereof beyond December 31, 2000 required to complete the rebuild in its entirety.
B. 
The City may, from time to time, find that it is in the best interest of the City to seek and consider an award of a cable television franchise to others in the exercise of its legislative discretion. In the issuance of such franchises, the City shall use its best efforts to insure that all such franchises shall contain terms, provisions and conditions which are similar or equivalent to the terms, provisions and conditions of this franchise, to the extent allowable by then-existing law, provided that nothing in the issuance of additional franchises by the City, whether or not upon terms, provisions and conditions equivalent or similar to those of this Franchise, shall operate to nullify, modify, discharge, offset or otherwise affect the obligations of Operator to fulfill and comply with the terms, provisions and conditions of this Franchise.
The Franchise is for the present territorial limits of the City and for any area henceforth annexed thereto during the term of this Franchise.
A. 
The Cable System authorized pursuant to the provisions of this Ordinance shall provide equal and uniform Cable Service and rates, charges and fees, to the extent required by applicable law, within the Franchise Area to all Dwelling Units which it serves, provided that (1) Operator shall be free to offer and/or charge non-uniform or nonequal rates, charges and fees to those subscribers or potential subscribers to whom (a) Cable Services are then presently available from another cable television provider offering such services pursuant to a franchise, license or other authorization issued by the City, and/or (b) promotional subscriptions, or upgrade offers are made with the reduced or waived rate, charge or fee not to exceed 12 months for any subscriber for any given offer and/or (c) Cable Service provided on a bulk billing basis to multiple unit dwellings; and (2) Operator shall be free to offer non-uniform or non-equal Cable Service and/or charge non-uniform or non-equal rates, charges and fees during an approved re-build of the Cable System so as to allow completed areas of the City to utilize the enhanced portion of the System, provided that such Cable Service and such rates, charges and fees shall be equal and uniform within the enhanced portion of the System, on the one hand, and in the non-enhanced portion of the System, on the other.
B. 
With respect to requests for connection requiring a drop line (measured from the outer edge of the nearest Street to a point 12 inches outside the point of connection to the Dwelling Unit) in excess of 150 feet, the Operator must extend and make available Cable Service to the residents of such Dwelling Unit at a connection charge not to exceed the actual installation costs incurred by the Operator for this distance exceeding 150 feet. In the event that the Operator elects to impose any additional charge whatever for the distance of drop beyond 150 feet, it shall explicitly demonstrate that such portions of such drops have been excluded from any capitalization of drop costs for rate regulatory purposes.
C. 
Operator must extend and make Cable Service available to every Dwelling Unit in all unserved, developing areas having at least 40 Dwelling Units planned per Street Mile, and shall extend its System simultaneously with the installation of utility lines. Operator shall further extend and make Cable Service available to every Dwelling Unit in all unserved, developing areas having at least 20 Dwelling Units planned per mile where service has previously been extended to any adjoining property. In all other areas, Operator shall make good faith efforts to provide service concurrently with the installation of other utilities where reasonably feasible. For purposes of this section, Dwelling Units shall be counted on the basis of the parcels on the final subdivision map approved by the City, adjusted for the maximum permissible number of Dwelling Units upon such parcels under applicable zoning regulations.
A. 
Operator shall construct, install, operate and maintain its Cable System in a manner consistent with all laws, ordinances, construction standards, governmental requirements, FCC technical standards, and detailed standards submitted by Operator as part of its application, which standards are incorporated by reference herein. In addition, Operator shall provide the City, upon request, with a written report of the results of Operator's annual proof of performance tests conducted pursuant to FCC standards and requirements.
B. 
All zoning and other land use ordinances, building electrical, plumbing and mechanical codes, business license ordinances and all other ordinances of general application now in existence or hereafter lawfully enacted by the City shall be fully applicable to the exercise of this Franchise, and the Operator shall comply therewith. In the event of a conflict between the provisions of this franchise and those of such an ordinance of general application, the provisions of such ordinance of general application shall prevail. Construction, installation and maintenance of the Cable System shall be performed in an orderly and workmanlike manner. All cables and wires shall be installed, where possible, parallel with electric and telephone lines. All cables and wires shall be installed underground where required by the Loma Linda Municipal Code or any other law. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.
C. 
Operator shall at all times comply with: National Electrical Safety Code (National Bureau of Standards); National Electrical Code (National Bureau of Fire Underwriters); Bell System Code of Pole Line Construction; and applicable FCC or other federal, state and local regulations.
In any event, the System shall not endanger or interfere with the safety of persons or property in the Franchise area or other areas where the Operator may have equipment located.
D. 
If (1) the Operator should in the course of the construction and/or reconstruction of the System elect to place underground cable plant in the public utility easement on private property where there was, at the time of the Operator's election, space available for the installation of such plant at the lip of the gutter within the public roadway, and (2) the Operator should fail, neglect or refuse to take pre-construction photography (or videography) of the condition of any private property upon which underground construction is to occur, the Operator shall have the burden of proof as to the condition of the private property prior to the initiation of such construction in any subsequent complaint resolution, arbitration or judicial procedure between the Operator and the private property owner.
A. 
