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HomeMy WebLinkAboutC-2195290 Had ..r Drive
Starnii rd, C'I 06902
TIME WARNER
CABLE
VIA FEDERAL EXPRESS
March 9, 2006
Ms. Lisa Mussenden
Legal Coordinator
City Attorney Office
240 W. Huntington Drive
Arcadia, CA 91007
is
Re: Time Warner — Assignment and Assumption Agreement
Dear Ms. Mussenden
As requested, enclosed please find original of Assignment and Assumption Agreement
and Guarantee of Assignee's Obligations executed by all parties. Please send fully
executed copy to my attention.
Thank you.
Very truly yours,
Huma Khan
Regulatory Paralegal
Time Warner Cabk, a division of7ime Winer hweriainrrrem Company. LE
RESOLUTION NO. 6505
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ARCADIA, CALIFORNIA,
CONDITIONALLY AUTHORIZING THE
ASSIGNMENT AND CHANGE OF CONTROL OF A
CABLE TELEVISION FRANCHISE BY CENTURY -
TCI CALIFORNIA, L.P. TO CAC EXCHANGE II, LLC
RECITALS:
A. The City of Arcadia, California ( "Franchise Authority") has granted a
cable television franchise for the construction, operation, and maintenance of a
cable television system within the City (the "Franchise ") to Century-TCI
California, L.P. ( "Franchisee "), which Franchisee is presently controlled by
Adelphia Communications Corporation ( "Adelphia "), which is currently in
Chapter 11 bankruptcy proceedings; and
B. Pursuant to an asset purchase agreement dated April 20, 2005 between
Adelphia and Comcast Corporation ( "Comcast "), an indirect wholly -owned
subsidiary of Comcast will acquire Adelphia's interest in the Franchise (the
"Adelphia Transaction "); and
C. Pursuant to an exchange agreement between Time Warner Cable Inc.
( "Time Warner Cable ") and Comcast, dated as of April 20, 2005 ( "Exchange
Agreement "), Comcast will conclude the asset purchase transaction, whereby
Comcast will cause its indirect wholly -owned subsidiary, Comcast Cable Holdings,
LLC, to assign the Franchise to CAC Exchange II, LLC (the "New Franchisee ")
I and the New Franchisee will become an indirect subsidiary of, and will do business
as, Time Warner Cable (which transaction shall hereinafter be referred to as the
"Exchange "); and
D. On June 16, 2005, the Franchise Authority received from Comcast
Cable Holdings, LLC and Time Warner Cable Inc., an application for the
assignment of the existing Franchise from Franchisee to the New Franchisee
through the Adelphia Transaction and the Exchange. This application included
FCC Form 394 titled "Application for Franchise Authority Consent to Assignment
or Transfer of Control of Cable Television Franchise." Supplemental information
was provided to the Franchise Authority by Comcast Cable Holdings, LLC and
Time Warner Cable Inc.; and
E. In accordance with Section 8 of City of Arcadia Ordinance No. 2206
(the "Telecommunications Ordinance "), the Franchise Authority has the right to
review and to approve the financial, technical, and legal qualifications of a
proposed transferee in connection with a proposed assignment of the Franchise;
and
F. The Franchise Authority has reviewed the documentation that
accompanied FCC Form 394 and, based upon the representations set forth in that
2
documentation, has concluded that the proposed New Franchisee has the requisite
financial, technical, and legal qualifications to adequately perform, or to ensure the
performance of, all obligations required of Adelphia under the Franchise, and that
the New Franchisee will be bound by all existing terms, conditions, and obligations
of the Franchise as it currently exists or as it may be modified or superseded by the
parties prior to the closing of the Adelphia Transaction and the Exchange.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND
RESOLVE AS FOLLOWS:
SECTION 1. In accordance with Section 8 of the Telecommunications
Ordinance, the Franchise Authority consents to and approves the proposed
assignment and change of control of the Franchise by Century -TCI California,
L.P., through Comcast Cable Holdings, LLC, to CAC Exchange II, LLC, which,
upon the closing of the asset purchase transaction, will be an indirect
wholly - owned subsidiary of Time Warner Cable Inc., and will be qualified to
conduct business as a limited liability company in the State of California.
SECTION 2. The authorization, consent and approval of the Franchise
Authority to the proposed assignment is hereby expressly conditioned upon, and
tj
made contingent upon, compliance with the following requirements within sixty
(60) days following the closing of both the Adelphia Transaction and Exchange:
(a) Adelphia and the New Franchisee will execute and file in the office of
the City Clerk an "Assignment and Assumption Agreement" in the form attached
to this Resolution as Exhibit "A ", and incorporated by reference herein. The
Mayor is authorized to execute that document and thereby evidence the written
consent of the Franchise Authority to the assignment and assumption of all rights
and obligations under the Franchise.
(b) An original or conformed copy of the written instrument evidencing
the closing of the Adelphia Transaction and the Exchange must be filed in the
office of the City Clerk.
(c) Provision of written report to the City Manager documenting the
following:
(i) Staffing and technical measures have been implemented to
ensure adequate telephone call center performance, reporting
capabilities, and transition programs to provide service as Time
Warner Cable, including the capability to bring current call
center performance into compliance with the Franchise terms;
(ii) Staffing and technical measures have been implemented to
ensure adequate public, educational, or governmental (PEG)
Access channel allocation, staffing and service provision in
accordance with the Franchise;
n
9 0
(iii) All necessary insurance policies, endorsements or certificates,
as required by the Franchise, including, without limitation,
applicable "additional insured" language shall been provided to
the City Manager or his designee;
(iv) All necessary security (cash deposit, surety fund, construction
bond, and/or any other security as approved by the City
Manager or designee) provisions of the Franchise shall have
been provided to the City Manager or his designee;
(v) That the New Franchisee shall have established the location of
franchise financial records and other cable system records
pertaining to Franchise fee reviews as Time Warner
Controller's Office, 959 South Coast Drive, Suite 300, Costa
Mesa CA 92626, or that the New Franchisee shall make
available all such records available for inspection and
photocopying at Arcadia City Hall; and
(vi) The New Franchisee's program for providing notice to
subscribers of, and implementing, account transition, including,
without limitation, e -mail account transitioning and domain
name changes.
(d) The New Franchisee shall have caused to be paid to the Franchise
Authority all processing charges required by law for the review and consideration
of the proposed transfer.
SECTION 3. If the closing of the Adelphia Transaction and the
Exchange shall not have occurred within one hundred eighty (180) days following
the date of this Resolution (or such other date as may be agreed upon by the City
Manager), or if any one or more of the conditions set forth above Section 2 of this
Resolution is or are not satisfied within the period of time specified in that Section,
then the authorization and consent of the Franchise Authority to the proposed
61
assignment as provided for in this Resolution shall be deemed of no force or effect,
shall be treated as null and void without further action by the Franchise Authority,
and the FCC Form 394 application will be deemed denied in all respects, as of the
date of adoption of this Resolution. In such event, the City Manager is authorized
and directed to give written notice to all affected parties of such effect, which will
be deemed to be without prejudice to the right of any parties to submit a new FCC
Form 394 to the Franchise Authority if required by the Franchise or local
ordinance.
SECTION 4. The City Clerk is directed to transmit a certified copy of
this Resolution to the following persons:
If to New Franchisee:
Mr. Roger Keating, President
Los Angeles Division
Time Warner Cable Inc.
959 South Coast Drive, Suite 300
Costa Mesa, CA 92626
If to Adelphia:
Brad M. Sonnenberg, Esq.
Executive Vice President,
General Counsel and Secretary
Adelphia Communications Corporation
5619 DTC Parkway
Denver, CO 80111
0
If to Comcast:
Comcast Cable Holdings, LLC
1500 Market Street
Philadelphia, PA 19102
SECTION 5. The City Clerk shall certify to the adoption of this
Resolution.
Passed, approved and adopted this 6th day of December , 2005.
ISI JOHN wUO
Mayor of the City of Arcadia
ATTEST:
IS/ JAMES H. BARROWS
City Clerk
APPROVED AS TO FORM:
Stephen P. Deitsch
City Attorney
7
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) SS:
CITY OF ARCADIA )
I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies
that the foregoing Resolution No. 6505 was passed and adopted by the City Council of
the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular
meeting of said Council held on the 6th day of December, 2005 and that said
Resolution was adopted by the following vote, to wit:
AYES: Council Member Chandler, Kovacic, Marshall, Segal and Wuo
NOES: None
ABSENT: None
li
1S/ JAMES H. BARROWS
City Clerk of the City of Arcadia
0 0 P_10
lee- .,14 -05 10 =19A
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
AND
GUARANTEE OF ASSTGNEE'S OBLIGATIONS
(CABLE TELEVISION FRANCHISE AGREEMENT)
1I118 ASSIGNMiNT AND ASSUMPTION AGREEMENT
( "Agreement ") is entered into this day of _rnG�G 0
�1___ —> 200,
between Century -TCI California, L.P., a California limited partnership
( "Assignor "), CAC.' Exchange IT, LLC, a Delaware limited liability company
( "Assignee "), and the City of Arcadia, a California municipal corporation
( "Franchise Authority ").
RECITAL S:
A. Assignor is the authorized holder of a franchise that authorizes
the construction, operation, and maintenance of a cable television system within
the City of Arcadia, California.
B. Subject to the prior consent of the Franchise Authority as set
forth more fully in Resolution No. SD-F, adopted December 6, 2005 (the
"Consent Resolution"), Assignor desires to assign to Assignee, and Assignee
desires to assume, effective as of the closing of the asset purchase transaction
described in the FCC Form 394 as filed with the Franchise Authority on June 14,
2005 (the "Closing "), all rights, duties, and obligations under the cable television
fi•anchise agreement between the Franchise Authority and the Assignor ( "Franchise
Agreement ") as it currently exists, or as it may be modified or superseded by the
parties prior to the Closing.
THE PARTIES AGREE AS FOLLOWS:
1. Effective as of the Closing, Assignor assigns and transfers to
Assignee all of Assignor's rights, duties, and obligations under the Franchise
Agreement.
2. Effective as of, and contingent upon, the occurrence of the
Closing, Assignee covenants and agrees with Assignor and with the Franchise
Authority to assume all rights and to assume and perform all duties and obligations
of the Assignor under the Franchise Agreement. The Franchise Authority reserves
any and all rights with respect to any non - compliance issues that may exist prior to
A -1
P. 11
lee -14 -05 10:19A
the Closing, and Assignee reserves any and all rights and defenses with respect to
any such non- compliance issues.
3. Franchise Authority consents to the assignment and transfer by
Assignor to Assignee of all rights, ditties, and obligations specified in the
Franchise Agreement, contingent upon the execution by Time Warner Cable Inc.,
as guarantor, of the "Guarantee of Assignee's Obligations ", attached as Schedule 1
to this Agreement and incorporated by reference herein.
4, This Agreement will become operative and enforceable upon
the closing of the asset purchase transaction described in the FCC. Fonn 394 as
filed with the Franchise Authority on June 14, 2005.
TO EFFECTUATE THIS AGREEMENT, "the parties have caused this
Assignment and Assumption Agreement to be executed by their duly authorized
representatives as of the date set forth below the authorized signature.
A PROVED AS TO FORM:
Legal Counsel
"ASSIGNOR"
Century-TCI California, L.P.,
a Delaware limited partnership,
d/b /a Adelphia Cable Communications
By: Century -TCI California Communications, L.P.,
a Delaware limited partnership,
its General Partner,
By: Century Exchange, L.L.C.
a Delaware limited liability company,
its General Partner,
By: Century Cable Holding Corporation,
a New York corporation,
its Sole Member
By: laQ Name,. L ef—; j � c
(PRINT OR TYM
Tide: ,Jtcrr- eF-C- (OEttw-
oate: rz�
[SIGNATURES CONTINUE ON NFx,r PAGE]
A -2
0
APPROVED AS TO FORM-
1
Legal Counsel
APPROVED AS TO FORM:
g P. 46&e
City Attorney
a
"ASSIGNEE"
CAC EXCHANGE II, LLC,
as the New Franchisee
By: Time Warner Cable Inc.,
Its controlling parent upon closing
of the Exchange Transaction
(Authorized c Ic
Title: &U P, � 3'WtS S
Date: 'Sig ( D
"FRANCHISE AUTHORITY"
CITY OF ARCADIA
or
0 a
SCHEDULE 1
to
ASSIGNMENT AND ASSUMPTION AGREEMENT
m
GUARANTEE OF ASSIGNEE'S OBLIGATIONS
GUARANTEE
GUARANTEE, dated as of Q C. J'+ , 2005, made by TIME WARNER
CABLE INC., a Delaware corporation ( "Guarantor"), in favor of the City of
Arcadia, California, (`Beneficiary").
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce Beneficiary to timely consent to the transfer
of the cable television franchise issued by Beneficiary and currently held by
Century-TCI California, L.P. (the "Franchise ") to CAC Exchange II, LLC
( "Transferee ") in accordance with the Federal Communications Commission Form
394 filed by Transferee, Guarantor agrees as follows:
Interpretive Provisions.
A. The words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Guarantee, shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and
section and paragraph references are to this Guarantee unless
otherwise specified.
B. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Guarantee.
A. Effective upon the close of the Exchange Agreement, Guarantor
unconditionally and irrevocably guarantees to Beneficiary the timely
and complete performance of all Transferee obligations under the
Franchise (the "Guaranteed Obligations "). The Guarantee is an
irrevocable, absolute, continuing guarantee of payment and
performance, and not a guarantee of collection. If Transferee fails to
A -1
pay any of its monetary Guaranteed Obligations in full when due in
accordance with the terms of the Franchise, Guarantor will promptly
pay the same to Beneficiary or procure payment of same to
Beneficiary. Anything herein to the contrary notwithstanding,
Guarantor shall be entitled to assert as a defense hereunder any
defense that is or would be available to Transferee under the
Franchise or otherwise.
B. This Guarantee shall remain in full force and effect until the earliest to
occur of: (i) performance in full of all Guaranteed Obligations at a
time when no additional Guaranteed Obligations remain outstanding
or will accrue to Transferee under the Franchise; and (ii) subject to
any required consent of the Beneficiary, any direct or indirect transfer
of the Franchise from Transferee to (or direct or indirect acquisition of
Transferee or any successor thereto by (whether pursuant to a sale of
assets or stock or other equity interests, merger or otherwise)) any
other person or entity a majority of whose equity and voting interests
are not beneficially owned and controlled, directly or indirectly, by
Guarantor. Upon termination of this Guarantee in accordance with this
Section II(B), all contingent liability of Guarantor in respect hereof
shall cease, and Guarantor shall remain liable solely for Guaranteed
Obligations accrued prior to the date of such termination.
Waiver. Guarantor waives any and all notice of the creation, renewal, extension
or accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by Beneficiary upon this Guarantee or acceptance of this Guarantee. Guarantor
waives diligence, presentment, protest and demand for payment to Transferee or
Guarantor with respect to the Guaranteed Obligations; provided, however, that
Guarantor shall be furnished with a copy of any notice of or relating to default
under the Franchise to which Transferee is entitled or which is served upon
Transferee at the same time such notice is sent to or served upon Transferee.
Representations and Warranties. Each of Guarantor and Beneficiary represents
and warrants that: (i) the execution, delivery and performance by it of this
Guarantee are within its corporate, limited liability company or other powers, have
been duly authorized by all necessary corporate, limited liability company or other
action, and do not contravene any law, order, decree or other governmental
restriction binding on or affecting it; and (ii) no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by it of this
Guarantee, except as may have been obtained or made, other than, in the case of
clauses (i) and (ii), contraventions or lack of authorization, approval, notice, filing
A -2
or other action that would not, individually or in the aggregate, impair or delay in
any material respect such party's ability to perform its obligations hereunder.
Binding Effect. This Guarantee, when executed and delivered by Beneficiary,
will constitute a valid and legally binding obligation of Guarantor, enforceable
against it in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency or other similar laws applicable to creditors'
rights generally and by equitable principles (whether enforcement is sought in
equity or at law).
Notices. All notices, requests, demands, approvals, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and made if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested, or if
sent by Telecopier, provided that the telecopy is promptly confirmed by telephone
confirmation thereof, to the party at the address set forth below, or such other
address as may be designated in writing hereafter, in the same manner, by such
party:
To Guarantor and Transferee:
To Beneficiary:
Time Warner Cable Inc.
290 Harbor Drive
Stamford, CT 06902 -6732
Telephone: (203) 328 -0631
Telecopy: (203) 328 -4094
Attention: General Counsel
City of Arcadia
240 West Huntington Drive
Arcadia, California 91006
Telephone: (626) 574 -5401
Telecopy: (626) 446 -5729
Attention: City Manager
Integration. This Guarantee represents the agreement of Guarantor with respect
to the subject matter hereof and there are no promises or representations by
Guarantor or Beneficiary relative to the subject matter hereof other than those
expressly set forth herein.
Amendments in Writing. None of the terms or provisions of this Guarantee may
be waived, amended, supplemented or otherwise modified except by a written
instrument executed by Guarantor and Beneficiary, provided that any right, power
I:W3
or privilege of Beneficiary arising under this Guarantee may be waived by
Beneficiary in a letter or agreement executed by Beneficiary.
Section Headings. The section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or be
taken into consideration in the interpretation hereof.
No Assignment or Benefit to Third Parties. This Agreement shall not be
assigned by Guarantor, in whole or in part, whether voluntarily or otherwise,
without the prior written consent of the Beneficiary. This Agreement shall not be
assigned by Beneficiary, in whole or in part, whether voluntarily or otherwise,
without the prior written consent of the Guarantor. This Agreement shall be
binding upon and inure to the benefit of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon anyone other than
Guarantor and Beneficiary and their respective permitted assigns, any rights or
remedies under or by reason of this Guarantee.
Expenses. All costs and expenses incurred in connection with this Guarantee and
the transactions contemplated hereby shall be borne by the party incurring such
costs and expenses.
Counterparts. This Guarantee may be executed by Guarantor and Beneficiary on
separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Governing Law. This Guarantee shall be governed by and construed and
interpreted in accordance with the laws of the state of California without regard to
principles of conflicts of law. Any legal action or proceeding concerning this
Guarantee shall be filed and prosecuted in the appropriate California court in the
County of Los Angeles, California.
Waiver of Jury Trial. Each party hereto hereby irrevocably and unconditionally
waives trial by jury in any legal action or proceeding relating to this guarantee and
for any counterclaim therein.
XV. Attorneys Fees. In the event that any action or proceeding is commenced to
regarding any term of this Guarantee, the prevailing party in such action or
proceeding, in addition to all other relief to which it may be entitled, shall be
entitled to recover from the other party the prevailing party's costs of suit and
reasonable attorneys' fees. The prevailing party shall be as determined by the court
in accordance with California Code of Civil Procedure Section 1032. The
attorney's costs and expert fees recoverable pursuant to this section include,
without limitation, attorney's costs and expert fees incurred on appeal and those
incurred in enforcing any judgment rendered. Attorney's costs and fees may be
0
L7
recovered as an element of costs in the underlying action or proceeding or in a
separate recovery action.
TO EFFECTUATE THIS GUARANTEE, each of the undersigned
has caused this Guarantee to be duly executed and delivered by its duly authorized
officer on the date set forth below the authorized signature.
"GUARANTOR"
TIME WARNER CABLE INC.
By: ",s
Name: - Ad O�H�F1
Title:EV P , I vi
Date: (3.- _� -- O �,
"BENEFICIARY"
CITY OF ARCADIA
I1
�iesp,lp
BILL OF SALE
This Bill of Sale is entered into by and between Century-TCI California, L.P., a Delaware
limited partnership, d/b /a Adelphia Cable Communications ( "Seller ") and the City of Arcadia,
California ( "Buyer ") as of December JZ, 2005.
