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CITY OF ARCADIA - FRANCHISE AGREEMENT
ALTRIO COMMUNICATIONS
CITY OF ARCADIA AND ALTRIO CONEVIUNICATIONS
CABLE TELEVISION FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION
I' -m-A
SECTION 1- DEFINITIONS .......................................................................... ............................... 5
SECT 10N 2 - FRANCHISE GRANTED ......................................................... ............................... 5
SECTION 3 - FRANCHISE TERM ................................................................. ............................... 6
SECTION 4 - CONDITIONAL FIVE -YEAR EXTENSION .......................... ............................... 6
SECTION 5 - TBRNIINATION ........................................................................ ............................... 8
SECTION 6. FRANCHISE RENEWAL ........................................................ .............................10
SECTION7 - FRANCHISE FEE ...................................................................... .............................10
SECTION 8 - INSURANCE .............:.............................................................. .............................14
SECTION 9 - BONDSAND SECURITIES .................................................... .............................16
SECTION 10 - L=ATIONS OF FRANCHISE ........................................:. .............................17
SECTION 11 - ASSIGNMENT OR TRANSFER OR SALE OF FRANCHISE .........................18
,
SECTION 12 - RIGHTS RESERVED TO THE CITY ................................. ...............................
20
SECTION 13 - TECHNICAL PERFORMANCE AND EQUIPMENT STANDARDS ..............
21
SECTION 14 - OPERATION OF SERVICE ................................................ ...............................
21
SECTION 15 - SYSTEM DESIGN AND CAPACITY ................................. ...............................
22
SECTION 16-- CONSTRUCTION OF THE CABLE SYSTEM ..................................................
............................
25
SECTION 17 - STANDARD / NON - STANDARD INSTALLATIONS ...... ...............................
30
SECTION 18 - POSSESSORY INTEREST .................................................. ......................:........
30
SECTION 19 - CONTINUITY OF SERVICE ............................................... ...............................
30
SECTION 20 - COMPLAINT PROCEDURES ............................................. ...............................
31
SECTION 21 - CUSTOMER SERVICE STANDARDS, BILLING, COMPLAINTS AND
SUBSCRIBERRIGHTS ................................................................................ ...............................
33
SECTION 22 - REGULATION OF RATES AND SERVICE CHARGES .. ...............................
42
SECTION 23 - SERVICES AND PROGRAMMING ..................................... .............................43
SECTION 24 - GRANTEE SUPPORT FOR EDUCATION AND GOVERNMENT ACCESS
PROGRAEVIING ........................................................................................... .......:.....................43
SECTION25 - RECORDS ............................................................................. ...............................
47
SECTION 26 - FISCAL, SYSTEM AND PERFORMANCE TESTING REPORTS ..................47
SECTION 27. LIQUIDATED DAMAGES AND OTHER REMEDIES ..... ...............................
48
SECTION 28 - COSTS TO BE BORNE BY GRANTEE ............................. ...............................
53
SECTION 29 - FORCE MAJEURE ....................................... ..............................
54
SECTION 30 - MISCELLANEOUS PROVISIONS ..................................... ...............................
56
SECTION 31 - EQUAL OPPORTUNITY EMPLOYMENT AND AFFIRMATIVE ACTION..
57
SECTION 32 - INVALIDITY / MODIFICATIONS .................................... ...................................
58
EXHIBIT A - DEFINITIONS .............................................. .............................59
EXHIBIT B - ALTRIO APPLICATION DATED DECEMBER 13, 2000 .......................
67
EXHIBIT C - CITY'S UNDERGROUND CONSTRUCTION REQUIREMENTS .............85
EXHIBIT D - CERTIFICATE OF CLOSING ... ............................... ....................
89
ORDINANCE NO. 2144
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ARCADIA, CALIFORNIA, AWARDING
ALTRIO COMMUNICATIONS, INC. ( ALTRIO) A TEN
(10) YEAR NON - EXCLUSIVE FRANCHISE WITH A
CONDITIONAL FIVE (5) 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
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; 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, an 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
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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 state Legislature, by Chapter 262, enacted 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, enacted 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 Stat 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 in conformity 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
WHEREAS, the City is authorized to grant, renew and deny Franchises for the
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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, Altrio Communications, Inc., applied for a Franchise on December 13,
2000, which application is attached at Exhibit B; and
WHEREAS, Altrio has proposed constructing a state =of -the -art telecommunications
system and providing advanced telecommunications 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 Altrio's application, its proposed facilities design, the present and
future cable - related community needs of the City, Altrio'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. complied with the California Environmental Quality Act
(Public Resources Code section 21000 et seq.) by duly noticing its intent to adopt and by
preparing, considering and adopting a negative declaration in. connection with the adoption of
this Franchise Agreement; and
WHEREAS, Publication of this proposed Agreement has been noticed pursuant to
Section 6066 of the California Government Code; and
WHEREAS, the City has conducted a public hearing pursuant to Cal. Gov. Code §
53066.3 and hereby finds that it would serve the public interest to grant the Franchise subject to
the terms and conditions set forth herein and in the Municipal Code; and
WHEREAS, the City has determined that there will be significant positive impacts on the
community being served from the granting of this Franchise; and
WHEREAS, the City has determined that there will not be an unreasonable adverse
economic or aesthetic impact upon public or private property within the City from the granting of
this Franchise; and
WHEREAS, the City has determined that there will not be an unreasonable disruption or
inconvenience to existing users, or any adverse effect on future use, of utility poles, public
easements, and the public rights -of -way contrary to the intent of Section 767.5 of the Public
Utilities Code from the granting of this Franchise; and
WHEREAS, the City has determined that the Franchise applicant has the technical and
financial ability to perform its obligations under this Franchise; and
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WHEREAS, there is no impact on the City's interest in having universal cable service
from the granting of this Franchise; and
WHEREAS, the City has determined that societal. interests in providing two -way cable
service to residents within the City will be met by the granting of this.Franchise; and
WHEREAS, the City has determined that the operation of an additional. cable television
system in the community is economically feasible.
NOW, THEREFORE, TEE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
This Franchise Agreement (the "Franchise ") is made and entered into by and between the
City of Arcadia ( "City "), and Altrio Communications, Inc. ( "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. Pursuant to Section 3 hereof, this Franchise shall not become effective
without the Grantee signing an acceptance of the Franchise and returning of the same to the City.
(a) Franchise Granted. A non - exclusive Franchise is hereby granted by the City ( "Grantor" or
"City ") which authorizes Grantee ( "Altrio" or "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 that is part
of the Cable System.
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SECTION 3 - FRANCHISE TERM
(a) Term. The term of this Franchise shall commence upon the Effective Date and shall
remain
(b) in effect for ten (10) years therefrom. The Effective Date shall be the date that the
executed Certificate of Closing (described below) is signed by the City Attorney. Upon
and following such signature, this Franchise will be a binding agreement, with all rights
and privileges vested in the Grantee as described herein. This Franchise Agreement will
terminate on the tenth (10`h) anniversary date of the Effective Date, unless otherwise
extended pursuant to Section 4 herein where terms for a conditional extension of five (5)
years are described.
(b) Certificate of Closing. A Certificate of Closing shall be signed 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 signed and delivered to Grantee 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 has been signed by Grantee in a form attached hereto at
Exhibit D.
(2) All bonds, letters of credit, security deposits, and insurance policies required by
this Franchise have been filed with City.
SECTION 4 - CONDITIONAL FIVE -FEAR EXTENSION
A five (5) year extension shall be granted upon successful completion and compliance to the
items described in Sections 15 (a) -and (b) and Section 16 as determined by the City; provided
such completion occurs by the fifth (5th) anniversary of the Effective Date of this Franchise. The
request for a five (5) year extension shall come in the form of a letter from the Grantee no later
than six months after completion of all of Grantee's obligations under Sections 15(a) and (b) and
Section 16. Extension approval shall be by formal action of the City Council and shall not be
unreasonably withheld. The Grantee shall not be required to submit an application or pay an
application fee for this one -time extension.
In addition to the City's right to extend the term of this Franchise as provided in this Section 4,
City may require Grantee to upgrade Grantee's Cable System to incorporate State of the Art
technology (the "State of the Art Option "). In order to exercise the State of the Art Option, City
shall first review Grantee's then existing Cable System. There shall not be more than one (1)
such review during the term of this Franchise. Such review may not commence prior to the
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seventh (7th) or after the ninth (9th) anniversary of the Effective Date of this Franchise. Such
review shall, at a minimum, take into account the following:
(1) characteristics of the Grantee's then existing Cable System;
(2) the State of the Art;
(3) the additional benefits that may be provided to Subscribers by the State of the Art;
(4) the marketplace demand for the State of the Art,. taking into account any associated
rate increase and any additional factors deemed relevant by City or Grantee; and
(5) the needs of the community with respect to the support of Public, Educational, and
Governmental access facilities and operations.
In conducting such review, the City shall be entitled to use and rely upon any and reports
required by this Franchise, including, without limitation, Subscriber Complaints, records of
performance tests and the opinion survey report, and Grantee shall cooperate in undertaking such
review by providing information that is reasonably requested by City of Grantee. In addition, the
City may conduct assessments of need regarding support of PEG access facilities and operations
through such appropriate methodologies of its choosing such as, but not limited to, community
surveys, opinion polls, economic impact evaluations, and/or other research methods. If, after
conducting such a review, City determines that the exercise of the State of the Art Option may be
warranted, City shall hold a public hearing, which may be continued from time to time, to enable
the general public and Grantee to comment and present evidence. Grantee shall be provided with
notice of such hearing in order to be present and participate. Sixty (60) days after receiving
notice from the City, Grantee shall submit a report to City indicating -the following:
(i) Information reasonably available to Grantee identifying Cable Services reported in
cable industry trade journals that are being commonly provided on an operational
basis, excluding tests and demonstrations, to communities in the United States
with comparable populations, that are not provided to City;
(ii) Any specific plans for provision of such new services by the Grantee; and
(iii) The need for and the type and amount of additional PEG access support for
facilities and operations beyond the level of support described herein at Section
24(b).
If, following such hearing, the City determines that the exercise of the State of the Art Option is
warranted, it may order the State of the Art be implemented ( "the Order). The Order shall, at a
minimum, address the following:
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(i) Cable System performance and quality of service; and
(ii) a listing of any cable services not then being provided to Subscribers within the
City that are considered technically and economically feasible and for which there
is a demonstrated need among the Grantee's Subscribers in relation to the cost
thereof.
The Order shall be in writing and shall set forth the basis for City's decision, including a
reasonable period of time for Grantee to install and implement State of the Art technology and/or
to implement any new services, and/or impose any new fees or surcharges. The installation
and/or implementation of any such technology, services, or assessments shall not be required to
be completed prior to the 10th anniversary of the Effective Date of this Franchise. The Order
shall be delivered to Grantee within thirty (30) days of the hearing by the City.
If any noncompliance with the Franchise is found during any review under this Section 4, or if
the Order is not fully complied with by Grantee within the timeframe provided therein, City may
direct Grantee to correct the noncompliance within a reasonable period of time in accordance
with the provisions of this Franchise. Failure of Grantee, after reasonable notice and opportunity
to cure as set forth in this Franchise, to correct the noncompliance shall be considered a breach of
the Franchise, and City may, at its sole discretion, exercise any remedy within the scope of this
Franchise.
SECTION 5 - TERAHNATION
(a) Reservation of Rights. 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; or
(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 or is not cured pursuant to the
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notice of intent to terminate, the City Manager shall transmit all material pertinent to the
termination to the City Council for 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 terminate 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 termiriate'the Franchise.
(d) Termination .Rights. Unless the City's action to terminate 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 terminate 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 whenever acquired and may
be collected, without limitation or resort to further process, including without limitation, Section
27 hereof, 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 terminate 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:
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(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 23
respectively. Upon extension of this. Agreement, for years ten (10) through fifteen (15) 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 47 U.S.C.
Section 546 as it may be amended or supplanted.
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.
The payment for each calendar quarter must be accompanied by a report that contains the
following information relating to that calendar quarter:
(1) The total gross receipts collected by Grantee, - and an itemization of the various
categories of revenues collected monthly during that calendar quarter.
(2) Total percentage of Subscribers within Arcadia compared to the total number of
Subscribers served by Grantee's Headend, and such related information concerning
those Subscribers as may be required by City to verify and validate Grantee's
calculations as to the proration of revenues, such as those derived from advertising
sales and home shopping commissions, among City and other local franchising
authorities served by the Grantee.
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(3) The methodology used by Grantee in determining any proration of revenues, such as
those derived from advertising sales and home shopping commissions; among City
and other local franchising authorities that constitute the Regional Area. The City
recognizes that Subscriber counts are critical and confidential data in a competitive
telecommunications market and will not require their submission in support of these
calculations; Altrio recognizes that the City must- be able to review certain
confidential records that do support these figures and will make such evidence
available for inspection to City officials on a confidential basis.
No acceptance of any payment by City may be construed as an accord that the amount is in fact
the correct amount, nor may acceptance of payment be construed as a release of any claim the
City may have against Grantee for any additional sums payable under the provisions of this
Franchise.
Payments pursuant to this section shall not be considered in the nature of a tax, but shall be in
addition to any and all taxes now or hereafter applicable to a Franchisee or licensee by law.