Except as otherwise expressly provided herein, no part of element of a Cable System or any other real or personal property which is a part of said Cable System shall be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person without the prior written consent of the City except, however, the Franchise may be transferred without said consent to a wholly-owned subsidiary of Operator provided that the Operator shall remain jointly and severally responsible for its obligations hereunder. The proposed assignee must show financial responsibility as reasonably determined by the City and must agree to comply with all provisions of the franchise. City shall be deemed to have consented to a proposed transfer or assignment in the event its refusal to consent is not communicated in writing to Operator within 60 days following receipt of written notice of the proposed transfer or assignment or unless said 60 day period is tolled by the City by written notice to Operator in order to obtain additional information reasonably necessary to its consideration of the proposed transfer.
B. 
The Operator shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the Operator. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. Every change, transfer, or acquisition of control of the Operator requiring the consent of the City shall make the Franchise subject to cancellation unless and until the City shall have theretofore consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the qualifications of the prospective controlling party, and the Operator shall be obligated to respond to any reasonable questions put to it by the City in any such inquiry regarding such qualifications.
C. 
The consent or approval of the City to any transfer of the Franchise shall not constitute a waiver or release of the rights of the City in and to the Streets, and any transfer shall by its terms, be expressly subordinate to the terms, provisions and conditions of this Franchise and such additional terms, provisions and conditions as the Parties may mutually agree.
D. 
In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory and obligor to this Franchise.
In the event that the City is permitted, under California and/or federal law, at any time during the Franchise term, to regulate cable television subscriber service rates, and, if the City elects to assume rate regulation jurisdiction, the City shall comply with applicable law and regulations of the FCC.
A. 
For the reason that the Streets to be used by the Operator in the operation of its system within the boundaries of the City are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and that the permission to the Operator to use the said Streets is a valuable property right without which the Operator would be required to invest substantial capital in right-of-way costs and acquisitions, and because the City will incur cost in regulating and administering the Franchise, and at the option of the City Council, the City may make available a portion of the Franchise Fee to further the development of public and community uses of cable television, the Operator shall, subject to applicable law, pay to the City an amount equal to 5% of Operator's applicable annual Gross Revenues. Notwithstanding the foregoing, in the event that any current legal limitation upon the amount of Franchise Fees is increased or decreased, then the Franchise Fee specified herein shall be increased or decreased accordingly such that, at all times during the term hereof, the City shall receive the maximum Franchise Fee allowed by law.
B. 
To the extent permitted by State and Federal law, Gross Revenues shall include any revenue received by the Operator from the delivery of Other Communications Services over its Cable System, including without limitation, telephone, data transmission, interactive services and other broadband information services. Operator agrees to pay the City a Franchise fee on the gross revenues associated with such other telecommunications services at the maximum rate permitted by State and Federal law. The fee shall be payable quarterly at the same time the regular Cable Television franchise payment is due.
C. 
The Franchise Fee shall be payable quarterly and any other cost or penalties assessed by the City pursuant hereto shall be payable quarterly for each cost or penalty assessed during the term of this Franchise to the office of City Manager. The foregoing payments shall be made within 60 days after the expiration of each period. The Operator shall file a complete and accurate audited statement of all applicable Gross Revenues during the preceding fiscal year not later than 90 days after the expiration of the Operator's fiscal year. Such audited statement shall contain an unconditional opinion of an independent certified public accountant in accordance with generally accepted auditing standards.
D. 
The City shall have the right to inspect the Operator's income records and the right to audit and to recompute any amounts determined to be payable under this Ordinance; provided however, that such audit shall take place within 36 months following the close of each of the Operator' fiscal years. The City shall give written notice to the Operator of any additional amount due within six months after completion of the audit. Any additional amount due to the City as a result of the audit shall be paid within 30 days following written notice to the Operator by the City which notice shall include a copy of the audit report, provided however, that Operator shall have the right to present such additional evidence as it may have to the City to contest such audit findings within 30 days thereafter.
In the event the additional evidence is insufficient to eliminate or acceptably reduce any amounts determined by the audit to be due and which remain in dispute, the City and Operator, by mutual agreement (both as to whether to hire and whom to hire) may, by mutual agreement, employ the services of technical, financial, or legal consultants as mediators, the costs of which shall be borne equally by the City and the Operator. With regard to the City's right to audit and recompute any amounts determined to be payable under this Franchise Agreement, the City will bear the cost of any such audit; provided, however, that if such audit indicates a Franchise Fee underpayment of 10% or more of the amount due, Operator shall assume all reasonable costs of such audit and pay such costs at such time as any proceedings contesting the City's audit are completed. Any additional amount due the City as a result of the audit or a final mediation determination shall be paid within 30 days following presentation of the City's audit report or completion of a mediation proceeding in favor of the City.
A. 
The Cable system presently has, and shall at all times maintain, a capacity of 60 channels available for immediate use. By December 31, 2000, the Cable system shall have a city-wide available channel capacity of 100 channels which corresponds to an upper operating frequency of Seven Hundred Fifty Megahertz (750 MHZ).
B. 
The Cable System authorized pursuant to the provisions of this Ordinance shall provide not less than the following for non-commercial public, educational and governmental access ("PEG Access Programming") pursuant to the provisions of 47 USC 531 to Subscribers in the City:
1) 
three downstream video PEG Access Programming channels to be programmed by the City or an agent named by the City, provided the Operator may program said channels at times not utilized by the City.