WHEREAS, Seller is a debtor and debtor in possession pursuant to Chapter 1 I of Title
11 of the United States Code (the "Bankruptcy Code "), in the case entitled In Re Adelphia
Communications Corporation, et al., Case No. 02 -41729 (REG) (the "Bankruptcy Case "),
pending in the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court "); and
WHEREAS, Seller owns a certain Building (as defined herein) that is no longer
necessary for Seller's business purposes and Seller is willing to sell the Building to Buyer; and
WHEREAS, Buyer is not an insider or affiliate of Seller; and
KNOW ALL MEN BY THESE PRESENTS:
THAT, for good and valuable consideration, the receipt and sufficiency of which is
acknowledged, and in payment of the sum of One Dollar ($1.00), Seller hereby sells and transfers
to Buyer, and its successors and assigns, the personal property described as follows (collectively,
the "Personal Property "):
A standard cement block building, located in the center of Santa Anita Ridge,
Chantry Flats Truck Trail, County of Los Angeles, State of California that is
approximately 15 ft. long by 8 ft. wide, and includes the following:
(i) two air conditioners on the roof;
(ii) a 14 kW stand -by diesel generator next to the building supplied by a 300 -
gallon tank (the "Tank ") that meets all local, state and federal
requirements;
(iii) several small communications towers of varying heights (approx.) 25 ft.
attached to the building;
(iv) an antenna support tower located in front of the building approx. 10 ft,
roughly 20 ft. in height and made of 4 in. welded steel pipe, resting on 6
— 2 % ft. by 4 ft. deep, round cement pads.
Seller warrants to Buyer that Seller has good title to the Personal Property, full authority
to sell and transfer same, and that said Personal Property is free and clear of all liens,
encumbrances, claims, liabilities and adverse claims of every nature and description.
Seller further warrants to Buyer that Seller will fully defend, protect, indemnify and save
harmless Buyer and its lawful successors and assigns from any and all adverse claims that may be
made by any party against the Personal Property to the extent such claims pertain to the time
period prior to the approval of the Bankruptcy Court referenced below.
Buyer hereby acknowledges that the Personal Property is being sold and transferred in an
"AS IS," condition and where presently located, with all faults, and Buyer is not relying upon any
representation by Seller with respect to the Personal Property. EXCEPT AS EXPRESSLY
RVPUBVSM704359.1
PROVIDED ABOVE, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND
OR NATURE WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR
PURPOSE, THE SUITABILITY OF THE PERSONAL PROPERTY FOR BUYER'S
INTENDED USE, OR THE PRESENCE ON OR BENEATH THE PERSONAL PROPERTY
OF HAZARDOUS SUBSTANCES OR MATERIALS. BY ACCEPTANCE OF THIS BILL OF
SALE, BUYER ACKNOWLEDGES THAT BUYER'S OPPORTUNITY FOR INSPECTION
AND INVESTIGATION OF THE PERSONAL PROPERTY HAS BEEN ADEQUATE TO
ENABLE BUYER TO MAKE ITS OWN DETERMINATION WITH RESPECT TO THE
PERSONAL PROPERTY.
To the extent required by law, Buyer shall be solely responsible to register the Tank with
all appropriate federal, state and local agencies (collectively, "Governmental Agencies ") and for
compliance with all federal, state and local laws, rules and regulations pertaining to above - ground
or underground storage tanks, as the case may be (collectively, "Applicable Laws "). Buyer
agrees to indemnify Seller and hold it harmless against any loss, liability, damage, cost, expense,
fine and /or claim resulting from Buyer's failure: (a) to properly and timely register the Tank, if
required, with all applicable Governmental Agencies, and/or (b) to maintain the Tank in
accordance with all Applicable Laws.
This Bill of Sale is expressly subject to, and conditioned upon, the approval of the
Bankruptcy Court and shall not become effective unless and until such approval has been
obtained. Seller shall use commercially reasonable efforts to submit this Bill of Sale, as promptly
as practicable after the execution hereof, to the Bankruptcy Court seeking such approval. In the
event the Bankruptcy Court does not approve this Bill of Sale, then the effectiveness of each
party's signature to this Bill of Sale shall be immediately revoked and rescinded and, as a result
thereof, this Bill of Sale shall be deemed null and void, ab initio, without further liability to either
of the parties.
The City of Arcadia, a municipal corporation organized under the laws of the State of California
( "Buyer ") hereby acknowledges and agrees that, until the expiration of the notice period
established in the Bankruptcy Court's Order Establishing Procedures for the Sale of Excess
Assets, dated September 17, 2002 (the "Notice Period "), this Bill of Sale is subject to higher or
otherwise better offers by any third party. In the event that, prior to the expiration of the Notice
Period, Seller receives any additional expressions of interest or offers for the personal property
described below (the "Property ") that Seller, in its sole discretion, determines to be higher, or
otherwise better, Seller, in its sole discretion, may conduct an auction for the Property (the
"Auction "). If, under the above - mentioned circumstances, Seller determines that an Auction is
required, Seller may not be bound by this Bill of Sale and Buyer shall not be entitled to recover
any costs and /or expenses related to this Bill of Sale. In the event the Bankruptcy Court does not
approve this Bill of Sale for any reason whatsoever or Buyer is not the successful bidder at the
Auction, all obligations of Buyer and Seller hereunder will terminate without any liability of any
party to any other party under this Bill of Sale.
IiV fill - II.7:lY IM47MI
BUYER: CITY �O� F{AARCADIA, CA
Name: w'R' kt" _tc'huAwr
(PRINT OR TYPE)
Date: WOO
ATT
City Clerk of the City of Arcadia
APPROVED AS TO FORM:
&'
Stephen P. Deitsch
City Attorney
SELLER:
Century-TCI California, L.P.,
a Delaware limited partnership,
d/b /a Adelphia Cable Communications
By: Century-TCI California Communications,
L.P.,
a Delaware limited partnership,
its General Partner,
By: Century Exchange, L.L.C.
a Delaware limited liability company,
its General Partner,
By: Century Cable Holding Corp.
a New York corporation,
its Sole Member
By: 611V�k W�-� Uya_
Name: -T r1 0 M P S V C -,q R- L o t- (L
(PRINT OR TYPE)
Title: V.P. 1—Aw ),- Qyil "c- PuLtGy
Date: 0 U [- t �-' 9--c; o a
RVPUBVSB \704359.1
•
ACKNOWLEDGEMENT (BUYER)
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES )
C,
On � day of _ O t V , 2005 before me, n Apersonally appeared.
is personally known to me or proven to me on the basis of satisfactory
evidence to lZ4 person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity as &�w okb,n Rp(l (title
position) on behalf of Buyer, and that by his signature on the instrument the pers or the entity
upon whose behalf the person acted, executed the instrument.
NAMBIA 6111A0tIWi
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WWWOW.W
(SEAL)
WITNESS my hand and official seal.
P41 Q"V
NOTARY PUBLIC
My Commission expires: On 9 day of 110 , 200_T
ACKNOWLEDGEMENT (SELLER)
STATE OF CALIFORNIA
COUNTY OF 1.6�kJFzc.t `7
On 1'Z� day ofC>e Ft 2005 before me, Al iru,v+��('z- �tg44 personally appeared
tkMk� i -?k to c is proven to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity as '� fee.- PR&9 t Rer'S'T- (title
position) on behalf of Seller, and that by his signature on the instrument 4wTorxmrw the entity
upon whose behalf the person acted, executed the instrument.
N MC A
Comm. #1318B VNOIAA A A
NAVNA cw
My Cmnm.Egf 9ep1.1fi,tU0B
(SEAL)
WITNESS my hand and official seal.
NOTARY PUBLIC
RVPUBVSB%704359.1 q
•
• FS-27404% P"
OMB No. VAMO e2
USDA FOREST SERVICE
HOLDER INITIATED REVOCATION OF EXISTING AUTHORIZATION
REQUEST FOR A
SPECIAL-USE PERMIT OR TERM SPECIAL-USE PERMIT
authorizing me (us) to occupy and use National
Forest System lands for,,.. have
(Mark one box with "XJ
® conveyed all my (our) right, title, and Interest In and to the improvements located on the parcel covered by said permit to:
❑ entered into a contract for the sale of the Improvements located on the parcel covered by said permit but have rate Inod
title to sold improvements until completion of paymerd under sold contract with:
Now oww (t): CCly of Arnedla Aditm: �i Weet H� naEcn OAVa. Areodrg CA a�a07
(Pkaw PAM)
Nmw Oww (2): Addrase:
(Pin" PArm Phorwc (SM 674.6400
Accordingly, I (we) request that the speClai -use authorization Identified above be revoked, I (we) have Informed the now
owner(s) that (1) the current authorization Is not transferable; (2) they must apply for and obtain a new authorizatton; (3) there are
terms and conditions for the use of National Forest System lands; (4) and they must contact the Forest Service prior to acquisition
of Improvements, The remaining balance of any fees previously paid should be credited to the new owner(s) named above, If an
sulhodzstlon Is Issued.
HQkW (5}: Adekhk CI.Orouo w1
(Fleeee PAM).
Slanetun: -.
(Pkeee PdrR
Holde (2):
(Plem PAM)
slowum
Delp: 2AA (rn Vd&WM
Request is made for a spoClal use suthorlzahon to cover the same parcel of land or use covered by the authorization referred to
above, and for the some purpose, subject, however, to such new conditions and stipulafto as the circumstances may warrasd. I
(We) acknowledge that this is a request only, and that the use and occupancy of National Forest System lands Is not authorized
until an authorization Is signed and Issued by an authorized officer. I Me) also understand that an administrative fee may be
charged by the Forest Service to process this request for a now authorization to ties or occupy National Forest System lands.
{Pkooa PAM1 I,d�0.,I'
RaquwtK(2):
(Pkaee part)
spowue:
Phone: (M) 674-54M
F - Mall: a�aa•r6keduw.ra4Y�
FAX: l* 40' (m
Onto: — (mrowd"M
1. Does me current use And occupancy of National Forest System lands and facilities comply w h an federal, a
and local laws, regulations, orders, and policies? If not, what must be done to make the use and occupancy
MY" comply? —
❑ rib
2. Is the current use and occupancy of Naf(onal Forest System lands and facilities being conducted Ina mannerthat
Is consistent with established standard$ and guidelines In the Forest Land and Resource Management Plan? If
M Val not, can it be made to be conaistard? How? Amu in mw Kzw &rw rray rawrrwwdaeac MK MMULq xad
❑ No
3. What was the date of last inspection? What Lathe condition of the au odzed area sk iacilides? (Describe
(] Yas undesirable or unacceptable condigons that need to be corrected.) AWMbw 2Cg!
❑ No
A. Doer the requestar{sj owe any fees to the Forest Service from a prioror existing speaat -use authorization? If
n Yes yea, Identity fees owed. _
ONO
e reques'ter(aj qualified to ha d an it uthodzatlan for the iWfiTect use and occupancy? M Tot, why?
0 Ya
❑ No
8, Can the raquessWr(s) demonstrate technical and financial capability to undertake the proposed use and
ayaa occupancy, and fully comply with all the terms and conditions of the authorization? __
CI Na
7, is there someone authorized by the requester(sj io slgri an authorizatton, and theta is someone wtfiing to accept
3 Yas the responsibility of the terms and conditions of the authorization? T
17 No
Remarks: The City of Acadia is witting to take over the site ab is.
1
Signature of Administrator Itaae Manger: Rata: (rtm'i
© this request ie issue an authorization to use or occupy National Forest System lands for the use(s) described In Pad I
of this form.
The request and the requester meet the orltetta identified In Part III of this form. Therefore, I approve this request to
Q issue an authorization to use or occupy National Forest System lands forthe use(s) described in Pan I of this form.
Signature: Tftla: Date: ,_fmrgM-- "yyL—
Mimenh Ward 2000
vS- -ly -fig'
CITY OF ARCADIA
CABLE TELEVISION FRANCHISE AGREEMENT
ORDINANCE NO. 2084
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARCADIA, CALIFORNIA, AWARDING TO
CABLEVISION OF ARCADIA / SIERRA MADRE, INC.
(DBA TCI CABLEVISION OF LOS ANGELES COUNTY)
A SEVEN (7) YEAR NON - EXCLUSIVE FRANCHISE
WITH A CONDITIONAL THREE (3) YEAR EXTENSION
TO CONSTRUCT, OWN, OPERATE AND MAINTAIN A
CABLE SYSTEM WITHIN THE CITY OF ARCADIA,
CALIFORNIA; SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANTING OF SAID
FRANCHISE; PROVIDING FOR CITY REGULATION
AND USE OF THE CITY'S PUBLIC RIGHTS OF WAY;
PROVIDING FOR OTHER LAWFUL REGULATION OF
THE CABLE SYSTEM; AND PRESCRIBING
PROCEDURES AND LIQUIDATED DAMAGES FOR
VIOLATION OF THE ORDINANCE
WITNESS
WHEREAS, under applicable laws and its Charter, the City of Arcadia ( "City ") has the
authority to regulate the use of streets, public rights -of -way (Public Rights -of -Way), and other
municipal property, and to grant access thereto upon certain terms and conditions; and
WHEREAS, the Public Rights -of -Way;
(1) are critical to the travel of Persons and the transport of goods and other tangibles in
the business and social life of the community by all citizens; are used by the City to provide critical
services to its citizens, including electric services, services to protect public safety, water and other
public utilities; and are used by the City to provide communications and other services to itself and
other government agencies; and
(2) can be partially occupied by private utilities and other public service entities for
facilities used in the delivery, conveyance; and transmission of utility and public services rendered
for profit, to the enhancement of the health, welfare, and general economic well -being of the City
and its citizens; and
(3) are a unique and physically limited resource so that proper management by the City
is necessary to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing
uses, to protect against foreclosure of future economic expansion because of premature exhaustion
of the Public Rights -of -Way as an economic resource, and to minimize the inconvenience to and
negative effects upon the public from such facilities' construction, emplacement, relocation, and
maintenance in the Public Rights -of -Way and
(4) are intended for public uses and must be managed and controlled consistent with that
intent; and
WHEREAS, the City wishes to promote availability of high - quality and diverse Cable
Services to City residents, businesses, the City, and other public institutions; to promote the
availability of diverse information resources to the community, including through the development
of advanced Cable Systems that can support public, educational, and governmental programming
and high -speed access to the Internet; to promote competitive Cable Services and rates; to take
advantage of technologies to provide for more open government; to enhance educational
opportunities throughout the community and provide opportunities for building a stronger
community; and to allow flexibility to respond to changes in technology, subscriber interests, and
competitive factors within the cable television industry that will positively affect the health, welfare,
and well -being of the community; and
WHEREAS, the right to place privately -owned facilities and fixtures in such Public Rights -
of -Way for the business of providing services for hire, affords the Grantee, as defined herein, a
valuable economic right to use a unique public resource that has been acquired and is maintained at
great expense to the City and its taxpayers, the economic benefit of which should be shared with the
taxpayers of the City; and
WHEREAS, the City is authorized by state and local law to control the use of Public Rights -
of -Way and to franchise operators of Cable Systems which use such Public Rights -of -Way; and
WHEREAS, the City will manage access to the Public Rights -of -Way for Cable Services in
a non - discriminatory, competitively neutral and non - exclusive way to the extent required under
applicable law and, to the extent allowed under applicable law, to receive fair compensation. The
City will also manage access to its Public Rights -of -Way for video programming purposes in a non-
discriminatory, competitively neutral and non - exclusive way to the extent required by applicable law
and, to the extent allowed by applicable law, to receive fair compensation; and
WHEREAS, the public interest will be protected by collecting full, fair and lawful market
compensation, associated fees, taxes, administrative costs, and construction costs for use of the
rights -of -way; and
WHEREAS, the City finds that it is in the interest of the public to franchise and to establish
standards for franchising such Cable Systems in a manner which (1) overall compensates the City
for the fair market value of such property used and for ongoing costs associated with the use of that
property insofar as possible; (2) encourages competition by establishing terms and conditions under
which an operator of a Cable System may use valuable public property to serve the public; (3) fully
protects the public and the City from any harm that may flow from such private use of the Public
Rights -of -Way; (4) protects and carries out the regulatory authority of the City, in a manner
consistent with federal and state law and recovers regulatory costs; (5) protects the City's interests
in using the Public Rights -of -Way for the provision of services to the public, other governmental
agencies and itself, and (6) otherwise protects the public interests in the development and use of the
City's infrastructure and in preserving and improving the aesthetics of the community; and
•
WHEREAS, the City finds that it is appropriate for various operators to obtain separate
franchises based on the type of service provided in order to conform to the requirements of the City's
Charter, to protect Public Rights -of -Way throughout the City, provide for City control over the
placement of facilities in the Public Rights -of -Way to ensure that similarly situated operators can
be comparably treated and to avoid confusion as to regulatory authority applicable to each type of
franchise; and
WHEREAS, the City is authorized to grant, renew and deny Franchises for the installation,
operation and maintenance of Cable Systems within the City's boundaries by virtue of Federal and
State statutes, by the City's police powers, by its authority over its public rights of way and by other
lawful City Powers and authority; and
WHEREAS, the Cablevision of Arcadia/Sierra Madre, Inc., doing business as TCI
Cablevision of Los Angeles County ( "Grantee ") is currently maintaining and operating a Cable
System on a month to month basis in the City pursuant to an expired Franchise Agreement dated
July 5, 1985 and amended by City Ordinance 1814 on May 20, 1986, and extended thereafter on July
5, 1995 and July 1, 1997; and
WHEREAS, the State Legislature, by Chapter 262, has added Article 3.5 to the Government
Code of the State of California commencing with Section 53054 entitled "Cable Television and
Video Provider Customer Service Information Act" which was effective January 1, 1993; and
WHEREAS, the State Legislature, by Chapter 1198, has amended the Government Code of
the State of California to add Article 4.5 entitled "The Video Customer Service Act," commencing
with Section 53088 which became effective on September 1, 1993; and
WHEREAS, the Federal Government enacted the "Cable Television Consumer Protection
and Competition Act" in 1992 which directed the Federal Communications Commission to adopt
rules and regulations related to standards for customer service (47 CFR Part 76.309), rate regulation
(47 CFR Part 76.901) and other matters which apply to all cable television operators (Cable
Television Consumer Protection and Competition Act of 1992, approved October 5, 1992, 106 Star
1460, 13.); and
WHEREAS, the Federal Government enacted the "Telecommunications Act of 1996" (47
U.S.C. 151 et seq.) in February, 1996 which codifies a municipality's right to be compensated for
use of its public rights of way and easements and also codifies a regulatory structure to enable
competition between telecommunications providers in the delivery of cable television, telephony,
and information services to the public; and
WHEREAS, it is the intention of the City Council by this Ordinance to reaffirm and update
the terms and provisions of this Franchise Agreement with these various state and federal laws; and
WHEREAS the Grantee has read and fully understands and agrees to comply with the
provisions of these State and Federal laws, City Ordinance No. 2057 (Right -of -Way Encroachment)
and other various provisions contained in this Ordinance; and
4
WHEREAS, the Grantee has proposed a renewal of its nonexclusive Franchise, offering to
upgrade system facilities and to provide improved services to the City, its residents and Subscribers;
and
WHEREAS, the City has undertaken a review of Cable Service in the city, including but not
limited to a review of the Grantee, its record of service, its facilities, the present and future cable -
related community needs of the City, the Grantee's ability to carry out its commitments, and its
overall financial, legal and technical qualifications to hold a City Franchise; and
WHEREAS, the City has conducted a public hearing and hereby finds that it would serve the
public interest to renew the Franchise subject to the terms and conditions set forth herein and in the
Municipal Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
5
I
CITY OF ARCADIA
CABLE TELEVISION FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION
PAGE
1.
Definitions ................................................ ...............................
49
2.
Franchise Granted .................................... ...............................
7
3.
Franchise Term ....................................... ...............................
7
4.
Conditional Five Year Extension ............ ...............................
8
5.
Termination ............................................. ...............................
8
6.
Franchise Renewal .................................. ...............................
10
7.
Franchise Fee .......................................... ...............................
10
8.
Insurance ................................................. ...............................
11
9.