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) Franchise Fee Itemization. Franchise fees may be identified on Subscriber invoices in
accordance with 47 U.S.C. § 542(c) et. seq.
Grantee reserves all rights to identify Franchise fees in accordance with .federal law. The
Franchise fee, when itemized, shall be included in Gross Revenues.
(c) Prorated Calculations. In computing Gross Revenues from sources other than Subscribers,
including but not limited to revenue from the sale of advertising, lists of the names and addresses
of Grantee's Subscribers, home shopping services, guides, or the lease of channel capacity over
its Cable System, which revenue is attributable both to the operation of Grantee's Cable System
inside the City anand in areas outside the City, the aggregate revenue received by Grantee from
such other sources shall first be multiplied by a fraction, the numerator of which shall be the
number of Grantee's Subscribers in the City as of the last day of the relevant billing period and
the denominator of which. shall be the number. of Subscribers within the Regional Area served by
Grantee for that specific service as of the last day of such period, and then assessed for Franchise
fees. For example, if Altrio has 50,000 Subscribers -in the Los Angeles Regional Area, and
Arcadia represents 5,000 of these, Altrio would be required to pay the City Franchise on
proration of 5,000150,000, or 10% of Gross Revenues from sources other than Subscribers.
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(d) Exceptions. 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 Educational Access Programming 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.
(e) Late Fee Penalty. If payments are late, Grantee shall pay interest to the City on the amount
owed at the rate of one percent (1 %) per month or fraction thereof compounded monthly.
(f) 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 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 fox 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.
(g) Access to Pooks. Upon 72 hours prior written notice, the City shall have the right to inspect,
during normal business hours, all books, receipts, plans, financial statements, contracts, service
Complaint logs, performance test results, records of requests for service, codes, and other like
materials in the possession or control of Grantee which may be directly relevant to the Grantee's
compliance with the requirements and obligations imposed upon it by this Franchise, or
applicable law. The right of the City. to inspect under this Section extends to the materials
identified above that are in the possession or under the control of the Grantee, and of any other
Person responsible for managing and administering the Cable System. Upon a request for
confidentiality by the Grantee, information obtained by the City pursuant to this Section shall be
made available only to Persons needing access to the materials in order to perform their
responsibilities on behalf of or for the City and, as to all other Persons, shall be treated as.
confidential to the extent permitted by law. City shall promptly notify Grantee whenever a third
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party seeks access to Grantee's confidential information, including requests under the California
Public Records Act or by subpoena. City shall promptly notify Grantee of such access requests
to permit Grantee to object to the release of the information requested or subpoenaed, and to file
an action in an appropriate court to prevent the release of the record. Grantee shall indemnify,
protect, hold harmless, and defend the City, and its officers, boards, commissions, officials,
agents and employees, from all costs and expenses related to preventing release of Grantee's
records, including attorney's fees incurred by City or awarded to a third parry. Grantee also
maintains the right to require that the City execute a confidentiality and/or non - appropriation
agreement prior to gaining access to any materials under this section. Nothing in this section
shall be read to require Grantee or City to violate the privacy rights as set forth in 47 U.S.C.
Section 551, or the California Public Records Act.
(h) Bundled Services. In the event Grantee offers services through the Cable System that are
not subject to the Franchise fee, the City recognizes that Grantee may allocate revenue between
Cable Services (which are subject to the Franchise fee) and non -Cable Services (which are not
subject to the Franchise fee but may be subject to other fees and/or taxes) when.these two types
of service are bundled together in a discounted package offered to Subscribers. Due to the
ambiguities that exist at the time of this Franchise award, both in the business and regulatory
environment on this issue, the City and the Grantee hereby reserve all rights, claims, defenses
and remedies regarding the City's authority to impose or enforce requirements related to the
revenue allocation methodology to be used when Cable Services and -non -Cable Services are
offered to Subscribers in a discounted package, for the purpose of calculating Franchise fee
payments.
During the term of this Franchise, if Grantee, or any of its Affiliates, bundles or combines the
sale of some or all of its Cable Services with non -cable services, and it becomes necessary to
separately compute the amount of Gross Revenue attributable to Cable Services in order to
determine the amount of fees -or PEG access support fees that are payable to the Grantor, then the
following methodology will be applied:
(1) Grantee must calculate and report annual Gross Revenue, the fees thereon, and
any applicable PEG access support fees, based upon proportionality, i.e., the
amount of Gross Revenue to be attributed to each of such services must be in the
same proportion that the price of each service, as determined on a stand -alone
basis, bears to the aggregate of the stand -alone prices for those services when
purchased on an unbundled basis.
(2) Grantee agrees that it shall not structure any bundled pricing so as to intentionally
or unreasonably cause a reduction in Gross Revenue against which Franchise fees
or other municipally- imposed and proportionally- derived, taxes,. other fees, or
surcharges may be imposed.
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Further, in the event that the City believes that Grantee has unlawfully, unfairly, or in violation of
this Franchise allocated revenue between Cable Services and non -Cable Services for the purpose
of calculating Franchise fee payments, the City and the Grantee shall meet upon advance notice
from the City to discuss the allocation methodology. If the City and the Grantee cannot agree on
the matter within a reasonable period of time, the City and Grantee shall submit the matter to a
mutually - agreeable third party for mediation. The cost of the mediation shall be shared equally
between the City and the Grantee. If the mediation is unsuccessful or if the City and the Grantee
are unable to mutually agree on a mediator, then either the City or the Grantee can bring the
matter to a court of competent jurisdiction, or pursue any other remedies available to them in this
Franchise or by law.
SECTION 8 - INSURANCE
(a) hold harmless Agreement. Grantee shall indemnify, hold harmless, and defend the City,
its officers, officials, boards, commissions, attorneys, consultants, 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, or 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 Educational and Government Access Programming required by this Franchise.
(b) Defense of Litigation; Payment of Judgments and Claims. Grantee shall at the sole risk
and expense of Grantee, upon demand 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 officials, officers, boards,
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commissions, agents or employees, and arising out of or pertaining to the exercise or the
enjoyment of this 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 litigation.
Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order,
directive, or demand tendered, made or issued against Grantee, its officers, officials, boards,
commissions, attorneys, consultants, 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 the City shall neither make nor 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 Grantee, which consent shall not be reasonably withheld. Grantee's
obligations under subsections of Sections 8(a) and (b) shall continue beyond the expiration or any
other termination of this Franchise.
(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, officials, boards, commissions, agents, attorneys, consultants, and
employees,. shall be named as additional insureds under the required insurance policies. Where
such insurance is provided by a policy that 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 to the
City.
(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 -S 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
(a) Cash Surety. The City requires a cash deposit of five dollars for every Subscriber up to a
maximum of ($30,000) to be kept by the City as surety for performance of the Grantee during the
life of this Franchise. On January 1 of each year during the term of this Franchise, the Grantee
shall submit a check in the amount equivalent to $5.00 for every new Subscriber gained in the
preceding year. Once the total amount of deposits reach the sum of thirty thousand dollars
($30,000), said deposits shall cease. The City Manager shall have the unconditional right to
withdraw sums for any due compensation, liquidated damages, penalties, or fees pursuant to
Section 27 of this Franchise. No interest shall be paid to the Grantee on said sums.
(b) Performance Bond. The second component is a Performance Bond as surety for
performance of the Grantee during the life of this Franchise. The amount of said bond shall be
no less than five thousand dollars ($5,000) dollars and no more than eighty thousand dollars
($80,000). Within thirty (30) days after the execution of this Franchise, the Grantee shall deposit
with the City Treasurer such a Performance Bond in the amount of five thousand ($5,000)
dollars, In subsequent years during the term of this Franchise, the amount of the bond shall be
increased by the Grantee by an amount commensurate with number of Subscribers (the ratio of
the amount of said Bond to total system Subscribers shall be $10.00 per Subscriber). Such bond
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shall in such a form as to be acceptable to the City Treasurer and the City Attorney; provided;
however, the bond shall give the City Manager the unconditional right to draw sums thereupon
for the aforesaid payments pursuant to Section 27 of this Franchise.
(c) Self - replenishing. Such bond shall remain in effect until the termination of this Franchise.
In the event that, and every time that, the City shall draw on said bond, the Grantee shall
replenish the amount thereof within ten (10) days thereafter so that the amount of such security
fund remains at the amount prior to the draw -down or up the maximum eighty thousand
($80,000) dollars whichever is less for the term of this Franchise.
(d) Interest. In the event of termination or forfeiture of this Franchise, such cash deposit or
bond and all interest shall become the property of-the City.
(e) 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 and Section 16, Construction of the Cable System. 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. Tim& 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 City official, officer, employee,
agent, attorney, consultant, department, board, or commission shall be transferable by the City to
any other City officer, official, employee, agent, attorney, consultant, department, board, or
commission. City shall notify Grantee within a reasonable period after such delegation.
(c) Provision Violations. Except to the extent that City, or any City official, officer, employee,
agent, attorney, consultant, department, board, or commission violates the provisions of this
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Franchise, the Grantee shall have no monetary recourse whatsoever against the City or any City
official, officer, employee, agent, attorney, consultant, department, board, or commission 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, i=unity or
authority whatsoever except applicable state and federal law regulating cable. television.
(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 Grantee's 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 this 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 and will cause the Franchise to terminate.
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(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 (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 conducted
pursuant to subdivision (f) above 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, Transfer or sale 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.
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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 purchase, condemn, acquire, takeover and hold and the Cable System of the
Grantee located in the Franchise Area.
(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 Cable 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.
(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, the City shall notify the Grantee of its intentions to acquire. the Cable System within one
hundred twenty (120) days of the proposed acquisition date. Upon notification of the intent to
acquire the Cable System, the City and the Grantee shall attempt to mutually agree upon the
value of the Cable System in accordance with the provisions of this Section and 47 U.S.C.
Section 547. 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 47 U.S.C. Section 547. 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.
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(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, by 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 immediately draw upon on the security fund as. prescribed in Section
9, without resorting to the default process provided in Section 27.
(g) Granting of Other Franchises. The City reserves the right, at. its discretion, to grant
Franchises with any other Person(s). under the terms of the Right -of -Way Ordinance.
SECTION 13 - TECHNICAL PERFORMANCE AND EQUIPMENT STANDARDS
The Cable System shall be designed, installed, maintained and tested in accordance with
applicable law, including, without limitation, the- technical performance standards required by
Subpart K of Section 76 of the FCC Rules and Regulation as they now exist or may be amended
in the life of the Franchise. 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
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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
(3) this Franchise is terminated, canceled, or shall expire, then the Grantee shall, at
the option of the City, and at the expense of Grantee, within at least one hundred
twenty (120) days from written notice by the City, restore the Public Rights -of-
Way or other area from which the property has been removed to the condition
reasonably comparable to that which existed prior to the erection or Construction
of the equipment, including any improvements made to such property subsequent
to the Construction or installation of the Cable System as approved by the City
Manager.
(d) Abandonment. The City Council may, upon written request thereof by the Grantee,
approve the abandonment or sale of any such property in place by the Grantee under such terms
and conditions as the Council may propose. Upon abandonment of any such property, Grantee
shall cause to be executed, acknowledged, and delivered to the City such instruments as the City
Attorhey shall prescribe and approve, transferring and conveying the ownership of such property
to the City.
SECTION 15 - SYSTEM DESIGN AND CAPACITY
(a) Minimum Capacity. Subject to the Force Majeure provisions of this Franchise,. Grantee
shall construct a Cable System which strictly conforms, at a minimum, to that proposed by
Grantee in its application dated December 13, 2000 including without limitation one with a
minimum upper operating frequency- of Eight Hundred Sixty (860) MHz hybrid fiber coaxial
(I-FC) bi- directional cable distribution system, capable of delivering at least seventy -eight (78)
analog cable channels, forty -seven (47) digital channels, and other services.
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Grantee shall pass one hundred percent (100 %) of all Dwelling Units and residential areas
existing within the City upon system completion subject to the density factor described; in
Section 16(c).
(b) Two -Way Services. Upon activation of the system the Cable System shall have the
activated capability throughout the entire Cable System to transmit Cable Services in two
directions simultaneously with the installation of return modules. Grantee agrees to activate
Two -Way capacity in Construction phases as the Cable System is constructed. The City and the
Grantee recognize the provision of Two -Way, communications capability is an important means
to connect public, government and educational institutions and to functionally provide the
equivalent of institutional network services in a cost - effective manner. Two -Way services shall
be instituted when (1) it is consistent with federal and state laws, and (2) it is economically and
technically feasible, provided, however that it shall be the Grantee's burden to demonstrate to the
City's satisfaction that it is not economically or technically feasible to institute such service,
should the City request such proof.
(c) Subscriber Compatibility. Grantee shall make good faith efforts to eliminate Subscriber
Complaints and confusion in attempting to integrate cable -ready television sets, VCRs and the
Cable System Converters.
(d) Parental Control Devices. Grantee shall provide Subscribers, upon request, with a parental
control locking device or digital code that permits inhibiting the viewing of parentally- designated
channels.
(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 I /2)
continuous hours during a commercial power interruption.
(2) Upon completion of the Construction, 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.
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(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 City 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.
(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) The emergency override system shall also be designed so as to permit the
introduction of emergency information on the City government channel.