2) 
a modulator/demodulator at the following three local channel insertion sites:
a) 
The City's Civic Center
b) 
The Loma Linda University Medical Center
c) 
A third site as designated by the City
The Operator will provide up to two additional cable channels at the City's request for PEG Access Programming use. However, the City may not submit such a request for additional PEG channels unless all three of the PEG channels already being utilized each are cablecasting at least 75% of the prime hours daily between 9:00 a.m. and 9:00 p.m. with unduplicated video programming, not including programming provided by a character generator.
C. 
The Operator shall make available the equipment specified in Exhibit B attached hereto for use in the local production and presentation of PEG Access Programming. At such time that the equipment listed in Exhibit B is installed and operational, it shall become the property of the City and repair and maintenance shall become the City's responsibility, provided that Operator shall provide reasonable training and basic trouble-shooting assistance.
D. 
The Operator shall incorporate into its Cable system such capacity as is necessary to permit the City in times of emergency, to override by remote control, the audio of all channels simultaneously. The Operator shall designate a channel which will be used for emergency broadcasts of both audio and video. The Operator shall cooperate with the City in the use and operation of the emergency alert override system.
E. 
The Operator may be required to interconnect its System with other broadband communication facilities. Such interconnection, if agreed to by the City and the Operator, shall be made within the time limit established by the City. The interconnect shall, at the City's discretion, be accomplished according to the method and technical standards determined by the City and generally accepted industry practices. "Broadband communication facility", as used herein, means any network of cable, optical, electrical or electronic equipment, including Cable Systems, used for the purpose of transmitting telecommunications signals.
F. 
At all times during the term of this Franchise, the Operator shall provide one free "Subscriber drop" connection and one free outlet of Basic Service Tier service (as that term is defined by the FCC) to each school, whether public or private (from kindergarten through 12th grade), within the boundaries of the City which has an average daily enrollment of 100 or more students ("Schools"). As to new schools coming into existence in the Franchise Area after the date hereof, the Operator's obligation to provide such service shall arise 90 days after notification by the City to the Operator of the existence of the school. At such a time as any part of the System is capable of providing high speed data delivery via Cable Modem and makes same commercially available to subscribers or Users within the City, free installation and free service of one Cable Modem shall be provided to each school and library.
A. 
Operator is hereby authorized to place wire, conduits, and appurtenances for the Cable System along or across public streets, highways, alleys, public properties, or public easements of the City in such manner and places as shall be authorized by the City by prior permit.
B. 
All transmission and distribution structures, lines, and equipment erected by the Operator within the City shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets.
C. 
In case of disturbance of any street or paved area the Operator shall, at its own cost and expense and in a manner approved by the City by prior permit, immediately replace and restore such street or paved area in as good a condition as immediately before the work involving such disturbance was done.
D. 
If at any time during the period of the Franchise the City shall lawfully elect to alter or change the grade of any street, the Operator, upon reasonable notice by the City, shall remove, relay, replace, and relocate its poles, wires, cables, underground conduits, manholes, and other appurtenances at its own expense.
E. 
Any poles or other fixtures placed in or adjacent to any street by the Operator shall be placed in such manner as to comply with all requirements of the City.
F. 
The Operator shall, at the request of any person holding a moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the Operator shall have the authority to require such payment in advance. The Operator shall be given not less than 48 hours notice to arrange for such temporary wire changes.
G. 
The Operator shall have the authority to trim trees upon and overhanging streets of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Operator, except that at the option of the City, such trimming may be done by it or under its supervision and direction at the expense of the Operator.
H. 
In all sections of the City where the cables, wires, or other like facilities of public utilities are required to be placed underground as of the time at which Operator is building or substantially rebuilding that portion of its plan, the Operator shall place its cables, wires or other like facilities underground pursuant to Section 6 above.
At the expiration of the term for which the Franchise is granted, or upon its termination and cancellation, as provided for herein, the City shall have the right to require the Operator to remove, at its own expense, all portions of the Cable System from all Streets within the City.
A. 
It shall be expressly understood and agreed by and between the City and any Operator hereunder that the Operator shall indemnify, defend and save the City and its officers, agents and employees free and harmless from and against all claims, damages, losses, and expenses, including reasonable attorney's fees sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever arising out of Operator's actions or omissions in the installation, operation or maintenance of the Cable System authorized herein, including but not limited to copyright infringements and/or any and all other damages, whether or not any act or omission complained of is authorized, allowed or prohibited by this Ordinance and this Franchise, provided that the Operator shall not be required to indemnify City for damages which have theretofore been finally determined by a court of competent jurisdiction to have occurred solely and completely by reason of the negligence of City and entirely separate and apart from any action or conduct whatsoever by Operator and/or any third party.
B. 
Operator shall at all times carry on all operations hereunder, Worker's Compensation Insurance covering all of its employees, Public Liability and Property Damage Insurance, and Automotive Public Liability and Property Damage Insurance, including liability coverage for (a. all operations; b. subcontract work; c. contractual obligations; d. completed operations; e. all owned vehicles; f. non-owned vehicles) in an amount which shall not be less than two million dollars ($2 million) single liability coverage underwritten by admitted California insurance companies satisfactory to the City. The City shall be named as an additional insured under all such policies.
C. 
The insurance policy obtained by the Operator in compliance with this section must be approved by the City Attorney and such insurance policy, along with written evidence of payment of required premiums, shall be filed and maintained with the City Clerk during the term of the Franchise, and the limits thereof may be increased from time to time at the request of the City to reflect changing liability exposure. The Operator shall immediately advise City Attorney of any litigation that may develop that would affect this insurance.