Bonds and Securities ............................... ...............................
13
10.
Limitations of Franchise ......................... ...............................
14
H.
Assignment or Transfer or Sale of Franchise ........................
15
12.
Rights Reserved to the City .................... ...............................
16
13.
Technical Performance and Equipment Standards ................
18
14.
Operation of Service .............................. ...............................
18
15.
System Design and Capacity .................. ...............................
19
16.
System Extension .................................... ...............................
21
17.
Standard / Non - Standard Installation ..... ...............................
25
18.
Possessory Interest .................................. ...............................
25
19.
Continuity of Service .............................. ...............................
25
20.
Complaint Procedures ............................. ...............................
26
21.
Customer Service Standards, Billing, Complaints and Subscriber Rights
28
22.
Regulation of Rates and Service Charges ..............................
38
23.
Services and Programming ...................... ...............................
39
24.
Grantee Support For Community Programming ....................
39
25.
Records ................................................... ...............................
41
26.
Fiscal, System and Performance Testing Reports .................
41
27.
Liquidated Damages and Other Remedies ............................
42
28.
Costs to be Borne by Grantee .................. ...............................
46
29.
Miscellaneous Provisions ........................ ...............................
46
30.
Equal Opportunity Employment and Affirmative Action......
47
31.
Invalidity/ Modifications .......................... ...............................
47
Exhibit A - Definitions ..............................
Exhibit B - Construction Schedule
Exhibit C - Technical Standards
Exhibit D - Certificate of Acceptance
11
49
i •
This Franchise Agreement (the "Franchise ") is made and entered into by and between the City of
Arcadia ( "City "), and Cablevision of Arcadia/Sierra Madre, Inc., doing business as TCI Cablevision
of Los Angeles County ( "Grantee ").
SECTION 1 - DEFINITIONS
For the purposes of this Franchise, the terms, phrases, words abbreviations, and their derivations
found in Exhibit A (attached and included herein) shall have the meaning given therein. When not
inconsistent with the context, words used in the present tense shall include the future tense, words
in the plural number include the singular number, and words in the singular number include the
plural number.
SECTION 2 - FRANCHISE GRANTED
An Operator of a cable television system must obtain a Franchise prior to constructing a facility or
providing services. This Franchise shall not become effective without the Grantee signing an
acceptance of the Franchise.
(a) Franchise Granted. A non - exclusive Franchise is hereby granted by the City which authorizes
Grantee to install, construct, operate, and maintain a Cable System in Public Rights -of -Way within
the City subject to the terms and conditions contained herein.
(b) Uses Permitted. This Franchise shall authorize and permit the Grantee to engage in the
business of operating and providing Cable Service in the City, and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along
any Street, such poles, wires, cable conductors, ducts, conduit, vaults, manholes, amplifiers, and
appliances, attachments, and other property and accessory equipment which is part of the Cable
System.
SECTION 3 - FRANCHISE TERM
(a) Term. The term of this Franchise shall commence upon the Effective Date and shall remain in
effect for seven (7) years therefrom. The Effective Date shall be the date the Certificate of Closing
(described below) is issued by the City Attorney. Upon and following, this Franchise Agreement
will be a binding agreement, with all rights and privileges vested in the Grantee as described herein.
This Franchise Agreement will terminate on the seventh (7th) anniversary date of the Effective Date,
unless otherwise extended pursuant to Section 4 herein.
(b) A Certificate of Closing shall be issued by the City Attorney attesting that the following
documents have been provided to the City, or acts completed by Grantee. Such Certificate of
Closing shall be issued promptly and in no case later than ten (10) days following receipt by the City
of the information or appropriate documentation that the actions required have been completed.
(1) A written acceptance to be bound by and comply with and to do all things required
by this Franchise in a form attached as Exhibit D.
(2) All bonds, letters of credit, security deposits, and insurance policies required by this
Franchise have been filed.
SECTION 4. CONDITIONAL THREE YEAR EXTENSION
A three (3) year extension shall be granted upon successful completion and activation of the items
described in Sections 15 (a) and (b) as determined by the City provided, however, a failure to
complete and activate the items described in Sections 15 (a) and (b) within the times specified herein
shall constitute a material breach of this Agreement. Extension approval shall be by formal action
of the City Council. The request for a three (3) year extension shall come in the form of a letter from
one party to the other and must be received at least six (6) months prior to the expiration of the
original seven (7) year agreement. The Grantee shall not be required to submit an application or pay
an application fee for this one -time extension.
SECTION 5. TERMINATION
(a) In addition to any rights contained elsewhere in this Franchise, the City reserves the right to
terminate this Franchise, and all rights and privileges pertaining hereto in the event that:
(1) The Grantee violates any material provision of this Franchise or any other material and
lawful rule or regulation of the Council or City Manager validly adopted pursuant to this
Franchise.
(2) The Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged
bankrupt.
(3) The Grantee is found to have practiced any fraud or deceit upon the City
(b) Termination (Proceedings). The City Manager shall provide written notice to Grantee of City's
intent to terminate this Franchise. Such notice shall state the reasons for termination, and whenever
feasible, provide compliance demands stating what the Grantee must do to avoid termination. If
cause for the termination cannot be cured pursuant to the notice of intent to terminate, the City
Manager shall transmit all material pertinent to the termination to the City Council for their final
action.
At least ten (10) days prior to the date of the scheduled City Council meeting, the City Manager shall
serve Grantee with a written notice stating the intent to terminate and the time and place of the City
Council meeting. At least ten (10) days prior to such meeting, the City Clerk shall publish the time,
date and place of the meeting in a newspaper of general circulation within the City.
After considering the request of the City Manager and hearing the comments of any interested
persons, the City Council may (1) terminate the Franchise or (2) allow it to continue subject to
Grantee's compliance with conditions established by the City Council. The City Council decision
shall be reflected in a resolution prepared by the City Attorney.
(c) Termination (Appeal). Grantee may appeal a decision by the City Council to revoke the
Franchise to an appropriate court. Such appeal to the appropriate court must be taken within sixty
(60) days of the Grantee's receipt of the City's resolution to revoke the Franchise.
(d) Termination (Rights). Unless the City's action to revoke the Franchise is stayed by an
appropriate court, all rights of the Grantee as set forth in this Franchise shall be divested without
further action upon the part of the City sixty (60) days following deliverance to the Grantee of the
City's resolution to revoke the Franchise. Following that date, the Grantee shall, at the written
request of the City, remove its structures and property from the Public Rights -of -Way and restore
said Public Rights -of -Way and affected property, public or private, to the condition in which it
existed prior to the erection or construction of the Cable System, including any improvements made
to such property subsequent to the construction of the Cable System. Upon failure to restore said
Public Rights -of -Way and property as required by the City, the City may perform the work and
collect the costs thereof from the Grantee. The cost thereof shall be a lien upon all plant, property,
or other assets of the Grantee wherever located and may be collected, without limitation, from any
security held by the City.
The termination and forfeiture of the Franchise shall in no way affect any of the rights of the City
under the Franchise or any provisions of the law.
(e) Receivership. The City shall have cause to revoke the Franchise one hundred and twenty (120)
days after the appointment of a receiver or trustee, and to take over and conduct the business of the
Grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred
and twenty (120) days, or unless:
(1) Within one hundred and twenty (120) days after his election or appointment such
receiver or trustee shall have fully complied with all of the provisions of the Franchise and
remedied all defaults thereunder; and
(2) Such receiver or trustee, within said one hundred and twenty (120) days, shall have
executed an agreement, duly approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this Franchise.
SECTION 6. FRANCHISE RENEWAL
Certain exclusive methods for extending the length of this franchise, pursuant to its own terms, and
for studying performance and community needs are provided for in Section 4 and Section 28
respectively. Upon extension of this Agreement, for years seven (7) through ten (10) pursuant to
Section 4, or in the event that the Grantee declines its option to extend prior to the expiration date
of this Agreement, the franchise shall be renewed in the manner provided by Section 626 [47 USC
Section 546] of the Cable Act as it exists as of the effective date of this Agreement.
SECTION 7 - FRANCHISE FEE
(a) Franchise Fee Payment.
Grantee shall pay the City during the term of this Franchise as compensation for Grantee's use of
City's Public Rights -of -Way, a franchise fee in an amount equal to five percent (5 %) of Grantee's
Gross Revenues unless a higher rate is allowed by federal law (up to a maximum of seven percent
(7 %) provided the decision to raise the franchise fee is adopted by the City Council in its sole
discretion following a public hearing). Grantee shall pay the franchise fee to the City Manager's
office within forty-five (45) days after the close of each calendar quarter. Each payment shall be
accompanied by a report showing the mathematical calculations used to determine the amount owed
the City.
Nothing contained in this Franchise shall be construed to limit the right of the Grantee to voluntarily
make payments or provide other types of assistance in support of the use of the Education and
Government Access Programming. However, in no event shall any voluntary payment for staff
support for Educational and Government Access Programming be considered in the calculation of
franchise fees payable to the City. Grantee hereby waives any rights to the contrary. Franchise fees
required hereunder shall be in lieu of any business license, occupation tax, or similar levy imposed
directly upon the Grantee.
Notwithstanding the foregoing, in the event that the Grantee who is obligated to pay the franchise
fee ceases to provide Cable Service for any reason (including as a result of a transfer), such Grantee
shall make a final payment of any amounts owed to the City within ten (10) business days of the date
its operations in the City cease, accompanied by a report showing the basis for the computation.
b. Late Fee Penalty
If payments are late, Grantee shall pay interest to the City on the amount owed at the rate of one
percent (I%) per month or fraction thereof compounded monthly.
c. Audit
Not more often than every three (3) years, the City may, upon at least thirty (30) days advance
written notice, inspect and audit any and all books and records reasonably necessary to the
determination of whether franchise fees have been accurately computed and paid. At maximum, the
Ru
period of the audit shall be the lesser of the statute of limitations for contract payments under state
law, or from the end date of the period of the previous audit. Grantee must provide access to the
books and records or copies thereof to the City or pay in advance the costs of travel and per diem
for an employee or employees of the City to inspect and copy such books and records at any location
more than fifty (50) miles outside the City at which such books and records are kept in the course
of business.
If any independent audit of the Grantee's records directed by the City which shows a franchise fee
error in excess of five percent (5 %) in the City's favor, the Grantee shall assume all reasonable costs
for said audit. No acceptance of any payment shall be construed as a release or as an accord and
satisfaction of any claim the City may have for further additional sums payable under this Section
or for the performance of any other obligation hereunder.
Access to the aforementioned records shall not be denied by the Grantee on the basis that said
records contain "proprietary" information.
SECTION 8 - INSURANCE
(a) Hold Harmless Agreement. Grantee shall indemnify, hold harmless, and defend the City, its
officers, boards, commissions, agents and employees, against and from any and all claims, demands,
causes of actions, actions, suits, proceedings and damages, including but not limited to damages to
City property and damages arising out of copyright infringements, and damages arising out of any
failure by Grantee to secure consents from the owners, authorized distributors or licensees of
programs to be delivered by Grantee's Cable System, costs or liabilities (including costs or liabilities
of the City with respect to its employees), including but not limited to damages for injury or death
or damage to person or property, and regardless of the merit of any of the same, and against all
liability to others, and against any loss, cost and expense resulting or arising out of any of the same,
including any attorney fees arising out of or pertaining to the exercise or the enjoyment of the
Franchise hereunder by Grantee, or the granting thereof by the City, and/or operation of the Cable
System. The City may use for any public or municipal purpose, any poles or conduits maintained
exclusively by or for the Grantee in any Street, provided such use by the City does not interfere with
the current or future operations of the Grantee. The City shall indemnify, hold harmless, and defend
the Grantee against and from any and all claims, demands, actions, suits, proceedings, damages,
costs or liabilities arising out of the City's, its employees' or agent's negligence or willful misconduct
in such use of the Grantee's poles and conduits. Further, such use by the City of the Grantee's poles
and conduits is restricted to non - commercial municipal purposes, and the City shall not use the poles
or conduits for any purpose that is in direct competition with the Grantee. The City shall also
indemnify, hold harmless, and defend the Grantee against and from any and all claims, demands,
actions, suits, proceedings, damages, costs or liabilities arising from the Education and Government
Access Programming required by this Franchise.
I1
0 0
(b) Defense of Litigation; Payment of Judgments and Claims. Grantee shall at the sole risk and
expense of Grantee, upon demands of the City, made by and through the City Attorney, appear in
and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi- judicial,
administrative, legislative or otherwise, brought or instituted by third persons or duly constituted
authorities against or affecting the City, its officers, boards, commissions, agents or employees, and
arising out of or pertaining to the exercise or the enjoyment of such Franchise, the granting thereof
by the City and/or the operation of the Cable System. Written notice of at least thirty (30) days will
apply in cases of claims and litigations.
Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order,
directive, or demand rendered, made or issued against Grantee, the City, its officers, boards,
commissions, agents or employees in any of these instances; and such indemnity shall exist and
continue without reference to or limitation by the amount of any bond, policy of insurance, deposit,
undertaking or other assurance required hereunder, or otherwise; provided, that neither Grantee nor
City shall make or enter into any compromise or settlement of any claim, demand, cause of action,
action, suit, or other proceeding, without first obtaining the written consent of the other which shall
not be reasonably withheld.
(c) Insurance Required. Grantee shall at all times during the existence of this Franchise maintain
in full force and effect, at its own cost and expense: (1) a commercial general liability insurance
policy written on an "occurrence" form, including but not limited to coverage for
premises /operations, explosion, collapse, and underground hazards, contractual liability coverage,
broad form property damage liability coverage, independent contractors and personal injury, and (2)
a comprehensive automobile liability policy, covering all owned, non -owned and hired vehicles.
Both policies shall be underwritten by insurers authorized to do business in the State of California,
and shall protect the City and all Persons against liability for loss or damage for personal injury,
death and property damage, occasioned by the operations of Grantee under this Franchise. The
following limits are required:
1. COMMERCIAL GENERAL LIABILITY
Combined single limit for bodily injury, property damage and personal injury:
$1,000,000 each occurrence
$3,000,000 annual aggregate
2. COMPREHENSIVE AUTOMOBILE LIABILITY
Combined single limit for bodily injury and property damage:
$1,000,000 each accident
The City, its officers, boards, commissions and employees, shall be named as additional insureds
under the required insurance policies. Where such insurance is provided by a policy which also
covers Grantee or any other entity or Persons, it shall contain the standard cross liability
endorsement. Such policies shall contain a provision that a written notice of cancellation or
reduction in coverage of said policy shall be delivered to the City Clerk thirty (30) days in advance
of the effective date thereof.
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Said insurance policy shall contain provisions stipulating that:
(1) The naming of an additional insured as herein provided shall not affect any recovery to
which such additional insured would be entitled under this policy if not named as such
additional insured, and
(2) The provisions of the policy will not be changed, suspended, canceled or otherwise
terminated as to the interest of the additional insured named herein without first giving such
additional insured thirty (30) days written notice.
(d) Workers' Compensation. Grantee shall also at all times during the existence of the Franchise
granted hereunder, maintain in full force and effect, at its own cost and expense, a policy of workers'
compensation insurance to comply with all statutory requirements. In the case of any work being
subcontracted by Grantee, the Grantee shall require that all subcontractors similarly provide
workers' compensation insurance for all the latter's employees unless such employees are covered
by the protection afforded by the Grantee.
(e) Certificates of Insurance. Grantee shall maintain on file with the office of the City Clerk a
Certificate or Certificates of Insurance on a standard Accord 25 -5 Form (or most recent insurance
services office version thereof), representing that the insurance required by this Franchise is in full
force and effect. Proof of insurance must be approved by the City Attorney.
SECTION 9 - BONDS AND SECURITIES
(1) The former cash deposit of thirty thousand dollars ($30,000) kept by the Grantor as required
under the previous agreement and originally submitted by Grantee's successor Grantee (Group W)
will remain in effect as surety against performance of the Grantee during the life of this agreement.
The City Manager shall have the unconditional rights to withdraw sums for any due compensation,
liquidated damages, penalties, or fees thirty (30) days after a notice of default and intention to make
such a withdrawal has been given by the City to the Grantee and the Grantee has failed to cure such
default as reasonably determined by the City Manager pursuant to Section 27 of this Agreement.
No interest shall be paid to the Grantee on said sum of thirty thousand dollars ($30,000).
(2) The second component of the surety fund is an irrevocable letter of credit secured with
unemcumbered assets of said Grantee. Within thirty (30) days after the execution of this Franchise,
the Grantee shall deposit with the City Treasurer an irrevocable letter of credit in the amount of
eighty thousand ($80,000) dollars. Such letter of credit shall be deposited in a bank acceptable to
the City Treasurer and be in a form acceptable to the City Attorney; provided; however, the letter
of credit shall give the City Manager the unconditional right to draw sums thereupon for the
aforesaid payments (i) immediately upon Notice of Termination or Expiration of the Letter of Credit
and (ii) thirty (30) days after notice of default and intention to make such a draw has been given by
the City to the Grantee and the Grantee had failed to assure such default as reasonably determined
by the City Manager.
(3) Such letter of credit shall remain in effect until the termination of this Franchise.
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(4) In the event that, and every time that, the City shall draw on said letter of credit, the Grantee
shall replenish the amount thereof within ten (10) days thereafter so that the amount of such security
fund remains at eighty thousand ($80,000) dollars for the life of this Franchise.
(5) In the event of forfeiture of any franchise, such cash deposit or letter of credit and all interest
shall become the property of the City.
(6) Construction Performance Bond -- Before beginning any construction work in or under the City
Public Rights -of -Way requiring a street opening permit, Grantee shall furnish a performance bond
to the City as is required for street opening permits. The bond shall run to the City with good and
sufficient surety approved by the City and shall be maintained in a sum equal to the anticipated cost
of the work to be performed, but not to exceed two hundred thousand dollars ($200,000). The form
of the bond and the identity of surety companies shall be subject to the reasonable approval of the
City Attorney. The bond shall be conditioned that the Grantee shall well and truly observe, fulfill
and perform each term and condition under Section 15, System Design and Capacity. Grantee shall
pay all premiums or costs associated with maintaining the bond, and shall keep the same in full force
and effect at all times during the construction work. The bond shall provide that it may be
terminated upon final approval of Grantee's construction work in or under the City Public Rights -of-
Way by the City Engineer. Upon such approval, which shall not be unreasonably withheld, the City
agrees to sign all documents necessary to release the bond in accordance with the terms of this
Section.
SECTION 10 -LIMITATIONS OF FRANCHISE
(a) Time Requirements. Time shall be of the essence of this Franchise. The Grantee shall not be
relieved of its obligation to promptly comply with any of the provisions of this Franchise because
of any failure of the City to enforce prompt compliance.
(b) Transfer of Duty. Any right or duty impressed upon any officer, employee, department or City
Board/Commission shall be transferable by the City to any other City officer, employee, department
or Board/Commission. City shall notify Grantee within a reasonable period prior /after such
delegation.
(c) Provision Violations. Except to the extent that City violates the provisions of this Franchise,
the Grantee shall have no monetary recourse whatsoever against the City for any loss, cost, expense
or damage arising out of any provision or requirement of this Franchise.
(d) Utility Pole Clearance. This Franchise shall not relieve the Grantee of any obligations involved
in obtaining the necessary pole or conduit space easements and agreements from any department of
the City or any appropriate utility company.
(e) System Regulation. All Cable System construction, operation and maintenance in the City shall
be deemed and construed in all instances and respects to be under and pursuant to this Franchise, and
as such is not under or pursuant to any other right, privilege, power, immunity or authority
whatsoever except applicable state and federal law regulating cable television.
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(f) General Regulation. Grantee shall be subject to all generally applicable and non - discriminatory
provisions of the City Charter, ordinances, rules, regulations and specifications of the City heretofore
or hereafter adopted including but not limited to those pertaining to works and activities in, on, over,
under and about Public Rights -of -Way. In the event the terms of this Franchise are inconsistent with
any other rule, regulation, or resolution of the City, the terms of this Franchise shall prevail. Any
privilege claimed under this Franchise related to any street or other public property shall be
subordinate to any prior lawful occupancy of the Public Rights -of -Way or other public property.