(4) Grantee shall comply with all federal requirements for the Emergency Alert
System, and will cooperate with local authorities to institute appropriate
procedures for testing and activation of such EAS services on the system.
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SECTION 16 - CONSTRUCTION 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.
Grantee shall construct the Cable System in a series of areas within the City (Construction
Segment Areas or "CSA's "); to be completed in semi - annual increments. Each CSA shall be
portioned as a percentage of total Cable System Construction and shall be no less than five
percent (5 %).of the total Cable System mileage.
The City and Grantee, or representatives of each, shall meet and discuss on a semi - annual basis
throughout the initial ten -year term of this Franchise in order to discuss the past, ongoing and
future build -out of CSA's. The first such meeting shall occur before September 15, 2001 and
shall cover the first CSA to be Constructed. Thereafter, each meeting shall occur prior to March
15 and September 15 of each following year during the first ten years of this Franchise (or until
Cable System Construction has been deemed complete by the City as described below), and each
such meeting shall coyer at least one additional CSA within which the Cable System will be
Constructed by Grantee. At each meeting, the Grantee shall present to the City a written goal for
the covered CSA phase(s), which goal shall include information reasonably required by the City,
including, but not limited to verification of the status of any permitting or other approval
processes required for the build -out of such upcoming CSA(s), any anticipated delays that
Grantee may expect to experience relating ' thereto, and the estimated date for completion of
Construction of the Cable System within the covered CSA(s). The Cable System shall be
completed within each CSA within one hundred eighty (180) calendar days from the meeting
covering such CSA. Upon completion of Construction of the Cable System within each CSA,
the City shall issue a written Notice of .Completion. Prior to issuance of such Notice of
Completion, the City may require of Grantee documentation and evidence of testing that the City
determines is necessary to verify Construction of the Cable System within such CSA.
Notwithstanding any provision herein to the contrary, the Cable System shall be completed
throughout City within ten (10). years from the Effective Date of the Franchise. Completion of
Construction with respect to each CSA and with respect to the entire City shall be deemed to
have occurred upon the issuance of a Notice of Completion by City for such CSA and all CSA's
respectively and shall be defined as: (1) the ability to provide up to the aforesaid capacity to all
Dwelling Units within the applicable CSA and throughout the City, respectively (excepting only
those low- density exception areas as may hereafter be established by Grantee pursuant hereto to
the satisfaction of City, or, to the extent prevented by the denial of access for Construction by
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property owners); and (2) the complete restoration of the Streets, public and private property.
Each failure by Grantee to complete a given CSA within the time specified herein shall be a
separate event of default that shall, in addition to all other remedies, be separately subject to the
liquidated damages provisions of this Franchise.
In performing any Construction, Grantee shall also use equipment generally used in high- quality,
reliable, modern systems of similar design, including but not limited to modulators, antennae,
amplifiers and other electronics which permit and are capable of passing through the Signals
received at the Headend without substantial alteration or deterioration. This obligation shall
include the obligation to install equipment-to retransmit in stereo satellite and local broadcast
Signals provided in stereo.
(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 dwelling units within such
subdivisions not later than six (6) months after the Cable System is completed pursuant to
Subsection 15 above.
With respect to any subdivision that commences Construction after the Effective Date of the
Franchise, the Grantee shall install its Cable System at the time the public improvements for such
subdivision 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) Dwelling Units per square mile plus all areas annexed
thereto with a density of at least forty (40) Dwelling Units 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.
(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 an d transmission or distribution
facilities of the respective public utilities providing telephone, communication, or electric .
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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 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 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 each Construction phase within one - hundred- twenty (120) days following completion of
Construction. For Cable System upgrading, 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. Grantee will provide complete as -built
maps of the system within 180 days following completion of the entire Cable System
Construction.
(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.
(h) Required Permits. Construction, operation, or repair of. m
a Cable System shall not comence
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 permits so issued, the City may impose
as a condition of the granting of the permit such conditions and regulations as may be reasonable
and 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.
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Grantee agrees to abide by all policies and requirements of the City's various regulatory
departments (Public Works and Transportation Department, Developmental Services
Department, Planning, etc.). A copy of the current Construction policies of the City's Public
Works and Transportation Department is attached at Exhibit C. These and other Construction-
related policies are subject to change at any time. City expects Grantee to keep abreast of
Grantee's policies and copies of current Construction policies are kept on file at the office ofithe
City Clerk. and in the Public Works and Transportation Department. City further assures that
these telecommunications Construction - related policies apply to all telecommunications
providers and are enforced by the City on an equitable and non - discriminating basis.
(i) Restoration of 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 damaged the Public Rights -
of -Way, public property or private property. Public property and Streets must be restored toIthe
satisfaction of the City or to a condition reasonably comparable or better than before the
disturbance or damage occurred.
(j) 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 Public Works 'and
Transportation Department, and any tree trimming must be performed in strict accordance with
applicable law, including the City Municipal 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.
0) 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) Right of Inspection of Construction. The City shall have the right to inspect all
Construction or installation or other physical work performed by Grantee in connection withl the
Franchise, and to make such tests as it shall find necessary to ensure compliance with the terns
of the Franchise and other pertinent provisions of law. City agrees to arrange for such tests as
may be necessary only in coordination with Grantee to assure the minimization of interference to
the operation of the system and inconvenience to Subscribers.
(n) Construction Completion. Grantee shall provide a written certificate to the City Clerk
within thirty (30) days of completing each Construction phase. The Grantee shall also notify the
City in writing when 100% of the Construction is complete. Any Construction or schedule
sm
required under this section shall be considered complete only upon written Notice of Completion
from the City to the Grantee stating that the work has been completed in a manner satisfactory-to
the City as specified in this Franchise. No Construction requirement or schedule shall be
considered as being complete until said Notice of Completion has been executed by the City. In
the event City 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 Cable 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.
(o) 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 failure to obtain utility pole attachment clearances that 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.
(p) Multiple Dwelling Units. All Construction schedules heretofore detailed in this Franchise
agreement shall apply to multiple dwelling units ( "MDU ") as defined in the City 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 City may
extend the Construction schedules relative to such MDU 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. If access to an MDU is applied for and denied, Grantee shall not be required to
service such MDU and such units shall not be included in Construction area.
(q) Construction Damages. By acceptance of this Franchise Agreement, Grantee agrees that
failure to comply with any time requirements referred to in Section 15(a), 15(b), Section 16 or
any combination thereof, or within such time as may be extended by the City Council, shall be
cause for City 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 such acts required to be done.
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SECTION 17 - STANDARD I NON - STANDARD INSTALLATIONS
Subject to the limitations contained in Section 15, Grantee shall extend Cable Services to any
existing or new Dwelling Unit located in any residential area of the City including those
Dwelling Units 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.
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. During the
period that the Grantee elects to construct, 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 Control 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, as required under provisions described in
Section 5 or 12 herein and as necessary to maintain continuity of Cable Services, assume
management and operation 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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(c) Management During 'Fake -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 Cable System during a take -over period, the
Operator will continue to manage and operate the Cable System at the then current level of
service.
In the event the Operator materially modifies the operation and fails to maintain continuity of
Cable Service, the privileges extended by this section to said Operator will be removed.
SECTION 20 - CONIPLA.INT'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 Cable 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
Subscriber'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 the 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.
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(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.
(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 arising within 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 fromithe
City. Such report shall include all the following information:
(1) the nature of the Complaint which precipitated the special test;
(2) what Cable System component was tested;
(3) the equipment used and procedures employed in such testing;
(4) the names of the individuals performing and witnessing the testing;
(5) the date, time, and location of testing;
(6) . the results of such test; and
(7) the method in which such Complaints were resolved.
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(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.
(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.
SECTION 21 - CUSTOYIER SERVICE STANDARDS, BILLING, COMEPLAINTS 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 City 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.
"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,
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and severe or unusual weather conditions. Those conditions which are 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 Construction of
Cable System.
(c) Grantee agrees to meet the following standards:
(1) Upon achieving a sustaining Subscriber count of 5,000 customers, Grantee shall
establish and 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 within the City, and open during all usual business hours, but in no case
less than forty (40) hours per week. Until such Subscribership is achieved,
Grantee shall maintain a convenient customer service center in the region.
(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 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 Subscriber
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.
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(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:
i
(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 1(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):
(a) 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.
(b) Within one (1) day of receiving any request for service by any single
Subscriber identifying a'complete outage in Cable Service.
(c) 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. i
i
(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
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business hours or outside the parameters of response time outlined above for the
express convenience of the Subscriber.
(a) 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.
(b) 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.
(6) Grantee will make every effort to not destroy or tamper with Customer Premises
Equipment owned or deployed by a customer or his/her telecommunications carrier to originate,
route, or terminate telecommunications within the Subscriber's home or progerty.
(e) Communications between the Grantee and its Subscribers.
(1) Notifications to Subscribers -
(a) 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:
(i) products and services offered;
(ii) prices and options for programming services and conditions of
subscription to programming and other services;
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(iii) installation and service maintenance policies;
(iv) instructions on how to use Cable Service;
(v) channel positions of programming carried on the Cable System;
(vi) billing and Complaint procedures, including the address and
telephone number of the City;
(vii) charges, refunds and credits procedures;
(viii) disconnection and termination of service procedures;
(ix) customer service telephone number and office hours; and
(x) 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
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 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.
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(f) 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:
(a) A list of each service or package received for that billing period;
(b) The rate or charge for each service or package received;
(c) The period of time over which said services are billed;
(d) The total charges due for the monthly.period, separate from any previous
balance due;
(e) Credits posted during the month;
(f) A specific date by which payment is required; and
(g) 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.
(4) The Grantee must notify the Subscriber that he or she can remit payment in Person
at the Grantee's office located in the City and inform the Subscriber of the address
of that office.
(5) Every Subscriber 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
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(16th) day from the time the bill for services was mailed to the Subscriber. 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 Subscriber 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.
(g) Refunds
(1) Refund checks will be issued promptly, but no later than, either:
(a) the Subscriber's next billing cycle following resolution of the request or
thirty (30) days, whichever is earlier, or
(b) in . cases involving the return of the equipment supplied by the Grantee if
service is terminated for any reason, within thirty (30) days.
(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,
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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.
(j) Equitable Rates and Discounts. Within twelve (12) months of the Effective Date of this
Franchise, Grantee shall study. and meet with. City regarding a discount on Basic and Cable
Programming Service 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.
(1)_ A/B Switches. The Grantee shall offer Subscribers the option to receive an A/B switch' (to
receive broadcast television without cable hookup), 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 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 clearly identifying their affiliation with Grantee or such contractors. j
(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.
I
(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.
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(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.
(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 therefore; 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 47 U.S.C. Section 551 and this Franchise.
(4) Revealing Subscriber Preferences.
c (a) Grantee 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 Grantee and Subscriber.
(c) The Grantee shall not condition the delivery or receipt of Cable Services to
any Subscriber on any such consent.
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(d) Such 'a Subscriber may revoke without penalty or cost any consent
previously made by delivering to the Grantee in writing a substantial
indication of his intent to so revoke.
(5) Revealing Subscriber Lists.
The Grantee 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
Grantee may use, its Subscriber list as necessary for the Construction, marketing,
and maintenance of the Grantee's services and facilities authorized by this
Franchise, and the concomitant billing of Subscribers for said Cable Services; and
further, provided that consistent with applicable law, City may use Grantee's
Subscribers list for the purpose of communication with Subscribers in connection
with matters relating to operation; management, and maintenance of the Cable
System, except in 47 U.S.C. Section 551.
(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 Grantee:
(a) Officers, directors, employees and agents of the Grantee;
(b) General and limited partners of the Grantee;
(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 Grantee;
(d) Any affiliated or .subsidiary entity owned or Controlled by Grantee, 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 Grantee, 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 Grantee.
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. The City and Grantee agree
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that at the time of the Effective Date of the Franchise, such potential rate regulatory authority of
the City does not apply given the Grantee's competitive status.
(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 hates and Charges. Grantee shall provide written notice to the City and
Subscribers at least thirty (30) days in advance of any proposed changes in rates and charges
within the Control of Grantee.
(c) Regulation of Equipment for Bearing Impaired. To the extent authorized by law, the City
reserves the right to require and regulate the installation or rental of equipment that facilitates the
reception of Basic Cable Service by hearing impaired individuals.
SECTION 23 SERVICES AND PROGRAMI UNG
(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 EDUCATIONAL 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
M911
not provided, shall subject the Grantee to applicable remedies and penalties for violations of the
Franchise.
(a) Access Channels.
(1) The Grantee shall dedicate at no charge to the City or Subscribers up to a
maximum of four (4) downstream video channels on the Cable System for the
provision of Educational and/or Government Access Programming.
(2) The Grantee shall electronically interconnect with the City's local cable
programmers who current use the incumbent cable television provider distribution
system (Arcadia Unified School District and the City of Arcadia) at a point to be
determined by the City and Grantee which may include the programmers' point of
origination. These primary origination points are:
a. City Hall, 240 W. Huntington Drive
b. School District Headquarters, 234 Campus Drive
(3) The Grantee may not, except as provided under the Cable Act, exercise any
editorial control over the use of channels set aside for Educational ` and
Government Access Programming.