D. 
Neither the provisions of this section nor any damages recovered by the City thereunder, shall be construed to or limit the liability of the Operator under any Franchise issued hereunder or for damages.
E. 
All insurance policies maintained pursuant to this Franchise shall contain the following endorsement (or an equivalent provision approved by the Insurance Service Office):
"It is hereby understood and agreed that this insurance policy may not be canceled by the surety nor the intention not to renew be stated by the insurer until 30 days after receipt by the City, by certified mail, of written notice or such intention to cancel or not to renew."
A. 
Within 10 days after the acceptance of this Franchise, the Operator shall deposit with the City a cash deposit, or in the discretion of the Operator an irrevocable letter of credit from a financial institution authorized to issue such instruments, in the amount of not less than $50,000, provided that during the pendency of any rebuild of the Cable System, said sum shall be increased to $100,000 or such other reasonable amount as may be established by the City. The form and content of such irrevocable letter of credit shall be approved by the City Attorney. The irrevocable letter of credit shall be used to insure the faithful performance by the Operator of all provisions of this Franchise; and compliance with all orders, permits and directions of any agency, commission, board, department, division or office of the City having jurisdiction over its acts or defaults under this Franchise, and/or the payment by the Operator of any claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the System.
B. 
The irrevocable letter of credit, if such is utilized by the Operator, shall be maintained in full force and effect at all times during the entire term of this Franchise. If amounts are withdrawn from the cash deposit by the City pursuant to the terms, provisions and conditions of this Franchise, or if the irrevocable letter of credit is presented for payment by the City, the Operator shall promptly deposit an amount with the City sufficient to raise the total case deposit in possession of the City to the applicable total sum set forth in subsection (a) of this Section. Any sum on deposit with the City shall earn interest for the Operator at the same rate earned by the City on its own general demand funds.
C. 
If the Operator fails to pay to the City any compensation within the time fixed herein; or, fails, after 10 days' notice to pay to the City any taxes due and unpaid; or fails to repay the City within 10 days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the Operator in connection with this Franchise; or, fails, after 30 days' written notice by the City to comply with any provision of this Franchise which the City reasonably determines can be remedied by demand and presentation of the irrevocable letter of credit, the City may immediately present the irrevocable letter of credit and demand payment of the amount thereof, with interest at the applicable legal rate and any penalties. Upon such presentation and demand for payment, the City shall notify the Operator of the amount and date thereof.
D. 
The rights reserved to the City with respect to the cash deposit and/or irrevocable letter of credit are in addition to all other rights of the City, whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such cash deposit and/or irrevocable letter of credit shall affect or limit any other right the City may have.
E. 
The irrevocable letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit may not be canceled by the issuer nor the intention not to renew be stated by the issuer until 60 days after receipt by the City, by certified mail, of written notice from the issuer of such intention to cancel or not to renew."
F. 
In the event the irrevocable letter of credit is canceled or not renewed, it shall be replaced forthwith with a new letter of credit as approved by the City Attorney or with a cash deposit as set forth hereinabove.
A. 
The Operator shall put, keep, and maintain all parts of the System in good condition throughout the entire Franchise period. Unless the Subscriber shall have agreed in writing in advance of installation to allow the Operator to retain ownership of Cable Wiring as defined herein, Cable Wiring shall be and remain the Subscriber's property under the law of fixtures in the State of California. Unless the Subscriber shall have agreed in writing in advance of installation to allow the Operator to retain ownership of Cable Wiring as defined herein, the Operator shall not have the right to remove said wiring or to demand payment for such wiring upon termination of service.
B. 
If the Subscriber shall have agreed in writing in advance of installation to allow the Operator to retain ownership of Cable Wiring, upon termination of service the Operator must give the customer the option of purchasing the Cable Wiring.
1. 
Prior to removing the Cable Wiring, the Operator shall first give the Subscriber the option of purchasing the Cable Wiring at the per foot replacement cost of the wiring installed in the premises, without labor charges or other costs or overheads.
2. 
Should the Subscriber elect not to purchase the Cable Wiring, the Operator may (i) remove within 10 days and at times reasonably convenient to the Subscriber all Cable Wiring installed by the Operator or its contractor in connection with the original installation, including without limitation all wires extending onto private property from the public right-of-way (commonly known as service drops), and the Operator shall repair all damage caused by such removal, or (ii) leave all Cable Wiring in place and undisturbed, provided that the Operator shall have the right to disable the service drops at the joinder of the public right-of-way (and at no other place) in order forestall diversion of service.
C. 
The City may hereafter from time to time enact, and the Operator shall comply with, Customer Service Regulations not otherwise pre-empted by state or federal law. [The City acknowledges that, under current rate regulatory rules of the Federal Communications Commission all costs incurred by the Operator to comply with Customer Service Regulations which are in excess of federal and/or state customer service standards may be separately cumulated and treated as a "pass-through" in accordance with presently applicable federal law.
D. 
In the event that the Operator should assert its ownership of Cable Wiring upon the premises of Subscribers and/or former Subscribers, the Operator shall thereupon and annually thereafter report in writing to the County Assessor, with written confirmation of said report to the City, the addresses and Assessor's Parcel Numbers of all locations within the City as to which the Operator purports to retain ownership of the Cable Wiring upon such premises.