(g) Television Repair Services. Grantee shall be prohibited from directly or indirectly doing any
of the following: (1) engaging in the business of selling, leasing, renting, repairing or servicing of
television sets or radios except for the connection of Cable service and the repair or service of
Grantee -owned converters; (2) soliciting, referring or assisting any Subscriber or resident to a Person
engaged in the selling, leasing, renting, repairing or servicing television sets or radios except that
when requested, Grantee may provide information on television or radio equipment which is not
compatible with their Cable System. Grantee may also provide information related to the
identification of individual television or radio equipment which is compatible with the Grantee's
Cable System so long as the Grantee does not have any financial or material interests in the
recommended equipment.
SECTION 11 - ASSIGNMENT OR TRANSFER OR SALE OF FRANCHISE
(a) There shall be no assignment of a Franchise, in whole or in part, or change in Control without
the prior express written approval of the City. For purposes of this section assignment shall mean
"change of control or composition of authority" or "change of controlling interest."
(b) Any transfer or change in Control without such prior written consent shall constitute a default
of the Franchise which will cause the Franchise to terminate.
(c) The Grantee shall promptly notify the City of any proposed transfer or change in Control of the
Grantee with respect to which the consent of the City is required. For the purpose of determining
whether it will consent to such change, assignment, transfer or acquisition of Control, the City may
inquire into, among other things, the qualifications of the prospective controlling party. The Grantee
shall assist the City in any such inquiry. If necessary to assure compliance with the terms of this
Franchise, the City may condition said transfer upon the terms and conditions as reasonably
determined by the City Council.
(d) For the purposes of this Section, a presumptive change of Control will exist upon sale or transfer
of twenty-five percent (25 %) or more of the Grantee's ownership stock. This shall include but not
be limited to change in Control of any general partnership.
(e) At least one hundred twenty (120) days before such a proposed assignment of the Franchise is
scheduled to become effective, the Grantee shall petition in writing for the City's written consent for
such a proposed assignment. It is specifically noted that the Grantee shall submit to the City Council
(concurrently with submission of its written petition) an FCC 394 Form (or successor form) together
with (1) any other information or documentation required by the State or Federal government
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(including the FCC), (2) relevant purchase or transfer documents, and (3) information regarding the
financial ability and stability of the proposed assignee with respect to being able to perform all
obligations of the existing Franchise.
(f) The City Council shall not unreasonably withhold its consent to such an assignment. However,
without limitation, in evaluating the petition for assignment, transfer or sale, the City Council may,
at its sole discretion, undertake a technical inspection and audit of the Cable System to determine
whether the Cable System reasonably complies with all applicable technical and safety codes as well
as this Franchise. Also, the technical inspection and audit is designed to determine the technical
integrity and stability of the present Cable System.
(g) Should the City determine (as a result of the technical inspection and audit) that the Cable
System does not comply with federal, state or local standards, then the Grantee shall be provided
with an opportunity to correct or cure the area of non - compliance or operational deficiency. In the
alternative and without obligation, the City may work with both the current and proposed Grantee
to cure the area of non - compliance or operational deficiency.
(h) Before an assignment is approved by the City, the proposed assignee, transferee or buyer shall
execute an affidavit acknowledging that it has read, understood and will abide by the Franchise,
subject to applicable law.
(i) In the event of any approved assignment, the assignee shall assume all obligations and liabilities
of the former Grantee relating to the Franchise, unless specifically relieved by Federal or State law,
or unless specifically relieved by the City at the time the assignment is approved.
0) Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed
void and of no effect unless Grantee has filed such notices as is required, and until City has given
written approval of such transfer.
SECTION 12 - RIGHTS RESERVED TO THE CITY
(a) Right to Acquire Property of Grantee. The City may in any lawful manner and upon just
payment lawfully ascertain, purchase, condemn, acquire, take over and hold the property and system
of the Grantee located in the Franchise Area in accordance with Section 1302 of the Arcadia City
Charter. To the extent allowed by then applicable law, the purchase price shall not include any sum
for the value of the Franchise, or for any of the rights or privileges granted by this Franchise.
(b) Property Valuation.
(1) If the renewal of this franchise is denied and the City acquires ownership of the cable
system or effects the transfer of ownership of the system to another person, any such
acquisition or transfer shall be at fair market value as determined on the basis of the Cable
System valued as a going concern but with no value allocated to the Franchise itself.
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(2) In the event that the City shall terminate for cause this Franchise, and the City acquires
ownership of the Cable System or effects a transfer of ownership of the Cable System to
another Person, any acquisition or transfer shall be at an equitable price.
(c) Property Acquisition. In the event the City wishes to acquire part or all of the Cable System
in accordance with (a) and (b) above, the City shall notify the Grantee of its intentions to acquire said
property within one hundred twenty (120) days of the proposed acquisition date. Upon notification
of the intent to acquire said property, the City and the Grantee shall attempt to mutually agree upon
the value of the system in accordance with the provisions of this Section and Section 627 of the
Cable Act. If within a reasonable period of time no agreement is made regarding property valuation,
then said valuation shall be similarly determined by a three- member Board of Appraisers, one
selected by the City, one by the Grantee and one selected by the appraisers themselves. The cost of
said appraisal shall be borne equally by the City and the Grantee.
(d) Equitable Price. To the extent allowed by then applicable law, for the purpose of this
Franchise, equitable price shall be defined as in Section 627 of the Cable Act. No value shall be
assigned to either the Franchise itself, or any right, privilege or expectancy arising out of the
privilege to transact business under the Franchise, nor shall any value be assigned to good will or
as a going concern. Equitable price as defined above shall be determined in accordance with general
accepted accounting principles, audited by an independent certified public accounting firm selected
by the City at the Grantee's expense.
(e) Other Rights. There is hereby reserved to the City every lawful right and power which is
required to be reserved or provided by any ordinance and City Charter provision of the City, and the
Grantee of its acceptance of this Franchise, understands and agrees that the City is not precluded
from asserting such rights.
(f) Removal of Facilities. Subject to the renewal rights of the Grantee under applicable law, upon
the expiration of the term of this Franchise or upon its termination or cancellation as provided herein
or in the Right -of -Way Ordinance, the City may require the Grantee to remove at its own expense,
any visible portions of the Cable System from the Public Rights -of -Way within the City. If Grantee
fails to remove its facilities, the City may do so, and to defray the costs of such removal, the City
may make a claim on the security fund as prescribed in Section 9.
(g) Granting of Other Franchises. The City reserves the right, at its discretion, to grant Franchises
with other entities under the terms of the Right -of -Way Ordinance.
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SECTION 13 - TECHNICAL PERFORMANCE AND EQUIPMENT STANDARDS
The Cable System shall be designed, installed, maintained and tested in accordance with the
technical performance standards required by Subpart K of Section 76 of the FCC Rules and
Regulation (Exhibit Q. In addition, should the FCC or any State, Federal or other authority having
jurisdiction over the technical standards contained herein impose Cable System technical
performance standards which require a higher level of technical performance than those contained
herein, those new standards are hereby incorporated herein by reference.
Should the FCC or any State, Federal or other authority having jurisdiction over the technical
standards contained herein develop Cable System technical performance standards which are less
stringent than those contained herein, the more stringent standards herein shall remain in effect,
unless otherwise prohibited by law.
SECTION 14 - OPERATION OF SERVICE
(a) Additional Usage. City shall have the absolute right to use any poles, conduits, or similar
facilities erected, controlled or maintained exclusively by or for the Grantee in, on, over, or under
any street pursuant to good faith negotiations to determine the proper arrangements necessary for
such usage.
(b) Public Safety. The Grantee at its expense shall protect, support, temporarily disconnect,
relocate or move any property of the Grantee when given reasonable advance written notice by the
City Manager that the same is required for reasons of urban renewal, or projects of the Arcadia
Redevelopment Agency or any other Public Works project of the City or another governmental
agency or public utility. Upon the failure, refusal, or neglect of Grantee to cause any work or other
act required by this Franchise or applicable law to be properly completed in, on, over, or under any
Street within any reasonable time prescribed by the City, the City Manager may cause such work
or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an
itemized statement of the costs thereof. The Grantee shall, within thirty (30) days after receipt of
such statement, pay to the City the entire amount thereof.
(c) Property Removal. In the event that,
(1) the use of any part of the Cable System of the Grantee is abandoned for any reason for
a continuous period of one (1) year, without prior written notice to and approval by the City;
or
(2) any part of such Cable System has been installed in, on, over or under any Street or other
area without complying with the requirements hereof; or
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(e) Standby Powering.
(1) All standby powering equipment utilized by the Grantee shall be installed,
activated, and maintained by the Grantee at its sole expense and shall be capable
of powering the Cable System for a period of no less than one and a half (1 %)
continuous hours during a commercial power interruption.
(2) Upon completion of the upgrade, Grantee shall provide standby powering
equipment to power its headend equipment and fiber optic equipment
transmitters and receivers, whether such fiber optic equipment is located at the
headend or in the trunk or distribution system of the Grantee's plant.
(3) When one or more commercial power outages exceed a cumulative total of
twenty-four (24) or more hours during any twelve (12) month period in areas
other than those where power is not available to residences, City and Grantee
agree to meet and develop a plan to reduce outage time below twenty-four (24)
hours. This may include the installation of additional standby power supplies
which shall be implemented by Grantee.
(4) The Grantee shall provide modulation and standby powering equipment on all
portions of its cable system providing Cable Service to or from the following
locations:
(a) City Hall, 240 W. Huntington Drive
(b) Police Department Headquarters, 250 W. Huntington Drive
(c) Fire Department Headquarters, 710 N. Santa Anita Avenue
(d) Maintenance Service Center, 11800 Goldring Road
(e) Public Library, 20 W. Duarte Road
In the event that such locations do not exist on, or are constructed after the
effective date of this franchise, then such modulation and standby powering shall
be activated within three (3) months after receipt of written notice from Grantor
to provide such additional standby powering equipment.
(f) Emergency Override.
(1) Grantee shall provide, install, activate, and maintain an emergency audio
override system, which is not shared with any other jurisdiction, and
which permits the City to deliver audio.override programming on every
channel of the Grantee's Cable System. City shall be able to activate,
provide audio programming, and terminate such emergency audio
override on the City- designated channels via dial -up or dedicated
telephone control from the City's Emergency Operations Center. Grantee
shall also provide an independent exclusive telephone line to the City for
use in emergency situations.
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(2) If the Grantee provides its Subscribers with Converters that have the
ability to remotely activate a Subscriber's television receiver upon receipt
of a data command from the headend, then the Grantee shall configure
the emergency override system described in this section to send such a
signal upon an activation by the City of the emergency override system.
If such data command is capable of controlling the audio volume control
of the converter, then Grantee shall configure the emergency override
system described in this section to send such a data command to
maximize the audio volume upon activation by the City of the emergency
override system. Nothing in this subsection shall be construed as
requiring the Grantee to purchase cable converters with such features.
(3) This system shall also be designed so as to permit the introduction of
emergency information on the City Government channel.
SECTION 16 - EXTENSION OF THE CABLE SYSTEM
(a) Mandatory Provision of Service. It is the established policy of the City that all citizens who
reside in existing areas of the City plus all annexed areas shall possess the right to receive Cable
Service as provided herein, subject to the ability of Grantee to secure the right to service citizens
who reside in areas of private property, and the density requirements of subsection (c) below.
Nothing herein shall require Grantee to provide Cable Service to residents who do not pay their bills
in a timely manner per the requirements of the Grantee pursuant to this Franchise, or to residents
who have a history of abusive behavior toward employees of the Grantee.
(b) Future Developments. With respect to all territories within the City which are in the process
of being subdivided at the Effective Date of the Franchise , Grantee shall, if practical, install its
Cable System at the time the public improvements for the subdivision are being installed, and shall,
in any event, make Cable Service available to all homes within such subdivisions not later than six
(6) months after the Cable System is completed pursuant to Subsection 16(a) above.
With respect to all subdivisions which commence construction after the Effective Date of the
Franchise, the Grantee shall install its Cable System at the time the public improvements for the
subdivisions are being installed, provided Grantee receives adequate written notice from the
developer and/or utilities.
(c) Density Requirements. The service area shall constitute the existing entirety of the City of
Arcadia with a density of at least forty (40) homes per mile plus all areas annexed thereto with a
density of at least forty (40) homes per mile; provided, however, as to any area annexed to the City
Subsequent to the Effective Date of this Franchise, Grantee shall not be required to overbuild any
lawful cable operation. Notwithstanding the foregoing sentence, Grantee is authorized but not
obligated to construct a Cable System and to provide Cable Service to non - residential areas of the
City. City will adopt procedures to provide reasonable notice and access, if permissible under
applicable law, to Grantee of open trenches available to jurisdictional utilities. No warranty of
compliance or actual notice is given or implied.
21
(d) System Installation. Grantee shall utilize existing poles, conduits, and other facilities whenever
possible, and shall not construct or install any new, different or additional poles, conduits, or other
facilities whether on public property or on privately -owned property unless and until first securing
the necessary City building permits.
(e) Underground Construction. Grantee shall not utilize existing poles, conduits, and other
facilities or in those areas of the City where the existing conduits and transmission or distribution
facilities of the respective public utilities providing telephone, communication, and electric services
are underground, or hereafter are placed underground, or whenever the City shall undertake a
program designed to cause all conduits and other facilities to be located beneath the surface of the
Public Rights -of -Way, the Grantee shall likewise construct, operate, and maintain all of his
transmission and distribution facilities underground, with the exception of "active electronic
equipment," which, upon design and location approval from the City Manager, may be placed above
ground. Whenever any active electronic component is so located above the surface of the ground,
all efforts will be undertaken by Grantee to ensure that such location does not physically detract from
the surroundings and does not endanger the public safety or public welfare upon design and location
approval from the City Manager. The term "underground" shall include a partial underground
system.
The method of underground construction to be utilized by the Grantee, whether by trenching, boring,
cutting, or other method, and the restoration of streets, parkways alleys, and other City Public
Rights -of -Way utilized for the placement of the Grantee's conduits and/or ancillary equipment, must
first be submitted to the City Manager for approval.
The construction methods approved will be subject to the required permit fees and City inspection
as may be required by other ordinances, rules, regulations and specifications of the City heretofore
or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over,
under and about Public Rights -of -Way.
(f) As Built Drawings. Grantee shall furnish the City Manager with current strand and/or trench
maps of the entire Cable System within sixty (60) days after completion of any changes to the Cable
System. If such construction involves more than ten (10) miles of work, an updated map shall be
submitted for each five (5) miles of construction and every five (5) miles thereafter until the
construction is completed. Grantee shall not be required to identify specific electronic equipment
in said maps.
(g) Underground Alert. The Grantee shall be a member of the Underground Alert service and
utilize such services prior to the commencement of any underground activities.
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(h) Required Permits. Construction, operation, or repair of a Cable System shall not commence
until all required permits have been properly filed for and obtained from the proper City officials and
all required permits and associated fees paid. In any permit so issued, the City may impose as a
condition of the granting of the permit such conditions and regulations as may be reasonable
necessary to the management of the Public Rights -of -Way, including, by way of example and not
limitation, for the purpose of protecting any structures in the Public Rights -of -Way, for the proper
restoration of such Public Rights -of -Way and structures, and for the protection of the City and the
public and the continuity of pedestrian and vehicular traffic.
(i) Restoration of City Property. Any and all Public Rights -of -Way, public property or private
property that is disturbed or damaged during the construction, operation or repair of the Cable
System shall be promptly repaired by the Grantee that disturbed or damages the Public Rights -of-
Way, public property or private property. Public property and Street must be restored to the
satisfaction of the City or to a condition reasonably comparable or better than before the disturbance
or damage occurred.
0) Tree Trimming. Tree trimming is not allowed without permission. No tree trimming shall be
performed without the permission of the City and other affected authorities with the exception of
circumstances involving public safety as defined by the City's Maintenance Services Department,
and any tree trimming must be performed in strict accordance with the City Code.
(k) Graffiti Removal. Within forty eight (48) hours after notice from the City, Grantee shall
remove any graffiti on any part of its Cable System including by way of example and not limitation,
equipment cabinets. If the Grantee fails to do so, the City may remove the graffiti and bill the
Grantee for the cost thereof.
(1) Identification Required. All persons associated with the Grantee's construction, including all
subcontractors of the Grantee, shall wear at all times while on City streets a badge which clearly
identifies themselves as employees or subcontractors of the Grantee.
(m) Duty To Report. Commencing at the beginning of the third (3rd) month following filing of
the certificate of acceptance of a franchise, and continuing until the date the upgrade is completed,
the Grantee shall, by the tenth day of each month third month of each quarter, file with the Grantor
a written statement identifying the number of miles rebuilt and left to be rebuilt.
(n) Right of Inspection of Construction. The Grantor shall have the right to inspect all
construction or installation or other physical work performed by Grantee in connection with the
franchise, and to make such tests as it shall find necessary to ensure compliance with the terms of
the franchise and other pertinent provisions of law.
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(o) Construction Completion. The Grantee shall notify the Grantor in writing when the
construction requirements of this section are complete. Any construction or schedule required under
this section shall be considered complete only upon written notice from the Grantor to the Grantee
stating that the work has been completed in a manner satisfactory to the Grantor as specified in this
franchise. No construction requirement or schedule shall be considered as being complete until said
letter has been executed by the Grantor. In the event Grantor fails to respond to the Grantee's
notification of construction completion within one hundred and twenty (120) days of receipt thereof,
the construction of the system shall be deemed complete. Said one hundred and twenty (120) days
from the time required for City's approval or disapproval shall not be counted against the Grantee's
construction schedule.
(p) Construction Extensions. In the event that the Grantee's failure to meet any construction
deadlines as specified in this section is due to an unforeseeable cause beyond the reasonable control
of the Grantee, including utility pole attachment clearances which have been properly applied for
by Grantee, the Grantee must notify the City Manager of the time and nature of the delay within ten
(10) days after the delay occurs. In the event that as a result of such delay an extension to the
construction schedule as specified in this franchise is requested by the Grantee, the extension must
be requested from the City Manager in writing within fourteen (14) days of such notice of the delay.
Such extension request must specify the exact reason for the extension and the total number of
extension days requested. The City Manager shall prepare a report to the City Council regarding the
extension request. The City Council shall consider the request as an agenda item and permit Grantee
to be heard. The City Council may deny, approve, or modify the extension request. In considering
the extension request, the City Council shall consider the good faith performance and efforts of
Grantee towards substantial compliance with the construction schedule as a factor supporting
approval or modified approval.
(q) Multiple Dwelling Units. All construction schedules heretofore detailed in this franchise
agreement shall apply to multiple dwelling units as defined in the Arcadia Municipal Code except
that, upon demonstration of good cause, which shall include Grantee's inability to obtain necessary
building access if such effort was made by the Grantee in good faith, the Grantor may extend the
construction schedules relative to multiple dwelling units only. The Grantee must state the reasons
for the requested extension in writing to the City Manager prior to the scheduled deadline. Said
request shall detail the amount of time estimated for the continuance and the completion of
construction. The City Manager may, in writing, authorize the appropriate time extensions.
(r) Construction Damages. By acceptance of this Franchise Agreement, Grantee agrees that failure
to comply with any time requirements referred to in Section 15(a), or as may be extended by
Council, shall be cause for Grantor to draw one thousand dollars ($1,000) per day from the security
fund and reduce the franchise term four (4) days for each and every day's delay beyond the time
prescribed, for completion of any of the acts required to be done by this Section and as extended by
the City Council.
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SECTION 17 - STANDARD / NON - STANDARD INSTALLATIONS
Subject to the limitations contained in Section 15(a), Grantee shall extend Cable Services to any
existing or new residence located in any residential area of the City including those residences
serviced by underground utilities, at a standard installation rate if the resident requests the service
and if the service connection requires no more than a one hundred twenty-five foot (125) drop line.