(4) The Grantee shall provide all Educational and Government Access Programming
channels to all Subscribers as part of the lowest Tier or level of Basic Service
Tier.
(5) Grantee agrees to allow PEG programming on channel designations that are
negotiated in good faith with the City taking into consideration the current
community needs and practices (including the channel of the City's channels on
the incumbent's Cable System as of the Effective Date of this Franchise). City
shall consider all reasonable circumstances, including contractual obligations that
may prevent Grantee from relocating PEG channels to meet or alter the City's
desired channel designations. As long as these circumstances are clearly
presented to the City in writing prior to the 180th day from a request to relocate,
or activate a new PEG channel, City shall waive the requirement that the Grantee
cablecast PEG programming on the same channels as the City's, incumbent cable
Operator.
(6) The City shall have sole responsibility for the programming of the PEG channel(s)
provided by the Grantee, including without limitation, the carriage of
noncommercial programming on the channel(s) and the establishment and
administration of all rules, regulations and procedures pertaining to the use and
scheduling of the programming presented over the channel(s). - As part of
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noncommercial programming, the City may permit commercial endorsements to
acknowledge funding sources.
(7) Grantee agrees to make reasonable and good faith efforts not to relocate the City's
two primary PEG channels from their existing channel locations for the life of the
Franchise. If relocation becomes necessary at the discretion of Grantee, Grantee
agrees to provide at least 60 days notice regarding channel repositioning and will
provide promotional support to advise Subscribers of the new location.
Any request from the Grantee to use any fallow capacity designated for PEG Access must be
submitted in writing to the City. Council. The City Council shall approve the petition from the
Grantee to use fallow channel capacity if it finds that: (i) the utilization of the channel is -as
represented; and (ii) the Grantee has not acted in violation of any of the provisions of the
Franchise regarding utilization of the channel. After approval, the Grantee may continue to
utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is
required to be designated for PEG purposes pursuant to the provisions hereof.
Grantee must relinquish its use of either or both of the City's two reserved channels within 90
days after receipt of written notice from the City that the access channel capacity will be used for
additional public, educational, or governmental programming.
(b) Capital Grants. Grantee shall pay City $30,000 on the first anniversary of .the Effective
Date ofAhis Franchise; and on each anniversary of the.Effective Date thereafter, an amount equal
to $.55 (55 cents) per month per Subscriber based on actual collections with a total payment not
to exceed $393,000 during the life of the Franchise. Should Grantee not make payments totaling
$393,000 by the tenth (10th) anniversary date of the Effective Date of this Franchise, Grantee
agrees to pay the balance remaining in a lump sum payment on such tenth (10th) anniversary
date. Grantee reserves all rights to identify and itemize such capital grants on Subscriber bills,
consistent with federal law.
During the first ten years of the Francluse term, 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 upon
the following quarterly franchise fee payment due date. Grantee may comment upon City's
certification of need and provide recommendations to improve its effectiveness, but may not
withhold the payment based on such comments or recommendations. -
Subsequent grants beyond the tenth year shall be subject to the State of the Art provisions for
extension of payments described herein in Section 4.
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(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 within active services areas, 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 from
such facilities within active service areas.
(d) Change In Technology. In the event Grantee makes any change in the Cable System and
related equipment and facilities or in Grantee's Signal delivery technology, which directly or
indirectly affects the Signal quality or transmission of Cable services or programming, Grantee
shall at its own expense take necessary technical steps or provide necessary technical assistance,
including the acquisition of all necessary equipment and full training of Cable Personnel, to
ensure that the capabilities of Cable services are not diminished or adversely affected by such
change. For example, this provision shall apply if the Cable System is converted from an analog
to a digital format, such that the Cable Channels must also be converted to digital in order to be
received by Subscribers.
(e) PEG Interconnections. Grantee acknowledges that it is the City's goal to further, the
community's needs and interests by providing for interconnection of PEG Channels between the
City and surrounding communities as may be developed among participating entities in the
region. Therefore, when the Downstream PEG Channels, described in Section 24(a), are
activated, Grantee agrees to participate in such PEG Channel interconnection that may be in
place as of the Effective Date or which may be developed, that will facilitate the sharing of PEG
programming between and among participating members. In addition, the City shall have the
right to use any PEG-Channel for PEG programming provided to it through an interconnect.
(f) Institutional Network (I -Net). In lieu of a separate I -Net that City might otherwise require,
Grantee shall provide the City, in the form of in -kind support to be determined by the Grantee, an
amount of telecommunications services totaling up $55,000 over the life of the Franchise for the
purpose of fostering the City's information technology and telecommunications needs. A plan
for the allocation of such services shall be developed in good faith between the City and the
Grantee by the first anniversary date of the Effective Date of the Franchise.
(g) Capital Grants Not Offset Against Franchise Fee. In the event any capital funds in
support of Educational and/or 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 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.
SECTION 25 - RECORDS
(a) Within (30) days of receiving a written request from the City, Grantee shall provide a report
of the following:
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).
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 such non - confidential books, records, maps, plans, 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 to request copies of said non - confidential documents, which shall be provided
at the Grantee's sole cost and expense.
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 that it has obtained from the
Grantee which the Grantee has claimed is proprietary and/or confidential, the City shall notify the
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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 that shall
include:
(a) 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;
and
(b) 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.
(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) Special Reports Upon Request. 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)
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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(S) 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(S) FOR THE FOLLOWING CONCERNS:
1. DAMAGES FOR DELAYS IN CONSTRUCTION SCHEDULE.
SUBJECT TO THE PROCEDURES HEREIN, CITY, 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:
(a) GRANTEE SHALL CONSTRUCTION ITS CABLE TELEVISION
SYSTEM IN ACCORDANCE WITH THE CONSTRUCTION
SCHEDULES SET FORTH IN SECTIONS 15 AND 16 OF THIS
FRANCHISE. GRANTEE SHALL SUBMIT SWEEP RESULTS AT A
TEST LOCATION AT THE END OF EACH TRUNK RUN iTO
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 TESTING TO CORRECT
ANY DEFICIENCIES AND REPEAT THE TEST.
CITY 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 FRANCHISE; 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
CITY SHALL RELATE BACK TO THE SCHEDULED COMPLETION
DATE.
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(b) FOR EACH MONTH OF DELAY EXCEEDING THREE (3) MONTHS
FROM THE DATE THAT ONE HUNDRED PERCENT (1000 %)
SYSTEM COMPLETION IS REQUIRED BY THIS FRANCHISE, CITY
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.
(i) 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
13 OR 20 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.
(ii) GRANTEE SHALL BE ENTITLED TO THE APPEAL RIGHTS
PROVIDED IN SUBSECTION (3)(b) BELOW.
(b) CUSTOMER SERVICE VIOLATIONS.
(i) 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 FAILED TO CURE SAID
VIOLATION WITHIN THE REQUIRED RESPONSE . TI1VlE
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.
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(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;
(ii) 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 PERIODS 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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(b) APPEAL AND PAYMENT.
IN THE EVENT GRANTEE FAILS TO RESPOND TO SAID NOTICE
OF VIOLATION WITH AN EXPLANATION FOR FAILURE TO CURE
ACCEPTABLE TO CITY, OR TO CURE THE VIOLATION WITHIN
THE APPLICABLE CURE PERIOD, AND THE CITY CHOOSES NOT
TO -EXTEND THE APPLICABLE CURE PERIOD, CITY OR ITS
DESIGNEE SHALL SCHEDULE A HEARING TO BE HELD 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 DETERMNATION. 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 SIXTY (60) DAYS
AFTER A FINAL DECISION BY EITHER THE CITY COUNCILOR
THE HEARING OFFICER IN THE EVENT OF NO APPEAL TO THE
CITY COUNCIL. THE AFORESAID ASSESSMENT MAY. BE
LEVIED DIRECTLY AGAINST THE PERFORMANCE BOND OR
CASH DEPOSIT, OR BOTH AND COLLECTED BY CITY
IMMEDIATELY UPON SUCH 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 1 OR
INCURRED BY CITY BY REASON OF OR ARISING OUT OF SUCH
BREACH OF THE FRANCHISE. NOTHING IN THIS SECTION IS
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i
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.
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
COMEItf ESTIMATE OF CITY'S DAMAGES.
Initial g-tiesi`°'' 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; and
(c) Any and all "reasonable costs" 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). The
City 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 47 U.S.C. Section 542(g)(2). Payments
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made pursuant to this Section shall neither be deemed to be a part of the Franchise Fee, nor offset
against the Franchise Fee.
SECTION 29 - FORCE MAJEURE
Notwithstanding any other provision of this Franchise, the Grantee shall not be liable for delay in
performance of, or failure to perform, in whole or in part, its obligations pursuant to this
Franchise to the extent due to strike, war or act of war (whether an actual declaration of war is
made or not), insurrection; riot, act of public enemy, accident, fire, flood or other act of God,
technical failure, sabotage or other events, where the Grantee has exercised all due care in the
prevention thereof, to the extent that such causes or other events are beyond the control of the
Grantee and such causes of events are without the fault or negligence of the Grantee. In the event
that any such delay in performance or failure to perform affects only part of the Grantee's
capacity to perform, the Grantee shall perform to the maximum extent it is able to do so and shall
take all steps within its power to correct such cause(s). The Grantee agrees that in correcting such
cause(s), it shall take all reasonable steps to do so in as expeditious a manner as possible. The -
Grantee shall notify the City in writing of the occurrence of an event covered by this Section 29
within five (5) business days of the date upon which the Grantee learns of its occurrence.
In the event Grantee's performance of any of the terms, conditions or obligations required by this
Franchise or a Franchise granted hereunder is prevented by a unforeseeable cause or event not
within Grantee's reasonable control, such inability to perform shall be deemed excused for the
period of such inability and no penalties or sanctions shall be imposed as a result thereof
provided Grantee has notified City in writing within ten (10) days of its discovery of the
occurrence of such an event. For the purpose of this Section, the following are examples of acts
or omissions by Grantee or circumstances which shall be deemed not to be beyond the control of
Grantee and which shall not constitute excuses or justifications for violations:
(1) The failure at any time by Grantee or its officers, agents or employees to exercise
diligence in planning, organizing, arranging for or prosecuting the work of
Construction and installation, or in taking any other action necessary to permit or
facilitate the work of Construction and installation;
(2) Unanticipated cost increases or insufficiency of capital with which to take actions
necessary to comply or facilitate compliance with any of the terms, provisions and
conditions of this Franchise;
(3) Considerations relating - to economy or cost efficiency; as respects acts or
omissions by Grantee;
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(4) Delays occasioned by the failure of Grantee to diligently apply for and prosecute
any request for a required certificate, approval or consent from the FCC;
(5) Delays occasioned by seasonal changes in weather or climatic conditions, such as
rain (exclusive of catastrophic conditions in the nature of "Acts of God "). (Rain
delay shall not constitute an excuse or justification for violation except with
respect to measurable precipitation occurring on more than fifty -nine (59) days
during any period commencing July 1 and ending the next following June 30; and
only if such is the proximate cause of the violation.);
(6) Delays occasioned by the customary and usual time required to obtain approval to
attach lines to poles owned by private or public utilities or in the attaching of
cable to the poles; provided that if Grantee submits all plans. and documentation
required by private or public utility in connection with the approval to attach lines
to poles, any time consumed by such approval process which is longer than ninety
(90) calendar days following the submission of all necessary plans and
documentation shall be deemed to excuse Grantee from any violations which are
proximately caused by such delay in excess of ninety (90) calendar days;
(7) Delays occasioned by the customary and usual time required to .process and secure
approvals under zoning ordinances of City for the location of components of the
Cable System and other installations associated therewith, given the nature of the
approval required and magnitude of the project; provided that if Grantee submits
specific sites and plans for all headends, towers and transmitters to City and
requests City to perform'a single environmental analysis upon all such facilities as
the lead agency, any time consumed by such. environmental analysis which is
longer than sixty (60) calendar days during a period subsequent to the filing of the
certificate of acceptance of the Franchise shall be deemed to excuse Grantee from
any violations which are proximately caused by such delay in excess of sixty (60)
calendar days. The Grantee shall not be excused from any violation of the terms,
provisions and conditions of this Franchise, except for causes which are beyond
the control of Grantee, and except with respect to violations which have not been
contributed to or aggravated by acts or omissions by Grantee.
Except as otherwise provided above, violations caused exclusively by acts or omissions by City
- or its officers, agents or employees shall constitute an excuse and justification for failure of an
Grantee to comply with the terms, provisions and conditions of this Franchise, precluding a
determination that Grantee is in breach. However, violations as a result of such exclusive causes
shall not be deemed to excuse Grantee from other unrelated violations, shield Grantee from a
determination that it is in breach for such other unrelated violations, or bar any relief for damages
or otherwise as a result of such other unrelated breach.
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Examples of circumstances beyond the control of an Grantee which will excuse an Grantee from
violation and being in breach of the terms, provisions and conditions of this Franchise, when
such violations are caused thereby, include but are not limited to the following: strikes, acts of
public enemies; orders by military authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; floods; civil disturbances; explosions; partial or entire failure of utilities;
delays in obtaining inspection by City inspectors of more than one (1) business day (provided
that the request for such inspection shall have been given by Grantee in a commercially
reasonable manner within regular business hours, of City) and Acts of God, being defined for this
purpose as an .act occasioned by the direct, immediate, and exclusive operation of the forces of
nature, uncontrolled and uninfluenced by the power of man, and without human intervention, and
is of such a character that it could not have been prevented or escaped by any amount of foresight
or prudence, or by any reasonable degree of care or diligence, or by the aid of any appliances
which the situation of the party might reasonably require him to use.