A. 
It shall be the right of all Subscribers to receive service insofar as their financial and other obligations to the Operator are honored. In the event that the Operator elects to overbuild, rebuild, modify, or sell the System, or the City gives notice of intent to terminate or fails to renew this Franchise, the Operator shall act as to ensure that all Subscribers receive continuous, uninterrupted service regardless of the circumstances subject to force majeure and performance of the Subscriber's financial and other obligations to the Operator.
In the event of a change of Franchisee, or in the event a new operator acquires the system, the Operator shall cooperate with the City, and the new franchisee or operator in maintaining continuity of service to all Subscribers. During such period, the Operator shall be entitled to the revenues for any period during which it operates the System.
B. 
In the event Operator fails to operate the System for 96 consecutive hours without prior approval of the City and in the absence of circumstances falling within the provisions of Section 19b below, the City may, at its option, operate the System or designate an operator until such time as Operator restores service. If the City is required to fulfill this obligation for the Operator, the Operator shall reimburse the City for all reasonable costs or damages in excess of revenues from the System received by the City that are the result of the Operator's failure to perform.
The Operator shall not allow its cable or other operations to interfere with television reception of persons not served by the Operator, nor shall the System interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the City.
Operator shall maintain its books and records in accordance with generally accepted accounting principles, consistently applied, and in conformance with applicable FCC rules. The audited statement of applicable Gross Revenues set forth in Section 9c shall include certification by the Operator's independent Certified Public Accountant that franchise fees paid to the City for the subject calendar year are in accordance with the provisions of this franchise. In the event that such independent Certified Public Accountant is unable to render such certification, or the City's auditor is unable to substantiate the certification due to the nature of the Operator's records or accounting system, Operator shall make adjustments as are required to carry out respective certification/ confirmation responsibilities.
Operator shall fully cooperate in making available at reasonable times, and the City Manager and/or his/her designee shall have the right to inspect on not less than three business days notice, the books, records, maps, plans and other like materials of the Operator necessary for the City to carry out its regulatory responsibilities at any time during normal business hours; provided that where volume and convenience necessitate, the Operator may require inspection to take place on the Operator's premises.
Upon request, copies of any petitions, applications, communications and reports submitted by the Operator to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the Cable System authorized pursuant to the terms, provisions and conditions of this Franchise in the City and not otherwise available without charge to the City upon the Internet, shall be provided without charge to the City. Operator shall in good faith provide City with prompt written notice of the nature and substance of any such actions which have the potential to significantly affect the City's interest under this Franchise or the operation thereof by Operator.
In addition to the certified Statement of Gross Receipts and payment of applicable franchise fees set forth in Section 9c and Section 16, there shall be submitted along with such report, such other reasonable information as the City Manager shall request with respect to the Operator's properties and expenses related to its Cable System operations within the City which are necessary, in the reasonable judgment of City, for the City to carry out its regulatory responsibilities.
A. 
In addition to all of the rights and powers retained by the City under this Franchise or otherwise, the City reserves the right, subject to the provisions of this Section 19, to forfeit and terminate the Franchise and all rights and privileges of the Operator hereunder in the event of a substantial breach, beyond any applicable cure period otherwise made expressly applicable by law, of its terms and conditions. A substantial breach by Operator shall include, but shall not be limited to the following:
1. 
Violation by the Operator of any material provision of the Franchise or any material rule, order, regulation or determination of the City made pursuant to the Franchise including without limitation the Customer Service Regulations of the City;
2. 
Attempt by the Operator to dispose of any of the facilities or property of its Cable System to prevent the City from purchasing it, as provided for herein;
3. 
Evasion by the Operator of any material provision of the Franchise or practice by the Operator of any fraud or deceit upon the City or its Subscribers;
4. 
Failure by the Operator to begin or complete System construction or System extension as provided under the Franchise;
5. 
Failure by the Operator to provide the types of services promised herein;
6. 
Failure by the Operator to restore service after 96 consecutive hours of interrupted service, except when approval of such interruption is obtained from the City; or
7. 
Material misrepresentation of fact by the Operator in the application for or negotiation of the Franchise; or
8. 
The appointment of a receiver to take possession of all, or substantially all, of the assets of Operator; or
9. 
A general assignment by Operator for the benefit of creditors; or
10. 
An action taken or suffered by Operator under any insolvency or bankruptcy act; or
11. 
The Operator's vacation or abandonment of the Cable System within the City or dispossession by process of law; or
12. 
The cessation of the operation of the Cable System within the City for a consecutive period of 96 consecutive hours without prior approval of the City or without just cause, which shall be presumed to be an abandonment and vacation of the System.
This paragraph shall not be construed to limit any other provisions of this Franchise.
B. 
Except as hereinafter provided, violation by the Operator of any of the terms, provisions and conditions of this Franchise caused by circumstances beyond the control of the Operator shall constitute good and sufficient excuse and justification for such violations precluding the Operator from being in breach of said terms, provisions and conditions. The following are examples of acts or omissions by an Operator or circumstances which shall be deemed not to be beyond the control of the Operator and which shall not constitute excuses or justifications for violations:
1. 
The failure at any time by an Operator or its officers, agents or employees to exercise diligence in planning, organizing, arranging for or prosecuting the work of construction and installation, or in taking any other action necessary to permit or facilitate the work of construction and installation;
2. 