For drops in excess of one hundred twenty-five feet (125), Grantee shall provide service at the
standard installation rate for the initial one hundred twenty -five (125) feet plus the Grantee's actual
cost of all labor and materials for all portions of the service connection in excess of one hundred
twenty-five (125) feet. Alternatively, at Grantee's sole discretion, Grantee may utilize the Hourly
Service Rate prescribed by federal rate regulations to determine the cost of installations in excess
of one hundred twenty-five (125) feet. Prior to installing any service connection in excess of one
hundred twenty-five (125) feet, Grantee must present the prospective subscriber with a detailed
itemized statement of costs for the service connection.
SECTION 18 - POSSESSORY INTEREST
By accepting this Franchise, Grantee acknowledges that notice is and was hereby given to Grantee
pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any
public property pursuant to the authorization herein set forth may create a possessory interest which
may be subject to the payment of property taxes levied on such interest. Grantee shall be solely
liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or
other taxes levied against Grantee's right to possession, occupancy or use of any public property
pursuant to any right of possession, occupancy or use created by this Franchise.
SECTION 19 - CONTINUITY OF SERVICE
(a) Uninterrupted Service. It shall be the right of all Subscribers to receive all available Cable
Services insofar as their financial and other obligations to the Grantee are honored. In the event that
the Grantee elects to overbuild, upgrade, modify or sell the Cable System, the Grantee shall ensure
that all Subscribers receive continuous, uninterrupted service regardless of the circumstances. In the
event of purchase by the City, or a change of Grantee, the current Grantee shall cooperate with the
City to operate the Cable System for a temporary period and to maintain continuity of Cable Service
to all Subscribers.
(b) Operation During Take -Over. The City may, if necessary to maintain continuity of services,
assume management and operating of the Cable System. During any take -over of operation of the
Cable System by City, City shall attempt to cause as little disruption of operations as is consistent
with the maintenance of continuing Cable Service to Subscribers. Notwithstanding the foregoing,
City shall, as it may deem necessary, make any changes in any aspect of operations desirable, in
City's sole judgment, for the preservation of quality of service and its continuity. City shall further,
during any such take -over, maintain to the best of its ability the Cable System's records, physical
plant, financial integrity and funds, and other details and activities normally involved in operations.
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(3) In the event that any Subscriber is not satisfied with any services as required by this
Section, the Subscriber's complaint will be referred to a management person who will
normally resolve the complaint within one (1) business day. Nothing shall prevent the
Grantee's local management from extending credits or refunds as compensation for a
subscriber's poor, inadequate or interrupted service.
(b) Complaint Log. Grantee shall maintain a written record, or "log," listing date of Subscriber
complaints referred by the City, identifying the Subscriber, determining the nature of the complaints
and when and what action was taken by the Grantee in response thereto. Such record shall be kept
at Grantee's local office, reflecting the operations for the past three (3) years, and shall be available
for inspection upon thirty (30) days written notice from the City Manager.
(c) System Testing. When there have been similar complaints made or where there exists other
evidence which in the reasonable judgment of the City Manager casts doubt on the reliability or
quality of the entire or any portion of the Cable System, or the Grantee's ability to meet the technical
standards herein adopted, the City Manager shall have the right and authority to require the Grantee
to test, analyze, and report on the performance of that part of the Cable System involved in the
problem. Such test or tests shall be made and the report of such test or tests shall be delivered to
the City no later than fourteen (14) days after receipt of written notice from the City. Such report
shall include the following information:
(i) the nature of the complaint which precipitated the special test
(ii) what Cable System component was tested
(iii) the equipment used and procedures employed in such testing
(iv) the names of the individuals performing and witnessing the testing
(v) the date, time, and location of testing
(vi) the results of such test
(vii) the method in which such complaints were resolved
(d) Complaint Remedies. The Grantee shall issue one day's credit for each period of four (4) or
more consecutive hours, occurring in a period of twenty-four (24) consecutive hours, when a service
interruption occurs, computed from the time the Grantee receives notice of a service interruption
from any Subscriber affected by a service interruption. Credit shall be provided on a prorated basis
for the specific services affected by the service interruption. No credit shall be given for any service
interruption caused by a Subscriber or his/her equipment. Further, a Subscriber requesting credit
must afford the Grantee the opportunity to verify the service interruption and correct it, including
allowing access to his/her premises as necessary. For the purpose of this section, service interruption
shall mean any loss of service or distortion of service so that the service does not comply with the
performance standards as stated in this franchise.
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(c) Management During Take -Over. City may, upon taking over operation of the Cable System
franchised hereunder, appoint a manager to act for it in the overall management of the Cable
System's affairs. Such manager shall have the authority delegated to him by City in its order of take-
over and shall be solely responsible to City for management of the Cable System.
If the Grantee is required to continue operating the system during a take -over period, the operator
will continue to manage and operate the system at the then current level of service.
In the event the operator materially modifies the operation and fails to maintain continuity of service,
the privileges extended by this section to said operator will be removed.
SECTION 20 - COMPLAINT PROCEDURES
(a) Complaints. The following procedure shall be adhered to in the event of Subscriber
complaints by City residents:
(1) Any complaint made by a Subscriber to the Grantee concerning billing, employee
courtesy, service, safety or company policy will be handled immediately upon receipt of the
complaint and will normally be resolved within one (1) business day.
(2) Service complaints involving system construction, customer dissatisfaction with any
installation, picture quality, reconnection or disconnection loss of or interference to service
or any Cable System leakage affecting amateur radio/TV operators will be handled in the
sequence that they are received. Immediately upon receiving such a complaint, the Grantee's
service representative will set an appointment with the Subscriber that will enable the
Grantee's service technician to examine and resolve the Subscriber's complaint. Assuming
that the Subscriber is available for at least a four -hour service appointment, the Grantee shall
be required to dispatch a service technician to the complaintor's residence within one (1)
business day after receiving the complaint and must normally resolve all complaints within
forty-eight (48) hours after the initial inspection. In the event that the Subscriber is not
available to allow the Grantee access to its property within the required time as specified
above, Grantee shall set an appointment at the Subscriber's earliest convenience. In the event
that the Subscriber is not available at any prearranged time, the Grantee shall conduct the
following procedures:
(i) The technician will check signal levels outside the Subscriber's home. If a
problem exists, the technician will identify, locate and resolve it.
(ii) If no problem is determined to exist or if the technician has repaired the problem,
the technician will leave a door hanger stating the fact that the technician has been
there and requesting that, if there is still a problem, the Subscriber call the office for
service. A service call work order indicating that the Subscriber was not home will
be completed and returned to the office.
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for the specific services affected by the service interruption. No credit shall be given for any service
interruption caused by a Subscriber or his/her equipment. Further, a Subscriber requesting credit
must afford the Grantee the opportunity to verify the service interruption and correct it, including
allowing access to his/her premises as necessary. For the purpose of this section, service interruption
shall mean any loss of service or distortion of service so that the service does not comply with the
performance standards as stated in this franchise.
(e) Complaint Resolution. The City Manager shall have the authority to resolve any and all
complaints and to require that the Grantee make any Cable System repairs needed to assure
compliance with the technical standards of this Franchise. Said requirements shall be presented to
the Grantee in writing and shall detail the schedule for completion.
To the extent any of the terms and provisions of this Franchise are inconsistent with the California
Cable Television and Video Provider Customer Service and Information Act (Government Code
53054, et seq.), the terms and provisions which provide the greater degree of Subscriber protection
shall apply. Where the terms and provisions of this Franchise are inconsistent with the Video
Customer Service Act, but provide additional protection, the terms and provisions of this Franchise
shall apply unless not allowed by law.
(f) System Failures. In the event that the Cable System fails to meet any of the performance
standards as contained in this Franchise and as determined by the regular performance test reports
required in this Franchise, or other test as contained in this Franchise, City shall give written notice
to the Grantee and Grantee shall have fourteen (14) days from receipt to correct said deficiency(s).
Grantee will notify the City when such correction(s) has been made.
SECTION 21 - CUSTOMER SERVICE STANDARDS, BILLING, COMPLAINTS AND
SUBSCRIBER RIGHTS
(a) Grantee agrees as of the Effective Date of this Franchise to comply with the customer service
standards contained in this Section.
(b) For the purpose of this Section the following definitions shall apply:
"Customer Service Representative" shall mean the representative of Grantee that is designated
and trained to assist Subscribers and other City residents with all matters pertaining to the provision
of Cable Service.
"Normal Business Hours" shall mean those hours during which most similar businesses in the
community are open to serve customers. In all cases, "normal business hours" must include some
evening hours at least one night per week and/or some weekend hours.
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"Normal Operating Conditions" shall mean those service conditions which are within the control
of the Grantee. Those conditions which are not in control of the Grantee include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or
unusual weather conditions. Those conditions which erg ordinarily within the control of the Grantee
include, but are not limited to, special promotions, pay - per -view events, rate increases, regular peak
or seasonal demand periods, and maintenance or upgrade of Cable System.
(c) Grantee agrees to meet the following standards:
(1) Customer Service Center Grantee is to maintain a customer service center within
the City limits for the purpose of transacting personal business with Subscribers,
such as bill payment and equipment exchanges. The customer service center shall
be conveniently located, and open during all usual business hours, but in no case
less than forty (40) hours per week.
(2) Operations and Maintenance.
(A) Telephone availability
(i) Grantee will maintain a local, toll -free or collect call telephone
access line which will be available to its subscribers twenty four
(24) hours a day, seven (7) days a week.
(ii) Trained, knowledgeable and qualified Customer Service
Representatives will be available to respond to customer
telephone inquiries during normal business hours.
(iii) After normal business hours, the access line may be answered by
a service or an automated response system, including an
answering machine. Inquiries received after normal hours must
be responded to by a Customer Service Representative on the
next business day.
(B) Under normal operating conditions, telephone answer time by a Customer
Service Representative, including waiting time, shall not exceed thirty
(30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less than ninety (90 %) percent of the time under
normal operating conditions, measured on a quarterly basis.
(C) The operator will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear failure
to comply.
V7161
(D) Under normal operating conditions, Subscribers will receive a busy signal
less than three (3 %) percent of the time measured on a quarterly basis.
(d) Installations, outages and service calls
Under normal operating conditions, the first three (3) standards below will be met
no less than ninety five (95 %) percent of the time measured on a quarterly basis:
(1) Standard installations will be performed within seven (7) business days
after an order has been placed. "Standard" installations are those that are
located up to one hundred twenty five (125) feet from the existing
distribution system.
If the Grantee cannot perform the standard installation within seven (7)
business days of request by a Subscriber, the Subscriber may request and
is entitled to receive a ten dollar ($10.00) credit. If the Grantee fails to
provide the ten dollar ($10.00) credit and the request was made by the
Subscriber within forty-five (45) days of the installation request, the City
may direct the Grantee to issue the credit.
(2) Grantee shall respond to service calls and complaints promptly and shall
maintain a force of repair and service personnel that under normal
operating conditions is capable of responding to Subscriber requests for
service, including installations, disconnects, and service repairs, within
the following time frames (unless a Subscriber requests a different, more
convenient date that is beyond the following performance standards):
(i) Within two (2) hours, including weekend days, of receiving
Subscriber calls which, by number of calls, identify a Cable
System outage of sound or picture of one (1) or more channels,
affecting five (5 %) percent or more of the Subscribers of the
Cable System.
(ii) Within one (1) day of receiving any request for service by any
single Subscriber identifying a complete outage in Cable Service.
(iii) Within two (2) business days, excluding weekend days and
holidays, of receiving any request for service identifying a
problem concerning picture quality or sound quality, converters
and disconnects.
iffil
(3) The "appointment window" alternatives for installations, service calls,
and other installation activities offered to a Subscriber will be either a
specific time or, at a maximum, a four (4) hour time block during normal
business hours. The Grantee may schedule service calls and other
installation activities outside of normal business hours or outside the
parameters of response time outlined above for the express convenience
of the Subscriber.
(i) Grantee shall, in accordance with Section 1722 (b) of the
California Civil Code, inform Subscribers of their right to service
connection or repair within a four (4) hour period, if the presence
of the subscriber is required, by offering the four (4) hour period
at the time the Subscriber calls for service connection or repair.
Grantee also agrees to notify all subscribers by mail of their rights
under Section 1722(b) at least annually during each year of the
Franchise.
(ii) If the service connection or repair is not commenced within the
specified four -hour period, except for delays caused by
unforeseen or unavoidable occurrences beyond the control of the
Grantee, the subscriber may bring an action in small claims court
against the Grantee for lost wages, expenses actually incurred, or
other actual damages, not exceeding a total of five hundred
dollars ($500.00) in accordance to state law.
(4) Grantee may not cancel an appointment with a Subscriber after the close
of business on the business day prior to the scheduled appointment.
(5) If a Grantee representative is running late for an appointment with a
Subscriber and will not be able to keep the appointment as scheduled, the
Subscriber will be contacted. The appointment will be rescheduled, as
necessary, at a time which is convenient for the Subscriber.
(e) Communications between the Grantee and its Subscribers
(1) Notifications to Subscribers -
(i) The Grantee shall provide written information on each of
the following areas at the time of installation of service,
at least annually to all Subscribers, and at any time upon
request:
(A) products and services offered;
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(B) prices and options for programming services and
conditions of subscription to programming and
other services;
(C) installation and service maintenance policies;
(D) instructions on how to use Cable Service;
(E) channel positions of programming carried on the
Cable System;
(F) billing and complaint procedures, including the
address and telephone number of the City;
(G) charges, refunds and credits procedures;
(H) disconnection and termination of service
procedures;
(I) customer service telephone number and office
hours;
(J) service call response time scheduling.
(2) Subscribers will be notified of any changes in rates, programming
services or channel positions as soon as possible through announcements
on the Cable System and/or otherwise in writing. Notice must be given
to Subscribers a minimum of thirty (30) days in advance of such changes
if the change is within the control of the Grantee. In addition, the Grantee
shall notify Subscribers thirty (30) days in advance of any significant
changes in the other information required by the preceding paragraph.
(3) After the customer service standards established have been in effect for
one (1) year, the Grantee shall report annually on its performance in
meeting the customer service standards if requested by the City in
writing.
(4) Grantee shall disconnect or terminate a Subscriber's Cable Service only
for good and just cause. Good cause includes, but in not limited to, failure
to pay, payment by check for which there are insufficient funds, theft of
service, abuse of equipment or Grantee personnel, or other similar
Subscriber actions. In no event shall Grantee disconnect or terminate a
Subscriber's service for nonpayment without providing the affected
Subscriber with prior written notice at least seven days prior to such
disconnection or termination. In no event shall such disconnection or
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termination for nonpayment occur less than thirty (30) days after a
Subscriber's failure to pay a bill by the due date thereon. Where the
Grantee has improperly disconnected and terminated Cable Service to
any such Subscriber, Grantee shall provide free reconnection to the Cable
System to such Subscriber.
Billing
Billing procedures shall be as follows:
(1) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including:
i. A list of each service or package received for that billing period;
ii. The rate or charge for each service or package received;
iii. The period of time over which said services are billed;
iv. The total charges due for the monthly period, separate from any
previous balance due;
V. Credits posted during the month;
vi. A specific date by which payment is required; and
vii. The customer service phone number to which billing inquiries or
complaints can be directed.
(2) The Grantee's first billing statement after a new, installation or service
change shall be prorated as appropriate and shall reflect any security
deposit.
(3) The Grantee's billing statement must show a specific payment due date,
and no late payment fee may be imposed on a subscriber earlier than
thirty (30) calendar days from the due date on the billing statement. Any
balance not received within thirty (30) calendar days of the due date may
be assessed a late fee consistent with consumer protection and usury laws
of the State of California. Any late fee assessed must appear on the
following month's billing statement.
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(4) The Grantee must notify the Subscriber that he or she can remit payment
in person at the Grantee's office located in or near the City and inform the
subscriber of the address of that office.
(5) Every customer who pays his or her bill directly shall have at least fifteen
(15) days from the date of the bill for services is mailed to pay the listed
charges. Customer payments shall be posted promptly. The Grantee shall
not terminate residential service for nonpayment of a delinquent account
without fifteen (15) days prior written notice. Such notice shall not be
mailed until after the sixteenth (16th) day from the time the bill for
services was mailed to the customer. The Grantee may not assess a late
charge earlier than the 22nd day from the time the bill for services has
been mailed.
(6) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(7) At the time of the initial complaint, grantee shall provide written or
verbal notice to customer that in the event of a billing dispute, the
Grantee, upon resolution of the dispute when Grantee is at fault, shall
waive a late fee.
(8) Subscribers shall not be charged a late fee or otherwise penalized for any
failure by the Grantee, its employees, or contractors, including failure to
timely or correctly bill the subscriber, or failure to properly credit the
Subscribers for a payment made in a timely manner.
(9) Every notice of termination of service shall include: name and address of
Subscriber whose account is delinquent; the amount of the delinquency;
the date by which payment is required in order to avoid termination of
service; the telephone number of the Grantee for additional information
and/or to handle complaints or initiate an investigation concerning service
and charges in question.
(10) Service may only be terminated on days and at times in which the
Subscriber can reach a Customer Service Representative of the Grantee
either in person or by telephone.
(11) The Grantee shall afford each Subscriber of the Cable System with a right
to rescind the Subscriber's ordering of service within three (3) days after
ordering, provided that such right of rescission shall end upon activation
of the service ordered.
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(g) Refunds
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(1) Refund checks will be issued promptly, but no later than either:
(i) the Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
(ii) in cases involving the return of the equipment supplied by the
Grantee if service is terminated for any reason, by the
Subscriber's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier.
(2) If the Grantee does not mail a check for a refund to any Subscriber
disconnecting service with an outstanding credit within the next billing
cycle or thirty days, whichever is earlier, the Subscriber may request and
is entitled to receive a ten dollar ($10.00) payment. In addition to the
initial refund (and applicable interest) due, if the Grantee fails to provide
the ten dollar ($10.00) payment and the request was made by the
Subscriber within forty-five (45) days after failure to receive the refund,
the City may direct the Grantee to provide the ten dollar ($10.00)
payment as well as any outstanding refund (and applicable interest) due.
(h) Credits
Credits for service will be issued no later than the Subscriber's next billing cycle
following the determination that a credit is warranted.
(i) Late Fees
Grantee's late fees must comply with applicable State and/or Federal Law.
0) Equitable Rates and Discounts
Within twelve (12) months of the date of this-Agreement, Grantee shall study and
meet with Grantor regarding a discount on basic and cable programming tiers for
persons with specific income and disability qualifications.
(k) Deposits
Grantee will set rates for equipment deposits no higher than the actual
replacement value of the equipment for which the deposit is applied. Equipment
deposits shall be promptly returned to Subscribers upon the return in good
working condition to the Grantee of the equipment for which said deposit was
required.
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(1) A/B Switches
The Grantee shall offer Subscribers the option to receive an A/B switch at the
time of initial Cable Service installation and shall provide Subscribers with
written information as to how to use such a switch. The Grantee may charge a
reasonable price for said switch. Upon Subscriber request, the Grantee shall
provide an A/B switch after the initial installation of Cable Service. If the
Subscriber requests installation of such a switch (to receive broadcast television
without cable hookup), the Grantee may charge reasonable fees for such
installation and equipment.
(m) Photo Identification Badges
All personnel, agents and representatives of Grantee who have contact with
Subscribers and/or the public, including subcontractors, shall wear photo
identification badges.
(n) Written or Oral Notice to Enter Property
Under normal operating conditions, Grantee shall provide written or oral notice,
in light of circumstances, prior to entry whenever desiring to enter any private
property.
(o) Notice Regarding Channel Scrambling
Subscribers will be given at least thirty (30) days notice of any scrambling of a
channel, and any de- scrambling of a channel(s) containing R -rated or stronger
programming. Subscribers do not need to be notified of "black out" periods
required of the Grantee by programmers.
(p) Subscriber Rights
(1) Discriminatory Practices Prohibited.