SECTION 30 - NHSCELLANEOUS 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.
(c) Filing Contact. 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 or any extension thereof, the City
grants a Franchise consent or right to another Operator which in the opinion of Grantee (Altrio
Communications), .contains a term or terms more favorable or less burdensome that those granted
to the Grantee in this Franchise; Grantee shall notice 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 pursuant to the agreed upon meet and confer process or to take or refrain from taking
any action. City agrees to comply with Section 53066.3(d) of the California-Government Code in
the event the City grants additional Franchises.
(e) Binding Effect. This Franchise shall be binding upon the parties hereto, and their permitted
successors and assigns.
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(f) Jurisdiction. Venue for any judicial dispute between the City and Grantee arising under or
out of this Franchise shall be in Arcadia, California.
(g) Guarantee. The performance of the Grantee shall be guaranteed in all respects by Altrio
Communications. A signed guarantee, in a form acceptable to the City, shall be filed with the
City contemporaneous with the Effective Date established herein. Any substitute guarantor is
subject to approval by the City, such approval not to be unreasonably withheld.
(h) No Joint Venture. Nothing herein shall be deemed to create a joint venture or principal -
agent relationship between the parties, and neither party is authorized to, nor shall either party act
toward third Persons or the public in any manner that would indicate any such relationship with
the other.
(i) Waiver. The failure of the City at any. time to require performance by the Grantee of any
provision hereof shall in no way affect the right of the City hereafter to enforce the same. Nor
shall the waiver by the City of any breach of any provision hereof be taken or held to be a waiver
of any succeeding breach of such provision, or as a waiver of the provision itself or any other
provision.
0) No Recourse Against City. Grantee shall have no recourse whatsoever against City or its
officials, officers, boards, commissions, agents, attorneys, consultants or employees for any
losses, costs, expenses, or damages arising out of any provision or requirement of the Franchise
or because of the enforcement of the Franchise.
(k) Reasonableness of Consent or Approval. Whenever under this Franchise "reasonableness"
is the standard for the granting .or denial of the consent or approval of either party hereto, such
party shall be entitled to consider public and governmental policy, moral and ethical standards as
well as business and economic considerations.
0) Entire Agreement. This Franchise and all Exhibits represent the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof and supersede all
prior oral negotiations between the parties.
SECTION 31- 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.
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SECTION 32 - 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.
IN WITNESS WHEREOF, the parties hereto have caused this Franchise to be executed by their
respective officers duly authorized in their behalf.
ALTRIO COMMUNICATIONS, INC.
"Grantee
and Chief Executive Officer
Dated: _ , 2001
0
ATTEST:
' ?y Clerk
APPROVED AS TO FORM:
�r U ( l
City Attorney
W:
CITY OF ARCADIA
A Municipal Corporation
"City"
Mayor / U
Dated: T 12, a D? , 2001
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 1.992, the Telecommunications Act of 1996, and as may be further amended
from time to time.
"Cable Programming Services Tier" means any tier(s) that include all video programming
distributed over the Cable 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.
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"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.
"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 within the City 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;
systems; or
(D) any facilities of any electric utility used solely for operating its electric utility
(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 Commission 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.
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"Complaint" means a billing dispute or service call in which a Subscriber is notifying
Grantee of an outage and/or degradation in picture, sound or other source quality.
. "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 Cable System, the Franchise or
Grantee. 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 Cable 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).
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"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;
(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 Public Works Services
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 Cable 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 Altrio Communications, 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
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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 of programming to 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, that portion 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 Grantee; (v) advertising commissions deducted by advertising
agencies before advertising revenues are paid over to City; and (vi) 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.
"Hub" shall mean a secondary signal processing location where the signals generated at
the primary Headend are combined with locally generated signals for distribution to Subscribers
in the community.
"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 City 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.
"Node" shall mean a location in a hybrid fiber optic /coaxial Cable System where light
signals are converted into electrical signals in the downstream direction, and electrical signals are
converted into light signals in the upstream direction.
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"Normal Operating Conditions" shall mean service conditions that are within the control
of Grantee. Those conditions that are ordinarily within the .control of Grantee include, but are
not limited to, special promotions, rate increases, regular peak 'or seasonal demand periods, 'and
scheduled maintenance or Construction of the Cable System. Those conditions that are not in
control of Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions.
"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 Cable 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.
"Outage" means a substantial or complete disruption in a service.
"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).
"PEG" includes any programming where local government agencies are the primary
designated programmers and programming is non - commercial informational programming
regarding government/community activities and programs, and any programming channel where
non - profit educational institutions are the primary designated programmers.
"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.
"Pole Attachment Agreement" or "Attachment Agreement" shall mean any agreement
with the City, with any other governmental entity, or with any public utility, relating to the
Grantee's use of utility poles, ducts, or conduits.
-64-
"Property of Grantee" shall mean all property owned or leased by Grantee within the
Franchise Area in the conduct of its Cable System business under a Franchise.
"Public Channel," or "Public Access Channel," shall mean a single channel obtained by
Grantee or its designee serving the City of Arcadia for which members of the public or
community organizations may provide non- advertiser- supported and non - commercial
programming.
"Public Property" shall mean any real property owned by City other than a Street.
"Public Right -of -Way" shall mean the surface, air space above the surface, and the area
below any public Street, road, highway, freeway, lane, path, public way, alley, court, sidewalk,
boulevard, parkway, drive, bridge, tunnel, park, parkway, waterway, easement or right -of -way
now or hereafter held by City, dedicated for use by the City, dedicated for use by the general
public, or dedicated for use with Cable System operations. 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 City, 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 Dwelling Unit" or "Dwelling Unit" shall mean a home, mobile home,
condominium, apartment, cooperative unit, and any other individual dwelling unit.
"Regional Area" shall mean Grantee's entire Subscriber population served by the Grantee
or as is defined by Grantee's various ad sales and home shopping entities as it pertains to
Franchise fee calculations.
"School" means any public educational institution.
"Senior Citizen" any head of household of the age of 65 years or older.
"Service Related Activity" shall mean any activity or function for which Grantee
receives revenue from any user or Person other than a Subscriber and which is associated with
the provision of cable service over the Cable System. Service Related Activity includes, but is
not limited to, gross revenues from advertising sales, home shopping commissions, the sales of
products or services, program guide payments, payments from the lessees or purchasers of leased
access channel capacity, payments for studio and other facilities or equipment rentals, billing
services, audience promotions, and the installation, lease, rental or sale of equipment.
-65-
"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 Grantee other than per channel or
per event programming or legitimate packages of per channel or per event programming.
"Signal" shall mean any transmission of radio frequency energy or optical information.
"State of the Art" shall mean that level of transmission facilities, technical performance,
capacity, equipment, components, and service equal to that which has been developed and
demonstrated to be more modern than generally accepted and used in the cable communications
industry for comparable areas of equivalent population and market conditions, provided that it is
economically feasible in the service area at any given time throughout the term of a Franchise.
"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 who pays for cable service provided by Grantee by
means of the Cable System.
"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
(iii) the rights and/or obligations held by the Franchisee under the Franchise 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).
"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.
-66-
.Itr°l
COMMUNICATIONS INC.
13 December 2000
William Kelly
City Manager, City of Arcadia
240 W. Huntington Drive
Arcadia, CA 91007
Dear Mr. Kelly:
I am writing to introduce you to Altrio Communications, Inc., a new company led by experienced
telecommunications executives that would like to offer advanced telecommunications services to
the residents of Arcadia.
Altrio is focusing exclusively on the Southern California market: We plan to build an advanced
fiber optic and coaxial cable infrastructure to deliver a full complement of voice, video, and hi-
speed data services to Arcadia families. Altrio will provide competitive local and long distance
telephone service, both analog and digital multichannel video services, and very reliable, high-
speed internet access.
Altrio has closed its initial capital equity funding in the amount of $125 Million. On November
8, the Federal Communications Commission granted our application to serve as an open video
systems (OVS) provider. The California Public Utilities Commission is processing our
application to .operate as a Competitive Local Exchange Carrier (CLEC). The company has hired
its senior engineering and management staff and has already taken delivery of its first shipment of
fiber optic cable.
Our investors are large private equity funds and are experienced in the telecommunications area.
They are: the Frontenac Company, the Bessemer Trust, the Soros Private Equity Fund, the
Salomon Smith Barney Private Equity Fund, Bank of America Capital Partners, Royal Banks of
Canada Capital Partners and Grove Street Advisors (which invests for CaIPERS).
I have enclosed a proposal for Altrio to provide services as an Open Video Services ( "OVS ")
provider that I hope you will favorably consider. This information is based on an application that
we have already filed with the City of Pasadena, and we believe it will assist you in analyzing our
legal, technical and financial qualifications. Of course, we expect that you will have additional
requirements and information needs —we are anxious to work with you to develop the appropriate
operating agreement and regulatory structure that will enable Altrio to bring your residents the
benefits of co etitive, full- service telecommunications: We look forward to working with you
and you aff i this exciting new venture.
Rozzelle
and Chief Executive Officer
' Cindy Rowe, Management Services Officer
801 N. Brand Blvd., Suite 400 Glendale CA 91203
ACI III 'r'�'*!\o
COMMUNICATIONS INC.
App
fication,
to the.
801 N. Brand Blvd., Suite 400 Glendale CA 91203
1. The identity 'of the applicant, including all affiliates of _the
applicant.
The applicant is " Altrio Communications, Inc." ( "Altrio "), a Delaware dornestic
corporation with headquarters at 801 N. Brand Boulevard, Suite 400, Glendale, CA
91203. Altrio Communications, In is privately held by Altrio Communications, LLC
and does not have any affiliates at this time.
2. Copies of FCC Form 1275, all "Notices of _Intent" filed under 47
CFR 76.1503(b)(1), and the Order of the FCC, all of which-relate to
certification of the applicant to operate an open video system in
accordance with Section 653(a)(1) of the Communications Act and the
FCC's rules.
Please see the following attachments:
Attachment 2.1: FCC Form 1275 from Altrio Communications, Inc.; including
the "Notice of Intent" filed under 47 CFR 76.1503(b)(1) and a list of all
communities that were served.
Attachment 2.2: A copy of the Order of the FCC. of November 8, 2000 certifying
Altrio to operate as an Open Video Systems provider.
3. The area or areas of the City that the applicant desires to serve.
Altrio plans to serve residential areas of the City of Arcadia.
Altrio Communications, Inc.
Proposal to the City of Arcadia
Page ]
4. A description of the open video system services that will be
offered by the applicant over its existing or proposed facilities.
The advanced telecommunications network that Altrio plans to construct to serve Arcadia
residents is a 'new design that is unlike the existing telephone and cable television
networks in several key areas:
The network will serve primarily residential. customers with services priced and
designed to be consumed by individuals and families — not businesses.
® Unlike the existing telephone network, Altrio will continuously monitor the
telephone service availability at the customer's house, and thus will repair most
problems before they affect a customer.
® The plant will offer hundreds of video choices — including analog and digital
channels, PEG Access channels from the City of Arcadia, and. video -on- demand ,
services. In addition, Altrio will offer a full range of telephone services and
Internet access at speeds ranging from those offered by existing telephone
companies (such as "DSI2 ), to higher rates that are only available to large
businesses today.
® Altrio's network will be "open" so that a customer can choose a non - affiliated
Internet Service Provider, or an ISP service offered by Altrio.
®. The plant will be designed to evolve to a fiber -to- the -home network when the
consumer equipment is available to support the architecture and customer demand
exceeds initial capacity.
® Residential customers will be offered virtually all telephone, video, and data
services available in the. market today from one ' provider. Altrio will provide
"one -stop shopping" convenience for its . customers. Moreover, consumers that
have chosen not to participate in the new information age because of a lack of
experience with data services will be Altrio's specialty. The company will
promote "information equality" among all of Arcadia's residents.
5. A description of the transmission medium that will be used by the
applicant to deliver the open video system services.
Altrio plans to construct an HFC (Hybrid Fiber Coax) network, capable of expansion to a
fiber -to- the =home design as the network and market evolves. The network is primarily
optical, meaning that signals flowing between Altrio's central processing facility and
individual customers are carried over optical fibers, with the exception of the final mile
or so, where they are carried over coaxial cables. Ultimately, all information carried by
the network will be transmitted solely on optical fiber.
Very high reliability is required for primary telephone service — it is essential to our
customers that their telephone work even when the power is out. As a result, our video
and data customers, because they are to be served over the same network, will experience
reliability far in excess of that offered by typical cable television systems.
This highly - reliable service availability is assured through a variety of means. First, the
central processing facility is equipped with a totally - redundant power system. Most of
Altrio Cornmunications. Inc.
Proposal to the City of Arcadia
j Page 2
the signal processing equipment is also redundant, with automatic switching and. alarm
reporting to a state -of -the -art Network Operations Center that is staffed continuously.