Unanticipated cost increases or insufficiency of capital with which to take actions necessary to comply or facilitate compliance with any of the terms, provisions and conditions of this Franchise;
3. 
Considerations relating to economy or cost efficiency, as respects acts or omissions by the Operator;
4. 
Delays occasioned by the failure of the Operator to diligently apply for and prosecute any request for a required certificate, approval or consent from the FCC;
5. 
Delays occasioned by seasonal changes in weather or climatic conditions, such as rain (exclusive of catastrophic conditions in the nature of "Acts of God"). (Rain delay shall not constitute an excuse or justification for violation except with respect to measurable precipitation occurring on more than 59 days during any period commencing July 1 and ending the next following June 30; and only if such is the proximate cause of the violation.);
6. 
Delays occasioned by the customary and usual time required to obtain approval to attach lines to poles owned by private or public utilities or in the attaching of cable to the poles; provided that if an Operator submits all plans and documentation required by private or public utility in connection with the approval to attach lines to poles, any time consumed by such approval process which is longer than 90 calendar days following the submission of all necessary plans and documentation shall be deemed to excuse the Operator from any violations which are proximately caused by such delay in excess of 90 calendar days.
7. 
Delay occasioned by the customary and usual time required to process and secure approvals under zoning ordinances of the City for the location of components of the Cable System and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided that if an Operator submits specific sites and plans for all headends, towers and transmitters to the City and requests the City to perform a single environmental analysis upon all such facilities as the lead agency, any time consumed by such environmental analysis which is longer than 60 calendar days during a period subsequent to the filing of the certificate of acceptance of the Franchise shall be deemed to excuse the Operator from any violations which are proximately caused by such delay in excess of 60 calendar days.
The Operator shall not be excused from any violation of the terms, provisions and conditions of this Franchise, except for causes which are beyond the control of the Operator and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the Operator.
Except as otherwise provided above, violations caused exclusively by acts or omissions by the City or its officers, agents or employees shall constitute an excuse and justification for failure of an Operator to comply with the terms, provisions and conditions of this Franchise, precluding a determination that the Operator is in breach. However, violations as a result of such exclusive causes shall not be deemed to excuse the Operator from other unrelated violations, shield the Operator from a determination that it is in breach for such other unrelated violations, or bar any relief for damages or otherwise as a result of such other unrelated breach.
Examples of circumstances beyond the control of an Operator which will excuse an Operator from violation and being in breach of the terms, provisions and conditions of this Franchise, when such violations are caused thereby, include the following: strikes; acts of public enemies; orders by military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; floods; civil disturbances; explosions; partial or entire failure or utilities or unforeseeable lack of access to utility facilities; and Acts of God, being defined for this purpose as an act occasioned by the direct, immediate, and exclusive operation of the forces of nature, uncontrolled and uninfluenced by the power of man, and without human intervention, and is of such a character that it could not have been prevented or escaped by any amount of foresight or prudence, or by any reasonable degree of care or diligence, or by the aid of any appliances which the situation of the party might reasonably require him to use.
C. 
The City shall make a written demand that the Operator comply with any such provision, rule, order, or determination under or pursuant to this Franchise. If the violation by the Operator continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being diligently and expeditiously pursued the City may place the issue of termination of the Franchise before the City Council. The City shall cause to be served upon Operator, at least 20 days prior to the date of such a City Council meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and issue which the City Council is to consider.
D. 
The City Council shall hear and consider the issue and shall hear any person interested therein, and shall determine in its discretion, whether or not any violation by the Operator has occurred.
E. 
If the City Council shall determine the violation by the Operator was the fault of Operator and within its control, the City Council may, by resolution, declare that the Franchise of the Operator shall be forfeited and terminated, or it may make termination conditional subject to compliance within such period as the City Council may fix, such period not be less than 60 days.
F. 
The issue of forfeiture and termination shall automatically be placed upon the City Council agenda at the expiration of the time set by it for compliance. The City Council then may terminate the Franchise forthwith upon finding that the Operator has failed to achieve compliance or may further extend the period, in its discretion.
At the time of issuance of this Franchise, it is impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the Operator of its obligations under the Franchise. Accordingly, the provisions of this section, shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticability of ascertaining damages include, but are not limited to, the following:
A. 
The fact that: (i) the primary damage resulting from breaches by the Operator of the schedules for construction and extension of the Cable System and provision of services and of the duties prescribed by the terms, provisions and conditions of this Franchise will be to members of the public who are denied services or denied quality or reliable services; (ii) such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the Franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that services might be available through the Cable System which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) termination of a franchise for such breaches and other remedies are, at best, a means of future correction, and not remedies which make the public whole for past breaches;
B. 
The fact that the failure of the Operator to make timely reports identifying its progress in installing its Cable System will make it difficult in ways which are not measurable for the City to administer the construction schedule, delay initiation of enforcement proceedings, and impede compliance with the period allowed for construction; and
C. 
The fact that the failure of an Operator to file timely annual reports will deny information necessary to enable the City to expeditiously, effectively and efficiently, administer the Franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.
Without the provisions relating to the imposition of liquidated damages below, the actual damages for which an Operator would be liable could greatly exceed the specified amount of liquidated damages. Therefore, these provisions are of great benefit to the Operator.