The Grantee shall not deny Cable Service or otherwise discriminate against
Subscribers or others on the basis of race, color, religion, national origin, sex, age
or sexual preference. The Grantee shall strictly adhere to the equal employment
opportunity requirements of federal, state or local governments and shall comply
with all applicable laws and executive and administrative orders relating to non-
discrimination.
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(2) Tapping and Monitoring.
The Grantee shall not tap or monitor or permit any other Person controlled by
Grantee to tap or monitor any cable, line, signal input device or Subscriber outlet
or receiver for any purpose whatsoever without the express written consent of the
Subscriber or a court order therefor; provided, however, that the Grantee shall be
entitled to monitor customer service calls for quality control purposes and to
conduct system -wide or individually addressed "sweeps" for the purpose of
verifying Cable System integrity, controlling return path transmission, or
checking for unauthorized connections to the Cable System or service levels or
billing for pay services.
(3) Data Collection.
The Grantee's data collection and dissemination practices regarding Subscribers
shall be in compliance with Section 631 of the Cable Act and this Franchise.
(4) Revealing Subscriber Preferences.
(a) Company shall not reveal individual subscriber preferences,
viewing habits, beliefs, philosophy, creeds or religious beliefs to
any third person, firm, agency, governmental unit or investigating
agency without court authority or prior written consent of the
subscriber.
(b) Such written consent, if given, shall be limited to a period of time
not to exceed one (1) year or a term agreed upon by the Company
and subscriber.
(c) The Company shall not condition the delivery or receipt of Cable
Services to any Subscriber on any such consent.
(d) Such a Subscriber may revoke without penalty or cost any consent
previously made by delivering to the Company in writing a
substantial indication of his intent to so revoke.
(5) Revealing Subscriber Lists.
The Company shall not reveal, or sell, or permit the release or sale of its
subscriber list without the prior affirmative written consent of each
Subscriber, provided that Company may use its subscriber list as
necessary for the construction, marketing, and maintenance of the
Company's services and facilities authorized by this Agreement, and the
concomitant billing of subscribers for said Cable Services; and further,
provided that consistent with applicable law, City may use Company's
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subscribers list for the purpose of communication with subscribers in connection
with matters relating to operation, management, and maintenance of the System,
except in accordance with Section 631 of the Cable Act.
(6) Other Persons Affected.
The prohibitions contained in Subsections (1) - (5) inclusive of this
Article shall extend and apply to all of the foregoing as well as to the
Company:
(a) Officers, directors, employees and agents of the Company;
(b) General and limited partners of the Company;
(c) Any person or combination of persons owning holding or
controlling five percent (5 %) or more of any corporate stock or
other ownership interest of the Company;
(d) Any affiliated or subsidiary entity owned or controlled by
Company, or in which any officer, director, stockholder, general
or limited partner or person or group of persons owning, holding
or controlling any ownership interest in the Company, shall own,
hold or control five percent (5 %) or more of any corporate stock
or other ownership interest; and
(e) Any person, firm or corporation acting or serving in the capacity
of holding or controlling company of the Company.
SECTION 22 - REGULATION OF RATES AND SERVICE CHARGES
The City may, without further action of the parties, regulate Grantee's rates, charges, and prices to
the maximum extent permitted by law now or at a future time.
(a) Filing of Rates and Charges. Throughout the term of this Franchise, Grantee shall maintain
on file with the City a complete schedule of all rates and charges related to providing Cable Services
under this Franchise, in a form satisfactory to the City.
(b) Changes in Rates and Charges. Grantee shall provide written notice to the City and
Subscribers at least thirty (30) days in advance of any proposed changed in rates and charges within
the control of Grantee.
(c) Regulation of Equipment for Hearing Impaired. To the extent authorized by law, the City
reserves the right to require and regulate the installation or rental of equipment which facilitates the
reception of Standard Cable Service by hearing impaired individuals.
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SECTION 23 - SERVICES AND PROGRAMMING
(a) Grantee shall provide, at a minimum, the following broad categories of programming: general
entertainment; sports; local broadcast stations; cultural programming; news; classic, foreign, and
special interest films; contemporary movies; documentaries and information programming;
government programming; children's programming; and foreign language programming.
(b) If any listed broad category of programming shall become unavailable, or cannot be provided
under existing FCC regulations, Grantee shall provide substitute programming of the same category
if possible.
(c) At least once every three years, the Grantee at its expense shall survey its Subscribers to evaluate
their programming interests and quality of Grantee's services and operations and report the results
to the City. Such survey shall be prepared and performed by professionally qualified independent
survey specialists who are not affiliated with the Grantee. The City shall be permitted to review the
qualifications of the survey specialists and shall also be consulted as to the questions to be asked in
the survey and for any other suggestions that might assure the quality, objectivity and statistical
validity of the survey. Grantee shall provide the City with a copy of each survey and supporting
documentation within thirty (30) days of receipt of the survey results or report from the survey
specialists by the Grantee.
SECTION 24 - GRANTEE SUPPORT FOR EDUCATION AND GOVERNMENT ACCESS
PROGRAMMING
Grantee shall provide the following support for the purpose of development and implementing public
benefit uses of the Cable System. The provision of the support items listed herein shall be
considered as contractual commitments of the Grantee within the terms of this Franchise, and if not
provided, shall subject the Grantee to applicable remedies and penalties for violations of the
Franchise.
(a) Capacity Requirements.
(1) The Grantee shall dedicate initially, at no charge to the City or City's dedicated users,
the greater of two (2) video channels or twelve (12) megahertz of fully activated
downstream channel bandwidth for Education and/or Government access
programming. Upon activation of the additional video programming services
described in Section 15 (a) of this Franchise, the Grantee shall provide up to a
maximum of four (4) downstream video channels on the Cable System for the
provision of Education and/or Government programming.
(2) The Grantee may not, except as provided under the Cable Act, exercise any editorial
control over the use of channels set aside for Education and Government access use.
(3) The Grantee shall provide all Education and Government Access channels to all
Subscribers as part of the lowest tier or level of basic service.
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(b) Capital. In the event any capital funds in support of Education and Government Programming
required by this Franchise are deemed by a legislative body, administrative body, or court of
competent jurisdiction to constitute a payment which must be offset against the franchise fee, City
hereby reserves the right, but is not required to do so, to terminate said program and/or requirement
so as to provide the maximum allowable franchise fee. Grantee shall not offset any charge, of any
kind, against a franchise fee or other payment due City without prior written notification to City.
Upon notification thereof, City may direct Grantee not to incur the proposed offset expenditure. To
the extent that Grantee makes said expenditure in contradiction of City's direction, any right of offset
shall be waived by Grantee. Nothing in this Franchise is intended, and shall be so construed, to
confer any third party beneficiary rights on any party(s), and no rights are created by this Franchise
other than rights of the City and Grantee.
(c) Free Cable Drops to City and School Buildings.
(1) Grantee shall provide one standard installation drop and free access to Basic Service
and the Cable Programming Services tier, for the life of the Franchise, to the Fire
Stations, Police Station, Maintenance Services Department, Library and City Hall
and all public school buildings, upon written request. The value of the Cable
Services provided shall not be deemed non - capital payments requiring or allowing
offset against the franchise fee.
(2) In the event that City or any public school desires to have additional connections to
the Cable System within such buildings installed by Grantee, Grantee shall make
such connections or installations charging to the City or public school the actual cost
to Grantee of such connections or installations. Grantee shall reserve the right to
subcontract such installations or connections when deemed necessary. Installation
of all additional connections to public buildings shall be completed within sixty (60)
days of receipt of a written request for such connections.
(d) Capital Grants.
(1) In order to assist the City in acquiring and upgrading its video production and cable
casting equipment, the Grantee agrees, upon acceptance of this Franchise to provide
an initial payment of three hundred and ninety three thousand ($393,000) dollars to
be used for capital in support of Education and Government Access Programming.
If the City requests, Grantee will reasonably assist the City (including technical
assistance and buying power) in acquiring equipment and will charge the City it's
actual discounted cost for said equipment.
(2) A second payment in the amount of thirty thousand dollars ($30,000) shall be
payable to or for the benefit of the City upon the City's submitting to Grantee a,
certification of need for the use of the replacement capital. Based solely on City's
certification, Grantee shall provide the thirty thousand dollars ($30,000) payment no
later than sixty (60) days after receipt by Grantee of City's certification of need.
Grantee may comment upon City's certification of need and provide
:G,
recommendations to improve its effectiveness, but may not withhold the payment
based on such comments or recommendations.
SECTION 25 - RECORDS
(a) Within (30) days of receiving a written request from the City, Grantee shall provide the
following reports:
(1) The annual Gross Revenues of the Cable System in the City broken down by
category (e.g. Basic, Premium, Pay per View, equipment rental, install receipts, late
charges /miscellaneous, advertising, home shopping commissions, local origination,
and other income).
(2) A list including but not limited to the total number of Subscribers receiving Cable
Services and a listing of the total numbers of Subscribers receiving various types of
Cable Services including but not limited to basic service, premium services and other
types of Cable Services which are provided by the Grantee.
SECTION 26 - FISCAL, SYSTEM AND PERFORMANCE TESTING REPORTS
(a) Open Books. The City shall have the right to inspect at any time during normal business hours
all books, records, maps, plans, income tax returns, financial statements, service complaint logs,
performance test results and any other records or property of the Grantee which relate to the
operation of the Cable System and are relevant to the enforcement of conditions contained within
this Franchise, and receive copies of said documents.
Any Grantee records as set forth herein shall, within thirty (30) days of receipt of the City's written
request be made available for City's inspection.
In the event the City receives a request to disclose such information which the Grantee has claimed
is proprietary and/or confidential, the City shall notify the Grantee prior to the releasing such
information, so that the Grantee can seek such legal protection as necessary, provided, however, the
City shall be under no obligation to participate or defend said action.
(b) Reports of Financial, Operating Activity and Performance Standards.
(1) Annual Operations Report. No later than ninety (90) days after the close of the
Grantee's fiscal year, Grantee shall present a written report to the City which shall include:
(i) A statement of Gross Revenues, certified by a certified public accountant (CPA),
describing what revenues were included and excluded in the franchise fee
calculation, and any adjustments made to Gross Revenues.
(ii) A summary of the previous year's activities, including but not limited to
subscriber totals and new services, and including any items specified by City.
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(2) Semi - Annual Performance Test Report. Upon request, Grantee shall provide the City
with a copy of the semi - annual performance test results required by Subpart K of Section 76
of the FCC Rules and Regulations. Such copies shall be provided within thirty (30) days of
receiving a written request from the City.
(c) City Inspection. A representative of the City shall be permitted to accompany the Grantee
during any FCC performance testing. The Grantee shall note any system adjustments made during
the performance testing on the test data form.
(d) The Grantee shall prepare and furnish to the City Manager upon written request such reports
with respect to its operations, affairs, transactions or property as may be reasonably necessary or
appropriate to the performance of any of the rights, functions or duties of the City or any of its
officers in connection with the Franchise. The City Manager shall consult with Grantee as to the
form, detail, and due dates of the reports requested, and may accept copies of reports generated by
Grantee in the normal course of business whenever possible.
(e) All reports required in this Section shall be provided at no cost to the City whatsoever.
SECTION 27. LIQUIDATED DAMAGES AND OTHER REMEDIES
(a) THE GRANTEE UNDERSTANDS AND AGREES THAT ITS FAILURE TO COMPLY WITH
CERTAIN MATERIAL REQUIREMENTS OR OBLIGATIONS IMPOSED ON IT BY THIS
FRANCHISE OR THE RIGHT OF WAY ORDINANCE (ORDINANCE NO. 2057) WILL
RESULT IN DAMAGE TO THE CITY, AND THAT THE ACTUAL AMOUNT OF SUCH
DAMAGE IS IMPRACTICAL TO DETERMINE. THE PARTIES THEREFORE AGREE TO
THE LIQUIDATED DAMAGES SPECIFIED BELOW. SUCH DAMAGES MAY BE
COLLECTED BY THE CITY FROM DRAW DOWN OF THE SECURITY FUND REQUIRED
BY SECTION 9 HEREOF OR BY ANY OTHER MEANS AVAILABLE AT LAW OR EQUITY.
THE FOLLOWING AMOUNTS MAY BE CHARGEABLE TO THE SECURITY FUND FOR
THE FOLLOWING CONCERNS:
1. DAMAGES FOR DELAYS IN UPGRADE.
SUBJECT TO THE PROCEDURES HEREIN, GRANTOR, AT ITS OPTION, MAY
APPLY ONE OR MORE OF THE FOLLOWING DAMAGES IN AN ADDITIVE
MANNER IF GRANTEE FAILS TO PERFORM AND /OR OFFER SERVICES
WITHIN THE TIME OR TIMES SET FORTH IN THIS FRANCHISE AGREEMENT:
(a) GRANTEE SHALL UPGRADE ITS CABLE TELEVISION SYSTEM IN
ACCORDANCE WITH THE CONSTRUCTION SCHEDULES SET FORTH IN
SECTION 15 OF THIS AGREEMENT. GRANTEE SHALL SUBMIT SWEEP
RESULTS AT A TEST LOCATION AT THE END OF EACH TRUNK RUN TO
CONFIRM SIGNAL CAPABILITY AT THE HIGHEST FREQUENCY. IF GRANTEE
IS UNSUCCESSFUL IN DEMONSTRATING CARRIAGE AT EACH TEST
LOCATION, GRANTEE SHALL HAVE A MAXIMUM THIRTY (30) DAYS FROM
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TESTING TO CORRECT ANY DEFICIENCIES AND REPEAT THE TEST.
GRANTOR MAY IMPOSE LIQUIDATED DAMAGES OF ONE THOUSAND
DOLLARS ($1,000) PER DAY FOR EACH DAY FOLLOWING THE DATE UPON
WHICH ONE HUNDRED PERCENT (100 %) OF THE SYSTEM IS REQUIRED TO
BE COMPLETED AS REQUIRED BY THIS AGREEMENT; PROVIDED,
HOWEVER, NO PENALTIES MAY BE IMPOSED IF GRANTEE SUCCESSFULLY
DEMONSTRATES CARRIAGE AT ALL TEST LOCATIONS PRIOR TO THE
THIRTIETH (30) DAY FOLLOWING THE SCHEDULED COMPLETION DATE
FOR THAT MILESTONE. IF GRANTEE FAILS TO DEMONSTRATE ONE
HUNDRED PERCENT (100 %) CARRIAGE AT ALL TEST POINTS WITHIN
THIRTY (30) DAYS OF THE SCHEDULED COMPLETION DATE, SAID
LIQUIDATED DAMAGES IMPOSED BY GRANTOR SHALL RELATE BACK TO
THE SCHEDULED COMPLETION DATE.
(b) FOR EACH MONTH OF DELAY EXCEEDING THREE (3) MONTHS FROM THE
DATE THAT ONE HUNDRED PERCENT (100 %) SYSTEM COMPLETION IS
REQUIRED BY THIS AGREEMENT, GRANTOR MAY REDUCE THE TERM OF
THE FRANCHISE UP TO FOUR (4) MONTHS.
2. DAMAGES FOR VIOLATION OF TECHNICAL STANDARDS AND
CUSTOMER SERVICE STANDARDS.
(a) TECHNICAL STANDARDS VIOLATIONS.
(1) THE CITY MAY IMPOSE LIQUIDATED DAMAGES NOT TO
EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250) PER DAY,
AS MEASURED FROM THE DATE OF THE FAILED TEST UNTIL
THE STANDARDS CONTAINED IN SECTION 12 OF THIS
FRANCHISE ARE MET; PROVIDED THAT, NO PENALTIES MAY
BE IMPOSED IF GRANTEE SUCCESSFULLY MEETS SUCH
STANDARDS WITHIN THIRTY (30) DAYS OF THE FAILED TEST.
(2) GRANTEE SHALL BE ENTITLED TO THE APPEAL RIGHTS
PROVIDED IN SUBSECTION (3)(b) BELOW.
(b) CUSTOMER SERVICE VIOLATIONS.
(1) IF GRANTEE VIOLATES, IN ANY MATERIAL WAY, ANY OF THE
CUSTOMER SERVICE STANDARDS SPECIFIED IN SECTION 21
OF THIS FRANCHISE, THE CITY MAY IMPOSE LIQUIDATED
DAMAGES IN THE AMOUNT OF TWO HUNDRED FIFTY
DOLLARS ($250) PER DAY; PROVIDED, HOWEVER, NO
LIQUIDATED DAMAGES SHALL BE IMPOSED UNTIL GRANTEE
HAS BEEN GIVEN ACTUAL NOTICE OF SAID VIOLATION AND
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FAILED TO CURE SAID VIOLATION WITHIN THE REQUIRED
RESPONSE TIME WITH THE EXCEPTION OF PROVISIONS
MEASURED QUARTERLY WHEREBY A TEN (10) DAY CURE
PERIOD WILL BE AFFORDED. IN THE EVENT THAT GRANTEE
DOES NOT CORRECT SAID VIOLATION WITHIN THE
APPLICABLE CURE PERIOD, SAID LIQUIDATED DAMAGES
MAY BE IMPOSED FROM THE DATE OF ORIGINAL VIOLATION.
(c) REPORTING VIOLATIONS.
(I) FOR FAILURE TO PROVIDE, UPON WRITTEN REQUEST, ANY
DATA, DOCUMENTS, REPORTS OR INFORMATION, REQUIRED
BY THIS FRANCHISE OR THE RIGHT -OF -WAY ORDINANCE
(ORDINANCE NO. 2057), THE GRANTEE SHALL PAY FIFTY
DOLLARS ($50.00) PER DAY FOR EACH DAY, OR PART
THEREOF, THAT EACH VIOLATION OCCURS OR CONTINUES;
(2) FOR FAILURE TO SUBMIT A REPORT ON THE PERFORMANCE
OF THE SYSTEM AS REQUIRED HEREIN AND IN THE RIGHT -OF-
WAY ORDINANCE, THE GRANTEE SHALL PAY ONE HUNDRED
DOLLARS ($100.00) PER VIOLATION PER DAY FOR EACH DAY,
OR PART THEREOF, THAT SUCH NONCOMPLIANCE
CONTINUES;
3. PAYMENT OF DAMAGES.
(a) CURE.
IN THE EVENT THAT CITY HAS REASON TO BELIEVE THAT GRANTEE HAS
FAILED TO COMPLY WITH ANY MATERIAL PROVISION OF THIS FRANCHISE
AND THEREFORE DESIRES TO IMPOSE DAMAGES ON GRANTEE AS
STIPULATED HEREIN, CITY SHALL NOTIFY GRANTEE IN WRITING OF THE
PROVISION OR PROVISIONS WHICH THE CITY BELIEVES MAY BE IN
DEFAULT AS WELL AS THE APPLICABLE CURE PERIOD, SUCH EPRIOD TO
BE NO LESS THAN THIRTY (30) DAYS FROM GRANTEE'S RECEIPT OF THE
NOTICE. GRANTEE SHALL UPON RECEIPT OF SAID NOTICE:
(i) CURE THE ALLEGED VIOLATION WITHIN THE CURE PERIOD; OR
(ii) RESPOND TO THE CITY IN WRITING DURING THE CURE PERIOD
CONTESTING THE CITY'S ASSERTION OF VIOLATION AND
PROVIDING SUCH INFORMATION OR DOCUMENTATION AS MAY BE
NECESSARY TO SUPPORT GRANTEE'S POSITION AND /OR REQUEST
AN EXTENSION OF THE CURE PERIOD.
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APPEAL AND PAYMENT.
