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:
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.
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.
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.
is the City of Loma Linda in its present incorporated form
and as it may be changed by annexation.
shall mean the governing body of the City of Loma Linda.
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.
shall mean the Federal Communications Commission.
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:
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;
Any revenue received from Subscribers for installation change
in service and reconnection charges and similar fees;
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;
Any revenue received from Subscribers for service charges and
late fees attributable to delinquent accounts;
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
Any revenue received from advertisers from the sale of advertising
on the local Loma Linda Cable System, including revenue from "advertising
interconnects".
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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.
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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.
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.
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.
shall mean a lawful recipient of Cable Service within the
city.
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.
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
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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.
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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.
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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.
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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:
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AYES
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Petersen, Christman, Brauer, Elssmann, Umeda
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NOES:
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None
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ABSENT:
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None
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ABSTAIN:
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None
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______________________________
Floyd Petersen, Mayor
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ATTEST:
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______________________________
Pamela Byrnes-O'Camb, City Clerk
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