In its sole discretion, the City Council may assess the Operator and the Operator shall be liable for liquidated damages in the amount of up to $1,000 for each calendar day on which Operator is in breach and for each breach of any of the terms, provisions and conditions of this Franchise or such other provisions of any subsequent rule, order, regulation or determination of the City made pursuant to the Franchise as shall expressly refer to this provision. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with any of the terms, provisions and conditions of this Franchise. Said liquidated damage amount shall be separately applicable to each instance for each calendar day of delay in extending lines to additional Dwelling Units; provided that if more than one Dwelling Unit is subject to a particular extension, the total liquidated damages shall not exceed $1,000 for each calendar day of delay. Nothing in the foregoing shall be deemed to preclude the City from imposing such lesser sum of liquidated damages as in its sole and exclusive discretion it shall deem fair and just.
The foregoing liquidated damages shall not be deemed to be the exclusive remedy for the types of breaches above. Neither the right to assess liquidated damages nor the assessment of liquidated damages shall be deemed to bar or otherwise limit the right of the City to obtain judicial enforcement of the Operator's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity other than monetary damages.
A. 
The Operator, and its officers, agents, employees, contractors and subcontractors, shall respect, refrain from invading, and take affirmative action to prevent violation of the privacy of subscribers served by the Cable System and others.
1. 
Neither the Operator nor any other person, agency, or entity shall tap, or arrange for the tapping or monitoring of any cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever except that the Operator may conduct tests of the functioning of the System where necessary in order to ensure proper maintenance of the System and to collect performance data for agencies regulating the quality of signals, and the Operator may conduct System wide or individually addressed "sweeps" for the sole purpose of verifying system integrity (including individual security system integrity, controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel. "Tapping" shall mean observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The provision of Interactive Services shall not be construed to be "tapping" or "monitoring" under this Subparagraph.
2. 
The Operator shall not place in any private residence or in any institution any equipment capable of two-way communications without the written consent of the Subscriber, and shall not utilize the two-way communications capability of the System for Subscriber surveillance of any kind without the written consent of the Subscriber specifying how the data collected will be used and by whom. Tenants who occupy premises connected by the System shall be deemed to be Subscribers within the meaning of this Subparagraph regardless of who actually pays for the service. The written consents shall be, and shall show on their face that they are, revocable by the Subscriber at any time by written communication mailed by the Subscriber to the Operator. No penalty shall be invoked for a Subscriber's failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The Operator shall not make such written consent a condition precedent to receipt by a Subscriber of non-interactive service. The provisions of this subparagraph shall not be deemed to require consent as a condition precedent to System-wide or individually addressed "sweeps" for the sole purpose of verifying System integrity, controlling aggregate data on viewing patterns by channel.
3. 
No cable, line, wire, amplifier, converter, or other piece of equipment associated with Cable System services shall be attached to any residence or other property of a citizen (except within Streets) without first securing the written permission of the owner or tenant of the property. If such permission is later lawfully revoked, whether by the original or subsequent owner or tenant, the Operator shall remove forthwith all of the equipment and promptly restore the property to its original condition. The Operator shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.
4. 
No Operator or officer, agent or employee thereof shall sell, or otherwise make available, lists of the names and addresses of its Subscribers, or any list which identifies, by name or otherwise individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever except that the Operator shall, upon request, provide lists of names and addresses of its subscribers to authorized representatives of the City, to the extent permissible by law, when the City deems such information necessary for performance of the regulatory functions of the Commission. Names and address of Subscribers within the possession of the City shall not be subject to public inspection or review.
5. 
The Operator may release the number of Subscribers but only as a total number and as a percentage of the potential Subscribers within the Franchise Area. When indicating the number of Subscribers viewing a particular channel, the Operator shall indicate only the total number of Subscribers viewing during the relevant time and, the percentage of all Subscribers which they represent, but not the identity of any Subscriber.
6. 
No polls or other two-way responses of Subscribers shall be conducted whether for commercial purposes, in connection with Community use, or otherwise unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. The Operator shall supervise and monitor all polls in which responses are received through the Cable System, and shall adopt and enforce measures which ensure that personally identifiable information concerning a Subscriber, including his or her viewing habits and response or responses to the inquiry or inquiries, is not received by any third party, including the party sponsoring the poll.
7. 
The Operator shall not tabulate any test results, nor permit the use of the System of such tabulation, which would reveal the commercial product preferences or opinions of individual Subscribers, members of their families or their invitees or employees, without advance written authorization by the Subscriber.
B. 
The Operator shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, or sex. The Operator shall comply at all times with all other applicable federal, state and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this ordinance by reference.
C. 
The Operator shall strictly adhere to the equal employment opportunity requirements of federal, state and local regulations, and as amended from time to time.
In the event the Operator forfeits or City revokes this Franchise pursuant to provisions of this ordinance, City shall have the right, directly or as an intermediary, to purchase the Cable System at fair market value as a going concern, subject to and in accordance with applicable law.
A. 
The City and the Operator may hold scheduled performance evaluation sessions within 30 days of the third, sixth, ninth, and twelfth anniversary dates of the Operator's award of the Franchise and as may be required by federal and state law. All such evaluation sessions shall be open to the public.
B. 
Special evaluation sessions may be held at any time during the term of the Franchise at the request of the City or the Operator.