IN THE EVENT GRANTEE FAILS TO RESPOND TO SAID NOTICE OF
VIOLATION, OR TO CURE THE VIOLATION WITHIN THE APPLICABLE
CURE PERIOD, OR PROVIDE AN EXPLANATION FOR FAILURE TO
CURE ACCEPTABLE TO CITY, CITY OR ITS DESIGNEE SHALL
SCHEDULE A HEARING NO SOONER THAN TEN (10) DAYS AFTER
WRITTEN NOTICE TO GRANTEE OF THE EXPIRATION OF THE CURE
PERIOD AND THE SCHEDULING OF SAID HEARING. GRANTEE SHALL
BE PROVIDED AN OPPORTUNITY TO BE HEARD AT SUCH HEARING,
INCLUDING THE RIGHT TO PRESENT EVIDENCE, CROSS - EXAMINE
WITNESSES, AND BE REPRESENTED BY COUNSEL. WITHIN THIRTY
(30) DAYS AFTER SAID HEARING, THE CITY SHALL DETERMINE
WHETHER OR NOT GRANTEE IS IN VIOLATION AND SUBMIT
WRITTEN FINDINGS OF FACTS SUPPORTING SUCH DETERMINATION.
THE HEARING DESCRIBED ABOVE MAY BE CONDUCTED, AT CITY'S
SELECTION, EITHER BEFORE THE CITY COUNCIL OR BEFORE A
HEARING OFFICER OR COMMISSION SELECTED BY THE CITY
COUNCIL. IN THE EVENT THAT SAID HEARING IS NOT HELD BEFORE
THE CITY COUNCIL, GRANTEE SHALL POSSESS THE RIGHT TO
APPEAL SAID DETERMINATION TO THE CITY COUNCIL WITHIN TEN
(10) DAYS OF ISSUANCE OF THE STATEMENT OF DECISION AND
FINDINGS OF FACT. ALL LIQUIDATED DAMAGES ARE DUE AND
OWING THIRTY (30) DAYS AFTER A FINAL DECISION BY EITHER THE
CITY COUNCIL OR THE HEARING OFFICER IN THE EVENT OF NO
APPEAL TO THE CITY COUNCIL. THE AFORESAID ASSESSMENT MAY
BE LEVIED DIRECTLY AGAINST THE LETTER OF CREDIT AND
COLLECTED BY CITY TWENTY (20) DAYS FROM DATE SAID
DAMAGES ARE DUE AND OWING. SUCH ASSESSMENT SHALL NOT
CONSTITUTE A WAIVER BY THE CITY OF ANY OTHER RIGHT OR
REMEDY IT MAY HAVE UNDER THE FRANCHISE OR UNDER
APPLICABLE LAW INCLUDING, WITHOUT LIMITATION, ITS RIGHT TO
RECOVER FROM GRANTEE SUCH ADDITIONAL DAMAGES, LOSSES,
COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S
FEES, AS MAY HAVE BEEN SUFFERED OR INCURRED BY CITY BY
REASON OF OR ARISING OUT OF SUCH BREACH OF THE FRANCHISE.
NOTHING IN THIS SECTION IS INTENDED TO WAIVE, MODIFY OR
OTHERWISE AFFECT GRANTEE'S RIGHTS UNDER THIS FRANCHISE,
OR ANY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE
RIGHT TO JUDICIAL REVIEW OF THE LEGAL RIGHTS AND
OBLIGATIONS OF THE PARTIES WITH RESPECT TO EACH OTHER, THE
GRANTEE'S RIGHT TO CHALLENGE THE DECISION OF THE CITY
UNDER APPLICABLE LEGAL STANDARDS, AND ANY ISSUE OF
PERFORMANCE OR BREACH BY EITHER PARTY TO THIS FRANCHISE.
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4. VALIDITY OF LIQUIDATED DAMAGES.
ANY IMPOSITION OF LIQUIDATED DAMAGES MAY BE COLLECTED AND RETAINED
BY CITY AS LIQUIDATED DAMAGES WITHOUT ANY REDUCTION, OFFSET, OR
RECOUPMENT WHATEVER. THE COLLECTION OF LIQUIDATED DAMAGES SHALL
NOT BE DEEMED AN EXCLUSIVE REMEDY. CITY AND GRANTEE AGREE THAT IT
WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES IN
THE CASE OF GRANTEE'S DEFAULT, AND THAT THE AMOUNT OF DAMAGES
SPECIFIED ABOVE IS A REASONABLE AND COMPLETE ESTIMATE OF CITY'S
DAMAGES.
Initial of Parties Initial of Parties
SECTION 28 - COSTS TO BE BORNE BY GRANTEE
In addition to those costs listed in this Franchise, the Grantee shall assume the following reasonable
costs associated with this Franchise:
(a) Costs of publication of this Franchise as such publication is required by law.
(b) All fees related to construction of the Cable System facilities, including, but not limited to, City
excavation permit fees, construction inspection fees, and other City costs related to Cable System
installation and construction.
(c) The Grantee shall reimburse the City for any and all "reasonable cost" associated with the City's
administrative review and approval of transfer or assignment of ownership, up to an amount of ten
thousand dollars ($10,000). Grantor and Grantee reserve the right to increase this amount by mutual
consent. The Grantee agrees and hereby waives any contrary claim that any such payment by the
Grantee shall be within the exclusion of the "Franchise Fee" as defined in Section 622(g)(2)(D) of
the Cable Act, 47 U.S.C. 542(g)(2)(D). Payments made pursuant to this section shall neither be
deemed to be a part of the Franchise Fee, nor offsetted against the Franchise Fee.
SECTION 29 - MISCELLANEOUS PROVISIONS
(a) Solicitation. This Franchise shall authorize and permit the Grantee to solicit, subject to the
City's Solicitation Ordinance, sell, distribute, and make a charge to Subscribers within the City for
connection to the Cable System of Grantee, and shall also authorize and permit the Grantee to
traverse any portion of the City excluding private property in order to provide service outside the
City.
(b) Franchise Value. This Franchise shall never be given any value by any Court or other
authority, public or private, in any proceeding of any nature of character, wherein or whereby the
City shall be a party of affected therein or thereby, pursuant to applicable law.
46
(c) When not otherwise prescribed herein, all matters herein required to be filed with the City shall
be filed with the City Clerk.
(d) Review of Issues. If during the term of this Franchise Agreement or any extension thereof, the
Franchising Authority grants a franchise consent or right to another operator which in the opinion
of Grantee (TCI Cablevision), contains a term or terms more favorable or less burdensome that those
granted to the Grantee in this Franchise Agreement, Grantee shall notice Grantor (City) of the
specific terms involved and City shall meet and confer with Grantee concerning these issues.
Nothing herein, or any implied covenant of good faith and fair dealing relating thereto, shall require
the City to modify the Franchise Agreement pursuant to the agreed upon meet and confer process
or to take or refrain from taking any action. Grantor agrees to comply with Section 53066.3(d) of
the California Government Code in the event the City grants a second franchise.
SECTION 30 - EQUAL OPPORTUNITY EMPLOYMENT AND AFFIRMATIVE ACTION
In the carrying out of the construction, maintenance and operation of the Cable System, the Grantee
shall not discriminate against any employee or applicant for employment because of race, creed,
color, sex, or national origin. Grantee shall comply with all applicable equal opportunity
employment and affirmative action requirements of the State and Federal governments.
SECTION 31 - INVALIDITY/MODIFICATIONS
If any of the provisions of this Franchise are held invalid or unenforceable by a competent court
having jurisdiction, such invalidity shall not affect other provisions of this Franchise which can be
given effect without the invalid provision. To this end the provisions of this Franchise are declared
severable. The invalidity of any portion of this shall not abate, reduce, or otherwise affect any
consideration or obligations required of the Grantee pursuant to this Franchise.
47
IN WITNESS WHEREOF, the parties hereto have caused this Franchise to be executed by their
respective officers duly authorized in their behalf.
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
CITY OF ARCADIA
A Municipal Corporation
"City"
Mayor
Dated: 1998
CABLEVISION OF
ARCADIA/SIERRA MADRE, INC.
"Grantee"
Dated:
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EXHIBIT A - DEFINITIONS
Generally. For the purposes of this Franchise, the following terms, phrases, words, and
abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not
inconsistent with the context, words used in the present tense include the future tense; words in the
plural number include the singular number; and words in the singular number include the plural
number; and the masculine gender includes the feminine gender. The words "shall" and "will" are
mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this
Title shall be construed consistent with Title 47 of the United States Code, and, if not defined
therein, their common and ordinary meaning. References to governmental entities (whether persons
or entities) refer to those entities or their successors in authority. If specific provisions of law
referred to herein are renumbered, then the reference shall be read to refer to the renumbered
provision. References to laws, ordinances or regulations shall be interpreted broadly to cover
government actions, however nominated, and include laws, ordinances and regulations now in force
or hereinafter enacted or amended.
"Affiliated Person" or "Affiliates" means each Person who falls into one or more of the
following categories: (i) each Person having, directly or indirectly, a Controlling Interest in Grantee;
(ii) each Person in which Grantee has, directly or indirectly, a Controlling Interest; (iii) each officer,
director, general partner, limited partner holding an interest of five percent (5 %) or more, joint
venturer or joint venture partner, of Grantee; and (iv) each Person, directly or indirectly, controlling,
controlled by, or under common Control with Grantee; provided that "Affiliated Person" shall in no
event mean the City, any limited partner holding an interest of less than five percent (5 %) of
Grantee, or any creditor of Grantee solely by virtue of its status as a creditor and which is not
otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or
being under common ownership, common management, or common Control with Grantee.
"Administrative Officer" means the City Manager or his/her designee.
"Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the lowest service tier
which includes, at minimum, the retransmission of local television broadcast signals along with any
public, educational, and government access channels.
"Cable Act" means the Communications Act of 1934, as amended by Cable Communications
Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, and as may be further amended from time to time.
"Cable Programming Services Tier" means any tier(s) which include all video programming
distributed over the system that is not on the basic service tier and for which the operator does not
charge on a per channel or per program basis.
"Cable Service" means (A) the one -way transmission to subscribers of (i) video programming,
or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
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"Cable System" means a facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide Cable Service which
includes video programming and which is provided to multiple subscribers within a community for
the purpose of, but such term does not include:
(A) a facility that serves only to retransmit the television signals of one or more television
broadcast stations;
(B) a facility that serves Subscribers without using any public right -of -way;
(C) a facility of a common carrier which is subject, in whole or in part, to the provisions
of Title II (Common Carriers) of the Communications Act as amended, except that such facility shall
be considered a Cable System to the extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent of such use is solely to provide interactive
on -demand services;
(D) any facilities of any electric utility used solely for operating its electric utility
systems; or
(E) an open video system that is certified by the FCC.
"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable
system and which is capable of delivering a television channel (as television channel is defined by
the Commision by regulation).
"City" shall mean the City of Arcadia, a municipal corporation of the State of California, in its
present incorporated form or in any later reorganized, consolidated, enlarged or re- incorporated form.
(a) "City Council" shall mean the present governing body of the City of Arcadia or any
future board constituting the legislative body of the City.
(b) "City Manager" shall mean the City's chief administrative officer, or any designee
thereof.
(c) "City Attorney" shall mean the City Attorney of Arcadia.
"Complaint" means a billing dispute or service call in which a Subscriber is notifying Grantee
of an outage and/or degradation in picture quality.
"Communications facility" means a device which alone or as part of an aggregation of devices
is capable of transmitting signals from place to place,
50
4.
0
"Communications system" refers to a telecommunications system, cable system, or open video
system.
"Construction, operation or repair" and similar formulations of that term means the named
actions interpreted broadly, encompassing, among other things, installation, extension, maintenance,
replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing,
make- ready, and excavation.
"Control" or "Controlling Interest" means actual working control in whatever manner exercised,
including, without limitation, working control through ownership, management, debt instruments,
or negative control, as the case may be, of the System, the Franchise or Company. A rebuttable
presumption of the existence of Control or a Controlling Interest shall arise from the beneficial
ownership, directly or indirectly, by any Person or group of Persons acting in concert (other than
underwriters during the period in which they are offering securities to the public) of twenty -five
(25 %) or more of any Person (which Person or group of Persons is hereinafter referred to as
"Controlling Person ") or being a party to a management contract. "Control" or "Controlling Interest"
as used herein may be held simultaneously by more than one Person or group of Persons.
"Converter" means a device which converts signals from one frequency to another or otherwise
processes signals for use by subscribers.
"Customer Premises Equipment" means equipment employed on the premises of a person (other
than a carrier) to originate, route, or terminate telecommunications.
"Drop" means the cable and related equipment connecting the System's plant to equipment at the
subscriber's premises.
"Educational Access Programming" means any programming channel where non - profit
educational institutions are the primary designated programmers.
"Fair Market Value" means the price for the Cable System valued as a going concern but with
no value allocated to the Franchise itself, if permitted by the then applicable law.
"FCC" shall mean the Federal Communications Commission or its designated representative(s).
"Franchise" refers to the authorization granted by the City to the Grantee giving the Grantee the
non- exclusive right to occupy the space, or use facilities upon, across, beneath, or over any Public
Right -of -Way in the City, to provide Cable Service within the City. Such Franchise shall not include
or be a substitute for:
(i) any other permit or authorization required for the privilege of transacting and carrying on a
business within the City required by the ordinances and laws of the City;
51
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(ii) any permit, agreement or authorization required in connection with operations on or in
Public Rights -of -Way or public property, including by way of example and not limitation, street cut
permits;
(iii) any permits or agreements for occupying any other property of the City or private entities
to which access is not specifically granted by the Franchise including, without limitation, permits
and agreements for placing devices on or in poles, conduits, other structures, or railroad easements,
whether owned by the City, including the Maintenance Service Department, or a private entity; or
"Franchise Agreement" means a signed and notarized statement on the part of both grantor and
grantee in accordance with the provisions of the Right of Way Ordinance accepting and agreeing to
all of the provisions of the franchise herein, granted, including referenced specifications, franchise
applications, and other related material that sets forth the terms and condition under which the
Franchise will operate.
"Franchise Area" means the territory within the City throughout which grantee shall be
authorized to construct, maintain and operate its system and shall include any enlargements thereof
and additions thereto.
"Franchisee" refers to a Person holding a Franchise granted by City ordinance.
"Government Access Programming" means any programming where local government agencies
are the primary designated programmers and programming is non - commercial informational
programming regarding government/community activities and programs.
"Grantee" means Cablevision of Arcadia/Sierra Madre, Inc., and the lawful successor, transferee
or assignee thereof.
"Gross Revenue" shall mean all revenue, as determined in accordance with generally accepted
accounting principles, which is received directly or indirectly, by Grantee and by each Affiliated
Person from the distribution of any Cable Service on the Cable System or the provision of any Cable
Service related activity in connection with the Cable System. Gross Revenue shall also specifically
include any revenue received by any other Person which is intended to have the effect of avoiding
the payment of compensation that would otherwise be paid to the City for the Franchise granted
herein. Gross Revenue shall include all advertising revenue which is received by Grantee; any
Affiliated Person or any other Person from or in connection with the distribution of any Cable
Service over the Cable System; or the provision of any Cable Service- related activity in connection
with the Cable System. Gross Revenue shall not include: (i) the revenue of any Person, including,
without limitation, a supplier or programming to Grantee to the extent that said revenue is also
included in Gross Revenue of Grantee; (ii) the revenue of Grantee or any other Person which is
received directly from the sale of any merchandise through any service distributed over the Cable
System (other than that portion of such revenue which represents or can be attributed to a Subscriber
fee or a payment for the use of the Cable System for the sale of such merchandise, which portion
4 shall be included in Gross Revenue; (iii) taxes imposed by law on Subscribers which Grantee is
obligated to collect; (iv) any investment income earned by Company; (v) advertising commissions
52
deducted by advertising agencies before advertising revenues are paid over to City; and (vii) to the
extent consistent with generally accepted accounting principles, consistently applied, bad debt write -
offs.
"Headend" means that central portion(s) of the System where signals are introduced into and
received from the balance of the System.
"Information Service" means the offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing, but does not include any use of any such
capability for the management, control, or operation of a telecommunications system or the
management of a telecommunications service.
"Lease Channel" means any channel where someone other than Grantor or Grantee is sold the
rights to air programming.
"Local Origination Channel" means any channel where the Grantee is the primary designated
programmer.
"Monitoring" or "Tapping" means observing or receiving a signal, or the absence of a signal,
where the observer is neither the sending nor receiving party and is not authorized by the sending
and/or receiving party to observe said signal, whether the signal is observed or received by visual,
electronic, or any other means whatsoever.
"Open Video System" or "OVS" refers to a facility consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that is designed to provide Cable
Service, which includes video programming, which is provided to multiple subscribers within a
community, and which the Federal Communications Commission or its successor has certified as
compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time -to -time.
"Operator" when used with reference to a system, refers to a Grantee (a) who provides service
over a Communications System and directly or through one or more Affiliates owns a significant
interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a facility. A Grantee that operates under agreement a
Telecommunications System or a specific portion of a Telecommunications System to provide
Telecommunications Services shall be treated as an Operator for purposes of this Title.
"Overhead Facilities" refers to electric utility and communications facilities located above the
surface of the ground, including the underground supports and foundations for such facilities.
"Pay Cable" or "Pay Service," "Premium- Services" means programming for which there is a
fee or charge to Subscribers over and above the charge for Basic Service and the Cable Programming
Service Tier(s).
53
"Person" shall mean any natural person and all domestic and foreign corporations, associations,
syndicates, joint stock corporations, partnerships of every kind, club business or common law trusts
and societies.
"Public Rights -of -Way" mean the public streets and easements which, under the City Charter,
the Municipal Code, City ordinances, and applicable laws, the City has authority to grant Franchises,
permits, or Licenses for use thereof or has regulatory authority thereover, and as may be more
specifically defined in the Franchise, License, or permit granting any right to or use thereof,
excluding railroad rights -of -way, airport, and harbor areas. Public Rights -of -Way for the purpose
of this Ordinance do not include buildings, parks, poles, or similar facilities or property owned by
or leased to the Grantor, including, by way of example and not limitation, structures in the Public
Rights -of -Way such as utility poles and light poles.
"Resident" means any person residing in the City.
"Residential Subscriber" means a Subscriber who receives a service in a dwelling unit, and
whose Cable Service is not utilized in a business, trade or profession.
"Service Outage" means a substantial or complete disruption in Cable Service.
"Service Tier" or "Tier" means a category of Cable Service or other Services provided by the
Company and for which a separate rate is charged by the Company other than per channel or per
event programming or legitimate packages of per channel or per event programming.
"School" means any public educational institution.
"Senior Citizen" any head of household of the age of 65 years or older.
"Streets" shall mean any street, road, highway, freeway, lane, path, alley, court, sidewalk,
parkway, public utility easements, or drive which is owned by a public entity or as to which a public
entity has an easement for street purposes, and with respect to which, and to the extent that, City has
a right to grant the use of the surface of, and space above and below in connection with, this
franchise for a Cable System.
"Subscriber" shall mean any Person lawfully receiving Cable Service provided by Grantee.
"Transfer" means any transaction in which:
(i) all or a portion of the Communications System is sold or assigned (except a sale or
assignment that results in removal of a particular portion of the facility from the Public
Rights -of -Way);
(ii) there is any change, acquisition, or direct or indirect transfer of control of the
Franchisee or Licensee; or
54
(iii) the rights and/or obligations held by the Franchisee or Licensee under the Franchise
or License are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to
another party. It will be presumed that any transfer or cumulative transfer of voting interest of 10
percent or more is transfer of control within the meaning of (ii). In succeeding provisions of this
Title, all these activities are referred to as Franchise transfers.
"Two -Way Capability" shall means the ability to receive and transmit signals of any 'type from
a Subscriber's Converter back to the Grantee's Headend or other facility.
"Upstream Channel" means a channel through which television signals emanating from a
Subscriber's location or the location of any other entity except the main transmitting facility of the
Grantee is transmitted via the Cable System to the Headend or other appropriate point.
55
0 0
EXHIBIT C
TECHNICAL OPERATION AND MAINTENANCE STANDARDS AND REQUIREMENTS
1. Technical and Safety Standards. Grantee will maintain its system using applicable City codes and the following safety codes and
construction standards: NEC - NATIONAL ELECTRICAL CODE; NESC - NATIONAL ELECTRICAL SAFETY CODE; OSHA -
OCCUPATIONAL SAFETY AND HEALTH ACT.