Information. to and from regions within Altrio's service area is passed through
strategically- located "hubs." From hubs, the signals are transported to "nodes" within
each neighborhood, where the information is converted to transport through short coaxial
cables to its customers.
Reliability in the distribution network is assured by fully- redundant optical transport
between the headend and the hubs and between hubs and individual nodes. That is,
physically diverse paths are used in each case, with the surviving path selected should a
fiber cable be cut or equipment fail. Further, because of the low signal loss inherent in
optical fibers, no amplification is required between facilities. Both the hub equipment
and power system are fully redundant.
Each node, the coaxial equipment between the node and customers' premises, and the
network termination equipment at homes will all be powered by a "hardened" backup
power system located near the node.
All of these levels of redundancy are supported by a network status monitoring system
that will continuously monitor the status of hubs, nodes, power supplies and Altrio-
furnished terminal equipment; so that any operating discrepancies can be promptly
addressed by field personnel.
Altrio. will carry two broad classes of signals on its network: those carried in common to
all, 'or large groups, of homes, and those carried to and from individual customers.
Examples of the first are.-broadcast television chamlels and public, educational and
governmental access channels (PEG). Examples of the second are telephone
conversations. and subscriber interactions in purchasing individual on -demand movies.
Altrio's total information capacity, among the highest in the broadband industry, will be
divided between these two categories, allowing a rich menu of the most popular video
programming to be combined with many individualized, interactive services. Altrio
offers exceptional, effective information capacity by use of a high level of digital
transmission technology, combined with the ability to multiply its overall information
throughput by dividing its subscriber base into ever - smaller groups as the demand for
information grows across the network.
Altdo Communications. Inc.
Proposal to the City or Arcadia
Page 3
S. Information in sufficient detail to 'establish the applicant's
technical Qualifications, experience, and expertise regarding the
ownership and operation of the open video system described in the
application.
The executive management team of Altrio Communications consists of Dave Rozzelle,
Chief Executive Officer; Ted Liebst, Chief Financial Officer; and Dave Large, Chief
Technical Officer. Messrs. Rozzelle, Liebst, and Large are the former principals of
Media Connections Group (MCG), a telecommunications consulting firm that has done
extensive work with cities in Southern California and with the industry both domestically
and internationally. Prior to MCG, they held similar executive positions at Intermedia
Partners, a cable television multiple- system operator (MSO) that provided services to
over 750,000 customers in eleven states. While at MCG and InterMedia,' Large, Liebst,
and Rozzelle oversaw the construction, - maintenance and operation'of thousands of miles
of broadband plant. At MCG, they designed and provided, project management support
for a number of municipal fiber networks. Between them, the founders of Altrio have
over 75 years of experience in the telecommunications industry.
Specifically, and prior to the establishment of MCG, each of Altrio's founding principals
have acquired substantial experience and outstanding expertise in the course of their
careers:
® David G. Rozzelle—Executive Vice President Chief Executive Officer
Mr. Rozzelle was a partner and chief operating officer of a major cable operator,
and a partner in a noted Washington DC communications law firm. His background
provides an exceptional foundation for operation of an advanced broadband network. As
Chief Executive Officer, Cable Operations for InterMedia Partners, lie supervised many
divisions, including engineering, marketing, programming, human resources and legal
affairs. In his experience as a partner with Fletcher, Heald & Hildreth (FH &H), he
practiced before the FCC and specialized in litigation of a wide range of technical issues,
arguing cases before the US Court of Appeals and the US Supreme Court. Rozzelle is
experienced in copyright and music licensing, has been active in various industry. groups,
and is a frequent speaker at industry seminars and conferences.
® Edward G. Liebst Executive Vice President Chief Financial Officer
Mr. Liebst has been active in the telecommunications business since 1976. In
addition to his role as chief financial officer at InterMedia Partners, he served as a vice
president of a major bank's media lending area, and as an officer and partner in a venture
capital fund dedicated to media and telecommunications investments. With a career both
in cable television operations and. investment and commercial banking, Liebst developed
the acquisition and financing analysis and capital structures for multiple partnerships, and
has supervised all levels of corporate financial matters including treasury, capital
acquisition, accounting, budgeting, billing and insurance management. As an officer in
both investment and commercial banks, he has performed the analysis, due diligence,
structure and documentation of many media and telecommunications investments.
Aiirio Communications; Inc.
Proposal to ine City of Arcadia
Page 4
_7Z
® David J. Large — Executive Vice President and Chief Technical Officer
Mr. Large has 37 years of experience in engineering and its management, with a
specialty in broadband networks. A Caltech graduate, Large is equally experienced in
product design, evaluation, and operating aspects of telecommunications businesses. For
15 years, he served as chief technical officer -for various cable television companies
ranging from the most sophisticated metropolitan market to small stand -alone, rural
systems. He has also developed specifications for video portions of "fiber to the curb"
pkoducts, and has designed microwave and CATV measurement instrumentation, holding
three patents. Large is an active leader in various industry engineering associations and
standards setting organizations, and is. the noted co- author of the definitive textbook
"Modern Cable Television Technology."
In addition, Altrio has a cadre of very experienced senior managers, including:
Stephen R. Ross, Senior Vice President and General Counsel, is the former Chief
of the Cable Television Branch at the FCC with over 31 years of experience in the
field. Mr. Ross was the Chief of the FCC's Cable Television Branch, responsible
for regulation of all of the cable television industry. Most recently he was the
managing partner for Ross and Hardies, a leading telecommunications law firm,
representing cable television operators, programmers, investors and technology
interests. Mr. Ross has vast experience in all facets of the domestic and
international telecommunications industry. He has been a featured panelist and
speaker at many domestic and international conferences and is recognized as one
of the most knowledgeable, experienced individuals in his field.
® Brenda J. Trainor, Vice President, Public Policy, is a former municipal
telecommunications official in Austin, TX, Los Angeles, CA and Clark County,
NV; and a , former Director of the Board of the National Association- of
Telecommunications Officers and Advisors (NATOA); and a consultant to cities,
counties, economic development authorities and state agencies. A noted writer
and lecturer, she has designed and taught workshops and authored numerous
chapters and articles about telecommunications and public policy.
® Bill Kostka, Vice President of Engineering, most recently managed the cable
modem certification program at CableLabs. He has also designed digital video
settop boxed and cable modems for Hewlett Packard and has experience with
several cable television operating companies.
® Eric Hart, Vice President of Outside Plant, is an engineer with over twenty years
experience in broadband plant construction, maintenance and technical
operations. He has previously worked for Cable One, Charter Communications,
InterMedia Partners and various other cable companies.
® Ron Kirkeeng, Senior Vice President of Operations, is a 25 -year veteran of the
cable television industry, including service as a system general manager and a
regional operations manager; most recently he was CEO of the Cable
Communications Cooperative of Palo Alto, Inc. He held various positions at
Altrio Cemniunlcatic>ns, Inc.
Proposal to fhe.City of Arcadia
_
—73— Page 5
InterMedia Partners, including Regional Director of the Georgia/Carolinas Region
and Regional Manager for the Midwest Region.
® Richard Jennings, Senior Vice President of Human Resources is the former
executive director of Hollywood Supports, the entertainment -based nonprofit
organization founded by Barry Diller and Sid Sheinberg. Jennings was a
practicing attorney for 14 years, including positions at Paramount Pictures and
O'Melveny & Myers. He has served as a mediator for workplace and business
disputes, and has been a settlement officer for the California Court of Appeals,
Second Appellate District. A graduate of Stanford University and Columbia
University School of Law, Jennings has served as a consultant on executive
recruiting, employee relations and training programs, and has delivered hundreds
of seminars to entertainment_ industry personnel, law enforcement officials, and
federal agency employees.
® Wescott Guarino, Controller, is a Certified Public ' Accountant with significant
experience in managing accounting systems and financial operations. His career
includes financial management related to media and software companies. His
experiences include preparation of business and financial plans, developinent of
accounting policies and procedures, budgeting and implementation, financial
reporting, auditing and taxation.
Altrio Communications, Inc. is extremely proud of its founders, employees and
investors who represent some of the industry's most outstanding leaders.
Altrio Communications, Inc.
Proposal to the City of Arcadia
r�,f` Page
7. Financial statements prepared in accordance with generally
accepted accounting principles that demonstrate the applicant's
financial ability to:
a) Construct, operate, maintain and remove any new physical plant
that is proposed to be constructed in the City.
b). Comply with the City's public, educational, and governmental
access requirements .
c) Comply with the City's requirement for payment of fees as may' be
required.
Unlike some other alternative telecommunication service, or broadband, providers, Altrio
has focused its business plan on the Los Angeles area market, including the City of
Arcadia. Altrio has raised $125 Million in initial capital, dedicated to the construction of
its network in this geographic area. Altrio's investors include Frontenac Company;
Bessemer Trust; Soros Private Equity Partners; Salomon Smith Barney Capital Partners;
Royal Bank of Canada Capital Partners; Bank of America Capital Partners; and Grove
Street Advisors (Ca1PERS). The amount of equity already raised will take the company
to operating break -even without supplemental debt or equity under its business plan.
This plan includes the construction of distribution plant at an average rate of one mile per
working day, and for service to be offered to the first residential customer in May 2001.
Altrio will complete construction of its network in Arcadia within ten years. If
competitive conditions permit, Altrio intends to pass every residential home in Arcadia.
Altrio is committed to be in full compliance with the City's regulations, including those
for PEG Access and in payment of franchise fees.
Additional information can be found attached:
Attachment 7.1: Financial statements
Attachment 7.2: An organization chart describing ownership of the company
Attachment 7.3: A list of equity investors with addresses
Altrio Communications, Inc.
Proposal to the City or Arcadia
✓ �i` Page 7
8. An accurate map showing the location of any existing .
telecommunications facilities in the City that the applicant intends to
use, to purchase, or to lease.
Altrio has not yet entered into any agreements with respect to the purchase or lease of
facilities within the City, however it intends to make -arrangements for the acquisition or
use of facilities, conduit, and real estate as required for execution of its business plan.
9. If the applicant's operation of the open video system will require
the construction of new physical plant in the City, the 'following
additional information must be provided:
a) A preliminary construction schedule and completion dates.
Altrio has not yet prepared a detailed schedule of construction, but will submit plans in
compliance with the City's permitting and regulatory requirements.
b) Preliminary engineering plans, specifications, and a network map
of any new facilities to be constructed in the City in sufficient detail to
identify:
(1) The location and route requested for the applicant's
proposed facilities.
(ii) The locations, if any, for interconnection with the facilities of,
other telecommunications service providers.
(iii) The specific, structure, improvement, facilities, and,
obstructions, if any, that' the applicant proposes to remove or,
relocate on a temporary or permanent basis.
A sample design map is attached for your information. This sample provides the level of
detail that we will submit to Arcadia, though this sample is not of an Arcadia
neighborhood.
Attachment 9.1: Sample design map j
c) The applicant's statement that, in constructing any new physical
plant, the applicant will comply with all applicable ordinances, rules',
and regulations of the. City, including. the payment of all required
permit and processing fees.
Altrio's network is designed to be constructed within existing public utility rights -of -way,
with the possible exception of hubs that may sometimes be built in leased or purchased
facilities. The physical distribution network will variously consist of multi- strand fiber-
Altrio Communications. Inc.
Proposal to the City of Arcadia
Page 8
optic cables, coaxial cables, or both which will be either installed in below- ground ducts
or lashed to supporting steel wires ( "strand ") between overhead utility poles.
In California, overhead construction is governed by California Public Utility Commission
General Order 95 ( "G095 "), while its companion G0128 governs underground
construction. Wiring on and in homes is governed by the requirements of the National
Electrical Code and/or local wiring codes. The FCC, in Code of Federal Regulations 47,
Part 76, - specifies the final electrical- performance requirements. Altrio will be fully
compliant with or exceed these requirements and all those of the City of Arcadia's
applicable ordinances, rules, and regulations.
In general, G095 requires that telecommunications carriers be placed at least 12 inches
apart and a specified minimum distance above the ground and below high - voltage
transmission lines to assure safety. Occasionally, existing wires need to be moved to
accommodate a new carrier on a pole, a process known as "make- ready." This may
consist of moving other wires slightly higher or lower or, more rarely, by adding a cross -
arm. Altrio will cooperate with all other carriers in this process.
Active electronic equipment in the overhead plant - nodes and coaxial amplifiers - are
enclosed in boxes whose sizes vary from that of a small lunch box to a bread box.
Passive devices, mostly subscriber taps, are a few inches on each side. All of these
devices are hung from the supporting strand along with the cable.
Underground cables may be constructed in existing ducts, to the extent they are
reasonably available, .or in ducts installed by Altrio. The founders of Altrio have long
advised cities in telecommunications matters and are sensitive to concerns surrounding
the construction of underground facilities, ranging from damage to streets to disruption of
traffic during construction. Altrio will fully cooperate with local authorities to mitigate
the impact of construction of its network.
Electronic equipment associated with underground plant will generally be placed in
pedestals,' similar to those now used by cable television operators and telephone
companies. - Altrio will work closely with property owners to select locations that have
the least visual impact.