C. 
All evaluation sessions shall be open to the public and announced in a newspaper of general circulation or posted in accordance with legal notice requirements of the City. The Operator shall notify its subscribers of all evaluation sessions by announcement on at least two channels of its System between the hours of 7:00 p.m. and 9:00 p.m., for five consecutive days preceding each session.
D. 
Topics which may be discussed at any scheduled or special evaluation sessions may include, but not be limited to, basic service rate structures; Franchise Fee; penalties; application of new technologies; System performance; services provided; programming offered; customer complaints; privacy; amendments to this ordinance; judicial and FCC rulings; line extension policies; and the Operator or City rules.
E. 
Members of the general public may add topics either by submitting through the Operator or the City, or by presenting a petition. If such a petition bears the valid signatures of 50 or more residents of the City, the proposed topic or topics shall be added to the list of topics to be discussed at the evaluation sessions.
In the event any new territory shall become annexed to the City, the Operator shall forthwith extend its Cable System to all Dwelling Units within that annexed portion of the City subject to the density provision of Section 5(e) hereof.
Operator shall pay to the City the sum of $10,000, which represents the Operator's contribution to the actual and reasonable costs incurred by the City in connection with awarding this Franchise, including, but not limited to, costs for legal services, outside consultants, extraordinary City staff time and required publication costs. Operator agrees that its contribution pursuant to this section shall not be part of its Franchise fee obligations to the City and that such contribution shall not be passed on to or recovered from its subscribers.
A. 
This Franchise shall not become effective unless and until this ordinance has become effective and, in addition, unless within 30 days after the effective date of this Ordinance, the Operator shall file with the City Clerk its written acceptance, in the form, attached hereto as Exhibit A, of the Franchise, together with the insurance policies, bond, renewal expense reimbursement and cash deposit or Letter of Credit required by Sections 12, 13 and 25, respectively, and its agreement to be bound by and to comply with and to do all things required by the provisions of this Franchise. Such acceptance and agreement shall be acknowledged by the Operator before a notary public and shall in the form attached hereto as Exhibit A.
B. 
Should the Operator fail, neglect or refuse to file its written acceptance, in the form attached hereto as Exhibit A, together with the insurance policies, bond, renewal expense reimbursement and cash deposit or Letter of Credit required by Sections 12, 13 and 25, respectively, within 30 days from the Effective Date hereof, the Operator's occupancy of the public rights-of-way by sufferance shall be terminated and it shall forthwith cease and desist from the operation of its Cable System therein.
All notices and other writings authorized or deemed to have been given and served when deposited in the United States Mail, by certified mail, return receipt requested, postage prepaid, and addressed, with respect to Operator to any office maintained by Operator within the County of San Bernardino, and with respect to other parties to the last known address of such party.
A. 
It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised Cable System within this City for the purpose of enabling himself or others to receive any Cable Service, without payment, to the owner of said System.
B. 
It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of Cable Services.
If any Section or provision of this franchise Agreement or any ordinance, law, or document incorporated herein by reference is held by a court of competent jurisdiction to be invalid, unconstitutional or unenforceable, such holding shall be confined in its operation to the Section or provision directly involved in the controversy in which such holding shall have been rendered and shall not in any way affect the validity of any other Section or provision hereof. Under such a circumstance, the Operator shall, upon the City's request, or the City shall, upon the Operator's request, meet and confer to consider amendments to the Franchise Agreement to meet the original intent of the parties, as the circumstances warrant and unless prohibited by law, provided, however, that the Operator, in its sole and exclusive discretion, is not required to enter an agreement with the City concerning such an amendment. Both the City and the Operator agree to be bound by all terms and conditions of this Franchise except as may be finally determined to be unenforceable by a Court of competent and appropriate jurisdiction with proper venue over this Franchise, provided that the City or the Operator need not comply with any term or condition of this Franchise Agreement which it is contesting in good faith by appropriate proceedings.
Prior to the expiration of 15 days from its passage, the City Clerk shall cause this Ordinance to be posted pursuant to law in three public places designated for such purpose by the City Council.
The City hereby declares that as a result of this Ordinance and the Franchise granted pursuant hereto, a possessory interest subject to property taxation may be created and any such property interest may be subject to property taxation if it is created. The Operator, as the party in whom the possessory interest, if any, will be vested, may be subject to the payment of property taxes levied upon such an interest.
To aid in the analysis and resolution of any future disputed matters relative to the franchise, the City and the Operator may, by mutual agreement (both as to whether to hire and whom to hire), employ the services of technical, financial or legal consultants, as mediators. Unless otherwise agreed, all reasonable fees of the mediators incurred by the City and the Operator in this regard shall be borne equally.
EFFECTIVE DATE: This Ordinance shall be effective 30 days after its adoption. The City Clerk shall cause this Ordinance to be published pursuant to the provisions of state law within 15 days following its adoption.
THIS ORDINANCE was introduced at a regular meeting of the City Council of the City of Loma Linda, California, held on the 9th day of December, 1997 and was adopted on the 13th day of January, 1998, by the following to wit:
AYES
Petersen, Christman, Brauer, Elssmann, Umeda
NOES:
None
ABSENT:
None
ABSTAIN:
None
______________________________
Floyd Petersen, Mayor
ATTEST:
______________________________
Pamela Byrnes-O'Camb, City Clerk