2. Network Monitoring and Renair. Grantee shall monitor all power supplies and fiber nodes, utilizing the latest in status monitoring
techniques and will effect repairs within a 24 hour time period as required by applicable FCC Rules and Regulations.
3. Routine Maintenance and Performance Testing. The Grantee will maintain the Cable System by providing routine maintenance and
performance testing to meet the requirements of FCC Rules and Regulations; Part 76, including bi- annual proof of performance tests.
See full teal of Part 76.601 below.
4. Snare . The Grantee shall have immediately available a sufficient supply of spare parts to effect repairs in accordance with the
requirements of this Franchise.
Subpart K- Technical Standards
§76.601 Performance tests.
(a) The operator of each cable television system shall be responsible for insuring that each such system is
designed, installed, and operated in a manner that fully complies with the provisions of this subpart. Each system
operator shall be prepared to show, on request by an authorized representative of the Commission or the local franchiser,
that the system does, in fact, comply with the rules.
(b) The operator of each cable television system shall maintain at its local office a current listing of the cable
television channels which that system delivers to its subscribers.
(c) The operator of each cable television system shall conduct complete performance tests of that system at
least twice each calendar year (at intervals not to exceed seven months), unless otherwise noted below, and shall
maintain the resulting test data on file at the operator's local business office for at least five (5) years. The test data shall
be made available for inspection by the Commission or the local franchiser, upon request. The performance tests shall
be directed at determining the extent to which the system complies with all the technical standards set forth in
§76.605f and shall be as follows:
(1) For cable television systems with 1,000 or more subscribers but with 12,500 or less subscribers,
proof -of- performance tests conducted pursuant to this section shall include measurements taken at six (6) widely
separated points. However, within each cable system, one additional test point shall be added for every additional
12,500 subscribers or fraction thereof (e.g., 7 test points if 12,501 to 25,000 subscribers; 8 test points if 25,001 to
37,500 subscribers, etc.). In addition, for technically integrated portions of cable systems that are not mechanically
continuous (i.e., employing microwave connections), at least one test point will be required for each portion of the cable
system served by a technically integrated microwave hub. The proof -of- performance test points chosen shall be
balanced to represent all geographic areas served by the cable system. At least one -third of the test points shall be
representative of subscriber terminals most distant from the system input and from each microwave receiver (if
microwave transmissions are employed), in terms of cable length. The measurements may be taken at convenient
monitoring points in the cable network: provided, that data shall be included to relate the measured performance of the
system as would be viewed from a nearby subscriber terminal. An identification of the instruments, including the makes,
model numbers, and the most recent date of calibration, a description of the procedures utilized, and a statement of the
qualifications of the person performing the tests shall also be included.
(2) Proof-of- performance tests to determine the extent to which a cable television system complies
with the standards set forth in §76.605(a)(3), (3), and M shall be made on each of the NTSC or similar video channels
of that system. Unless otherwise as noted, proof -of- performance tests for all other standards in 676.605fa1 shall be
Exhibit C - Page 1
made on a minimum of four (4) channels plus one additional channel forever), 100 MHz, or fraction thereof, of cable
distribution system upper frequency limit (e.g., 5 channels for cable television systems with a cable distribution system
upper frequency limit of 101 to 216 Ml-Iz; 6 channels for cable television systems with a cable distribution system upper
frequency limit of 217 -300 MHz; 7 channels for cable television systems with a cable distribution upper frequency limit
of 300 to 400 MHz, etc.). The channels selected for testing must be representative of all the channels within the cable
television system.
(3) The operator of each cable television system shall conduct semi- annual proof -of- performance
tests of that system, to determine the extent to which the system complies with the technical standards set forth in
176.6056k)(4) as follows. The visual signal level on each channel shall be measured and recorded, along with the date
and time of the measurement, once every six hours (at intervals of not less than five hours or no more than seven hours
after the previous measurement), to include the warmest and the coldest times, during a 24 -hour period in January or
February and in July or August.
(4) The operator of each cable television system shall conduct triennial proof-of-performance tests of
its system to determine the extent to which the system complies with the technical standards set forth in §76.605(a)(11).
(d) Successful completion of the performance tests required by paragraph jsyof this section does not relieve
the system of the obligation to comply with all pertinent technical standards at all subscriber terminals. Additional tests,
repeat tests, or tests involving specified subscriber terminals may be required by the Commission or the local franchiser
to secure compliance with the technical standards.
(e) The provisions of paragraphs (d and Ldp of this section shall not apply to any, cable television system
having fewer than 1,000 subscribers: provided, however, that any cable television system using any frequency spectrum
other than that allocated to over -the -air television and FM broadcasting (as described in §73.603 and §73.210) is
required to conduct all tests, measurements and monitoring of signal leakage that are required by this subpart. A cable
television system operator complying with the monitoring, logging and the leakage repair requirements of §76.614, shall
be considered to have met the requirements of this paragraph. However, the leakage log shall be retained for five years
rather than the two years prescribed in 676.614.
NOTE: Prior to requiring any additional testing pursuant to §76.601(d), the local franchising authority shall notify the
cable operator who will be allowed thirty days to come into compliance with any perceived signal quality problems
which need to be corrected. The Commission may request cable operators to test their systems at any time.
Historical Note
[Section amended and subsection (f) added by order in Docket No. 20561, effective May 16, 1977, 42 FR 19329. For
Report see 40 RR 2d 571.]
[Subsection (b) amended effective March 12, 1976, 41 FR 10066.1
[Subsections (b), (c) and (d) amended, (e) deleted, and NOTE amended by order in Docket No. 20765, effective June 6,
1977, 42 FR 21779, 42689. For Report see 40 RR 2d 853.1
[Subsection (b) amended and (c), (d) and (e) deleted by order in Docket No. 85 -38, effective January 23, 1986, 50 FR
52462. For Report see 59 RR 2d 569.1
[Subsection (e) amended by order in Docket No. 19659, effective November 23, 1973, 38 FR 29083. For Report see 28 RR
2d 860.]
[Subsection (e) deleted and (f) redesignated (e) by order (Mimeo 6079) released August 2, 1985 and effective August 12,
1985, 50 FR 32414.1
[Subsection (t) amended to change "500' to "1000" by order in Docket No. 20561, effective June 12, 1978, 43 FR 20226.
For Report see 42 RR 2d 1623.]
Section (formerly "Signal leakage measurements ") retitled and revised by order in Docket Nos. 91 -169 and 85 -38, effective
June 30, 1992, 57 FR 11000. For Report see 70 RR 2d 679. The bracketed HISTORICAL NOTES above refer to the
Exhibit C - Page 2
' I
rule prior to this revision.
Subparagraphs (c)(1), (c)(2) and (c)(4) amended and NOTE at end of section added by order in Docket Nos. 91 -169 and
85 -38, effective December 30, 1992, 57 FR 61009. For Memorandum Opinion see 71 RR 2d 816.
§76.605 Technical standards.
(a) As of December 30, 1992, unless otherwise noted, the following requirements apply to the performance of a cable
television system as measured at any subscriber terminal with a matched impedance at the termination point or at the
output of the modulating or processing equipment (generally the headend) of the cable television system or otherwise as
noted. The requirements are applicable to each NTSC or similar video downstream cable television channel in the
system:
(1)(i) The cable television channels delivered to the subscriber's terminal shall be capable of being received
and displayed by TV broadcast receivers used for off - the -air reception of TV broadcast signals, as authorized under Part
73 of this chapter; and
(ii) Cable television systems shall transmit signals to subscriber premises equipment on frequencies
in accordance with the channel allocation plan set forth in the Electronics Industries Association's "Cable Television
Channel Identification Plan, EIA IS -132, May 1994" (EIA IS -132). This incorporation by reference was approved by
the Director of the Federal Register in accordance with 5 USC 522(a) and 1 CFR Part 51. Cable systems are required to
use this channel allocation plan for signals transmitted in the frequency range 54 MHz to 1002 MHz. This incorporation
by reference was approved by the Director of the Federal Register in accordance with 5 USC 522(x) and 1 CFR Part 51.
Copies of EIA IS -132 maybe obtained from: Global Engineering Documents, 2805 McGraw Ave., Irvine CA 92714.
Copies of EIA IS -132 maybe inspected during normal business hours at the following locations: Federal
Communications Commission, 1919 M Street, NW, Dockets Branch (Room 239), Washington, DC, or the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. This requirement is applicable on May
31, 1995, for new and re -built cable systems, and on .tune 30, 1997, for all cable systems.
(2) The aural center frequency of the aural carver must be 4.5 MHz f5 kHz above the frequency of the visual
carrier at the output of the modulating or processing equipment of a cable television system, and at the subscriber
terminal.
(3) The visual signal level, across a terminating impedance which correctly matches the internal impedance of
the cable system as viewed from the subscriber terminal, shall not be less than I millivolt across an internal impedance
of 75 ohms (0 dBmV). Additionally, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the
subscriber tap, it shall not be less than 1.41 millivolts across an internal impedance of 75 ohms ( +3 dBmV). (At other
impedance values, the minimum visual signal level, as viewed from the subscriber terminal, shall be the square root of
0.0133(Z) millivolts and, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber
tap, shall be 2 times the square root of 0.00662(Z) millivolts, where Z is the appropriate impedance value.)
(4) The visual signal level on each channel, as measured at the end of a 30 meter cable drop that is connected
to the subscriber tap, shall not vary more than 8 decibels within any six -month interval which must include four tests
performed in six -hour increments during a 24 -hour period in July or August and during a 24 -hour period in January or
February, and shall be maintained within:
(i) 3 decibels (dB) of the visual signal level of any visual carrier within a 6 MHz nominal frequency
separation;
(ii) 10 dB of the visual signal level on any other channel on a cable television system of up to 300
MHz of cable distribution system upper frequency limit, with a I dB increase for each additional 100 MI Iz of cable
distribution system upper frequency limit (e.g., 11 dB for a system at 301 -400 MHz; 12 dB for a system at 401 -500
MHz, etc.); and
(iii) A maximum level such that signal degradation due to overload in the subscriber's receiver or
terminal does not occur.
(5) The rants voltage of the aural signal shall be maintained between 10 and 17 decibels below the associated
visual signal level. This requirement must be met both at the subscriber terminal and at the output of the modulating and
processing equipment (generally the headend). For subscriber terminals that use equipment which modulate and
Exhibit C - Page 3
remodulate the signal (e.g., bascband converters), the mts voltage of the aural signal shall be maintained between 6.5
and 17 decibels below the associated visual signal level at the subscriber terminal.
(6) The amplitude characteristic shall be within a range of t2 decibels from 0.75 MHz to 5.0 MHz above the
lower boundary frequency of the cable television channel, referenced to the average of the highest and lowest amplitudes
within these frequency boundaries.
(i) Prior to December 30, 1999, the amplitude characteristic may be measured after a subscriber tap
and before a converter that is provided and maintained by the cable operator.
(ii) As of December 30, 1999, the amplitude characteristic shall be measured at the subscriber
terminal.
(7) The ratio of RF visual signal level to system noise shall be as follows:
(i) From .Tune 30, 1992, to June 30, 1993, shall not be less than 36 decibels.
(ii) From June 30, 1993, to .tune 30, 1995, shall not be less than 40 decibels.
(iii) As of June 30, 1995, shall not be less than 43 decibels.
(iv) For Class I cable television channels, the requirements of paragraphs (a)(7)(i), (a)(7)(ii) and
(a)(7)(iii) of this section are applicable only to:
(A) Each signal which is delivered by a cable television system to subscribers within the
predicted Grade B contour for that signal;
(B) Each signal which is first picked up within its predicted Grade B contour;
(C) Each signal that is first received by the cable television system by direct feed from a TV
broadcast station, a low power TV station, or a TV translator station.
(8) The ratio of visual level to the rms amplitude of any coherent disturbances such as intetmodulation
products, second and third order distortions or discrete - frequency interfering signals not operating on proper offset
assignments shall be as follows:
(i) The ratio of visual signal level to coherent disturbances shall not be less than 51 decibels for
noncohereni channel cable television systems, when measured with modulated carriers and time averaged; and
(ii) The ratio of visual signal level to coherent disturbances which are frequency- coincident with the
visual carrier shall not be less than 47 decibels for coherent channel cable systems, when measured with modulated
carriers and time averaged.
(9) The terminal isolation provided to each subscriber terminal:
(i) Shall not be less than 18 decibels. In lieu of periodic testing, the cable operator may use
specifications provided by the manufacturer for the terminal isolation equipment to meet this standard; and
(ii) Shall be sufficient to prevent reflections caused by open - circuited or short- circuited terminals
from producing visible picture impairments at any other subscriber terminal.
(10) The peak -to -peak variation in visual signal level caused by undesired low frequency disturbances (hum or
repetitive transients) generated within the system, or by inadequate low frequency response, shall not exceed 3 percent
of the visual signal level. Measurements made on a single channel using a single unmodulated carrier may be used to
demonstrate compliance with this parameter at each test location.
(11) As of June 30, 1995, the following requirements apply to the performance of the cable television system
as measured at the output of the modulating or processing equipment (generally the headend) of the system:
(i) The chrominance- luminance delay inequality (or chrome delay), which is the change in delay time
of the chrominanre component of the signal relative to the luminance component, shall be within 170 nanoseconds.
(ii) The differential gain for the color subccrber of the television signal, which is measured as the
difference in amplitude between the largest and smallest segments of the chrominance signal (divided by the largest and
expressed in percent), shall not exceed t20 %.
(iii) The differential phase for the color subcarrier of the television signal which is measured as the
largest phase difference in degrees between each segment of the chrominance signal and reference segment (the segment
at the blanking level of 0 IRE), shall not exceed ±10 degrees.
(12) As an exception to the general provision requiring measurements to be made at subscriber terminals, and
without regard to the type of signals carried by the cable television system, signal leakage from a cable television system
shall be measured in accordance with the procedures outlined in 976.609(h) and shall be limited as follows:
Exhibit C - Page 4
Signal Leakage
Limit Distance in
Frequencies (Microvolts /meters) meters (m)
Less than and including 54 MHz, and over 216 MHz 15 30
Over 54 up to and including 216 MHz 20 3
(b) Cable television systems distributing signals by using methods such as nonconventional coaxial cable techniques,
noncoaxial copper cable techniques, specialized coaxial cable and fiber optical cable hybridization techniques or
specialized compression techniques or specialized receiving devices, and which, because of their basic design, cannot
comply with one or more of the technical standards set forth in paragraph jg)_of this section, may be permitted to
operate: provided, that an adequate showing is made pursuant to -IM which establishes that the public interest is
benefited. In such instances, the Commission may prescribe special technical requirements to ensure that subscribers to
such systems are provided with an equivalent level of good quality service.
NOTE 1: Local franchising authorities of systems serving fewer than 1000 subscribers may adopt standards less stringent
than those in 876.605(a). Any such agreement shall be reduced to writing and be associated with the system's
proof- of-performance records.
NOTE 2 For systems serving rural areas as defined in 876.5, the system may negotiate with its local franchising authority
for standards less stringent than those in §76.605(a)(3), §76.605(a)(7), 976.605(a)(8), §76.605(a)(10), and
§76.605(a)(11). Any such agreement shall be reduced to writing and be associated with the system's
proof -of- performance records.
NOTE 3: The requirements of this section shall not apply to devices subject to the provisions of §§15.601-15-626.
NOTE 4: Should subscriber complaints arise from a system failing to meet 676.605(a)(6) prior to December 30, 1999, the
cable operator will be required to provide a converter that will allow the system to meet the standard immediately at the
complaining subscriber's terminal. Further, should the problem be found to be system -wide, the Commission may order
all converters on the system be changed to meet the standard.
NOTE 5: Should subscriber complaints arise from a system failing to meet 676.605(a)(10), the cable operator will be
required to remedy the complaint and perform test measurements on 676.605(x)(10) containing the full number of
channels as indicated in §76.601(c)(2) at the complaining subscriber's terminal. Further, should the problem be found
to be system -wide, the Commission may order the full number of channels as indicated in §76.601(c)(2) be tested at all
required locations for future proof -of- performance tests.
NOTE 6: No State or franchising authority may prohibit, condition, or restrict a cable system's use of any type of subscriber
equipment or any transmission technology.
Historical Note
Subparagraphs (a)(2)- (a)(12) redesignated (a)(3)- (a)(13) and a new (a)(2) added by order in Docket No. 93 -7, effective June
15, 1994, 59 FR 25339. For First Report see 75 RR 2d 152.
Subparagraph (a)(2) deleted, (a)(3)- (a)(13) redesignated (a)(2)- (a)(12) and (a)(1) amended by order in Docket No. 93 -7,
effective May 28, 1996, 61 FR 18508. For Memorandum Opinion see 2 CR 1179.
Subparagraphs (a)(3), (a)(4) and (a)(8) amended by order effective January 22, 1975, 40 FR 2690.
Subparagraph (9)(3) amended, (a)(6) deleted, (a)(7)-(a)(12) redesignated (a)(6)- (a)(11) and NOTE added by order in
Docket No. 85 -38, effective January 23, 1986, 50 FR 52462. For Report see 59 RR 2d 569.
NOTE 6 amended by order in Docket No. 96 -85, effective April 30, 1996, 61 FR 18968. For Order see 2 CR 1147.
Subparagraphs (a)(3) {a)(6), (a)(10- (a)(12) and NOTE 2 amended and NOTES 4-6 added by order in Docket Nos. 91 -169
and 85 -38, effective December 30, 1992, 57 FR 61009. For Memorandum Opinion see 71 RR 2d 816.
Exhibit C - Page 5
0
Subparagraphs (a)(5) and (a)('12) amended by order in Docket No. 18397 et al., effective July 14, 1972, 37 FR 13848. For
Report see 25 RR 2d 150 1.
Subparagraph (a)(8) amended effective December 7, 1976,41 FR 53027. For Order see 39 RR 2d 100.
Subdivision (a)(9)(iii) amended by order in Docket No. 78 -253, effective June 17, 1982, 47 FR 21468. For Report see 51
RR 2d 476.
NOTE at end of section added by order in Docket No. 85 -301, effective July 20, 1987, 52 FR 22459. For Report see 63 RR
2d 137.
Section amended by order in Docket No. 20561, effective May 16, 1977, 42 FR 19329. For Report see 40 RR 2d 571.
Section amended by order in Docket No. 20765, effective June 6, 1977, 42 FR 21779. For Report see 40 RR 2d 853.
Section revised by order in Docket Nos. 91 -169 and 85 -38, effective June 30, 1992, 57 F R I 1000. For Report see 70 RR 2d
679.
§76.606 Closed captioning.
(a) The requirements for closed captioning are as follows:
(1) As of June 30, 1992, the operator of each cable television system shall not take any action to remove or
alter closed captioning data contained on line 21 of the vertical blanking interval; and
(2) As of July 1, 1993, the operator of each cable television system shall deliver intact closed captioning data
contained on line 21 of the vertical blanking interval, as it arrives at the headend or from another origination source, to subscriber
terminals and (when so delivered to the cable system) in a format that can be recovered and displayed by decoders meeting
g 15.119 of the Rules.
Historical Note
Section added by order in Docket Nos. 91 -169 and 85 -38, effective June 30, 1992, 57 FR 11000. For Report see 70 RR 2d
679.
§76.607 Resolution of complaints. - Cable system operators shall establish a process for resolving complaints from subscribers
about the quality of the television signal delivered. These records shall be maintained for at least a one -year period. Aggregate
data based upon these complaints shall be made available for inspection by the Commission and franchising authorities, upon
request Subscribers shall be advised, at least once each calendar year, of the procedures for resolution of complaints by the cable
system operator, including the address of the responsible officer of the local Ganchising authority.
NOTE: Prior to being referred to the Commission, complaints from subscribers about the quality of the television signal
delivered must be referred to the local franchising authority and the cable system operator.
Exhibit C - Page 6