Hardened node power supplies for both overhead and underground plant will consist of
utility- powered electrical supplies backed up by a combination of batteries and natural-
gas- powered emergency generators (which operate only to power the network during
utility power outages): These devices, which are the size of a typical telephone wire
cabinet, will be placed in pedestals near nodes, where they are unlikely to be damaged
and where there is reasonable access to natural gas utility lines. Generator pedestals are
available in a variety of physical configurations and Altrio will work with local
authorities and nearby homeowners to select the most acceptable types and locations.
When operating, either for occasional testing or during- a power outage, the noise from
these units is similar in level to a modern home vacuum cleaner and is often masked by
ambient street -side noises from other sources.
Altrio Communications, Inc.
Proposal io the City of Arcadia
Page 9
In summary., Altrio will construct a network with superior information capacity and
reliability. Through this network, we will offer fully competitive voice, data and video
services, as well as services that are not currently offered by any incumbent. The
network will be constructed completely within existing .public utility rights -of -way, in
full compliance with national, state and local standards and regulations, and in such a
way as to minimize disruption to the community and its citizens during its construction
and operation.
10. The information and documentation_ that will be provided to
customers and that describes customer service policies.
Altrio will comply with all customer service requirements of the FCC, the State of
California, and the City of Arcadia as are described in its ordinances. These requirements
and standards will be incorporated into Altrio's policies, customer materials, and
employee training materials upon publication.
91. Such additional information as may be requested by the City
Manager..
Altrio stands ready to respond to any additional information requests of the City
Manager.
Altrio Communications, Inc.
Proposal io fhe City of Arcadia
_ p' , Page 10
I
DC01/347284.1
WRITER'S DIRECT DIAL NUmSE
THOMAS J. DOUGHER'M JR
(202) 409.7164
cdoughcny@gcd,com
GARDNER, CARTON & DOUGLAS.
1301 K STREET, N.W.
SUITE 900, EAST TOWER
R WASHINGTON, D.C. 20005
(202) 400 -7100 '
Fax: (202) 289 -1504
INTERNET: god{aWdC ®ged.eom
October 30, 2000
Via Hared DeliveYy
Ms. Magalie Roman Salas
Secretary
Federal Communications Commission .
The Portals
445 12th Street, S.W.
Washington, D.C. 20554
Lj
OCT SO 6 z�o�
fF 7W
Re., CABLE SERVICES BUREAU
ALTRIO Ci41idMUMCATIONS, INC.
FCC FORM 11275 — OPEN CEO SYSTEM
CERTIFICA'T'ION OF COMPLIANCE
Dear Ms. Salas:
0
CHICAGO. ILLINOIS
i
i
MEM9fiR
WORLO LAW Q)POUP
A GLOBAL NETWORK
OF INBti¢NDENT
FIRMS LOC4TE0 W
30 COLt1YTR1E&
•I
I
Transmitted herewith in duplicate, on behalf of Altrio Communications, Inc., is an
application on FCC Form 1275 certifying its compliance with the Commission's rules
concerning the proposed construction and operation of an open video system to provide service
to communities in all or portions of Los Angeles, Orange and Ventura Counties, California.
Also transmitted with this application is an IBM- formatted diskette which contains the
above - referenced application, and all exhibits thereto, in Microsoft Excel and Microsoft Word
formats.
A complete copy of this application was served via United States fast class mail, postage
prepaid, on all communities identified on the certificate of service attached to this application. -
Please date -stamp the enclosed. "S &R" copy of this filing and return it to the courier
DC0113472l1..1
GARDNER, CARTON Zz DOUGLAS
Ms. Magalic Roman Salas
October 30, 2000
Page-2
delivering this package. Should any questions arise with regard to this filing, please contact the
undersigned.
Respec tfubmi6d,
n?as J. D e
Counsel to
Altrio Communications, Inc.
Enclosures
cc: Bureau Chief, Cable Services Bureau (w /enclosures and diskette filing)
Federal Communications Commission
The Portals, 445 Twelfth Street, S.W.
Room 3 -C830
Washington, D.C. 20554
DCO1/347291.1 2
g/
Federal CommunlcaWns Commissson
Washington, D.C. 20554
FCC FORM 1275
CERTIFICATION FOR OPEN VIDEO SYSTEMS
Approved bY 0MB 3060 -0700
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Company Name:
ram.,
Altrio Communications
Inc.
Contact Person:
Signature:
/n,
Stephen Ross
Date: ,r
Mailing Address:
i/ C%
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801 N. Brand Blvd. Suite. 400
City:
State:
Zip Code:
Glendale
CA
91203
Phone Number:
Fax Nurnher:
818 -5S2 -4258
818 -54iE -7578
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Yes
1. If you are a cable operator applying for certification within your cable franchise area,
are you qualified to perate an open video system under 47 C.F.R. § 76.1501?
2. Do you agree to comply and to remain in compliance with each of the Comm!: sign's X
regulations in 47 C.F.R. §§ 76.1503, 76.1504, 76.1506(m), 76.1508, 76.15D9, anc 76.1513?
3. Do you agree to comply with the Commission's notice and enrollment requirer'!ents X
for unaffiliated video programming providers?
4. If applicable, do you agree to file'changes to your cost allocation manual at le:lst
60 days before the commencement of service?
1. Provide a general description of the anticipated
See Exhibit II
No N/A
X
or areas to be served upon completion of the system'.
X
?. Anticipated Digital Capacity: _;"=v: _:.� 3. Anticipated
'�Cii:c.!::i�,. '.:.:: • .. 4�'iwi °nom °a
See Exhibit III ,:___:�;_, �, .' Analog CI!paclty: See Exhibit III ^n�rs:�
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4. If Switched Digital; .. _ _.. ;_ :�, .. „>n,K.v> nt ...n gin;, �, - �:�__: - :,njM -0
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Number of Channel Inpu See Exhibit III ".nom.;;:: ,��, _ ,,,r, ,a_- ;:Ermr—nyc „u r. rypm�a:t Tcu• r�:arc �r°r c.._•:___�•:s_ =:-
Input Ports: ° °n;: „; `: •sac•,i!9�n
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WILLFUL FALSE STATEMENTS MADE ON THIS FORM ARE PUNISHABLE BY FINE AND /OR IMPRISONMENT
U.S. CODE TITLE 18, SECTION 1001), AND /OR FORFEITURE U.S. CODE TTU 47 SECTION 503
To the best of my knowledge and belief, the representations made herein are accurate according to the most recent information
available.
Name:
jle 11d n l ass'
Signature:
/n,
Title: %
Date: ,r
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2 — FCC Form 1275
ALTRIO COMMUNICATIONS, INC.
FCC FORM 1275
OVS CERTIFICA'T'ION FOR
GREATER LOS ANGELES
OCTOBER 2000
EXHIBIT 'I
STATEMENT OF QUALIFICATIONS AND OWNERSIRP
Altrio Communications, Inc. ( "Altrio ") is a domestic corporation having a headquarters
at 801 N. Brand Street, Suite 400, Glendale, CA 91203.
I. Statement of Qualifications.
Altrio qualifies under Rule 76.1501 as an OVS operator in the cormunities listed in this
application because Altrio is not presently a cable operator in any of the communities covered by
this certification.
II. Statement of Ownership and Affiliated Parties.
The ownership of Altrio is distributed among the following persons and entities in the
percentages indicated:
Owner
Frontenac Company
Bessemer Holdings
BancAmerica Capital Investors SBIC II, L.P.
RBC Equity Investments, Inc.
SFM Domestic Investments LLC
Quantum Industrial Partners LDC
SSB Capital Partners (Master Fund) I, LP
Grove Street Advisors
David G. Rozzelle
David J. Large
DC01 /346972.1
B
Percentage
22.8
22.8
6.5
6.5
12.9
0.1
6.5
3.3
5.2
5.2
Edward G. Liebst, Jr.
Various unrelated entities
The following are officers and/or directors of Altrio.
Officers and Directors
David G. Rozzelle
David J. Large
Edward G. Liebst..Jr.
Walter Florence
James Crawford, III
Edward Park
Adam Godfrey
Colin Raymond
DC01 /346972.1
-Q, q -
5.2
3.0
Position (s)
CEO, President,
Director
Executive Vice President,
Chief Technical Officer,
Director
Executive Vice President,
Chief Financial Officer
Director
Director
Director
Director
Director
Director
T110
CITY'S UNDERGROUND CONSTRUCTION REQUIREMENTS
I. INSTALLATIONS IN PARKWAYS
A. All conduit installations in parkways must have a minimum cover of 18 inches
below the finish grade.
B. All existing improvements in parkways, including landscaping and sprinklers,
must be protected from damage, or, if damaged, restored to pre - Construction conditions.
All repairs and replacements must be made in -kind.
C. All service boxes and vaults must be set to finish grade on six inches of one -
inch crushed rock.
D. No access to service boxes or vaults may be located within the sidewalk,
wheelchair ramps, or drive apron areas unless authorized by the City Engineer.
E. All service boxes installed on hillsides in the Public Right -of -Way are required
to be installed on a level concrete pad with a retaining wall constructed around the
hillsides of the service box. All retaining walls shall be approved by the City Engineer.
H. INSTALLATIONS IN ROADWAYS
A. Conduit may be installed at locations shown on plans submitted by Grantee
after approval by the City Engineer. If a location is available, the preferred alignment is
two feet from the outer edge of an existing gutter. Where it cannot be located on the
preferred alignment, the location must be approved by the City Engineer. Removal and
replacement of all damaged pavement between the trench and the edge of existing
roadway pavement is required on all Streets. The edge of the trench must be a minimum
of one foot from the edge of the gutter. Exceptions to this requirement must be approved.
by the City Engineer.
B. Concrete pavement serving as bus pads, spandrels, cross gutters, or local
depressions may not be cut. At these locations, the conduit must be bored or jacked.
C. It is mandatory to maintain a straight alignment. Routing of conduit at bus
pads, and any other protrusions beyond the gutter edge, must be approved by the City
Engineer. Some installations may require locations in the parkway. Locations directly
above or in conflict with existing utilities are not permitted, unless approved by an
agreement with the affected utility.
-85-
D. Open -cut transverse trenches are not allowed within Streets except 'at
intersections, unless otherwise provided. To serve customers on the other side of a Street,
a parallel line on the opposite side of the Street must be installed. An alternative to this
procedure is mid -block crossings installed by jacking conduit under the Street. If the
conduit is to be jacked under the Street, Grantee must abide by the following guidelines
unless otherwise directed by the City Engineer:
1. Crossings must be at least 150 feet apart.
2. Jacking pits must be in the parkway adjacent to the main cable trench.
E. Conduit must be installed at a consistent depth throughout a block with a
minimum cover (below the established edge of the gutter) of 30 inches in all Streets and
alleys.
III. ABOVE - GROUND SERVICE BOXES OR VAULTS
A. Above - ground service boxes or vaults are not permitted in the public rights -of-
way without prior consideration of the need, which consideration will include industry
technical standards and the safety and aesthetics of the placement.
B. Above - ground service boxes or' vaults may not be installed without the prior
approval of the Public Works Services Department. Landscaping and irrigation
requirements may be imposed by the Public Works Services Department.
C. Above- ground service boxes or vaults must be properly maintained for safety
and aesthetics reasons in accordance with the following procedures:
1. Safety repairs must be completed within 24 hours after discovery of the
need for such repairs by the Grantee's Personnel or notification from the City
Engineer or other designated representative of the City.
2. Grantee must provide routine maintenance (e.g., painting, leveling,
service box replacement, fastening to base) within .10 working days after the
discovery of the need for such maintenance. by Grantee's Personnel or
notification from a resident, the, City Engineer, or other designated
representative of the City.
3. Grantee must patrol all areas of the Franchise service area having
above - ground service boxes or vaults on a regular basis, at intervals not in
excess of three months, to inspect for damage and to determine the need for
any required maintenance.
I
D. City and Grantee will meet periodically to discuss potential locations where
existing above - ground service boxes or vaults can be eliminated, or converted to flush -
mounted enclosures, without compromising the technical operation and reliability of the
Cable System.
IV. PERMITS
A. All work within the public rights -of -way must be conducted under proper
permits from City.
B. An excavation permit must be .obtained for each increment of work, and
inspection must be requested at least 24 hours prior to any excavation. All inspection
costs will be charged directly to the Grantee.
C. Plans for all work must be submitted to and approved by Public Works
Services Department prior to any excavations.
D. Above - ground power pedestals must be clearly delineated on the plans at the
time they are submitted for review. Review and permitting for power pedestals will be
conducted simultaneously by Public Works Services and by the Southern California
Edison Company in order to avoid conflicts.
V. PRE- CONSTRUCTION
A. . A pre job meeting must be scheduled prior to start of work at each permitted
location as determined by the City Inspector. Representatives of the Grantee, including
its contractors, and Public Works Services must be included in these pre job meetings.
Grantee must call for inspection at least 24 hours before starting any work.
B. Telephonic notices must be provided to the Underground Service Alert (USA)
at least two working days prior to starting work on any permitted project. Grantee must
have an.approved permit from Public Works Services before contacting USA.
C. All utility services must be marked prior to excavation using chalk -based paint
(such as "AERVOE" brand available from Surveyor's Services at (714) 546- 0606)) with a
visibility life not to exceed three weeks.
D. Where practicable, affected residents must be notified by the Grantee in writing
not less than 48 hours prior to excavation on their Streets and in the Public Right -of -Way.
in
VI. CONSTRUCTION.
A. Compliance is required at all times with all provisions of the latest edition of
the Work Area Traffic Control Handbook (WATCH) and the latest edition of the
"Standard Specification for Public Works Construction - Green Book," including any
supplements.
B. Except in the event of an emergency, no excavations may be made by Grantee
between December 26 and April 16 and between September 23 " and November 6 within
Street rights -of -way in those areas of the City highlighted on the Racing Day Schedule on
file in the office of the City Engineer.
C. Open -trench protection, and noise and dust curtailment methods, acceptable to
the City Inspector, must be provided.
D. Pavement cuts and restoration must conform to City's standard plans for
asphalt pavement restoration and concrete pavement restoration.
E.. All trenching activity that is commenced each day ( ?) in the Street must be
backfilled to a depth specified by the City Inspector at the end of the day ( ?); final
resurfacing must be completed within five working days on all Streets and alleys. Final
roadway clean -up must be completed within five days following resurfacing. Final clean-
up of vault installations and other work behind the curb must be completed within 10
days following.roadway resurfacing.
F. Grantee, or its contractor, must designate a project superintendent to handle
field operations.
G. If utility services must be exposed, the trench must be hand - excavated to the
service line after saw - cutting pavement.
H. Residents must be notified immediately of any damage affecting their property,
and repairs must be promptly made. Where practicable, same -day repair of damaged
utility services is mandatory.
VII. MISCELLANEOUS
A. Where field conditions are such that these Underground Construction
Requirements are conflicting or apparently prevent progress, all work will cease until
modified specifications are approved in writing by the City Engineer.
B. Grantee is to deliver a CD ROM with as -built drawings of installations in
AUTOCAD on City Base Parcel Map to fit existing PIS System. The delivery of as-
builts shall be updated every six (6) months.
-Sg-
CERTIFICATE OF CLOSING
This Certificate of Closing is issued .pursuant 'to Section 3(a) of that certain Franchise
Agreement (Franchise) dated June 19, 2001 by and between the City of Arcadia and Altrio
Communications, Inc. This Certificate of Closing is issued to certify that the documents listed below
have been delivered or acts performed as represented or made known to the undersigned. This
Certificate of Closing shall not be deemed to be a representation or warranty as to the truth of the
facts stated within such documents or the authenticity thereof, and this Certificate of Closing shall
not be effective to the extent based on fraud, misrepresentation, or other wrongful conduct.
A signed, written acceptance by Altrio Communications Inc., to be bound by and comply
with and to do all things required by the Franchise B Section 3(b) of the Franchise
Bonds -- Section 9(b) of the Franchise
Certificates of Insurance -- Section 15(c) of the Franchise (Standard Accord 25 -S Form)
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
This Certificate of Closing is executed this--'21 'day of &,,L —' 2001.
RVnM\JSB \614096
-51-
Stephen P. Deitsch:
City Attorney
City of Arcadia
ACCEPTANCE TO BE BOUND
Altrio Communications, Inc., does hereby agree to be bound by that certain Franchise
Agreement by and between the City of Arcadia, .a municipal corporation and charter city and Altrio
Co=unications,-Inc., dated the q,4b day of _, 2001.
RVPUBVSB\614096
By: avid
(Print)
Its: pnes'Otni
Dated: 3111y a 2001
-7 D
.. I!
Bond Number: 831737C
Premium: $200.00, Annually
KNOW ALL MEN BY THESE PRESENTS, That we
Altrio Communications. Inc. , as PRINCIPAL, and
Indemnity Company of California, a corporation organized and doing business under the laws of
the State of California, and duly licensed to conduct a general surety business in the State of
California as SURETY, are held and firmly bound unto
THE CITY OF ARCADIA, CALIFORNIA as OBLIGEE, in the sum of
Five Thousand and no /100------ - - - - -- Dollars ($5,000.00 ) for which payment, well and truly to be
made, we bind ourselves, our heirs,- executors and successors, jointly and severally, firmly by
these presents.
WHEREAS the City of Arcadia has awarded a cable television Franchise to Altrio
Communications, Inc., the Principal /Franchisee, pursuant to Ordinance 2144 granted on July 3,
2001; and,
WHEREAS the franchise agreement, in Section 9(b), requires a bond in the amount of $5,000
as surety for performance of the terms of the Franchise;
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that
If the Principal, his or its heirs, executors, administrators, successors or assigns, shall in all
things stand to and abide by, and well and truly keep and perform the covenants, conditions and
agreements in the said Franchise Agreement and any alteration thereof made as therein
provided, on his or their part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to their intent and meaning; and indemnify and save
harmless the Obligee, its officers and agents, as stipulated in the said Franchise Agreement,
then this obligation shall become null and void; otherwise it shall be and remain in full force and
effect.
This obligation is subject to the following conditions:
1. The effective date of the Bond shall be from July 23, 2001 through July 22, 2002, and Surety
shall not be liable for any defaults or events arising either before or after the effective date of the
Bond. At sole option of the Surety, the Bond may only be renewed by continuation or renewal
certificate, and /or rider setting forth the new commencement and expiration dates. Non - renewal
of the Bond, whether or not a breach of the Franchise Agreement, shall not be considered a
breach within the effective period of the Bond.
2. Surety's aggregate liability under this bond shall in no event exceed the penal sum of the
Bond. Where the Bond is renewed, continued, reinstated. reissued, or otherwise extended for
one or more years, the Bond shall be considered one continuous bond and in no event shall the
penal sum, or any portion thereof, at two or more points in time be added together to determine
the Surety's liability under the Bond.
PERFORMANCE BOND -1
AMOTO
- CA
OUNTY
39
KAMOTO
IC - CA
'OUNTY
339
3. Any suit by the Obligee under the bond must be instituted before the expiration of one year
from the expiration of the effective date of the Bond; provided, however, that if this limitation is
void or prohibited by law, the minimum period of limitation available to sureties as a defense in
the jurisdiction of the suit shall be applicable. The Bond shall not be liable for any liability of the
Principal for tortious actions or inactions, whether or not said liability is imposed by statute,
common law, or is imposed by the Contract. Furthermore, the Bond shall not be a substitute for
or supplemental to any liability or other insurance required by the Contract.
In the event legal action is required to enforce the provisions of this agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees in addition to court costs, necessary
disbursements, and other damages.
INWITSESS WHEREOF, we h01 a hereto set our hands and seals this 1st day on
A
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PRINCIPAL
SURETY
Indemnity Company of California
B : m
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Les I. JacksonAttot. 16 in Fact
PERFORMANCE BOND - 2
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of �Aub� -►.�1A
County of (.05 A-y1Qe _f-_5-
On A060 31 2«'t before me, 00141 " I *6Tb , 00rA" PUS C
DATE NAME, TITLE OF OFFICER - 9.G., 'JANE DOE, NOTARY PUBLIC"
personally appeared PAU6 fbZ� EL-I_E ,
NAME(S) OF SIGNER(S)
personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is /are
subscribed to the within instrument and ac-
knowledged to me that he /she /they executed
the same in his /her /their authorized
capacity(ies), and that by -his /her /their
signature(s) on the instrument the person(s),
KIYOMIANNNAKAMOTO t or the entity upon behalf of which the
COMM. #1222176 m
�„ _ Notary Publ�- California to person(s) acted, executed the instrument.
W �, LOS ANGELES COUNTY
My Cantu Exp. May 28, 2003
WITNESS my hand and officials I.
Ll _ I
SIGNATURE OF NOTARY
KNOW
OPTIONAL ntnTA
LOS At
Though the data below is not required by law, it may prove valuable to persons relying on the document and could preve
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
INDIVIDUAL
CORPORATE OFFICER
Rze', M"jq- U5
JITTLE(S)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENITY(IES)
AIA(zta c 0VAMw3'cikov1JS f rt0c--
DESCRIPTION OF ATTACHED DOCUMENT
PEFITRIM OC>✓ P�tzD
TITLE OR TYPE OF DOCUMENT
a
NUMBER OF PAGES
A%)(:iur-s (I WD)
DATE OF DOCUMENT
(J6R65A s. JA0-'�W) f CDAV� u )
I ND6141jay CO. or- CA AufvAO Cv M .
SIGNER(S) OTHER THAN NAMED ABOVE
1\ I i5
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LE
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of GA \-(TeP IA
County of u6 A,06sI ✓S
On A"� 312 } before me, 00tH( ANN NAME , NOFAM PUBLic. ,
DATE NAME, TITLE OF OFFICER - E.G., 'JANE DOE, NOTARY PUBLIC'
personally appeared [RUC- (-AW,:;i i��
NAME(S) OF SIGNER(S)
personally known to me - OR - proved to me on the basis of satisfactory evidence
V to be the person(s) whose name(s) is /are
subscribed to the within instrument and ac-
knowledged to me that he /she /they executed
the same in his /her /their authorized
capacity(ies), and that by his /her /their
signature(s) on the instrument the p I(1Y0M1 ANN NAKAMOTO o r the e n t it u o n b e h a l f of w
Kills
COMM. #j m� 76 m Y P Notary PubliaCalHomia person(s) acted executed the instr F
w Los ANGELES COUNTY N
My Comm. Exp. May 28, 2003 (21
WITNESS my hand and official seal
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could, prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
I LJINDIVIDUAL
CORPORATE OFFICER
CHICK Ter_AJIGAL CFF(CEK-
TITLES)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTI Y(IES)
A1,4 0 C wVA0NtC vt,:&
f6M>H4) c_t— sbtsfl
TITLE OR TYPE OF DOCUMENT
2—
NUMBER OF PAGES
ilvCojsS 1120111
DATE OF DOCUMENT
(,r,c z. TAUCSDP) v>-
OmO 4 CA. of CA/ W(Ao CWK .
SIGNER(S) OTHER THAN NAMED ABOVE
I N)
u6
ES
3n
STATE OF California
COUNTY OF Orange SS.
on August 1, 2001 , before me, Niria Tapia, Notary Public
PERSONALLYAPPEARED Teresa I. Jackson
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed
the same in his/her /their authorized capacity(ies), and that by his/her /their
signatures) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
OPTIONAL
f
IT
alb
NIRIA TAPIA Il
COMM. #1293351
NOTARY PUBLIC • CALIFURNIA p
ORANGE COUNTY n�
MY Comm. Exp. Feb. 8, 2005 I�
This area for Official Notarial Seal
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
! ' INDIVIDUAL
CORPORATE OFFICER
TITL -(S)
PARTNER(S) ❑ LIMITED
❑ GENERAL
2 AT T ORNEY -IN -FACT
L_' TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER:
SIGNER IS REPRESENTING:
.NAME OF PERSCN(S) OR -hN IVES)
Indemnity company of California
DESCRIPTION OF ATTACHED DOCUMENT
Performance Bond
TITLE OF TYPE OF DOCUMENT
2
NUMBER OF PAGES
August 1, 2001
DATE OF DOCUMENT
Altrio Communications, Inc.
SIGNER(S) OTHER THAN NAMED ABOVE
"`Ieje (r+tv. so)I ALL- PURPOSE ACKNOWLEDGEMENT
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725, IRVINE, CA 92623 • (949) 263 -3300
KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY
OF CALIFORNIA, do each severally, but notjointly, hereby make, constitute and appoint:
* * *TERESA I. JACKSON, VICTORIA L. VOORHEES, JOHN D. MILLER, JOINTLY OR
SEVERALLY * **
as the true and lawful Attomey(s) -in -Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations as sureties, bonds, undertakings and contracts
of suretyship giving and granting unto said Attomey(s) -in -Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in
connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said
Attomey(s) -in -Fact, pursuant to these presents, are hereby ratified and confinned.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November 1, 2000:
RESOLVED, that the Chairman of the Board, the President and any Vice President of the corporation be, and that each of them hereby is, authorized to execute Powers of
Attorney, qualifying the attorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the
Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney;
RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such
Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in the future with respect to any bond,
undertaking or contract of suretyship to which it is attached.
IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these
presents to be signed by their respective Executive Vice President and attested by their respective Secretary this 81h day of November, 2000.
By: Ca '—Q�
David H. Rhodes, Executive Vice President
By: X/, t/ V 1
Walter A. Crowell, Secretary
STATE OF CALIFORNIA )
)SS.
COUNTY OF ORANGE )
AND
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Z a
\ CgGIFOR�\P /
On November 8, 2000, before me, Diane J. Kawata, personally appeared David H. Rhodes and Walter A. Crowell, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature
DIANE J. KAWATA
- NOTARY PUBLI#1167928 C iL FORNIA E
i4 ORANGE COUNTY
My Comm. EV. Jan. B, 2002
CERTIFICATE
The undersigned, as Chief Operating Officer of DEVELOPERS -SURETY—AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, does
hereby certify that the foregoing Power of Attorney remains in fall fbrce'an3 has not.becn revoked, and furthermore, that the provisions of the resolutions of the respective
Boards of Directors of said corporations set forth in the Power orAitortieyjare -in force aF ,af the date of this Certificate.
This Certificate is executed in the City of Irvine, Californiasha __1st - d<yof_ Au�t3s t 2001
`By
David G. Lane, Chief Operating Officer
ID -1380 (11 /00)